Innocent? Or just not guilty yet?

By JSC5

Just a quick point about innocence: the legal fact that you’re innocent doesn’t mean you didn’t do anything wrong. It also doesn’t mean you would still be innocent in a world with marginally-more-just legislation.

This point is beautifully illustrated by the recent news that prosecutors have decided not to bring charges against former House Majority Leader Tom Delay. In response to this unhappy news, the New York Times editorial board argued that “many of Mr. DeLay’s actions remain legal only because lawmakers have chosen not to criminalize them.”

Some conservatives and libertarians took the opportunity to stand up for DeLay and put down the Times. Jonathan Adler briefly snarked, “Well, yes. That’s the way it works.” Megan McArdle took the game further, calling it the “Worst Editorial Line Ever”,* and continued,  “the instinct to punish people even though they may not have been technically breaking the law . . . well, it’s usually selectively applied by the people in power, to those who are out of it.  Maybe what DeLay did should have been illegal, but it wasn’t, and he has, therefore, been found innocent–not just ‘found innocent’. ”

I don’t get what Adler and McArdle are saying here. Clearly the category of “things that are illegal” is defined by previous legislative action.** I’m pretty sure the Times editorial board knows that, and I don’t think Adler is really adding anything to the conversation except willful misinterpretation. McArdle has a potentially-more-interesting point, which is that people in power define what is legal and what is illegal. That should have some really interesting implications, but she doesn’t actually use that observation to advance her argument. Instead, she just ends up basically agreeing with Adler that the Times editorial is one stupid tautology.

The problem is that McArdle and Adler both seem to have missed the point of the editorial. So let me reconstruct the basic argument:

1. There is a distinction between what is legal and what is right (such as when someone named DeLay takes large in-kind donations of fancy vacations in return for favorable government action, but didn’t happen to break the law in the process).
2. One important duty of legislators is to criminalize very bad behavior (such as what DeLay did) and bridge the gap from point #1.
3. Legislators have failed to do that when it comes to public corruption law, (thus leaving DeLay ‘innocent’)
4. Therefore, we need legislators who will do a better job making things illegal that really are bad (like public corruption).

Now, if Adler and McArdle and others want to live in a relative world in which all that matters is what is currently defined as legal, then more power them. I (along with the Times editorial board, apparently) believe that it’s more important to maintain a vision of progress, in which we point out the shortcomings of our current legal system and advocate for positive reforms.

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* Hyperbole alert: that can’t really be true, and McArdle can’t really mean it. Or maybe she does mean it, and just hasn’t read many editorials in her time.

** Except, of course, for crimes under common law. But that’s something you’d have to pay a ton of money to learn about in a fancy law school, and who’s going to do that?

gay marriage! controversy! slow down!

[by JSC5]

I’m a little late in getting to this, but a federal judge has ruled that California’s Proposition 8, which prohibited gay marriage in that state, is unconstitutional. I like to think of same-sex marriage is one of those “duh!” issues, like beer deregulation or early childhood education. We recognize, however, that despite how simple an issue it is for some, same-sex marriage has caused a great deal of controversy for other people. Orin Kerr had a post up recently over at Volokh Conspiracy that took this fact of controversy and conflated it with actual importance. He starts by quoting Judge Walker’s ruling, and then responds to it:

[Judge Walker’s opinion]: “Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.”

[Orin Kerr’s commentary]: Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.

Now, gay marriage is certainly politically salient in that it stirs up emotions and seems to divide people into two camps. That said, I don’t think it’s nearly as polarizing as he makes it out to be. Who exactly is Kerr hanging out with to make him think that mainstream opinion runs from “the greatest advance for civil rights in America” to “the end of the world”? I know a lot of pro-gay marriage people, and I don’t think a single one thinks that gay marriage clearly outranks the civil rights movement for African-Americans or the women’s rights movement. Furthermore, I know many (though fewer) anti-gay marriage people,  none of whom think it will seriously end the world. In fact, mainstream opinion on this subject seems to stretch from “good idea/duh” to “I’m concerned about it/ewww”.

Either way, I’m not sure that the actual level of controversy even matters. It seems that Orin Kerr is confusing (1) political salience with (2) actual breadth or depth of change. What exactly is the evidence Professor Kerr would offer up in defense of his contention that same-sex marriage is “one of the more significant questions of social policy of our time”? The simple fact that Americans fall into two broadly equal pro and con camps isn’t enough. Lots of issues – both important and superficial – are politically salient in a similar way,  so the mere fact of salience can’t help us to distinguish actual importance.

Just how important and sweeping of a change would gay marriage be? Judge Walker;’s answer (quoting a bevy of experts who testified at trial) is that it’s pretty important for the gay couples who would get married, and not at all important for everyone else. In response, Orin Kerr says that the mere fact of political controversy proves Judge Walker wrong.

