Where is the Workers' Country? Samurai Japan?

I have confirming evidence that the only coherent anti-capitalist stand in our Fukuyamist/Grantian age is conservative or reactionary.

I just finished reading the latest from Slavoj Zizek, the too-cool-for-school intellectual leader of academic communism. Zizek's proclaimed goal is to somehow "repeat" Lenin, while acknowledging reality. He rehabilitates Robspierre, Stalin and Mao through the use of the apologist paradox perfected by Chesterton.

Zizek's too smart not to see that it is capitalism that is the genuinely revolutionary force in the world, and that the genuinely mass-based hostility to it arises precisely from this fact. But he doesn't want to do anything as uncool as oppose, say, genetic manipulation of the human germ line. So he retreats into an overtly reactionary fantasy (not that there is anything wrong with that):

In the early seventeenth century, after the establishment of the shogun regime, Japan made a unique collective decision to isolate itself from foreign culture and to pursue its own path of a contained life of balanced reproduction, focused on cultural refinement, avoiding any tendencies towards wild expansion. Was the ensuing period which lasted till the middle of the nineteenth century really just an isolationist dream from which Japan was cruelly awakened by Commodore Perry on the American warship? What is the dream is that we can go on indefinitely in our expansionism? What if we all need to repeat, mutatis mutandis, the Japanese decision, and collectively decide to intervene in our pseudo-natural development, to change its direction?

In other words, the historic task of the left is to stand athwart history, yelling Stop.

Happy Independence Day, America

In the spirit of harmony and friendship, I won't revisit the merits of the whole stamp duty dispute. Suffice it to say that as a descendent of United Empire Loyalists, I agree with Matthew Yglesias.

Canadian fact: According to highest legal authority, there is no single day on which we became independent. (Anyone saying April 17, 1982 should be summarily shot.) Instead, we were in a quantum state of sovereign indeterminancy for 12 years. According to the Court in 1967:

There can be no doubt now that Canada has become a sovereign state. Its sovereignty was acquired in the period between its separate signature of the Treaty of Versailles in 1919 and the Statute of Westminster, 1931, 22 Geo. V., c. 4

Canada Day Thought

Shorter Canadian political elite: Canada is among the most successful societies in the world. It is therefore morally imperative for it to abandon everything that made it that way.

Supply-Side vs. Demand-Side Theories of Liberal Exegesis

"Anti-realist" gives a quantitative version of his charge against Islam:

That said, of course there are still things in the text that a decent Christian will have trouble rationalizing. My claim is just that he'll have lot less trouble than a decent Muslim.

I think "decent" is a bit of a distraction here. I would interpret "decency" to refer to ordinary interpersonal morality, rather than ideology. Plenty of decent people believed and believe in the legitimacy of religious coercion. Some of them were saints. However, decent people can be a political or military threat. What we really want is an ideological transformation such that as many Muslims consider liberalism (broadly understood) as consistent with their ancestral faith as Jews or Christians do now.

If we substitute "liberal" for "decent", then we have a supply-side theory of illiberal religious exegesis. There are four kinds of exegesis of the texts: liberal Christian, illiberal Christian, liberal Muslim and illiberal Muslim, all of which exist, but with a negative correlation between liberalism and Islam. Anti-realist's theory is that this is because it is costlier to produce liberal Muslim exegesis (in cognitive dissonance or some other currency) than to accomplish the same trick for Christianity or Buddhism.

The alternative view would be that the greater relative salience of liberalism in Christianity is demand-, rather than supply- driven. On this view, cognitive dissonance is not a great obstacle to the religious beliefs of most people. For non-religious reasons, Christians want more liberal religious beliefs than Muslims do. If the forces making Christendom more liberal act in the Muslim world, they will (and have) increased the demand for liberal exegesis of the Qu'ran.

What's the deal about Islam?

"Anti-realist" and Marnie Tunay are having an argument about Islam in this comment thread. (As so often happens, the argument is tangentially related to the original subject of the post, which I think was about young offenders.) I wanted to weigh in, and hopefully a new thread will emerge.

Sciency types make fun of academic philosophy, often with reason. But sometimes it really does seem like conceptual work has to be done before we know what we are disagreeing about. So it is here. No one can really dispute that Islam-as-historical-phenomenon involves some unjustifiable violence and sexist oppression. On the other hand, the same can be said of Christianity and Buddhism. Scientific materialists have to explain away Stalin and Mao. Since the decision in WIC Radio v. Simpson, I can even point out that New-Agey Nietzschean post-Christians have some explaining to do.

And, at least in the context of Christianity, I can cite text. In addition to Augustine and Aquinas on religious coercion, there is the OT. Joshua made Mohammed look like a wimp. Opening randomly, I see Josuha 8:24-29:

When Israel had finished killing all the men of Ai in the fields and in the desert where they had chased them, and when every one of them had been put to the sword, all the Israelites returned to Ai and killed those who were in it. Twelve thousand men and women fell that day—all the people of Ai. For Joshua did not draw back the hand that held out his javelin until he had destroyed all who lived in Ai. But Israel did carry off for themselves the livestock and plunder of this city, as the LORD had instructed Joshua.

So Joshua burned Ai and made it a permanent heap of ruins, a desolate place to this day.

So what claim is "anti-realist" making about Islam?

As for Marnie, she claims that the law requires that the person who asserts a claim prove it. That is true -- at trial. But lawyers also have processes for striking pleadings or for giving summary judgment, where the person disputing the claim has to show that it is without merit. Ms. Donohue did not have to prove that her ginger beer had a snail in it, but only that it wasn't crazy to sue if it did. And it seems to me that if you are going to say that certain claims should be subject to legal sanction, you face as big a hurdle.

It also strikes me that one concept that seems completely inconsistent with the Qu'ran is invoking a secular norm of religious equality to prevent examination of the truth claims of religious practices. The idolators the Prophet railed against did not mind the worship of Allah -- they just thought Al-lat and the Sun and Moon should be respected as well. Certainly, no one should be permitted to offend their worshippers. It is easy to imagine the Meccan Human Rights Tribunal levying a stiff fine for aggressive monotheism.

Argumentum ad Hitleum not actionable: blogosphere saved

According to the Supremes it is OK for BC talk radio deity Rafe Mair to compare local anti-gay activist Kari Simpson to Hitler and the KKK. The trial judge thought there was an implication that Simpson approved of violence against gays and lesbians, which she doesn't -- however let Mair off on the basis of the "fair comment" defence. The Court of Appeal disagreed, thinking such allegations are beyond the pale, but the Supremes tell us that we might as well get used to unregulated twenty-first century discourse, because they're not going to do anything about us. Godwin's Law is not the law in Canada.

I tend to agree with the concurring justices that when a loudmouth compares another loudmouth to Hitler there really is no defamatory implication that the compared loudmouth wants genocide. But maybe I spend too much time on blogs.

Presumably, if there is an analogy between defamation against individuals and "hate speech" provisions about identifiable groups, then comparing Islam to fascism would be OK. Unfortunately, there is -- as yet -- no doctrine of fair comment in the tribunal jurisprudence.

Religion of Peace?

In the comments, "anti-realist" argues it is false that Osama bin Laden's actions are contrary to Muslim principles.

I respond:

The trouble with your point is that it is TOO realist about "Islam" as an entity. When someone says, "Bin Laden has nothing to do with real Islam", they are not making an empirical assertion. They are engaging in a speech act. They are saying, "Muslims ought not to engage in violence against innocents, and those aspects of the Islamic tradition that assert this should be emphasized in comparison to those which do not."

Saying this speech act is false is like saying "give peace a chance" is false (or "unite against the oppressors of our people" is false). It is a category mistake.

The real objection to Bush is that "Bin Laden is not a true Muslim" is a speech act only available for an insider.

As Uncle Karl would say, "The non-Arabic-speaking bloggers have interpreted Islam in various ways. The point, however, is to change it."

Posner Slams Black

Posner's Opinion in the case of US v. Black, Conrad is here.

B.C.E.

It appears that the forces of good (and shareholder value) prevailed in B.C.E. It's not up on the University of Montreal Website yet.

O.B.G. Limited Again

A while back, Andy suggested I should comment on the House of Lords' decision in OBG Limited. I did read it, but then got off on a tangent about inducing-breach-of-contract, which is as tangential to the main decision as products-liability law is to the plot of Strange Brew.

The classic common law is a very market-oriented thing. And so, in general, it does not protect against competitive injury. And If A failed to perform her contract with you, it encouraged you to sue A, not somebody else who may have caused the dealbreaking. However, there are murky exceptions in the form of the "economic torts," most of which were used to deal with the nascent British Trade Union movement, although the odd shady opera promoter was manhandled as well.

Lord Hoffman does a bang-up job of going through the cases and extracting the principle that P can sue D if D intended to harm D and did so using illegal means. Although that tedious British analytic philosophy comes in handy as his lordship sets out what "intention" means here, with much less fuss than our courts are prone to.

