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Rights and the Hyde Amendment

[ 64 ] November 2, 2007 |

David Nieporent says:

But a right means the government can’t stop you from doing something; it doesn’t mean that you have some claim on anybody else’s wallet to give you that thing.

There are a number of potential misconceptions here. First, not all rights are constitutional rights. Second, there’s nothing inherent about rights that they be merely “negative” rights. Third, as Cass Sunstein and Stephen Holmes correctly point out, even the enforcement of “negative” rights requires substantial state expenditures (and hence claims on “other people’s wallets”), making the distinction between “positive” and “negative” rights itself problematic. And finally, leaving aside the fact that there are other constitutional traditions than the American one, even the primarily “negative rights” American framework recognizes positive rights. Most obviously. the Sixth Amendment’s right to counsel has been construed to require that taxpayers provide legal counsel, even if libertarians would prefer that the law in its majestic equality merely prevent the state from denying rich and poor defendants alike access from the lawyers they have on retainer.

With respect to the issue under discussion, the Hyde Amendment, the issues of constitutional rights are more complex than they may appear at first glance. There are other cases in which the Constitution mandates a positive right in any plausible long-term political context; Brown v. Board, for example, does not require the state to provide public schools but does require that if the state does provide public schools that they be provided equally to whites and African Americans, which (at least if taken seriously) requires the spending of taxpayer money. The Hyde Amendment presents such an issue. There is not a constitutional right to medical treatment; however, if the state provides medical treatment it does have a constitutional obligation to provide such benefits impartially. It’s a difficult case, but denying funding to a medical procedure not for reasons logically related to the purpose of the program but to obstruct the exercise of a fundamental right does in fact raise a difficult constitutional question and at least arguably a violation of constitutional rights.

And lest you think this is some kind of crazy-left wing notion, the court’s conservatives — including Scalia and Thomas — have held that the state is obligated to provide money from taxpayer wallets to religious student newspapers if it provides funding for other publications. And this case goes further, in the sense that providing state funding to religious organizations arguably violates the Establishment clause, while nobody believes that current doctrines make Medicaid unconstitutional. At any rate, most people across the ideological spectrum accept that there are cases in which the state’s arbitrary use of its spending powers raises a constitutional violation, and hence Nieporent’s description of American constitutionalism is inaccurate. And it’s therefore perfectly reasonable for Ann to describe the Hyde Amendment as not only awful public policy but an interference with reproductive rights.

More on Vouchers

[ 15 ] November 2, 2007 |

Laura McKenna:

OK, a little poking around found that the Cleveland voucher is now worth up to $5,000 per student, which is much closer to what the average per student funding is for public school students. And no schools have popped up.

It’s actually really expensive to run a school. The only way to break even with $5 – 7,000 is if you have packed class rooms. The church schools are able to function with low tuition levels and small classes, because they are subsidized by the church and they pay the nuns nothing.

To fill all those seats in the classroom, all the kids in a community would have to be eligible for vouchers and also use them. A education venture capitalist couldn’t make it in a community that had a competing public school system that drew away 50% of the population.

Right. And as I said in the previous voucher thread, even more problematic is that fact that the point is not to have private schools, but to have good schools. The invocation of private schools by voucher proponents can carry the suggestion that students will be able to attend high-performing, established private schools, but of course that won’t happen. It is much less obvious that newly formed private schools, with fewer resources to attract good teachers, provide facilities, etc. than both good private and good public schools in the metropolitan area and charged with educating mostly poor children will do a good job. Which, again, compels the conclusion that any remotely politically viable voucher program is likely to have an utterly trivial impact.

Dana has more. I’d be interested to know how many conservertarians purportedly defending the the interests of poor children oppose the funding of schools through local property taxes rather than through general state revenues, an obvious engine of inequality.

Vouchers For What?

[ 0 ] November 1, 2007 |

As a follow-up to the debate that various TAPPEDers and ex-TAPPEDers are having with respect to conservertarian claims about the efficacy of school vouchers, this from Justice Stevens’s dissent in Zelman (although peripheral to the question of whether voucher programs that will cause funding to go almost exclusively to parochial schools are constitutional) seems worth quoting:

First, the severe educational crisis that confronted the Cleveland City School District when Ohio enacted its voucher program is not a matter that should affect our appraisal of its constitutionality. In the 1999—2000 school year, that program provided relief to less than five percent of the students enrolled in the district’s schools. The solution to the disastrous conditions that prevented over 90 percent of the student body from meeting basic proficiency standards obviously required massive improvements unrelated to the voucher program. Of course, the emergency may have given some families a powerful motivation to leave the public school system and accept religious indoctrination that they would otherwise have avoided, but that is not a valid reason for upholding the program.