It’s an effective strategy for troglodytes trying to make sure that gay people don’t have the same rights as everyone else. They don’t even need to marshal any real evidence or reasons as to why the proposed reform would be bad or that implementing it right now would be dangerous; all they need to do is disagree, and the disagreement becomes the evidence.That is, until smart professors like Orin Kerr, along with the rest of us, some day stop believing the hype.

How to end tax expenditures the right way

[by JSC5]

As per Ezra Klein in today’s Wonkbook, Martin Feldstein has a plan for decreasing the deficit: end tax expenditures.

Now, regular readers of the blog will remember tax expenditures from one of my old posts inspired by the craziness of Hawaii’s ‘Exceptional Tree’  tax deduction. The basic point to remember with tax expenditures is that they give people money through the tax code instead of by cutting them a check directly. In many ways, tax expenditures and direct spending are exactly the same: the net effect on recipients is the same (they get more money), and the net effect on the government is the same (it gets less revenue).

But tax expenditures come with a whole host of negative effects. By making Swiss cheese of the tax code, they make compliance overly complicated. They distort work and income incentives. They don’t need to be reauthorized, so they tend to persist for a long time without any legislator taking a look at them and making sure they’re still a good idea. Furthermore, most people miscategorize tax expenditures as tax cuts instead of spending, so they are easier to enact and harder to repeal than regular spending programs. Just about any economist would tell you that we should run spending programs through normal spending procedures while keeping our tax code standardized and simple.

So it’s unsurprising that veteran economist/conservative political operative Martin Feldstein has come out against tax expenditures. As a foe of tax expenditures myself, I heartily welcome the support. And yet I find it hard to really trust his plan. Let me explain.

Feldstein begins his argument for cutting tax expenditures by mentioning three areas in particular that rely on the tax code for spending: education, child care, and health insurance. One gigantic tax expenditure – the mortgage-interest tax deduction – doesn’t get a mention until the very end of the article, when Feldstein says it’s probably best to  slightly reduce (not eliminate) the deduction “to avoid economic disruptions.” Did you catch the pattern? Tax expenditures that liberals and Democrats support get the axe. Tax expenditures that conservatives and Republicans support are handled with kid gloves, since – gosh! – they’re particularly important!

The lesson I draw from reading Feldstein’s politically-opportunistic support for tax expenditures is this: if we’re really going to end spending programs through our tax code, then we need to do it all at once and for everything. If you take it issue-by-issue, then there’s always going to be a big lobby in support of that particular expenditure and a small minority whose primary concern is tax expenditures in general. Mr. X is a high income homeowner and votes yes on eliminating education tax credits and no on mortgage-interest deductions. Mrs. Y is a low-income renter and votes the opposite way. Nothing gets done.

My proposal is simple: pass one bill to eliminate tax expenditures as a way to run programs and automatically convert all tax expenditures into equally-sized direct expenditures. Everyone congressperson who dislikes tax expenditures as a tool of government can get on board — regardless of the actual content of any particular tax expenditure. Tax expenditures won’t get used as a political football by advocates with an axe to grind. Then we can leave decisions about actual levels of spending to a case-by-case review at Congress’s leisure.

We get the benefits of a vastly-simplified tax code, with easy compliance and standard, predictable incentives. And small government conservatives would still find plenty to like here. The calculus has changed: everyone now realizes that these are real dollars being spent, moving through the regular appropriations process.

That’s what real concern about tax expenditures looks like. And that’s why I doubt Professor Feldstein’s commitment to Sparkle Motion.

ambition, jealousy, and the Supreme Court

What better way to revive the blog after settling back in to life in the US than with a post on ugly human character traits and our country’s highest court.

But first, an aside: I think it’s awesome that our Solicitor General is properly referred to as “General So-and-so”, and let me to all you overpaid private sector types who shudder at the thought of taking a pay cut to go work in government … being called ‘General Insert-Your-Last-Name-Here has got to make up for at least a few hundred thousand in compensation, right? Not that you’d always have to stand on formality; I’m sure you could have your underlings just call you Commander Fancypants. Also, you could start wearing ascots.

And now back to our regularly-scheduled blog post. General Kagan has been nominated to replace outgoing Supreme Court Justice John Paul Stevens. You can read complete, detailed coverage of Kagan’s career at SCOTUSblog. Commandant Kagan’s career has been illustrious, to say the least: Princeton undergrad, Harvard Law, Harvard Law Review, Supreme Court clerk, private practice, tenured professor at Chicago, service as a government lawyer in several positions in the Clinton White House and briefly in the Senate, law professor at Harvard, Dean of Harvard Law School, and now Solicitor Fancypants under Obama.