Lord Hoffman and Lord Nicholls of Birkenhead get into a bit of a set-to over the scope of illegal means. Lord Nicholls wants to include any violation of statute, while Lord Hoffman is only interested in common law wrongs against third parties. So if I decide to improve my share of the widget market by scaring your customers with guns, or blowing up your suppliers' widget factory, Lord Hoffman would let you sue me. But if I just violate the EU Widget Manufacturing and Distribution Directive, I won't face worse than the penalty the public law has in store for me.

The Pithlord agrees with Lord Hoffman here. If something that was legal at common law is made illegal by the will of the politicians, then it is to the will of the politicians we should look for the consequences. If they didn't think to put in a civil right of action, then there is no reason for one. In Saskatchewan Wheat Pool, our highest court (rightly, in my view) rejected the idea that breach of statute was inherently actionable. However, Sask. Wheat Pool also says that compliance/non-compliance with a regulatory standard can be presumptively persuasive evidence of whether the defendant acted "reasonably". So too, it may be that some modern statutes (at least those that have clear victims) can help give content to what is trespass, battery or assault. With that caveat, though, I'm on Lord Hoffman's side.

On the other major disagreement, on whether conversion can apply to choses in action, I have to prefer Lord Nicholls. OBG Ltd. was mistakenly put into receivership: the defendant took over all its property and all its contractual rights. The question was whether OBG could sue for damages. If someone takes your property (even innocently, but without your consent), then you can sue. What about "taking" your rights under contracts? It seems to me that these are essentially the same: they are my stuff. Only real law nerds even know whether bank deposits, for example, are contractual rights/choses in action or personal property. As Lord Nicholls points out, if intangible rights are represented in a document, and the document is appropriated, then there can be a suit in conversion. On this point, the majority of the Law Lords seem to just engage in reactionary fear of any change at all, rather than reasoned response.

Donoghue v. Stevenson: What was in Lord Atkin's water?

Donoghue v. Stevenson is maybe the most famous common law case ever (even though it wasn't under the common law, arising as it did out of Scotland, and wasn't really a case, being decided on the pleadings). It inspired the sub-plot in Strange Brew, in which Bob and Doug attempt to get a case of beer by pretending they found a mouse in their stubbie (this leads them to get a job at Elsinore Brewery, leading in turn to their defeat of a plot by Max von Sydow to take over the world through psychoactive substances in beer. Psychoactive substances in fried chicken was the plot in Undercover Brother.)

Miss Donoghue alleged that she found a snail in a bottle of ginger beer manufactured by the defendant. The House of Lords overruled a 19th century precedent holding that manufacturer liability for latent defects causing personal injury could only be brought in contract -- thereby screwing over ultimate consumers who rarely had direct contracts with manufacturers. The Pithlord does not dispute the justice of this result.

However, I have never been fond of Lord Atkin's attempt to generalize. He shows a marvelous sense of Biblical rhetoric, but demonstrates serious conceptual confusion of the kind one would expect from an American judge.

Rolling the tape [1932] A.C. 562 at p. 580:

At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

In this short passage, Lord Atkin distinguishes and then confuses both acts and omissions and moral and legal duties. He uses the term "injury," which sounds like harm-regardless-of-right, but brings to a lawyer's mind the phrase "damnum sine injuria ," which emphasizes that some interests are necessarily not legally protected. He presents the remarkable (and false) claim that there must be a general formula for liability in negligence as something he will at present content himself with. It is also wrong that the legal duty is always more limited than the moral one, since it is sometimes more extensive. As an attempt to make a general formula for negligence law, Lord Atkin's dictum is even worse than Anns.

So why does the passage resonate as much as it seems to? I think it is because of the interesting reversal of Christian theology. There is an overt reference to the tale of the Good Samaritan, and an implicit one to the contrast between law and grace in Romans. The relationship with Jesus's parable is interesting. Atkin invokes the universalism of Luke 10 in favour of an expansion of tort liability, while recognizing that as a coercive force, the law is always on the side of Pilate.

Photograph of snail from macrophile.

Update: The confusion between moral and legal duties arises in the definition of neighbours as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation..." "Ought" here either means a moral "ought" or a legal "ought". But if it is a moral "ought", then he has just confused moral and legal duties again. And if it is a legal "ought", the definition is circular.

The same sentence has him go back and forward between "affected by my act" with no mention of omission and "the acts or omissions which are called into question." It is surely correct that omissions can sometimes give rise to liability. It is surely wrong that they give rise to liability whenever acts would.

Whither Red Toryism, or Does Reaction Have a Future?

Russell Arben Fox has done what the Pithlord has not, and read the Bouchard-Taylor report. Keeping up a somewhat Canadian theme, he has interesting reflections on Red Toryism in light of all the "whither the right" talk going on in the Great Republic right now.

One thought I had (and it is hardly original) is that we do live in George Grant's world as well as Francis Fukuyama's in the following sense: the only meaningful opposition to capitalism is conservative or reactionary. It is easy enough to oppose capitalism on the ground that as a result of its subversive and out-of-control dynamics, everything solid melts into air. It is absurd to oppose it on the grounds that it fetters the development of the forces of production.

We can be conservatives -- upholding some existing institution (possibly even biological humanity) against the trinity of individualism-science-markets. We can be reactionaries, deciding it is all too late anyway. Or we can be libertarians and decide the future's so bright we have to wear shades.

At the same time, it does not seem that any viable political coalition can be based on being consistently conservative or consistently libertarian. The trade union and lifelong marriage both seem doomed, but no one is really going to defend or oppose them both (except for intellectual circles as politically irrelevant as the reactionaries who refuse political engagement on principle).

Things Look Grim for Lord Black

If Posner hammers his lordship on the appeal, it will be pretty difficult to claim he was done in by anti-capitalist extremism.

Supremes Reverse Onus, Claim Societal Consensus

The Pithlord is two weeks behind in reacting to R. v. D.B.. When seventeen, D.B. got in a fight with another adolescent male, and left him for dead. He was charged with manslaughter. Five of the Red Nine struck down the presumption that young offenders will face certain serious violent offences in adult court. The rule now is that the Crown carries the burden of persuading a judge that adult court is the appropriate place.

My excuse, if any, is that the argument seems predestined to follow a very familiar series of steps. Populist critics will point out that the electorate views the current structure as too lenient on young offenders. The Court Party will respond by saying that the rule of law and individual rights are too important to be left to the hoi polloi. We seem to have an unresolvable dispute between government by experts and government by public opinion. All too familiar for any country that has judicial review of legislation. The tendency is just to move along, like you would when you see some hip hop kid in a mall simulatenously answering his cellphone and yelling at his girlfriend.

Except if you read the majority judgment, you come upon a paradox. The Court itself claims to be acting on the basis of a "societal consensus" -- in other words, public opinion. We are told that it is the social belief that youth and inexperience is a mitigating factor in criminal culpability that justifies what the Court is doing. The Charter itself is silent on the matter.

It is probably true that the weakest form of the principle of youth-as-mitigating-factor would get a large amount of support. The difficulty with this move is that the recognition of youth as a sometimes-mitigating factor is compatible not only with the system of presumptive offences, but even with abolishing the separate youth system altogether. A person could coherently think that youth is mitigating for minor crimes, but not for major violent ones. And since manslaughter has no minimum sentence, even a judge in adult criminal court would be entitled to take into account D.B.'s tender years and raging hormones.

What we (including Supreme Court of Canada justices) disagree about is not the principle, but the weight that should be given to that principle. On that question, the empirical evidence is that the people think too much weight is given to that principle, relative to the competing considerations of retribution, deterrence and so on.

More generally, the fact that there is a consensus that X (pateint autonomy, youth-as-mitigation) is an important consideration is never evidence that there is a consensus that X is the only consideration. And the courts themselves never treat X as the only consideration: they always end up "balancing" it against something else. But if they are "balancing" and the politicians are "balancing", why are the unstable political coalitions of nine lawyers in Ottawa entitled to greater respect than the unstable political coalitions of ... elected politicians?

That's not just a rhetorical question. In some cases, there is an answer -- democratic political processes may be inferior to oligarchic forensic processes on certain important questions.

The trouble is that the judiciary tends to intervene precisely where it is their own work that is being reviewed. The public is unhappy with criminal sentencing, particularly of juveniles, because it is done badly and erratically.

The Census Results

Let's imagine two countries with equal populations of 100,000: Richistan and Pooritania. They have the same income distribution, except that at each point on the distribution, individuals in Richistan have twice the income of people in Pooritania. The 1000th richest person in Richistan makes twice as much as the 1000th richest person in Pooritania and the 90,000th richest person in Richistan makes twice as much as her counterpart in Pooritania.

