The Volokh Conspiracy

Newt Gingrich recently claimed that Founding Fathers George Washington and Thomas Jefferson “would have rather strongly discouraged you from growing marijuana and their techniques with dealing with it would have been rather more violent than our current government.” As Jacob Sullum points out, this ignores the fact that Washington and Jefferson themselves grew hemp on their plantations, and that marijuana use was neither illegal nor socially stigmatized in the late 18th and early 19th centuries.

Perhaps more importantly, few if any of the Founders would have thought that the federal government had the constitutional authority to ban marijuana growing. As I discuss in this article, as late as the early twentieth century, advocates of Prohibition had to enact a constitutional amendment to forbid the sale of alcoholic beverages, because the dominant view at the time held that Congress did not already have the power to do this. If they are serious about enforcing constitutional limits on federal power, Gingrich and other conservatives cannot continue to ignore the ways in which the War on Drugs has severely undermined those limits, most notably in Gonzales v. Raich, the Supreme Court’s most expansive interpretation of federal authority so far.

Earlier today, I skipped both the annual AALS conference and the parallel Federalist Society conference in order to attend a moving memorial for Vaclav Havel sponsored by the National Endowment for Democracy and the Czech embassy. Appropriately, most of the speakers were dissidents and human rights activists from societies with repressive governments – including Syria, China, Cuba, Ethiopia, and others. It was an impressive demonstration of the ways in which Havel inspired people all over the world. I won’t try to summarize what the speakers said (videos of some of their remarks are available here). But it was particularly interesting to hear Ethiopian opposition leader Birtukan Midekssa speak about how she had read Havel’s The Power of the Powerless while in prison.

I briefly summarized my own thoughts on Havel’s life and legacy here.

On Tuesday, January 10 at noon, I will be speaking on the War on Drugs at a panel organized by the University of Chicago Law School Federalist Society. I will discuss the ways in which the War on Drugs undermines constitutional federalism, some of the harm it inflicts on our society, and recent changes in public and elite opinion that may make it easier to promote change in this field. Also taking part in the panel will be Cook County Commissioner John Fritchey.

Since Rick Santorum’s unexpected success, his extreme social conservatism has gotten a lot of attention. In some cases, it goes beyond what even most conservative Republicans would be willing to support. My personal favorite extreme Santorum quote hasn’t yet gotten as much play as some of the others.

In a September GOP debate, Santorum responded to a question about his position on the repeal of Don’t Ask, Don’t Tell by saying that “any type of sexual activity has absolutely no place in the military.” Perhaps Santorum merely meant that military personnel should not be having sex while on duty. But if that’s the case, no one disagrees with him, including supporters of the repeal of DADT. Getting rid of DADT doesn’t change regulations forbidding sexual behavior that interferes with the performance of duty. The more natural reading of Santorum’s quote is that military personnel should be forbidden to engage in “sexual activity” of any kind for as long as they are in the armed forces. If that’s the case, only celibates could serve in the military.

It’s possible that Santorum simply misspoke. But when the moderator asked him to explain his position further, he actually dug the hole deeper:

When moderator Megyn Kelly pressed him on what he would do as President, he fired back, “We are playing social experimentation with our military right now and that’s tragic…going forward we would reinstitute that policy if Rick Santorum was president, period.”

Santorum acknowledged that he couldn’t do much about those men and women currently serving in the military that have admitted to being gay, but concluded by saying, “Sex is not an issue, it should not be an issue, leave it alone and keep it to yourself whether you’re a homosexual or a heterosexual.”

In Santorum’s army, not only would gays be required to keep their sexual orientation secret, but so would heterosexuals. An equal-opportunity closet for all! The problem, of course, is that it’s very difficult to keep your orientation completely secret from long-term coworkers. People naturally mention their spouses, significant others, and so on, in casual conversation. If you wear a wedding ring or have a photo of your spouse on your desk, that might also be an indication of your sexual orientation. As a practical matter, you would probably have to be either celibate or extremely secretive to be safe from punishment under Santorum’s rule.

I can understand, though I don’t agree with, people who claim that DADT must be restored in order to promote unit cohesion. But Santorum’s prudery goes way beyond that.

I suspect that Santorum may not have grasped the implications of what he was saying. If he thought about it more carefully, he might well realize that forbidding all “sexual activity” by military personnel is likely to destroy the armed forces by making it nearly impossible to attract the number of capable volunteers we need to staff the military. Unless he intends to cut the military far more than even Ron Paul, that’s probably not what Santorum really wants. If Santorum wins the presidency, I doubt that he will actually try to implement this policy, if only because it would be a public relations disaster. Even so, it was a foolish and revealing statement.

In every election year, politicians and pundits routinely attack negative campaigning, claiming that it is somehow inappropriate or harmful. This year, Newt Gingrich has been complaining about it especially loudly. But many others have said similar things.

As I see it, negative campaigning is just as useful and just as legitimate as the positive kind. In assessing candidates for public office, we need to know about their weaknesses as well as their strengths. When an employer chooses who to hire for a job, it would be foolish for him to consider only the fact that a given applicant is intelligent and knowledgeable, while ignoring evidence showing that he or she is, say, lazy and unreliable. The same goes for the process of hiring people for powerful political offices, which is ultimately what elections are all about.

Moreover, it’s important to remember that elections are comparative evaluations. We don’t just want to know how good Candidate A is. We want to know how he or she compares to opponents B, C, and D. In making such comparative judgments, negative information is just as important as the positive. Perhaps you think that Republican front-runner Mitt Romney has only modest strengths. But you might still vote for him as a lesser evil if you think his leading rivals are all truly awful. The same goes for the general election choice between the GOP nominee and Obama. You could end up preferring one of them to the other primarily because they seem to be a lesser evil than the alternative.

Obviously, negative campaign ads are sometimes inaccurate or misleading. But the same is true of positive ones. Candidates routinely exaggerate their supposed virtues and achievements. The reality of widespread political ignorance often allows politicians to get away with making false or misleading claims. But negative claims are no worse in that respect than positive ones.

Another common criticism of negative campaigning is that it leads voters to have a more negative view of the political process and to distrust government. Experts disagree about whether and to what extent this is true. But even if it is accurate, it may not be a bad thing. If voters have a more negative view of politicians and government, it might lead them to be more hesitant about entrusting those same politicians with ever-greater power. The dubious nature of most politicians is one of the reasons why it is important to restrict the size and scope of government.

UPDATE: I should mention political scientist John Geer’s 2006 book finding that negative ads actually give voters more useful information about candidates’ issue positions than positive ads do [HT: VC reader Joshua Spivak, who wrote a nice 2010 Forbes article describing some of the benefits of negative campaign ads].

