What is Limited Government Anyway?

January 26, 2016

With the presidential primaries underway, the media is choked with talk about getting the government off the people’s backs, restoring limited government, making government let the people alone. But the Koch brothers, the Tea Party, their candidates and supporters are actually saying something very different – they want government to support their definition of their rights and push everyone else out of their way, and most important they want the courts to decide in their favor when others complain that they are trespassing on public land or polluting the air, land and water in ways that injure and interfere with the lives of others. That’s government in their favor.

We lawyers talk about law as a seamless web. That sounds like an idiom but it’s actually very precise. Everything is governed by rules. Judges always decide that someone does or does not have a privilege or a right. Those are all decisions about what the law is. Law always favors someone and disfavors someone else. If someone has a privilege, then everyone else loses when that person does whatever he or she is privileged to do. The question is not, cannot be, whether there is law; the question we have to deal with is whether it is fair and whether it is good for the public. Government off the backs of some means government on everyone else’s back, often leaving you and me poor and defenseless.

Limited government, regulation off people’s backs, are the tropes we hear when a government agency or legislature takes note of bad behavior – fraud, pollution or unconscionable business practices that cause decent people great loss. Unscrupulous companies, some very large and well known, as we discovered during the 2008 financial shock, want no regulations that would set a moral floor under their behavior, allowing more moral enterprises to compete instead of being bankrupted by cut-rate competition from the scandalous moguls. The only regulations that the unscrupulous like are regulations that keeps everyone else out of their way.

So when you hear that trope, look squarely at the privilege these anti-government claimants are defending. You hear it loudest when people are claiming the right to hurt the public. That’s not a claim of freedom that would have made any sense to the Founders of our country.

When the Founders spoke and wrote about government, their central questions were what’s fair and what’s good for the public. Those was central in every aspect of their work from the definition of property rights to the rights the public retained and what the public could and should do for the benefit of the people. Concern for public welfare was central to the building of the Erie Canal that defined the path of commerce in the State of New York for a century and a half, even as the canal was replaced by roads and railroads to continue developing the path the canal had developed. Concern for public welfare was central to the establishment of schools which made Americans among the most educated people on the earth, education that was at the root of all the good things that have happened since.

The Founders believed in public spirit, not a spirit of what the public could do for one’s selfish needs, but a spirit about what each of us could contribute to the improvement of the community, the states and the nation. When President John F. Kennedy told the American people “Ask not what your country can do for you; ask what you can do for your country,” he was channeling the spirit of the Founders.

— This commentary was broadcast on WAMC Northeast Report, January 26, 2016.


Refugees and the Impact of Immigration

December 1, 2015

Two things have been capturing our attention, the plight of Syrian refugees, and the environmental summit in Paris. They are in fact closely connected.

First, immigration is valuable to us. Immigrants bolster national power – it matters that China and India have a billion people each. Immigrants grow the economy and make it easier to sustain what’s left of our social safety net because they work and contribute. They are productive  partly because they are new blood, and look at things with new eyes. This country has been at the forefront of innovation since it was founded because mixing peoples from different countries and parts of the globe consistently stimulated and refreshed the American economy. With globalization that is even more important. So for national security, economic health and continuing the path of American innovation, immigration is a big plus. In the case of refugees, generosity is also a big plus, good for our hearts and good for making America the world’s destination.

Immigration is not without problems. In the short run, the impact on jobs seems to be a wash – immigrants compete for existing jobs but create new ones by expanding the market. There is reason for concern that some supporters of DAESH (also called ISIL) could get in, but DAESH now has American supporters with passports. So the problem is much broader and needs to be dealt with in a broader way – Americanizing immigrants by reaching out, welcoming and including them in our activities.

But there is a problem. World population has tripled since I was a youngster. That’s an explosion. Chinese authorities understood that China could not sustain population growth and slowed it precipitously. Immigration initially doesn’t change world population. But the ultimate impact will result from improved health, cultural change, and rising living standards. Americans consume far more than our proportion of the world’s resources and we produce far more carbon dioxide and other toxins than our proportion of the world’s population. That is ground for concern. And immigration will stress the environment of some states and communities.

We can enjoy the benefits of immigration IF we can limit and reduce the environmental damage. It means that we should, must, continue to invest in ways to reduce our use of fossil fuels, and increase our use of passive solar heating and solar and wind energy. We must control our overuse of water, and invest in better ways to use it. We need to rethink our national land-use policies – irrigating deserts for farmland and building suburbs on productive lands with an abundance of water is wasteful, leading to drought, salinization of the land, and making many places unlivable.

