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A Tale of Three Posts

Since I started blogging in July 2011, I have published 521 posts (not including this one). A number of my posts have achieved a fair amount of popularity, as measured by the number of views, which WordPress allows me to keep track of. Many, though not all, of my most widely viewed posts were mentioned by Paul Krugman in his blog. Whenever I noticed an unusually large uptick in the number of viewers visiting the blog, I usually found Krugman had linked to my post, causing a surge of viewers to my blog.

The most visitors I ever had in one day was on August 7, 2012. It was the day after I wrote a post mocking an op-ed in the Wall Street Journal by Arthur Laffer (“Arthur Laffer, Anti-Enlightenment Economist”) in which, based on some questionable data, and embarrassingly bad logic, Laffer maintained that countries that had adopted fiscal stimulus after the 2008-09 downturn had weaker recoveries than countries that had practiced fiscal austerity. This was not the first or last time that Krugman linked to a post of mine, but what made it special was that Krugman linked to it while he on vacation, so that for three days, everyone who visited Krugman’s blog found his post linking to my post, so that on August 7 alone, my post was viewed 7885 times, with 3004 viewing the post on August 8, 1591 on August 9, and 953 on August 10. In the entire month of August, the Laffer post was viewed 15,399 times. To this day, that post remains the most viewed post that I have ever written, having been viewed a total 17,604 times.

As you can see, the post has not maintained its popular appeal, over 87 percent of all views having occurred within three and a half weeks of its having been published. And there’s no reason why it should have retained its popularity. It was a well-written post, properly taking a moderately well-known right-wing economist to task for publishing a silly piece of ideological drivel in a once-great newspaper, but there was nothing especially profound or original about it. It was just the sort of post that Krugman loves to link to, and I was at the top of his blog for three days before he published his next post.

Exactly a year and a half later, February 6, 2014, I wrote another post (“Why Are Wages Sticky?“) that Krugman mentioned on his blog. I wasn’t mocking or attacking anyone, but suggesting what I think is an original theoretical explanation for why wages are more sticky than most other prices, while also reminding people that in the General Theory, Keynes actually tried to explain why wage stickiness was not an essential element of his theoretical argument for the existence of involuntary unemployment. Because it wasn’t as polemical as the earlier post, and because I didn’t have Krugman’s blog all to myself for three days, Krugman’s link did not generate anywhere near the traffic for this post that it did for the Laffer post. The day that Krugman linked to my post, February 7, it was viewed by 1034 viewers (333 of whom were referred by Krugman). Very good, but nowhere near the traffic I got a year and a half earlier. For the entire month of February, the post was viewed 2145 times. Again, that’s pretty good, but probably below average for a post to which Kruman posted a link. But the nice thing about the wage stickiness post is that although the traffic to that post dropped off over the next few months, the decline was not nearly as precipitous as dropoff in traffic to the Laffer post. During all of 2014, wage-stickiness post was viewed a total of 6622 times.

What I also noticed was that after traffic gradully dropped off in the months after February, traffic picked up again in September and again in October before dropping off slightly in December and January,  only to pick up again in February. That pattern, which has continued ever since, suggests to me that somehow econ students, on their own or perhaps at the suggestion of their professors, are looking up what I had to say about wage stickiness. Here is a WordPress table tracking monthly views of this post.

So unlike the Laffer post, the vast majority of the visits to the wage-stickiness post (almost 88%) have occurred since the month in which it was published. So for about two years I have been watching the visits to my wage-stickiness post gradually move up in the rankings of my all-time most viewed posts until I could announce that it had eclipsed the fluke Laffer post as my number one post. The price-stickiness post is now within less than fifty views of passing the Laffer post. Yes, I know it’s not a big deal, but I feel good about it.

But over the past six months, suddenly since October, a third post (“Gold Standard or Gold Exchange Standard: What’s the Difference?“), originally published on July 1, 2015, has been attracting a lot of traffic. When first published, it was moderately successful, drawing 569 visits on July 2, 2015, which is still the most visits it has received on any single day, mostly via links from Mark Toma’s blog and Brad DeLong’s blog. The post was not terribly original, but I think it did a nice job of describing that evolution of the gold standard from an almost accidental and peculiarly British, institution into a totem of late nineteenth-century international monetary orthodoxy, whose principal features remain till this day surprisingly obscure even to well trained and sophisticated monetary economists and financial experts.

And I also tried to show that the supposed differences between the pre-World-War I gold standard and the attempted and ultimately disastrous resurrection of the gold standard (GS 2.0) in the 1920s in the form of what was called a gold-exchange standard were really pretty trivial. So if the gold standard failed when it was reconstituted after World War I, the reason was not that what was tried was not the real thing. It was because of deeper systemic problems that had no direct connection to the nominal difference between the original gold standard and the gold exchange standard. I cconclluded the post with three lengthy quotations from J. M. Keynes’s first book on economics Indian Currency and Finance, which displayed an excellent understanding of the workings of the gold standard and the gold exchange standard, the latter having been the system by which India was linked to gold while under British control before World War I. Here is the WordPress table tracking monthly views of my post on the gold exchange standard.

The number of views this month alone is a staggering amount of traffic for any post — the second most views in a month for any post I have written. And what is more amazing is that the traffic has not been driven by links from other blogs, but has been driven, as best as I can tell, at least partially, by search engines.

The other amazing thing about the burst of traffic to this post is that most of the visitors seem to be coming from India. Over the past 30 days since February 28, this blog has been viewed 17,165 times. The most-often viewed post in that time period was my gold-exchange standard post, which was viewed 7385 times, i.e., over 40% of all views were of that one single post. In the past 30 days, my blog was viewed from India 6446 times while my blog was viewed from the United States only 4863 times. Over the entire history of this blog, about 50% of views have been from within the US. So India is clearly where it’s at now.

Now I know that the Indian monetary system was implicated in this post owing to my extended quotation from Keynes’s book, but that reference is largely incidental. So I am at a loss to explain why all these Indian visitors have been attracted to the blog, and why the attraction seems to be growing exponentially, though I suspect that traffic may have peaked over the last week.

At any rate here is how a WordPress table with my 11 most popular posts (as of today at 3:07 pm EDST).

So, as I write this it is not clear whether my hopes that my price-stickiness post will become my all-time most viewed post will ever come to pass, because my gold exchange standard post may very well pass it before it passes the Laffer post. Even so, over the very long run, I still have a feeling that the wage stickiness post will eventually come out on top. We shall see.

At any rate, if you have ever viewed either one of those posts in the past, I would be interested in hearing from you how you got to it.

PS I realized that, by identifying Paul Krugman’s blog as the blog from which many of my most popular posts have received the largest number of viewers, I inadvertently slighted Mark Thoma’s indispensible blog (Economistsview.typepad.com), which really is the heart and soul of the econ blogosphere. I just checked, and I see that since my blog started in 2011, over 79,000 viewers have visited my blog via Mark’s blog compared to 53,000 viewers who have visited via Krugman. And I daresay that when Krugman has linked to one of my posts, it’s probably only after he followed Thoma’s link to my blog, so I’m doubly indebted to Mark.

Deconstructing Judge Bybee’s Disingenuous Dissent

On January 27, 2017, Executive Order 13769 was issued; among other things the order instructed cabinet secretaries to stop immigration from seven previously identified countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen), the officials being authorized to issue exemptions on a case-by-case basis. The order was immediately challenged in a number of suits in the federal district courts, with at least one court (in Boston) upholding the order. However, the court in the Western district of Washington, finding that the order was likely to be ruled unconstitutional in a trial on the merits, issued a temporary restraining order (TRO) blocking the government from enforcing the order. The government immediately appealed the TRO to the Ninth Circuit Court of Appeals. A three-judge panel of the court heard the appeal, and unanimously dismissed the government’s request for a stay of the TRO in a per curiam decision. Rather than appeal the decision of the 3-judge panel to the full court of appeals, or to the Supreme Court, the government chose to withdraw the initial order, mooting the decision, and began to redraft the order to address the defects in the original order identified by the district court trial judge and the 3-judge panel of the Ninth Circuit.

The opinion of the 3-judge panel upholding the TRO, focused on three provisions of the order: first the 120-day ban on entry into the US by any nationals from the seven listed countries, including nationals who are legal permanent residents, holders of green cards, or other valid non-immigrant visas permitting them to work or reside in the US, second the suspension for 120 days of the refugee resettlement program for nationals of the seven listed countries, and, upon completion of the 120-day period, the prioritization of granting refugee status to religious minorities (i.e., non-Muslims) from those countries, and third, the indefinite suspension of all Syrians from the refugee resettlement program.

Although the cause of action underlying the Washington case was removed by the withdrawal of executive order 13769, the decision of the 3-judge panel remains valid and may be cited as authority by other courts. However, one (unnamed) judge on the Ninth Circuit moved for the opinion to be vacated, a technical term meaning that the decision and the opinion are reduced to the approximate status of, say, a law review article, but become devoid of any precedential authority. A motion by a judge on the court of appeals to vacate a decision is typically not made unless a judge wants to signal his or her strong disagreement with the decision, and the opinion written by Judge Jay Bybee of the Ninth Circuit and concurred in by four other judges of the Ninth Circuit, including the former Chief Judge, Alex Kozinski.

The main points of the opinion of the 3-judge panel were: 1) the states of Washington and Minnesota had standing to act as plaintiffs on behalf of resident aliens and on behalf of citizens whose rights or interests were incidentally harmed by the executive order; 2) the executive order was subject to judicial review notwithstanding broad Constitutional powers assigned to the executive branch in matters of foreign policy and explicit grants of authority by Congress over immigration policy; 3) the TRO issued by the district court was a procedural order based on a finding by the court that the plaintiffs had established a substantial likelihood of success at trial; 4) in seeking to stay the TRO, the government bore the burden of rebutting the decision of the trial court that plaintiffs would prevail on the merits, which could be done either by proving that the wrong standard of judicial review was applied, or by showing that there was a compelling national security justification for the order; 5) the district court was correct in ruling that the plaintiffs had a strong likelihood of success in establishing that the Constitutionally granted rights of due process to which nationals from the seven listed countries who were either legal resident aliens, green-card holders, or holders of valid travel visas are entitled had been violated by the executive order; 6) the likelihood that claims by plaintiffs that they were victims of religious discrimination would be upheld is not clear, but a likelihood of success in establishing their due-process claims having been established, plaintiffs could continue to raise their religious discrimination claims in subsequent proceedings.

In his opinion arguing for the decision and opinion of the 3-judge panel to be vacated, Judge Bybee focused his attention primarily on the standard under which Executive Order 13769 may properly be reviewed. The key point of contention is whether the Supreme Court’s decision in Mandel v. Kleindienst sets the limits to what factors a court may take into consideration in reviewing the Executive Order, the failure of the 3-judge panel to abide by the Mandel standard constituting the fundamental error justifying the panel’s per curiam opinion to be vacated. But before considering the relevance of Mandel v. Kleindienst to the Washington case, I want to take note of some of Judge Bybee’s remarks about the Constitutional status of aliens and the rights to which they are entitled.

Having acknowledged that decisions by the government in the fields of foreign affairs and immigration policy are not entirely beyond the scope of judicial review, Judge Bybee asks how the requirements of judicial review can be reconciled with the deference owed to the political branches in those areas. He responds by invoking an old case:

The Supreme Court has given us a way to analyze these knotty questions, but it depends on our ability to distinguish between two groups of aliens: those who are present within our borders and those who are seeking admission. As the Court explained in Leng May Ma v. Barber,

It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, . . . and those who are within the United States after an entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely “on the threshold of initial entry.” 357 U.S. 185, 187 (1958) (quoting Mezei, 345 U.S. at 212). (pp. 10-11)

The panel did not recognize that critical distinction and it led to manifest error.

