What's Right with Malthus?

More than enough

by ROSS EMMETT

If . . . we come to the conclusion, not to interfere in any respect, but to leave every man to his own free choice, and responsible only to God for the evil he does . . . this is all I contend for.

                 —Thomas Robert Malthus

I am constantly surprised that defenders of liberty and free markets love to bash Thomas Robert Malthus.

Maybe I shouldn’t be, but consider this: Robert Malthus (his friends called him “Bob”) was one of the primary interpreters of Adam Smith for the generation after Smith. Indeed, a lot of people who pick on “Thomas” Malthus get Bob Malthus wrong.

That’s not to say that Malthus was right about everything. But even more than Smith's, Malthus’s economics built upon the idea that all humans similarly respond to incentives, and he thereby rejected the idea of natural hierarchy. Writing in a country that had excessive restrictions on labor markets—take a look at the poor laws—Malthus was an advocate of free labor markets. And Malthus argued that private property rights, free markets, and an institution that would ensure that both parents were financially responsible for the children they bore (that is, marriage) were essential features of an advanced civilization.

“Wait a minute,” you may be thinking. “Are we talking about the Malthus who claimed back in 1798 in his book An Essay on the Principle of Population that population growth would decrease per capita well-being? Isn’t this the guy who argued that the combination of population growth and natural resource scarcity would create catastrophic consequences, including disease, starvation, and war, for much of the human race? And didn’t he miss the benefits of entrepreneurship and innovation, blinded as he was by the fallacy of land scarcity?”

That Malthus—let’s call this one “Tom”—is more a creature of the ideological opponents of markets than of Malthus’s own writings. So maybe we should revisit Malthus and see what he actually said.

It all begins with a thought experiment: What would happen to human population in the absence of any institutions?

The answer is the population principle, which is the only thing most people know about Malthus. And it’s largely correct. In the absence of institutions, humans are reduced to their biological basics. Like animals, humans share the necessity to eat and the passions that lead to procreation. To eat, humans must produce food. To procreate, humans must have sex. If there are no institutions, human population will behave like any animal population and increase to the limit of its ecology’s carrying capacity.

The biological model is simplistic; it treats humans as mere biological agents. It is this biological model that produces all the results people usually associate with Malthus’s name. And it’s not very far off from people’s conditions when their institutions have suddenly been disrupted by things like conquest, revolution, or war. (Consider the dual problems of war and drought that resulted in famine for Ethiopians in 1983–85, for example.)

The Missing Middle-Class Case

Yes, the middle-class has been disappearing, but they haven’t fallen into the lower-class, they’ve risen into the upper-class

By Mark J. Perry 

The chart above is based on Census Bureau data on “Money Income of Families–Percent Distribution by Income Level, in Constant (2009) Dollars” from 1967 to 2009 (Table 696) for the family income categories: a) $25,000 and under, b) $25,000 to $75,000 and c) $75,000 and over.

The chart and this post were inspired by a comment made by Ken on this CD post earlier today on middle-class incomes over time and the myth of middle-class stagnation. Ken points to Census Bureau Table 696 as evidence that the reason the middle-class appears to be “disappearing” is because that income group is actually “disappearing” or moving into the upper-class, and not falling into to the lower-class as is typically claimed.

Here’s what the family income distribution data in the chart above show:

1. In 1967, almost 62% of American families were earning between $25,000 and $75,000 in constant 2009 dollars, an income range that might accurately describe America’s “middle-class.” Also in that year, fewer than one out of six (16.3%) American families had income above $75,000 (upper-class), and 22% of families were earning $25,000 or less, an income category that might be described as “lower-class.” In 1967, there were almost four American families earning a middle-class income ($25,000 to $75,000) for every high-income family earning above $75,000.  Further, there were almost three “middle-income” families for every one “low-income family,” so the middle-class American families earning between $25,000 and $75,000 clearly represented a significant share of US families.

Here’s what happened over time:

2. The share of lower-income families fell over time by 4.2%, from 22% of all US families in 1967 to only 17.8% of all US families in 2009, while the share of middle-income families decreased by 18.6% during that period, from 61.8% in 1969 to 43.2% in 2009.  So where did those 22.8% of families go that disappeared from the lower-income and middle-income categories in the 42-year period between 1967 and 2009? They “disappeared” into the upper-income category of incomes above $75,000, which increased by 22.8%, from a 16.3% share of American families in 1967 to a 39.1% share in 2009. Whereas “middle-class” families were so numerous that they outnumbered “upper-class” families by ratio of almost 4:1 in 1967, so many American “middle-class” families have moved by the 2000s to the “upper-class” by income, that those two groups have been almost equally represented for their shares of the total number of US families over the last decade (see the convergence of the blue and red lines in the chart above).

