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The Kavanaugh Hearings Were a Missed Opportunity—For Both Sides

In Humanities, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, Politics, The Supreme Court on September 12, 2018 at 6:45 am

This article originally appeared here in The Intercollegiate Review.

By now you’ve heard about the combative spectacle that was last week’s Senate Judiciary Committee hearing for President Trump’s nominee to the U.S. Supreme Court, Judge Brett Kavanaugh. This momentous event was characterized not by political acumen, wit, cunning, or prudence, but by partisan obstruction, lawlessness, tantrums, hysteria, ignorance, frenzy, and anger.

Protestors screamed vulgarities and trite slogans, proving they were not interested in Kavanaugh’s responses or in substantive intellectual debate. Seventy of them were arrested on Tuesday alone. If anything, their recurring interruptions and crude histrionics gave Kavanaugh time to pause and think about his responses rather than tire out and let down his guard.

Online left-wing rabble-rousers peddled an absurd conspiracy theory about Zina Bash, a former clerk for Kavanaugh—only shortly before right-wing conspiracy theorist Alex Jones was banned from Twitter. Senator Cory Booker, a Democrat from New Jersey, publicly released documents that were allegedly confidential, claiming full knowledge of the possible repercussions of his act—namely, expulsion from the Senate. “Bring it,” Booker taunted Senator John Cornyn, who warned about the consequences of the supposed confidentiality breach. With unintended levity, Booker announced his “I am Spartacus” moment. Only the documents weren’t confidential after all; they’d already been approved for public release. Thus, Booker’s Spartacus Moment was merely a political stunt of faux bravery.

Why this hostility? Why these shenanigans?

A Deep Philosophical Clash

For starters, the midterm election cycle is upon us and the Mueller investigation appears to be nearing an end. Politicians like Booker are grandstanding for political gain as they consider running for president. Kavanaugh has been tapped to replace Justice Anthony Kennedy, moreover, who was the court’s so-called swing vote, whereas Justice Gorsuch filled Justice Scalia’s seat. Gorsuch’s appointment did not tip the balance of the court the way Kavanaugh’s might. Democrats also remain angry that Republicans did not act on President Obama’s nomination of Merrick Garland.

But something more is going on. We’re witnessing a philosophical clash regarding the proper role of the judiciary.

Kavanaugh identifies as an originalist and a textualist. Originalism comes in different permutations, having evolved since the days when it sought principally to recover the original intent of an author or authors. Its most prominent adherents today see it as an interpretive approach to the original public meaning of a text. It maintains that the words of the law should be construed according to their ordinary meaning as understood by a reasonable person at the time they were enacted.

Textualism, similarly, interprets words without resort to extratextual factors such as authorial intent or legislative history, focusing instead on the ordinary meaning of words as written. For the purposes of this piece, I use the term originalism without drawing distinctions between it and its close cousin textualism.

Getting Kavanaugh’s Originalism Wrong

Originalism so described seems uncontroversial on its face, but you wouldn’t get that impression from activists who have opposed Kavanaugh’s nomination. “Originalism conflicts sharply with American reality and American ideals,” writes Alan Brownstein, a retired law professor. He labels originalism “unamerican,” saying it accounts for the views of “only the people who were here in the 1780’s and 90’s or when specific constitutional amendments were adopted,” not for the views of the “vast new diversity of the American people today.”

This, I think, is wrong. Originalism properly understood is depolarizing, isolating judges from the political process rather than injecting them into it. The Constitution contemplates internal modifications, chiefly through the amendment process, which is, by design, difficult to facilitate. If originalism limits changes in law to those processes contemplated in the Constitution, as Brownstein alleges, then Brownstein has inadvertently labeled the Constitution “unamerican.” How can this founding document, which sets forth the basic framework of government for the United States, be “unamerican”?

Brownstein seems to imply that the amendment process, being slow and onerous, should not be the sole avenue for reform—that the courts ought to be a driver of progress when legislative solutions stall. The implication here is that the Constitution ought to be a “living” document that can be updated or improved through judicial correction and adaptation in cases. Judges should, accordingly, exercise quasi-legislative powers, promulgating binding rules and opinions to achieve justice or equality or to align with evolving standards of decency.

5 Reasons Everyone Wins with Originalism

Here’s why Brownstein is mistaken and why now more than ever a commitment to originalism would benefit both the left and the right.

First, originalism does not guarantee a particular political result. As Scalia, one of the original originalists, remarked, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” Scalia sometimes reasoned to conclusions that favored Democratic or liberal policies because the operative text so required.

Second, originalism fosters trust in democratic systems. Legislatures and the public need to know that newly enacted laws stand a chance to last as long as they comport with the Constitution. People lose confidence in their governing institutions if they believe the laws they passed can be easily tinkered with or discarded by unelected and hence unaccountable judges.

Third, although originalism may lead to harsh results in certain cases, it leaves it to the collective wisdom of the people, acting through their representatives, to alter the law to achieve fairness or justice. Concentrating revisionary lawmaking power in one judge or group of judges increases the probability that an uncommon or idiosyncratic conception of justice that does not represent the conception of the people will become binding over them.