This is a quite remarkable assertion by Judge Bybee, because two paragraphs earlier, criticizing the 3-judge panel for having merely paid lip-service to the deference owed to the President in the field of foreign affairs, Judge Bybee commented acidly:

The panel began its analysis from two important premises: first, that it is an “uncontroversial principle” that we “owe substantial deference to the immigration and national security policy determinations of the political branches,” 847 F.3d at 1161; second, that courts can review constitutional challenges to executive actions, see id. at 1164. I agree with both of these propositions. Unfortunately, that was both the beginning and the end of the deference the panel gave the President. (p. 9)

A rather peculiar criticism for Judge Bybee to have made inasmuch as his invocation of the critical distinction between aliens coming to our shores seeking admission and those already within the US after entry is both the beginning and the end of his own recognition of that distinction. But aside from its peculiarity, the criticism was completely misplaced, the distinction between two classes of aliens actually being central to the reasoning by which the panel justified its opinion.

The bedrock of Judge Bybee’s dissent rests is the case Kleindienst v. Mandel decided in 1972. Before Mandel, the doctrine of Consular Nonreviewability was absolute. Thus, in Knauff v. Shaughnessy the Supreme Court rejected the appeal of a former American soldier who wanted to bring his German wife to America under the War Brides Act. His wife’s application for a visa having been denied on the basis of confidential undisclosed information transmitted to the counselor official processing Mrs. Knauff’s visa application, Mr. Knauff filed suit seeking judicial review of the consular decision. The Court ruled that, as an alien applying for admission to the United States, Mrs. Knauff had no due-process claim for a review of the consular decision. The best commentary on the Court’s reprehensible decision was delivered by Justice Jackson in his dissenting opinion (which follows Justice Frankurter’s dissent in the link). “Security is like liberty” wrote Justice Jackson, “in that many are the crimes committed in its name.”

In Mandel, the doctrine of consular nonreviewability was extended, and modified ever-so slightly, to take into account not the non-existent right to due process of non-resident aliens, but the implicated rights of American citizens claiming some injury as a result of the consular official’s rejection of the alien’s visa application. Mandel, a Marxist journalist and scholar invited to speak at an academic conference, had unsuccessfully applied for a visa to enter the United States to attend the conference, his application having been denied by a consular official. In an earlier visit to the US to lecture and participate in academic conferences, Mandel had made an unscheduled appearance not authorized by his visa. Mandel and co-plaintiffs brought suit against Richard Kleindienst to require him to grant a waiver to the denial of Mandel’s visa request on the grounds that denial of Mandel’s request had violated the First and Fifth Amendment rights, not of Mandel, but of the US citizens who had invited him to participate in their conference. Mandel is, sadly, a well-established precedent, but its holding is orthogonal to the point of law – the rights to due process of aliens legally present within our borders – for which Judge Bybee invokes its undeserved authority.

Having both acknowledged and lamented Mandel’s status as an authoritative precedent on which much current immigration law depends, I will digress briefly to that a fair reading of the dissents by Justice Douglas and especially Justice Marshall ought to create substantial doubt in the mind of any disinterested reader that the case was correctly decided. Justice Marshall’s powerful and eloquent dissent deserves particular attention.

Today’s majority apparently holds that Mandel may be excluded and Americans’ First Amendment rights restricted because the Attorney General has given a “facially legitimate and bona fide reason” for refusing to waive Mandel’s visa ineligibility. I do not understand the source of this unusual standard. Merely “legitimate” governmental interests cannot override constitutional rights. Moreover, the majority demands only “facial” legitimacy and good faith, by which it means that this Court will never “look behind” any reason the Attorney General gives. No citation is given for this kind of unprecedented deference to the Executive, nor can I imagine (nor am I told) the slightest justification for such a rule.

Even the briefest peek behind the Attorney General’s reason for refusing a waiver in this case would reveal that it is a sham. The Attorney General informed appellees’ counsel that the waiver was refused because Mandel’s activities on a previous American visit “went far beyond the stated purposes of his trip . . . and represented a flagrant abuse of the opportunities afforded him to express his views in this country.” App. 68. But, as the Department of State had already conceded to appellees’ counsel, Dr. Mandel “was apparently not informed that [his previous] visa was issued only after obtaining a waiver of ineligibility and therefore [Mandel] may not have been aware of the conditions and limitations attached to the [previous] visa issuance.” App. 22. There is no basis in the present record for concluding that Mandel’s behavior on his previous visit was a “flagrant abuse” — or even willful or knowing departure — from visa restrictions. For good reason, the Government in this litigation has never relied on the Attorney General’s reason to justify Mandel’s exclusion. In these circumstances, the Attorney General’s reason cannot possibly support a decision for the Government in this case. But without even remanding for a factual hearing to see if there is any support for the Attorney General’s determination, the majority declares that his reason is sufficient to override appellees’ First Amendment interests.

Thus, the Mandel court’s own invocation of the “facially legitimate and bona fide reason” by which it justified the government’s refusal to grant Mandel a visa was itself neither facially legitimate nor bona fide, but a flagrant exercise of bad faith by the majority, invoking a made-up and pretextual justification for the refusal to grant Mandel a visa that even the government had not offered as a justification of its position. After disposing of this sham argument, Justice Marshall addressed the heart of the majority opinion, the broad grant of power to the Executive to exclude whole classes of aliens from the US.

The heart of appellants’ position in this case . . . is that the Government’s power is distinctively broad and unreviewable because “the regulation in question is directed at the admission of aliens.” Brief for Appellants 33. Thus, in the appellants’ view, this case is no different from a long line of cases holding that the power to exclude aliens is left exclusively to the “political” branches of Government, Congress, and the Executive.

These cases are not the strongest precedents in the United States Reports, and the majority’s baroque approach reveals its reluctance to rely on them completely. They include such milestones as The Chinese Exclusion Case, 130 U.S. 581 (1889), and Fong Yue Ting v. United States, 149 U.S. 698 (1893), in which this Court upheld the Government’s power to exclude and expel Chinese aliens from our midst.

But none of these old cases must be “reconsidered” or overruled to strike down Dr. Mandel’s exclusion, for none of them was concerned with the rights of American citizens. All of them involved only rights of the excluded aliens themselves. At least when the rights of Americans are involved, there is no basis for concluding that the power to exclude aliens is absolute. “When Congress’ exercise of one of its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our ‘delicate and difficult task’ to determine whether the resulting restriction on freedom can be tolerated.” United States v. Robel, 389 U.S. 258, 264 (1967). As Robel and many other cases5  show, all governmental power — even the war power, the power to maintain national security, or the power to conduct foreign affairs — is limited by the Bill of Rights. When individual freedoms of Americans are at stake, we do not blindly defer to broad claims of the Legislative Branch or Executive Branch, but rather we consider those claims in light of the individual freedoms. This should be our approach in the present case, even though the Government urges that the question of admitting aliens may involve foreign relations and national defense policies.

The majority recognizes that the right of American citizens to hear Mandel is “implicated” in our case. There were no rights of Americans involved in any of the old alien exclusion cases, and therefore their broad counsel about deference to the political branches is inapplicable. Surely a Court that can distinguish between pre-indictment and post-indictment lineups, Kirby v. Illinois, 406 U.S. 682 (1972), can distinguish between our case and cases which involve only the rights of aliens.

I do not mean to suggest that simply because some Americans wish to hear an alien speak, they can automatically compel even his temporary admission to our country. Government may prohibit aliens from even temporary admission if exclusion is necessary to protect a compelling governmental interest.6  Actual threats to the national security, public health needs, and genuine requirements of law enforcement are the most apparent interests that would surely be compelling.7  But in Dr. Mandel’s case, the Government has, and claims, no such compelling interest. Mandel’s visit was to be temporary.8  His “ineligibility” for a visa was based solely on § 212(a)(28). The only governmental interest embodied in that section is the Government’s desire to keep certain ideas out of circulation in this country. This is hardly a compelling governmental interest. Section (a)(28) may not be the basis for excluding an alien when Americans wish to hear him. Without any claim that Mandel “live” is an actual threat to this country, there is no difference between excluding Mandel because of his ideas and keeping his books out because of their ideas. Neither is permitted. Lamont v. Postmaster General, supra.

Writing for the majority, Justice Blackmun – yes, that Justice Blackmun – attempted to deflect the clear violation of the First Amendment rights of American citizens resulting from the denial of Mandel’s visa application.

Appellees’ First Amendment argument would prove too much. In almost every instance of an alien excludable under § 212(a)(28), there are probably those who would wish to meet and speak with him. The ideas of most such aliens might not be so influential as those of Mandel, nor his American audience so numerous, nor the planned discussion forums so impressive. But the First Amendment does not protect only the articulate, the well known, and the popular. Were we to endorse the proposition that governmental power to withhold a waiver must yield whenever a bona fide claim is made that American citizens wish to meet and talk with an alien excludable under § 212(a)(28), one of two unsatisfactory results would necessarily ensue. Either every claim would prevail, in which case the plenary discretionary authority Congress granted the Executive becomes a nullity, or courts in each case would be required to weigh the strength of the audience’s interest against that of the Government in refusing a waiver to the particular alien applicant, according to some as yet undetermined standard. The dangers and the undesirability of making that determination on the basis of factors such as the size of the audience or the probity of the speaker’s ideas are obvious. Indeed, it is for precisely this reason that the waiver decision has, properly, been placed in the hands of the Executive.

This response might have been persuasive if there had in fact been a bona fide reason for denying Mandel’s visa application. However, the stated reason was clearly pretextual and a sham; the real reason for denying the application was Mandel’s political opinions, so the First Amendment argument raised by Appellees was entirely correct and unrebutted by Justice Blackmun’s majority opinion. Mandel v. Kleindienst was wrongly and dishonestly decided, and, like similar wrongly decided cases, e.g., Korematsu v. United States, deserves, as a matter of simple justice, no precedential weight.

Despite its having been demolished by Justice Marshall’s dissent, I am willing to stipulate for present purposes that the majority opinion in Mandel would be controlling if it were not distinguishable from the case decided by the 3-judge panel. But let us keep in mind two important takeaway points from Justice Marshall’s discussion: first, the disgraceful, racist lineage of the plenary powers doctrine as it relates to immigration, and second, and more importantly for assessing Judge Bybee’s dissent, the absence in Mandel v. Kleindienst of any distinction between the Constitutional rights or interests of citizens that are incidentally abridged by the refusal to admit non-resident aliens into the Unites States and the Constitutional due process rights of aliens legally residing in the United States, precisely the distinction that, Judge Bybee incorrectly asserts, is addressed by Mandel.

Judge Bybee begins by criticizing the 3-judge panel for distinguishing Mandel, in which the Attorney General’s refusal to grant a waiver allowing Mandel entry to the US after a consular official denied his visa application, from an Executive Order promulgating sweeping immigration policy. Judge Bybee offers the following rebuttal:

First, the panel’s declaration that we cannot look behind the decision of a consular officer, but can examine the decision of the President stands the separation of powers on its head. We give deference to a consular officer making an individual determination, but not the President when making a broad, national security-based decision? With a moment’s thought, that principle cannot withstand the gentlest inquiry, and we have said so. See Bustamante v. Mukasey , 531 F.3d 1059, 1062 n.1 (9th Cir. 2008) (“We are unable to distinguish Mandel on the grounds that the exclusionary decision challenged in that case was not a consular visa denial, but rather the Attorney General’s refusal to waive Mandel’s inadmissibility. The holding is plainly stated in terms of the power delegated by Congress to the Executive.’ The Supreme Court said nothing to suggest that the reasoning or outcome would vary according to which executive officer is exercising the Congressionally-delegated power to exclude.”) (pp. 12-13)

Judge Bybee’s sarcasm is as misplaced as it is inappropriate. Mandel is a case about the exercise of a Congressionally authorized power to make a factual determination, normally delegated to a consular official, but in this case the determination at issue was made by the Attorney General reviewing the consular decision. In Bustamente the decision was made at the consular level. Big deal! The Mandel court ruled that such consular decisions to deny visas or higher- level decisions to deny waivers to lower-level decisions were not reviewable on the merits, even if the denials incidentally infringed upon the Constitutional rights of American citizens, provided that “a facially legitimate and bona fide reason” for the decision was provided. The deference accorded by Mandel to the factual decision of a consular official – or his superior — to deny the visa application of a non-resident alien, albeit one that incidentally affected the rights of an American citizen, is in no way comparable to a Presidential decision denying or abridging the Constitutional due-process rights of legally resident aliens, green-card holders and non-immigrant aliens holding valid visas.