Bottom Line: In other words, America’s “middle-class” did start largely disappearing in the 1970s, but it was because they were moving up to a higher-income category, not down into a lower-income category. And that movement was so significant that between 1967 and 2009, the share of American families earning incomes above $75,000 more than doubled, from 16.3% to 39.1%. On the previous CD post, Ken commented that although “Many prominent people like Paul Krugman claim that the middle class has been in decline since the 1970s, that assertion is incredibly and verifiably wrong.” And according to the percent distribution of family income data by income level (in constant dollars) in Table 696 from the Census Bureau, I think Ken is exactly right. 

The deposit illusion

No, Virginia, Nothing Is Really Risk Free

By Alex J. Pollock

It is impossible to make riskless deposits out of the inherently risky business of banking. But governments everywhere insist on trying to do it anyway.

The financial world confronts us with ineluctable uncertainty and risk. Its future is unknowable, not only for borrowers, lenders, and investors, but also for governments and central banks. No matter how hard anyone might try, risk cannot be made to disappear; it can only be moved around. 

People all over the world long for their bank deposits to be risk free. Governments attempt to satisfy this longing by creating deposit insurance and by bailing out depositors and other creditors of failed banks. Of course, as in Cyprus this year, the government itself may be broke. Historically speaking, this is a common occurrence: there have been more than 250 defaults on government debt since 1800, up to the notorious defaults by Argentina in 2002 and Greece in 2012, which gives us a long-term average of about one default on government debt per year.

Governments constantly strive to promote “confidence” in the banking system, whether or not such confidence is warranted. They wish to induce what we might call “deposit illusion” — that the safety of deposits is unrelated to the soundness of the banks’ assets. But the inescapable fact is that deposits fund banking assets, which are inherently very risky, and these assets are subject to periodic losses which are unexpected and of magnitudes previously not even thought possible.

The President’s Broken Window Fallacy

Carbon Policies and Jobs

By Benjamin Zycher

In my earlier essay discussing President Obama’s speech on climate change and “carbon pollution,” I noted the weakness of the evidence on the effects of increasing atmospheric concentrations of greenhouse gases (GHG) and the poor predictive performance of climate models. I also noted the trivial prospective temperature effects of even draconian anti-carbon policies regardless of what one believes about the underlying climate science, and the obvious implication that wealth redistribution, essentially from red states to blue, is the real underlying goal motivating these policy proposals.

I turn now to some of the poor economic analysis in the speech, in particular the jobs promised as an ancillary benefit of costlier electricity, specifically in the form of complementary employment growth in the wind and solar power sectors. As Mr. Obama claimed: "And that means jobs… manufacturing the wind turbines [and] installing the solar panels…"

At a general level, employment created — that is, shifted — as a result of a government policy is a cost rather than a benefit for the economy as a whole, unless the policy improves resource allocation by, say, correcting for some sort of market inefficiency. (Whether or not government policies can be predicted systematically to improve the efficiency of resource use is the central focus of the vast public choice literature). As counterintuitive as that may seem, imagine that a federal policy had the effect of increasing the demand for high-quality steel. That clearly would be a benefit for steel producers, or more broadly, for owners of inputs in steel production, including steel workers. But for the economy as a whole, the need for additional high-quality steel in, say, an expanding wind-power sector would be an economic cost, as that steel (or the resources used to produce it) would not be available for use in other sectors. More generally, the creation of “green” jobs as a side effect of environmental (or carbon) policies is a benefit for the workers hired (or for those whose wages rise with increased market competition for their services). But for the economy as whole, that use of scarce labor is a cost because those workers no longer would be available for productive activity elsewhere.

The extreme weather scam exposed

The Show Must Go On

By Matt Ridley

WHEN the history of the global warming scare comes to be written, a chapter should be devoted to the way the message had to be altered to keep the show on the road. Global warming became climate change so as to be able to take the blame for cold spells and wet seasons as well as hot days. Then, to keep its options open, the movement began to talk about "extreme weather".

Part of the problem was that some time towards the end of the first decade of the 21st century it became clear that the Earth's average temperature just was not consistently rising any more, however many "adjustments" were made to the thermometer records, let alone rising anything like as rapidly as all the models demanded.

So those who made their living from alarm, and by then there were lots, switched tactics and began to jump on any unusual weather event, whether it was a storm, a drought, a blizzard or a flood, and blame it on man-made carbon dioxide emissions. This proved a rewarding tactic, because people - egged on by journalists - have an inexhaustible appetite for believing in the vindictiveness of the weather gods. The fossil fuel industry was inserted in the place of Zeus as the scapegoat of choice. (Scientists are the priests.)

