Why Abortion Has To Be Federalized

My constitutional law small-group class has spent the past couple of days discussing abortion and Roe v. Wade, and there are basically two battles here. There's the battle on the merits, namely, if we have to decide how to balance the various quite compelling interests at stake here, how should we go about doing so? But there's also the institutional-role battle: is this something the federal courts should be handling? Since the constitutional text is ambiguous on many of the key points of the on-the-merits debate, shouldn't states be left to form their own democratic judgments? There's a problem with this, however. This is not really a case where the existence of important federal-constitutional rights is in question. Rather, the ambiguity concerns whether there are countervailing interests at stake sufficient to justify what look on inspection like violations of those rights. The pro-life case, in other words, is not about denying the importance of a woman's control over her own body (well, unless the pro-life movement lets its id speak a little too openly), it's about asserting the overriding importance of protecting the life of the unborn child.

If you wish to deny the existence of unenumerated rights altogether this claim ceases to be true, but the Supreme Court has never once done so. Once you admit that these rights, which are properly viewed as Ninth Amendment rights but which in practice go by all sorts of doctrinal disguises, exist, I doubt there are very many in American society today who would accept the consequences of denying a right to bodily integrity generally beyond the abortion context. So it's clear that, at least under the underlying principles of modern individual-rights jurisprudence, anti-abortion laws must interact, somehow, with constitutional rights, and the question is the nature of that interaction, and how far a state may legitimately go toward restricting these rights in this context. Obviously the Supreme Court must set a nationally uniform minimum protection level. Conceivably it could also set a nationally uniform maximum, too, depending on how strong it finds the countervailing interests in certain contexts. In the gap between maximal and minimal protection, or simply between minimal and complete protection if no maximum is set, states are given full license to conduct their federalist experiments in democracy.

But once those national rights are implicated, it simply becomes infeasible to allow an individual state to adopt, say, the proposed Mississippi personhood amendment. Someone needs to say whether the valid state interests that could be argued to exist in preventing the abortion of a given pregnancy, or in a given pregnancy scenario, are sufficient to negate the protective force of those rights, and plainly that someone cannot be the states. This is not an area where the Constitution can be seen as silent, as leaving things simply in the hands of state legislatures; it is, rather, an area where important values under the federal Constitution are in conflict, and if the Fourteenth Amendment says anything* it is that the solution to such a conflict must be a federal one. The alternative is for the Court to allow states to restrict abortion, and with it the rights of pregnant woman and their doctors, in ways which the Court believes, in its own considered legal opinion, are not sufficiently justified by any legitimate state interests. Or, alternately, for the Court to allow states to permit abortion, in violation of the fetus' right to live, without sufficient justification, if its conclusion on the merits was that certain kinds of abortion had to be criminalized, perhaps on Equal Protection grounds. Either way the Court would be allowing states to violate important constitutional requirements, simply because the answer how best to balance the various interests at play in the abortion debate is not immediately obvious from the constitutional text. I can't imagine any reason to favor that approach, other than substantive disagreement with the Court's on-the-merits judgment and a resultant desire to minimize that judgment's reach.

In my next post I will address what I think the correct minimum protection would be, i.e. what I think is the most restrictive abortion statute that could possibly survive constitutional challenge under what I would consider proper jurisprudence.


*Well okay, technically if the Fourteenth Amendment says anything it's that the government mayn't discriminate against black people as such. But in terms of the broader political theory of the Constitution, its basic effect is to nationalize individual rights.

World Series Win Probability Added

Among the quirkier new-age baseball statistics is Win Probability Added. This statistic uses the assumption that all players are equally skilled, along with some knowledge about the overall run environment in which a given game is being played, to generate each team's expected chances of winning a game based on the relative score, the inning, the number of outs, and which bases are occupied. So, for instance, at the beginning of the game each team's Win Expectancy is 50%, but if the away team puts up 15 runs in the top of the first their Win Expectancy shoots to about 99.9%. Any given play, therefore, will alter one or all of the score, the inning, the outs, or the bases, and therefore the Win Expectancy, and you can give the play a Win Probability Added score based on the change in Win Expectancy. Attributing that change can be tricky in cases of, say, stolen bases or errors or whatever, but as a general rule you attribute WPA to pitchers and hitters. And the idea is that WPA tells the story of a game, though it's well-known that it's not a great way to evaluate players overall. But the story of a baseball season isn't just isolated games as part of an anthology. They are, rather, episodes, which add up to tell an overarching narrative, at the end of which someone wins the World Series. From a purely competitive standpoint, that's the goal, not just to win games but to win it all in very early November. Adding to your team's odds of winning a game is nice, but you really want to boost its chances of winning the World Series.

Law & Economics and Political Theory

First of all, a caveat: I'm not talking about all law & economics. Not necessarily. The central concept of economics is optimization under constraint, and in principle those techniques can be used under any value scheme that tells you what to optimize (although it does get tricky when you have non-quantifiable values). You can do a law & econ-style analysis, therefore, under any value scheme. But I am talking about most of the field of law & economics, as I have encountered it so far. Not just the Richard Posner-style law & econ, the problems with which are obvious, but also with kinder, gentler, Guido Calabresi-style law & econ. Okay, caveat over; actual piece after the break.

About Those Robots Coming For Our Jobs

Kevin Drum has a piece today intelligently arguing that a lot of people underestimate the potential for "smart" machines to displace human labor in the next couple of decades, in particular by making flawed historical analogies to previous technological changes that had nothing to do with artificial intelligence. At the very least he's quite persuasive that one can't lump the possible forthcoming AI/"smart machine" revolution in with previous industrial revolutions. But that's not really what I want to talk about. I want to talk, rather briefly, about the following passage from the beginning of his piece. Here's how he describes Tyler Cowen's "average is over" thesis, with which he says he broadly agrees:

A small number of very smart people will do really well, while the broad middle class will end up with bleak, low-paying jobs—assuming they're lucky enough to have any jobs at all.

That, as a consequence of smart robots doing the work we're all accustomed to doing now. My problem here isn't really with the positive claim that robots will displace most/all human work. It's that, in such a world, we should view as "lucky" those who manage to still have a job. Why? "A job," in its current form, means spending countless hours of your life toiling away not for your own enjoyment but because someone out there values the stuff, tangible or otherwise, that you'll produce through your labors, and is therefore willing to give you money for it. And another way of saying "money" is "a social agreement to give you stuff and/or do stuff for you." The way the economy works circa 2013, as it has worked for multiple centuries now, is that everyone pretty much realizes that a ton of stuff needs to get done for all of us to enjoy prosperity, so we agree, through the social convention of money, to do stuff for other people who have demonstrated that they've done something to contribute to this prosperity. Or that they will do something to contribute in the future, and have gotten credit to reflect that expectation. Or that they have parents who contribute something.