Second, the promulgation of broad policy is precisely what we expect the political branches to do; Presidents rarely, if ever, trouble themselves with decisions to admit or exclude individual visa -seekers. See Knauff, 338 U.S. at 543 (“[B]ecause the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power . . . for the best interests of the country during a time of national emergency.”). If the panel is correct, it just wiped out any principle of deference to the executive. (p. 13)

Is there no deference to the executive unless we allow the Constitutional rights of American citizens and legally resident aliens to be trampled upon by the executive? Since when does “deference” mean “abject submission?” The implications of Judge Bybee’s argument lead straight to Korematsu v. United States. If Judge Bybee is correct, what Constitutional rights may not be abridged by the executive in the process of excluding aliens? Deference to the executive need not entail acquiescence in the denial of due process rights on an industrial scale.

Judge Bybee then invokes Fiallo v. Bell to support his position that broad policy decisions – in this case by Congress, which accorded preferential treatment to the natural mothers of illegitimate children over the natural fathers – are immune from scrutiny despite having discriminatory effects (pp. 13-14). In Fiallo, the Supreme Court upheld a provision of the 1952 Immigration and Nationality Act giving preference for immigration into the US to the legitimate parents of American citizens and to the illegitimate mothers (but not illegitimate fathers) of American citizens as well as to the legitimate children of American parents and to the illegitimate children of American mothers (but not American fathers). A group of illegitimate fathers of American children and illegitimate offspring of American fathers challenged this provision for discriminating on the basis of sex and legitimacy. The Fiallo Court relied on the Mandel “facially legitimate and bona fide reason” test to rule against the plaintiffs.

The panel’s holding that “exercises of policy making authority at the highest levels of the political branches are plainly not subject to the Mandel standard,” id., is simply irreconcilable with the Supreme Court’s holding that it could “see no reason to review the broad congressional policy choice at issue [there] under a more exacting standard than was applied in Kleindienst v. Mandel,” Fiallo, 430 U.S. at 795.

Having thoughtlessly embarked on the wrong road, Judge Bybee keeps marching relentlessly forward. Fiallo, like Mandel, is a case brought by American citizens claiming that their Constitutional rights not to be discriminated against had been incidentally abridged by a Congressional policy decision concerning which aliens, not otherwise eligible for entry into the US, shall be granted special waivers. While the case is related to Mandel, it was not entailed by Mandel, because deference to a consular decision about a question of fact need not entail deference to Congress about a matter of policy. Indeed, both the majority and the minority in Fiallo suggested reasons why the Congressional policy might have been judged to serve a legitimate public purpose. But again the key point is simply that the holding of the Fiallo court did not address the issue addressed by Washington, which is whether the President, by Executive Order, may deny the Constitutional rights of resident aliens, green card holders, and aliens holding valid visas.

Judge Bybee’s wrongheaded attack on the decision of the 3-judge panel reaches a crescendo of confusion in his discussion of Kerry v. Din (pp. 14-16), once again citing a case involving the Constitutional claim of an American citizen as a basis for challenging the denial of a visa to a non-resident alien. In Din, a US citizen whose Afghani husband had been denied an entry visa, claimed that her Constitutional right to live with her husband had been violated without due process. After the Ninth Circuit Court of Appeals upheld her claim, the Supreme Court reversed that decision on appeal. Not only does Judge Bybee misunderstand the relevance of Din to the issues addressed by the 3-judge panel, he fails to recognize that the holding of the Din court has essentially no precedential weight, because the majority that upheld the decision not to grant Din’s husband a visa did not agree on the grounds for rejecting Din’s claim, three justices rejecting Din’s claim that she had a Constitutional right to live with her husband, and two justices arguing that even if she had such a Constitutional right, the consular decision to her husband’s visa request satisfied the Mandel “facially legitimate and bona fide reason” test.

Believing that, because Justice Kennedy’s opinion invoking the Mandel test was controlling, that opinion has precedential authority for other cases, Judge Bybee admonishes the 3-judge panel for ignoring Din. Judge Bybee is wrong on both counts; Din is irrelevant to the opinion of the 3-judge panel, and, even if it were relevant, the 3-judge panel would not have had to reckon with it, because the majority could not agree on the basis of the decision. And I can’t help but observe that, on its face, Justice Kennedy’s opinion that the decision of the consular official that Din’s husband was a terrorist threat merely because he had held a civil-service position under the Taliban government did not obviously satisfy even the weak Mandel test, as Justice Breyer cogently observed in his dissenting opinion.

When Judge Bybee finally does get to a discussion of relevant precedents 16 pages into his 25 page opinion, the best he is able to come up with is Rajah v. Mukasey. After the September 11 attacks, non-immigrant resident males over the age of 16 from 24 Muslim-majority countries plus North Korea were required to appear for registration and fingerprinting. The Second Circuit Court of Appeals upheld this requirement in view of potential risks of further terrorist attacks. Although these requirements were burdensome and discriminatory, those requirements were hardly comparable to exclusion from the United States, so the willingness of the Rajah court to approve such provisions in the wake of the worst terrorist attack in US history does not come close to proving what Judge Bybee wants it to prove: that the law allows the President to revoke the Constitutional rights of resident aliens and prevent them from re-entering the country without even granting them a hearing. In other words, under Judge Bybee’s understanding, resident aliens denied re-entry into the country by Executive Order 13769 would be denied even the minimal “additional rights and privileges not extended to those on the threshold of entry” that, according to the Court in Leng May Ma v. Barber cited above, have been recognized by the Court.

The logical confusion of Judge Bybee’s conflation of two completely different classes of cases is actually quite impressive.

Judge Bybee (p. 20) also invokes 8 U.S.C. 1182f as a legal basis for the executive order at issue. However, the statutory authority of the US Code does not automatically override the Constitutional right to a hearing of a legal resident alien denied re-entry into the United States. Nor is it obvious that the statute in question referring to “the entry of any aliens or of any class of aliens into the United States,” includes resident aliens seeking re-entry into the United States. That is a question of statutory interpretation and the courts are entitled to have the final say on matters of statutory interpretation.

Judge Bybee (p. 20-21) considers that the reasons offered by the President in issuing the executive order were facially legitimate and bona fide reasons, but he acknowledges that in Din, Justice Kennedy indicated that evidence of bad faith on the part of a consular officer who denied a visa might be grounds for questioning whether the reasons offered by consular officer were “facially legitimate and bona fide.” After again chiding the 3-judge panel for not discussing Din, Judge Bybee (p. 21-22) then makes the interesting remark that “it would be a huge leap to suggest that Din’s ‘bad faith’ exception also applies to the motives of broad-policy makers as opposed to those of consular officials.” Because the grounds for suspecting that the executive order was issued in bad faith are so varied and abundant, it is astonishing that Judge Bybee would consider it a leap to conclude that a bad-faith exception might apply to a policy maker, especially after Judge Bybee was so insistent earlier in his opinion that the Mandel “facially legitimate and bona fide reason” test originally applied to the consular nonreviewability doctrine applied seamlessly to both consular decisions and to broad policy decisions.

There are other defects of Judge Bybee’s decision that I could have touched on, but this post is already much too long, and I have devoted too much of my time to tracking them down and explaining them. But I hope others will continue.

Roger Farmer’s Prosperity for All

I have just read a review copy of Roger Farmer’s new book Prosperity for All, which distills many of Roger’s very interesting ideas into a form which, though readable, is still challenging — at least, it was for me. There is a lot that I like and agree with in Roger’s book, and the fact that he is a UCLA economist, though he came to UCLA after my departure, is certainly a point in his favor. So I will begin by mentioning some of the things that I really liked about Roger’s book.

What I like most is that he recognizes that beliefs are fundamental, which is almost exactly what I meant when I wrote this post (“Expectations Are Fundamental”) five years ago. The point I wanted to make is that the idea that there is some fundamental existential reality that economic agents try — and, if they are rational, will — perceive is a gross and misleading oversimplification, because expectations themselves are part of reality. In a world in which expectations are fundamental, the Keynesian beauty-contest theory of expectations and stock prices (described in chapter 12 of The General Theory) is not absurd as it is widely considered to be believers in the efficient market hypothesis. The almost universal unprofitability of simple trading rules or algorithms is not inconsistent with a market process in which the causality between prices and expectations goes in both directions, in which case anticipating expectations is no less rational than anticipating future cash flows.

One of the treats of reading this book is Farmer’s recollections of his time as a graduate student at Penn in the early 1980s when David Cass, Karl Shell, and Costas Azariadis were developing their theory of sunspot equilibrium in which expectations are self-fulfilling, an idea skillfully deployed by Roger to revise the basic New Keynesian model and re-orient it along a very different path from the standard New Keynesian one. I am sympathetic to that reorientation, and the main reason for that re-orientation is that Roger rejects the idea that there is a unique equilibrium to which the economy automatically reverts, albeit somewhat more slowly than if speeded along by the appropriate monetary policy, on its own. The notion that there is a unique equilibrium to which the economy automatically reverts is an assumption with no basis in theory or experience. The most that the natural-rate hypothesis can tell us is that if an economy is operating at its natural rate of unemployment, monetary expansion cannot permanently reduce the rate of unemployment below that natural rate. Eventually — once economic agents come to expect that the monetary expansion and the correspondingly higher rate of inflation will be maintained indefinitely — the unemployment rate must revert to the natural rate. But the natural-rate hypothesis does not tell us that monetary expansion cannot reduce unemployment when the actual unemployment rate exceeds the natural rate, although it is often misinterpreted as making that assertion.

In his book, Roger takes the anti-natural-rate argument a step further, asserting that the natural rate of unemployment rate is not unique. There is actually a range of unemployment rates at which the economy can permanently remain; which of those alternative natural rates the economy winds up at depends on the expectations held by the public about nominal future income. The higher expected future income, the greater consumption spending and, consequently, the greater employment. Things are a bit more complicated than I have just described them, because Roger also believes that consumption depends not on current income but on wealth. However, in the very simplified model with which Roger operates, wealth depends on expectations about future income. The more optimistic people are about their income-earning opportunities, the higher asset values; the higher asset values, the wealthier the public, and the greater consumption spending. The relationship between current income and expected future income is what Roger calls the belief function.

Thus, Roger juxtaposes a simple New Keynesian model against his own monetary model. The New Keynesian model consists of 1) an investment equals saving equilibrium condition (IS curve) describing the optimal consumption/savings decision of the representative individual as a locus of combinations of expected real interest rates and real income, based on the assumed rate of time preference of the representative individual, expected future income, and expected future inflation; 2) a Taylor rule describing how the monetary authority sets its nominal interest rate as a function of inflation and the output gap and its target (natural) nominal interest rate; 3) a short-run Phillips Curve that expresses actual inflation as a function of expected future inflation and the output gap. The three basic equations allow three endogenous variables, inflation, real income and the nominal rate of interest to be determined. The IS curve represents equilibrium combinations of real income and real interest rates; the Taylor rule determines a nominal interest rate; given the nominal rate determined by the Taylor rule, the IS curve can be redrawn to represent equilibrium combinations of real income and inflation. The intersection of the redrawn IS curve with the Phillips curve determines the inflation rate and real income.

Roger doesn’t like the New Keynesian model because he rejects the notion of a unique equilibrium with a unique natural rate of unemployment, a notion that I have argued is theoretically unfounded. Roger dismisses the natural-rate hypothesis on empirical grounds, the frequent observations of persistently high rates of unemployment being inconsistent with the idea that there are economic forces causing unemployment to revert back to the natural rate. Two responses to this empirical anomaly are possible: 1) the natural rate of unemployment is unstable, so that the observed persistence of high unemployment reflect increases in the underlying but unobservable natural rate of unemployment; 2) the adverse economic shocks that produce high unemployment are persistent, with unemployment returning to a natural level only after the adverse shocks have ceased. In the absence of independent empirical tests of the hypothesis that the natural rate of unemployment has changed, or of the hypothesis that adverse shocks causing unemployment to rise above the natural rate are persistent, neither of these responses is plausible, much less persuasive.