The fact that people have short memories about weather events is what enables this game to be played. The long Australian drought of 2001-7, the Brisbane floods of 2009-10 and the angry summer of 2012-13 stand out in people's minds. People are reluctant to put them down to chance. Even here in mild England, people are always saying "I have never known it so cold/hot/mild/windy/wet/dry/changeable as it is this year". One Christmas I noticed the seasons had been pretty average all year, neither too dry nor too wet nor too cold nor too warm. "I have never known it so average," I said to somebody. I got a baffled look. Nobody ever calls the weather normal.

Economics puts limits on people's utopias

The Economics Behind the U.S. Government's Unwinnable War on Drugs

By Benjamin Powell

The late Nobel Laureate James Buchanan was known to say, "Economics puts limits on people's utopias." Unfortunately, the advocates of the U.S. government's war on drugs have failed to appreciate the economics underlying the drug war that makes their utopian vision impossible to achieve through drug prohibition.

Although the Obama administration has softened the rhetoric of prior administrations by talking about treatment rather than an "enforcement-centric 'war on drugs' approach,"1 enforcement budgets remain large and penalties for distribution severe. As for legalization, the administration claims that "drug legalization also runs counter to a public health and safety approach to drug policy. The more Americans use drugs, the higher the health, safety, productivity, and criminal justice costs we all have to bear."2

Regarding violence, in a recent speech in Mexico, President Obama stated, "Much of the root cause of violence that's been happening here in Mexico... is the demand for illegal drugs in the United States."3 However, Mr. Obama failed to specify whether the cause of the violence is drugs per se or the fact that drugs are illegal.

Economics is a science of means and ends. Thus, the question for economics is whether the means—drug prohibition—is effective in promoting the ends of greater health, safety, and productivity, as well as lower violence and criminal justice costs.

The Economics of a Supply-Side War

Both the possession and distribution of illegal narcotics are criminally punishable. However, the penalties for distribution, whether street-level dealing or international smuggling, have always been much harsher than the punishments for possession. Possession—at least for marijuana—is becoming decriminalized in some states. Meanwhile, enforcement devoted to interdiction of imports and the breaking up of dealer networks continues. In short, while there are demand-side penalties, the U.S. government's war on drugs is primarily a supply-side war.

At its core, a supply-side drug war acts essentially like a tax placed on drug suppliers.4 It increases their cost of bringing drugs to market and, thus, decreases their willingness to supply drugs. The result, as in virtually any other market, will be higher prices and a smaller quantity supplied. The key question for whether a supply-side drug war can be won is whether the main effect is an increase in price or a decrease in quantity. If the drug war is to be effective, its main effect must be to decrease quantity rather than to increase price.

The amount of illegal drugs that people use is not very sensitive to price. Many addicts likely continue to consume close to the same quantity even in the face of large price increases. The demand for illegal drugs is what economists call "price inelastic."5 Figure 1 illustrates the effect of a supply-side drug war on an inelastic demand.

Figure 1. Effect of a supply-side drug war on an inelastic demand

The war on drugs shifts the supply of drugs from Supply (No Drug War) to Supply (Drug War) because of the increased difficulty of getting the drugs into the United States and then distributed to users. As a result, the benefit, in the eyes of the drug prohibitionists, is the decrease in consumption from Q1 to Q2.

Big Government Implodes

ObamaCare's failures are not the only sign of a great public crack-up

by John Henninger 
Mark July 3, 2013, as the day Big Government finally imploded.

July 3 was the quiet afternoon that a deputy assistant Treasury secretary for tax policy announced in a blog post that the Affordable Care Act's employer mandate would be delayed one year. Something about the "complexity of the requirements." The Fourth's fireworks couldn't hold a candle to the sound of the U.S. government finally hitting the wall.

Since at least 1789, America's conservatives and liberals have argued about the proper role of government. Home library shelves across the land splinter and creak beneath the weight of books arguing the case for individual liberty or for government-led social justice. World Wrestling smackdowns are nothing compared with Hayek vs. Rawls.

Maybe we have been listening to the wrong experts. Philosophers and pundits aren't going to tell us anything new about government. The one-year rollover of ObamaCare because of its "complexity" suggests it's time to call in the physicists, the people who study black holes and death stars. That's what the federal government looks like after expanding ever outward for the past 224 years.

Even if you are a liberal and support the goals of the Affordable Care Act, there has to be an emerging sense that maybe the law's theorists missed a signal from life outside the castle walls. While they troweled brick after brick into a 2,000-page law, the rest of the world was reshaping itself into smaller, more nimble units whose defining metaphor is the 140-character Twitter message.