Well, that's the unalloyed capitalist vision: I do stuff for you on the implicit premise of your handing me currency that at some point in the past or future you have done or will do something for someone else. Recently most societies around the world have started tinkering with that, suggesting that certain basic needs should maybe be given to people just because they need them, not because they've done anything for anyone. So we get social welfare policies, which capitalists hate because they undermine the basic "you only get something by doing something for someone else" incentive. But here's the thing: why do we need that incentive? Because there's a ton of stuff that needs to get done, i.e. that people need to do, and for various reasons persuasively detailed by political economists that stuff gets done a lot more efficiently if we don't all just do everything for ourselves, but rather each pick something of social value to specialize in and get paid for, and then buy what we need from the fruits of others' labors.

But what if we didn't need all that human labor to produce all the stuff we need? What if the extreme "smart machine" hypothesis comes true, and robots are able to do most of the work people currently do. And not just manufacturing, but much of what we currently consider services. That's the "smart" part, the idea that machines will be able to do complex intellectual tasks without human assistance. Well, in that scenario (assuming we fend off any possible robot rebellion), the thing where prosperity requires an amount of human labor such that basically everyone needs to spend a huge chunk of their life performing labor would stop being true, at least significantly. And if that happens, the basic logic for capitalist economics will be dead. We won't need to condition people's ability to get the stuff they want on whether they've done something to produce the stuff that other people want. The idea that people "deserve" only to consume as much as they can produce is a moral byproduct of capitalist economic logic, which states that it is efficient to let people consume only as much as they can produce because it maximizes production. If that stops being true we should sever the link. Depending on exactly how true it gets, that could mean a pretty goddamn robust basic income law, where everyone is just given an amount of money that will buy, say, a comfortable middle-class lifestyle. Or it could mean abolishing money and living in a socialist, Star Trek-style utopia, economically speaking at least.

Now, there would still be issues in that brave new world. The robot revolution is unlikely to change anything about the scarcity of the surface area of the earth or of usable energy, so conventional economic analysis will have some part to play in telling us how to structure things once they've eliminated scarcity in many other areas. But one thing seems clear. If robots take all our jobs, and are actually doing them as well or better than we were, we should all get to stop having the underlying premise of our lives be that we spend a third of them or more doing work just because someone else wants us to do it. That wouldn't mean no one would ever have a job, that we'd all just do things that would currently be described as "leisure." But in a sense even when we did something that would now look like a job, it would be leisure, because we'd be doing it for its own intrinsic value to us. Oh, and because we weren't being forced to do it on pain of starvation and homelessness by the social economic arrangement. And that. So if the robots come for our jobs, we should respond by just being okay not having jobs anymore, and then figuring out what to do with all our new free time. That could, potentially, be pretty awesome.

Also, see Matt Yglesias' blog for the occasional highly insightful consideration of what the economics of the technological future might look like. He tends to do a better job of acknowledging that changing technological conditions don't have to result in a path-of-least-resistance distortion of the current system, but might enable a totally different system altogether.

Don't Take Anything From Republicans

So, the Republicans just spent a couple of weeks frenetically devoted to their strategy of forcing Obama and the Democrats to give them everything they've ever wanted through hostage-taking. It didn't go so well. They were never actually prepared to kill their hostage, Obama knew it, and when they could no longer maintain their willingness to do the deed without actually pulling the trigger, they caved. Completely and utterly. They got nothing. Well, they got something, extra "income verification" for the Affordable Care Act subsidies, but it turns out this just says that HHS needs to issue a couple of reports assuring people that there isn't much fraud going on. So, nothing. Republicans lose. It was a lot of fun, and it crushed the Republicans in the polls, though not far enough that they can't recover. In any event, we're back to more or less normal politics at this point, which means budget negotiations between the House Republicans and Obama.

And the Republican stance on how these negotiations should go is the same as it's ever been: Obama should just give them stuff in exchange for nothing. Not in exchange for not blowing up the economy, or for not shutting down the government; no, for now they've given up those bits of "leverage." Just for nothing. If Democrats want to get rid of the sequester, at least partially, they should replace it with... more spending cuts! Like, more in the sense of more new cuts than the sequester cuts being replaced. This, well, isn't going to work. They couldn't get concessions for nothing from Obama back when they had hostages. If this is their offer, it's really not hard for Obama to just say, um, no. And on we go, with our government so divided that nothing ever gets done except when there's a manufactured crisis. Or, as Matt Yglesias suggests, the Republicans could give the Democrats something, something other than tax increases on rich people, to sweeten the deal. Nah, that won't happen.

But is there anything that Democrats should take, if Republicans were to offer it? Specifically if Republicans offered it as part of a deal the other side of which was entitlement cuts. And entitlement cuts, mind you, suck. They're long-term, and they're deeply regressive distributionally. The basic Republican long-term agenda is that they want to keep rich people from having to pay taxes, and in order to do that they need to slash safety net spending. But that's wildly unpopular (oh, did I mention it's wildly unpopular?), and it would play right into people's entirely-accurate stereotypes of Republicans as heartless pro-rich-people bastards, so they can't do it unless they get Democratic support to cover themselves with. That's their core political goal. We should be extremely hesitant to give it to them. The thing on the other side would have to be extremely important, and it would have to be something we won't really be able to get any other way. Is there anything like that?

My Problem with Land Taxes

From time to time, as for instance earlier today, Matt Yglesias likes to write about the many supposed virtues of land taxes. The idea is that property taxes as implemented in this country are proportional to the value of the developed human-built structures on the land, not solely to the intrinsic value of the land itself. And that has an unfortunate incentive effect: it's a tax on development. Now, lots of taxes have unfortunate incentive effects. Income taxes discourage earning income, in theory. Capital gains taxes discourage investment. Estate taxes discourage leaving enormous estates to your heirs. The idea is that when you tax some asset or activity, you set up an incentive for there to be less of that asset or activity, which is generally a bad thing. Discouraging people from doing things they would otherwise do of their own accord is bad, all else being equal. Of course, all else isn't equal, and we need money, and by now we need a lot of money, to fund the government. So we've got to tax something, which means we've got to discourage something. Except there's one thing we can't create any more of, and that's land. Not the stuff above the land, not the stuff we put on land, but the land itself. The surface area of planet earth. We have a certain amount of it, and we're never going to get any more or any less. So taxing land has no distortionary incentive effect. It can't induce people in the aggregate to have less land, because, well, land sales are zero-sum.

But I have a problem, and it relates to a point about land taxes that Yglesias mentions in his post. Land taxes encourage, pretty strongly, intense development of land. If you're going to be paying the same penalty for owning a certain square foot of the earth no matter what you do with it, you need to make sure that you get as much money out of it as possible. And that means, as a general rule, destroying whatever of the natural world existed on the land. Nature is incredibly valuable; in my AP Environmental Sciences class I recall seeing a figure that the ecosystem produces as much economic value each year as humans, i.e. as world GDP, and presumably that's the high point of the human/natural GDP ratio. But it isn't very profitable. The vast majority of the benefits of the natural world, there's simply no way for the guy who owns a given plot of land to capture. Processing carbon dioxide into oxygen, for instance. Now, plenty of natural benefits can be harvested by land owners, but plenty can't, giving land owners faced with land taxes a particularly strong incentive to destroy the environment of the land they own. Which is, of course, a recipe for global disaster.