So Roger recasts the basic New Keynesian model in a very different form. While maintaining the Taylor Rule, he rewrites the IS curve so that it describes a relationship between the nominal interest rate and the expected growth of nominal income given the assumed rate of time preference, and in place of the Phillips Curve, he substitutes his belief function, which says that the expected growth of nominal income in the next period equals the current rate of growth. The IS curve and the Taylor Rule provide two steady state equations in three variables, nominal income growth, nominal interest rate and inflation, so that the rate of inflation is left undetermined. Once the belief function specifies the expected rate of growth of nominal income, the nominal interest rate consistent with expected nominal-income growth is determined. Since the belief function tells us only that the expected nominal-income growth equals the current rate of nominal-income growth, any change in nominal-income growth persists into the next period.

At any rate, Roger’s policy proposal is not to change the interest-rate rule followed by the monetary authority, but to propose a rule whereby the monetary authority influences the public’s expectations of nominal-income growth. The greater expected nominal-income growth, the greater wealth, and the greater consumption expenditures. The greater consumption expenditures, the greater income and employment. Expectations are self-fulfilling. Roger therefore advocates a policy by which the government buys and sells a stock-market index fund in order to keep overall wealth at a level that will generate enough consumption expenditures to support maximum sustainable employment.

This is a quick summary of some of the main substantive arguments that Roger makes in his book, and I hope that I have not misrepresented them too badly. As I have already said, I very much sympathize with his criticism of the New Keynesian model, and I agree with nearly all of his criticisms. I also agree wholeheartedly with his emphasis on the importance of expectations and on self-fulfilling character of expectations. Nevertheless, I have to admit that I have trouble taking Roger’s own monetary model and his policy proposal for stabilizing a broad index of equity prices over time seriously. And the reason I am so skeptical about Roger’s model and his policy recommendation is that his model, which does after all bear at least a family resemblance to the simple New Keynesian model, strikes me as being far too simplified to be credible as a representation of a real-world economy. His model, like the New Keynesian model, is an intertemporal model with neither money nor real capital, and the idea that there is an interest rate in such model is, though theoretically defensible, not very plausible. There may be a sequence of periods in such a model in which some form of intertemporal exchange takes place, but without explicitly introducing at least one good that is carried over from period to period, the extent of intertemporal trading is limited and devoid of the arbitrage constraints inherent in a system in which real assets are held from one period to the next.

So I am very skeptical about any macroeconomic model with no market for real assets so that the interest rate interacts with asset values and expected future prices in such a way that the existing stock of durable assets is willingly held over time. The simple New Keynesian model in which there is no money and no durable assets, but simply bonds whose existence is difficult to rationalize in the absence of money or durable assets, does not strike me as a sound foundation for making macroeconomic policy. An interest rate may exist in such a model, but such a model strikes me as woefully inadequate for macroeconomic policy analysis. And although Roger has certainly offered some interesting improvements on the simple New Keynesian model, I would not be willing to rely on Roger’s monetary model for the sweeping policy and institutional recommendations that he proposes, especially his proposal for stabilizing the long-run growth path of a broad index of stock prices.

This is an important point, so I will try to restate it within a wider context. Modern macroeconomics, of which Roger’s model is one of the more interesting examples, flatters itself by claiming to be grounded in the secure microfoundations of the Arrow-Debreu-McKenzie general equilibrium model. But the great achievement of the ADM model was to show the logical possibility of an equilibrium of the independently formulated, optimizing plans of an unlimited number of economic agents producing and trading an unlimited number of commodities over an unlimited number of time periods.

To prove the mutual consistency of such a decentralized decision-making process coordinated by a system of equilibrium prices was a remarkable intellectual achievement. Modern macroeconomics deceptively trades on the prestige of this achievement in claiming to be founded on the ADM general-equilibrium model; the claim is at best misleading, because modern macroeconomics collapses the multiplicity of goods, services, and assets into a single non-durable commodity, so that the only relevant plan the agents in the modern macromodel are called upon to make is a decision about how much to spend in the current period given a shared utility function and a shared production technology for the single output. In the process, all the hard work performed by the ADM general-equilibrium model in explaining how a system of competitive prices could achieve an equilibrium of the complex independent — but interdependent — intertemporal plans of a multitude of decision-makers is effectively discarded and disregarded.

This approach to macroeconomics is not microfounded, but its opposite. The approach relies on the assumption that all but a very small set of microeconomic issues are irrelevant to macroeconomics. Now it is legitimate for macroeconomics to disregard many microeconomic issues, but the assumption that there is continuous microeconomic coordination, apart from the handful of potential imperfections on which modern macroeconomics chooses to focus is not legitimate. In particular, to collapse the entire economy into a single output, implies that all the separate markets encompassed by an actual economy are in equilibrium and that the equilibrium is maintained over time. For that equilibrium to be maintained over time, agents must formulate correct expectations of all the individual relative prices that prevail in those markets over time. The ADM model sidestepped that expectational problem by assuming that a full set of current and forward markets exists in the initial period and that all the agents participating in the economy are present and endowed with wealth enabling them to trade in the initial period. Under those rather demanding assumptions, if an equilibrium price vector covering all current and future markets is arrived at, the optimizing agents will formulate a set of mutually consistent optimal plans conditional on that vector of equilibrium prices so that all the optimal plans can and will be carried out as time happily unfolds for as long as the agents continue in their blissful existence.

However, without a complete set of current and forward markets, achieving the full equilibrium of the ADM model requires that agents formulate consistent expectations of the future prices that will be realized only over the course of time not in the initial period. Roy Radner, who extended the ADM model to accommodate the case of incomplete markets, called such a sequential equilibrium, an equilibrium of plans, prices and expectations. The sequential equilibrium described by Radner has the property that expectations are rational, but the assumption of rational expectations for all future prices over a sequence of future time periods is so unbelievably outlandish as an approximation to reality — sort of like the assumption that it could be 76 degrees fahrenheit in Washington DC in February — that to build that assumption into a macroeconomic model is an absurdity of mind-boggling proportions. But that is precisely what modern macroeconomics, in both its Real Business Cycle and New Keynesian incarnations, has done.

If instead of the sequential equilibrium of plans, prices and expectations, one tries to model an economy in which the price expectations of agents can be inconsistent, while prices adjust within any period to clear markets – the method of temporary equilibrium first described by Hicks in Value and Capital – one can begin to develop a richer conception of how a macroeconomic system can be subject to the financial disturbances, and financial crises to which modern macroeconomies are occasionally, if not routinely, vulnerable. But that would require a reorientation, if not a repudiation, of the path on which macroeconomics has been resolutely marching for nigh on forty years. In his 1984 paper “Consistent Temporary Equilibrium,” published in a volume edited by J. P. Fitoussi, C. J. Bliss made a start on developing such a macroeconomic theory.

There are few economists better equipped than Roger Farmer to lead macroeconomics onto a new and more productive path. He has not done so in this book, but I am hoping that, in his next one, he will.

The Incoherence and Bad Faith of Antonin Scalia’s Originalism — Updated

UPDATE: I just realized that yesterday I mistakenly published a rough draft of this post instead of the version that I had intended to publish. I apologize for that unforced error.

My previous post about judge-made law was inspired by a comment by Scott Sumner on the post before that about Judge Gorsuch. Well, another commenter, gofx, who commented on the post about judge-made law, has inspired this post. Let’s see how long we can keep this recursive equilibrium going. Here’s what gofx had to say:

David, I think your original post criticizing Gorsuch for a “monumental denial of reality” is confusing a normative statement and a positive statement. Textualists, like Scalia and others try to balance the effects common law, statutory, and executive (administrative) law. Yes, English common law is one of the bases of American law. But even the supreme court placed limits on federal judges creating common law with respect to certain areas of state law (Erie Railroad Co. v. Tompkins). So while common law remains important, judges are no longer the King’s agents attempting to standardize decisions and principles across the realm. Along came democracy, legislatures and executive-branch regulations. There is still plenty of scope for common law, but there is more and more “prescribed” laws and rules.

I agree that there is a problem here with confusing “normative” and “positive” statements about the law and the role of judges in making – or not making – law. But I don’t think that the confusion is mine. This is an important point, which will come up again below. But first, let me quote further from gofx’s comment:

Here is Scalia in “Common Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws:”

But though I have no quarrel with the common law and its process, I do question whether the attitude of the common-law judge – the mind-set that asks, “What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?”– is appropriate for most of the work that I do, and much of the work that state judges do. We live in an age of legislation, and most new law is statutory law. As one legal historian has put it, in modern times “the main business of government, and therefore of law, [is] legislative and executive …. Even private law, so-called, [has been] turning statutory. The lion’s share of the norms and rules that actually govern[} the country [come) out of Congress and the legislatures. . . . The rules of the countless administrative agencies [are] themselves an important, even crucial, source of law.” This is particularly true in the federal courts, where, with a qualification so small it does not bear• mentioning, there is no such thing as common law.”

I am grateful for the reference to this essay based on two lectures given by Scalia in 2010, which I have now read for the first time. The first thing to note about the lecture is that despite his disclaimer about having “no quarrel with the common law and its process,” Scalia adopts an almost uniformly derogatory and disdainful attitude toward the common law and especially toward common-law judges; the disdain, bordering on contempt, is palpable. Here are some examples aside from the one gofx kindly provided:

As I have described, this system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student, what every newborn American lawyer, first sees when he opens his eyes. And the impression remains with him for life. His image of the great judge — the Holmes, the Cardozo — is the man (or woman) who has the intelligence to know what is the best rule of law to govern the case at hand, and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule — distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches his goal: good law. That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on and on.

[T]he subject of statutory interpretation deserves study and attention in its own right, as the principal business of lawyers and judges. It will not do to treat the enterprise as simply an inconvenient modern add-on to the judges’ primary role of common-law lawmaking. Indeed, attacking the enterprise with the Mr. Fix-it mentality of the common-law judge is a sure recipe for incompetence and usurpation.

But the Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning; but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning. The ascendant school of constitutional interpretation affirms the existence of what is called the “living Constitution,” a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and “find” that changing law. Seems familiar, doesn’t it? Yes, it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be, for now it trumps even the statutes of democratic legislatures.

If you go into a constitutional law class, or study a constitutional-law casebook, or read a brief filed in a constitutional-law case, you will rarely find the discussion addressed to the text of the constitutional provision that is at issue, or to the question of what was the originally understood or even the originally intended meaning of that text. Judges simply ask themselves (as a good common-law judge would) what ought the result to be, and then proceed to the task of distinguishing (or, if necessary, overruling) any prior Supreme Court cases that stand in the way. Should there be (to take one of the less controversial examples) a constitutional right to die? If so, there is. Should there be a constitutional right to reclaim a biological child put out for adoption by the other parent? Again, if so, there is. If it is good, it is so. Never mind the text that we are supposedly construing; we will smuggle these in, if all else fails, under the Due Process Clause (which, as I have described, is textually incapable of containing them). Moreover, what the Constitution meant yesterday it does not necessarily mean today. As our opinions say in the context of our Eighth Amendment jurisprudence (the Cruel and Unusual Punishments Clause), its meaning changes to reflect “the evolving standards of decency that mark the progress of a maturing society.”

This is preeminently a common-law way of making law, and not the way of construing a democratically adopted text. . . . The Constitution, however, even though a democratically adopted text, we formally treat like the common law. What, it is fair to ask, is our justification for doing so?