Ultimately both our goals for immigration and our goals for America, our children and grandchildren must be driven by concern for the people who will inhabit it. That means care and concern for the immigrants and all of us, expressed through environmental policies that can keep the earth habitable. In that effort we have to be willing to share and accept effective regulation. There is no other way.

— This commentary was broadcast on WAMC Northeast Report, December 1, 2015.


An NRA Foreign Policy

November 3, 2015

 

Think about the NRA position that guns don’t kill people, people do, and therefore that we should protect the rights of gun ownership. Just think about the contribution that the NRA could make to the discussion of foreign affairs. The NRA position reveals that it is a big mistake to control arms trafficking. They’re spot on – we should just arm everyone, friend and foe, all the contending parties in Syria and Iraq. Al-Qaeda? Their guns don’t kill, they do. No problem. ISIS? No problem. But we can learn from the NRA that the biggest mistake is the nuclear deal with Iran! After all, if everyone had nukes, no one would use them. Peace on earth. Goodwill toward men and women. Solved that one. Thanks to the NRA.

There is the problem of identifying perpetrators. NRA’s got that solved too – tracing weapons is not allowed because it might lead to regulation and prohibition which would undermine everything they stand for. No, we’ll just have to guess who bombed whom. But the perpetrators will be scared because we might guess right among the hundreds of nations and many more terrorist groups. Peace reigns.

But the real threat is from folks who don’t have any apparent weapons – they’re hiding it. So just like Trayvon Martin and all those other souls who got what the NRA reserved for them, we have to be ready to shoot first and ask questions later. There is a chance that someone might have evil intent, especially if they don’t look right. Kill, kill, kill. Oh scratch that, Arlo used that phrase in Alice’s restaurant. Let’s say, historicize them. Remember Dick Cheney’s idea about Iraq – there was a chance they’d turn out bad, so let’s just make a mess of their place first, and let the whirlwind blow where it may – even if it whirls back on us.

Try that in Libya and Syria. Let everyone have guns, mortars, grenades and landmines. We can imagine them blowing each other’s brains out until they have depopulated the area and removed any threat to us. They already blame the U.S. anyway. Of course the weapons will end up in the hands of terrorists who will use them to fleece the people and turn the profits against new targets in America or among Americans. But then the American arms industry will really get going and we can have all-out war – now that’s a heroic future.

Now just think of the environmental advantages. China has ended its one-child policy. What to do? Nukes. How many nukes would it take to lower the earth’s population to about 3 billion? Of course radiation from that many nukes might lower the population to zero. But we could end the release of carbon and methane into the atmosphere. That way we could gain some control over global warming. The place might actually be livable again for a new race of people who emerge from the sea and the apes into homo sapiens in another two billion years. Think of that, the NRA could save the planet.

Oh my heavens where is my tongue. In my cheek? Or is it deadly accurate?

— This commentary was broadcast on WAMC Northeast Report, November 3, 2015.

 


Good soldiers know how to play chess

October 20, 2015

I’d like to start by stating my pride in WAMC and admiration of you, the listeners and members, who not only raised funds to keep the station on the air but also raised funds during the pledge break for the food bank, to help refugees and to retire pollution from the environment. That’s a lot to be proud of.

Turning to the Middle East, Russia wants to beef up Assad in Syria. And Putin seems to have confronted us with a fait accompli as it conducts bombing raids. No one wants war with Russia. So what to do?

Lots of people have their eyes focused on the Middle East, on Syria and its immediate neighbors. I think that reveals inexperience. Foreign affairs is a chess game. Chess was invented to train the mind for combat.

Now I’m no champion chess player. Oh I like to brag that I once beat someone who beat Bobby Fisher, which is true, but my friend hadn’t played in years and I have no idea how old Fisher was when my friend beat him. But just the same I do understand some things about chess. And one of them is that if the other guy attacks one of my pieces where it’s hard to defend, I can look for ways to take advantage of the position somewhere else on the board. Sometimes that forces my opponent to release his grip while dealing with my counter threat, or provide me with a counter-balancing advantage. Chess is often described as a game of position, but rarely is it all about one square or even one piece.

So I’m wondering what candidates you might have for places to put pressure on Russia? Ukraine anyone? Or posting troops in Poland? And how about recalculating the effects of Putin’s moves? The EU has been falling apart but a resurgent Russian bear may help put the EU back together. Arab anger has been directed against home grown Sunni regimes and against the U.S., but a resurgent Russian bear may put them in a war with ISIS and could inflame Muslims within Russia. Conservatives want America to be a player in world politics. But being a player is hardly a purpose. I’m more focused on the consequences.