Laughably, Barack Obama tried this week to align himself with the new age in a speech calling yet again for "smarter" government. It requires whatever lies on the far side of chutzpah to say this after passing a 1930s-style law that is both incomprehensible and simply won't work. ObamaCare is turning into pure gravity. Nothing moves.

On July 5, the administration announced into the holiday void that because of "operational barriers" to IRS oversight, individuals would be allowed to self-report their income to qualify for the law's subsidies.

If the ObamaCare meltdown were a one-off, the system could dismiss it as a legislative misfire and move on, as always. But ObamaCare's problems are not unique. Important parts of the federal government are breaking down almost simultaneously.

The National Security Agency has conservative philosophers upset that its surveillance program is ushering in Big Brother. What's more concretely frightening is that a dweeb like Edward Snowden could download the content of the NSA's computers onto a thumb drive and walk out of the world's "most secretive" agency. Here's the short answer: The NSA has 40,000 employees. (Some say it's as high as 55,000, but it's a secret.)

Echoing that, when the IRS's audits of conservative groups emerged, the agency managers' defense was that the IRS is too big for anyone to know what its agents are doing. Thus both the NSA and IRS are too big to avoid endangering the public.

The End of the Arab Spring

The coup is a disaster. The Arab peoples must now go back to square one.

By Brendan O’Neill

What has happened in Egypt is an unmitigated disaster. On two levels. It’s disastrous that an elected government, voted for by 52 per cent of Egyptians last year, has been ousted by a military voted for by no one, ever. And it’s disastrous that this violent sweeping aside of a democratic government by armed men, which was swiftly followed by massacres of those who dared to express support for the ousted government, has been hailed as a positive development by many Western observers. From the right to the left, from war-lovin’ Tony Blair to self-styled radicals, the coup has been embraced as not a coup at all, but as a glorious people’s sweep to power.

Many in the West are tying themselves in linguistic knots to try to avoid calling a coup a coup. The White House is refusing to use the c-word to describe the removal of Mohammed Morsi, the Muslim Brotherhood Egyptian president up to 3 July, when he was deposed by his defence minister. Using that word has ‘significant consequences’, it said. ‘A coup, or something else?’, asked a headline in the New York Times. I know that paper is facing financial travails, but I didn’t know things were so bad it couldn’t afford a dictionary. The ridiculousness of some observers’ allergy to using the c-word was summed up in the opening para of that NYT piece: ‘[T]he generals removed the democratically elected president, put him in detention, arrested his allies and suspended the constitution. But was it a military coup d’etat?’ Ladies and gentleman, the world’s most prestigious newspaper.

The shamelessness of the coup cheerers disguised as devotees of democracy is extraordinary. So Mona Eltahawy, the American-Egyptian journalist who was turned by fawning Westerners into the poster girl of Egyptians’ uprising against dictator Hosni Mubarak in 2011, says baldly of recent events: ‘This is not a coup.’ It seems unaccountable military power is only a problem when it runs counter to Ms Eltahawy’s own interests, not when it’s wielded in the name of her and other Egyptians’ desire to force aside elected Morsi. Laurie Penny, darling of Britain’s collapsed middle-class Occupy movement, said on the day of the coup: ‘The Egyptian people have brought down Morsi.’ This is a commentator who thinks students being kettled by cops in Trafalgar Square for half an hour is a crime against humanity, yet apparently military men using fighter jets and tanks to yank the reins of power from an elected president and his supporters is perfectly okay.

We’re running out of water? Get a grip, greens

The eco-worriers excitably claiming the world is running dry should take a cold shower

by Rob Lyons

You may have heard of ‘peak oil’, the notion that the world has a finite supply of oil and at some point the amount coming out of the ground will start to decline. Then, we are assured by gloomy prognosticators, our oil-addicted civilisation will come to an end and we will need to create a new, low-impact society based on using less energy, exclusively generated from renewable sources like wind or solar. The party will soon be over, we’re told, with disastrous consequences – though it seems there are quite a few activists and commentators who would pop the cork on a bottle of sparkling elderflower wine if oil ran out and the shit really did hit the fan.

The trouble with the ‘peak oil’ hypothesis is that events keep proving it wrong. New, untapped fields are found, as happened recently off the coast of Brazil. More importantly, as oil prices rise, there’s a greater incentive to develop new technology. For example, in the US there are both shale gas and shale oil ‘revolutions’ in progress, where fracking techniques allow gas and oil trapped in rocks to be released. As Matt Ridley noted recently: ‘After falling for 30 years, US oil production rocketed upwards in the past three years. In 1995, the Bakken field was reckoned by the US Geological Survey to hold a trivial 151 million barrels of recoverable oil. In 2008, this was revised upwards to nearly four billion barrels; two months ago that number was doubled. It is a safe bet that it will be revised upwards again.’