Now in principle, this is something that a tax policy could well account for while also getting the efficiency gains of land taxes. Economics isn't hostile to the idea that environmental concerns have both merit and economic value, at least not in principle. Land owners always have an incentive to convert the global-scale environmental benefits being created by their land into private benefits they can more easily monetize, even if the conversion is a huge net loss for society as a whole. Land taxes make this incentive a problem of actual rather than simply opportunity costs, and given human psychology that means it throws this unfortunate incentive into sharper relief. But, viewed properly, this kind of over-development is not efficient for society as a whole, and economics has a well-developed solution for what to do in these cases: tax them! Specifically, tax any negative "externalities" of individual private action. So, in this case, you'd want a tax on environmental degradation as such. Say, a fine whenever you cut down a tree, or for every square foot of earth you cover in pavement rather than dirt and plants. In principle a comprehensive tax on environmental degradation would eliminate the private motive to gain immediate personal profit at a global long-term expense by destroying any vestiges of nature within private possession. And if we had that kind of tax in place, land taxes wouldn't really be problematic. Developing your land to eke every last drop of money out of it and damn the environmental consequences would stop being a viable strategy to deal with the costs of paying the land tax.

Now, one wrinkle in this analysis is that the places on planet earth that are subject to the most intense development are immensely important for the broad task of allowing seven-plus billion humans to life on this earth without doing too much damage to it. I speak, of course, of cities, which are on the one hand massive acts of environmental degradation and on the other hand are well-known to have much, much lower per capita environmental costs than suburban living. So the appropriate regulatory tax regime might be different in a big city, and it might make more sense to encourage the "go for the biggest possible development" strategy. I'm not sold that there aren't any other concerns not captured by the short-term profit motive that deserve some consideration in urban life, but I could well believe that there's no real point trying to preserve the local environment, not when development would so efficiently preserve the environment of other localities. But in general, my basic point stands: I get the economic logic behind a land tax, but unless implemented alongside a systemic effort to internalize the problems of ecological degradation I would much fear their actual consequences.

Observations on the Law

These are just a couple of more or less random observations I've had about the broad workings of the legal system since I arrived at law school. The first concerns my new-found appreciation for the "cases and controversies" rule, and the second is my reaction to an aspect of law that I had literally never heard of before coming to law school, the Restatements.

The Importance of Abstract State Intent

Here's one of my meta-theories of constitutional law: a wide variety of tricky constitutional problems can be simplified by modeling the government as an abstract corporate person, and drawing inferences about its state of mind from its actions. Or, to put it another way, forget about trying to divine the "legislative intent" of specific flesh-and-blood legislators. Just think about what might have motivated a reasonable government to adopt this measure. I'm most accustomed to thinking of this in the Equal Protection context, where my idea is that the state mayn't ever hold the belief that any of its citizens are inferior, and in the context of the religion clauses, where my idea is that the state mayn't ever adhere to a "comprehensive doctrine," e.g. a religion or a specifically atheist worldview, as opposed to a secular lack of any theological beliefs at all, positive or negative.

Republican Denial of Tactical Reality, An Example

I recently wrote a post arguing that the shutdown is simply the clearest yet manifestation of what we liberal types have known for a long time, namely that Republicans are unfit to govern, and that their unfitness is largely due to the takeover of their entire mentalities by the "reality-based community" thing, including the strategic parts of those mentalities. Well here's a nice Dave Weigel post about how Republicans simply do not believe that the shutdown is hurting them politically. Which it is. You cannot look at the bulk of the polling data and claim otherwise. Hell, there aren't very many individual polls you can look at and claim otherwise. And this is a big problem: if Republicans really believed that they're doing damage to their party, and maybe that it's long-term damage that won't be easily undone, they'd have an incentive to back the hell off before it gets any worse. But they don't believe that, so there's no incentive. A blind man driving toward a cliff doesn't know to stop, and if he won't even listen to his sighted passenger that there's a goddamn cliff half a mile in front of them, well... you're in trouble.

And Now For Something That Isn't The Constitutional Crisis

In my latest effort to avoid having to actually do my goddamn Procedure reading, I read this article about the problem with Malcolm Gladwell. It's very interesting stuff and I think I basically agree with its broad point, though I don't have any independence expertise with which to judge it. I do have one thought to add, though: Gladwell apparently claims that many dyslexic people become very successful (incontrovertibly true) and that, in fact, these people may become successful because of their dyslexia. The obvious rejoinder to the former claim is that it omits any discussion of, you know, proportionality: are "successful" people, whatever that means, more or less dyslexic than people in general? If, say, 3% of the population and 1% of "successful" people are dyslexic, then yes, dyslexia is not a total bar to "success," but it seems to be making it a lot harder. (No comment offered on whether this is because dyslexic people genuinely lack the capacity to be "successful" or because society unjustly places additional burdens in their way should they attempt to "succeed.") But that's not my point, because I think there's an even stronger response to be made to the second part of the claim.

Of course any dyslexic people who become successful will have become successful because of their dyslexia. Or, slightly more precisely, of course the path any successful dyslexic took to achieve their success will have been influenced by their disorder. If I put a roadblock up on your way to some destination, and you are thereby forced to take an alternate route but nonetheless reach your destination, then you took a successful path and I forced you to take it. Or, to use a perhaps more accurate metaphor, if you're wandering around in the fog and the dark with no idea of where you're trying to go, and I put a big ol' wall in front of you, maybe even a wall of infinite length that forecloses an entire portion of the world to you, and your further wanderings deposit you somewhere that's a very good place to be, it is entirely true that you reached that good destination because I obstructed you. So if there are extremely successful people who are dyslexic, then with every single one of them you will be able to tell a story of how their dyslexia shaped their lives in a way that led them to their successes. Tautologically. And because it's a tautology, it's uninteresting except as a matter of biography, in which context it could well be fascinating, or, perhaps, in the therapeutic context, i.e. in trying to help a further individual dyslexic person work on having a "successful" life despite their troubles. The societally interesting questions then become, okay, how does dyslexia affect the odds of becoming "successful," if you want to, and sure, is there some social value in having some people be successful in the different way that successful dyslexic people are successful?

Those are interesting questions and I might have more to say about this topic, but it's 1:06 a.m. and I have 30 pages of reading for a class that starts in all of seven hours, fourteen minutes, so I should stop writing and go do that. Yeah...