Fourth, originalism makes the law clearer and more predictable, not subject to the unpredictable or arbitrary considerations of a judge or group of judges. When the law as written is applied, parties to a case and the general public can with reasonable sureness predict a range of possible outcomes. But if judges do not apply the law as written, the range of possible outcomes multiplies to the extent that the law itself becomes uncertain, and parties cannot rely on the law when they make everyday decisions. Vagueness in the law causes arbitrary exercises of governmental power. Clarity in the law restrains government actors from exercising powers in a manner that has not been formally approved by the legislature.

Finally, originalism ensures the independence of the judiciary. Kavanaugh has insisted that he is an independent judge. Democrats may dispute that claim, but they can’t dispute that originalism itself operates to secure judicial independence. Originalism is nonpartisan and does not consistently yield results that can be easily classified as conservative or liberal. Even jurists on the left have embraced originalism. Justice Kagan famously declared, “We are all originalists now.”

A week after politicos and activists celebrated the bipartisan spirit of Senator John McCain, the Kavanaugh hearings broke down into partisan pandemonium. Originalism should have been a unifying feature of the Kavanaugh hearings. It wasn’t. So here we are today, approaching the midterm elections in a country that’s as divided as ever. God help us.

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Is Ocasio-Cortez Right About Rights?

In America, American History, Arts & Letters, Books, Christianity, Civics, Conservatism, History, Humanities, liberal arts, Liberalism, Philosophy, Politics, Western Civilization, Western Philosophy on August 29, 2018 at 8:45 am

This article originally appeared here in The Intercollegiate Review. 

Colin I. Bradford writes fawningly that Alexandria Ocasio-Cortez, a member of the Democratic Socialists of America, reaffirms “the centrality of the individual, individual rights, liberty, and freedom in which respect, trust, fairness and responsibility loom large.” He depicts Ocasio-Cortez as the embodied union of individualism and collectivism, someone who, in his words, “sees the individual as both a solitary being with certain inalienable rights and as a citizen and member of society.”

There’s much to unpack in Bradford’s frightfully grand statements, but let’s briefly consider some historical context for them.

“Modern Western ‘democracies,’” says John W. Danford, “are actually better described as liberal commercial societies. They rest on principles of individualism and individual rights—especially legal rights—which are more fundamental than democracy, and also much newer.”

Individual Rights Came from Christianity

The belief that humans by their nature possess “rights” against which governments may not transgress has not always been commonly held. Larry Siedentop’s Inventing the Individual: The Origins of Western Liberalism (2014) made the compelling case that natural rights theories are distinctively Christian in origin. He presents the ancient pagans as tribal and patriarchal, characterized by fierce loyalty to kin and clan and lacking conscientious differentiations between public and private life. (The operative differentiation was between public and domestic life.) Inequality was accepted as a given; the notion of rights was practically nonexistent. What mattered was the family unit: secure lineage, child bearing, and glorification of the paterfamilias as the powerful hero. Cities emerged from familial corporate associations around which property relations were structured according to class hierarchies.

Correlated with the rise and spread of Christianity in the West was the proliferation of the concept of the individual as a rights-bearing creature with inherent dignity, which any legal order properly so called must recognize and protect. The teachings of Jesus Christ and St. Paul redirected political thought away from the material, phenomenal world and toward the afterlife, eternity, and the soul. The message that grace through Christ was available to anyone, not just rulers or the highborn, underscored the autonomy of the individual, the self-aware subject. A Christian emphasis on personal moral agency and responsibility, moreover, undercut Greek and Roman aristocratic culture and its attendant traditions of ancestor worship.

Siedentop contends, therefore, that Christianity, not the Renaissance, was the fountain of individualism. If the Enlightenment was the height of philosophizing about the relationship of the individual to society, then it was also the natural outflow of earlier eras shaped by Christianity. This narrative runs counter to the portrayal of medieval Christianity as closed and authoritarian and of the Enlightenment as predominately secular. It illuminates Danford’s description of modern liberal societies as fundamentally committed to individual rights embedded in the law.

Mutual Submission, Similar Ethics

A distinguishing feature of Enlightenment thinking was social contract theory, which is particularly important to the Anglo-American legal tradition as manifest in Magna Carta (1215), the English Bill of Rights (1689), the Virginia Declaration of Rights (1776), the Declaration of Independence (1776), and the U.S. Bill of Rights (1789–91). These documents enshrine the principles of equality under the law, basic human dignity, rule of law, consent of the governed, popular sovereignty, and natural rights.

The most celebrated delineations of social contract theory belong to Hobbes, Locke, and Rousseau. A simplistically synthesized account of their three hypothetical origins of political society runs like this: humans once existed as free agents in an ungoverned state of nature and eventually banded together in protective social units to enforce claims to property and defend against outside threats; voluntarily entering into these social units required individuals to give up unfettered liberty by consenting to the authority of a superintending body—a government— that exercised only those powers to which the individuals in the society corporately assented, either expressly or impliedly.

The social contract for a mature, successful society involves a collection of individuals wise enough to appreciate the reciprocal advantage of mutual submission and similar enough in ethics and morals to prescribe the proper scope, limits, and structure of the approved ruling authority. The U.S. Constitution, in theory, represents a social contract: a pact between citizens and its rulers that restrains government, divides power, and sets competing interests against one another with offsetting effect.