We also get better at using the resources we’ve got. So cars have become more fuel-efficient, with the best diesel engines now requiring less fuel than trendy hybrid vehicles, like the Toyota Prius. When a resource is free or very cheap, we have little incentive to think about how best to use it; as it becomes more expensive, we either find more of it, use it more smartly, or replace it with something else - or, more likely, we do a combination of those three things.

Disappointed by the failure of the peak-oil disaster to come to fruition, our doom-mongering, Malthusian friends have alighted on other scary narratives to confirm their suspicions of humanity as a rapacious blight on the planet. Their latest is ‘peak water’.

Free speech dies in the land where it was born

Britain’s Muzzled Press

By Myles Harris

Amanda Knox, the young American who spent four years in an Italian jail for the alleged murder of her British flatmate, Meredith Kercher, recently published her memoirs. You may or may not think much of Knox, who was eventually acquitted of the murder charge, but you might like to know what could happen to your daughter if, when she was on holiday in Italy, she knocked somebody down in an accident and had to face time on remand in one of the country’s prisons. What it has to say about the Italian penal system is shocking. British readers, however, will not be able to read Knox’s book. It is to be published worldwide with the exception of the United Kingdom. The reason? Knox has already been the object of numerous libel actions in Italy, and, until recently, practically anybody could sue anybody for libel in Britain even if neither party had ever set foot on British soil.

For years, if a British libel lawyer felt he no longer liked the color of his Porsche, he simply had to find a client wanting to bring a libel action and could look forward to a car with a better hue. Unless the intended target was enormously rich, the case would never get to court. Like a visit from the Sopranos, a libel lawyer’s letter was an offer most people couldn’t refuse. In Britain, a defamation action could cost up to 140 times more than one in any other European state. Defendants had to settle or risk an action involving court costs in excess of $150,000 and, potentially, unlimited damages. 

Moreover unlike in America, British libel law places the onus of proof on the defendant, not the plaintiff. While national newspapers with pockets as deep as the Grand Canyon were willing to take on such a burden, practically anybody else who lived by the pen lived in terror of a writ. A single case could be sufficient to close a local newspaper or propel an individual into bankruptcy. Insurance premiums against libel were of the “catastrophic” variety.

Britain has never been an open society. We have no First Amendment and no constitutional right to bear arms. The church is not separate from the state nor the judiciary independent of the establishment. Elizabeth the Second is Chief Magistrate and Head of the Church of England. Guided by frightfully well-spoken men who read classics at Oxford or Cambridge—science degrees are seen as the province of mere mechanicals—and on the advice of her ministers, she appoints judges to put us in prison and bishops to order our consciences. Until recently these Gilbertian arrangements, a mixture of privilege, pomp, and common law, (since Britain has no written constitution our judges are able to make law on the hoof), ensured sufficient protection for ordinary folk. Libel, however, like fox hunting, remained exclusively a sport of the rich. 

Who Is Racist?

The revolution was betrayed

By Thomas Sowell

I am so old that I can remember when most of the people promoting race hate were white.

Apparently other Americans also recognize that the sources of racism are different today from what they were in the past. According to a recent Rasmussen poll, 31 percent of blacks think that most blacks are racists, while 24 percent of blacks think that most whites are racist.

The difference between these percentages is not great, but it is remarkable nevertheless. After all, generations of blacks fought the white racism from which they suffered for so long. If many blacks themselves now think that most other blacks are racist, that is startling.

The moral claims advanced by generations of black leaders -- claims that eventually touched the conscience of the nation and turned the tide toward civil rights for all -- have now been cheapened by today's generation of black "leaders," who act as if it is all just a matter of whose ox is gored.

Even in legal cases involving terrible crimes -- the O.J. Simpson murder trial or the charges of gang rape against Duke University students -- many black "leaders" and their followers have not waited for facts about who was guilty and who was not, but have immediately taken sides, based on who was black and who was white.

Among whites, according to the same Rasmussen poll, 38 percent consider most blacks racist and 10 percent consider most whites racist.

Broken down by politics, the same poll showed that 49 percent of Republicans consider most blacks racist, as do 36 percent of independents and 29 percent of Democrats.

The Zimmerman case has achieved its sublime reductio ad absurdum.