This year’s election was supposed to be something new and different. However, Rick Santorum, the big winner in this year’s Iowa GOP primary is remarkably similar to the big GOP Iowa winner of 2008: Mike Huckabee. Like Huckabee, Santorum is a hard-core social conservative whose big government proclivities extend far beyond social issues. I covered Huckabee’s record in this December 2007 post. Santorum is remarkably similar, perhaps even worse. For the details on Santorum, see this post by David Boaz [HT: co-blogger David Bernstein], and Jonathan Rauch’s thorough review of Santorum’s 2005 book laying out his political philosophy. As Rauch noted, Santorum rejects what he once dismissed as “this whole idea of personal autonomy,” not to mention “the idea that people should be left alone.” He doesn’t just think that freedom should be heavily regulated; he’s against “the whole idea” on principle.

Santorum does have chutzpah. Despite his record, he just gave a victory speech where he emphasized that the main issue in this campaign is “freedom.” If that’s really what it’s about, Santorum’s campaign will end up the same way as Huckabee’s did. I’m no great fan of any of the other remaining GOP candidates. But none of them is as much a big government conservative as Santorum is.

UPDATE: There is one important difference between Huckabee’s success in 2008 and Santorum’s today. In 2008, Huckabee’s win seriously hurt Mitt Romney by preventing him from emerging as the main “conservative” alternative to John McCain until it was too late to stop McCain from winning the nomination. This year, Santorum’s success actually helps Romney by ensuring that his most prominent rival in the next few states will be a candidate who many Republicans see as unserious and unelectable against Obama.

UPDATE #2: Michael Tanner has more on Santorum’s big government version of conservatism here.

A couple weeks ago, I criticized a CNN article that stated that North Koreans “revere” recently deceased communist dictator Kim Jong Il, without noting that those who fail to show officially mandated reverence for the “Dear Leader” are likely to face severe sanctions from the government.

To its credit, CNN went on to publish a piece by John Sifton of Human Rights Watch’s Asia division that takes a more realistic view of the reasons why North Koreans express support for their brutal government:

Since Kim Jong Il’s death was announced…., many people have marveled at the mourning scenes featured on North Korean state television, made viral on the Internet: North Koreans prostrate, weeping, hitting the ground. Many have asked whether the anguish is genuine. How could citizens mourn the passing of a totalitarian, such a gross abuser of human rights?

The answer may be found in the human rights abuses themselves.

It is a lamentable characteristic of totalitarian regimes that they often demand acts of deceit from those they oppress. Often it is a matter of simple survival. Those who hate the regime are obliged to demonstrate patriotism. To fail is to risk persecution. The only alternative is to flee, a choice made by tens of thousands of North Koreans in the past two decades.

North Korea is unambiguously a totalitarian state. An estimated 200,000 North Koreans are held under brutal conditions in remote forced labor camps called kwan-li-so. Citizens are deprived of the freedom to speak, to dissent, to assemble, to seek remedies for grievances. Perhaps worst of all, there is no freedom from fear — knowing that one can be imprisoned and tortured for minor trifles, sent to a kwan-li-so for being related to someone who displeased the state, or face a kangaroo court trial and possible public execution for a long list of political or economic “crimes.”

The great Czech dissident Vaclav Havel, who died on the same day as Kim Jong Il, wrote about the phenomenon of coerced expressions of public support for totalitarian regimes in his classic book The Power of the Powerless. Enforced conformity is even more draconian in North Korea than it was in the USSR and Eastern Europe.

As I noted in my previous post on this issue, the fact that many North Koreans expressed support for Kim Jong Il out of fear does not prove that he didn’t have any genuine supporters. Some people really do love Big Brother, especially after decades of indoctrination. However, expressions of popular support for totalitarian rulers should not be taken at face value.

The Republican primary in my home state of Virginia is becoming ever more ridiculous. First, the state GOP’s byzantine signature-gathering rules prevented all but two of the candidates (Mitt Romney and Ron Paul) from getting on the ballot. Now the state GOP has decided to require all primary voters to take a loyalty oath pledging to “support the nominee of the Republican Party for president” in the fall. The pledge is not legally enforceable, but state GOP leaders hope it will deter Democrats and independents from voting in the primary. They can’t simply limit the primary to registered Republicans because Virginia has nonpartisan voter registration.

Be that as it may, the oath is still stupid. Even if you’re a hard-core Republican partisan, there are surely some circumstances where you might choose to vote for another party’s candidate, or simply abstain. What if the eventual GOP nominee has a massive scandal (e.g. – after he gets nominated, evidence emerges proving that he’s a murderer or a child molester)? What if you believe that he or she is incompetent or ideologically abhorrent?

In addition to being the last day of the year, today is also the twentieth anniversary of the official end of the Soviet Union, when the last Soviet government institutions shut down. Today’s quasi-authoritarian Russia is far from admirable. But, despite Mikhail Gorbachev’s lame and self-serving claims to the contrary, it is still a vast improvement over the USSR. In addition to the benefits for Russia and other parts of the former Soviet Union, the fall of the USSR also created important benefits for the rest of the world. I covered the many advantages of the end of the USSR in more detail in this post.

With the demise of the USSR, we were spared a regime that slaughtered millions both within and outside its borders, inflicted numerous other human rights violations, and created a threat of nuclear annihilation that hung over the entire world. Compared to that, the very real dangers of the post-Cold War world seem minor by comparison. I recognize, of course, that the USSR in the last years of Gorbachev’s reign was much less dangerous and oppressive than it had been previously. But had the regime survived, it is far from clear that Gorby’s reforms would not have been reversed. Previous episodes of Soviet liberalization in the 1920s and 1956-64 had been followed by waves of repression at home and expansionism abroad. Moreover, Gorbachev himself was not as much of a liberal democrat as he is often portrayed in the West. He used force to try to suppress the independence movement in the Baltics, and otherwise sought to preserve the Soviet regime, not end it. He was certainly much less ruthless and repressive than his predecessors. But that is judging him by a very low standard of comparison. Nonetheless, it is fortunate that Gorbachev’s efforts at limited liberalization spun out of his control and led to a beneficial outcome that he did not intend.

Some defenders of the Obama health insurance mandate try to scare off opponents by claiming that if the mandate were repealed, the result will be a system of socialized medicine. Presumably, conservatives and libertarians oppose the latter even more than former. Such claims may have led conservative commentator Paul Rahe to argue recently that the individual mandate is even worse than socialized medicine, or at least worse than government-provided health insurance. I think Rahe is wrong. But the more important point is that this is actually a false dichotomy: there are many alternative health care reforms that are more market-friendly than either the mandate or socialized medicine, whether the latter takes the form of government-provided health care (as in Britain) or “single payer” health insurance (as in Canada).

Even before Obama, health care was the most heavily regulated and subsidized industry in the United States, and there is plenty of room for free market reforms that can drive down costs by increasing competition. Some of the possible options are described in an important book by Cato Institute health care scholars Michael Tanner and Michael Cannon. They include breaking the connection between health insurance and employment created by government favoritism for employer-linked plans, and allowing individuals to purchase insurance across state lines, which would make insurance more portable and increase competition between insurance providers. As University of Chicago economist John Cochrane points out, there are also free market reforms that could alleviate the problem of coverage for preexisting conditions – the issue that is often cited as a justification for the mandate. And that’s just a small sample of the many available options. Many additional proposals are covered at John Goodman’s blog, among other places (Goodman is one of the best-known free market-oriented health care economists).