U.S. Supreme Court “Expansions”

The U.S. Supreme Court, in cases regarding the Fourteenth Amendment, began in the twentieth century to evaluate claims of unremunerated, allegedly fundamental rights in light of the history of judicial safeguards. A purported right was deemed presumptively fundamental if it enjoyed an established tradition of formal recognition by Anglo-American courts. Under this interpretive scheme, when the Supreme Court determined that an alleged right was nonfundamental, the alleged right would not be incorporated (via the doctrine of substantive due process) to apply against the states. The Supreme Court, however, gradually recognized particular suspect rights within broader categories of long-established rights. The so-called right to privacy, for example, that had valid antecedents in the common law was repurposed to include phenomena unknown at the common law.

The tendency of the Supreme Court in the twentieth century to expand (and, in some cases, to limit) the scope of alleged rights reveals, I think, that a privileged group of robed lawyers are inadequately equipped to philosophize about rights. The validity of alleged rights accrues socially, from the bottom up, when they can be traced over time to long-standing, if not immemorial, usage, customs, mores, and traditions, and when their practical applications have been tested by successive generations. Certain rights are natural, that is, prior to government promulgation, but their intelligibility is deeply historical, rooted, contextual, situational, and embedded.

Rights or Privileges?

One could argue, and Siedentop suggests, that Christianity’s institutionalization of rights discourse created the conditions necessary for secularization, in effect that Christianity ushered in a culture that led to its gradual removal from civic society. Siedentop postulates, in other words, that the success of Christianity eventuated its demise in the Western public sphere. The story of rights discourse in U.S. Supreme Court decisions lends credence to this perspective, revealing that prevailing notions of rights have grown to encompass what were once merely privileges.

If institutions follow culture, however, then a constitution that contemplates individual rights is only as good as the people it controls: a populace without extensive virtue will weaken or decline regardless of its organizational governance and administrative framework. Christianity may not have promoted ideas that caused its erasure from our governing institutions; rather, the people of the United States may have drifted away from the Christian ideas that made those institutions effective and stable.

Bradford recognizes that “individualist values of liberty, property rights, freedom and sovereignty worked well in the 20th century as the foundations of competition, free markets, democracy and the nation state.” Yet he sees these concepts as inadequate today, lacking something he believes Ocasio-Cortez can supply, to wit, a form of collectivism that in his representation facilitates community and social harmony. He simply fails to see that the unique individualism that emerged out of Christianity generated the community and social harmony he now desires.

There is no individualism absent the recognition that every human life, anywhere and everywhere, is precious and important. It follows from that premise that no one may violate the rights of others who themselves have not violated another’s rights. This principle, extended to society writ large, creates the conditions necessary for community to flourish. Individualism in Christian societies aided the growth of cities, institutionalized the dignity of the human person as a bearer of rights, and challenged rather than empowered abusive government. Ocasio-Cortez should not hope to eradicate this kind of individualism, for it has accomplished more good for humanity than the socialism she purportedly embraces.

Review of Paul Finkelman’s “Supreme Injustice”

In America, American History, Arts & Letters, Book Reviews, Books, Dred Scott, Historicism, History, Humanities, Jurisprudence, Justice, Law, Laws of Slavery, liberal arts, Nineteenth-Century America, Politics, Scholarship, Southern History, The South, Writing on August 8, 2018 at 6:45 am

This review originally appeared here in the Los Angeles Review of Books.

Paul Finkelman is an anomaly: a historian with no law degree who’s held chairs or fellowships at numerous law schools, testified as an expert witness in high-profile cases, and filed amicus briefs with several courts. Federal appellate judges, including justices on the United States Supreme Court, have cited his work. Liberal arts professors anxious about the state and fate of their discipline might look to him to demonstrate the practical relevance of the humanities to everyday society.

Finkelman specializes in American legal history, slavery and the law, constitutional law, and race and the law. His new book, Supreme Injustice, tells the story of three United States Supreme Court Justices — John Marshall, Joseph Story, and Roger B. Taney — and their “slavery jurisprudence.” Each of these men, Finkelman argues, differed in background and methodology but shared the belief that antislavery agitation undermined the legal and political structures instituted by the Constitution. Had they aligned their operative principles with the ideals of liberty, equality, and justice enshrined in the Declaration of Independence, liberty rather than racism and oppression might have defined antebellum America.

Finkelman insists that the legacy of Marshall, Story, and Taney had enormous implications for the state of the nation, strengthening the institutions of slavery and embedding in the law a systemic hostility to fundamental freedom and basic justice. These are strong allegations, attributed to only three individuals. Yet the evidence adds up.

Start with Marshall, a perennially celebrated figure who, unlike many of his generation, in particular his occasional nemesis Thomas Jefferson, has escaped scrutiny on matters of race and slavery. Finkelman submits that scholarship on Marshall is “universally admiring” — an overstatement perhaps, but one that underscores the prevalence of the mythology Finkelman hopes to dispel.

Finkelman emphasizes Marshall’s “personal ties to slavery” and “considerable commitment to owning other human beings.” He combs through numerous records and presents ample data to establish that Marshall, a life member of the American Colonization Society, “actively participated in slavery on a very personal level.” Finkelman then turns to Marshall’s votes and opinions in cases, several of which challenged state laws and rulings that freed slaves. In fact, Marshall would go so far as to overturn the verdicts of white Southern jurors and the judgments of white Southern judges who, in freedom suits, sided with slaves and against masters.