A Dagger at the Heart of Justice

By Mark Steyn

Just when I thought the George Zimmerman “trial” couldn’t sink any lower, the prosecutorial limbo dancers of the State of Florida magnificently lowered their own bar in the final moments of their cable-news celebrity. In real justice systems, the state decides what crime has been committed and charges somebody with it. In the Zimmerman trial, the state’s “theory of the case” is that it has no theory of the case: might be murder, might be manslaughter, might be aggravated assault, might be a zillion other things, but it’s something. If you’re a juror, feel free to convict George Zimmerman of whatever floats your boat.

Nailing a guy on something, anything, is a time-honored American tradition: If you can’t get Al Capone on the Valentine’s Day massacre, get him on his taxes. Americans seem to have a sneaky admiration for this sort of thing, notwithstanding that, as we now know, the government is happy to get lots of other people on their taxes, too. Ever since the president of the United States (a man so cautious and deferential to legal niceties that he can’t tell you whether the Egyptian army removing the elected head of state counts as a military coup until his advisers have finished looking into the matter) breezily declared that if he had a son he’d look like Trayvon, ever since the U.S. Department of so-called Justice dispatched something called its “Community Relations Services” to Florida to help organize anti-Zimmerman rallies at taxpayer expense, ever since the politically savvy governor appointed a “special prosecutor” and the deplorably unsavvy Sanford Police Chief was eased out, the full panoply of state power has been deployed to nail Zimmerman on anything.

How difficult can that be in a country in which an Hispanic Obama voter can be instantly transformed into the poster boy for white racism? Who ya gonna believe — Al Sharpton or your lying eyes? As closing arguments began on Thursday, the prosecutors asked the judge to drop the aggravated-assault charge and instruct the jury on felony murder committed in the course of child abuse. Felony murder is a murder that occurs during a felony, and, according to the prosecution’s theory du jour, the felony George Zimmerman was engaged in that night was “child abuse,” on the grounds that Trayvon Martin, when he began beating up Zimmerman, was 17 years old. This will come as news to most casual observers of the case, who’ve only seen young Trayvon in that beatific photo of him as a twelve-year-old.

The pursuit of truth in a time of diseased thought

Scalia’s Literary Dissent

By Micah Mattix 

If John Keats is right that “Beauty is truth, truth beauty,” Justice Antonin Scalia’s crafted dissent must be truer than Justice Anthony Kennedy’s flat majority opinion. His language is sharp and highly metaphorical as he argues that the majority opinion is “diseased,” leading not to order and health but to a cancerous chaos. Here are a few of his most literary lines:

The root error of the Court’s erroneous decisions, Scalia writes, is its “diseased” exaltation of its own role: 

“The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.” 

This, in turn, has caused the Court to diminish the Constitution, viewing it, Scalia writes, as “a technicality of little interest”: 

“The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives.”

Scalia extends his “diseased” metaphor as he examines, in his view, the Court’s superfluous decision to even hear the case, which he later characterizes as a “contrivance”:

“But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we ‘undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.’” 

Thus, we have the image of a “diseased” court “healing” the healthy.

Trial by jury: the case for the defence

We should fight hard to defend the right to a jury trial, which remains the ‘lamp that shows that freedom lives’ 

by Luke Gittos

Top of Form

This week, the UK Ministry of Justice revealed plans to save £30 million by restricting the right to trial by jury in ‘minor cases’. The reforms would target offences currently referred to as ‘either way’, because the defendant has the right to choose between being tried by a jury in the Crown Court or by a magistrate in the Magistrates’ Court.

The reforms have been championed by the Magistrates’ Association and the ‘victims’ champion’ Louise Casey, a one-woman quango who in March 2010 was appointed by the New Labour government to represent the interests of victims in the criminal justice system. In November 2010, Casey called for identical restrictions to trial by jury in her report, Ending the Justice Waiting Game: A Plea For Common Sense, in which she derided ‘the administration of law that concerns itself with due process and the rights of offenders’. Speaking to The Times (London) this week, she said: ‘We should not view the right to a jury trial as being so sacrosanct that its exercise should be at the cost of victims of serious crime.’

Many have pointed out that Casey is just the latest in a long line of members of the English establishment who have sought to limit trial by jury. Lord Roskill’s 1986 report on trial by jury in cases involving serious fraud advocated abolishing juries in fraud trials to make the process more ‘expeditious’, despite finding no evidence that jurors were less capable of understanding fraud than judges were. The Runciman report in 1994 recommended abolishing the right to elect trial by jury for certain offences, saying that for many crimes the view of the jury was ‘unnecessary’. Jack Straw called the right to trial by jury ‘frankly eccentric’ in his failed bid to push his doomed Criminal Justice (Mode of Trial) Bill on to the statute book in 2003.