Let us suppose that over the next 20 years, 20,000 people, randomly distributed across the income distribution, move from Pooritania to Richistan. As a result of their move, their incomes go up by 50%.
Everyone else in Pooritania and Richistan just gets an increase of 5%.

What would the statistical result be? Median wages in Richistan would stagnate, and the incomes of the lowest quintile would go down. Much like the census results. But everyone would be materially better off.

Some in Richistan might still object that it has become more unequal (or, equivalently, more diverse). These objections are not necessarily unreasonable -- there are costs as well as benefits of greater diversity. But the objections are to the presence, rather than the existence, of poor people.

Lots of Interesting News

But no time to write much about them.

*The Bouchard-Taylor report is released. (You can get an abridged English version here.)From the Globe account, it seems they have taken a firm cosmotarian stance, reminiscent of Taylor's old antagonist, Pierre Elliott Trudeau. They are about to find out how Lord Durham would have felt if he had cared about French Canadian opinion.

*The always-dangerous concept of fiduciary obligations by corporate officers to bondholders has, as Malcolm X or the Reverend Wright would put it if they were corporate law nerds, come home to roost. The Quebec Court of Appeal stopped the takeover of BCE by the Ontario Teahcers Pension Plan, a $35 billion transaction. BCE is trying to get to the Supremes before June 30, which would be virtually unprecedented. (The only example I can think of where the red nine tried to move that fast was the misguided decision to give leave in the Tremblay-Daigle dispute over whether a biological father can prevent an abortion.)

*In Khadr, the Supreme Court of Canada ruled that agents of the Canadian government operating in foreign parts are only exempt from the requirements of the Charter where they are acting in accordance with Canada's international law obligations. The SCC relied on Rasul and Hamdan to conclude that Guantanomo Bay was operated contrary to the Geneva Conventions at the relevant time. (Of course, the Bush administration was loud and proud in saying that the Geneva Conventions didn't apply.) This fits with my thinking that the SCOTUS's decision would inveitably embolden the judiciaries in other Western countries to help shut down the Bushian war on terror.

Update: I wonder if someone better informed about African-American culture than myself could explain what is so threatening about chickens.

Why Cap-and-Trade Schemes Ought to be Giveaways to Business

Megan McArdle thinks that, morally, we should allocate rights to pollute under a cap-and-trade system by auction, rather than by giving the rights proportionately to those who are already emitting. However, she thinks giving the rights to incumbents makes sense politically.

I disagree about the moral case. "Prior in claim is prior in right" is a precept every legal system uses. By hypothesis, the incumbents had every right to emit prior to the cap-and-trade being put in place, and they made investment decisions in reliance. Allocating a valuable cap-and-trade permit is just providing compensation for an expropriation for public benefit, in just the same way that making private land with an endangered species into a park calls for a cash payment for the value of the land.

Also, from a social-democratic perspective, an auction would probably have the features of a regressive tax. There is no clear distributional impact of giving incumbents tradeable rights to emit.

The one downside is that if you allocated rights to emit to incumbents, and everyone knew that's what you were going to do, then you would create an incentive to increase emissions now. So you should use some past year before the cap-and-trade scheme was seriously contemplated.

Update: That commie Greg Mankiw disagrees.

Repugnance: Wise or Dumber Than a Bag of Hammers?

Nothing's more uncool than outrage at insensitive (or "insensitive") comments, so I'm going to try to get to a bigger point about Reagan's statement about digestive diseases. One of the more admirable liberal/progressive impulses is suspcion of disgust as a basis for moral sentiments. Martha Nussbaum recently wrote a book on the subject, although it clearly goes back at least to Mill and probably to the New Testament's solicitude for lepers, prostitutes and agents of the Roman imperial fisc. Here at least is a meta-ethcial idea that has had real impact: we shouldn't confuse moral reactions with aesthetic ones, and we should realize that those who disgust us are just as human as healthy kinfolk. The idea is meta-ethical because it cuts directly against the moral intuitions natural selection in fact endowed us with. In fact, the liberal/progressive tells us we should try to undo our instictive repugnance when it conflicts with a more rational understanding of morality.

Leon Kass is famous for articulating a conservative opposition to this progressive meta-ethical program. Repugnance, he tells us, is wiser than we are. And surely there is at least something to that. Just because we can't give reasons not to do something is not itself a reason to do it, or to make it socially acceptable.

But how do Kassians react to something like digestive disease? Nothing is as ingrained in human nature as that emissions of the digestive tract are simultaenously funny and disgusting. Every parent knows that. You have to train people to take a utilitarian or sceintific view of such things -- fortunately, such training is usually possible. Part of the symbolic role of heads of state is to tell people that they should, in fact, ignore repugnance.

How do Kassites distinguish these cases.

Update: Steven Pinker on Leon Kass and human dignity here. Pinker isn't entirely reliable about people he disagrees with. His key point -- that restrictions on consensual losses of dignity have to be justified by clear empirical proof of tangible harm -- is underargued, while he spends a lot of time making it sound like having Catholic buddies is a bad thing.

Let's Be Liberal-Progressives and Laugh at People's Diseases

I have always had a fondness for ex-pat Scott Lemieux, who has been very kind to the Pith and Substance enterprise. And I like his co-blogger, Rob Farley, although I do not share his fascination with battleships. I found their subsequent co-bloggers, "d" and Bean, to be predictible and boring American liberals, but figured mediocrity needs representation too.

Still, I am a bit amazed that anyone over the age of five would find digestive diseases funny. One of my family members has suffered terribly from colitis, and I have known someone who died from Crohn's. A big part of what makes these diseases terribly is the social humiliation. And the juvenile attitude of people like "d" reduce their ability to get the kind of scientific funding other diseases attract -- although the truth is that there are few ways of dying prettily.

Adventures in Speech Act Theory

Hillary Clinton said:

I have a much broader base to build a winning coalition on," she said in an interview with USA TODAY. As evidence, Clinton cited an Associated Press article "that found how Sen. Obama's support among working, hard-working Americans, white Americans, is weakening again, and how whites in both states who had not completed college were supporting me."

"There's a pattern emerging here," she said.

Leaving aside the probably-unintended implication that non-whites are not "hard working", what is the objection here? After all, what Ms. Clinton cites is a fact. She won the white vote in both states.

Similarly, it was a fact that the secession of Quebec was defeated in 1995 by the ethnic vote. But M. Parizeau was widely criticized for getting drunk and angrily pointing this out.

I'm never quite sure how sincere these questions are, but they do provide for a good illustration of how unimportant the truth sometimes is. (Another example of the unimportance of the truth, dear to the heart of the Clintons, is the deliberately misleading statement under oath. But there will be time enough to return to that.)

All utterances include the pragmatic implicature that they are relevant. For politicians, this means that you have to add to everything they say, "And that's a reason you should vote for me." So when Ms. Clinton cites the fact that she won the white vote, she claims not only that she won the white vote, but also that that constitutes a good reason that the audience of her remark should vote for her.

In this case, the audience is Democratic superdelegates. She is therefore saying that they should not pay attention to the vote totals, but to the white votes.

It will be said in defence that she is not saying that the superdelegates should do that because white votes are in principle worth more than black ones, but because the white vote is needed in the general election, while the black vote can be taken for granted. That claim might be false if the superdelegates take her advice. But further, the claim is objectionable because there is no difference between saying someone should not vote for a black candidate because other people won't then there is for any other reason. Acting negatively towards someone because of their skin colour just is the objectionable conduct, and the reasons for that conduct are irrelevant. George Wallace is just as much a segregationist because he was motivated by political ambition as he would have been if he were otherwise motivated.

Clinton is advocating an explicitly discriminatory course of action on the Democratic Party. She is in effect calling for the repeal of the Voting Rights Act and the Fifteenth Amendment. Since the former is the proudest achievement of her party in the twentieth century, she is deserving of criticism.

Shameless VP Thread

OK, there are few things less important than who snotty Canadians think the Presidential candidates should choose as their running mates, but a man has to think of his Google Ad revenues.

What groups are up for grabs? Middle aged women in industrial states, particularly if Catholic, and middle-income Hispanics. But you can't forget party unity.

My picks:

Obama has to go with Hillary Rodham Clinton, unless she's taken.

For McCain, I'd say Condolezza Rice, although it would be way better if she were Hispanic. Or at least married and Catholic.

Crystal Ball -- 2012

Mike Huckabee sucks up to some Catholic theocon intellectuals, puts together an appealingly Christian Democratic policy platform, and wins the Republican nomination. If the economy's bad, he wins the White House too.

Some Good Advice

I'd say the chances of the Obama campaign taking advice from Steve Sailer are low, but you never know what might happen to a meme when it's out there.

Sailer's dead right. The person Obama most needs to distance himself from is his younger self. What Obama needs is a "I used to be a radical... but then I had kids" speech. If he does that, he wins the election in November. If he doesn't, it's Presiden McCain.

Actually, I imagine such a speech would be quite good.