People who only keep their eyes on one spot may be experts on that spot, or just naïve. But real foreign policy is global. Russia is not invincible. Putin is not a magician. The games he has been playing have answers. Keep cool.

But don’t look for lots of loud talk back. Real warriors don’t scream their intentions. Intentions become known after the fact. That’s what I expect from Obama or any president who is competent in foreign policy and not a big gasbag. As Teddy Roosevelt once said, we need to speak softly and carry a big stick. But it’s also important to remember that big sticks aren’t best wielded in frontal attacks – Picket’s charge lost at Gettysburg. Grant, by contrast, was happy to lay siege at Vicksburg and Richmond, and the soldiers under Sherman rarely fired a shot through a long campaign across Tennessee and then Georgia – except when Jefferson Davis replaced one of his best generals and his replacement immediately attacked the portion of Sherman’s Army he had left behind at Chattanooga. The Confederate Army was then promply defeated by that half of Sherman’s Army.

Good soldiers know how to play chess.

— This commentary was broadcast on WAMC Northeast Report, October 20, 2015.


Regression to the Mean

August 18, 2015

Social scientists have a phrase, “regression to the mean.” What they mean is that the law of averages eventually fells families, companies or countries that are doing better than average, and eventually lift those doing much worse than the average. Now for all of us who like to say the United States is the best in the world, there is a prospect to consider.

We could just get fatalistic; it’s going to happen so what can we do about it. But of course we didn’t succeed by fatalism. Americans escaped, trekked, traveled, by rickety sailboats and steerage and every other way imaginable to get here and then they cleared the wilderness and conquered the continent and then took on the world. No fatalism about that.

They didn’t stare at each other saying we can’t do or build this or that; they joined together or got the government to help. Until the fatalists took over. Reagan said government is the problem. Strange remark, from a man who either should have known better or did, because when he took over the U.S. Government was actually remaking the world, our world. Perhaps you didn’t know that the internet was developed by DARPA as a national security project to make up for a strategic weakness of the old fashioned telephone system. Or that the transistors that run everything you use were developed as part of a government war effort. There isn’t much that you and I touch that weren’t connected in some way to the government space effort.

I could tell that story for every American generation. Government that is devoted to the welfare of the people, began here. The banking system, the transportation system repeatedly rebuilt as new technology developed, schools and the university system, the list of government projects for us is endless – until we stopped trusting each other and our own government.

So how do we stay strong, healthy, and successful? Some think we do it by fighting everyone. They must have grown up in a very tough neighborhood. Those who crunch the numbers figured out a long time ago that arms are what economists call a deadweight loss. Sometimes you really need them but they contribute zero to the economy except for the research. And like the barroom brawler, everyone’s gunning for the top gun.

We got where we are because of our economy. You can look at the economic numbers and see when Germany got ahead of England and France and then when the U.S. surpassed Germany. It’s all in the numbers. Ever since that other fatalist, George Bush said “read my lips; no new taxes,” Americans have imagined that progress was free. But we got where we are because government did the things needed to facilitate what the rest of us could do, travel, save, study, communicate, ship, research and on and on.

But now America feels so poor that it can’t repair its infrastructure, can’t fix the cables, the water and sanitary systems, can’t fund its university system except on the backs of students who haven’t yet had a chance to earn a living. If America is truly that poor, it will regress to the mean.

— This commentary was broadcast on WAMC Northeast Report, August 18, 2015.


Environmental Time Wasted

July 28, 2015

A news director at this station, about a decade ago, wanted me to engage in what some call pack journalism, to talk about whatever was occupying the press’s attention. I understood his point; people’s interest was already peaked. Plus the more people talk about the same things, the more it tends to sink in. But I’ve never liked piling on. If you heard it elsewhere, I feel no need to restate it. I like to bring up something else, or a different perspective. I feel more useful that way.

This week I’d like to bring up a case much less talked about than the Supreme Court term’s blockbusters on same-sex marriage and medical care. Those are very important decisions. But here’s another worth examining. On June 29, the Supreme Court decided Michigan v. EPA. According to Justice Scalia and the conservative majority, the case was about whether the EPA needed to consider the costs of regulation. According to Justice Kagan and the liberal dissenters, the case was about whether the EPA needed to consider costs separately before considering specific regulations.

