Tag Archives: Classism

Dobbs, Roe, and the Freakout Over Federalism

25 Wednesday May 2022

Posted by in Abortion, Federalism, Uncategorized

≈ Leave a comment

Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

The leak of a Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization has created uproars on several fronts. The opinion, written by Justice Samuel Alito, represented a 5-4 majority at the time of its writing, but it is a draft opinion, and the substance and the positions of other justices might change before a final decision is handed down by the Court by the end of June. The draft would essentially uphold a Mississippi law restricting abortions after the first 15 weeks of pregnancy. This would overturn the Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) decisions. The former established that states could regulate abortion only beyond a certain stage of pregnancy (originally the first trimester), while the latter allowed states to regulate once a pregnancy reached the stage of fetal viability. While 24 weeks is often cited as the lower limit of viability, it is considered to be as early as 20 weeks by the World Health Organization, an estimate that could decline with future advances in prenatal and neonatal care (such as artificial wombs). In any case, viability would no longer be the standard if the draft opinion stands. Indeed, it would once again be up to states as to how they wish to regulate abortion.

Here is an update on where things stood on May 11th. Reportedly, the 5-4 majority still stood, and no other draft opinions existed in the case at that time. No news since.

Due Process and Privacy Rights

Was Roe v. Wade a good legal decision? Ruth Bader Ginsburg did not hold the opinion in high regard as a matter of the jurisprudence. Apparently, she felt that the Court should have simply struck down the restrictive Texas law in question without imposing a set of rules, which amounted to an aggressive infringement on the legislative function and the evolution of law, and case law, at the state level. Her words were:

“Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.”

She also felt the Court should not have leaned on the Due Process Clause of Fourteenth Amendment, which prohibits the denial of “life, liberty or property, without due process of law”. And she believed that relying on due process and the privacy rights of a woman and her physician made Roe vulnerable to challenge. She was probably right.

Yale Law School professor Akhil Amar, who is pro-choice, also believes the Roe decision was misguided and calls its reliance on due process “textual gibberish”. The objection to substantive due process is based on the absence of any principle establishing which “rights” not found explicitly in the Bill of Rights are valid, and which are not.

Equal Protection

In fact, Amar defends Justice Alito’s draft opinion and believes, as Ginsberg did, that the Equal Protection Clause of the Fourteenth Amendment is a better defense of abortion rights. The contention is that unless a woman possesses the right to terminate a pregnancy, she is not on an equal footing with similarly situated men in terms of self-determination and life opportunities. Of course, none of this weighs the interests of the unborn child.

Establishment Clause

Josh Blackman has an interesting series of comments about whether the Establishment Clause of the First Amendment may be a valid defense of abortion rights. That seemingly preposterous claim relies on abortion as a right, in some cases, protected by the free exercise of religion. As Blackman sums up in his sixth point:

“… abortion rights groups should be careful what they wish for. If the Court recognizes a Free Exercise right to perform or receive an abortion, then conservatives can cook up even more aggressive religious liberty strategies. I’ll bring the bagels for the next meeting of the Temple of Automatic Weapons.”

Eugene Volokh makes several interesting points on attempts to use the Establishment Clause “to obtain exemptions from generally applicable laws”. A separate, misguided take at the Establishment Clause is that a law must be unconstitutional if it was based on religious beliefs. Volokh handily disposes of that contention here.

Judicially-Prescribed Rights vs. Constitutional Rights

Blackman has written that the Alito draft is a tour de force, addressing many constitutional principles and concerns expressed by other justices. In another post, Blackman explains a very basic rationale for a decision to overturn Roe. It is related to the objections expressed by Ginsberg and Amar, and to the many “lamentations” expressed in the Court’s abortion opinions over the years since Roe. Namely, that rule and establishment of new rights by court decision was not a mechanism intended by the framers of the Constitution, but self-government and federalist principles were:

“It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.”

Personhood

Of course, none of these points are really germane to the crux of the pro-life argument to which I subscribe. However, both Roe and Casey acknowledge the state’s interest in protecting the fetus beyond some point in a pregnancy. The closer to term, the greater the interest. The implication is that a fetus gradually takes on degrees of “personhood” through the course of gestation, and that rights attach to that nascent individual at some point. Both Roe and Casey, by allowing states to regulate abortion beyond some point, offer recognition that the closer an abortion occurs to full term, the stronger the case that it may be prohibited.