What Would Have Happened if Bear Stearns Had Been Allowed to Fail?

The justification for public intervention to save Bear Stearns was that failure to do so would have wrecked the derivative market. Bear's counterparties would have had no one to fulfill their contracts. Everyone would have to monitor credit risk. Cats and dogs would start living together. Etc.

No one supported the bailout more than the Economist. But their latest leader points out that the problem does not exist for futures or less exotic securities, because these are traded on exchanges, and the exchange is the counterparty. It monitors the credit worthiness of those who get to trade on it. If derivatives were traded the same way, then the problem wouldn't exist. The Economist claims there are problems with this, since some derivative contracts are too specialized to provide for a liquid market.

But if Bear had gone down, then the participants would just have to balance the pain of monitoring the creditworthiness of their over-the-counter counterparties vs. the loss of specialization of participating on an exchange. Bear's failure would be a signal that credit risk was a bigger deal than everyone had thought. But that was just the right signal.

The Fed's intervention exposes the US taxpayer to big losses, increases moral hazard and will inevitably mean a lot of costly regulation. Sometimes it's just time for a bear to die.

Thats What I'm On About, Innit?

From a letter in today's Globe

If we are to conquer racism, we must attack it - no matter which side of the racial divide. I have no doubt there are white voters who will not support a black candidate. That is racism. I also have no doubt there are balck voters who are attracted to Barack Obama's candidacy simply because he is black. That, too, is racism.

So racism is voting for people you have a cultural affinity with and against those you don't. In other words, it is another name for democracy.

There are actually few black voters who would always pick the black candidate against the white, and few whites who would always take the white against the black. If we had the immensely-entertaining-if-alarming prospect of an Alan Keyes vs. Dennis Kucinich race, I have no doubt that Mr. Keyes' support would be paler than Mr. Kucinich's.

However, let's not kid ourselves. Identity isn't the most important thing in politics. It's the only thing. Always has been, always will be, at least until the Son of Man returns in glory. Pronouncing those on the other side of whatever divides have become salient "racists" is psychologically satisfying, but ultimately stupid.

Absence of Evidence Is Too Evidence of Absence (Usually)

To its credit, the wonkosphere has been atizzy about the fact that the three Presidential candidates have all endorsed the scientifically untenable view that vaccination causes autism, or at least the idea that there is a genuine controversy. (Canada has had its own moral panic in regard to BPA and our politicians have reacted with similar intergrity and respect for science. Long story, short: babies will be protected from a non-existent health problem by giving them breakable glass bottles.)

Inevitably, some smartass shows up in the comments box and points out that none of the empirical studies prove the lack of a link. Rather, they just don't demonstrate a link. And then the smartass inevitably says, "Absence of evidence isn't evidence of absence." (These are always the same dudes who tell you that "causation isn't evidence of correlation" and that Karl Popper is relevant to some matter at hand.)

B is evidence of A if p(A|B)>p(A). In other words, if your belief that something is the case is rationally stronger once the fact is in than it had been before, you have evidence.

Bayes theorem tells us that p(A|B) = p(B|A)p(A)/p(B) where all quantities are greater than 0 and less than or equal to 1.

Let X be that there is a causal relationship between autism and vaccination. Let Y be that there is evidence of such a link after a number of methodologically sound studies.

There is evidence of absence if p(~X|~Y)>p(~X)

p(~X|~Y)>p(~X) iff. p(~X|~Y)/p(~X)>1

By Bayes' theorem, p(~X|~Y)/p(~X)=p(~Y|~X)/p(~Y)
Therefore, there is evidence of absence if p(~Y|~X)/p(~Y)>1 or, equivalently, if p(~Y|~X)>p(~Y)

The absence of a causal relationship between autism and vaccination is never going to make it more likely that there will be evidence of such a relationship. So the only plausible case where p(~X|~Y) will not be greater than p(~X) is if p(~Y|~X)=p(~Y).

In English, the absence of evidence is evidence of absence of a link or an entity when it is more likely that there will be no evidence if the link or entity doesn't exist than if it does. In better English, if we expect that something will have observable effects if it exists, and it doesn't have observable effects, it probably doesn't exist. The stronger our prior belief that something would, if it existed, have observable effects, the more absence of evidence is evidence of absence.

We will expect very, very, very small causal links out there in the world not to have empirical effects in ordinary studies. If exposure to the polio vaccine raises your baby's autism risk by one billionth, we'd never know. However, very, very, very small causal links between exposure to a chemical and bad health outcomes just aren't worth worrying about. To be more precise, no matter how risk averse you may be, very small risks are not worth any cost, certainly not the cost of risking a polio epidemic. As the hypothesized risk gets larger, the evidence of absence from the existing studies gets stronger, so that we could in fact state a level of risk we are highly certain (19 times out of twenty) is the upper bound of the actual risk.

You could say the same thing about God. If your conception of God makes (if God exists, there would be evidence) reasonably likely and there is no evidence, then that counts against your conception of God.

Late Thoughts on "Bittergate"

Unless you are going to just accept the democracy as it wonderfully is, you need a concept of false consciousness.

If we are animals whose cognitive powers arise from natural selection, we must be subject to radical false consciousness.

The Leninist error is not the doctrine of false consciousness, but the belief that the Leninist is free from false consciousness.

The only way anyone could be free from false consciousness is if something that transcends history somehow made itself immanent in history, and set up the conditions for freeing us from false consciousness.

Because we cannot really be sure that there was something that transcends history that made itself immanent in history, we cling to politics.

However, if we are halfway reflective, we must know that our side in any political controversy is as steeped in false consciousness as the other side.

Pennsylvania Crystal Ball

Lasting a little longer than the World Wars, and not quite so long as the rivalry between the Papacy and the Holy Roman Empire, the Pennsylvania primary will be over tonight.

I'd say Clinton by 9 points.

Confound Their Politicks

Ross Douthat defends the practice of asking politicians about their relationship to their flag pins, rather than their health care plans, thusly:

Or cast your mind further back, to 1992, and consider something as seemingly insubstantial as the controversy over Bill Clinton's draft-dodging - or something less substantial still, like the mini-controversy over Hillary (Rodham) Clinton's now-she-uses-it, now-she-doesn't approach to keeping, or not keeping, her maiden name. I think you can make a pretty strong case that Clinton's peculiarly Boomerish relationship to the military brass - the mix of suspicion, condescension and ignorance on both sides - had a more decisive impact on American foreign policy in the 1990s than, say, what Clinton-the-candidate said about China policy in the run-up to the '92 vote. And while there's a sense, obviously, in which nothing could be further from the actual work of governing than the question of whether the First Lady of the United States has her husband's last name, in hindsight I think that the mix of echt-feminist principle and political opportunism that Hillary displayed in her changing choice of last and middle names probably told us as much about her approach to politics than most of the speeches she gave in the course of the campaign against George H.W. Bush.

Douthat admits that it is pretty hard to reliably make these inferences, though, so I'm not sure what it proves. Still, it is hard to deny that people talk a lot about the "personality" of their politicians, although I doubt it has a big impact on voting behaviour.

Of course "personality" =! personality. I have known a few politicians, and have known a lot more people who know politicians. And one consistent result is that their personalities, as perceived by those who know them, bear no resemblence to their popular personas. Those the public think of as aloof aren't. Those the public think of as smart aren't. Those the public think of as nice aren't. I wouldn't go so far as to say there is a negative correlation between public persona and actual personality, but there is definitely a zero correlation.

On the other hand, there is actually a pretty strong correlation between election platform and what is implemented in office -- the reason we remember it otherwise is because the exception is more prominent mentally than the rule.

Ross's post just shows the benefit of constitutional monarchy. I don't doubt the existence of a hunger for a relationship with the persona of public figures, whether positive or negative. It just should be supplied by hereditary monarchs and their families, not by politicians who should be considered unglamorous professionals, like dentists. The increasingly-presidential style of Canadian politics shows how much we have lost as the Liberals have undermined the monarchy, but the recent US election does at least provide a warning of how much further there is to go.

Fixation Thesis in Anglo-Canadian Law

Larry Solum's "fixation thesis" was always considered obvious in Anglo-Canadian law. From Maxwell's Interpretation of Statutes:

It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near the time when it was passed may reasonably be supposed to be better acquainted than their descendents with the cicumstances to which it had relation, as well as with the sense then attached to legislative expressions.

The fixation thesis was the source of the maxim contemporanea expositio est fortissima in lege. The contemporaneous exposition need not be legally binding. If Lord Coke thought a statute meant X, then that was evidence it meant X, even when legislative history could not be admitted for interpreting recent statutes.

The phrase "circumstances to which it had relation" might seem to indicate an "expected application" theory of meaning. However, the English courts only applied the contemporanea expositio principle to very old statutes (more than a century) for which it could reasonably be assumed that linguistic change in the semantics of words had taken place: Campbell College, Belfast v. Commissioner of Valuation for Northern Ireland, [1964] 1 W.L.R. 912 (H.L.) at p. 941. So the expected application of long ago was only relevant to the semantic/intensional meaning that could be inferred from it.