Wait, What? John Boehner Edition

So I saw the headlines with Speaker of the House John Boehner (R-OH) saying that not threatening to blow up the government's finances by failing to raise the debt limit would be "surrender." But I didn't appreciate the context. Apparently the point is that Obama suggested that, if Republicans really wanted to negotiate about stuff, they should fund the government long enough and extend the debt limit far enough to cover the negotiation period. Boehner said that this would be "unconditional surrender" for the Republicans, and that our government doesn't work like that. (I.e., with unconditional surrender by one side the precondition to have negotiations.) Never mind that, you know, if there were no statutory debt ceiling and even if the appropriations process were such that government shutdowns didn't happen, the House Republicans control a crucial veto point of the U.S. government and would therefore have plenty in their arsenal going forward. Nuclear disarmament is not the same thing as unconditional surrender if you maintain your fleet of fighter jets and big ol' conventional bombs, after all.

No, what flabergasts me about this quote is that what Obama is proposing would be completely pointless from the good-guy point of view, which is to say, it wouldn't actually involve disarming the Republicans at all. It's like the broader point about how you can't, you can't, you can't negotiate over the debt limit because if you do you cement a pattern of brinksmanship over it that will inevitably end in financial armageddon, only in fast-motion. The threat would go from "we'll blow up the world tomorrow!" to "we'll blow up the world next week!" Great. That's real unconditional surrender, guys. You're not surrendering anything. You're surrendering one week of world-non-blown-up, and presumably if you win the battle then in the end it won't matter exactly how many weeks it took before you did so. I might be missing something here, although honestly between myself and John Boehner I trust the analytical abilities of the former a whole hell of a lot more, but if I'm not missing anything, John Boehner is saying that holstering his nuclear gun, in the full knowledge that, unless his adversary does what he wants, he'll be able to take it out again in an hour or whatever, constitutes unconditional surrender. Holstering might even be the wrong analogy because it suggests that the other guys could overpower him or something; it's like lowering the gun to where it's pointing at the other guy's feet instead of his chest. And the other guy doesn't have a gun. Surrender! Surrender, I say!

Seriously, you can't make this shit up.

Nope, Sorry, That's Not What That Is

Here's a headline from Huffington Post. I choose them not because I think they're worse than any other more-or-less conventional media types, but because I read them a lot. Anyway the headline is "Paul Ryan Proposes Solution to Debt Ceiling 'Stalemate'." Curious whether that was actually true, I clicked on it and read the first, I dunno, sentence or so of the article. It's not true. His proposed 'solution' is "for the president to come to the table." That's not a solution. It's not a solution in part because the Republicans have spent literally the entire past calendar year refusing, as a matter of principle more than of strategy, to hold budget negotiations with the Democrats. It's not a solution in part because it so reeks of the highwayman in Lincoln's great anecdote, who tells the person he's robbing at gunpoint, "stand and deliver, or I shall kill you, and then you will be a murderer." But it's mostly not a solution because it doesn't acknowledge the fundamental long-term game theory of this situation. If Obama comes to the table and negotiates, and the negotiations are successful, on their own terms at least, he has all but ensured that the debt limit breach will eventually occur, whatever exactly it will entail. Once debt limit hostage-brinksmanship becomes the normal way that divided governments do their budget negotiations, it becomes a matter of statistical certainty that eventually one of those showdowns will lead to the fuse running out and the bomb going off. Negotiating is not a way to end the problem. There could've been things Paul Ryan could have said, without making us suspicious about supernatural possession or something, that would have been proposed solutions to the problem. I'm thinking of some kind of budget deal that included a provision repealing the existence of the statutory debt limit, i.e. giving Treasury unlimited borrowing authority as needed to full the budget deficit. Making a deal under those circumstances would genuinely be better than hitting the limit now, because though it would be capitulation to threat it would be capitulation in exchange for melting down the weapon, thereby ensuring no analogous future threats.

But let's consider it proven that what Paul Ryan is "proposing" here is not a solution to the crisis. Not even a potential solution. This makes the Huffington Post headline wrong. Factually, objectively wrong. A correct headline would've been something like "Paul Ryan Proposes Something He Claims Would Solve the Debt Ceiling Stalemate." Okay, that's overly wordy, but someone more experienced writing news headlines than I could probably improve it. The point is that the only sense in which "the President should come to the table" is a solution is the sense in which Paul Ryan claims it to be one. That it is entirely his assertion that this would work is integral to conveying what he was saying. Or to put it another way, if the headline as written were true it would be huge news. What actually happened is the epitome of non-news. That's not even a matter of, like, subjective ideological/partisan interpretation, it's just true, and the Huffington Post is acknowledging it to be true by placing this story way below their monster mega-story at the top about the debt ceiling. "Paul Ryan Reiterates Silly GOP Talking Point" is barely worth telling anyone. "Paul Ryan Proposes Solution to Debt Ceiling Stalemate" could be the story that heralds the end of the constitutional crisis of 2013, as well as signal the bizarre transformation of the most problematic member of the House of Representatives. That the headline as written also implies a certain level of reasonableness on Ryan's part is also a problem, no doubt, but if Ryan were actually being as reasonable as the headline suggests that wouldn't be problematic. But he isn't, and it's just plain factually true that he isn't, and it's irresponsible to write headlines that say, not just imply or suggest but say otherwise

We Told You So

If you ask people whether the Iraq War was a mistake, most of them will say that it was. Like, two-thirds or more of them will say that. If you ask in 2013, at least. But if you asked people in 2003 whether they supported the war while it was starting up, most of them said they did. Only a few radical liberal types opposed it. You'd think that the fact that most people now agree with the substantive position they were advancing ten years ago would have had some sort of vindicating effect. Nope. As Paul Krugman likes to say, "it remains true ... that for the most part you’re not considered serious about national security unless you were wrong about Iraq." Apparently having been right is not a sufficient defense to the charge of having been a liberal dissident from a mainstream center-right consensus.

Well, it looks like the liberal dissidents might get proven right again. As Krugman himself notes, not surprisingly, the supposedly neutral political establishment has long just sort of assumed that Republicans were highly competent at governing, that they were the party of hard-nosed pragmatists to the Democrats' well-meaning but ineffectual idealists. But now the Republicans have shut down the government. In what they practically admit is a temper tantrum. Competence! No, what we're seeing this week is a party that is fundamentally unfit to be even a small part of the business of governance. And this is not even one tiny bit of a surprise to those of us who've been paying attention the last decade-plus. By which I mean, of course, liberal dissidents. We've been saying that the Republicans were unfit to govern since, well, since forever, but especially since the events of the Bush Administration.

The key, I think, lies in two realizations. First, that Republicans honestly don't care about doing government well. They may even be ideologically hostile to it. After all, according to Saint Ronald, the nine most terrifying words in the English language are "I'm from the government and I'm here to help." Government is never the solution, just the problem when it tries to be the solution. So why bother trying? Or more to the point, governing competently provides strong empirical evidence rebutting the central claim of Republican ideology, namely that there's no such thing as competent government. Much better to bungle things, or even better, not to deliberately bungle things but to put people in positions of power who are woefully unsuited for them, with bungling the inevitable result, and then talk about how the government always bungles everything!