Obviously, the range of policies that are politically feasible in the near future is a lot narrower than the range of theoretically possible options. Even so, at least some pro-market reforms are likely to be as much or more politically viable as socialized medicine. If liberals could not push the latter through when the left was riding high in 2009 and Democrats had overwhelming majorities in both houses of Congress, it is highly unlikely that they will enact it at any time in the foreseeable future.

To the extent that socialized medicine is politically feasible, it may well become more rather than less so as a result of the individual mandate. Under the mandate, government must define the level of coverage that everyone is required to buy, including defining which medical conditions and treatments are included. This opens the door for constant lobbying by health care providers and other interest groups to ensure that their particular treatments are covered by the mandate. As more and more is mandated, the price of insurance goes up, and so too will political pressure for increasing government subsidies and government-provided insurance. Insurance costs have in fact gone up as a result of the Massachusetts “Romneycare” mandate that is the model for the federal reform.

Predicting the political future is a difficult business, so it’s possible that my expectations are wrong. At this point, however, it seems at least as likely that the continuation of the mandate will make socialized medicine more probable than that the opposite will happen.

Finally, if getting rid of the individual mandate really will bring on the advent of socialized medicine, why don’t any liberal activists and health care experts support it? There are plenty of left-wingers who would prefer socialized medicine to the Obama plan. If they think that the repeal of the latter would lead to the former, then they should form a coalition with Obamacare opponents on the right and work to get it repealed. A small number of liberals are in fact willing to get rid of the mandate, most notably Howard Dean. But even Dean doesn’t claim that abolition of the mandate would lead to socialized medicine. He merely thinks that the mandate is a political liability for Democrats and that the Obama plan can work just as well without it. The extreme rarity of left-wing support for repeal of the mandate suggests that few liberals genuinely believe that getting rid of it is likely to lead to socialized medicine.

Obviously, none of this is directly relevant to the constitutional arguments against the mandate. It is logically possible that the mandate is both unconstitutional and the only politically feasible alternative to socialized medicine. But that scenario seems highly unlikely. The spectre of socialized medicine should not deter free market advocates from either pursuing the constitutional case against the mandate or trying to repeal it politically.

UPDATE: I should acknowledge co-blogger Jonathan Adler’s September post making a similar argument.

The California Supreme Court recently issued a ruling upholding the constitutionality of a law abolishing the state’s numerous redevelopment agencies:

The California Supreme Court ruled Thursday against redevelopment agencies, including San Diego’s, and said they cannot remain in business by paying the state a portion of their property tax receipts….

The court was dealing with two laws passed by the Legislature in June to help close the state budget deficit by tapping the redevelopment funds held by redevelopment agencies.

One, AB1X26, abolished the redevelopment agencies and set up a mechanism to shift the redevelopment taxes back to the cities, counties, schools and others.

The second, AB1x27, allowed the agencies to continue but required them to opt in but only by paying pay the state $1.7 billion from their tax revenues this year and about $400 million annually in the future or about 10 percent of their tax receipts….

The second law is unconstitutional, the court said, because the agencies do have a right under Proposition 22, passed last year, to retain local revenues.

“We largely uphold Assembly Bill 1X26 and invalidate Assembly BillX127,” the court said.

And so in an ironic twist of fate, the agencies won their argument that they can keep their money but lost their argument that they can continue to exist.

Although the bill abolishing the redevelopment agencies was adopted primarily for the purpose of alleviating the state’s dire fiscal problems, it also has the beneficial side effect of curtailing eminent domain abuse. As I explained in this post defending the new legislation before it passed, the redevelopment agencies routinely engaged in dubious takings that transferred property to favored interest groups and destroyed more value than they created.

The Institute for Justice – a leading libertarian public interest law firm specializing in eminent domain issues – addressed the property rights benefits of the ruling in this statement:

In a landmark victory for private property owners in the Golden State, the California Supreme Court today upheld a statute abolishing the nearly 400 redevelopment agencies across the state. The court also struck down a law that would have allowed these agencies to buy their way back into existence. The final outcome of the case is that, in 2012, California’s decades-long redevelopment nightmare will finally come to an end.

California redevelopment agencies have been some of the worst abusers of eminent domain for decades, violating the private property rights of tens of thousands of home, business, church and farm owners. The Institute for Justice has catalogued more than 200 abuses of eminent domain across California during the past ten years alone….

While the decision focused on specific provisions of the California Constitution, its practical effect represents a significant victory for California property owners. “Redevelopment in California has been a billion-dollar, state-subsidized boondoggle that has completely eroded private property rights through the abuse of eminent domain for private gain,” said Christina Walsh, the Institute’s director of activism and coalitions. “With the court’s decision, redevelopment has finally met its long-overdue end, and property owners who have been living in terror across the state can finally rest safe in what they’ve worked so hard to own.”

The ruling won’t necessarily end all eminent domain abuse in California. Other government bodies also sometimes engage in abusive takings, and it’s possible that the state legislature will give more condemnation authority to some of those agencies now that the redevelopment agencies are gone. Nevertheless, the abolition of those agencies is a major step forward for property rights in California, as well as for the state’s beleaguered taxpayers.

Proposed by a liberal Democratic governor and supported by a wide range of libertarian and conservative property rights advocates, the law upheld in this case is a good example of the kind of cross-ideological cooperation on property rights issues that we need to see more of.

The Politico website recently asked its contributors for commentary on the controversy over Ron Paul’s racist newsletters. Here is an excerpt from my response:

Ron Paul clearly deserves substantial blame for publishing racist and anti-Semitic material in his newsletters in the early 1990s. Although he almost certainly did not write those articles himself, it is difficult to believe that he was completely unaware of their contents. Moreover, there is no disputing the fact that, in the early 1990s, Paul was part of a small group of libertarians led by Lew Rockwell and Murray Rothbard who sought to forge an alliance with “paleoconservative” elements by adopting a political strategy of appealing to white racial resentment…..

Paul is not a racist himself. But at least for a time, he was clearly willing to get into bed with political allies who sought to exploit racist sentiments. In some ways, Paul’s situation is similar to that of other politicians with dubious past associations. Indeed, there are parallels between Paul today and Barack Obama in 2008, when he was attacked for his past relationships with anti-American and anti-Semitic minister Jeremiah Wright and ex-terrorist and self-described communist Bill Ayers….

Despite their respective efforts at damage control, it is entirely legitimate to hold these past associations against Obama and Paul. While they were not bigots or terrorists themselves, they clearly were willing to ally themselves with people who are…..
I am not a Paul supporter myself – both because of the newsletter issue, and because I think he is badly misguided on some other issues. But I can understand why a reasonable person might reach the conclusion that Paul’s strong libertarian stance on a number of issues today outweighs his earlier sins.