Marshall could be an ardent nationalist attempting to effectuate the supremacy of federal law. One is therefore tempted to attribute his rulings against state laws in cases about slavery to his longstanding desire to centralize federal power. But that is only part of the story. Finkelman brings to light exceptions, including when Marshall selectively deferred to state law if doing so meant that slaves remained the property of their masters. Finkelman highlights these decisions to show that Marshall was hypocritical, compromising his otherwise plenary nationalism to ensure that contractual and property arrangements regarding slaves were protected by law.

Story was also a nationalist, having evolved from Jeffersonianism to anti-Jeffersonianism and eventually becoming Marshall’s jurisprudential adjunct. Unlike Marshall, however, Story could sound “like a full-blown abolitionist.” His opinion in United States v. La Jeune Eugenie (1822) was “an antislavery tour de force,” decrying slavery and the slave trade as “repugnant to the natural rights of man and the dictates of judges.”

Yet he prioritized radical nationalism over the rights of humans in bondage. In Prigg v. Pennsylvania (1842), writing for the Court, he deemed unconstitutional a state ban on the extradition of blacks out of Pennsylvania for purposes of slavery. Story jumped at the chance to pronounce the primacy of federal law over state law even if it meant employing the Supremacy Clause to validate the Fugitive Slave Act of 1793. “A justice who had once thought slavery was deeply immoral,” Finkelman bemoans,

rewrote history, misstated precedents, and made up new constitutional doctrine to nationalize southern slave law and impose it on the entire nation. The decision jeopardized the liberty of every black in the North, whether free or fugitive. The injustice of this opinion was profound.

Author of the notorious Dred Scott opinion, Taney is the most predictable of Finkelman’s targets. By the end of the Civil War, he was vehemently denounced and widely despised. Progressives in the early 20th century, most notably Felix Frankfurter, rehabilitated his reputation in part because progressive economic policy during that era promoted Taney’s approach to states’ rights and political decentralization. The mood has changed; most historians now probably agree that Taney “aggressively protected slavery” and “made war on free blacks.” Few law professors would recall Taney’s “early ambivalence about slavery and his defense of the Reverend Jacob Gruber,” who was arrested for sermonizing against slavery at a Methodist camp meeting and subsequently charged with inciting slave rebellion. Finkelman’s chapter on Taney thus runs with the grain, not against it.

At times Finkelman exaggerates or wishfully portrays the role of judges. He asserts that, prior to the Civil War, courts rather than Congress or the executive had “room for protecting the liberty of free blacks, liberating some slaves, providing due process for alleged fugitive slaves, enforcing the federal suppression of the African slave trade, or preventing slavery from being established in federal territories.” This claim may hold up in some of the cases Finkelman discusses (e.g., LaGrange v. Choteau [1830], in which Marshall declined the opportunity to enforce federal law that could have freed a slave who had traveled into free territory), but not in all of them. If a judge were faced with a problem of statutory construction, he (there were only male judges then) could have asked what the language of the statute meant, how it applied to the concrete facts and material rules before him, and whether it was constitutional, but anything more would have arguably exceeded the scope of his office.

The Constitution was silent about slavery until the Civil War Amendments, also known as the Reconstruction Amendments. Prior to them, any attempt to render slavery unconstitutional would have required appeals to natural law, natural rights, or other like doctrines that appear in the Constitution only in spirit, not in letter. The abolitionist William Lloyd Garrison believed the Constitution was affirmatively proslavery, calling it a “covenant with death” and “an agreement with Hell.” If this is true, then when judges swear an oath to defend the Constitution (the basic framework of government with which all other laws in the United States must comport), they are also inadvertently vowing to defend the institution of slavery — unless the law is more than what statutes and the Constitution provide, in which case these judges could reach beyond the positive law to principles pre-political and universal.

Finkelman suggests another alternative: that certain constitutional provisions supplied a basis in positive law for antislavery strategies and stratagem. He cites, among other things, the congressional powers exercised in the reenactment of the Northwest Ordinance and the enactment of the Missouri Compromise and Oregon Territory; the admission of new free states into the United States; the due process guarantees of the Fifth Amendment; the rights of criminal defendants protected by the Sixth Amendment; the Privileges and Immunities Clause; and the guarantees of the First Amendment.

Each of these would have been problematic during the period Finkelman covers. There was not yet a 14th Amendment through which provisions of the Bill of Rights could have been incorporated to apply against the several states, although state constitutions contained protections of fundamental rights that federal judges recognized and affirmed. Moreover, the provisions Finkelman enumerates empowered Congress, not the courts, to pursue robust antislavery measures. Courts could have responded to and interpreted actions and directives of Congress, but they could not have initiated legislation or litigation. Had the Constitution enabled federal judges and the United States Supreme Court to strike down proslavery laws and regulations with ease, the Civil War Amendments might not have been necessary. But they were necessary to facilitate the demise of slavery.

Finkelman speculates about what the courts could have done to advance antislavery causes, but courts cannot do anything unless the right litigants bring the right cases with the right facts before the right tribunals while making the right arguments. Judges do not commence lawsuits but handle the ones brought before them. Finkelman could have examined some cases more closely to reveal how the facts, issues, reasoning, and holdings should have differed in rationale, not just in result. Too many cases receive only cursory treatment; lawsuits are more than picking winners and losers.

