Monday, February 15, 2016

A complicated man

I have resisted the urge, strongly felt since Saturday afternoon when I learned of Antonin Scalia's death, to put any thoughts at all on the screen (I almost said "on paper") about the man and his legacy.  I am at best a casual student of the Supreme Court; its work rarely touches on my legal practice, and I have no particular claim to being a scholar of the Constitution and of the court whose work consists primarily in interpreting it.

But Nino Scalia has always been a fascinating and complicated person to me.  He was, by all accounts across the spectrum, a brilliant legal scholar.  His opinions were enjoyable to read, at least in the sense that they were often funny and ascerbic, with beautifully incisive and insightful commentary.  We disagreed about many things, maybe even most things, but I can recognize even in my intellectual opposite that he had a great love for this country and for the Constitution that created and governs it.

I met him once.  He was a guest speaker in my Constitutional Law I class at Georgetown in 1998.  His commentary came at a time when I was not mature enough to listen to what he had to say, or at least to record it for what it was.  He did not call on me for a question, and that's probably a good thing, as I doubt I would have had anything meaningful to ask him, and probably would have used the opportunity to pick a fight with someone who was far better equipped than I was to carry the day.  But I remember him being funny, offering jokes and the same wryly-smiling, sarcastic and sardonic demeanor that shines in many of his court opinions.  I shook his hand after class and said, "It's an honor to meet you."

He was friendly with Ruth Bader Ginsburg--the best of friends, in fact; they played tennis together, and they both passionately enjoyed the opera--and that, to me, is as good a character reference as one could possibly have.  I don't know RBG and although I might have met her once or twice at Georgetown events, I'm sure I've never spoken to her, but her late husband, Martin, taught me nearly everything I know about tax law and policy.  He was an amazing teacher who frequently displayed the same sort of wit that Scalia was known for.  (This ends the name-dropping portion of the blog post.)

I have no need to write a hagiography of Justice Scalia.  In fact, despite everything I've said up to this point, I find it hard to hold him in professional regard at all.  He had a carefully cultivated reputation for being what he referred to as a "textualist" when it came to the Constitution--and, for that matter, to all statutory interpretation.  By that he meant that the text governs; that the words mean what the words mean, and there is no need of a searching inquiry as to what anyone who wrote them might have meant.  (Some confused commentators regard him as an "originalist," a term he flatly rejected for its connotation that what the Framers of the Constitution meant governs; rather, what the text says, governs, in his jurisprudence.)

The problem with that approach is the great divide among Constitutional scholars (and the less scholarly of us):  Does the Constitution mean only what it says, in the most restrictive sense, or does it provide a framework of principles that are applied through a process of interpretation?  There are merits and demerits on both sides of that divide.  I don't fault Scalia for standing on the other side of it.  What I fault him for is the quiet abandonment of those principles when they become inconvenient.

That is, Nino wasn't really a textualist at all, except when it conveniently aligned with his sense of where cases should be decided and principles should be applied.  He proved as much in his concurring opinion in Bush v. Gore; he wanted Bush to win, so he cobbled together a theory that made that outcome possible.

Likewise, Scalia could be at his most vitriolic when it came to the rights of sexual minorities. His dissent in Lawrence v. Texas, a 2003 that overturned state criminal laws against sodomy, complains loudly about the "homosexual agenda," the focus of which is "eliminating the moral opprobrium that has traditionally attached to homosexual conduct," as though that's something bad.  As fine a legal mind as Scalia had, his position on homosexuality illustrates why he was not the kind of Supreme Court justice we need.  Above all, the Court must stand ready to protect our hard-won rights as the last bastion of the Constitution against an aggressive government.  It is no business of the government what consenting adults do with each other in the privacy of their bedroom.  It is simply not something that the government should have any interest in.

Whether he was motivated by a personal dislike for homosexual conduct, or by religious conviction, or by the need to repress personal desires, Scalia's positions that became law worked to oppress millions of Americans and to deprive them of their basic rights and dignities, and those that didn't become law, would have done the same if only more justices had agreed.  This illustrates why we must be careful not to follow people just because they are learned, or intelligent, or powerful; their opinions can be wrongheaded despite all of these things; they are subject just as we all are to petty prejudices and lack of foresight.  It's important to remember that they are human.

This point is best contained in an aphorism ascribed to Robert H. Jackson, who was the Attorney General under FDR, who was the chief prosecutor for the war crimes trials at Nuremburg, and who held the same seat on the Supreme Court that Scalia held:

We are not final because we are infallible, but we are infallible only because we are final.

I feel sorry for his family, who lost their patriarch this weekend.  To them, he wasn't a powerful public figure; he was a husband, a father, a grandfather.  They feel his loss deeply, I'm sure.  As above, it's important to remember that important, famous, powerful people are human.

But I do not feel sorry for the country, which will be much better off for his absence from the Court.

Friday, February 5, 2016

What is socialism?

