By Kevin
D. Williamson
Monday,
July 10, 2023
One of
the really knotty problems with our public debates is that we often are having
two or three debates at the same time, and it is easy to get confused about
which question is actually in dispute at any given moment.
Take,
for example, the recent debate about racial preferences in college admissions:
The question before the Supreme Court was only a legal one—not that you’d know
it from the campaign-style rhetoric of Ketanji Brown Jackson or Sonia
Sotomayor!—to wit, whether the law permits what Harvard and the University of
North Carolina were doing, or whether that amounted to unlawful racial
discrimination. The majority of the Supreme Court rightly found that this
racial discrimination was unlawful. A second question—an unrelated question
from the point of view of a Supreme Court justice who is actually doing his or
her job instead of trying to act as an unelected legislator—is whether
racial-preference policies such as those that had been implemented at Harvard
are good policies. A third question—never quite explicitly discussed—has to do
with “legal consequentialism,” the notion (which has official legal standing in
some countries, such as Brazil) that legal questions per se should be made
subordinate to utilitarian calculation. As the Brazilian statute puts it, “a
decision shall not be made based on abstract legal values without considering
the practical consequences of the decision.”
The
consequentialist point of view is an invitation to conflate the question of what
the law actually says with the separate question of what the law ought—according
to … somebody—to say. Justice Jackson’s remarks about the affirmative action
cases offered an illuminating case of vulgar consequentialism. Never mind the
law, she insisted, affirmative action is a policy that “saves lives.” For
example, she noted, the survival rate for high-risk black newborns is more
than double for those with black physicians than for those
with non-black physicians. That is an extraordinary claim, one that is
interesting in that it is transparently untrue and preposterous on its face.
African American newborns do, indeed, have higher infant-mortality rates than
do those of other races, but the overall rate of infant mortality among black
newborns is 894 per 100,000, a survival rate just a little above 99 percent.
(Hooray for that worst health care system in the developed world.) The only way
the survival rate could double for newborns under the care of black physicians
would be if the survival rate were less than 50 percent—as a mathematical
matter, the survival rate necessarily tops out at 100 percent.
The
research Justice Jackson cited does not say what she says it says, and, given
her misunderstanding of it, one suspects that she did not read the paper at all
but instead read an amicus brief based on this ideologically distorted (and, on
some points, originally erroneous) report in the Washington Post. Ted Frank, writing in the Wall
Street Journal,
takes this nonsense apart in a very precise and easily understood way.
Justice
Jackson is here engaged in the silliest and most unserious version of
consequentialism: “People will die!” Sen. Elizabeth Warren is the
textbook practitioner of this: Support Republican tax-cut proposals or
Republican health-care policies and “people will die!” One can come up with a chain of
consequences in favor of—or against—practically any policy proposal and use it
to argue that, unless you get your way, people will die. As it turns out, this
stuff is pretty easy to turn on its head. The research Justice Jackson cites
doesn’t say what she says it says, but it does find that the patients of black
pediatricians have higher overall mortality rates than the patients of
non-black pediatricians. If we take Justice Jackson’s line of argument
seriously, then we would have to consider the possibility that having any black
pediatricians at all means that children will die. But we do not have to take
that line of argument seriously, because it does not deserve to be taken
seriously.
Justice
Jackson is herself one personification of how easy it is to misunderstand—or
misrepresent—the evidence for or against racial preferences. If race is all you
take into consideration, then, yes, it surely is the case that African
Americans as a whole are less likely to enter elite law schools and become
highly successful attorneys than are members of many other groups. But we live
in a complex society in which race is one factor—an important one—among many. I
have often teased Mitt Romney about being the son of a moderate Republican governor,
multimillionaire businessman, and failed presidential candidate who overcame
the obstacles of his birth and grew up to become a moderate Republican
governor, multimillionaire businessman, and failed presidential candidate.
Romney is one apple that did not fall very far from the tree. Justice Jackson
is another. Her parents were college graduates and people of consequence in
Miami, where she grew up. Her mother was a high school principal, her uncle
chief of police in Miami, her father a successful school-board attorney.