That's the substantive reason why Republicans are unfit to govern; the other is tactical. Among the virtues of democratic politics is supposed to be that it provides incentives to the greedy, unprincipled politician nevertheless to do the right thing, because doing the right thing keeps you in power. It's sort of like the way capitalism claims to harness private self-interest to create common good, and about as successful, namely, somewhat in general but with gaping exceptions. But that requires, well, rational self-interest on the part of our greedy, unprincipled politicians. Republicans, however, have bought their own hype, specifically the "reality-based community" hype. Here's that passage again, from the original Ron Suskind article:

The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.''

I don't really have cause to analyze this quote afresh. For my purposes the point is that this kind of thinking has crept from the substantive areas of Republican thinking, and in particular the foreign policy substantive areas, to the strategic and tactical areas. The far-right flank of the Congressional Republican Party, in making its demands of leadership as to how they conduct themselves in dealing with the rest of the government, does not draw on, you know, reality. There's not even an attempt to understand what actions will lead to what consequences. It's government by slogan, except it's not just government by slogan, it's maneuvering by slogan. And the thing about detaching yourself from reality is that you don't actually escape it, and sooner or later reality comes back to bite you in the ass. Hard.

For the "are Republicans fit to govern?" purpose, though, the crucial thing is that you won't see it coming. If you truly escape the reality-based community, you lose the ability to know when you're about to make a huge mistake. Hell, you sort of commit in advance to not knowing when you're about to make a huge mistake. That would be listening to the evidence, after all, which is apparently a sign of weakness. So you make huge mistakes, which is to say, you don't avoid the kinds of behavior that will be even a predictable disaster. The combination of these two features is that Republicans have no inherent interest in governing well and lack even the capacity to understand their supposed incentives to do so anyway. That's a dangerous combination, and it all adds up to being deeply and fundamentally unfit to govern. And people like me have known about this since, well, since the reality-based community thing, and since Hurricane Katrina at least. And we've been saying it. Finally, finally the Republicans have misbehaved badly enough that some mainstream types are noticing their fundamental unsoundness, perhaps on the same scale as what happened during Katrina.

So on behalf of we liberal dissidents, who have seen through the Republican Party all these years and whose positions reality has almost inexorably born out over time, and who never ever get credit for having been right, and who are never ever considered to maybe, just maybe, be right the next time too, I just want to say, we told you so.

The Carlos Beltran Solution

Carlos Beltran is a beast. Specifically he's a beast if you put him on a team that's playing in the post-season. He's been a great player over his whole career, mind you, putting up a .283/.359/.496 batting line while playing a great center field (until recently) and adding excellent base running. But in the playoffs... well, today he was 2 for 3 with a walk, a home run, and (all) three runs driven in, and before that game he had a career .353/.456/.774 batting line in October baseball. That includes his insane 2004 with the Astros, when he hit .400, got on base over half the time, and slugged greater than 1. It includes his 2006 with the Mets, when he had a .500 on-base percentage in their NLCS win over the Dodgers and when he hit .296 with a .387 OBP and cranked three home runs. He also struck out five times, one of which... yeah, anyway. It includes last year with the Cardinals, when he had another .400/.500/.900 NLDS (and that's AVG/OBP/SLG, not OBP/SLG/OPS, heh) and then hit another home run and slugged .600 in the NLCS. It includes a mammoth home run he hit in Game 1 of the series against the Pirates this year, which tied him with Babe freakin' Ruth for career post-season home runs (though they don't hold the record, not by a long shot), and tomorrow it will include his great game from earlier today. Carlos Beltran is insane in the post-season.

He's also a free agent. A free agent outfielder, that is, who would provide a lot of what the Mets could use in 2014, namely a seriously threatening hitter. Sure his range has diminished beyond recognition as his knees have deteriorated with age, but he's still fearsome and, well, you see what he does if you can sneak into the post-season. Besides, he's a former Met, he's a beloved former Met, and bringing him back, perhaps to finish his career, would make it a shoe-in that he'll go into the Hall of Fame as a Met. (And I think this month is cementing his place in the Hall.) Interestingly both he and the team seem to be open to it. It's tough to know what Beltran is thinking, whether he's specifically interested in returning to the team that used two months of his services to snag a top prospect in an absurdly justified trade or whether he's just going to listen to all offers. But analyzing the Mets' thinking is perhaps easier. His offense is clearly in great shape, and would fill one of the holes in the Mets' lineup. His defense may not be that much of a concern with this guy patrolling center field. But there's reason to think that he just may not be able to play the outfield every day any more. Are you signing him to be a part-time player? Might he be better served going to an American League team where he could split time between the outfield and being the DH?

Well, it seems to me that a star outfielder who can't quite play every day would be a peculiarly good for for the Mets in 2014 and the immediate future. I can't speak to whether it would be best for Beltran, but the Mets are currently blessed with an uncommonly large number of outfielders under their control who seem like they could be valuable pieces but who are almost certainly not everyday players, at least not on a good team. I'm thinking of Eric Young, Jr., who just lead the National League in stolen bases but has a career .325 on-base percentage and .338 slugging percentage having spent most of his career playing his home games at Coors Field, and of Matt den Dekker, a defensive whiz perhaps on par with Lagares but whose difficulties not striking out may prevent him from hitting at the Major League level. Setting aside the question of left field for the moment, suppose the Mets signed Beltran to be their starting right fielder, but discovered that two or three games out of seven he needed not to be that. Perhaps he would need to sit on the bench, or to play first base, but not to play the outfield for a full nine innings. Well, stick den Dekker in center field and Lagares in right field. Or maybe the other way around. Maybe Matt would also be used to replace Carlos's defense with something resembling what he was once capable of. It could be a neat synergy between an aging star's need to be a part-time player and a young player's need not to be anything more than a part-time player. If the Mets wanted to be genuinely aggressive in acquiring players they could also sign Shin-Soo Choo to play left field, giving them a top of the order featuring Choo, Beltran, and Wright. Or maybe EYJ is actually good enough to be a leadoff hitter, if given the chance. Whatever they do with the other spot in their outfield, though, I think Carlos Beltran would be a uniquely good fit for the Opening Day right field spot in 2014.

The Shutdown, Presidentialism, and the Constitutional Crisis This Time

There have been three great political and constitutional transformations in our nation's history. The first covered the period from 1776 to 1789, during which the country declared and then won its independence and eventually settled on a particular form of government, a federal constitution. The next covered the period from, let's say, 1857 (though the starting-point is kind of arbitrary since it had been building for a long time; 1861 would be perhaps a more conventional answer) through 1870. This was, obviously, the slavery crisis, during which the country fought a whole bloody war to answer the question of whether it would keep having slavery. The third was the Great Depression, with the true constitutional crisis period lasting roughly from 1929 through 1937, though the economic difficulties lasted a while longer. The first two were separated by approximately seventy years; the latter two were separated by approximately sixty or seventy years. Projecting forward seventy years from the last one gets you... a few years ago. Or, to put it another way, if you buy this rough extrapolation (which you probably shouldn't, it's incredibly crude), we're about due for a constitutional crisis. Maybe overdue.