I was on the phone the other day, a business call in which I was providing tech support for one of my web hosting clients.  I was scanning a log to try to pinpoint the problem the client was having, so I put the phone down.  I could hear the client and one of his employees chatting, and the subject of the Iowa caucuses came up.

The employee said she was having trouble making up her mind about the candidates, and Bernie Sanders came up.  The client shut that down quickly:  "He's a socialist, so no thanks."

For most people, "socialist" has certain connotations.  Most people have only a superficial understanding of the term.  We all learned in school about the Union of Soviet Socialist Republics, and, depending on your age, we knew that people like Mao and Stalin and Khrushchev and Castro were tied up in socialism somehow, and those guys were bad, so socialism is a bad thing, right?

You might even remember that the term "Nazi" is short for Nationalsozialistische Deutsche Arbeiterpartei, which is German for "National Socialist German Workers' Party."  And the Nazis were the worst of the bad, so socialism is a really bad thing, right?

I'm sure that the handful of people who read this blog know that just because something is called by a certain name, doesn't mean that everything called by that name is the same thing.  For example, the Democratic Party, of which I am a proud member, takes certain political positions on social and economic issues, while the Arkansas Democrat-Gazette newspaper stands squarely opposed to virtually all of those positions.

Of course, it's difficult to imagine two more different systems than the one in Nazi Germany and the one in Soviet Russia.  The Nazis were fascists--radical authoritarian nationalists--who viewed the state as being more important than the people; all effort was to be given in service of the government and of the purity of the "German race."

The USSR and Mao's China and Cuba under Castro were all communist governments.  Communism generally means an economic system in which property is owned by the state and the economy is planned and controlled centrally by the government, but the focus is on the equality of the people, en masse.  When you operate in a communist economy, you can't start a business (at least not without the permission of the government); rather, you're assigned a job and you're paid according to what (in theory) your needs happen to be.  The state is merely an instrument to plan and enforce small-scale economic equality of people.

The problem with the communist arrangement is that it tends not to work very well on the large scale.  (It works exceptionally well on the family scale; in most families, children receive what they need and contribute according to their abilities, while the adult(s) work to provide for those who can't provide for themselves.  This is a good example, by the way, of why thinking about the government's budget in the same way that we think about a family budget is a terrible idea.)  So the USSR broke up and the resulting parts mostly adopted capitalism; China's economy has become capitalist in many respects; Cuba is...well, it's still socialismo o muerte down there, but they're so hungry that they'll take what they can get.

The problems with fascism are self-evident.

In reality, neither of these systems really reflects the sort of socialism that Bernie Sanders advocates for.  Specifically, he qualifies the term "socialist" with the term "democratic."  But if you look at what he is advocating for, it doesn't really look all that different from the U.S. economy between 1935 and 1965--a time when we faced and conquered some of the greatest challenges that any country has ever seen, and when we enjoyed the most broad-based prosperity any society in the history of the world has ever enjoyed.

I am a capitalist.  I own my own businesses.  I believe that fair markets are the best way of allocating goods and services in the economy.  I strongly believe in the right of individuals to make their own economic choices.

But anyone who says that our capitalist economy is not also socialist is a fool.

There is very little I could do--very little any of us could do--without the socialist influence on our economy.  For example, every day, I get in my capitalist shower and turn on the socialist clean water tap; I dress in capitalist clothes, eat a breakfast made safe by socialist regulations; I get in my capitalist car (with socialist safety features and fuel economy standards) and pull out of my driveway onto a socialist street, controlled by socialist traffic signals, onto the socialist freeway, and park in my capitalist parking lot, ride the elevator (made safe by socialist regulations) to my floor, turn on my capitalist computer powered by socialist electricity (think REA and Corps of Engineers hydropower), communicate via the socialist internet, send letters via the socialist mail service...I could go on and on, but I think you get the point.

What I do, what we all do for a living is radically influenced, if not outright enabled, by a government that smooths the path for us.  The government invests in things that are difficult or impossible for individuals to accomplish on their own, like roads, and water and sewer systems, and electrical infrastructure, and national defense, and food safety, and police and fire protection.  It also arranges for Social Security and Medicare to make it easier for people to live after they have outlived their ability to earn a living.

All of these things are "socialist."  And yet they do not exist in opposition to capitalism; they do not work against capitalism; they work alongside capitalism; and, perhaps most importantly, they make capitalism possible.

It's not free to do these things.  They cost money, whether you do them with private investment or public investment.  But just like borrowing money to buy a house or a car, they represent investments that make life easier and more productive than without them. 

This is not some "pie in the sky" "free money and stuff for everybody" concept.  It is part of our social bargain.  By investing in college, we make it easier for the younger generation to reach their potential without incurring ruinous debt, so that they can get good jobs and become taxpayers.  By investing in a health care system that works--Medicare for All--we can save most people a lot of money by making private health insurance unnecessary.  These are things that most countries--including the most successful economies in the world--do already.  They can work here, because they have worked here before, and far from destroying our economy, they made it the envy of the world.