The law in most European nations carries the same implication, and if anything leans more heavily in favor of fetal rights than Roe. Furthermore, there are 38 states with fetal homicide laws, which treat the fetus as a person in the case of a murder of a pregnant woman. In 29 of those states, the law applies at the earliest stages of pregnancy. This suggests that in most states, sentiments may weigh in favor of treating the fetus as a person imbued with constitutional rights.

In the end, this is not an exclusively religious argument, as the pro-abortion Left always suggests. For me, it’s purely an ethical one. At what point beyond conception are pro-abortion activists willing to concede that a human life is at stake? Apparently a heartbeat is not enough to convince them. Neither does the appearance of small fingers and toes. Nor the ability to feel pain. These are all things that happen before the child is “viable”. But even viability is not enough for some of the more radical abortion activists, who are proposing choice right up to the moment of birth. Incredibly, and despite the real limitations imposed on mid- or late-term abortions in many states (in line with Roe and Casey), some pro-choice advocates are now acting as if overturning these cases causes women to lose such an unfettered right!

Practical Matters

Anyone can obtain a variety of birth control alternatives without a prescription (and often for free). This includes emergency contraception, or the “morning after pill”. Granted, sometimes birth control measures fail, which places the prospective mother (and perhaps an involved or conscientious father) in a difficult position. Nevertheless, careful use of birth control would minimize the abortion problem and obviate much of the debate, but people are often too impulsive or careless about sex.

Late term abortions are a fairly small percentage of all abortions. The CDC reported that in 2018, 50,000 (~8%) abortions occurred after the first trimester (14+ weeks), and 6,200 (1%) took place at or beyond the point of theoretical viability (21+ weeks). This study found that of abortions at 20+ weeks, mothers tended to be younger (20 -24), discovered their pregnancies somewhat later, faced logistical and financial delays in arranging the abortion, or faced other challenging life circumstances. However, the researchers rebut a common rationale for late-term abortion when they say:

“… most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.”

Eugenics and Classism

Pregnancies among black women are terminated at a disproportionately high rate. That’s consistent with the original, eugenicistic and racist goals of Planned Parenthood founder Margaret Sanger. This is an outcome to top all disparate impacts. I have witnessed pro-abortion activists counter that these aborted lives would have been miserable, impoverished, and without opportunity — essentially not worth living — but these are value judgements of the most monstrous kind. I’ve also heard the pathetic argument that fiscal conservatives should be happy that abortions will reduce spending on aid programs. Of course, the plight of the would-be mother is also emphasized by pro-abortion advocates, but we should not be so eager to accept the tradeoff here: abortion gets the mother is off the hook, but a child’s life is at stake. No matter the odds of success, human beings are all endowed with potential and opportunity, and it’s not necessary to be economically secure to be happy or pursue dreams.

It’s easy to be pessimistic that public policy can ever mitigate the economic burden on impoverished women who bring unexpected or unwanted pregnancies to term, or to brighten the economic future of their children. After all, over the decades since the Great Society program was conceived, the welfare state has proven no better than a dependency treadmill. Family structure has been decimated by those programs and the destructive consequences of the failed (but ongoing) war on drugs. Likewise, public education is a disaster. However, there are also alternatives such as adoption, and there are many private individuals and organizations working to encourage prospective mothers and ease those burdens.

The Leak

The leak of the draft opinion in Dobbs is unfortunate as it compromises the ongoing integrity of the Court’s internal debates and proceedings. In addition to this institutional damage, the impropriety of staging protests outside the homes of justices and inside places of worship should be roundly condemned by people with respect for judicial integrity, privacy and free exercise. These protests are partly attempts to intimidate, and they have even been accompanied by threats of violence. The belligerent posture of these activists is unconscionable.

Long Live Federalism

Again, the Court’s final decision in Dobbs might not be the opinion in the leaked draft. However, if the Court does indeed overturn Roe, it would not outlaw abortion. Rather, it would allow voters in each state to have a voice in aligning the law with public sentiment. Some states will have more restrictive abortion laws than others, but even the Mississippi law at issue in Dobbs allows abortion up through week 15, almost two weeks longer than the original Roe limitation.