Notice anything that could be called a constitutional crisis?

If so, you're not the only one. The federal government is currently shut down. In a couple of weeks it will, unless something happens to change this, hit the statutory debt limit, after which it will not be allowed to sell government bonds to raise revenue to cover the gap between tax revenues and spending obligations. No one knows what happens if that happens. Maybe worldwide financial chaos and depression. Maybe President Obama just ignores the debt limit, which might avert the former and would definitely trigger a full-blown constitutional crisis in its place. One way or another, it won't be pretty. All of this is, of course, happening because the party which controls one of two Houses of Congress, and does not control the White House, has decided that it will refuse to participate in averting these catastrophes until and unless the President basically enacts the entire policy platform of the man he just convincingly beat to secure his re-election. Or maybe even until he enacts something even more ideologically extreme than that, i.e. more extreme than this party's own primary process could endorse. This is, uh, a constitutional crisis. Right on schedule.

It's been building for a while, although fairly few of us have seen it coming particularly long in advance. Some, however, say it could've been foreseen a very long time in advance. Say, two-hundred years or more. As Matt Yglesias details in this post, eminent political scientist Juan Linz spent his life crafting a persuasive argument that presidential democracies are inherently unstable. Essentially this is because, in a parliamentary system, there is only one Government. That is to say, the party with the majority in Parliament just plain governs, with all the powers and responsibilities that entails. If they screw it up, they lose the next election, and the other party (or maybe a new one) gets a chance at the whole "governing" thing. In a presidential system, on the other hand, there are two independent political powers within the government, each with a claim to democratic legitimacy: the President and the legislature. What happens if they don't get along? What happens if they really, really don't get along, such that they cannot between the two of them govern? Linz says there's just no way to resolve that dispute consistent with the principles of democracy, so something else, typically the whims of the military, has to choose a winner. Steve Calabresi, my former professor and perhaps the foremost champion of presidential government, makes a number of good points about the weaknesses of Linz's case, for instance that most of the examples he cites are Latin American countries without a strong judiciary that can act as a potential dispute-settler between the political branches. Still, the current crisis in Washington looks an awful lot like a Linz-style collapse of presidential government, right?

How Not To Prevent a Tie

In 2002, the Major League Baseball All-Star Game ended in a tie. With the score at 7-7 through 11 innings, both the American and the National League teams discovered that they had run out of pitchers. They were only carrying eight pitchers per team; now the leagues each take more like 13 pitchers. In any event, people decided that this tie was a catastrophe, because apparently someone has to win everything. MLB Commissioner Bud Selig, therefore, came up with a way to prevent ties in the future: make the game count! The idea is that by tying home field advantage for the World Series to the result of the All-Star Game, there will be an extra incentive to avoid a tie. But can you spot the problem? Raising the stakes doesn't actually change what happens when each side runs out of pitchers. Literally not at all. If an All-Star Game goes 20 innings and all 13 pitchers on each side have gotten into the game, and the current pitchers are just plain finished, there's just nothing you can do. At some point the logic of a tie becomes inexorable; at some point a tie becomes necessary, no matter what the stakes. Now, expanding the rosters does a lot to reduce the chance of a tie, and I think it's very unlikely we'll ever see the kind of game necessary to exhaust that kind of pitching staff, but that has nothing to do with the "this time it counts" nonsense. It's a supposed mechanism to prevent ties that actually does nothing whatsoever toward that end.

Interestingly enough, the very next year there was another tie in a major exhibition event, the Presidents Cup. The Cup ended in a tie, with both the United States and the International teams winning 17 points. Tiger Woods had just defeated Ernie Els, the biggest International name, in a marquee match to avoid an outright loss of the Cup. The procedure for breaking the tie was that each team had placed one player's name in a sealed envelope, and in the event of a tie those envelopes would be opened and those two players would play sudden death until a winner had been determined. The designated champions were, of course, Tiger Woods and Ernie Els. And in some of the most compelling golf ever, as darkness crept over the Links Course at Fancourt, Woods and Els fought each other to a draw three times in a row. Three holes, all halved, and as the last light disappeared, still no result. So Captains Jack Nicklaus and Gary Player agreed to share the Cup for the next two years.

And when the two teams reconvened at Robert Trent Jones Golf Club in 2005, there had been a rule change. Like the change to the All-Star Game, its purpose was to avoid a tie. If anything, though, it does even less to accomplish that goal. Traditionally at both the Presidents Cup and the older Ryder Cup between America and Europe, as well as all other less prominent international competitions modeled on the Ryder Cup, when a match was all square after 18 holes it was over. In an individual match-play tournament you would need sudden death at that point to determine who advanced to the next round, but at these international tournaments the match is simply halved, and each team received one-half of a point. The last match of the '03 Cup had been halved, with the Woods/Els match having been second to last. Accordingly (or something), it was decided that on the last day of the Presidents Cup, halved matches would not be tolerated until the Cup had been won. Until one side had at least 17.5 points clinched out of 34, any matches all square through 18 would go to sudden death. Indeed, Phil Mickelson thought he had sunk a putt to halve his match and clinch the '05 Cup, but was informed that he needed to go to sudden death instead. It was weird.

And it also doesn't do a bloody thing to avoid a tie. Well, conditionally it either does or doesn't. If the result of the first four sessions sends the Cup into the Sunday singles with a score involving half-points, say, 12.5 to 9.5 or something, the no-halved-matches policy will prevent a tie. But suppose the score entering Sunday is 11-all. And then suppose that in half the matches, American players win the first ten holes, and in the other half of the matches, International players do the same. Then we would just have 17 points for the United States and 17 points for the Internationals, and nothing about preventing individual matches from being halved would come within eight holes of relevance. There's just nothing about forcing each match to produce a whole point for one side or the other that in the slightest prevents those points from falling equally on each side. Nothing at all, unless, as I say, it would take a non-integer score on Sunday to achieve a 17/17 tie. Today, for instance, the score was something like 14 to 8 entering the singles competition. As I'm watching the tape-delayed broadcast the score is USA 17, INT 12, with five matches still on the course. If the Internationals sweep those matches, it's a tie, right? Would we do another Woods/Els battle to the death? (Okay maybe not with Tiger, his back has tightened up on him...) There's just nothing about the "no halved matches" rule that helps us if we wind up in a flat-footed tie based on whole points for each match. Half of the time, in other words, the rule will be if anything counterproductive for its stated ends, and at best useless. This anti-tie frenzy appears to just remove people's ability to understand the connection between policies and outcomes. Maybe we should just be okay with the idea that sometimes exhibition matches are tied.


Also, holy shit, Phil Mickelson just (on tape delay) hit a shot from the slope twenty yards right of the fairway that clipped the tree he was trying to bend it around, fell into the water, and skipped out of the water onto the bank! If the Cup ends up coming down to his match, wow, that'll have been one hell of a break.