Interestingly, at a time when stare decisis was still considered absolute, it did not apply to mistaken statutory interpretations on constitutional grounds.

Subsidizing Babies Works

According to research from Israel.

Is There a Future for Originalism in Canada?

Larry Solum has posted a lengthy paper defending "semantic originalism" as the way to interpret (but not construct!) a written constitution.

The upshot is that originalism is right, but doesn't matter nearly as much as everyone used to think.

As Solum tells it, semantic originalism involves four claims:

1. The fixation thesis. The semantic meaning of the constitution (what is says, not what it does) is fixed at the moment it is adopted. Linguistic change since 1867 does not change what the BNA Act means.

Importantly, this does not imply that change other than in the meanings of words since 1867 will make no difference in how constitutional cases will be decided.

2. The clause meaning thesis. What matters is not what the authors of the constitutional text intended, but what a competent reader at the time would understand. Competent readers might be the general public, politicians, lawyers or possibly different groups for different clauses.

3. The contribution thesis. The meaning of the Constitution has some effect on the law of the constitution. Not necessarily a big one, though.

4. The fidelity thesis. We ought to respect the law, including constitutional law, unless there is a good reason not to.

Let's take the facts of Edwards v. Canada, [1930] A.C. 124 (P.C.) to see how this plays out. The British North America Act, written in 1867, permitted the Governor General to name "qualified persons" to the Senate. In 1867, women, including peeresses in their own right, were under a legal disability from voting in Parliament.

The Privy Council decided that women could be Senators. It could have done so by referring to the meaning of "person" in 1930, by referring to a secret intention of John A. MacDonald to have women as senators, by deciding that the constitutional law had changed in the interim or by deciding that excluding women from the Senate was too unjust a law to obey. If you attended U. of T. law school, you would be forgiven to think that that is what they did, although of course, they didn't.

The Constitution makers in 1867 presumably thought this disability would continue. However, as the Privy Council decided, the term "person", if unqualified, included women. Even if it was taken more narrowly to include only individuals with legal capacity, by 1930, married women had such capacity and therefore had become "persons," although they would not have been sixty years earlier. The Privy Council was aware that if the BNA Act had used the phrase "qualified men", then it would clearly be saying that women could not be Senators, regardless of whether that was a just result.

Solum distinguishes between "constituional interpretation" (which derives the meaning of the text) and "constitutional construction" (which is what judges do when the meaning runs out. Most cases are decided at the construction stage.

Solum says that "constitutional construction" involves vagueness and pragmatics (meaning of utterance, rather than utterance-type). Here I would tend to disagree. Pragmatics about the constitutional utterance itself go to interpretation. We know that the "United States" means the United States of America because of whose constitution it is, just as we know that "I did it" refers to the Pithlord because of who said those words.

Where vagueness goes is more of a matter of choice, but vaguness definitely does not exhaust the post-interpretive issues of constitutional litigation. The issue in constitutional construction is not usually what side of a vague line a statute is on, but whether certain social/moral facts are true. Whether lethal injection is "cruel and unusual" turns on the social fact of whether there is a less painful method to kill people and the moral fact of whether killing people that way is cruel. Whether the Ocean Dumping Control Act interferes with property and civil rights within the province depends on whether ocean dumping is a trans-border externality that requires a regulatory scheme to address. Whether the pre-1988 abortion law is contrary to the principles of fundamental justice depends on whether the tribunals it set up were unbiased and reasonably speedy.

Solum's form of originalism may not matter very much north of the border. In the Candian case, since our most controversial constitutional provisions are just over 25 years old, there has not been any linguistic change for the fixation thesis to operate on. Almost none of the Charter decisions turn on the semantic meanings of the words.

The exception may be those provisions where the words arguably had a "term of art" meaning in 1982. The critical example was "principles of fundamental justice," which had acquired among lawyers a purely procedural meaning as a result of previous Supreme Court decisions. Unfortunately, in 1985 when this provision was considered, we did not have a sophisticated originalism up here, and the Canadian courts would have been naturally resistant to Reaganite terminology.

The Post-Modernist and the Dinosaur

In response to the my defence of post-modernism, "Antirealist" asks two different questions:

Are you saying that prior to the time when people grasped the concept 'living thing', there were no living things, or no facts about whether, say, algae is alive?

The answer to the first is "no" and the second is "yes". On the plausible assumption that bacteria have no concept of life and death, there were innumerable (if yucky) living things before there was a concept of "living thing." However, there were no facts about living things, at least not if facts are true propositions. You can't have propositions without concepts, so you clearly can't have true propositions without them.

It may be that there is now a fact about whether there were bacteria 4 billion years ago. But there wasn't back then.

Update: "realist" says, I'm assuming you'd agree that the truth of straight empirical propositions like this one depends on goings on in the world

Here is where we might locate the difference. I would more or less endorse Foucault's views on this issue. Empirical propositions do not really stand on their own. They are situated either in a science (or other specialized discipline like engineering, accounting or law) or as part of common sense. In other words, without all the background that makes up the science or or other technical discipline or common sense (collectively, "discourses"), the proposition wouldn't be meaningful, and therefore wouldn't be capable of being true or false.

"Discourse" may be a misleading term because Foucault confirms that the discourse embodies both linguistic and non-linguistic elements. By definition, *empirical* discourses use some physical interaction with the extra-linguistic world as part of their way of determining whether propositions are true or false. A proposition in chemistry has to lead you to some lab experiment that verifies or falsifies the proposition (or, at very minimum, raises or lowers your Bayesian prior about that proposition).

So, yes, the truth of a proposition in an empirical discourse depends on extra-linguistic goings on in the world. But what goings on it depends on is part of what makes it the discourse it is. Which external events trigger truth/falsity depends on the discourse, not the external world. And until the discourse comes into being, nothing "out there" in the world has any effect on the truth or falsity of any propositions.

What's interesting about all this is that the production of new concepts is a historical event. It occurs because someone sees the new concept as useful and others agree. Figuring out why they see the new concept as useful depends on figuring out what problems they think the new concept helps them solve. And figuring out why other people oppose the new concept depends on figuring out what new problems it creates for those people. In other words, the rise or decline of a concept is a political event.

Some common-sense concepts (like the distinction between living and non-living things) are so basic to the human condition that it is hard to see them as politcal. But they aren't political in the same sense that a completely settled issue of public policy (like whether the Stuart line will be restored to the throne or who will get Alsace Lorraine) isn't political. No one has an interest in fighting about it. And the concepts of a technical discourse usually aren't contested except by the participants in the technical discourse, who only contest the ones on the margin.

But then there are concepts like "racism", which are contested, and for which understanding the contest requires suspension of worrying about whether it is true or false that A is a racist.

We Have Nothing to Fear But FIRA Itself (2): The Tory Edition

Sigh. Just what we need in a global economic crisis. Stupid protectionism. This would never happen if Stephen Harper were Prime Minister.

Bastarache Resigns

Mr. Justice Bastarache has decided to call it quits. This gives the Tories the chance to fill the Atlantic seat on the Supreme Court.

The only reasonable candidate that the general public is likely to have heard of is Clyde Wells, and he seems like a highly contrarian choice for a Conservative government seeking to make inroads in Quebec. So I guess we will just have to see.

My "Racism" Problem and Ours

Post-modernism comes in for its share of ridicule on the Internet. And some of it is deserved: one should only read Jacques Lacan, for example, firmly understanding that most of the time he is pulling your leg. And while I am second to no one in demanding that the world recognize Mao as morally equivalent to Stalin and Hitler, when undergraduates respond to every normative or positive statement with "That's just their culture, man", I sympathize with the idea of having them spend some time doing farm labour.

But there was an important point underlying all of the bafflegab and French pseudo-profundity. While there is nothing inherently difficult about distinguishing a true proposition from a false one, propositions are made from concepts. And concepts are neither true nor false. As the pragmatists know, they are either useful or not useful. And as the pragmatists tended not to emphasize, something isn't just useful in general, it is useful for somebody who wants to do something. In other words, the process by which concepts arise and die is a political process. You don't refute a concept - you persuade people to abandon it.

Now, this persuasion can be more or less rational. For example, you could try to argue that the concept is useless and dangerous (taking for granted, of course, that your interlocutor shares some sense of what consequences are good and what are bad). Or you could get your interlocutor in a small room and start a chant, "Positivist conceptions of law are vacuous! Positivist conceptions of law are vacuous!" Other than the fact that no such persuasion exercise is one of pure logic, we can't necessarily say ahead of time what will and will not work.

