Archive for October, 2011

Corporate Personhood in a Free Society

October 27, 2011

Shannonkringens photostream

“Corporate,” for some, is a four-letter word – with “corporate personhood” a double obscenity. This longtime pet cause of the Left is a particular target of the “Occupy Wall Street” protests.

“Corporate personhood” originated in the Supreme Court’s 1886 decision in Santa Clara County v. Southern Pacific Railroad. What the Court actually said was that the 14th Amendment’s guarantee of equal protection of the laws – and that no “person” could be deprived of property without due process of law – applies to corporations. Seems to me entirely reasonable that in a free society under rule of law, these safeguards against arbitrary government power should apply not only to individual people, but to any private organization or institution.

When Mitt Romney recently declared, “corporations are people,” I suspect he meant merely that they’re made up of people. They’re not from Mars. They’re human organizations, not only extensions of the people who own them and run them, but also the people working for them, which indeed is most of the people in the country.

But none of this implies (as critics seem to imagine) that corporations can run roughshod over the rights of real persons. Just as individuals are subject to laws governing their behavior, to protect the rights of others, so are corporations. Not even the most extreme advocate of laissez faire capitalism wants corporations free from laws barring abusive conduct.


Being human organizations, corporations are indeed subject to all the character flaws that individual humans exhibit; and moreover, when you aggregate humans into large bureaucratized institutions, you get a whole new range of pathologies. That does threaten harm, which laws must forestall. This applies even more to another class of bureaucratized human organization: government. Which, remember, has far more power than corporations (a corporation can’t jail you), and hence protecting against government’s abuses is rather more of a concern than protecting us from corporations. And, yes, even corporations have legitimate rights against government abuse.

This brings us directly to a more recent Supreme Court case, Citizens United, which also has the Left hysterical, that corporations are allowed to fund political ads. Almost forgotten is what the case was actually about. Somebody made a political film criticizing Hillary Clinton. The Federal Election Gestapo ruled they couldn’t distribute it because the film had some corporate funding. The Supreme Court said, no, this is still a free country, and the First Amendment’s free speech guarantees bar such government regulation of political advocacy. (Please see my blog post preceding the decision.)

So Citizens United did not open a door that had always been closed. Instead, it overturned a regulatory regime that had been in effect only briefly, and restored the political freedom that had prevailed for most of the prior two centuries. (Note, the whole cat’s cradle of federal election regulation is really geared to suppressing political activity by the “outs” and protecting the “ins,” who never have trouble raising money and getting their message heard.)


But is corruption of the political process, by corporations effectively bribing politicians through campaign contributions, a problem? Yes – a huge one. In fact, as anti-capitalists love to point out, our free market system is greatly compromised by the “crony capitalism” of privileges enjoyed at the behest of (and corruptly bought from) government. In a truly free market, corporations check each other’s power. Government intervention undermines that.

But the remedy for all this should not lie in restrictions upon political advocacy. A far preferable solution would be a system of vouchers or tax credits to subsidize and promote greatly increased citizen political contributions, to counter the impact of corporate money. (This would be a form of public campaign finance vastly superior to existing schemes. For more about it, click here.)

And this we can do without gutting the First Amendment. In a free country, even corporations should have just as much right as any other groups of people to express their viewpoints and advocate for their interests in open public debate. Far more problematic is the idea that government can tell anybody when or how they’re allowed to participate in that debate. That’s the road to (today’s) Damascus.

Lawn Fetishism – a Brief Essay

October 21, 2011

In a world where financial crisis meets political dysfunction, children die of disease by millions, and Syria bombs its own cities, perhaps this is not the gravest concern — but, what is up with all this lawn fetishism?

I have a lovely outdoor lounge chair in which I love to lounge, enjoying the sun while it shines, often scribbling draft blog posts, but, alas, rarely undisturbed by the high decibel buzz of powered lawn mowers. It seems I am surrounded on all sides by neighbors for whom an acceptable grass height must be about half an inch – judging by how incessantly they deem it necessary to mow. (In the fall, we get the leaf blowers, which are even worse.) I almost count it a blessing if, at a given moment, there aren’t two or more of these contraptions roaring away. (And, if all goes quiet, I sit up and notice the strangeness.)