Dominating Strikes

Amateur baseball analysts are very enamored of the "swinging strike" statistic, a count of how many pitches a pitcher throws which are swung at and missed by the hitter. And for good reason! Throwing strikes is, obviously, an important thing for a pitcher; if you don't do it, you just end up walking people. But you can, strangely, throw "too many strikes," creating a situation where the hitters know they're going to get a hittable pitch and that they should therefore swing at it, and you aren't walking anyone but you're giving up hit upon hit upon hit. The solution is, of course, the swinging strike. If you have pitches that are good enough to induce swinging strikes, you can throw "too many strikes" and get away with it. They'll know a strike is coming, but not be able to do anything about it. And, of course, swinging strikes lead to strikeouts. So there are lots of strategic reasons for liking swinging strikes, but they're also just symbolically important. A swinging strike represents pure and utter dominance by the pitcher. You threw a pitch, the batter thought it was good enough to merit a swing, and yet they failed so miserably at the very most central aspect of hitting that they didn't even hit the ball at all. Not even weakly. Not even so weakly that they fouled it back. They just missed it. Poof. Fail. Pitcher 1, Hitter 0.

Called strikes do not have that same feeling of dominance. Well, not all called strikes. A first-pitch fastball down the middle is not particularly dominating. The hitter just didn't want to swing at it. We don't know whether the hitter would've hit it well had they swung at it. It also didn't do a particularly impressive job of disadvantaging the hitter. No more than, say, a foul home run. A called strike is as much a choice by the hitter as it is a demonstration of skill by the pitcher: for whatever reason, he didn't want to swing, even though the pitch was in the zone. Okay, fine. Except, sometimes that's a choice no hitter would ever make. Sometimes you know for a fact that the hitter wasn't okay with the result "called strike," that something more must have been going on. Because no hitter ever wants to take strike three called.* When that happens, you just plain lose the battle, and you have to go sit down. If the hitter had known the pitch would be a strike, and had been able to swing at it, they would have done so. We know that of every called third strike. Which means that either the pitch fooled the batter into thinking it was a ball or it did something to them that prevented them from swinging at it, though they wanted to. In other words, it necessarily involves some domination of the hitter by the pitcher. It's not as physical domination as a swinging strike; for all we know, had the hitter managed to swing they would have hit a home run off that pitch. It might have been very hittable, had it only been hit at. But it wasn't, though it needed to be.

So I'd like to see a new statistic, a slight modification of the "swinging strike" count. It is, obviously, swinging strikes plus called third strikes. That is a measure, to my mind, of a pitcher's ability to beguile hitters, to overpower hitters, and to do every combination of the two. The great pitchers often have a specific pitch that reliably gets them strikeouts looking. Greg Maddux developed the tailing fastball over the inside corner to a lefty. Anyone with a great curveball, like the ones that Justin Verlander and Clayton Kershaw have showed off in this year's post-season, will be able to drop it into the center of the strike zone, disrupting the hitter's timing and making them abandon any thought of swinging long before the pitch crosses the plate. The called third strike is the only other pitch besides the swinging strike where the pitcher unambiguously demonstrates their superiority to the hitter, and we should have a statistic that counts both methods of dominating hitters equally.

Clinton '16

Seriously. That woman had bloody well better run for President.

I just got back from hearing Hillary Clinton, former Secretary of State, former Senator from New York, former First Lady of Arkansas and then of the United States, and Yale Law School Class of 1973, give a talk on the occasion of her acceptance of the Law School's Award of Merit. It was awesome. There was a moment, a few minutes after the nominal starting time, when all of a sudden the audience just started applauding. I hadn't noticed anything that would occasion it, but it didn't take me long to figure out what was going on: her husband had just walked in the side door of Woolsey Hall. He kept a remarkably low profile, sitting in a front-row seat during the talk and then doing some hob-nobbing with the important types who were sitting on the front of the ground floor. Hillary entered a little while after Bill, to even louder applause if anything. Her speech was very good: I wouldn't call it great, mostly because it wasn't anything particularly novel. It was mostly reminiscence about her time at Yale and discussion of the importance of children's welfare, the former of which she delivered with great charisma and the latter of which is obviously a very compelling subject.

What I was really struck by was, as I said, how charismatic she was. That's not exactly in keeping with her reputation, both during the 1990s and during the 2008 Presidential campaign. Of course that reputation is doubtless very influenced by various forms of sexism, along with the fact that she kind of ran into a charisma buzz-saw in '08. But it did feel like there was a difference between her whole demeanor at this event and what I remember from the last campaign. And I have a theory, not surprisingly. I think she (quite in common with Al Gore) often suffers from a sense that she can't just be herself to be successful in politics, that she needs to dissemble about her true passions and motivations. With Al Gore that means toning down the wonky environmentalism, mostly. With Hillary it's about toning down the wonky feminism. And I mean that word broadly. She certainly is not a radical feminist, not by the standards of, say, the era when she attended the Yale Law School, but her overall agenda is undeniably the expanded feminist one. Women's rights, certainly, a movement she practically embodies at this point. But also stereotypically female "nurturing" issues, like health care and children's issues. And now, as for instance in the recent speech that Dean Robert Post quoted before her talk, gay rights, which like women's rights are just, she argues, human rights.

And her particular vantage point on these issues is, I think, an uncommonly community-focused one. She wrote, of course, a book called It Takes a Village, and I think she very deeply believes that attaining all these modern social liberal values and deconstructing the old oppressive power structures, which she is very much in favor of, shouldn't result in a thoroughly individualistic and isolating society. That idea, of a true community built not around the maintenance of power imbalances and the enforcement of certain behavioral norms but around simply caring about each others' well-being, is one that sits a little bit outside the ordinary terms of the social discourse. Liberals usually focus on the part where we tear down the oppressive power structures, following Marx in not really thinking too much about what the post-revolutionary world will look like. Hillary Clinton does think about precisely that, about what to do once those problematic social structures are defeated, and about what problems their defeat might actually create. That's a tremendously important complex of philosophical issues, and political issues as well.

And I think that when Hillary lets herself be, whole-heartedly and openly, the community-oriented feminist that she is, she's got a lot of energy, and it gets infectious. But too often, I think, she's had to shy away from that, out of fear that her perspective is just not a popular one. That too many unenlightened men whose votes she needs will find her "shrill," that too many people will find her "it takes a village" theme too feminine to take seriously from a politician. And there's certainly some truth to those fears; certainly there was twenty years ago. But I think those dangers have lessened a lot of late. Social liberalism is quite genuinely dominant right now, at least social liberalism on the terms of the past couple of generations. Gender equality, challenging gender norms, etc., all of that stuff is just plain winning. And I'd like to think that it's no longer the case that a woman talking about how we need to take care of each other won't be taken seriously.