The country is still deeply divided on the issue of abortion. Fundamentally, a broader acceptance of the life-and-death reality of abortion would help bring more consensus on the issue. One theory I have is that many who oppose overturning Roe would simply rather not think about that reality. In their minds, Roe keeps abortion compartmentalized, safely walled off from conscience and sometimes even spiritual convictions. They rationalize Roe based on their inability to observe the person whose life is at stake, and they accept justifications that minimize the value of that life.

A single rule imposed by the Court has not and will not resolve these differences. Indeed, Roe and Casey were failed acts of judicial activism that should be reversed. While bad legislation is regrettable, it is always subject to review and challenge by the people. In a federalist system, a bad law is contained like a single experimental treatment in a large trial with multiple arms. However, in this case, unlike a trial with random selection of subjects, one treatment group may differ from others in important respects, and the objective is not to identify one single-best solution, but different solutions that work best for different groups. That is a closer approximation to real self-government than federal legislation and especially one-size-fits-all Court rule-making.

Do You Chronically Feel Cheated?

24 Tuesday Aug 2021

Posted by in Markets

≈ Leave a comment

Tags

, , , , , , , , , , , , , , , , , , ,

Economists are rightfully astonished when people act as if they’ve come up losers in almost every transaction they make. It’s often when they’re on the buying end, but here’s the paradox: almost all transactions are voluntary, a major exception being the coerced payment of taxes. There are few private transactions in which free choice is absent. A truly voluntary choice is an absolute proof of gain. In those trades, buyers reveal that they assign less value to choices not made, and foregone choices almost always exist, including the possibility of doing nothing. By their very nature, voluntary transactions are mutually beneficial. So why do people feel cheated so often?

Free To Lose?

Yes, we are free to choose and free to lose! But this isn’t about cases in which a product proves defective or quickly becomes obsolete. Nor is it about making a purchase only to learn of a discount later. Those are ex post events that might have been impossible to foresee. Here, I refer only to the decision made on the day and hour of the purchase, including any assessment of risk. 

A recent study confirmed a pervasive “loser’s” mentality in transactions: “Win–win denial: The psychological underpinnings of zero-sum thinking”, by Samuel B.G. Johnson, Jiewen Zhang, and Frank C. Keil. They also found that people judge the seller as the “winner” in most transactions. The authors considered a few explanations for these findings discussed in psychological literature, such as socially-ingrained mercantilist attitudes and a tendency to zero-sum thinking.

Roots of “Never-a-Buyer-Be” Phobia

Mercantilism was borne of zero-sum thinking — a belief in a hard limit to total wealth. Under those circumstances, accumulating gold or other hard assets was seen as preferable to spending on imports of goods from other nations. Imports meant gold had to be shipped out, but exports of goods brought it in. 

That uncompromising view led to efforts by government on behalf of domestic industries to stanch imports, and it ultimately led to decline. One nation cannot buy another’s goods indefinitely without corresponding flows of goods in the other direction. Nations gain from trade only by producing things in which they have a comparative advantage and selling them to others. In turn, they must purchase goods from others in which they do NOT have a comparative advantage. It’s cheaper that way! And it’s a win-win prescription for building worldwide wealth.

If You Gotta Have It…

People do have a tendency to regret money spent on things they reluctantly feel they must have. They suffer a kind of advance buyer’s remorse, but it stems from having to part with money, which represents all those other nice things one might have had, covering an infinite range of possibilities. This is the same fallacy inherent in mercantilism. The fact is, we purchase things we must have because they represent greater value than doing without. The phantom satisfaction of opportunities foregone are simply not large enough to keep us from doing the “right” thing in these situations.

The Contest For Surplus

There’s a more basic reason why people feel swindled after having engaged in mutually beneficial trade. The seller collects more revenue than marginal cost, and the buyer pays less than the item’s full “use value”. The latter is the buyer’s reservation price: the most they’d be willing to pay under the circumstances. The seller’s gain (over cost) plus the buyer’s gain (under reservation price) is the total “surplus” earned in the exchange. It’s the surplus that’s up for grabs, and both buyer and seller might view the exchange as a contest over its division. Competitive instincts and thrift being what they are, both sides want a larger share of the spoils!