At one point, Finkelman accuses Marshall of reading a statute “in favor of slavery and not freedom,” but the statute isn’t quoted. Readers will have to look up the case to decide if Marshall’s interpretation was reasonable or arbitrary — if, that is, his hermeneutics adequately reflected a common understanding of the statutory language or intolerably controverted congressional purpose and prerogative. Finkelman chides departures from precedent, but rarely analyzes the allegedly controlling cases to verify that they are, in fact, dispositive of the later controversy by analogy of received rules.

One is regularly left with the impression that the only issue in the cases Finkelman evaluates was whether a slave should be free or not. Many of the cases, however, involved procedural and jurisdictional complexities that had to be resolved before grand political holdings implicating the entire institution of slavery could be reached. We’re still debating the ambiguities of federalism (e.g., how to square the Supremacy Clause with the Ninth and 10th Amendments) that complicate any exposition of the interplay between state and federal law, so it can seem anachronistic and quixotic to condemn Marshall, Story, or Taney for not untangling state and federal law in a manner that in retrospect would appear to have occasioned more freedom and less bondage.

Then again, it’s hard to fault Finkelman for subjecting these giants of the law to such high standards. That men like Marshall and Story have not been investigated as their contemporaries have in light of the horrors and effects of slavery speaks volumes about the willful blindness of the legal profession and the deficiencies of legal scholarship. Finkelman remains an important voice in legal education and has pushed scholarly conversations about slavery in new directions. At 68, he’s likely got more books left in him. Anxious readers await the next.

Richard Bulliet on Transformations in Europe, 1500-1750

In Academia, Arts & Letters, History, Humanities, liberal arts, Pedagogy, Philosophy, Politics, Teaching, Western Civilization on July 18, 2018 at 6:45 am

In the following lecture, Professor Richard Bulliet discusses transformations in Europe during the period of 1500 – 1750:

What Is Federalism?

In Jurisprudence, Law, Philosophy, Politics on May 16, 2018 at 6:45 am

Federalism refers to the organization of several divided polities that share and compete for power under the jurisdiction of a central government that derives its authority from a binding contract or constitution to which the polities have submitted or otherwise consented either expressly or impliedly.

The goal and effect of federalism is to disperse, diffuse, and decentralize power among competing units of government, mediate conflicts that arise between diverse groups and interests within different polities, and integrate cultural and normative variety into the governing institutions that hold different polities together in political union.

Licensing Away Economic Prosperity

In Economics, Law, Libertarianism, Politics on March 21, 2018 at 6:45 am

This article originally appeared here in the Alabama Political Reporter. 

Do you want to alleviate poverty in Alabama? Do you want to curb the power of special interest groups over government agencies? Do you want more affordable goods and services in basic industries?  Do you want to help disadvantaged groups find good jobs and become productive citizens? Do you want to reduce the population of our overcrowded prisons?

If you answered yes to any of these questions, you should read a new reportpublished by the Alabama Policy Institute titled “The Costs of Occupational Licensing in Alabama.” Coauthored by Daniel Smith (Troy University), Courtney Michaluk (Troy University), David Hall (Troy University), and Alex Kanode (George Mason University), the report details the effects of occupational licensure on our state.

What is occupational licensure? In short, it’s governmental regulation requiring people to obtain a license before entering into certain trades or fields. Sounds harmless, right? Aren’t these regulations in place to protect consumers from exploitation and inexpert practices? Such reasoning led to the rise in occupational licensure, which today extends to several zones of economic activity.

However well-meaning, occupational licensure has had unintended consequences on the people it’s designed to protect. Instead of helping average consumers, it lines the pockets of industries that have lobbied to regulate away entrepreneurial forces that drive down costs.

If you’re poor and trying to find low-skilled work as a barber, manicurist, eyebrow threader, hair stylist, school bus driver, or shampoo assistant, you must obtain a license first. This license may be prohibitively expensive because of renewal fees, coursework, continuing education, and so forth.

“Alabama licenses a total of 151 occupations,” according to the report, “covering over 432,000 Alabama workers, which represents over 21 percent of the labor force.” Think about that: more than two of every 10 people working in Alabama need a license to do what they do for a living. Licensing boards governing admission standards and prerequisites can mandate expensive training and dues that don’t affect the quality of industry services.

Economists refer to occupational licensure as a barrier to entry. Barriers to entry ensure that those already within a profession or trade can raise prices to artificially high levels, in effect squeezing out competition by using the mechanisms of government to control the market.

Inflated prices harm low-income families who cannot afford to buy what they could have bought if the market had set prices based on natural supply and demand. Spouses of military service members often suffer from occupational licensure because, when they move from state to state, they must jump through hoops to enter the licensed profession in which they practiced in other jurisdictions.

Occupational licensure is, in short, a net burden on the economy, escalating prices, limiting consumer choice, and restricting economic mobility.  The API report estimates that the overall costs of occupational licensure in Alabama exceed $122 million. That’s a lot of money. What can be done to keep some of it in the hands of the ordinary people who need it most?