The apparent reason for Scalia’s disdain for common-law judging is basically that judges, rather than deferring to the popular will expressed through legislation, presume to think that they can somehow figure out what the right, or best, decision is rather than mechanically follow the text of a statute enacted by a democratic legislature. Scalia hates judges who think for themselves, because, by thinking for themselves, they betray an insufferable elitisim instead of dutifully deferring to democratically elected legislators through whom the popular will is faithfully expressed. For Scalia it is the only the popular will that matters, the rights and interests of the litigants appearing before the judge being of little consequence compared to upholding the statutory text, the authoritative articulation of the popular will. Moreover, even if the statutes don’t achieve the right result, the people can at least read the statutes and regulations and know what the law says and how it will be enforced. And how can the people ever know what those high and mighty judges will decide to do next? And we all know — do we not? — the countless hours of their spare time spent in libraries and on-line by the unwashed masses poring over the latest additions to US Code and the Federal Register. Just think how all those long hours devoted to reading the US Code and the Federal Register would be wasted if those arrogant judges could simply ignore the plain meaning of the statutes and regulations and were allowed to use their own judgment in deciding cases.

I will forego, at least for now, indulging my desire to comment on Scalia’s critique of common-law judging. I want to focus instead on the positive case that Scalia makes for his textualist theory of statutory interpretation. To do so, let me quote liberally from Richard Posner’s withering 2012 review of Scalia’s treatise (co-authored by Bryan Garner), Reading the Law: The Interpretation of Legal Texts, which exposes the both the incoherence and the bad faith of Scalia’s textualist arguments. The entire review is worthy of careful study, but I will pick out a few paragraphs that highlight Scalia’s tortured relationship with and attitude toward the common law.

Judges like to say that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.

The passive view of the judicial role is aggressively defended in a new book by Justice Antonin Scalia and the legal lexicographer Bryan Garner (Reading Law: The Interpretation of Legal Texts, 2012). They advocate what is best described as textual originalism, because they want judges to “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” This austere interpretive method leads to a heavy emphasis on dictionary meanings, in disregard of a wise warning issued by Judge Frank Easterbrook, who though himself a self-declared textualist advises that “the choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.” Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book. . . .

Another interpretive principle that Scalia and Garner approve is the presumption against the implied repeal of state statutes by federal statutes. They base this “on an assumption of what Congress, in our federal system, would or should normally desire.” What Congress would desire? What Congress should desire? Is this textualism, too?

And remember the ambulance case? Having said that the conclusion that an ambulance was forbidden to enter the park even to save a person’s life was entailed by textual originalism and therefore correct, Scalia and Garner remark several hundred pages later that the entry of the ambulance is not prohibited after all, owing to the “common-law defense of necessity,” which they allow to override statutory text. Yet just four pages later they say that except in “select fields such as admiralty law, [federal courts] have no significant common-law powers.” And still elsewhere, tacking back again, they refer approvingly to an opinion by Justice Kennedy (Leegin Creative Leather Products, Inc. v. PSKS, Inc.), which states that “the Sherman Act’s use of ‘restraint of trade’ invokes the common law itself … not merely the static content that the common law had assigned to the term in 1890.” In other words, “restraint of trade” had a specific meaning (and it did: it meant “restraints on alienation”) in 1890 that judges are free to alter in conformity with modern economics—a form of “dynamic” interpretation that should be anathema to Scalia and Garner. A few pages later they say that “federal courts do not possess the lawmaking power of common-law courts,” ignoring not only the antitrust and ambulance cases but also the fact that most of the concepts deployed in federal criminal law—such as mens rea (intent), conspiracy, attempt, self-defense, and necessity—are common law concepts left undefined in criminal statutes.

Scalia and Garner indicate their agreement with a number of old cases that hold that an heir who murders his parents or others from whom he expects to inherit is not disqualified from inheriting despite the common law maxim that no person shall be permitted to profit from his wrongful act. (Notice how common law floats in and out of their analysis, unpredictably.) They say that these cases are “textually correct” though awful, and are happy to note that they have been overruled by statute. Yet just before registering their approval they had applauded the rule that allows the deadlines in statutes of limitations to be “tolled” (delayed) “because of unforeseen events that make compliance impossible.” The tolling rule is not statutory. It is a judicial graft on statutes that do not mention tolling. Scalia and Garner do not explain why that is permissible, but a judicial graft disqualifying a murdering heir is not.

Scalia and Garner defend the canon of construction that counsels judges to avoid interpreting a statute in a way that will render it unconstitutional, declaring that this canon is good “judicial policy.” Judicial policy is the antithesis of textual originalism. They note that “many established principles of interpretation are less plausibly based on a reasonable assessment of meaning than on grounds of policy adopted by the courts”—and they applaud those principles, too. They approve the principle that statutes dealing with the same subject should “if possible be interpreted harmoniously,” a principle they deem “based upon a realistic assessment of what the legislature ought to have meant,” which in turn derives from the “sound principles…that the body of the law should make sense, and…that it is the responsibility of the courts, within the permissible meanings of the text, to make it so” (emphasis added). In other words, judges should be realistic, should impose right reason on legislators, should in short clean up after the legislators.

I would just note in passing that Posner shows that the confusion between normative and positive which gofx in the comment above ascribed to me is obviously running rampant, if not amok, throughout Scalia’s treatise. But Posner’s evisceration of Scalia’s bad faith does not go far enough, because the bad faith extends beyond Scalia’s willingness to invoke (or smuggle in) common-law principles to cover up the gaps in his textualism. Scalia’s whole originalist doctrine that the text of the Constitution should be interpreted according to the original meaning of the text of the Constitution relies on the premise that the judicial interpretations of the Constitution had always been governed by the original meaning that had been universally attributed to the Constitutional text. It was only much later, say, in the middle of the twentieth century, on or about May 17, 1954, that the interpretation of the Constitution was perverted by the reprehensible judges and their academic handmaidens who invented the notion of a living constitution that adjusts to the “evolving standards of decency that mark the progress of a maturing society.” Let me quote once more from Posner’s review:

Scalia and Garner contend that textual originalism was the dominant American method of judicial interpretation until the middle of the twentieth century. The only evidence they provide, however, consists of quotations from judges and jurists, such as William Blackstone, John Marshall, and Oliver Wendell Holmes, who wrote before 1950. Yet none of those illuminati, while respectful of statutory and constitutional text, as any responsible lawyer would be, was a textual originalist. All were, famously, “loose constructionists.”

Scalia and Garner call Blackstone “a thoroughgoing originalist.” They say that “Blackstone made it very clear that original meaning governed.” Yet they quote in support the famous statement in his Commentaries on the Laws of England that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law” (emphasis mine, except that the first “signs” is emphasized in the original). Blackstone adds that “the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”

Just so! But, once again, Posner goes too easy on Scalia, because Scalia’s whole premise in his essay on common law courts, to which gofx pointed me, is that the modern theories of Constitutional interpretation so abhorent to Scalia are basically extensions, albeit extreme extensions, of common-law judging in which the judge tries to find the best possible outcome for the case he that he is deciding, unconstrained by any statutory or Constitutional text. It is the lack of subordination by common-law judges to any authoritative legal text with a fixed meaning that they are bound to accept that is the ultimate heresy of which all common-law judges, in Scalia’s eyes, stand convicted. But when the US Constitution was ratified all the judges in America and Britain were common-law judges. And Blackstone’s magisterial Commentaries on the Laws of England was a four-volume paean to the common law of England. So, under Scalia’s own originalist doctrine, the meaning of the judiciary in the US Constitution, written by the Framers under Blackstone’s thrall, was the kind of judging practiced by common-law judges. The judges who interpreted the Constitution for almost two centuries after the Constitution was ratified were common-law judges and they were interpreting the Constitution using the very interpretative methods of common-law judges that Scalia so violently condemns.

Scalia has literally hoisted himself by his own originalist petard. Couldn’t have happened to a finer fellow.

Yes, Judges Do Make Law

Scott Sumner has just written an interesting comment to my previous post in which I criticized a remark made by Judge Gorsuch upon being nominated to fill the vacant seat on the Supreme Court — so interesting, in fact, that I think it is worth responding to him in a separate post.

First, here is the remark made by Judge Gorsuch to which I took exception.

I respect, too, the fact that in our legal order, it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge . . . stretching for results he prefers rather than those the law demands.

I criticized Judge Gorsuch for denying what to me is the obvious fact that judges do make law. They make law, because the incremental effect of each individual decision results in a legal order that is different from the legislation that has been enacted by legislatures. Each decision creates a precedent that must be considered by other judges as they apply and construe the sum total of legislatively enacted statutes in light of, and informed by, the precedents of judges and the legal principles that have guided judges those precedents. Law-making by judges under a common law system — even a common law system in which judges are bound to acknowledge the authority of statutory law — is inevitable for many reasons, one but not the only reason being that statutes will sooner or later have to be applied in circumstances were not foreseen by that legislators who enacted those statutes.

To take an example of Constitutional law off the top of my head: is it an unreasonable search for the police to search the cell phone of someone they have arrested without first getting a search warrant? That’s what the Supreme Court had to decide two years ago in Riley v. California. The answer to that question could not be determined by reading the text of the Fourth Amendment which talks about the people being secure in their “persons, houses, papers, or effects” or doing a historical analysis of what the original understanding of the terms “search” and “seizure” and “papers and effects” was when the Fourth Amendment to the Constitution was enacted. Earlier courts had to decide whether government eavesdropping on phone calls violated the Fourth Amendment. And other courts have had to decide whether collecting meta data about phone calls is a violation. Answers to those legal questions can’t be found by reading the relevant legal text.

Here’s part of the New York Times story about the Supreme Court’s decision in Riley v. Califronia.

In a sweeping victory for privacy rights in the digital age, the Supreme Court on Wednesday unanimously ruled that the police need warrants to search the cellphones of people they arrest.

While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies.

“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”

But he added that old principles required that their contents be protected from routine searches. One of the driving forces behind the American Revolution, Chief Justice Roberts wrote, was revulsion against “general warrants,” which “allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”

“The fact that technology now allows an individual to carry such information in his hand,” the chief justice also wrote, “does not make the information any less worthy of the protection for which the founders fought.”

Now for Scott’s comment:

I don’t see how Gorsuch’s view conflicts with your view. It seems like Gorsuch is saying something like “Judges should not legislate, they should interpret the laws.” And you are saying “the laws are complicated.” Both can be true!

Well, in a sense, maybe, because what judges do is technically not legislation. But they do make law; their opinions determine for the rest of us what we may legally do and what we may not legally do and what rights to expect will be respected  and what rights will not be respected. Judges can even change the plain meaning of a statute in order to uphold a more basic, if unwritten, principle of justice, which,under, the plain meaning of Judge Gorsuch’s remark (“It is the role of judges to apply, not alter, the work of the people’s representatives”) would have to be regarded as an abuse of judicial discretion. The absurdity of what I take to be Gorsuch’s position is beautifully illustrated by the case of Riggs v. Palmer which the late — and truly great — Ronald Dworkin discussed in his magnificent article “Is Law a System of Rules?” aka “The Model of Rules.” Here is the one paragraph in which Dworkin uses the Riggs case to show that judges apply not just specific legal rules (e.g., statutory rules), but also deeper principles that govern how those rules should be applied.

My immediate purpose, however, is to distinguish principles in the generic sense from rules, and I shall start by collecting some examples of the former. The examples I offer are chosen haphazardly; almost any case in a law school casebook would provide examples that would serve as well. In 1889, a New York court, in the famous case of Riggs v. Palmer, had to decide whether an heir named in the will of his grandfather could inherit under that will, even though he had murdered his grandfather to do so. The court began its reasoning with this admission: “It is quite true that statues regulating the making, proof and effect of wills, and the devolution of property, if literally construed [my emphasis], and if their force and effect can in no way and under no circumstances be controlled or modified, give this property to the murderer.” But the court continued to note that “all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” The murderer did not receive his inheritance.

QED. In this case the Common law overruled the statute, and justice prevailed over injustice. Game, set, match to the judge!

Wherein Hayek Agrees with DeLong that Just Because You’re Rich, It Doesn’t Mean You Deserve to Be

Recently Brad DeLong expounded on the extent to which the earnings that accrue to individuals do not correspond to the contributions total output that can be ascribed to the personal efforts of those individuals or the contributions made by resources owned by thoe people. Here’s DeLong:

Pascal Lamy: “When the wise man points at the moon, the fool looks at the finger…”

Perhaps in the end the problem is that people want to pretend that they are filling a valuable role in the societal division of labor, and are receiving no more than they earn–than they contribute.