And bottomless too

Perhaps these people actually relish lawn mowing, as recreation, though to me that seems a perversion. One neighbor likes to do it topless. Surely there is something sexual here. (No, it’s a man, alas.)

The human attraction to a lawn’s verdant green color is readily explicable from an evolutionary standpoint. Certainly our distant forebears were genetically programmed to gravitate toward greenery, with its inherent lush promise of nourishment, and to shun the dun hues indicative of aridity and famine. But it hardly bears stating that in the modern context, a green lawn is quite irrelevant to one’s food security. Yet still we ascribe to our lawns an almost talismanic import, we treat any lapse in greenness as ill-omened, and hence coddling our lawns becomes akin to a religious devotion. It’s almost as absurd as belief in God.

And it’s not without cost. I’m not referring merely to direct expenditures on lawn maintenance. One hour of gas-powered mowing produces as much air pollution as four hours of car driving (and way more noise pollution). U.S. lawn mowing globbles up 580 million gallons of gasoline annually, contributing to our overall energy problems. Furthermore, while lawns were invented in England where a rainy climate obviated any need for watering, in dryer America we expend considerable precious water resources to quench the thirst of the little green monsters. The typical American suburban lawn consumes 10,000 gallons of water annually (over and above rainwater); and lawns take up over 30% of total U.S. water usage!

shredded tweet

And what do you call a bird run over by a lawn mower? Shredded tweet. In fact, lawns are green vales of death for untold millions of insects and other small and sometimes cuddlier wildlife, that do get literally shredded, and squashed, as well as poisoned by all the toxic chemicals we dump on our lawns. It’s practically genocide.

Finally, lawns soak up not only gasoline and water but untold millions of man-hours that could otherwise be devoted to more productive or edifying pursuits. Just imagine if all the time that Americans lavish on lawn mowing were instead spent learning something by reading books like The Case for Rational Optimism.

I confess myself not completely innocent, though I pay someone else to perform the ritual, and as infrequently as I can get away with. I’d just as soon pave the damn thing over, replace it with a Japanese stone garden, or cacti, or a gnome army, just so long as it does not require infernal mowing. But my missus has some say in the matter.

Meantime, as if the noise pollution of lawn zealotry were not enough, one of my neighbors likes to cut not only his grass, but his trees, using a chainsaw. Call me a grumpy old man, but shouldn’t there be a law? I’m as libertarian as they come, but it’s axiomatic that my freedom to swing my fist ends at your nose. Shouldn’t my neighbor’s right to rrrrRRRrrrrRRR end at my ear drum?

As Garrison Keillor once remarked, if one’s purpose in life is to serve other people, then what purpose is served by the existence of those other people? In my neighborhood, it seems their purpose is to serve their little green masters. And, as Jean-Paul Sartre once remarked, “Hell is other people.”

Bashar Assad: You’re Next

October 20, 2011

“Don’t shoot,” he said,
“What did I do to you?”
As if they might forget
The forty years they’d been
At his mercy. Or its lack.
But now he was at theirs.

“Rats” he’d called them,
And swore he’d hunt them down,
Till exactly like a rat,
Hiding in a drain pipe,
It was him they found.

So now the sublime picture:
Clothing ripped, smeared with his blood;
His face shoved in the dirt;
The terror and humiliation
He had visited upon so many
Come round to him at last.

Justice most sweet —
Not in some antiseptic court;
He would get it in the street,
Perfect, pure and short—
The fitting fate he could not cheat,
With all his stolen billions;
Not an eye for an eye,
But his one life for millions.
And now, about to die,
Perhaps he finally understood.
Tales don’t always end
The way they should.
But this one did,
And it was good.

The Road Not Taken

October 15, 2011

The rich should pay their fair share of taxes.