The most obvious limitation on voucher programs, as both Matt and Ezra note, is that there’s nowhere for most students to go. A market in education wouldn’t function like other markets. Whereas more customers (within reason) for a department store mean more profits, more students for a school makes it harder to educate everyone, and places substantial demands om physical spaces that can’t be easily expanded. Even assuming that they provide enough money for students to have a genuinely wide theoretical range of private schools to go to, which in practice is unlikely, vouchers are only an effective solution for more than a tiny number of students if there are lots of spaces in good schools for children to go to. Or, in other words, they only work if you assume away the problem you’re trying to solve in the first place. The small numbers involved and the fact that schools are very far from being like markets in consumer goods also make large transformative effects created by vouchers exceptionally implausible. And, certainly, as Matt says to talk about vouchers in the abstract without any details about what level of funding is on the table, how we’re going to pay for it, and what slots are available for students given vouchers is entirely useless.

Burkean Rhetoric, Supply-Side Policies

[ 3 ] November 1, 2007 |

As a follow-up to the point that Mike Huckabee’s noblesse oblige rhetoric is not terribly meaningful given that his only significant domestic policy proposal is a massively regressive tax cut, although the article is no longer available online I think it’s worth returning to this from the New Yorker profile of Michael Gerson, often cited as the kind of Christian Democratic evangelical that Democrats can allegedly attract to the fold:

Gerson defends Bush’s tax cuts, which the President’s critics believe not only favor those with the highest incomes but have also left less money for important domestic programs; Gerson believes that free markets and free trade are the best means of lifting people out of poverty, and that lower taxes stimulate both. “The part of Mike I have the most trouble understanding, perhaps because we simply disagree, is how he can square his support for pretty substantial spending for the very poorest among us with a defense of Bush tax cuts for the wealthiest people,” Dionne said. “Maybe Mike just buys supply-side economics in a way that I don’t, but most supply-siders don�t think like Mike.”

It’s entirely possible that Gerson has convinced himself that policies with a proven track record of increasing inequality will actually decrease it if tried again. But even if the arguments are in good faith, they point out that mere rhetoric about social justice is not enough for coalition-building. When more evangelicals actually start supporting progressive economic policies, then Democrats might have something.

The Madness of MoDo

[ 0 ] October 31, 2007 |

Molly Ivors does a good job with the latest bit of vacuous misogyny from Maureen Dowd, whose presence on a major op-ed page remains and will always be an absolute disgrace. A couple more points are worth emphasizing. First, none of this has the slightest shred of substantive significance; the idea (also now being propounded by Slate) that pop-psych anecdotes about people’s marriages tell us anything interesting about a presidential candidate’s performance is nothing but a cover for journalists who prefer lazy gossip to actually doing their jobs. The second is that Dowd, as always, doesn’t seem to understand feminism. Not only is feminism (to use Jessica Valenti’s line) not Maureen Dowd’s dating service, most intelligent feminists understand that feminism does not provide any single answer to the question “what should you do if your husband gets a blowjob from somebody else?” Some feminists are in open marriages. Some forgive adultery as anybody in a long-term relationship has to forgive some mistakes. Some will find it intolerable and leave. Feminism is a way of evaluating a relationship, not (leaving aside violence, etc.) a set of one-size-fits-all answers about how to deal with every situation. And finally, it should be obvious (and this is the biggest reason why such analysis is so useless) that Clinton would have been condemned no matter what she did. If she had left her husband, she would be a cold man-hating shrew with no respect for the institution of marriage; since she stayed with her husband, she’s somehow an ambitious schemer who is betraying feminism (which is not betrayed, apparently, by sexist smears on her candidacy in the New York Times.) She can’t win.

There is one value to Dowd’s column: it reminds us of the amount of sexism Clinton is going to be subject to in the general. If Clinton runs against Giuliani, you can bet the ranch that to Dowd, Matthews, Russert et al. the adultery of Clinton’s husband will be a bigger issue than the actual adultery (and callous humiliation of his wife and children, etc.) of the Republican candidate.

Death Penalty Moratorium

[ 28 ] October 31, 2007 |

It’s all but official: the Supreme Court issued a stay of execution for a prisoner in Mississippi, “and thus gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring.” Scalia and the man who put the doctrinaire conservative in “moderation” Sam Alito — but not Thomas or Roberts — dissented.

It seems almost certain, however, that this stay will be temporary and executions will resume after the case comes down next year. Although the possibility that we’re torturing people to death strikes me as more substantial Eighth Amendment grounds than the recent limitations on the death penalty found by the Supreme Court, preventing the execution of adolescents and the mentally handicapped represents a relatively small number of cases, lethal injection involves virtually every execution in the country. I can’t imagine Kennedy voting to require stringent standards of evidence from the states in this instance.

Tomorrow’s Contrarianism Today

[ 7 ] October 30, 2007 |

Just enough cowbell!

Since I often disagree with MY on aesthetics, I should note that I concur with his assessment of the widely-derided new Rilo Kiley album, which although being less “indie rock” than More Adventurous is almost as great song-for-song. And “Silver Lining” isn’t even my favorite cut on the album; the terrific straight disco “Breaking Up” and the epitome of the funky & poppy & catchy & sleazy vibe “Smoke Detector” are even higher peaks for me, and Lewis’s increasingly commanding vocals put some of the lesser tracks across. Even Blake’s track, normally a pissbreak, is pretty good. Terrific live show at the Bowery, too.