The report proposes five reforms for Alabama policymakers:

  1. “[T]hey can reform current procedures for extending occupational licensing to new occupations and mandate thorough review processes to ensure that licensing is not extended to new occupations without a demonstrable and severe threat to consumer safety that cannot be overcome with the market mechanisms, such as consumer or expert reviews, reputation, guarantees, or private certification, or the already existing government laws, such as those dealing with liability, fraud, misrepresentation, and false advertising.”
  2. “[T]hey can establish procedures to systematically review all licensure requirements for currently licensed occupations to ensure that they do not require unnecessary or excessive requirements or costs for licensure.
  3. “[T]hey can systematically review all currently licensed occupations to determine, individually, whether a demonstrable severe threat to consumer safety exists. If not, they can remove occupation licensing entirely for those occupations.”
  4. “[They] can explore licensure reforms that specifically target ex-offenders” to reduce the prison population and criminal recidivism.
  5. “[They] can … explore occupational licensing reform with military members and their families in mind.”

A short article cannot capture the nuance and particulars of the entire report; readers should view the report for themselves to make up their own minds.

During this time of partisan divide and political rancor, people of good faith on both the left and the right can agree that something needs to be done about occupational licensure. The problem cannot continue to grow. It presents a unique opportunity for Republican and Democratic lawmakers to come together to ease economic burdens on the people of Alabama. Let’s hope they seize it.

What is Conservatism?

In Arts & Letters, Conservatism, Humanities, liberal arts, Philosophy, Politics, Western Philosophy on March 14, 2018 at 6:45 am

Conservatism in the sense in which I use the term refers to an attitude or disposition that rejects ideology (all-encompassing systems of normative theory and institutionalized practices that drive policy towards idealized or utopian ends) and radicalism or extremism (the quality of holding fanatical, severe, or drastic views).

Conservatives so styled are neither doctrinaire nor absolutist. They tend to be spiritual, or at least recognize in humans a need and desire for spiritual fulfillment and religious order. Change, they believe, is inevitable; it should occur prudentially, gradually, and naturally through civil debate, prescribed political processes, and nonviolence.

Conservatism predicates the necessity for moral order on the imperfectability of human nature and the limitations of human intelligence; its normative values are embedded, historical, local, contextual, and rooted in immemorial usage.

Conservatism views the past as a fund of wisdom and knowledge, not as a brooding evil to be discarded, erased, or escaped. It therefore respects cultural continuities.

Russell Kirk’s various iterations of conservative principles in different versions of The Conservative Mind are, in my mind, the surest expressions of conservatism to date.

A Conversation Regarding Thomas Goode Jones

In America, American History, Books, History, Humanities, Law, liberal arts, Nineteenth-Century America, Politics, Scholarship, The South on November 8, 2017 at 6:45 am

Bob Higgs, the Man with a Smart Card

In Creativity, Economics, Law, Politics, Science on October 11, 2017 at 6:45 am

A different version of this article appeared here in the Library of Law and Liberty.

The U.S. healthcare industry is notoriously inefficient and troublesomely massive. It’s also wealthy and getting wealthier and more powerful as medical costs have exceeded, by some estimates, $10,000 per person.

What’s to be done?

Back in 2005, a group of healthcare experts asked, in a RAND Corporation study, whether electronic medical-record systems could transform healthcare by reducing costs and increasing efficiency. The answer, in short, was: it depends.

Although systematizing electronic medical records could save over $81 billion per year, these potential savings would be realized, the study concluded, only if healthcare in the United States integrated new technologies to allow for the flow of medical data between the patient and relevant parties such as doctors, hospitals, or insurers. Non-standardized record systems would result, by contrast, in inconsistent, inefficient, and incomplete data exchanges that could increase rather than decrease costs.

RAND Corporation revisited the issue in 2013, finding that healthcare expenditures had grown by $800 million since 2005 in part because systems of electronic medical records remained non-standardized. “We believe that the original promise of health IT can be met,” wrote Arthur L. Kellermann and Spencer S. Jones, the authors of the study, “if the systems are redesigned to address these flaws by creating more-standardized systems that are easier to use, are truly interoperable, and afford patients more access to and control over their health data.”

Healthcare in the United States is constitutionally fragmented: Not only does the industry consist of various entities, from doctors and hospitals and insurance providers to commercial suppliers of devices, goods, and services, but also the pricing of medical services is unreliable and unpredictable in part because the country is so large and the industry subject to different regulations from state to state.

Information integration could go a long way towards cutting medical costs and increasing medical savings. For example, it could reduce waste resulting from misdiagnoses, repetitive procedures, erroneous prescriptions, and duplicate testing and imaging.

What if there were a simple solution for this waste?

One entrepreneur believes he’s found the technology to revolutionize the way healthcare records are shared and maintained through Health Information Exchange (HIE).

Robert E. Higgs is the founder of ICUcare, a company that aims to improve technologies in the fields of telemedicine and electronic health records. He has invented a “smart” health card that can contain a patient’s complete medical history, which is stored in a cloud. His vision is that patients own their personalized smart cards, which they can voluntarily submit to healthcare providers and institutions for cheaper and more efficient services. Data on the card are easily stored and updated and exchanged only with the patient’s consent; thus, in the case of emergency, the patient’s medical records can be readily accessed and quickly reviewed.

There remains, sadly, a felt need to transition the healthcare industry from paper to electronic records. The smart card meets this need, but it does much more. It tracks your billing history, reconciles erroneous payment information, protects against fraud and identity-theft, and serves as a conveniently portable device.