But that is not the case. The value–the societal dividend–is in the accumulated knowledge of humanity and in the painfully constructed networks that make up our value chains.

A “contribution” theory of what a proper distribution of income might be can only be made coherent if there are constant returns to scale in the scarce, priced, owned factors of production. Only then can you divide the pile of resources by giving to each the marginal societal product of their work and of the resources that they own.

That, however, is not the world we live in.

In a world–like the one we live in–of mammoth increasing returns to unowned knowledge and to networks, no individual and no community is especially valuable. Those who receive good livings are those who are lucky–as Carrier’s workers in Indiana have been lucky in living near Carrier’s initial location. It’s not that their contribution to society is large or that their luck is replicable: if it were, they would not care (much) about the departure of Carrier because there would be another productive network that they could fit into a slot in.

All of this “what you deserve” language is tied up with some vague idea that you deserve what you contribute–that what your work adds to the pool of society’s resources is what you deserve.

This illusion is punctured by any recognition that there is a large societal dividend to be distributed, and that the government can distribute it by supplementing (inadequate) market wages determined by your (low) societal marginal product, or by explicitly providing income support or services unconnected with work via social insurance. Instead, the government is supposed to, somehow, via clever redistribution, rearrange the pattern of market power in the economy so that the increasing-returns knowledge- and network-based societal dividend is predistributed in a relatively egalitarian way so that everybody can pretend that their income is just “to each according to his work”, and that they are not heirs and heiresses coupon clipping off of the societal capital of our predecessors’ accumulated knowledge and networks.

On top of this we add: Polanyian disruption of patterns of life–local communities, income levels, industrial specialization–that you believed you had a right to obtain or maintain, and a right to believe that you deserve. But in a market capitalist society, nobody has a right to the preservation of their local communities, to their income levels, or to an occupation in their industrial specialization. In a market capitalist society, those survive only if they pass a market profitability test. And so the only rights that matter are those property rights that at the moment carry with them market power–the combination of the (almost inevitably low) marginal societal products of your skills and the resources you own, plus the (sometimes high) market power that those resources grant to you.

This wish to believe that you are not a moocher is what keeps people from seeing issues of distribution and allocation clearly–and generates hostility to social insurance and to wage supplement policies, for they rip the veil off of the idea that you deserve to be highly paid because you are worth it. You aren’t.

And this ties itself up with regional issues: regional decline can come very quickly whenever a region finds that its key industries have, for whatever reason, lost the market power that diverted its previously substantial share of the knowledge- and network-based societal dividend into the coffers of its firms. The resources cannot be simply redeployed in other industries unless those two have market power to control the direction of a share of the knowledge- and network-based societal dividend. And so communities decline and die. And the social contract–which was supposed to have given you a right to a healthy community–is broken.

As I have said before, humans are, at a very deep and basic level, gift-exchange animals. We create and reinforce our social bonds by establishing patterns of “owing” other people and by “being owed”. We want to enter into reciprocal gift-exchange relationships. We create and reinforce social bonds by giving each other presents. We like to give. We like to receive. We like neither to feel like cheaters nor to feel cheated. We like, instead, to feel embedded in networks of mutual reciprocal obligation. We don’t like being too much on the downside of the gift exchange: to have received much more than we have given in return makes us feel very small. We don’t like being too much on the upside of the gift exchange either: to give and give and give and never receive makes us feel like suckers.

We want to be neither cheaters nor saps.

It is, psychologically, very hard for most of us to feel like we are being takers: that we are consuming more than we are contributing, and are in some way dependent on and recipients of the charity of others. It is also, psychologically, very hard for most of us to feel like we are being saps: that others are laughing at us as they toil not yet consume what we have produced.

And it is on top of this evopsych propensity to be gift-exchange animals–what Adam Smith called our “natural propensity to truck, barter, and exchange”–we have built our complex economic division of labor. We construct property and market exchange–what Adam Smith called our natural propensity “to truck, barter, and exchange” to set and regulate expectations of what the fair, non-cheater non-sap terms of gift-exchange over time are.

We devise money as an institution as a substitute for the trust needed in a gift-exchange relationship, and we thus construct a largely-peaceful global 7.4B-strong highly-productive societal division of labor, built on:

  • assigning things to owners—who thus have both the responsibility for stewardship and the incentive to be good stewards…
  • very large-scale webs of win-win exchange… mediated and regulated by market prices…

There are enormous benefits to arranging things this way. As soon as we enter into a gift-exchange relationship with someone or something we will see again–perhaps often–it will automatically shade over into the friend zone. This is just who we are. And as soon as we think about entering into a gift-exchange relationship with someone, we think better of them. Thus a large and extended division of labor mediated by the market version of gift-exchange is a ver powerful creator of social harmony.

This is what the wise Albert Hirschman called the doux commerce thesis. People, as economists conceive them, are not “Hobbesians” focusing on their narrow personal self-interest, but rather “Lockeians”: believers in live-and-let live, respecting others and their spheres of autonomy, and eager to enter into reciprocal gift-exchange relationships—both one-offs mediated by cash alone and longer-run ones as well.

In an economist’s imagination, people do not enter a butcher’s shop only when armed cap-a-pie and only with armed guards. They do not fear that the butcher will knock him unconscious, take his money, slaughter him, smoke him, and sell him as long pig.

Rather, there is a presumed underlying order of property and ownership that is largely self-enforcing, that requires only a “night watchman” to keep it stable and secure.

Yet to keep the fiction that we are all fairly playing the reciprocal game of gift exchange in a 7.4 billion-strong social network–that we are neither cheaters nor saps–we need to ignore that we are coupon clippers living off of our societal inheritance.

And to do this, we need to do more than (a) set up a framework for the production of stuff, (b) set up a framework for the distribution of stuff, and so (c) create a very dense reciprocal network of interdependencies to create and reinforce our belief that we are all one society.

We need to do so in such a way that people do not see themselves, are not seen as saps–people who are systematically and persistently taken advantage of by others in their societal and market gift-exchange relationships. We need to do so in such a way that people do not see themselves, are not seen as, and are not moochers–people who systematically persistently take advantage of others in their societal and market gift-exchange relationships. We need to do this in the presence of a vast increasing-returns in the knowledge- and network-based societal dividend and in spite of the low societal marginal product of any one of us.

Thus we need to do this via clever redistribution rather than via explicit wage supplements or basic incomes or social insurance that robs people of the illusion that what they receive is what they have earned and what they are worth through their work.

Now I think it is an open question whether it is harder to do the job via predistribution, or to do the job via changing human perceptions to get everybody to understand that

  • no, none of us is worth what we are paid.
  • we are all living, to various extents, off of the dividends from our societal capital
  • those of us who are doing especially well are those of us who have managed to luck into situations in which we have market power–in which the resources we control are (a) scarce, (b) hard to replicate quickly, and (c) help produce things
  • that rich people have a serious jones for right now.

Compare with Hayek’s Law, Legislation and Liberty volume 2, pp. 73-74

It has been argued persuasively that people will tolerate major inequalities of the material positions only if they believe that the different individuals get on the whole what they deserve, that they did in fact support the market order only because (and so long as) they thought that the differences of remuneration corresponded roughly to differences of merit, and that in consequence the maintenance of a free society presupposes the belief that some sort of “social justice” is being done. The market order, however, does not in fact owe its origin to such beliefs, or was originally justified in this manner. This order could develop, after its earlier beginnings had decayed during the middle ages and to some extent been destroyed by the restrictions imposed by authority, when a thousand years of vain efforts to discover substantively just prices or wages were abandoned and the late schoolmen recognized them to be empty formulae and taught instead that the prices determined by just conduct of the parties in the market, i.e., the competitive prices arrived at without fraud, monopoly and violence, was all that justice required. It was from this tradition that John Locke and his contemporaries derived the classical liberal conception of justice for which, as has been rightly said, it was only ‘the way in which competition was carried on, not its results’, that could be just or unjust.

It is unquestionably true that, particularly among those who were very successful in the market order, a belief in a much stronger moral justification of individual success developed, and that, long after the basic principles of such an order had been fully elaborated and approved by catholic moral philosophers, it had in the Anglo-Saxon world received strong support from Calvinist teaching.It certainly is important in the market order (or free enterprise society, misleadingly called ‘capitalism’) that the individuals believe that their well-being depends primarily on their own efforts and decisions. Indeed, few circumstances will do more to make a person energetic and efficient than the belief that it depends chiefly on him whether he will reach the goals he has set himself. For this reason this belief is often encouraged by education and governing opinion — it seems to me, generally much to the benefit of most of the members of society in which it prevails, who will owe many important material and moral improvements to persons guided by it. But it leads not doubt also to an exaggerated confidence in the truth of this generalization which to those who regard themselves (and perhaps are) equally able but have failed must appear as a bitter irony and severe provocation.

It is probably a misfortune that, especially in the USA, popular writers like Samuel Smiles and Horatio Alger, and later the sociologist W. G. Sumner, have defended free enterprise on the ground that it regularly rewards the deserving, and it bodes ill for the future of the market order that this seems to have become the only defence of it which is understood by the general public. That it has largely become the basis of the self-esteem of the businessman often gives him an air of self-righteousness which does not make him more popular. [If only!]

It is therefore a real dilemma to what extent we ought to encourage in the young a belief that when they really try they will succeed, or should rather emphasize that inevitably some unworthy will succeed and some worthy fail — whenever we ought to allow the views of those groups to prevail with whom the over-confidence in the appropriate reward of the able and industrious is strong and who in consequence will do much that benefits the rest, and whether without such partly erroneous beliefs the large number will tolerate actual differences in rewards which will be based only partly on achievement and partly on mere chance.

On Intellectual Scruples

Citing Jonathan Chait’s stinging takedown of a remarkably silly assertion by Larry Kudlow that it’s good to have a government run by the super-rich, because the super-rich, already satiated with wealth, are immune to the blandishments that might corrupt the merely rich or upper middle-class, Paul Krugman also skewers Kudlow for a deeper inconsistency in his world-view and that of other devotees of supply-side economics.

What Chait doesn’t note is the special irony of seeing this argument from Kudlow, or indeed any right-wing advocate of supply-side economics. Remember, their whole worldview is based around the claim that cutting taxes on rich people will work economic miracles, because of incentives: let a plutocrat keep more of an extra dollar in income, and he’ll innovate, create jobs, lead us to an earthly paradise in order to get that extra income.

To belabor what should be obvious: either the wealthy care about having more money or they don’t. If lower marginal tax rates are an incentive to produce more, the prospect of personal gain is an incentive to engage in corrupt practices. You can’t go all Ayn Rand/Gordon Gekko on the importance of greed as a motivator while claiming that wealth insulates a man from temptation. . . .

But what’s more interesting and revealing, I think, is the way people like Kudlow for whom incentives are supposedly all suddenly say something completely different when it comes to conflicts of interest.

And this is telling us something significant: namely, that supply-side economic theory is and always was a sham. It was never about the incentives; it was just another excuse to make the rich richer.

I understand why Krugman is annoyed with Kudlow and other supply-siders. Kudlow is clearly being inconsistent. But Krugman forgets that he is a partisan advocate, so, like all advocates, he tailors his arguments to support the momentary interest and needs of the political party, and candidates, and causes with which he has aligned himself. And, like any advocate, he searches for whatever arguments he can find to support his side at a particular moment, without caring too much whether the argument he is making today is consistent with another that he made yesterday, or, for that matter, one he made 5 minutes ago. So it’s certainly fair to conclude that Kudlow doesn’t really understand what he is talking about, or that, lacking intellectual scruples, he will say whatever he thinks will advance the interests of his “team.”

But you can’t infer from Kudlow’s lack of intellectual scruples that everyone who favors reducing marginal tax rates is simply trying to make the super-rich even richer. There is a prima facie plausible argument to be made that reducing marginal tax rates would enhance economic efficiency. So the charge that everyone who advocates reducing marginal tax rates is doing so for venal and reprehensible motives just strikes me as, well, implausible.