So there truly is a sort of zero-sum game in play. You can try to bargain to capture more of the surplus, but not every seller will do so, often as a matter of policy or reputation. Or you can spend more time and incur greater personal cost by shopping around. Ultimately, if the offer you face is less than your “reservation price”, you’ll extract an absolute benefit from the exchange. Both you and the seller are better off than without it. You both do it voluntarily, and it’s mutually beneficial. Whatever the division of the surplus, you haven’t really lost anything, even if you have the gnawing feeling you might have been able to find a better bargain and captured more surplus.

Exceptions?

You might think the parties to a stock trade cannot both win. However, buyers and sellers have different reasons for making stock trades, which usually involve other needs and differing expectations. Ex ante, both sides of these trades earn a surplus, unless either the seller or buyer is at the losing end of a previous option trade now forcing them to buy or sell the stock.

There are other cases worthy of debate: buyers in monopolized or captive markets are unlikely to collect much of the surplus. Buyers at an informational disadvantage will gain less surplus as well, and they might incur greater risk to any gain whatsoever. Excise taxes allow government to capture some of the surplus, while government subsidies deliver “fake” surplus to the buyer and seller that comes at the expense of taxpayers. Now I feel cheated!

Beware Marxist Sympathies

Buyers and sellers both benefit by virtue of voluntary exchange. The gains might not be divided equally, but the false perception that buyers always get the “short end of the bargain” is a fundamental misunderstanding about how markets work. It also undermines support for basic freedoms allowing autonomous economic decisions and activity, and it strengthens the hand of statists who would fetter the operation of free markets. Like short-sighted mercantilists, those who would intervene in markets create obstacles to human cooperation and the creation of wealth. In fact, the idea that buyers are always cheated is a classist, Marxist notion. Policies acting upon that bias are rife with unintended consequences: small and large market interventions often strike at property rights, which ultimately inhibits the supply of goods and harms consumers. 

On Bended Knee To the Intolerant Few of

01 Thursday Apr 2021

Posted by in Identity Politics, Politics, Propaganda

≈ Leave a comment

Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , ,

The U.S. Constitution was intended, among other things, to avoid a hazard common to purely democratic systems: a tyranny of the majority. Now, however, we’re threatened by a phenomenon that might have sounded absurd to the founding fathers: a tyranny of the minority. Hassan Nicholas Taleb describes how small, intolerant minorities can dominate the terms under which the rest of a society plays. Taleb discusses a few cases in point from the historical record. Some of these are fairly benign, like the evolution of certain dietary conventions, but the larger implications for a free society are grim. His discussion appears here, but it is actually a chapter of his book, “Skin In the Game”.

In a way, these phenomena are often “squeaky-wheel-gets-oiled” situations, but there’s more to it. Much depends on the cost of allowing an uncompromising minority to have its way. So, for example, the food and beverages we consume are usually kosher, but not many people notice the circled “U” on the label, and they don’t know the difference. That’s relatively low cost. In other cases, people are cowed into believing they’ve been insufficiently sensitive to the grievances of small groups, but they do not fully appreciate the cost (and futility) of proving their compassion. From Taleb:

“How do books get banned? Certainly not because they offend the average person –most persons are passive and don’t really care, or don’t care enough to request the banning. It looks like, from past episodes, that all it takes is a few (motivated) activists for the banning of some books, or the black-listing of some people. The great philosopher and logician Bertrand Russell lost his job at the City University of New York owing to a letter by an angry –and stubborn –mother who did not wish to have her daughter in the same room as the fellow with dissolute lifestyle and unruly ideas.

The same seems to apply to prohibitions –at least the prohibition of alcohol in the United States which led to interesting Mafia stories.

Let us conjecture that the formation of moral values in society doesn’t come from the evolution of the consensus. No, it is the most intolerant person who imposes virtue on others precisely because of that intolerance. The same can apply to civil rights.”

Taleb’s point runs counter to the theory that most forms of governance, either legal or cultural, work best when they reflect broad, prior consensus. He insists, however, that people are often willing to placate the most uncompromising parties. In a tolerant, liberal society, there is a certain willingness to give ground when grievances have a whiff of legitimacy. That’s well and good, but a liberal society may be plagued by the existence of enough saps who just want to get along with more poisonous elements. And those poor saps will find a way to defend their position and become useful idiots.