One would expect such a card to have been in circulation by now, given the extensive government investment in HIEs. President George W. Bush, for example, issued an executive order in 2004 to create the Office of the National Coordinator for Health Information Technology (ONC), a division of the Department of Health and Human Services (DHS) designed to advance technology and innovation pertaining to the exchange of healthcare information. This office created eHealth Exchange, a coalition of states, federal agencies, hospitals, medical groups, pharmacies, and other such entities that’s now run by the Sequoia Project.

But the federal government and the public-private partnerships it has fostered have been unable to produce a smart card that matches Higgs’s in capability and functionality. And even if they had, government retention of sensitive medical data would, among other things, raise privacy concerns that voluntary private transactions and coordination would alleviate.

Moreover, the many spinoff organizations emanating from the ONC and DHS have only crowded the field with swollen, inefficient government and quasi-government structures and programs. Rather than helping the situation, these putative “solutions” have slowed down innovators like Higgs, forcing them to deal with politicians and bureaucrats rather than patients and hospitals.

Having heard about Higgs’s curious smart card through a friend, I decided to reach out to him to find out more. I asked him, first, about privacy implications, namely whether the smart card could increase incidents of non-consensual data transfers and disclosures.

The smart card, he said, “never sends data to the care provider—it brings the care provider to the data.” He explained that data on the smart card are encrypted using the same standards as those used by the Department of Defense for common-access cards.

“We used Advanced Encryption Standard 265, or AES-256,” he said, “the highest standardized encryption specification that’s used worldwide by entities as diverse as corporations and the U.S. government. The key size of 256 bits means that the key, which turns encrypted data into unencrypted data, is a string of 256 ones or zeros.”

I admitted that I didn’t fully understand.

“Put it this way,” he said. “The research I’ve read indicates that each character has two possibilities—one or zero—for which there are 2,256 possible combinations. If 50% of the possibilities must be exhausted to determine the correct key, then you need to guess 2,255 of them [to hack the encryption].”

Pressed about how long it would take to test all possible keys to break the encryption, Higgs, parroting a claim I’ve heard used to describe bitcoin, said, “The universe itself has existed for 14 billion years. It would take something like 1.5770813e18 longer than our universe’s full age to exhaust just half of the key-space of our encryption.”

An attempt to verify Higgs’s figures turned up a plethora of studies and blog posts about encryption and decryption, bitcoin, hacking, and computer engineering (the calculation appearing on many blogs and tech sites is ~6.7e40, which equals 235,385,265,247,008,100, which is multiplied by 6.7 to yield the 1.5770813e18 number that Higgs supplied).

These calculations can be confusing, but the point Higgs wanted to drive home is that the smart card reverses the current power imbalance: today corporations and governments store medical records that patients often can’t access or don’t know about; the smart card, however, empowers patients to store their own records that they may voluntarily release to corporations and governments. The smart card, in other words, returns agency to the consumer whose data is at stake.

It would also, Higgs alleges, reduce rates of healthcare fraud. According to estimates by the National Health Care Anti-Fraud Association, the United States loses tens of billions of dollars every year due to healthcare fraud. Canada, Germany, and France have each instituted some form of a smart card to successfully cut back on fraud.

A company called Cerner has just landed a deal with the Department of Veterans Affairs (the VA) to implement an electronic health records system. The move away from the VA’s Vista system to Cerner’s electronic system suggests that at least some government officials are aware of the need to adopt interoperable and integrated measures of retaining and sharing medical records. The VA will implement the same electronic health record system used by the DOD.

So far as I can tell, however, Cerner has not created a smart card like Higgs’s. I reached out to Adam Lee, a senior communications partner at Cerner, to ask about smart cards and Cerner’s hopes and plans with the VA. Lee referred me to this press release about Cerner’s work with the VA but did not discuss smart cards.

Talking to Higgs is like talking to a computer: more engineer than salesman, he’s strikingly intelligent but has difficulty getting through to politicians. He’s monotone and meticulous, frank and unexcitable. He’s fast with facts and figures and savvy with technology, but the average politician wants to know primarily whether the smart card appeals to constituents and only secondarily whether it’s operable and efficient.

Higgs grew emotional during our phone call, however, as he told me the story of his wife, who underwent a routine procedure that went wrong. He claimed that, during this standard operation, errors were made that could have been avoided had her doctors possessed his wife’s proper medical records. She’s been subjected to numerous tests throughout her illness, he said, only to have them redone when visiting a new facility or specialist because of an inability to simply retrieve her medical history. She remains in bad shape, living at home with hired assistance.

This unfortunate situation has motivated Higgs to seek answers to save others from similar mistakes in similar circumstances.

If Higgs’s smart card is so great, you might ask, why hasn’t it been adopted? Why haven’t I heard of it? Why doesn’t it circulate widely? Why aren’t hospitals jumping at the opportunity to use it?

The answer, according to Higgs, is simple: the healthcare industry doesn’t want you to know about his smart card because it doesn’t want to reduce costs. It’s full of people getting rich off inefficiency and artificially high prices. Lobbyists for the healthcare industry have taken advantage of the fear and apathy of politicians to ensure that technological progress is delayed or stymied.

Thus, Higgs describes his job in terms of David versus Goliath.