But how can we tell what’s fair? With all this “Buffett Rule” hullabaloo you might think the rich pay less than ordinary people. Not so. The more you earn, the higher a percentage goes to income tax. The top 5% of earners pay 57% of all income taxes; the wealthiest 1% (with 19% of the income) pay 37% of income taxes. And these percentages have been rising, mainly because the richies’ biggest tax break is the lower rate on investment gains – but since 2008 most investments have fallen (also, by the way, reducing wealth inequality).*

So, can we say the rich don’t already pay their fair share? Or even more than a fair share?**

But meantime income taxes on the whole are too low in relation to the government spending level that voters seem unwilling to change. Much spending goes to the rich, so whether to cut that, or raise their taxes, is really an equivalent choice. But as long as voters won’t accept cuts even in welfare for the rich, then taxes are too low.

However, for President Obama and the Democrats to advocate only raising taxes on the richest Americans is a disgraceful cheap shot, not only because demonizing the rich is demagogic, but mainly because this addresses only a tiny sliver of the problem. Squeezing a bit more tax out of the highest earners wouldn’t begin to come to grips with the massive and growing gap between spending and revenue, and the economic catastrophe this presages.

 So the Democrats have nothing to say about that; they take a pass on the great issue of our time. So do the Republicans. They say it should be all spending cuts. But it’s doubtful they’ll suddenly find the cojones to actually put through massive cuts in the teeth of public opinion. And it couldn’t happen anyway without Democratic support; the Democrats won’t make such a deal without tax increases; but the Republican presidential candidates unanimously say they would not accept even $1 in tax rises for $10 in spending cuts.

Obama might have chosen to fight them on that turf, seizing the responsible center, arguing for the reasonableness of a balanced package of tax increases and spending cuts (the “grand bargain”). Instead, he opted to veer sharply left, and into his re-election campaign, with a same-old same-old job stimulus plan combined with a populist “tax-the-rich” plan, neither of which has a snowball’s chance in Hell of getting enacted either (making his fiery speeches advocating them fundamentally dishonest). But this stuff is catnip for the activist left wing of the Democratic party. In short, Obama chose political posturing in lieu of governing.

Maybe he can eke out re-election this way. But to what end? He’ll still have a Republican controlled House and likely a GOP Senate as well. The country will be more polarized and gridlocked than ever, with no centrist mandate for the sensible, balanced, necessary approach that our economic mess cries out for.

It’s just like the Palestinian impasse. The obvious deal stares us in the face, majorities on both sides actually want it, but the zealots make it impossible. Arafat’s walking away from the Camp David deal in 2000 was the Palestinians’ Original Sin. Obama’s Original Sin was walking away from his own Simpson-Bowles deficit reduction commission’s recommendations. That was the moment of opportunity when a real leader might have gotten the nation to face reality and move toward responsibly tackling our fiscal problems.

That was the fork in the road; Obama went the wrong way; and (to quote Robert Frost) that has made all the difference.

What a tragedy. Obama is very smart and very likable. But as president, disastrous.

* Click here for some data on all this.

** The idea of the Wall Street protests, dividing the nation between a decent 99% and an evil 1% whose greed causes all the problems, is flat-out childish and useless for addressing our true economic problems. See a recent David Brooks column.

Killing Al-Awlaki

October 10, 2011

Anwar Al-Awlaki was a Yemen-based Al-Qaeda cleric, behind several anti-U.S. terror plots, recently killed by a U.S. drone strike.

Anwar Al-Awlaki

I previously wrote approvingly of bin Laden’s killing. Awlaki likewise deserved death, and I am glad he got it.

But unlike bin Laden, who as an enemy was a fair target under rules of war, Awlaki was a U.S. citizen. Ron Paul attacks this killing as contrary to law and the Constitution and, indeed, an impeachable offense on Obama’s part. I applaud Ron Paul for this forthright and principled stance.

Awlaki committed crimes, but under the rule of law, the President cannot act as judge, jury, and executioner. For Awlaki to have been tried, convicted, and executed would have been justice. For the President to simply order him killed is problematic.

It’s a fundamental concept (too little understood) that legal protections like the Fifth Amendment and other such rights do not exist in order to protect criminals; they exist to protect everyone. If the President can order the killing of Awlaki on his say-so, what’s to stop him from killing you? (Or, more important, me.) True, he had good reasons to kill Awlaki. But there’s no process here for determining whether the President had good reasons, bad reasons, or no reasons. In our system, no citizen’s life, liberty, or property can be taken without due process of law. Citizen Awlaki got no due process — no opportunity to challenge in court the missile that obliterated him.