All of which is prologue to the task I am going to undertake. I want to persuade you that the concept of "racism" is basically useless. That is distinct from persuading you that no one (or everyone) is or is not racist. I'm just saying that this language game no longer accomplishes what it once did, and we need to have a sounder sense of how to accomplish a civilized ethnic politics.

The trouble with "racism" as a concept is that it is an obstacle to clear thought on these matters. I also suspect that, as a concept, it will primarily be employed against the uneducated in general and disadvantaged minorities in particular. Once upon a time, racism may have been the tool of the man, but today "racism" is the tool of the man, man.

1. The first move is to point that racial/ethnic differences are profoundly important, politically and socially. This may be the most obvious thing anyone ever said, but the obvious is a good starting point when you are trying to bust the paradigm. Everywhere you go, ethnic groups entere into coalitions and struggles with each other to change the rules to their benefit.

2. And everywhere you go, ethnic groups do differently in the market (or under any set of neutral rules). That's because human capital is always built ethnically. Some may say that some ethnic groups have genetic advantages or disadvantages in building particular forms of human capital. That is unproven. What is indisputable is that different ethnic groups in fact have very different levels of human capital. Expropriate the Ismailis of Eastern Africa, force them into refugee camps, let them find a place with a halfway market economy and a generation later they will be richer than the locals. Do the same (but in a much milder way) to Australian Aborigines, and you have a perpetual nightmare. These differences may be entirely cultural, but they are nonetheless enduring and resistant to straightforward policy fixes.

3. Given #2, it follows that different ethnic groups do not have the same political interests. It also follows that there are potential economic gains from trade when they interact (it's called comparative advantage, man). But however nice it is to think that people could interact economically for mutual gain, people are not going to stop using politics to promote rules that work in their favour.

4. If it were possible to have a completely ethnically homogenous polity, it might resolve the problem of ethnic politics. However, it would give rise to all sorts of other self-interested coalitions whose power would be hard to overcome, and it would be culturally sterile (here is where I lose the paleos who will start complaining about ethnic food). Those of us who do not hail from Iceland unavoidably live in a multi-ethnic polity. Human nature being what it is, that means we are going to have conflict. However, it is not beyond the realm of possibility to manage this conflict in a way that means we still gain from the possibility of ethnic competition and economic co-operation.

5. The problems faced by ethnic groups whose human capital does not get a big price on the market are not primarily caused by discrimination -- at least not in contemporary Canada and the United States. That's not to say that discrimination is non-existent or morally OK or anything. It's just to say that the big problem is the lack of human capital -- the lack of bourgeois habits, the lack of skills, etc. Since the days of the Moynihan report, it has become more or less possible to say this in the United States. Obama says it. It is still very diffilcult to say in Canada, at least if you care about your reputation.

6. But Canada has a serious problem arising in the next generation. Depending on the extent of white flight, aboriginals will be a majority or a very large minority in the Prairies very shortly. Public services for aboriginals are terrible. I live near an urban reserve. You can tell where the reserve is, because there are no sidewalks, even though the reserve borders on two arterial roads. The Building Code's writ does not run, and the addresses on the reserve's main road are not sequential. There are two schools in the area. One is diverse with kids from everywhere in the world. The other has Indian kids, and it would be considered child abuse by parents of any other ethnic group to allow your children to go there. Every day, I see sixteen year olds pushing strollers along the shoulder of the busy road, and just have to hope no one gets killed. And this is in a liberal city and undoubtedly one of the better run reserves.

7. There are no obvious answers to these problems, but if our public discourse can't get to the point the Moynihan report got to over thirty years ago, there aren't going to be any.

8. Political correctness on the subject of race is difficult to learn. You aren't going to pick it up at a reserve school where you'd be lucky to get basic arithmetic. I have no brief for David Ahenakew, but I see the Tories reaction as a harbinger of a future of right-wing political correctness (also on display in the whole Jeremiah Wright business). It will be highly insensitive and hurtful of any racial minority to advance its own interests in the political sphere. But we also won't point out how the political dynamics on the reserves are impoverishing the majority and enriching the elite.

9. It comes down to the problem with "racism" as a frame. It worked in the post-war world because it tied continuing de jure segregation to the defeated Nazis. But it ignored the reality that ethnocentrism is univeral and, in its mild forms, harmless. As long as Anglo hegemony could be taken as unthreatened, we could just say that all other groups are permitted their ethnocentrism and the burden should be given to the Anglos, since they run anything anyway. That was reasonable then, but it isn't going to continue to work.

10. To the extent the "racism" frame is taken seriously internationally, it makes sensible ethnic accommodation impossible. Malaysia worked out a decent compromise between the Malays and the Chinese by being "racist." Maybe it is time for that compromise to be rethought, but it was itself a good thing because it let a lot of people live and prosper who wouldn't otherwise have done so. The "racism" frame is completley useless in the Middle East, and has been one cause of recent Western stupidity there.

11. The better way to look at things is to accept the inevitability of ethnic politics, and then distinguish between bad negative-sum ethnic politics and good positive-sum ethnic politics.

To the extent I support Obama, it is because I think he is closer to realizing all this than most. That is the key political message of visiting Kenya in Dreams.

The Literatus Weighs In

Our old friend, the hardest working man in showbusiness and published poet, the Literatus writes in:

Oh hey [name redacted], you Obama blusher you: sure, every political person likely had unsavoury radical friends in their youth. I believe you yourself associated with the likes of Sarah Polley, Warren Kinsella and even Garth the Albino (shudder) back in the Trotskyite anti-racism day, right? OK. But you haven't exactly clasped any such nutter by the shoulder and slipped him $50 every week for the past two decades, have you...? Obama's foaming cleric is his priest, is his confessor, is his family's spiritual advisor, not some regrettable campus acquaintance from old times.

I kinda like 'em both, mind you; Wright at least is among the great roaring creatures of American religion, and Obama is undeniably a fine-tuned political receiver/and amplifier. Not that it's much of our business; not that it makes much difference.

In the event the Pithlord were to seek elective office, it would be trivially easy to put together an oppo file. That's why I've decided to confine my political activities to being a smartass on the Internet.

The Coveted Pith & Substance Non-Endorsement

In addition to asking some interesting questions in my comment box, Steve Sailer also gave me a link and called me "Obama's most sophisticated defender."

I appreciate it, but I'm not sure I can quite accept. As one of Her Majesty's loyal subjects, it really is no business of mine who the Great Republic chooses as their chief executive. Whether it is McCain or Obama, I'm sure we will continue to do fine. Like most of my countrypersons, I react negatively to the younger Mr. Bush, and will be happy to see him go no matter what, but it really isn't any of my concern what health plan the US federal government enacts or what flavour of Supreme Court justice is appointed.

I do think that the Iraq and Afghanistan wars raise issues of larger significance. And here I think the way Obama thinks will be more helpful than the way McCain thinks. Not because I hope that the Muslim world will react with such gratitude to a President whose middle name is "Hussein" that they will drop all their sectarian and tribalist craziness and become Belgians with loose clothing made of natural fibres. But because Iraq is precisely the sort of problem where victory/defeat is a useless frame and how-do-we-minimize-our-losses-while-letting-everyone-save-face is the way to go.

Perhaps I could also note that we in the Commonwealth are aware that even the blandest of centre-left politicians (and not infrequently the sternest of conservative ones) typically have some radical friends from their twenties. To explain what Gordon Brown and David Miliband were up to when they were young and foolish would require an extremely boring dissertation in micro-left groups with three-letter acronyms. This is not to say that genuinely right-wing people should vote for them, but it is no big deal either.

Unified Field Theory of Obama: Response to the Critics

In this thread, Steve Sailer asks two good questions. First, what the hell does "incompletely theorized common ground across more comprehensive narratives" mean? And, second, where do Barack Hussein Obama's loyalties lie?

I am a little reluctant to get into a discussion of Rawls in light of the fact that I know one of my occasional readers is a genuine expert on the subject. I just read Political Liberalism once, and tried to make it through A Theory of Justice. Rawls actually refers to "comprehensive conceptions of the good" and I foisted the po-mo "narratives" on him. But basically, the idea is that the liberal state brackets the more fundamental questions of meaning and morality, and instead tries to find essentially procedural rules that allows everyone to more-or-less do their own thing without stepping on anyone else's toes too much. In contrast to the ancient ideal, the modern liberal state relegates the pursuit of virtue or perfection to civil society and excludes it from politics. It accepts that its citizens will tell themselves different stories about who they are and what is important in life, and just makes sure that they all drive on the same side of the road and don't make left turns without signalling.

But for Rawls (or for Trudeau), this compromise has to be a principled one. Anyone who comes to the modern state with a story about how his ancestors were treated gets told that we can only be just in our time. Deal. The state can't recognize your identity - that's civil society's job.