There are numerous ideas about how to trim healthcare spending; Higgs’s smart card is not the exclusive remedy or sole fix. But it’s an encouraging development. Healthcare spending makes up about 17.8% of the nation’s economy, according to an actuary report by the Centers for Medicare and Medicaid Services. And it shows no signs of decreasing. This trend is unsustainable; something must be done—and undone.

We could use more men like Higgs and less government to push us in the right direction before it’s too late.

 

 

 

Review of Brent J. Aucoin’s “Thomas Goode Jones: Race, Politics & Justice in the New South” (University of Alabama Press, 2016)

In America, American History, Arts & Letters, Book Reviews, Books, History, Humanities, Law, liberal arts, Politics, Scholarship, Southern History, The South on August 2, 2017 at 6:45 am

This review originally appeared in the Spring 2017 issue of the Journal of Faith and the Academy.

Brent J. Aucoin’s new biography is a probing treatment of the neglected figure of Thomas Goode Jones. To some, Jones is discredited because of his ownership of slaves and military leadership in the Confederate Army; to others, he’s a wounded war hero, distinguished jurist, and revered governor who sought reconciliation with former slaves. The truth, as always, is more complex.

Jones does not fit neatly into simplistic categories; he defies the trite labels of current political vocabulary. He even cut across partisan divides in his own day. His story is not a crude morality tale, nor does it contain clear lessons for posterity. Aucoin calls Jones “enigmatic.”  He seeks to consider Jones “holistically.” His studied reflection on Jones reveals a complicated man who’s both congenial and flawed, ahead of his time and yet a definite product of it.

Born in precarious circumstances in what today is Macon, Georgia, Jones had family roots in Virginia. His father, Samuel Goode Jones, worked for the railroad and moved the family from place to place, trying to earn an honest living. They settled in Montgomery when Samuel took a job there as an engineer. Thomas Jones was five at the time.  He and his family attended St. John’s Episcopal Church, downtown, where the pew in which Jefferson Davis worshipped remains intact, the other rows of pews having been replaced long ago.

A romantic childhood it was not. Jones was sent to Virginia to study at academies that fed into the Virginia Military Institute (VMI). He was groomed to be a soldier. By the time he enrolled at VMI, the Civil War had broken out, and he joined the ranks of his professor, Major General Thomas J. Jackson. Jones transferred units and worked his way up the chain of command, barely avoiding death on more than one occasion. Legend has it that, while riding horseback, he saved a wandering child during the heat of battle. This and other tales of heroism earned Jones the reputation as a valiant warrior. General Robert E. Lee himself selected Jones, among others, to deliver the flag of surrender to General Ulysses S. Grant at Appomattox Courthouse.

After the War, Jones returned to Alabama to begin a new career, or careers.  He married, sired 13 children, and enjoyed a rapid rise to fame and distinction, first as an editor of The Daily Picayune and later as a speaker, lawyer, and Democratic politician.  Believing it was God’s will for the South to fully reintegrate into the Union, he championed reunification, receiving honors and awards for his efforts to this end.  His celebrated 1874 Memorial Day Address was a reconciliatory precursor to that of Oliver Wendell Holmes Jr. a decade later.

Jones is known, in our day, mostly as a legislator, judge, and governor—and indeed the bulk of Aucoin’s book is dedicated to these periods of Jones’s life. Aucoin pays close attention to Jones’s often contradictory, always multifaceted, and sometimes disturbing views on race and race relations. Following Booker T. Washington, Aucoin says, “Jones eschewed the idea of a political solution to the so-called Negro problem—namely, the passage and enforcement of civil rights legislation—but also . . . opposed the political effort to disenfranchise blacks.”

Jones supported segregation of the races under a separate-but-equal scheme, yet he backed the creation of Alabama State University, a black college founded in 1867. He advocated the education of blacks to varying degrees, but his rhetoric on this topic can sound paternalistic and hollow to the modern ear. That he opposed educational prerequisites to voting, however, suggests he was willing to risk clout and status to take an unpopular stand on behalf of former slaves. He also, quite controversially at the time, sought to abolish the exploitative convict leasing system that carried with it the residual features of slavery.

Aucoin describes Jones’s politicking in great detail, from probable election fraud to campaigns for higher taxes. As governor, Jones decried the mob violence that had become common in Alabama. Later, as a judge, he attempted to charge a lynch mob under federal law.

Jones’s popularity waxed and waned. An economic crisis befell the state during his governorship, and workers from different industries began to strike. This once gallant soldier grew tired and frustrated and lost much of his charisma.  During one ceremony as governor, suffering from “cholera morbus,” he fell from his horse as he tried to dismount. Word of this clumsy incident spread quickly, and Jones was humiliated.

Yet he always drew admirers. His work on race relations, if not always courageous, was at least a step in the right direction. When he died, an unexpected number of blacks attended his funeral, watching solemnly. “Jones may not have been a hero,” Aucoin submits, “or someone on the good side who was unfaltering in his fight against evil, but there appears to be cause for concluding that he distinguished himself from the more rabid racist leaders of the South.”

The institution I work at bears the name of this curious man, whose bust is displayed prominently at the top of the stairs of the entry rotunda, looking down on the busy law faculty and students who come and go without the slightest concern for, or even knowledge of, his life. I’ve placed my copy of Aucoin’s biography beneath that bust with a short note: “Free copy. Learn about a fascinating person.”

It seemed like the right thing to do.

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