Sometimes court decisions lead one down the rabbit hole with Lewis Carroll. According to Justice Kagan, the EPA did consider costs. It took costs into account in the specific regulations for each type of power plant. It considered costs by adopting ways to mitigate the cost of the required measures to catch up with up-to-date emissions control systems. It decided against more stringent controls because it decided they would not be cost-effective. And it elaborately examined the quantifiable costs and benefits. The problem: it did all that in the wrong order. The result – the rule is on hold now; the agency will have to do some work to show it studied cost the way the Court wants it done before it can reimpose regulation.

That’s one of the main purposes of taking administrative agencies to court – delay can be worth a lot of money to business and industry even if they will eventually have to comply. In other words, regulations can protect the public, but courts can delay them.

Barely mentioned was how much mercury and other toxic pollutants coal fired power plants could send into the air we breathe. Scalia and the industry said there were merely several million dollars damage to the public per year. Kagan and the EPA said the damage was in the tens of billions. Of course much of the damage cannot be measured in dollars anyway – it is about lives damaged and destroyed by mercury and other toxic pollutants.

Republicans have been fighting for years against regulation of mercury emissions. Democrats just as long have been fighting to clean the air of the kinds of things that could damage our health and our ability to lead productive lives. But consistency is the hob-goblin of little minds: Republicans would do everything possible to control addictive drugs that damage our lives, health and minds – they are used by bad people. But Republicans would not control pollutants that damage our lives, health and minds – they are emitted by good people. Democrats, of course, the reverse.

So which congressman, and which justice, is in whose pocket? Some of them apparently define good and bad people by the money in their pockets instead of the things they do to others. Whatever happened to equal justice?

— This commentary was broadcast on WAMC Northeast Report, July 21, 2015.


Speaking Across the Aisle about the Killing of Babies

February 10, 2015

I’d like to speak across the aisle. We have values in common even though we sometimes draw different conclusions. My point is simple. We are all against killing babies, their brothers, sisters, mothers and fathers. A religious revival in this country has focused on one form of what many consider baby-killing. There are, however, other ways of killing babies in unspeakable numbers.

Babies by the billions will be the first to die because manmade pollutants that change the climate will kill in innumerable and excruciating ways. That should be a cause that left and right, religious and nonreligious should join on, with passion, action, and dedication. Global warming and burning carbon fuels into greenhouse gasses should be the third rail of politics, an absolute no-no, IF we truly agree that killing billions of babies is a tragedy we cannot ignore, cannot be neutral about, must act about – unless we’re merely hypocrits. So I appeal to the religious right, and the religious left and all the rest of us, to all those who really care about babies and protecting them from killers, to stop the burning of carbon fuels into greenhouse gasses now.

  • Our babies will be the first to suffer as we lose our food sources. Burning carbon-based fuels acidifies the oceans, killing the reefs and much of the food we get from the sea. Burning carbon fuels into greenhouse gasses aggravates climate change, contributing to the extinction of the plants and animals we depend on for food as their climates disappear.
  • Our babies will be the first to suffer as we lose our water sources. Burning carbon fuels into greenhouse gasses aggravates the climate change that depletes the glaciers that feed the lakes, streams and rivers we depend on for water. And burning carbon fuels into greenhouse gasses aggravates climate change that contributes to the drought and the expansion of deserts that rob us of drinking water.
  • Our babies will be the first to suffer as unfamiliar diseases spread out of the tropics. Burning carbon fuels into greenhouse gasses aggravates climate change that brings tropical and hot weather illnesses to us.
  • Burning carbon fuels into greenhouse gasses aggravates climate change that takes our land as the sea encroaches on us, making refugees of families, mothers, fathers, babies and children.
  • Burning carbon fuels into greenhouse gasses aggravates climate change that adds to the violent storms that engulf cities, towns and villages all over the world including the U.S. where hurricanes and tornadoes have been striking with unaccustomed fury in places that seemed immune. As in all these tragedies the most vulnerable and first to die will be the babies and children.

In each case, the most vulnerable to the disease, drought, storms and starvation will be the babies. Who then are the baby-killers? Who wants to authorize pipelines that make it easier for millions of gallons to flow to be burned? Who wants to drill, baby, drill? Who opposes every measure to add to carbon neutral sources of power like wind and solar? Who are the baby killers? Would you support and vote for baby killers?

Really, let’s by all means talk about killing babies. Yours, mine, our children’s babies. Global warming does not distinguish by faith, color, ethnicity, or gender. It is and will be an equal opportunity killer. So let’s show some real heart and understand this is the number one threat to infants all over the world, and their brothers and sisters, parents, and the rest of us.

— This commentary was broadcast on WAMC Northeast Report, February 10, 2015.


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