Like Mulroney, Obama thinks this isn't going to work. Just because everyone would be better off just letting the past go doesn't mean that it can happen. On the other hand, Obama, like Mulroney, has considerable confidence in his own ability to recognize the source of each side's cussedness look enough for everyone to realize the mutual gains from resolving their non-zero-sum conflict. So the basis for the compromise comes from somehow framing each side's version as part of a single story, and the compromise itself turns out not to be principled liberalism, but something genuinely contingent.

Obama's not a "technocrat" at all, except maybe by comparison with recent Republican nominees for President, because he tends to think the finding the mutual gains is the easy part.

Now we Canadians know that Mulroney's confidence didn't quite pan out. He was indeed a talented man, and IMHO, a great prime minister, but he couldn't quite figure out how to compromise issues of identity. (Compromising issues of interest is relatively easy.) Hence, the Meech Lake fiasco. In the end, the Anglos -- and even more, the relocated market-dominant minorities that make up the leadership of the New Canadians -- were too invested in the liberal, procedural compromise to accept that the "distinct society" clause was a pretty minor concession in the scheme of things.

As for Obama's loyalties, I have no doubt he considers himself attached to the black population of the South Side of Chicago, albeit by adoption, not birth. That's only a problem if you think that blacks and whites have opposing interests in the US, and I'm pretty sure he doesn't. Of course, all politicians -- especially "transformative" ones -- must first be loyal to their own star, and I have no doubt that Obama is no exception to that principle.

How Can Regulation Be Outdated? Let me count the ways...

Peter Suderman wants to trademark the notion that regulations can become outdated for economic libertarians:

I continue to be bothered by the fact that despite [Obama's] recognition that the current financial regulation system is outdated, designed for another era, and his equal recognition that we've dealt "with threats to the financial system that weren't anticipated by regulators," the solution is, well, more regulators! It's as if he sees the consistent inability of bureaucracy and regulation to keep pace with market innovation and then says, "But if we just made it a little faster, maybe this time…"

But surely the issue isn't just "more" or "less" regulation. If you have regulation in place for a reason, and there are powerful incentives to get around it, you need to update your regulator strategies to address the regulatory arbitrage.

If the taxpayers are going to be insurers of last resort of certain financial transactions (and perhaps they should be), then like any other insurers, they need to control the insured's behaviour for excessive risk-taking. But when they do that, the insured has an incentive to find a way to keep the coverage and engage in the risk-taking. Sophisticated financial instruments make this easy, unless regulators are also sophisticated.

So a regulatory system can be "outdated" not only because it imposes unnecessary costs on those it regulates, but also because it no longer protects against the risk it is trying to mitigate.

McCain

It has sometimes been noted that John McCain isn't much of a details man. He speaks of al Qaeda and Iran as one, despite the Shi'ite/Sunni divide. (In fact, this is a complex area and there have been attempts at Islamist action across said divide, but that doesn't justify not knowing about it.) He also doesn't seem to care deeply about economics. He seems more or less willing to go along with fusionist orthodoxy ("conservatism") on most things, but he isn't deeply invested in it.

McCain can most sympathetically be understood using Jane Jacobs' distinction between the "guardian syndrome" and the "commercial syndrome" of morality. Outside the US, the right is almost entirely identified with the latter -- the idea of finding value, of innovation and entrepeneurship, of being self-interested but respectful of the rights of others, and not too concerned with how well they do so long as profitable interaction is possible. In the US too, people like Gingrich and Romney seem to perfectly embody the commercial syndrom of morality, as of course do the doctrinaire libertarians.

The anxiety that McCain speaks to arises from the suspicion that too much commercial success undermines the military virtues that the barbarians outside the commercial gates retain. From this perspective, the problem is not the intelligence of our strategy, but the maintenance of those virtues. Understanding our enemies too much or thinking about the ways we might work with semi-adversaries to isolate them is risky, because guardian virtues are undermined when they are understood. If you analyze honour, loyalty or courage, you lose them.

The position McCain represents is just as dialectical as Obama's. After all, it is the achievements of commercial, scientific and liberal civilization that makes America better than those it is fighting, but it is just those achievements that undermine the pre-commercial, pre-scientific and pre-liberal virtues necessary to fight. McCain has had the imagination to see in some strands of environmentalism and goo-goo political reform seeds of a post-modern guardian morality. Although McCainism tends to declaim against "relativism", it's real target is an excessive attachment to objectivity. Ideally, a soldier fights for what is his because it is his, and cheerfully acknowledges the right of his enemy to fight for what is the enemy's.

Obama's Grand Unified Theory

So what does the "race speech" tell us about how Obama thinks? How does it fit in with the unity-mongering and meeting-with-foreign-dictators stuff?

At bottom, I think Obama's basic theoretical framework is in dispute resolution. The worldview is sometimes attributed to his experience as an organizer, but it could also be that of a corporate litigator. He thinks of the world as filled with non-zero-sum games, in which the win-win alternative of making a deal and dividing the surplus isn't taken because each side is gripped with a narrative that makes rationally self-interested compromise difficult or impossible. The intellectual problem is to look at the interests coolly and dispassionately and see where the surplus-maximizing position lies. But the harder problem is to be sensitive enough to how the identity-constituting stories keep both sides from doing that. It's Harvard Negotiation project stuff, but it also works with who he thinks he is.

Obama doesn't particularly claim to come from nowhere or have no loyalties. He is instinctively cosmopolitan, on-the-left and tied to his adopted black American Protestant identity. But I think he recognizes that to advance the interests he is loyal to requires figuring out what other people's loyalties are, "recognize" them and then figure out how to get to the best possible resolution of the bargaining problem they represent.

Obama loves to put things dialectically. In this, the successful politician he most resembles is Tony Blair. His central rhetorical trick is restating positions he is arguing attractively and strongly, but in such a way that they obviously have limitations he hints at transcending. Dreams From My Father is hardly a black nationalist book -- but it engages very sympathetically with black nationalism, not unlike the way in which Audacity of Hope engages sympathetically but critically with fusionist conservatism. In Dreams, black nationalism is twinned not with white racism, but with the white romantic liberalism of the family he grew up with. The good thing about that liberalism is that it tries to transcend tribalism -- the bad part is that tribalism is too central to the human condition to be transcended. In fact, much of what is most admirable about liberalism comes from the folkways of Northern European Protestants -- not that there's anything wrong with that.

Obama thinks he solves the dilemma by making the same move Rawls made in Political Liberalism towards incompletely theorized common ground across more comprehensive narratives. The master discourse though is narrative negotiation, not procedural justice.

Interestingly, I think McCain also represents a reaction to the dilemma of a universalist liberalism rooted in particularist traditions it is unable to defend. But he responds differently.

Pithier Version for Canadians: Obama isn't Trudeau. He's Mulroney.

That's One Big Tent

Charles Murray, of all people, thinks Obama's speech on race was the best of any American politician ever.

The Pithlord agrees.

Sympathy for the Devil, Part II: The Case for the Reverend Jeremiah Wright

The only way to make this case is in the geekiest possible manner.

Let A represent the existence of the Reverend.
Let p represent the probability of serious bodily harm to a white person walking in the streets of South Chicago for one hour.
(p,A)<(p,~A)

If we look at matters purely from the point-of-view of white America, the basic problem black America presents is not politicization. It's lumpenization. If Reverend Wright takes a gangbanger and makes him a church-going married guy who thinks the US government planned AIDS, white America is better off. (Black America is too, of course, but I'm trying to be hard headed here.)

I get off the "conservative" bus whenever I hear complaints about identity politics. There just isn't any other kind of politics. If an issue of public policy does not seriously intersect with identity, then it isn't a political issue. If there is any merit to democracy at all, it is that it provides a framework in which identity groups can be mobilized and then compromise.

(It isn't directly relevant to this post, but where I get off the "progressive" bus is when I hear complaints about how heinous it is that groups they are opposed to engage in identity politics. Dude, if the Cree can do it, then the white Baptists can do it.)

Identity politics can either be responsible or irresponsible. There is always a bit of a dilemma here, of course. If an identity politician is too responsible, then he or she may no longer be able to represent and mobilize the base. If an identity politician isn't responsible enough, then he or she won't be able to get concessions for said base.

What is the art of statecraft? Finding ways to make the incentives to be responsible better than the incentives to be irresponsible.

Ding! Dong! The Pragmatic-and-Functional (sic.) Approach is Dead

Future generations of lawyers will never know how to distinguish the merely unreasonable statutory decision from the patently unreasonable one, since the Supreme Court just abolished the distinction. Thank God.

The Court also made it a little easier to fire non-unionized public sector employees. Some of the stupidity of the Lamer era is finally being dismantled.

Sympathy for the Devil: The Case for Hillary

Like most of my gender and class, I don't care for Hillary Rodham Clinton. I consider myself immune to his rhetorical charms, but Obama can write, and even after 8 years will be quite young, so I can imagine reading his memoirs a decade from now will wile away a lot of time. More importantly, since we cannot really know how politicians will behave in office, elections are most useful to shape their incentives. If Obama wins, it will suggest that supporting imperial adventures is not always good for your career, and that will mean fewer such adventures in the future (whether or not Obama himself will be inclined towards them). Plus, the Clintons are evil.