One of my concerns about Paul’s candidacy is that it could end up tarring libertarianism by association with his past misdeeds. It is important to recognize that the Rothbard-Rockwell strategy was opposed by most libertarian intellectuals and movement organizations when they and Paul pursued it in the early 1990s…..

[N]umerous libertarian commentators have denounced Paul’s equivocations about the newsletters during the 2008 campaign and this year. We have neither excused nor ignored his very real flaws. Rothbard and Rockwell’s “paleo” strategy was widely opposed in libertarian circles long before it became a major public controversy during Paul’s most recent presidential campaigns.

Paul’s relative success this year shows that the libertarian message has considerable appeal even when the messenger is deeply flawed. It remains to be seen how much the messenger’s sins will tarnish the libertarian cause in the long run.

For my earlier commentary on Paul, see here and here, and this series of posts written during the 2008 campaign.

I am sorry to be the bearer of bad tidings during the holiday season. Unfortunately, however, I recently learned that University of Illinois law professor Larry Ribstein passed away suddenly earlier today. Larry was a well-known and highly regarded legal scholar – one of the best of his generation. He wrote extensively on corporate law, federalism, and the future of legal education.

No doubt there will be many analyses and appreciations of Larry’s outstanding contributions to scholarship over the coming days and weeks. My personal favorite among his many excellent works is his recent book The Law Market (coauthored with Erin O’Hara), which is perhaps the best recent book on the potential benefits of competition between state legal systems in American federalism. Larry is also well-known in the legal blogosphere for his insightful posts at Truth on the Market, where he wrote an excellent post on ABA accreditation of law schools just a few days ago.

I have known Larry professionally for several years, and he was always a courteous and helpful colleague, including for much younger and lesser-known scholars. I saw him give a workshop presentation just a couple months ago, where he was, as always, in excellent form. His unexpected passing comes as a terrible shock. He will be greatly missed by his family, friends, and colleagues.

UPDATE: The official memorial notice from the University of Illinois is available here.

James Kirchick of the New Republic has an article taking libertarians to task because they allegedly don’t “care about Ron Paul’s bigoted newsletters,” which have reentered the limelight since Paul’s recent rise in the GOP primary polls:

Ultimately, Paul’s following is closely linked with the peculiar attractions of the libertarian creed that he promotes. Libertarianism is an ideology rather than a philosophy of government—its main selling point is not its pragmatic usefulness, but its inviolable consistency. In that way, Paul’s indulgence of bigotry—he says he did not write the newsletters but rather allowed others to do so in his name—isn’t an incidental departure from his libertarianism, but a tidy expression of its priorities: First principles of market economics gain credence over all considerations of social empathy and historical acuity. His fans are guilty of donning the same ideological blinders, giving their support to a political candidate on account of the theories he declaims, rather than the judgment he shows in applying those theories, or the character he has evinced in living them. Voters for Ron Paul are privileging logical consistency at the expense of moral fitness.

But it’s not simply that Paul’s supporters are ignoring the manifest evidence of his moral failings. More fundamentally, their very awareness of such failings is crowded out by the atmosphere of outright fervor that pervades Paul’s candidacy.

Kirchick’s argument is based on a false premise. Numerous prominent libertarian commentators have in fact denounced Paul for the newsletters and his other unsavory associations, going back to when the issue first became prominent in 2008. I did so myself, as did co-blogger David Bernstein. So did David Boaz of the Cato Institute (the most prominent libertarian think thank), Virginia Postrel, and various writers at Reason, the most prominent libertarian magazine. Kirchick cites three supposedly libertarian “professional political commentators” who he claims have chosen to ignore Paul’s transgressions.

One of those three is Andrew Sullivan, who is pretty obviously not a libertarian and does not consider himself to be such. Another is Conor Friedersdorf of the Atlantic. Friedersdorf is indeed a libertarian Paul supporter [Update: or at least sympathetic to Paul's candidacy; I'm not actually sure whether he advocates voting for Paul or not]. But, far from ignoring the newsletters or giving Paul a pass on them, he has described them as “awful” and recognized that Paul deserves substantial blame for them.

Many other examples of libertarians who have denounced the newsletters could be cited. But these should be enough to make the point.

Kirchick also asks why libertarians didn’t choose to support Gary Johnson over Paul, given the former’s lack of damning associations. Well, I advocated precisely that, in part for precisely that reason, as did many other libertarian commentators. Unfortunately, Johnson’s candidacy failed to gain traction, in large part because he lacked Paul’s superior name recognition and financial resources.

Kirchick argues that support for Ron Paul indicates some sort of special “ideological” blinders by libertarians. I am no Paul supporter myself for reasons I summarized here and here. But I can understand supporting Paul despite the newsletters if you believe that, on balance, his policies are likely to be better for the nation than those of the other candidates.

Indeed, there is a parallel between supporting Paul in spite of his dubious associations and those who supported Barack Obama in 2008 despite his own dubious associations with anti-American and anti-Semitic minister Jeremiah Wright and ex-terrorist/self-described communist Bill Ayers. Paul’s defense is strikingly similar to Obama’s. Just as Obama claims he didn’t know about Wright and Ayers’ despicable views and doesn’t agree with them, Paul claims he didn’t know about the newsletters and doesn’t endorse their content. When the issue became a public controversy, Obama distanced himself from Ayers and Wright, and Paul has similarly denounced the newsletters. If I had to choose between the two cases, I would say that association with a person who has actually done evil deeds (Ayers’ terrorism) is more reprehensible than association with people who have merely said evil words (Wright, the authors of the Paul newsletters).

The evidence suggests that neither Paul nor Obama actually agree with the more despicable views of their past associates. There is no proof that Paul is actually a racist or that Obama is actually an anti-American, communist, or supporter of terrorism. Their fault, rather, was a failure to recognize that such views are reprehensible and beyond the pale of respectable discourse. Such errors of moral judgment can and should be held against a candidate. But one can reach that conclusion while still believing that the candidate is sufficiently superior to his opponents on other grounds to outweigh this defect.

UPDATE: The blame legitimately due Obama and Paul for these past associations diminishes if one believes their claims that they were unaware of their associates’ beliefs. I am skeptical, however. I do not believe that Obama could have maintained a close association with Wright for years without knowing about his beliefs, and the same goes for Ayers, especially given that his terrorist background was well-known and widely publicized (including in the New York Times). In the case of Paul, I highly doubt that a professional politician would, for years, publish newsletters named after himself without checking their content, or at least having his staff do so.

UPDATE #2: Tim Carney, the third commentator cited by Kirchick as an example of a libertarian inclined to ignore the newsletters, also seems to agree that Paul deserves blame for them. Conor Friedersdorf responds to Kirchick here:

Libertarian journalists very much care about the newsletters, as do the institutions of the movement. For now, I’ll refrain from speculating about the inner thoughts of libertarian voters except to say that Kirchick presents no evidence about them, and that not all Paul supporters are libertarians. To the Paul supporters who don’t think the newsletters are fair game for inquiry: you’re wrong.