I mean is it so hard to imagine that an intelligent person could believe that low marginal rates of taxation would promote economic efficiency and enhance productivity? Not for me at any rate, because I used to share that belief myself. If I hold a different view now than I used to, I don’t think it’s because I have become a better person than I used to be (though I hope I have); it’s because I now have serious doubts that low marginal rates of taxation are necessarily efficiency-enhancing. Those doubts result from my having realized that a lot of income — especially in the highest income brackets — is generated by activities whose private benefits greatly exceed their social benefits — the gains to some reflecting interpersonal transfers rather than increased output — so that low marginal income tax rates may, on balance, reduce overall economic efficiency.

Given the lack of research, or my lack of knowledge about the research, on the gaps between the private and social benefits from a lot of very highly remunerated activities, like various forms of financial trading and speculation, research and development aimed at creating intellectual property, and other forms of investment in winner-take-all activities and enterprises, I have no idea what the socially optimum marginal tax rate really is. I therefore have no definite position either for or against changing marginal tax rates.

But I do understand why someone with a perfectly innocent state of mind could believe that not only the super-rich, but even the least well-off members of society, could potentially benefit from reduced marginal tax rates. If you want to disprove or debunk that belief, the right way to do so is to explain what’s wrong with the straightforward — possibly simplistic — reasoning that says that lowering marginal tax rates enhances economic efficiency; it is not by asserting that such a belief could be held only out of venal motives.

As I said, I do understand, and share, Krugman’s frustration with Kudlow, but I still don’t believe that every supporter of low marginal tax rates is lacking in intellectual scruples. And not only is impugning the motives of everyone that disagrees with you unfair, it degrades an already low level of public discourse even further, and may not even be an effective rhetorical strategy.

Putin v. Obama: It’s the Economy, Stupid

A couple of days ago, Daniel Drezner wrote an op-ed for the Washington Post commenting on a statement made by one of the candidates in the recent televised forum on national security.

Last week at a televised presidential forum on national security, Donald Trump continued his pattern of praising Russian President Vladimir Putin. In particular, Trump said the following:

I mean, the man has very strong control over a country. And that’s a very different system and I don’t happen to like the system. But certainly in that system he’s been a leader, far more than our president has been a leader. We have a divided country.

As my Post colleague David Weigel notes, this is simply Trump’s latest slathering of praise onto the Russian strongman:

Trump goes further than many Republicans. In his telling, Putin — a “strong leader” — epitomizes how any serious president should position his country in the world. Knowingly or not, Trump builds on years of wistful, sometimes ironic praise of Putin as a swaggering, bare-chested autocrat.

After the forum, his running mate, Mike Pence, who used to be more critical of Putin, doubled down on Trump’s claim:

Pence walked that line back a little Sunday, suggesting that he was trying to indict the “weak and feckless leadership” of President Obama — but you get the point.

Well, if we are going to compare the leadership of Putin and Obama, why not compare them by measuring what people really care about? After all, don’t we all know that “it’s the economy, stupid.”

So let’s see how what Putin’s leadership has done for Russia compares with what Obama’s leadership has done for the US? We all know that the last eight years under Obama have not been the greatest, but if it’s Putin that Obama is being compared to, we ought to check out how Putin’s “very strong” leadership has worked out for the Russian economy as opposed to Obama’s “weak and feckless leadership” has worked out for the US economy.

Here’s a little graph comparing US and Russian GDP between 2008 and 2015. To make the comparison on an even playing field, I have normalized GDP for both countries at 1.0 in 2008.

putin_v_obamaLooks to me like Obama wins that leadership contest pretty handily. And it’s not getting any better for Putin in 2016, as the Russian economy continues to contract, while the US economy continues to expand, albeit slowly, in 2016.

So chalk one up for the home team.

USA! USA!

Mercatus Center Conference on Monetary Rules for a Post-Crisis World

It’s been almost three weeks since my last post, which I think is my longest dry spell since I started blogging a little over five years ago. Aside from taking it a little easy during this really hot summer in Washington DC, I have been working on the paper I am supposed to present tomorrow at the Mercatus Center Conference on Monetary Rules for a Post-Crisis World.

After Scott Sumner opens the conference with welcoming remarks at 9AM, I will be speaking in the first panel starting at 9:10 AM. My paper is entitled “Rules versus Discretion, Historically Contemplated.” I hope soon to write a post summarizing some of what I have to say and to post a link to a draft of the paper. The conference proceedings are to be published in a forthcoming issue of the Journal of Macroeconomics.

I’m especially pleased to be on the same panel as one of my all-time favorite economists, David Laidler. That’s almost enough to lift me out of my chronic depression about the November elections. Other speakers include, Mark Calabria, Robert Hetzel, David Papell, Scott Sumner, John Taylor, Perry Mehrling, Kevin Sheedy, Walker Todd, David Beckworth, Miles Kimball, and Peter Ireland. A stellar cast, indeed. You can watch a live stream here.

On Liberalism, Political Correctness, and Illegal Immigration

Last week I wrote a post about criticism by some left-wing liberals of Tim Kaine. My post elicited a series of comments from Peter Schaeffer. I responded to his first comment in the comment section, and he has followed up with some further comments, which raise a number of important issues, partly historical and partly philosophical. While his comments are in some respects insightful, I think that are also very misguided. But it is certainly the case that many of the positions he takes are rather widely held, including by some well-known public figures, so I think that they are worth responding to. So even though some of what Peter and I disagree about are fairly obscure matters of British and American history, I think that it is worth taking the time to respond to most of Peter’s comments.

Peter begins by challenging the main point of my previous post, which was that the attacks on Tim Kaine for being insufficiently liberal, owing to Kaine’s support for free trade, were historically anomalous and ignorant, liberalism having originated in Britain as a political party and political ideology in the course of the mid-19th century struggle over free trade, in which liberals were the advocates for free trade. Peter takes issue with a comment I made in reply to Lars Christensen’s comment on my post. I wrote:

The idea that support for free trade means that you are not a liberal was just too hilarious for me to ignore.

To which Peter responded:

It’s not hilarious at all. It’s reasonable and serious. Modern liberalism is not British 19th century liberalism and doesn’t claim to be. Modern liberalism rejects the ideas (laissez-faire capitalism) and the consequences (extreme inequality) that British 19th century liberalism enthusiastically supported.

They may share the same word, they are not the same thing.

I am fully aware that modern liberalism and 19th century liberalism are not the same thing; much of my post was devoted to explaining why modern American liberalism moved away from 19th century liberalism. But the differences don’t mean that they are totally unrelated and have nothing in common. John Stuart Mill, unmentioned by Peter, was an exemplar of 19th century liberalism, and he surely was not indifferent to the extreme inequality resulting from pure laissez-faire capitalism. Nor did I deny that it is possible to be a liberal and oppose free trade. All I said was that it is a stretch to say that if you support free trade, you can’t be a liberal, which seemed to be the message of the “liberal” opponents of Tim Kaine.

Peter continued:

The nation of Columbia provides a good example. The Columbian Liberal Party was originally a liberal (using the old British sense of the word) party and is now a liberal party (in the modern sense of the word).

What point Peter is trying to make by citing the not very relevant or interesting (WADR) example of the obviously dysfunctional Columbian Liberal Party escapes me. And Peter goes on to show exactly how dysfunctional the party is by providing the following bit of historical trivia.

To put this in perspective, in 1982 Pablo Escobar (yes, that Pablo Escobar) was elected as an alternate member of the Chamber of Representatives of Colombia as a CLP candidate. Presumably, 19th century British liberals would not have welcomed Pablo as one of their candidates.

To which all I can say is: OMG! Perhaps, Peter would like to identify for us which liberals, other than the dysfunctional Columbian ones, he thinks would have welcomed such a one Pablo as a candidate.

From his confusing musings about the squalid state of Columbian liberalism, Peter moves on to a bitter attack on 19th century British Liberalism, accusing the Liberals of having been supportive of slavery and the South in the Civil War. He cites, as he has previously, the remarkable statement by a 19th-century British politician and diplomat, Charles Bowring (whose obscurity can be inferred his absence in the index of Morely’s three volume biography of Gladstone): “Jesus Christ is Free Trade and Free Trade is Jesus Christ.”

To show that this weird formulation was somehow typical of British Liberals, Peter cites Lord Palmerston, the Liberal Prime Minister during the American Civil War, who complained to Charles Francis Adams (US ambassador to Britain) about the Morril tariff, from which Peter infers that tariffs were more hateful to the British Liberals than was slavery. Peter also cites Gladstone as a Liberal supporter of secession. In fact, Palmerston and all the British Liberals were opposed to slavery. However, Palmerston believed that the national interests of Britain might be better served (Britain First?) if the Confederate States were to secede from the Union. It is true that Gladstone made a speech in 1862 in which he suggested that the early military successes of the Confederacy meant that the South had succeeded in creating a new nation, and that it might be best to acknowledge that reality. Gladstone later regretted that this speech, calling the speech “an undoubted error, the most singular and palpable, I may add the least excusable of them all. In the autumn of that year [1862] . . . I declared in the heat of the American struggle that Jefferson Davis had made a nation, that is to say, that the division of the American Republic by the establishment of a Southern or secession state was an accomplished fact. Strange to say, this declaration, most unwarrantable to be made by a minister of the crown with no authority other than his own, was not due to any feeling of partisanship for the South or hostility to the North.” J. Morely, Life of Gladstone, vol. 2, p. 81).

In addition, both Richard Cobden and John Bright, the two leaders of the Anti-Corn Law League, and the most fervent British supporters of free trade, were both equally fervent supporters of the Union. And I just found this 2013 article by Bill Cash, author of a recent biography of Bright showing that Lincoln and Bright were united by common ideals and deep mutual admiration.

For those who have seen the brilliant film Lincoln with Daniel Day-Lewis, you may have noticed in the scenes set within the study that there was a photograph in the left hand corner of the mantelpiece of a great British statesman, John Bright. I have that exact photograph in my personal collection, as described in my book, John Bright: Statesman, Orator, Agitator (IB Tauris, 2011). Bright was the leading advocate in Britain against slavery throughout the American Civil War and who was highly esteemed by Abraham Lincoln for his advocacy in the run up to the Emancipation Proclamation – which had its 150th anniversary on 1 January, 2013.

During the course of the American Civil War, Bright had devoted all his energies to protecting his beloved American democracy – a key influence on his own campaigns for parliamentary reform – centring his arguments on the moral repugnance of slavery. In this, he had the support of the workers at his own cotton mill in Rochdale who, even when impoverished during the cotton famine caused by the war, refused to accept Southern slave-grown cotton. Yet, the relationship between Bright and Lincoln was not merely a real influence on Lincoln himself but on the history of the civil war and the relationship between Britain and America from that time on and still today.

When Steven Spielberg and Day-Lewis were interviewed on television about the film, both of them revealed that what had fascinated them, as much as everything else, was the mind of Abraham Lincoln. And what the photograph in the film represented was the extent to which Lincoln himself paid his own tribute to Bright.

It was testimony to Bright’s influence that Schuyler Colfax (who, as those who have watched the film will have seen for themselves voted for the constitutional amendment in 1865) and Henry Janney – both of whom were confidants of Lincoln – wrote to Bright after the assassination telling him that his portrait and only his portrait was in President Lincoln’s reception room. Lincoln had sent two portraits of himself to Bright, and of the two portraits hanging in Lincoln’s own office, one was of Bright.

Vice-President Schuyler Colfax, then Speaker of the House of Representatives, wrote to Bright in 1866, requesting a likeness of Bright, saying, “Your face is quite familiar to me already, as your portrait hung up in President Lincoln’s Reception room, and often, in the many evenings I spent with him there, he referred to you with sincere regard & even affection. Every loyal man & woman in the land knows you, knows you and esteems you. But your correspondence with Senator Sumner, whom I often meet (& we often talk about you, you may be assured) has informed you of all this.”