When You’re Insane, It’s Always 1938 and Iran is Capable of Conquering Europe by 2012

[ 20 ] October 30, 2007 |

To Rudy Giuliani’s foreign policy non-braintrust, it’s all Hitler all the time.

Anthony J. Kennedy’s Great Moments in Medical Practice

[ 0 ] October 30, 2007 |

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“While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude that some women shouldn’t worry their pretty little heads about manly medical treatment.”

Looking for information about Lurleen Wallace — George’s wife and briefly the proxy governor of Alabama when her husband was term-limited out — I found this:

She had made her gubernatorial run carrying a tragic secret. Lurleen Wallace had been diagnosed with cancer as early as April 1961, when her surgeon biopsied suspicious tissue he noticed during the cesarean delivery of her last child. As was common at the time, her physician told her husband, not her. George Wallace insisted that Lurleen not be informed. As a result, she did not get appropriate follow-up care. When she saw a gynecologist for abnormal bleeding in 1965, his diagnosis of uterine cancer came as a complete shock to her. When one of her husband’s staffers carelessly revealed to her that Wallace had discussed her cancer with them, but not her, during his 1962 campaign three years earlier, she was outraged.

In order to facilitate his plan to use her as a surrogate candidate in 1966, Mrs. Wallace cooperated with a campaign of dissimulation and misdirection as she began radiation therapy in December, 1965. This was followed by a hysterectomy in January 1966. Despite her ill health, Mrs. Wallace maintained a brutal campaign schedule throughout 1966 and gave a 24-minute speech — her longest ever — at her January 1967 inauguration.

Depressingly, Wallace’s political heirs have in addition to using federal spending power to deny women appropriate medical advice added such innovations as using state coercion to force doctors to give women psudeoscientific propaganda and restricting their access to safe medical services.

James and the Red Sox

[ 0 ] October 30, 2007 |

Since I’ve been a fan since I purchased the 1985 Baseball Abstract on a whim and among other great stuff saw that he published a hilarious attack on bane-of-my-youthful-Expos-fan-existence Bill Virdon, I enjoyed this take on James and the success of the Red Sox:

One of the first things Epstein did was to hire James, as a senior consultant to the Red Sox organization. In the four years since, the Red Sox, who hadn’t won a World Series in 85 years, have reached baseball’s pinnacle twice.

Some of the central themes of James’ work apply particularly well to his own story. For example: An expert is someone who knows what he’s talking about, whether he has any credentials or not. Past performance is the best predictor of future performance. Talent is not in short supply. The qualities that impress people are not necessarily the same qualities that correlate with success. Powerful, wealthy institutions can be run for decades by people who don’t know what they’re doing. And the conventional wisdom is often wrong.

These ideas, obviously, can be applied far beyond the subject of baseball. They’re the sorts of ideas that never fail to annoy and infuriate authority figures, which is why it takes a special kind of person to hurl himself into the face of the solid rock wall of stupidity that defends many a comfortable social institution.

I’ve written this with respect to Billy Beane, but I think the work of James and the success of the A’s and Red Sox is often portrayed as being about “statistics” when it’s much more about not accepting received wisdom when it conflicts with evidence, making evaluations based on performance rather than images, etc. Michael Lewis actually conveyed this every well. Alas, MLB seems to be making more progress than our political class.

One unfortunate thing about James working for the Red Sox, though, is that if he could make his new research public he’d be a blogging natural…

Hey, My Wife Can Get An Abortion, So Screw Roe!

[ 22 ] October 29, 2007 |

Shorter abortion centrists: Me me me me me me me me me me!

Longtime readers will know that this has been one of my pet peeves for a long time, but Dana is of course exactly correct. The idea that California women should be indifferent about abortion rights as long as they have theirs is useful only as a window into the solipsism some pundits project onto others. It’s like saying that African Americans in northern states in the 1950s should have been indifferent to federal civil rights because, after all, they didn’t have to live under apartheid! And the analogy should make clear, again, that the “moral federalism” position is just evading the issue; it’s another way of saying that you don’t consider the right in question to be important. If that’s your position, you should defend it on the merits rather than hiding behind “states’ rights” principles virtually nobody applies consistently.

…Cara has more.

New Fields of Concern Trolldom

[ 4 ] October 29, 2007 |

When I read about the sure-to-be-atrocious series by Melinda Henneberger trying to infer something meaningful about candidates for president by using tarot cards horoscopes random anecdotes about their marriages, the name sounded familiar. So I looked, and sure enough I first heard about Henneberger because she’s a classic “Democratic” abortion concern troll, arguing that the Democrats have to embrace her own support for arbitrary regulations forcing young women to carry their pregnancies to term, without bothering to make either an argument for her positions on the merits or to even to articulate her actual positions (let alone providing any non-anecdotal evidence that her strategy will have significant political benefits.) Goody.

So, anyway, If we were selecting a national marriage counselor rather than a president, this might be useful. I think it’s safe to assume that we’ll learn from her pop-psych analysis that the candidates Henneberger likes are good and the ones she doesn’t like are bad. I’m sure it will be fascinating.

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