In critiquing Paul supporters, Kirchick does get some things right. The candidate does inspire fervent, sycophantic support from some backers. It’s off-putting at times. But so was Hope and Change. And the exaggerated praise of Bush’s leadership after 9/11. Welcome to politics.

Friedersdorf also states, as I did, that he would have preferred that Gary Johnson had emerged as the most prominent libertarian-leaning candidate rather than Paul.

UPDATE #3: Some commenters doubt that Obama had any real association with Ayers. I don’t claim that the two were close or that Obama shared Ayers’ ideology. However, they did have a longstanding association, and Ayers and his wife (also a former terrorist) even held a key event for Obama’s first run for political office at his house, back in 1995. If Ron Paul had held a key campaign event at the home of an unrepentant former KKK terrorist, he would surely be blamed for it, and rightly so.

I was thinking of writing a post on Newt Gingrich’s ill-advised attack on the judiciary. However, most of what I would have wanted to say is covered in this George Will column:

When discussing his amazingness, Newt Gingrich sometimes exaggerates somewhat, as when…. he said, “People like me are what stand between us and Auschwitz”…… What primarily stands between us and misrule, however, is the Constitution, buttressed by an independent judiciary.

But Gingrich’s hunger for distinction has surely been slaked by his full-throated attack on such a judiciary. He is the first presidential candidate to propose a thorough assault on the rule of law. That is the meaning of his vow to break courts to the saddle of politicians, particularly to members of Congress, who rarely even read the laws they pass.

Gingrich’s most lurid evidence that courts are “grotesquely dictatorial” is a Texas judge’s aggressive decision concerning religious observances at high school functions, a decision a higher court promptly (and dictatorially?) overturned….

So, Gingrich is happy? Not exactly. He warns that calling the Supreme Court supreme amounts to embracing “oligarchy.”

He says that the Founders considered the judiciary the “weakest” branch. Not exactly. Alexander Hamilton called the judiciary the “least dangerous” branch (Federalist 78) because, since it wields neither the sword nor the purse, its power resides solely in persuasive “judgment.” That, however, is not weakness but strength based on the public’s respect for public reasoning. Gingrich yearns to shatter that respect and trump such reasoning with raw political power, in the name of majoritarianism.

Judicial deference to majorities can, however, be a dereliction of the judicial duty to oppose actions irreconcilable with constitutional limits on what majorities may do. Gingrich’s campaign against courts repudiates contemporary conservatism’s core commitment to limited government….

To teach courts the virtue of modesty, President Gingrich would attempt to abolish some courts and impeach judges whose decisions annoy him — decisions he says he might ignore while urging Congress to do likewise. He favors compelling judges to appear before Congress to justify decisions “out of sync” with majorities, and he would sic police or marshals on judges who resist congressional coercion. Never mind that judges always explain themselves in written opinions, concurrences and dissents….

[Gingrich] disdains the central conservative virtue, prudence, and exemplifies progressivism’s defining attribute — impatience with impediments to the political branches’ wielding of untrammeled power. He exalts the will of the majority of the moment, at least as he, tribune of the vox populi, interprets it.

I would add that Gingrich conveniently ignores the fact that there are already many constraints on judicial power. Judges are nominated by presidents and confirmed by the Senate, which makes it difficult to push through nominees who deviate greatly from the political mainstream. Once appointed, they cannot easily enforce decisions in the face of strong opposition from public opinion and/or the other branches of government. Congress can impose additional restraints by deciding which courts have jurisdiction over what issues.

Historically, federal courts have erred at least as much by failing to strike down unconstitutional laws and policies as by overruling laws that they should have upheld. Many of the most notorious Supreme Court decisions – Plessy v. Ferguson, Korematsu, Buck v. Bell, Kelo v. City of New London (which, as Will notes, Gingrich has harshly criticized), fall into the former category.

The trailer for Peter Jackson’s long-awaited Hobbit movie is now available:

No word yet whether the movie incorporates any of the recently discovered scientific evidence for the existence of prehistoric hobbits.

On a slightly more serious note, I like the look and feel of the movie, as depicted in the trailer, though the trailer itself could have been better designed.

This otherwise reasonable CNN article about recently deceased North Korean dictator Kim Jong Il claims that he was “revered at home” by his people, despite a negative reputation abroad:

Regarded as one of the world’s most-repressive leaders, Kim Jong Il always cut a slightly bizarre figure. His diminutive stature and characteristically bouffant hair have been parodied by some in the West….

But for the citizens of his Democratic People’s Republic of Korea, Kim was well regarded….

Analysts say it is easy for outsiders to demonize Kim Jong Il, a dictator who spent an estimated 25% or more of his country’s gross national product on the military while many in his country went hungry.

But in North Korea, closed off from outside influences, fearful of threats from its neighbors, and subjected to decades of political socialization on top of a long tradition of a strict hierarchical system, Kim Jong Il is viewed positively by most people, said Han Park of the Center for Study of Global Issues.

“The level of reverence for Kim Jong Il in North Korea is quite underestimated by the outside,” Park said. “He is regarded by many as not only a superior leader but a decent person, a man of high morality.

How do CNN and Han Park know that North Koreans “revere” the late “Dear Leader”? It’s true, as the article notes, that many North Koreans routinely say they revere him, and recently publicly lamented his death. But any North Korean who fails to express such support for the regime (or, worse, expresses even the slightest criticism) is likely to end up in a concentration camp or worse. So such expressions of support cannot be taken at face value.

There is actually plenty of evidence suggesting that most North Koreans do not in fact support their regime, or revere the Dear Leader who subjected them to starvation and mass murder. The fact that hundreds of thousands risk their lives trying to escape to China, Russia, or South Korea is a powerful data point, just as in the similar case of Cuba. It’s a safe bet that people who risk their lives to flee a regime probably don’t revere its leaders. No doubt many more would flee if not for the fact that the regime kills or imprisons any would-be refugees who are caught.

The fact that the government maintains a police state even more repressive than the USSR is an indication that the regime’s leaders themselves do not believe they have broad popular support regardless of what they may say in public. If they did, they wouldn’t feel as much of a need to resort to repression to keep themselves in power.

It’s difficult to say how much genuine popular support the North Korean government enjoys. But if I had to bet, I would guess that the majority of the population would be more than happy to rid themselves of the Kims and their cronies at the first opportunity. Indeed, I doubt that North Koreans are much different in this respect from the people of the Soviet Union and Eastern Europe. Many Western observers took the latter’s statements of support for communism at face value too, and were therefore surprised when communism collapsed in a wave of popular unrest after the shackles of repression were loosened in 1989-91.

This is not to deny that there are North Koreans who genuinely revere the Kim dynasty. Every regime has at least some beneficiaries, and decades of indoctrination have surely had an impact. Some people really do love Big Brother. But a great many others are only pretending to do so for the sake of self-preservation.