So if Hillary Clinton runs for President in 2016, which I devoutly hope she will, here's my advice to her, other than sit back, relax, and waltz to the nomination. Well, actually, that's part of it. The advice is to be herself, to let her feminist flag fly, to talk about health care and child-raising, all the things that are her true political passions. And the part about how she's got a fifty-point lead in Democratic primary polls and substantial leads over all the Republicans serves to demonstrate that there are plenty of people in this country who like Hillary Clinton's self. Yes, there are still plenty who don't like her self. The Limbaugh types, and their less-vile-but-not-much-more-enlightened cousins. But there are fewer and fewer of those, and more and more people who just plain respect Hillary for having spent decades being a badass, hyper-competent barrier-shattering stateswoman who has long since deserved to be President. She doesn't need to change anything or hide anything about herself to become President. She just needs to take a page out of her husband's book, and be her own awesome self.

It's Staggering How Wrong McClesky Is

I have been given the unfortunate task, for my constitutional law class, of coming up with a defense of McClesky v. Kemp, the case in which the Supreme Court rejected, 5-4, challenges to death penalty laws on the grounds that they were applied in racially unequal ways. Yeah. Anyway, the article that I'm reading about the case and its history suggests that part of Justice Powell's motivation in being that fifth vote was that the statistics showed discriminatory application of the death penalty mostly related to the race of the victim in a murder, not that of the defendant. The idea, I suppose, is that a black defendant is not being discriminated against on account of his race if he is sentenced to death because he killed a white guy, whereas someone else, white or black, who killed a black guy is just imprisoned for a mighty long time. But there's a deep historical perversion here. If you read the Fourteenth Amendment the way people would have before the Slaughter-House Cases eviscerated the Privileges or Immunities Clause, most of the job of guaranteeing against the invasion of substantive rights by law on discriminatory grounds had already been done. The peculiar function of the Equal Protection Clause, however, was to prevent Southern states from applying facially neutral laws in discriminatory ways. Specifically, to prevent them from having a de facto policy of acquitting, or not even indicting, white men who killed blacks, while throwing the book at blacks who killed whites. Or, to put it another way, to prevent the exact thing the NAACP's statistics showed in McClesky. The exact same thing. Okay, we don't generally let the killers of black people just plain walk of out court these days, but we let them live, as we (or at least those states that still ever execute anyone) don't those who kill whites. So yeah, sure, maybe the defendants aren't being denied the equal protection of the laws. But the victims are. Unfortunately, they can't exactly bring suit: they've been murdered, is kind of the whole point. Someone needs to be able to object, and it has to be people sentenced to die for killing whites. Honestly I think a white man so sentenced would have a valid claim, too, but certainly a black one. One way or another, though, I know that for death penalty laws to survive because their unequal application is precisely the kind envisioned by the Equal Protection Clause as most problematic is deeply perverse, and I can only hope that the next President Clinton is able to appoint that fifth Justice to get rid of the whole system.

What I'd Like to See

Republicans are, as we all know, currently refusing to pass an appropriations bill keeping the government funded. "Why are they doing this?" you might ask, if you were from another planet or something. Here on earth we know they're doing it because they want to repeal/defund/delay/whatever "Obamacare," also known as the Patient Protection and Affordable Care Act. In normal-person speak, one translation of that sentence would be that they are inflicting this suffering upon the world in service of the cause of denying health care coverage to poor people, and protecting rich people from marginally higher marginal taxes. To most of us, that sounds bad! But Republicans, to their, I dunno, credit, don't put it that way. They say they're doing this because Obamacare is destroying the economy. So here's what I'd like to see:

Will somebody, anybody, please just ask them how Obamacare is ruining the country?

Like, literally, go up to John Boehner or Ted Cruz or Mike Lee or Paul Ryan or whoever and just say, "how is the Affordable Care Act hurting the economy?" And when they say something like "it's destroying jobs" or whatever, keep asking, how? And don't stop until you've got an answer at least as concrete as, say, the standard Democratic explanation for how austerity is destructive in a depressed economy.

Oh wait, you won't get that. Because there isn't one. So maybe I should specify an alternate termination condition, lest this hypothetical reporter be stuck saying "but how?" forever. Let's say, until you get that kind of answer, or, more realistically, they a) tell you to fuck off, or go fuck yourself, or whatever; or b) some non-profane version of (a). In other words, until they implicitly concede that they haven't got an answer. I can't think of any other end-point. Behind all the nonsense about "job-killing regulations" or whatever, there just isn't any specific causal mechanism in mind. And that's stunning. Republicans have shut down the United States government and are prepared to create a situation in which the government has no legal way to pay its legal obligations, with the possible result of massive and irreversible global financial calamity, on the grounds that all of that is worth it to stop one terrible law that's destroying the country. And they cannot tell you how the law is destroying the country. They can only assert that it is. It's staggering.

You've Got It Backwards, Paul Ryan

Paul Ryan (R-WI) is right about something. No, really! Well, he's kind of right about it. Let's say he's right about the magnitude, but wrong about the direction. Or something.

Here's what he's right about: the ongoing government shutdown should, in its resolution, be connected to the upcoming debt ceiling we-can't-cope-with-the-fact-that-we've-breached-this-months-ago problem. Here's what he's got backwards: he thinks the debt ceiling should resolve the shutdown. That is, his expectation is that the crisis of the shutdown all by itself won't be enough to force an agreement, and that a resolution will only come as part of the negotiations around the debt ceiling in a couple of weeks. Or, to put it another way, he as a leader of the Republican Party doesn't plan to stop being so insane about everything just because of a little ol' shutdown, and he plans on stringing things out long enough for the threat of an imminent debt ceiling calamity to make Obama back down. One manufactured crisis isn't getting it done, so he's gonna try for two of 'em piled on top of each other.

What should happen, of course, is that sometime in the next few days pressure from constituents should force Republicans to back down. Apparently there's polling showing a nine-point lead in the generic Congressional ballot for the Democrats; if that were to happen in November 2014, say hello (again) to Speaker Pelosi. And probably a ton of Democratic state legislatures who would hopefully mid-decade redistrict the shit out of things. Republicans, in other words, ought to start getting scared. And when they're sufficiently scared, Obama and the Democrats must say to them, we're not letting you out of this until you take the other ticking time bomb off the table. In other words, when they pass a continuing resolution to end the shutdown, it had bloody well better raise or eliminate or suspend the statutory debt limit. And no, that isn't unreasonable; if a "clean" CR passes, without dealing with the debt limit, then the whole shutdown won't have settled anything, and the whole "Republicans threaten to blow up the world in a revolutionary attempt to upend the entire constitutional order" thing will still be very much alive. And that's the problem, not the shutdown. I mean, it's a problem too. Tells you something about the times we live in that a government shutdown is not the problem right now. But it really isn't, and if it causes Republicans to get scared enough that they have to surrender, that surrender had better deal with the actual problem.

So yes, Paul Ryan, the debt limit and the shutdown should get resolved together. But that's not because the shutdown should keep going until it gets reinforcements from the debt ceiling crisis, forcing Obama to enact the Romney agenda once and for all. It's because once your side is forced to concede, and to put down the gun, it should have to hand over both of its guns, especially the bigger one. There's no point half-disarming a hostage taker.