Justice
Jackson replaced Justice Stephen Breyer, whose father also was a school-board
lawyer. She went to the same law school as Justice Breyer. (Amy Coney Barrett
of Notre Dame Law is the only justice who did not go to Harvard or Yale for law
school.) She was an editor at the same law review as Justice Breyer. She clerked for
Justice Breyer. If you cannot see the family resemblance between the two
justices, then you are not looking at the scene with the right kind of
eyes.
And it
is not as though she started at the bottom and got there thanks only to racial
preferences: Justice Jackson went to the same high school as Jeff Bezos.
So, yes,
she was the first black woman on the Supreme Court—and she was the 22nd from
Harvard Law. In that sense, she’s not exactly a socioeconomic trailblazer—she’s
more of a Rufus Wheeler Peckham, another Democratic political activist who was
willing to set aside principle when achieving his favored political outcome
demanded it.
(Upon
being nominated to the Supreme Court, Peckham remarked: “If I have got to be
put away on the shelf, I suppose I might as well be on the top shelf.” Also:
You don’t meet as many men named “Rufus” as you once did.)
Socially,
economically, educationally, Justice Jackson is precisely the
sort of person you’d expect to see end up on the Supreme Court. And, before
that, she was precisely the sort of person you’d expect to see
end up at Harvard Law. One wonders what great experience of diversity she
brought to all the other children of lawyers and school
administrators she encountered at Harvard Law. It is true that she had an uncle
who was arrested for distributing cocaine—if an uncle with a drug-crime issue
is what it takes to bring some cherished diversity to the Ivy League, then young
Robert Biden II can rest easy, for the way has been made straight for him.
There is
one member of the Supreme Court whose personal story really is radically
different from that of the typical elite lawyer or federal judge. As such, it
is entirely unsurprising that it is Clarence Thomas who has been the most clear
and plain about the shortcomings of using race as a proxy for that more complex
and more meaningful kind of diversity that really does enrich public and
private life.
Justices
of the Supreme Court tend to be at their worst when they are acting as amateur
sociologists as a prelude to acting as freelance legislators. Justice Jackson’s
sloppiness with the scholarly evidence here is one of many examples of that.
Judges are legitimately empowered to do one thing and one thing only: sorting
out certain consequential legal questions. Using a seat on the Supreme Court to
pursue private notions of justice and private political agendas not only is not
a legitimate part of the justice’s job—it makes it impossible to do that job at
all. I wasn’t being facetious when I suggested that Justice Jackson
resign her seat on the court and seek one in Congress—if she wants to make the laws, then
let her first seek election as a lawmaker. The job she has is difficult enough
without moonlighting as a legislator.
But what
about that consequentialism? The law has real-world effects—shouldn’t
judges take those into account when making decisions? I don’t think so, and I
don’t think that many other people would, either, if they would think it
through. Making legal decisions based on their likely practical effects
ultimately means nothing more or less than that judges should subordinate what
the law says to their own private notions—which are necessarily limited,
short-term, and held without direct political accountability—and do whatever
seems right to them in the moment. We write down our laws precisely to avoid
having them be creatures of a moment and only a moment. The First Amendment has
been the law of the land for 232 years, during which there were many moments
when those with power were inclined to violate the protections enshrined
therein—and even tried to do so from time to time, with occasional success. (It
is good to remember that it fell to the conservative Warren G. Harding to
commute the sentence of the socialist Eugene V. Debs, branded a “traitor to his
country” by the progressive Woodrow Wilson and locked away on sedition charges
for criticizing the military draft.) If you read the history, you will
appreciate how many of the arguments against free speech—and against other
civil liberties—were consequentialist in character. That has been the case from
Eugene V. Debs all the way back to Socrates.
And
Ketanji Brown Jackson is far from the first Supreme Court justice to make
a practical argument for discriminating against people of
Chinese origin.
And
Furthermore . . .