Unfortunately, it is all too common for Western observers to take professions of loyalty to repressive regimes at face value. In previous posts, I discussed cases involving Cuba and Iran. The latter was a 2007 study that came just two years before a large-scale popular protest movement against the regime revealed that the regime was far less popular than surface appearances suggested.

UPDATE: In the original version of this post, I forgot to link the CNN article that inspired it. The problem has been fixed.

UPDATE #2: This more recent CNN video describes some of the North Korean government’s mechanisms of repression and social control. Perhaps the author of the first article should watch the video and consider its implications for his own piece.

For readers who may be interested, many of Vaclav Havel’s writings and speeches are available for free in English translation at his official website. Havel, who passed away on Sunday, was a great writer and the leader of the anti-communist dissident movement in Czechoslovakia. In addition to such classics as The Power of the Powerless, there are lesser known works such as “Stories and Totalitarianism” (1987), which includes the following interesting discussion of economic liberty:

The history of the system I live in has demonstrated persuasively that without a plurality of economic initiatives, and of people who participate in them, without competition, without a marketplace and its institutional guarantees, an economy will stagnate and decline….

When he can no longer participate with relative autonomy in economic life, man loses some of his social and human individuality, and part of his hope of creating his own human story.

I mention this now because although the standardizing and therefore nihilizing impact of political and intellectual centralization is clear, the analogous impact of economic centralization-as one of the indirect methods of manipulating life in general-is far from being so obvious. And that is what makes it more dangerous.

Where there is no natural plurality of economic initiatives, the interplay of competing producers and their entrepreneurial ideas disappears, along with the interplay of supply and demand, the labor and commodity markets, and voluntary employer-employee relations. Gone too are the stimuli to creativity and its attendant risks, the drama of economic success and failure. Man as a producer ceases to be a participant or a creator in the economic story, and becomes an instrument. Everyone is an employee of the state, which is the one proprietor of economic truth and power. Everyone is buried in the anonymity of the collective economic “non-story.”

When economic plurality disappears, the motives for competition in the marketplace of consumer goods disappear with it. The central power may talk all it wants about “satisfying differentiated needs” but the pressures of a nonpluralistic economy compel it to do exactly the opposite: to integrate production, standardize goods, and narrow the range of choice. In this artificial economic world, diversity is merely a complication.

Not only do consumers have to depend (as all who live in modern industrial societies do) almost exclusively on commodities they have not produced themselves; they do not have a choice of different commodities, and cannot express their individuality even in this limited way. All they have is what has been allocated by the monopoly producer: the same things that have been allocated to everyone.

Havel was no libertarian, and he favored a much larger economic role for the state than I would. But because of his experiences under communism, he understood the importance of economic liberty much better than most Westerners.

Another of my favorite Havel works is his 1990 speech delivered soon after becoming first post-communist president of Czechoslovakia:

For forty years you heard from my predecessors on this day different variations on the same theme: how our country was flourishing, how many million tons of steel we produced, how happy we all were, how we trusted our government, and what bright perspectives were unfolding in front of us.

I assume you did not propose me for this office so that I, too, would lie to you.

Our country is not flourishing. The enormous creative and spiritual potential of our nations is not being used sensibly. Entire branches of industry are producing goods that are of no interest to anyone, while we are lacking the things we need. A state which calls itself a workers’ state humiliates and exploits workers. Our obsolete economy is wasting the little energy we have available. …

We had all become used to the totalitarian system and accepted it as an unchangeable fact and thus helped to perpetuate it. In other words, we are all – though naturally to differing extents – responsible for the operation of the totalitarian machinery. None of us is just its victim. We are all also its co-creators….

If we realize this, then all the horrors that the new Czechoslovak democracy inherited will cease to appear so terrible. If we realize this, hope will return to our hearts.

In the effort to rectify matters of common concern, we have something to lean on. The recent period – and in particular the last six weeks of our peaceful revolution – has shown the enormous human, moral and spiritual potential, and the civic culture that slumbered in our society under the enforced mask of apathy. Whenever someone categorically claimed that we were this or that, I always objected that society is a very mysterious creature and that it is unwise to trust only the face it presents to you. I am happy that I was not mistaken. Everywhere in the world people wonder where those meek, humiliated, skeptical and seemingly cynical citizens of Czechoslovakia found the marvelous strength to shake the totalitarian yoke from their shoulders in several weeks, and in a decent and peaceful way…..

We had to pay, however, for our present freedom. Many citizens perished in jails in the 1950s, many were executed, thousands of human lives were destroyed, hundreds of thousands of talented people were forced to leave the country. Those who defended the honor of our nations during the Second World War, those who rebelled against totalitarian rule and those who simply managed to remain themselves and think freely, were all persecuted. We should not forget any of those who paid for our present freedom in one way or another….

We must also bear in mind that other nations have paid even more dearly for their present freedom, and that indirectly they have also paid for ours. The rivers of blood that have flowed in Hungary, Poland, Germany and recently in such a horrific manner in Romania, as well as the sea of blood shed by the nations of the Soviet Union, must not be forgotten. First of all because all human suffering concerns every other human being. But more than this, they must also not be forgotten because it is these great sacrifices that form the tragic background of today’s freedom or the gradual emancipation of the nations of the Soviet Bloc, and thus the background of our own newfound freedom.

UPDATE: Unfortunately, many of the links to individual items on the Havel website don’t seem to be working properly. However, you can find these works yourself simply by going to the site yourself and looking for them.

David Segal’s recent New York Times article on ABA accreditation of law schools makes the important point that the ABA uses the accreditation process to reduce competition for its members by artificially reducing the number of law schools, and thereby eliminating potential competitors for its members. This interacts with laws that require consumers to rely on lawyers even for relatively simple tasks that in many other countries are performed by paralegals and the like. The end result makes even basic legal services extremely expensive, especially for the poor and the lower middle class:

[A new law school] needs the seal of approval of the American Bar Association, the government-anointed regulator of law schools.

That means complying with a long list of standards that shape the composition of the faculty, the library and dozens of other particulars. The basic blueprint was established by elite institutions more than a century ago, and according to critics, it all but prohibits the law-school equivalent of the Honda Civic — a low-cost model that delivers.

Instead, virtually every one of the country’s 200 A.B.A.-accredited schools, from the lowliest to the most prestigious, has to build a Cadillac, or at least come close. Duncan’s library costs $750,000 a year to maintain — a bargain when compared with competitors….

The lack of affordable law school options, scholars say, helps explain why so many Americans don’t hire lawyers.

“People like to say there are too many lawyers,” says Prof. Andrew Morriss of the University of Alabama School of Law. “There are too many lawyers who charge $300 an hour. There aren’t too many lawyers who will handle a divorce at a reasonable rate, or handle a bankruptcy at a reasonable rate. But there is no way to be that lawyer and service $150,000 worth of debt.”

This helps explain a paradox: the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low- and middle-income communities…..