A letter from another of the confidants of Lincoln, Henry Janney (dated 24 April, 1865, immediately after the assassination), wrote to Bright relating how he “told the President I had a letter from thee and he requested me to bring it up and let him see it, saying, ‘I love to read the letters of Mr Bright.’ I complied, when he read carefully every word, then remarked to those around him, ‘my friend has show me a letter from Mr Bright. I believe he is the only British statesman who has been unfaltering in his confidence in our ultimate success – look there.’ I stepped up to the wall and seeing a familiar face read beneath it John Bright MP. It was the only portrait in the room.”

It is perhaps, then, no surprise that a long-standing testimonial from Bright calling for Lincoln’s re-election was found in Lincoln’s pocket when they were emptied immediately after his assassination. Bright was known to Lincoln’s intimate friends as greatly influencing the president’s mind.

In the midst of his anti-liberal tirade, Peter suddenly dives into a discussion of political correctness, possibly in reply something I wrote in response to his disparagement of the support that modern liberals lend to political correctness. Here’s what I said:

Political correctness can be problematic, but that doesn’t justify abusive speech in the public arena. Yelling “political correctness” in response to criticism of indecent and abusive rhetoric and incitement is just as reprehensible as suppressing legitimate debate under the guise of “political correctness.” Both sides of this idiotic debate are just sloganeering.

I thought that was a pretty clear statement of opposition to attempts to shut down debate in the name of political correctness; I was just pointing out that abusive and indecent speech cannot be justified or exempted from appropriate expressions of disapproval by the bare assertion that the speaker was merely objecting to political correctness. But Peter doesn’t see it that way:

It is naïve to view Political Correctness (PC) as some sort of antidote to “abusive speech in the public arena”. PC is a comprehensive system of authoritarian thought control that exists to exclude non-PC ideas from the public arena, no matter how innocently they are expressed and no matter if they are well-supported by facts. Note that PC has been highly successful to date in achieving its goals of censorship, oppression, etc.

Peter seems to imply that I believe that Political Correctness is an antidote to “abusive speech in the public arena,” but what I said was that abusive speech cannot be justified as an antidote to, or protest against, Political Correctness. Big difference – but, apparently, not big enough for Peter to grasp. Peter then goes on to cite the case of Larry Summers, who was subjected to considerable public criticism for his comments at an academic conference about the reasons for the under-representation of women in tenured positions in science and engineering at top universities and research institutions.

However, the pseudo-Stalinist show trial of Larry Summers (roughly derived from Saletan, Parker, Taylor, and others) is one of the best example. Larry Summers’s comments to the NBER conference were a model of legitimate, highly rational, scientific, academic discourse (read them in the original). For daring to mention (part of) what science knows he was pilloried around the world and driven from office. His subsequent recantations and groveling apologies would have made a communist show-trial judge proud.

The first thing to notice about Peter’s comment is his Freudian slip in referring to the “pseudo-Stalinist show trial of Larry Summers” when the Slate article by William Saletan to which Peter refers was titled “The pseudo-feminist show trial of Larry Summers.” And the second thing is that Kathleen Parker’s column about the rescinding of an invitation by the University of California to Summers to deliver a commencement address compared Summers’s treatment to McCarthyism not to Stalinism. I disapprove of how Summers was forced out of his position as President of Harvard, in part owing to his comments on the reasons for the under-representation of women in the sciences and engineering at top universities and research institutions. But to compare Summers’s treatment to Stalinist oppression is so far over the top that one has to wonder about Peter’s grasp on reality.

Certainly it was embarrassing for Summers to be subjected to verbal abuse and unjustified accusations of prejudice against women. He was also compelled to apologize more abjectly for his remarks than the substance of those remarks warranted. I don’t dismiss the possibility that discrimination is one factor in explaining the paucity of tenured female faculty in the sciences and engineering at top universities, and I can see why Summers’s remarks could have been misunderstood to deny that such discrimination is a factor reducing the number of females in those positions. But after being forced out of his position at Harvard – and his remarks about women were only one factor in turning the Harvard faculty against Summers – Summers received a quite lucrative severance package as well as an appointment as the Charles W. Eliot University Professor at Harvard. It was hardly to the credit of the University of California to rescind its invitation to Summers to deliver a commencement speech, but to suggest that such an action rises to the level of McCarthyism, much less Stalinism, is simply laughable.

If you want to know what Stalinism really looks like, read this article in Saturday’s New York Times about the recent show trials of four Chinese human-rights activists who were compelled to read self-denunciations in court after being convicted of subversive activities in promoting human rights and civil society.

BEIJING — Chinese lawyers and rights activists appeared in televised trials throughout this week in what seemed to be a new, more public phase of President Xi Jinping’s campaign to cleanse the country of liberal ideas and activism.

Legal experts and supporters of four defendants denounced the hearings, held on consecutive days in Tianjin, a port city near Beijing, as grotesque show trials. All four men were shown meekly renouncing their activist pasts and urging people to guard against sinister forces threatening the Communist Party, before they were convicted and sentenced.

But for the government, the trials served a broader political purpose.

By airing the abject confessions and accusations of a sweeping, conspiratorial antiparty coalition, Mr. Xi’s administration was “putting civil society in all its forms on trial, and vilifying them as an anti-China plot,” Maya Wang, a researcher on China for Human Rights Watch, said in emailed comments.

I don’t defend what was done to Summers, but the way that Summers was treated pales in comparison to what was done to those four brave Chinese activists. Peter continues:

The issue isn’t “abusive speech in the public arena”, but ideological suppression of anyone who dares to deviate from PC orthodoxy.

To restate the obvious yet again, I condemn the ideological suppression of opinions that deviate from PC orthodoxy. But waving the flag of opposition to PC orthodoxy does not give anyone a free pass to engage in abusive speech in the public arena. Which is exactly what abusive speakers are doing nowadays to evade responsibility for their abuse and their threats. Peter goes on to cite an excellent article by Jonathan Chait chastising liberals for siding with the PC police. And Chait makes the valid point that anti-liberal right-wingers and misguided liberals and leftists are all happy to conflate liberalism with left-wing ideology, ignoring the key difference between liberalism and left-wing ideology, which is that liberalism holds that there are certain neutral principles that take precedence over specific objectives and concrete outcomes. Or stated differently, liberalism stands for the idea that it’s not only the ends that people are trying to achieve that matters, it’s also the means that they use to achieve those ends that matters. Certain means are illegitimate no matter how noble the ends. One might have thought that this would satisfy Peter, but it doesn’t.

However, the issue here go further. Let’s say that PC only objected to “abusive speech in the public arena”. That’s not true (at all). But let’s say it was true. So what? Charlie Hebdo has no right to satirize Islamists? Didn’t Voltaire say “I Disapprove of What You Say, But I Will Defend to the Death Your Right to Say It”? What exactly is “abusive speech”? The church regarded Galileo’s claims as “abusive speech”. Was the church right to suppress Galileo? Today’s “abusive speech” may well be tomorrow’s truth. How can any society hope to find truth without allowing dissenting opinions?

Peter seems unable to grasp even basic distinctions. I can express disapproval of Charlie Hebdo without banning it, or tolerating, much less justifying, terrorist attack against the magazine and its staff. Being against abusive speech does not mean suppressing it; it means that those who practice abusive speech should be just as subject to criticism as is everyone else who ventures to expose his thoughts to public scrutiny. When you express an opinion, both the substance of the opinion and the manner in which you express it are legitimately subject to criticism. Trying to shield yourself from criticism by saying that you are being anti-PC is nothing but a dodge and a scam. And to suggest preposterously that Galileo was imprisoned for abusive speech is just a travesty. Legitimate criticism of the way in which an argument is presented is not the same as suppressing the opinion.

In a further comment, Peter responds to something I wrote in response to Benjamin Cole’s comment. I wrote:

I don’t dismiss the effects of trade on workers as some free traders do, but that doesn’t mean that all free trade does is harm workers. Same for the effects of immigration. Those effects are complex, and they are hard to disentangle. Property zoning is a real problem and I am certainly against criminalization of push-cart vending, just as I am against criminalization of non-legal (“illegal” is a pejorative misnomer, which invidiously connotes criminality as does the term “amnesty” when used in the context of immigration reform) immigration.

Peter wrote:

“Illegal” is a statement of fact. We have immigration laws. If you have violate them, you have done something illegal. Sort of like robbery, assault and battery, and arson. These acts are violations of the law. They are illegal. Stealing a car is illegal. If you steal a car and drive it, you are an illegal driver. If you rob a bank, you are a criminal. Calling car thieves and bank robbers criminals (illegals) isn’t pejorative, it’s simply a statement of fact.

“Illegal” is a statement of fact only insofar as there are statutes that declare immigration not in compliance with the statutorily established procedures for immigration to be illegal. But that doesn’t mean that illegal immigration is no different from robbery, theft, fraud, assault, battery, and arson. Robbery, theft, fraud, assault, battery, and arson are common law offenses. The act of immigration is not in and of itself a criminal, destructive, or anti-social act. Intrinsically destructive and anti-social acts are common law crimes even without a statutorily created offense. Illegal immigration is a crime only because statutes declare it to be such, not because any aspect of immigration is presumptively illegal. So the analogy between immigration and offenses at common law is completely false, without merit, pejorative, and invidious.

The fact that calling illegals, “illegals”, is now deemed to be non-PC (offensive even) is a classic example of how PC is used to censor honest discussion of the issues facing America.

Of course, everyone knows this. If illegals weren’t violating U.S. laws, why would anyone be trying to provide Amnesty for them? Why would any legalization be needed? The fact that the advocates of Amnesty demand “legalization” proves that “illegals”, are in fact illegal.

No, Peter, you are insisting that your narrative is factual and that mine is PC and censorious. So we are having an argument about how to describe the fact that people who cross a certain international border without complying with the procedures established for such crossings to be lawful are subject to punitive consequences for failing to comply with the prescribed procedures. You are simply invoking PC as a way of trying to get the upper hand in this discussion about a given factual situation. But PC is a completely irrelevant red-herring. Stick to the facts. And the fact is that, unlike robbery, theft, etc., immigration, i.e., crossing an international border, is not an offense at common law. Amnesty is your term. It implies that there was an offense, but the only offense was non-compliance with an administrative procedure specified by an arbitrary statute. There was no offense at common law, as you yourself acknowledge below. There is a huge difference between an amnesty for a technical administrative violation and an amnesty for offenses at common law.

Please observe that ”illegal” is not just a generic statement. Illegally entering the U.S. is a Federal crime (see below). Illegally residing in the U.S. (even after legally entering) is a Federal civil offense (deportation is the stated penalty). Of course, documentation fraud, Social Security fraud, identify theft, etc. are all Federal crimes and the vast majority of illegals have violated these laws.

Peter, you confirm that illegally residing in the US is not a criminal offense even under US law. And your further comments about the definition of “immigrant” under US immigration statutes do not change the fact that there is nothing inherently criminal or offensive about illegal immigration, and that the criminal status of illegal immigrants is the result of the administrative system created by US immigration policy, not the offensive nature of the actions of those who enter or remain in the US in violation of those administrative regulations.

I don’t dispute that the US, as a sovereign state, has the right to establish such regulations, but those regulations have no inherent moral content, as do common law offenses. They are purely utilitarian. And any assessment of how those regulations are being implemented, administered or modified should be made strictly on the basis of how the system as a whole contributes to or detracts from the benefit of the people of the US. And as I indicated in my reply to Benjamin’s comment, it is difficult to disentangle the effects that immigrants have on the well-being of current residents and citizens of the US. Platitudes about upholding the rule of law are simply question-begging when, unlike the basic laws of just conduct, the immigration laws in question have no moral content, but are merely instruments for achieving the goals of the current immigration policy of the US.


About Me

David Glasner
Washington, DC

I am an economist in the Washington DC area. My research and writing has been mostly on monetary economics and policy and the history of economics. In my book Free Banking and Monetary Reform, I argued for a non-Monetarist non-Keynesian approach to monetary policy, based on a theory of a competitive supply of money. Over the years, I have become increasingly impressed by the similarities between my approach and that of R. G. Hawtrey and hope to bring Hawtrey's unduly neglected contributions to the attention of a wider audience.

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