News reports say the President relied on a legal memorandum advising that if capturing Awlaki was not possible, then he could be killed. As a lawyer, I don’t buy it. There is no footnote in the Constitution saying its provisions can be ignored if they stand in the way of justice. Indeed, the whole point is that the Constitutional protections embody our nation’s conception of what justice is.


Arbitrary power: Czar Ivan the Terrible

Rule of law is fundamental to our way of life. It goes back to the Social Contract: in order to protect us from each other, we establish law, and empower government as the enforcer. To prevent the arbitrary use of that power, government itself is subject to law. In earlier times, rulers did have arbitrary power, over life and death. Rule of law evolved to stop that. Obama’s killing of Awlaki can be seen as a throwback to arbitrary royal power.

Now, having made what I hope is an eloquent argument, I will Talmudically put the other side.

Much as I am a libertarian wary of governmental power in general, and much as I venerate rule of law, life is complex, there are competing values, and the difficult moral dilemmas involve not right against wrong but right against right. Rule of law is a very important thing, but it is not everything. Society does not exist to uphold rule of law; rather, rule of law is a tool to be used. As has been said (attributed to Lincoln), the Constitution is not a suicide pact.

When George W. Bush declared the “War on Terror” many on the Left thought this was overboard; that it wasn’t war, it was a law enforcement matter. The “war” language may indeed have been inflated, but the “law enforcement” conception was correspondingly inadequate. The truth lies somewhere in between; the problem has aspects of both. And this is exemplified in the case of Awlaki. While it can be argued (as I have done) that he was an American citizen entitled to legal due process, on the other hand he was acting as a military enemy in war. And America – according to widely acknowledged principles of international law — has a self-defense right to kill military enemies in war.

I have said that if Obama can order Awlaki’s death, he can order yours, or mine. Yet we know this is not really true. It would be true in a polity ruled by an unaccountable monarch. In 16th century Italy I would fear death at the ruler’s arbitrary whim. In 21st century America I have no such fear, because the overall societal context is entirely different. In our political, legal, and societal environment, that the President might feel justified in killing an Awlaki most certainly does not imply he can kill anyone for any reason or none.

I would not suggest that Awlaki’s killing was the only example, ever, of American government violating its proper bounds. (Don’t get me started!) And yet, in the bigger picture, the ethos of democratic accountability and rule of law is so strong overall that the system can actually tolerate some corner-cutting like the Awlaki killing. This is especially true when the lapse is not occasioned by venal purposes (as, for example, in the case of Nixon’s abuses of power – which, of course, our legal and political systems were able to handle appropriately). Obama’s killing of Awlaki, in contrast, reflected careful weighing of the national interest, and I’m sufficiently uncynical as to believe that in cases like this, in America, nothing else could have been possible.

Arbitrary power: Czar Vladimir Putin

If something like the killing of Awlaki were done by a Putin, or Assad, or Khamenei, it would be heinous. And they have in fact done such things. They have been vile because they were manifestations of arbitrary power in societies where such crimes are not the rare exception but the rule — and because the targets tend to be not bad people like Awlaki, but very much the opposite. Call me a starry-eyed idealist but, again, I believe that kind of outrage is unthinkable in America. For all my antipathy toward government in general (and my dissatisfaction with President Obama in particular), I love America enough, and trust America enough, that if our president determined that killing Awlaki was an appropriate decision, then I will give it the benefit of the doubt and, balancing all the considerations, my approbation.

Steve Jobs

October 6, 2011

(Written on an iMac)

 I loved Steve Jobs. I’d loved him ever since I got my first Mac 25 years ago. It’s in my nature never to take anything in life for granted; and with every mouse click, I have been mindful that this marvelous technology, as ever, didn’t just happen. As with everything in our lives that separates us from the caves, some human being had to originate it. Some human hero. I venerate them all.

If Steve Jobs had never done another thing after inventing the computer that everyday people could use, he would already have been a monumental contributor to human betterment. But, of course, he went on, in his all too short life, to repeat his triumph, again, and again, and again. I shed tears upon hearing he’d died.