It’s not just that many lawyers are prohibitively expensive. It is that when it comes to legal expertise, there are not a lot of cheaper alternatives — not in the United States, anyway. Britain, on the other hand, has a long menu of options, including a tier of professionals called legal executives, who are licensed after getting the equivalent of a community college degree. Counsel is also

available from nonlawyers at a variety of nonprofits. And you can buy a simple divorce over the Internet for a set fee, or pay for customized legal advice, online or by phone.

“In the U.S., people and businesses have only one place to go for all their legal help — lawyers who graduated from an A.B.A.-approved law school and who follow mostly A.B.A. rules about how they run their practice,” says Gillian Hadfield, a professor at the Gould School of Law of the University of Southern California. “Everyone else who offers legal advice is engaged in the unauthorized practice of law….”

Consider business schools, [Emory law professor] George Shepherd says.

If your dream is to work at Goldman Sachs, “you can go to Harvard Business School and spend a couple hundred thousand dollars, in tuition and forgone earnings,” he says. “If you just want to move up the management ranks at Macy’s, you can take part-time evening classes and spend $10,000 for a degree. The part-time school may not be accredited, but this gets to the difference — state law says you can become an attorney only if you attend an accredited law school. There’s no law that says you need to attend an accredited business school in order to practice business.”

Professor Shepherd says aspiring lawyers should have the same choices as aspiring executives and managers….

A result is an expensive quandary for potential clients, says Professor Morriss of the University of Alabama. “Maybe you need a plumber,” he says. “But you have to hire a brain surgeon.”

These are not new arguments. Critics of the ABA accreditation system have making the same points for years. Milton Friedman did so as far back as the 1950s. I myself did called for the abolition of the ABA’s legal role in the process in this 2006 post:

To my mind, the problem goes beyond the shortcomings of specific ABA standards. The real mistake is allowing an organization with a blatant conflict of interest to take over the accreditation role in the first place. As an interest group representing lawyers, the ABA has an obvious stake in limiting entry into the profession so as to decrease the competition faced by its members. One way of doing so is by restricting the number of accredited law schools, at least in the vast majority of states that require all or most aspiring lawyers to attend an ABA-accredited school in order to take the bar exam. We would not allow an organization run by Chrysler, GM, and Ford to set regulatory standards determining who has the right to sell cars in the United States. Requiring ABA accreditation for law schools is the exact equivalent in our industry.

Although the New York Times article breaks little new ground, it has great value in bringing this issue to a wider audience.

I do have one possible quibble with the article. Segal implies (though he does not say so directly) that all or most existing law schools support the ABA accreditation system. This is far from universally true. In my experience, many administrators and faculty at relatively highly ranked schools (say the top sixty or seventy) either oppose the system outright, or at least would not object to liberalization of the rules. These schools don’t benefit much from excluding marginal new competitors, and the ABA accreditation process saddles them with unwanted expenses and administrative burdens. Harvard and Yale (or, for that matter, George Washington or George Mason) are not likely to lose students and faculty to startup law schools, even if the latter have lower tuition. By contrast, low-ranked schools (e.g. – the bottom 30-40%) tend to support ABA accreditation because they are the ones most likely to be threatened by new competition. Being a member of the ABA-sponsored cartel is often their most valuable economic asset, and they are loath to give it up.

I’m not suggesting that the higher-ranked schools are completely blameless. If more of their faculty and administrators were to speak out against the status quo, we might see greater pressure for change. Hopefully, Segal’s article will help generate a broader debate on the issue.

In an interesting historical coincidence, brutal North Korean communist dictator Kim Jong Il has died on the same day as heroic anticommunist dissident Vaclav Havel.

Kim presided over the world’s most repressive regime, the closest ever to a real-life version of Orwell’s 1984. Even Soviet communism was relatively mild by comparison. He was responsible for hundreds of thousands of deaths, many of them as a result of the politically-created famine of the 1990s, which he facilitated in order to reinforce the regime’s power. He was also known for various strange obsessions, such as his plan to solve North Korea’s government-created food shortages by breeding giant rabbits. This literally hare-brained scheme was cut short when the “Dear Leader” ate the first few giant rabbits imported from Germany at his birthday party.

The interesting question for the immediate future is whether the North Korean government will survive Kim’s death relatively unchanged. Kim tried to install his son as his successor, just as his father Kim Il Sung did with him. Hopefully, things will not go as the Dear Leader planned.

Today is a very sad day. Vaclav Havel has passed away. Havel was a great writer and playwright and became the leader of Czechoslovakia’s anticommunist dissident movement in the 1970s and 80s. He spent several years in communist prisons. After the fall of communism in the Velvet Revolution – to which he made a crucial contribution – Havel became the first president of the newly democratic Czechoslovakia. His book <The Power of the Powerless is one of the greatest-ever works on life under communism and the dynamics of political oppression more generally. I discussed it in slightly greater detail in this post on the books that influenced me the most. One of Havel’s less-known achievements was presiding over the peaceful and efficient “Velvet Divorce” between the Czech Republic and Slovakia. This was one of the least painful and most successful secessions in recent world history, with both countries benefiting from in the long run. Even though Havel wasn’t happy about the “divorce,” his leadership helped minimize its potential negative effects.

The New York Times has a detailed obituary here. A variety of tributes are pouring in from all over the world. No one could be more deserving of them than Havel.

UPDATE: In this 2009 post, I discussed Havel’s powerful critique of the UN Human Rights Council.

Today is the first day of the ancient Roman holiday of Saturnalia, which has been celebrated here at the VC for several years now (see here, here, here, and here). Here’s a description of this not-to-be-missed event from the Encyclopedia Romana:

During the holiday, restrictions were relaxed and the social order inverted. Gambling was allowed in public. Slaves were permitted to use dice and did not have to work. . . Within the family, a Lord of Misrule was chosen. Slaves were treated as equals, allowed to wear their masters’ clothing, and be waited on at meal time in remembrance of an earlier golden age thought to have been ushered in by the god. In the Saturnalia, Lucian relates that “During My week the serious is barred; no business allowed. Drinking, noise and games and dice, appointing of kings and feasting of slaves, singing naked, clapping of frenzied hands, an occasional ducking of corked faces in icy water—such are the functions over which I preside.”

With an ongoing presidential election, we have no shortage of worthy candidates for the post of “Lord of Misrule.”

Happy Saturnalia to all our friends, Romans, and countrymen out there!

For (slightly) more serious VC posts about ancient Rome, see here and here.

The Chronicle of Higher Education has a summary of an interesting recent study that uses an experiment conducted on fish to try to claim that there are underappreciated benefits to political ignorance [HT: VC reader John Perkins]:

A team of researchers led by a Princeton University biologist has now studied that question and concluded that without all our know-nothing fellow citizens, things might be even worse.

The team, led by Iain D. Couzin, an assistant professor of ecology and evolutionary biology at Princeton, carried out its work with a type of fish known as golden shiners. The group trained some of the fish to associate food with a blue target and trained a smaller number of the fish to associate food with yellow, a color the fish more naturally prefer.