I hope and trust that the Superdelegates* will be impressed by the above logic, and do the right thing. But I have to admit that financial portfolio theory counts against me. BHO's sigmas are higher. He could do way better than HRC could, but he could also do worse. If a portfolio manager is given the choice between two assets with the same expected value, but with differing variance, and chooses the one with the greater variance, he/she/it is guilty of breach of fiduciary duty. So the Superdelegates should, if the polls continue to show what they do today, pick the castrating she-devel over the Muslim nationalist Manchurian candidates.

Admittedly, if they do, and she wins the general election, I will have to suffer at least twelve years of being profoundly irritated by the American head of state, causing me to avoid television and spend more time with my family. So give generously.

*I am a bit baffled by the word "superdelegates." This is the USA. Surely, all delegates are super!

Eliminate the RRSP contribution limit

Kokkarinen makes the case. I'm not a big fan of those who think we are on the wrong side of the Laffer curve in general. Lower taxes will usually mean lower revenues. But sooner or later, everyone wants to consume their income, so the additional deficits we might have now if we changed from a system with capped RRSPs to a system without them will have no real effect on the government's financial position. Eventually, the money shielded from taxes plus its returns will be taxed. And since the money will probably get a better interest rate than the government pays on bonds, the fisc will be better off, as will everyone else.

620 Connaught Ltd. -- Good Result, Bad Reasoning

It is often said that the Canadian Constitution has nothing in it to protect property rights. But it is not quite so. There are constitutional restrictions on the ability of both levels of government to impose taxes, and these prohibitions indirectly protect property rights.

The provinces can only impose taxes if they are "direct" and "in the province." The federal government can employ "any mode or method of taxation"; however, the constitution still requires that taxes be set out in a money bill that originates in the House of Commons. Imposing a tax can't be a delegated power to be administered by some government official -- it must be done by Parliament itself. The Victorians who set up this thing thought these restrictions a big deal, since they go back to the English Bill of Rights and the final routing of the papists. "No taxation without representation" resounded in every Anglo place. And even if the restrictions on taking property through taxes are essentially procedural, they still do create a certain requirement of transparency.

However, these restrictions only work if the courts police the boundary of the concept of "taxation". There are no similar procedural restrictions on governments imposing fines or fees or user charges or pricing government property and services or taking property. So if these other ways of getting assets from private hands to the public treasury are not restricted in some way, the requirements for taxation cease to have meaning.

In principle, the courts recognize that non-taxation revenue measures have to be constitutionally scrutinized. Unfortunately, in its latest foray, the SCC gives way too much leeway to the man.

The case involved liquor licensing fees in Jasper National Park. If you want to sell booze in the Park, you have to get a licence, and pay $75 per year plus 3% of the value of sales from spirits and wines and 2% of the value of sales from beer. (The Pithlord complains parenthetically about the populist favouritism to beer drinkers.) Rothstein J. says that this is all OK, and not a tax, so long as the costs of operating the park far exceed the revenues generated.

That seems like the wrong test to me. If this were really about regulatory fees, the issue shouldn't be the cost of the parks as a whole, but the incremental costs of serving alcohol in them. The Feds don't seem to have had any evidence of these, so we get a lot of handwaving about "leeway", which is a bad way of enforcing the constitution.

There might have been a better way to look at this case. All the talk about "regulatory schemes" is a bit off topic, since the Feds' role here is not as regulator but landlord. It owns the park, and is really charging commercial rent. In the absence of monopoly power, the government can't get more out of its contracts than a private owner would anyway. In a sense, any captive audience is subject to monopoly power to some extent (which is why beer costs so much in airports), but since the returns to that monopoly situation will inevitably be extracted by someone (either the licensee or the government), there isn't any reason for the courts to get involved.

If the issue is recast as one of the Feds use of its property, though, it would provide some protection to licensees from regulatory increases in fees if those fees are inconsistent with the original license agreement. The State-as-sovereign can, of course, extract money from people in excess of what it can bargain for, but when it does it starts to look like a tax. So a narrower basis for decision would have been better.

The more significant problem with the decision is that, as written, it applies even to those fees that government charges for actual regulation, which is inevitably monopolistic. The lack of any need for a real link between the fees and the costs created by the party they are imposed is disturbing.

Is John McCain a "Natural Born Citizen" of the United States?

The Republican nominee was born to American parents in the Panama Canal zone. Does that make him a "natural born citizen" of the United States, as their constitution requires the President to be. (In Canada, of course, we have never had a Canadian-born head of state. The first Canadian-born PM was over almost thirty years after Confederation, and the first Canadian-born Governor General nearly a century after.)

Anyone thinking of doing a comprehensive analysis of the point is going to have trouble competing with Larry Solum's here.

One reason NAFTA isn't going to have real environmental or labour standards

CTV says the Obama campaign has contacted the Canadian embassy to tell them not to worry about their protectionist rhetoric for the Ohio primary. Obama and the Canadian government both deny it, although apparently there was some sort of chat.

The Pithlord is not in a position to shed light on such backroom dealings. However, I do know that serious environmental and labour standards in NAFTA are not going to fly. Among the reasons is that most environmental and labour law in Canada is within provincial jurisdiction and, unlike in the US, there is no way for the Feds to require provinces to meet international commitments. This is the result of a Privy Council decision that made all my profs at U of T gnash their teeth, but nonetheless remains the law.

SCC on International Law: Is there anything new here?

Two posts down, I highlight the Supreme Court of Canada's statement that "the Charter should be presumed to provide at least as great a level of protection [of a right] as is found in the international human rights documents Canada has ratified."

One possible response is that there is nothing new here. Canadian courts have never had a problem with citing those of other countries (or international tribunals) as persuasive authority. In fact, it wasn't that long ago when a lawyer would be a bit apologetic about using a Canadian case at law, possibly explaining that the "English courts do not seem to have considered this question, my lord." Even American cases are allowed, if possibly seen as a sign of desperation.

Still, I am not aware of any other example of holding that international or comparative law is presumptively binding. And yet I don't know how else to interpret what they said in the Bill 29 case. Indeed, the ILO seems more authoritative than past decisions of the Supreme Court itself.

Against National Self-Determination

In the wake of Kosovo's unilateral declaration of indepence, I get into an argument with libertarian Brian Moore about the merits of a "right of national self-determination."

Most Important Sentence from the Supreme Court of Canada in 2007

As Dickson C.J. observed in the Alberta Reference, at p. 349 [in dissent-PL], the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.

Hoo boy.

Tested. And failed.

In addition to race-baiting (or, more kindly, majoritarian ethnic identity politics) and possession of ovaries, what is Hillary Clinton's argument for why she should be the Democratic nominee for President?

Experience. Record. But what is the record?

Brad DeLong (2003) speaks from his experience in the Clinton I administration. Interestingly, he thinks his view is that of everyone else involved in Hillary Clinton's only independent executive policy-making initiative:

My two cents' worth--and I think it is the two cents' worth of everybody who worked for the Clinton Administration health care reform effort of 1993-1994--is that Hillary Rodham Clinton needs to be kept very far away from the White House for the rest of her life. Heading up health-care reform was the only major administrative job she has ever tried to do. And she was a complete flop at it. She had neither the grasp of policy substance, the managerial skills, nor the political smarts to do the job she was then given. And she wasn't smart enough to realize that she was in over her head and had to get out of the Health Care Czar role quickly.

So when senior members of the economic team said that key senators like Daniel Patrick Moynihan would have this-and-that objection, she told them they were disloyal. When junior members of the economic team told her that the Congressional Budget Office would say such-and-such, she told them (wrongly) that her conversations with CBO head Robert Reischauer had already fixed that. When long-time senior hill staffers told her that she was making a dreadful mistake by fighting with rather than reaching out to John Breaux and Jim Cooper, she told them that they did not understand the wave of popular political support the bill would generate. And when substantive objections were raised to the plan by analysts calculating the moral hazard and adverse selection pressures it would put on the nation's health-care system...

Hillary Rodham Clinton has already flopped as a senior administrative official in the executive branch--the equivalent of an Undersecretary. Perhaps she will make a good senator. But there is no reason to think that she would be anything but an abysmal president.

A Democratic Convention Scenario

Let's suppose Obama wins the most delegates in the primaries/cacuses (excluding Michigan and Florida). But the margin is small enough that Clinton wins with superdelegates (Democratic office holders who automatically get to go to the Convention). How legitimate does a Clinton win look to Obama's constituencies? How likely is it that the Democrats can still win in November in those circumstances?

For extra credit,

Does it matter if Clinton wins most of the votes?

Does Clinton pretty much have to make Obama the VP candidate then? Would he take it?