My previous post (see below) was about greed, and the Wall Street protests. My wife queried how those protesters would feel about Steve Jobs – after all, one of the very rich against whom their protests are directed. But Steve Jobs epitomized the key thing that critics of “the system” never seem to get. They believe the world is a zero-sum game; every slice taken from the pie diminishes it; every dollar in the hands of the rich is torn from the hands of the rest. In the case of Steve Jobs it was altogether obvious that he made the pie bigger, and he gained wealth not at the expense of others, but by contributing to their betterment. But in this he was by no means unique. This is, indeed, what business, what commerce, what market economics is all about. You get profits by selling something buyers value more than what they pay. Their gain is your gain.

Not always, of course – of course – we live in an imperfect world. But it’s true far more than it’s not.

Indeed, it is because of this that we have risen to live as we do today – rather than in caves.

Greed is Good

October 5, 2011

Greed, greed, greed. Seems to be the word of the decade. It’s blamed for the financial crisis, and for much else that ails us, and the planet. Bookstore shelves fill up with titles featuring the word; the Wall Street protests denounce “corporate greed.”

Wall Street Protests

Those protesters complain that the rich wield more power than the rest. As if there could ever be a society without some people accruing more influence than others. Certainly all socialist and Communist societies have had very powerful elites (and, in fact, masses far more powerless than in capitalist democracies).

But what, exactly, does this slippery word “greed” mean? Wanting more? Wanting too much? More than is reasonable? Than is fair? More than the other guy?

Every human being wants. Everyone prefers having more to having less. Even the hermit living on nothing in a cave – even he wants to attain something. And whatever it is he wants, whatever spiritual thing, he’d rather have more of it than less.

Yet some see wantingness as a curse, they strive to free themselves from it, to extirpate all desire. As though this could banish life’s turmoil and confer inner peace.

However, as any conscious being navigates through life – through each day, each moment – wanting is the central fact of existence. There is nothing anyone ever does that isn’t a manifestation of some want or another. That’s the universal motivator. If you could actually imagine ridding yourself of all desire, all coveting, all greed – you would be rendered immobile, with no impetus to do anything, to perform any action. You’d be in a black hole, dead spiritually if not physically (and dead physically soon enough).

So to live and breathe is to want. Now, you might say, once your needs are all met, you shouldn’t want more. How often is that heard? Well, think a moment. If your needs are met – just – you’re at risk that with any change in circumstances (and change is pervasive in life), your needs will no longer be met. Thus, to minimize fear (certainly another universal human want), one seeks a cushion for security – voilamore.

And, who (apart from cave hermits) wants mere minimal subsistence anyway, if you can do better? Why accept hardship if you can achieve comfort? Why be satisfied with gruel if you can have cake and caviar? Moreover, we are quintessentially social animals, caring deeply about our relationships with others; and so, why tolerate low status if the respect of higher status might be attainable?

That is simply fundamental human nature; and that, my friends, in its essence, is “greed.” Protesting against greed is akin to protesting against the weather.

And just think where we’d be without this elemental human motivator. We can have cakes because people bake them; caviar because people harvest it. Why do they make such efforts? Because they want more. The baker bakes because he wants caviar too.

You could even call it (many do, with a sneer) the “greed economy” because that’s the engine at its heart. Adam Smith’s most famous line was, “It is not from the benevolence of the butcher, the brewer or the baker, that we expect our dinner, but from their regard for their own self interest.” Those tradesmen are feeding their greed. But to do so, they have to feed you!

That is the sense in which greed is good – motivating people to all the panoply of exertions that benefit society. The essence of a market economy (which its detractors never seem to grasp) is that A gains by doing something good for B, that B willingly pays A for, making both better off. If A gets something from B without making B better off, that’s cheating. If A’s greed impels him to cheat, it’s a bad thing. But cheating is always bad, and surely it’s not unique to market economies. The problem isn’t people wanting more (“greed”), it’s willingness to cheat to get it. In other words, the problem isn’t greed per se, it’s conscience, it’s knowing right from wrong.

But again the big point is that people wanting more and better is not in itself a bad thing at all, it’s a very good thing. It makes the whole world richer and better. Those who would banish greed think it would make a nicer world. It would actually make a vastly poorer one. Remove greed from human life and you won’t like the results.