Placed together, most fish pursued yellow targets, suggesting the smaller group’s more intense desire for yellow overwhelmed the larger group’s numerical advantage, Mr. Couzin reported. But as fish without any training were added, the group increasingly favored the blue target, he said.

“A strongly opinionated minority can dictate group choice,” the research team wrote in its report, published in Thursday’s edition of the journal Science. “But the presence of uninformed individuals spontaneously inhibits this process, returning control to the numerical majority.”

The behavior of golden shiners demonstrates “the role of uninformed individuals in achieving democratic consensus amid internal group conflict and informational constraints,” wrote the research team….

In a separate commentary in the same issue, two authors from the University of Washington at Seattle, Carl T. Bergstrom, an associate professor of biology, and Jevin D. West, a biology research associate, said they agreed the work by Mr. Couzin’s group showed that “uninformed agents can promote democratic outcomes in collective decision problems.”

The study is cleverly designed. But I don’t think it actually proves that political ignorance is beneficial. Few doubt that a large majority of ignorant voters can sometimes get its way against a more knowledgeable minority. But that’s precisely why political ignorance is a problem: Other things equal, a more ignorant electorate is likely to make worse decisions than a more knowledgeable one. Under such conditions, the more “democratic” (in the sense of more majoritarian) outcome isn’t necessarily better. Indeed, the more influence the ignorant majority has, the greater the negative impact of their ignorance.

In some situations, the paper’s authors claim, the uninformed are a minority, but they gravitate towards the majority among the rest of the group, thereby making a majoritarian outcome more likely. This, assumes, however, that their ignorance does not itself bias them towards one side of a dispute or the other. This may be true among fish, but is often false among human electorates, where ignorance does not prevent people from holding political opinions and also makes them vulnerable to manipulation. Indeed, ignorance tends to increase the effectiveness of the latter. And relatively ignorant voters can still be highly biased “political fans.”

Even if a more majoritarian outcome is always preferable to a less majoritarian one, that is still consistent with the notion that majoritarian decisions by a relatively well-informed electorate are likely to be better than those made by a more ignorant one. And, regardless of what happened in the case of the fish, a knowledgeable majority in the real world is at least as likely to get its way in real-world democratic processes as a relatively ignorant one.

Furthermore, ignorance sometimes enables a narrow interest group to get its way at the expense of the general public, because the latter is unaware of what is going on. In this article, I explain how this happened in may states that adopted post-Kelo eminent domain reforms. The fish study doesn’t take account of this possibility because there is no body of knowledge known to one group of fish that is unknown to the other that allows the former to exploit the latter for their own benefit.

This is not to deny that there are some cases where political ignorance can have beneficial effects. Consider, for example, a highly knowledgeable electorate with extremely evil values (e.g. – a racist electorate whose primary goal is the desire to oppress some racial minority as much as possible). These voters would be able to choose policies and leaders that achieve their evil objectives more effectively than an equally evil electorate that was more ignorant.

There are also a few other scenarios where political ignorance might turn out to be (relative) bliss; I may discuss some of them in a future post. This study, however, doesn’t shed much light on any of them.

UPDATE: I have made a few minor revisions to this post.

For DC-area readers who may be interested, this Friday the Federalist Society and the Heritage Foundation are co-sponsoring a debate on Fisher v. University of Texas, an important affirmative action case that the Supreme Court is now deciding whether or not to take.

The debate pits James Ho, counsel for the University of Texas in the case, and Loren Alikhan, counsel for the League of United Latin American Citizens (arguing for the University’s position) against Gail Heriot of the US Commission on Civil Rights and Roger Clegg of the Center for Equal Opportunity (arguing that the university’s plan is unconstitutional).

I previously blogged about Fisher here and here.

Interestingly, I have some connections to both sides in this debate. My wife is Gail Heriot’s special assistant/counsel at the US Commission on Civil Rights. Jim Ho (who later went on to become Texas’ state solicitor general) clerked for Fifth Circuit Judge Jerry E. Smith two years before I did, and interviewed me for the job before I was hired.

USC medical school professor Ken Murray has an interesting article on the lessons we can learn from “How Doctors Die”:

It’s not a frequent topic of discussion, but doctors die, too. And they don’t die like the rest of us. What’s unusual about them is not how much treatment they get compared to most Americans, but how little. For all the time they spend fending off the deaths of others, they tend to be fairly serene when faced with death themselves. They know exactly what is going to happen, they know the choices, and they generally have access to any sort of medical care they could want. But they go gently.

Of course, doctors don’t want to die; they want to live. But they know enough about modern medicine to know its limits. And they know enough about death to know what all people fear most: dying in pain, and dying alone. They’ve talked about this with their families. They want to be sure, when the time comes, that no heroic measures will happen—that they will never experience, during their last moments on earth, someone breaking their ribs in an attempt to resuscitate them with CPR (that’s what happens if CPR is done right).

Almost all medical professionals have seen what we call “futile care” being performed on people. That’s when doctors bring the cutting edge of technology to bear on a grievously ill person near the end of life. The patient will get cut open, perforated with tubes, hooked up to machines, and assaulted with drugs. All of this occurs in the Intensive Care Unit at a cost of tens of thousands of dollars a day. What it buys is misery we would not inflict on a terrorist. I cannot count the number of times fellow physicians have told me, in words that vary only slightly, “Promise me if you find me like this that you’ll kill me.” They mean it. Some medical personnel wear medallions stamped “NO CODE” to tell physicians not to perform CPR on them. I have even seen it as a tattoo.

This issue is of interest to me in part because of personal experience. When my grandfather was in his terminal illness about a decade ago, we found it difficult to ensure that he would not be given the kind of excessive and unnecessary treatment Murray describes above. At one point, I went so far as to request to see the doctor on duty, explain that I am a lawyer, and emphasize that my father had the legal right to make decisions to refuse care on behalf of my grandfather, who was then unable to make choices for himself. After that, things went smoothly, and my father’s instructions (based on my grandfather’s own oft-expressed wishes) were followed. But it took some doing.

A key lesson of this experience is that it’s important for the rest of us to do what Murray explains doctors do: think about what sort of care you want and don’t want during your terminal illness, and try to plan ahead. Most if not all states have “living wills” and/or other laws that allow you to leave advance instructions for situations when you are hospitalized and lack the capacity to make decisions at the time. It’s also useful to have a friend or family member available to make sure that your instructions for refusing certain types of care are actually being followed.

Before concluding, I should emphasize that this post is an exception to my usual rules for choosing blogging topics. I am not expert on this topic, and the point I’m making isn’t an original one. I may violate my blogging principles, but at least I disclose it when I do! If readers want to discount what I say here, I can’t very well complain. Nonetheless, Murray is an expert and his article is a good opportunity for laypeople to learn from the decisions other experts make in a situation that many of us are likely to face at some point in our lives – either for ourselves or in helping friends and family members.