Racial
opinions more than four minutes old often look pretty bad. In his Plessy dissent,
Justice John Marshall Harlan wrote:
I am of opinion that the state of Louisiana is inconsistent with the
personal liberty of citizens, white and black, in that state, and hostile to
both the spirit and letter of the constitution of the United States. If laws of
like character should be enacted in the several states of the Union, the effect
would be in the highest degree mischievous. Slavery, as an institution
tolerated by law, would, it is true, have disappeared from our country; but
there would remain a power in the states, by sinister legislation, to interfere
with the full enjoyment of the blessings of freedom, to regulate civil rights,
common to all citizens, upon the basis of race, and to place in a condition of
legal inferiority a large body of American citizens, now constituting a part of
the political community, called the ‘People of the United States,’ for whom,
and by whom through representatives, our government is administered. Such a
system is inconsistent with the guaranty given by the constitution to each
state of a republican form of government, and may be stricken down by
congressional action, or by the courts in the discharge of their solemn duty to
maintain the supreme law of the land, anything in the constitution or laws of
any state to the contrary notwithstanding.
Pretty
solid stuff. But he also wrote—in the same dissent:
There is a race so different from our own that we do not permit those
belonging to it to become citizens of the United States. Persons belonging to
it are, with few exceptions, absolutely excluded from our country. I allude to
the Chinese race.
He
signed the dissent in Wong Kim Ark, which argued that people of
Chinese origin could not become U.S. citizens because they were, as a practical
matter, impossible to assimilate:
Generally speaking, I understand the subjects of the emperor of
China—that ancient empire, with its history of thousands of years, and its
unbroken continuity in belief, traditions, and government, in spite of
revolutions and changes of dynasty—to be bound to him by every conception of
duty and by every principle of their religion, of which filial piety is the
first and greatest commandment; and formerly, perhaps still, their penal laws
denounced the severest penalties on those who renounced their country and
allegiance, and their abettors, and, in effect, held the relatives at home of
Chinese in foreign lands as hostages for their loyalty. And, whatever
concession may have been made by treaty in the direction of admitting the right
of expatriation in some sense, they seem in the United States to have remained
pilgrims and sojourners as all their fathers were.
In much
the same vein, you can read Mohandas K. Gandhi early in his career arguing that
the British were wrong to discriminate against Indians in the British Empire
because doing so unfairly reduced Indians to the status of Africans, who were,
in his view, “savages” fit only for lives of “indolence and nakedness.”
Quandoque
bonus dormitat
Homerus. The Mahatma, too.
Economics
for English Majors
Who
could have seen this coming? Other than your favorite retired
theater critic, I mean.
Headline:
“Interest Costs Will Grow the Fastest Over the Next 30 Years.” The guts of the
story:
According to the Congressional Budget Office’s (CBO)
long-term baseline,
federal spending as a percentage of Gross Domestic Product (GDP) will grow to
29.1 percent over the next three decades. Driving a large part of that growth
is spending on interest payments to service the national debt.
Net interest payments hit a nominal dollar record of $475 billion in Fiscal Year (FY) 2022 and
will nearly triple by FY 2033 to $1.4 trillion, growing to $2.7 trillion by
2043 and to $5.4 trillion by 2053. As a share of the economy, net interest will
rise from 1.9 percent of GDP in FY 2022 to hit a record 3.2 percent by 2030 and
more than double to 6.7 percent by 2053.
By 2051, spending on interest will be the single largest line item in
the federal budget, surpassing Social Security, Medicare, Medicaid, and all
other mandatory and discretionary spending programs.
Think
about that: In only a few years, the single biggest federal expense will be
paying interest on spending that will, at that point, be many decades in the
past. It may be a lot of fun to spend money on bridges to nowhere and free
false teeth for everybody in the here and now, when politicians can watch all
that money slosh around in their districts, but it is a heck of a lot less fun
to be spending that money on bridges to nowhere build 70 years ago.