Putin's Enemies Have a Nasty Habit

Dying in Putin's Russia

By David Frum

On October 7, another critic, the journalist Anna Politkovskaya was gunned down in the lobby of her Moscow apartment building. Two years earlier, in July 2004, the U.S. journalist Paul Klebnikov was murdered as he emerged from the offices of the Russian edition of Forbes magazine. These killings and many others are linked to the deepest mystery of the Russian state. The mystery is the rise of Vladimir Putin.

In 1998, Vladimir Putin was named head of the Russian secret police, the KGB, now renamed the FSB. In August 1999, a desperately unpopular Boris Yeltsin named Putin prime minister of Russia--the fifth prime minister in less than 18 months. There seemed little reason to expect Putin to last any longer than his predecessors.

Then the bombs started going off. The first bomb hit a Moscow mall on August 31, 1999, killing one person and wounding 40. Five more bombs followed over the next 17 days, striking apartment buildings in Moscow and in southern Russia. Nearly 300 people were killed.

Prime Minister Putin blamed Chechen separatists, and ordered Russian troops to reconquer the province, which had won de facto independence in a bloody war from 1994 to 1996. This time, Russian arms won more success. Putin called a snap parliamentary election in December, 1999, and his supporters won the largest bloc of seats in Parliament.

On December 31, 1999, president Yeltsin resigned. Prime Minister Putin succeeded as acting president. He granted Yeltsin and his family immunity from prosecution on corruption charges and shifted Russia's next presidential election--originally scheduled for the fall of 2000--forward to March. Putin won handily.

Next he acted to reduce the power of the provinces, to renationalize private enterprise, and to close independent media outlets. Backed this time by the full power of the state and state-controlled media, Putin won 71 percent of the vote in the 2004 presidential election.

Despite Putin's enormous personal power, however, questions still linger about the means by which he won it. In addition to the six bombs that went off in September 1999, there was a seventh that did not detonate. On September 22, 1999, local police in the city of Ryazan discovered sacks of explosives in the basement of an apartment house. They found something else, too: a record at the local phone company of a phone call to one of the would-be bombers. The call originated at the FSB offices in Moscow.

After a two-day pause, the FSB explained that Ryazan police had stumbled across an FSB training exercise. The FSB took charge of the investigation, declared the sacks harmless, and quietly closed the case the week after Putin's election to the Russian presidency.

Standing up to the white-coated gods of fortune

Science has replaced Fortuna in fancying itself as the revealer of men's fates

By Brendan O’Neill

Fate is making a comeback. The idea that a human being’s fortunes are shaped by forces beyond his control is returning, zombie-like, from the graveyard of bad historical ideas. The notion that a man’s character and destiny are determined for him rather than by him is back in fashion, after 500-odd years of having been criticised and ridiculed by humanist thinkers.

Of course, we’re far too sophisticated these days actually to use the f-word, fate. We don’t talk about a god called Fortuna, as the Romans did, believing that this blind, mysterious creature decided people’s fates with the spin of a wheel. Unlike long-gone Norse communities we don’t believe in goddesses called Norns, who would attend the birth of every child to determine his or her future. No, today we use scientific terms to argue that people’s fortunes are determined by higher powers than their little, insignificant selves.

We use and abuse neuroscience to claim certain people are ‘born this way’. We claim evolutionary psychology explains why people behave and think the way they do. We use phrases like ‘weather of mass destruction’, in place of ‘gods’, to push the idea that mankind is a little thing battered by awesome, destiny-determining forces. Fate has been brought back from the dead and she’s been dolled up in pseudoscientific rags.

The intellectual challenge to the idea of fate was one of the most significant things about the Renaissance and the Enlightenment. There had always been an inkling of a belief within mankind that it was possible for individuals to at least influence their destiny, if not actually shape it. The Romans, for example, believed Fortuna would be kinder to brave, virtuous men. If you did good and took risks you had a better chance of being smiled upon by Fortuna. ‘Fortune favours the brave.’ But it wasn’t until the Renaissance that the idea that men could make their own fortunes really took hold. It’s then we see the emergence of the belief that by exercising his free will, a man can become master of his fate.

Making poor people poorer

Why do those concerned about low incomes never criticise sin taxes?

By Rob Lyons

The UK Office for National Statistics (ONS) has released a new report on the state of household finances. The Effects of Taxes and Benefits on Household Income, 2011/2012 contains many valuable nuggets of information and different commentators across the political spectrum have found something to gloat about.

So, for example, in a pointed prod at left-wing journalist Owen Jones, Toby Young in the Telegraph blogs about the fact that income inequality has fallen in recent years, to the point where one measure of inequality, the Gini coefficient, is now back to 1986 levels. On the other hand, left-leaning Twitter users have noted that tax takes a bigger slice of income for the poorest 20 per cent of the population (36.7 per cent of gross income) than it does for the top 20 per cent of earners (34.5 per cent of gross income). (See this snapshot from the report.)