The intolerant and intransigent minorities get the ball rolling with various grievances. Right or wrong, there are many disparate groups with perceived social or economic grievances. Their determination plays out in agitation of various kinds, sometimes rhetorical and sometimes violent. One way or another, and with the assistance of certain institutions, the grievances (and potential policies to deal with them) may be integrated into the political views of a larger set of sympathetic listeners. To the extent the aggrieved can find common ground with other aggrieved groups, the movement grows.

Some institutions are likely to be more naturally sympathetic to claims of victimhood, such as academia and the press. These institutions are, in a real sense, “grievance aggregators”, along with community organizers of various kinds, and they are capable of accelerating the fire. Then, grievances have a way of becoming enshrined as permanent talking points, all earnest efforts at mitigation aside. Appeasement seems only to invite more demands.

Today, there is a special intransigence on social media that is difficult for many if not most well-meaning individuals to stand up against. You must be “woke” or face social and economic repercussions. The intolerant minority can adopt a number of tactics to gain cooperation. These are often intimations of bad faith including racism, classism, xenophobia, homophobia, transphobia, misogyny, or “bad-think” and “denialism” of any sort. Apparently these are all ripe targets. This potential ostracization gives rise to fear on the part of those who might otherwise think and speak independently.

All this goes for businesses as well, which are only too eager to avoid litigation or offending any and all “stakeholders”, an ever-growing class increasingly unrelated to the firm’s trade. As institutions, many large corporations have fallen well into the fold of wokeness. They attempt to virtue signal to consumers, workers, government, and the “community” in a bid to stay out front. That sets the stage for repercussions in the lives and careers of workers who might fear doxing by an intransigent minority. Just go along with the demands and you’ll be fine. In a version of Stockholm Syndrome, some of the intimidated will convince themselves to adopt the cloak of woke righteousness and signal their virtue! Be a hero! More useful idiots.

And so the intolerant minority wins. Or, a coalition of intolerant minorities and their sympathizers win. Taleb again:

“Clearly can democracy –by definition the majority — tolerate enemies? The question is as follows: ‘Would you agree to deny the freedom of speech to every political party that has in its charter the banning the freedom of speech?’ Let’s go one step further, ‘Should a society that has elected to be tolerant be intolerant about intolerance?’

We can answer these points using the minority rule. Yes, an intolerant minority can control and destroy democracy. Actually, as we saw, it will eventually destroy our world.

So, we need to be more than intolerant with some intolerant minorities. It is not permissible to use ‘American values’ or ‘Western principles’ in treating intolerant Salafism (which denies other peoples’ right to have their own religion). The West is currently in the process of committing suicide.”

This article by Steve McCann struck a chord with me because it describes a culmination of the forces of intolerance: McCann draws a tight comparison between the tactics of the Left, who attempt to represent themselves as champions of the aggrieved, and German National Socialists in the 1920s and 30s. Here is the shared playbook:

  • Exploit racial division;
  • Censor your enemies;
  • Unleash a flood of propaganda and fake news;
  • Exploit class envy;
  • Incite street riots;
  • Exploit events (the Reichstag fire vs. the Capitol “riot”) to legislate one-party rule (the Enabling Act of 1934 vs. HR 1).

This has very much to do with the acceptance of pseudo-realities and outright lies about the state of social affairs, some of which become institutionalized (e.g., “systemic racism”, “follow the science”, “sustainability”, “fair trade”, “disparate impact”, “infrastructure plan”, Modern Monetary Theory, and the meaning of “liberalism”). Individuals frame their lot in relation to a “perfect” society, a utopianism that can’t ever be fully satisfied. “Failure” will always be blamed on elements of the status quo, like capitalism and anyone perceived to benefit from it (except perhaps for those “privileged” agitating against it).

Taleb’s observation that intolerant minorities tend to “win” might be easier to swallow now than it might have been a few years ago. It’s certainly a warning to anyone who might take comfort in thinking our present dysfunction will be fixed when a sensible majority gets good and fed up. They might be unhappy, but most tend to lack sufficient determination to avoid getting cowed by intolerant minorities. Suicide of the West indeed!