I
suspect that Republicans are about to have a couple of good elections, and the
reason I suspect that is the fact that the New York Times editorial
board has suddenly taken an interest in fiscal responsibility: “America Is Living on Borrowed Money” the Times editorial
thunders. (Debt, like homelessness, has a way of creeping up to the front page
from way back on A26 when Republicans are in power. It is a dismal tide,
indeed.) The Times editorial being a Times editorial,
it has a cheap—and erroneous—class-war element baked in, with the editors
complaining: “Rather than collecting taxes from the wealthy, the government is
paying the wealthy to borrow their money.” That is, as the economists
say, horsepucky. The old days of rich people sitting on big piles
of T-bills—“lapt in a five per cent Exchequer Bond” like the old British aristos—are
long, long gone. The major holders of U.S. government debt are central banks
around the world (including our own Federal Reserve), followed by mutual funds,
ordinary depository banks, state and local governments, and pension funds. We
aren’t paying Scrooge McDuck to borrow his ducats—we are paying retired
California schoolteachers, cops in Philadelphia, garbage collectors in Chicago,
etc. Lots of good-ol’ regular-folk “Real Americans™” on Uncle Stupid’s very
long list of creditors. Sure, Wall Street gets a cut—you don’t move that much
money around, tons of the stuff, without paying the freight.
Most of
the money going out of the Treasury spillways is either some form of income
support (Social Security, traditional welfare, health-care subsidies), military
spending, or, as the world seems to be discovering, interest on money already
spent. And, as you may have noticed, we are not in an existential fight for our
lives with Nazi Germany or a Cold War with the Soviet Union; we are not facing
some domestic emergency that is driving spending, either: Even if you account
for COVID spending in the broadest way, it’s a drop in the ocean. (Never mind
that many of our economic crises over the past 30 years have been driven by
policy decisions in Washington rather than by exterior factors.) As I have been
writing a bit about lately, much of that spending has been marketed as
“investments.” But if that spending really was an investment rather than simple
consumption, then we would expect public debt as a share of GDP to be
declining—the benefits, the return on the investments, would exceed the cost.
In fact, the opposite has happened: public debt as a share of GDP today is about
four times what it was 50 years ago. Artificially low interest rates have kept net
interest as a share of GDP relatively low—much lower today than it was in the 1980s and
1990s—but inflation
has necessitated a change of course with interest rates.
We’re
spending like we’re in an emergency when there is no emergency, and we double
down on that when there is an emergency. If we keep on our present course, debt-service
expenses will exceed our tax revenue and may exceed the revenue we can
successfully collect even if the Times editors get their way
and a big class-war tax hike is enacted.
What
happens then? Ask the archangel Gabriel.
Words
About Words
About
the above: It’s “to wit,” not “to whit.” Wit comes from the
Old English witan, “to know,” from the proto-German witanan,
“to have seen.” This wit, unlike the more common modern English wit, as in the
quality for which Oscar Wilde was famous, is a verb, not a noun. The original
phrase was “it is to wit,” meaning, roughly, “as it is known,” and, later,
“namely.” The Latin videlicet, viz. to the lawyers,
means roughly the same thing.
The
other one, whit, comes from the Old English na whit, meaning “no
amount.” We still use it in roughly that form, as in “not a whit of
evidence.”
So, when
it comes to “nameless,” keep it whitless, lest you appear witless.
In Closing
I have
often remarked that everybody would be 100 percent down with capitalism if not
for their experience with a few companies in a few industries, mostly heavily
regulated, low-competition industries such as airlines, health insurers, and
banks. I’ll write up my recent tale of woe with British Airways at some point,
if only because I know how much sympathy I’ll generate with stories about
disappointing business-class travel to Lake Como. The trouble with airlines
isn’t just airlines, of course—it is the FAA and other regulators, airport
authorities, and much more, not to mention the vast constellation of
incontinent recta that is the traveling public. Government and industry
analysts have estimated that flight delays cost Americans some tens of billions
of dollars every year, but the real number must surely be much higher, inasmuch
as the inability of airlines to keep to a schedule has changed both business
and consumer behavior: For example, a nonprofit I used to work for insisted
that participants flying in for events show up a day early—even if your event
was at, say, 7 p.m., you were not allowed to fly in that morning, because of
the likelihood that you’d be delayed and miss your appointment. For us, that
meant hundreds of thousands of dollars a year in additional travel costs, and
we were kind of a small deal. As with traffic congestion in the cities, anybody
who could plausibly address that problem would have the thanks of a large and
diverse constituency. But, hey, let’s talk more about “cultural Marxism” and
“white privilege.”
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