How can that be? The difference comes from indirect taxes - that is, taxes on expenditure rather than income and property. On income taxes alone, the richest 20 per cent pay three-and-a-half times as much tax, as a proportion of income, than the poorest. Yet that progressive taxation is completely reversed by the effect of tax on spending. The biggest expenditure tax is value-added tax (VAT) at 20 per cent. For poorer people, over 10 per cent of their gross household income goes on VAT. So cutting VAT would be a big boost to lower-income groups.

But nearly seven per cent of gross income for poorer people goes on what might be loosely defined as ‘sin’ tax - that is, tax on boozing, smoking and driving. If you really wanted to help out households that are strapped for cash, you could start by reducing taxes that are justified as an attempt to change our bad habits. However, it seems unlikely that anti-poverty groups will have much to say on the matter. 

The law’s insane treatment of the mentally ill

Public trials ensure that court judgements are held to account by the people. So why are those deemed mentally ill being tried in secret?

By Luke Gittos

In 1843, the philosopher Jeremy Bentham said: ‘Publicity is the very soul of justice… It keeps the judge while trying, on trial.’ Bentham recognised that public justice – forcing courts to hear argument and make decisions in public – was the strongest safeguard against the arbitrary and tyrannical application of the law.

Last week in Britain, however, we saw the dark side of open justice. Ian Brady, the Moors murderer, argued before a mental health tribunal at Ashworth Hospital that he was not insane, and should be transferred to a prison where he would be able to starve himself to death. The court disagreed and kept Brady in compulsory treatment. Brady has spent the past 25 years at Ashworth, a secure hospital for people detained under the Mental Health Act.

Brady’s hearing provided a rare opportunity to witness what is normally a highly secretive process, which, taking place under the Mental Health Act, is used to determine whether a person should remain in compulsory treatment. Such tribunal proceedings have long been shrouded in secrecy. The hearings tend to take place in rooms at secure hospitals rather than in open courtrooms, and very strict controls are exerted on what information can be made available to the public.

Last year, however, a court ruled that Brady’s hearing should be held in public, with the proceedings broadcast to Manchester Civil Justice Centre through a live video uplink. Neither the press nor members of the public would be permitted inside the courtroom itself. The reasons the court thought it proper to hold this hearing in public will never be known, because the judge ruled that his rationale should be kept confidential.

Brady’s application before the tribunal was a challenge to the order which branded him a paranoid schizophrenic and saw him dispatched to Ashworth 25 years ago. He has since attempted to court attention by variously starving himself, writing bonkers letters and refusing to disclose the location of one his victims’ bodies – that of Keith Bennett. Having to sit through more of the geriatric Glaswegian’s nonsense must have been extremely difficult for the families of his victims, who complained about the extortionate cost (around £250,000) of publicising these proceedings.

Forward Guidance?

Nonsense! Central bankers have no choice.

by DETLEV SCHLICHTER

After two decades of serial bubble-blowing, the world’s central bankers have maneuvered themselves into a corner. They created a monster in the form of an unbalanced global economy and a bloated financial system, laden with debt, addicted to cheap money, and in need of constantly rising asset prices. Now the monster is in charge and the central bankers dare not stop feeding it.

The US Fed did, of course, make some noises to the effect that the flow of cheap money may at some point slow and then even stop. How credible these projections really are is far from certain. Markets seem to take them quite seriously indeed, but the more they sell off in response – and in particular, the more yields and risk premiums rise – the more difficult it will be for the Fed to follow through. – And by the way, if the jobless rate does fall to 6.7 percent, or to whatever magic number Ben Bernanke, in his unlimited wisdom, has ascertained as being safe for a policy ‘exit’, and if he then indeed does withdraw the punchbowl– will the unemployment rate then rise again? – We may have to deal with that question some other time. The focus today is the ECB and the Bank of England.

Policy paralysis is the new strategy

Both central banks had their monthly policy meetings yesterday and did – nothing. Although, when you read the papers you get the impression they did quite a lot. They seem to have unveiled some powerful new policy tool: forward guidance.

Both stated that they were committed to leaving policy rates at ultra-low levels for very long indeed. The ECB added that it might even lower rates further. The Bank of England additionally chided the UK bond market for paying too much attention to what Bernanke says, and for evidently not supporting the national recovery effort enough. This was, of course, an attempt by both central banks to distance themselves from the Fed’s loose talk of potentially turning off the monetary spigot. There is nothing surprising about this. Both central banks are standing with the back to the wall.