But to read the popular and elite commentary on the issue, you’d think that Kagan’s very success is a problem for her nomination. Uber-blogger Andrew Sullivan has been all over this, decrying Kagan’s ‘careerism’ (a dirty word, apparently) in what has become a typical view among pundits and Average Joe’s alike: “Her life, so far as one can tell, is her career.” That’s an odd criticism, coming from a man who admits he spends upwards of 12 hours a day, every day, blogging for a living. It’s also an incoherent position on the merits. Such criticism of Kagan boils down to a misunderstanding of the role of ambition in life and a failure to engage in basic self reflection.

First, let’s examine Sullivan’s particular gripe about Kagan’s ‘careerism’ and her supposed risk aversion. “Name one risk she has taken with her career,” he challenges his reader, and then says of himself, “I can’t.” He’s really talking about Kagan’s remarkable track record of not taking public, forceful positions on issues like abortion, terror policy, gay marriage, and so on during her illustrious career thus far.  That level of caginess is remarkable, and we’ll get to that in a second. But for now, let me answer Sullivan’s question from a different perspective.

What risks has she taken? How about giving up the promise of an extremely lucrative career as a lawyer in private practice? Someone of Kagan’s intellect, education, and work ethic can count on making partner and holding down million-plus salaries in relatively short order. Instead, Kagan left her firm and became an academic. “Big deal,” you might say, “don’t academics have comfy, risk-free jobs?” Sure they do. But then Kagan took a 2-year sabbatical from her cushy gig at Chicago to go lawyer for the government. And when Chicago gave her an ultimatum — come back and teach or be gone forever — she gave up tenure for the extremely risky life of a politically-appointed government lawyer. No public sector union or bureaucratic protection for her. She served at the pleasure of the president. Fall out of favor and you lose your job. Work at a pace comically similar to a character from The West Wing. That seems like a really big risk to me. It’s a risk that most people in this world aren’t willing to take. The vast majority of people in her position would (and do) opt for the paycheck of private practice, or the security of academia. Kagan decided to get involved, instead. And years later, when Obama asked her to leave her job as Dean of Harvard Law School so she could spend her days kissing Senators’ asses for confirmation, listening to people whisper nastily about her sexual orientation on TV, newspapers, and blogs, and have her briefs and oral arguments attacked from left and right by people unfamiliar with the unique role of the Solicitor General — she said yes. If Andrew thinks her career represents some sort of risk-free romp through the corridors of power, then he hasn’t thought very rigorously about what it really means to make those decisions.

Sullivan’s main problem with her careerism, however,  is with the coyness and caginess that goes along with it. He’s outraged that she hasn’t, in his opinion, come out and definitively told the public whether or not she is gay. He’s outraged that she hasn’t written 40 opinionated blog posts about the issues of the day for the past decade, as he himself has. Underneath this criticism is a concern that Kagan has had the part of her personality that generates and articulates opinions attenuated. Somehow, she seems less human than Andrew might prefer of a nominee to the highest court in the land.

While it’s fair to call Kagan extraordinarily coy, it borders on insanity to blame her as the nominee. If Kagan is coy, that’s because she has correctly read and understood the rules of the game for people who want to be on the Supreme Court. Ever since Bork, everyone knows that you get confirmed by never taking controversial public stances on things people actually care about. Them’s the rules. You can blame the rules, as Matt Yglesias thoughtfully does, but you really can’t blame Kagan herself for seeing and following them better than her contemporaries. That’s just called being good at what you do.

As Jonathan Bernstein astutely points out, this whole controversy boils down to a misunderstanding of the role of ambition in life:

1.  Regardless of the way we choose Justices or any other top position, we’re going to get candidates who are highly ambitious; there’s just no way to avoid that.

2.  Therefore, it is foolish to count it against any candidate that she appears to be ambitious, or that she does the sorts of things that people who want to reach the Court (or other high office) organize their lives to do.

3.  It is possible, however, to think of reforms that would change the ways that ambition is expressed.  If you want more explicit statements of political positions, make that a requirement.  Just don’t mistake any of that for purging ambition from the system, or for opening the gates to less ambitious people.

I think Jonathan is onto something here, and so I’d like to take a moment to defend ambition and ‘careerism’ from the ignorance displayed by arguments along the lines of Andrew Sullivan’s. Sullivan mocks Kagan for the sin of, as the NYT reported, wearing a judge’s robes in her high school senior yearbook photo and for daring to express from such an early age her ambition to serve on the Court. In my mind, that pretty much makes Sullivan a jerk. Certainly most of us didn’t have such specific high aspirations for our lives when we graduated from high school. But I think Sullivan isn’t being honest with himself or with us if he means to say that he never had high hopes and dreams for his life. I remember very clearly wanting to shoot for the stars when I was in high school. I still do. I’m pretty sure Andrew had some hopes and dreams, too. Mine weren’t and aren’t nearly as specific as Kagan’s — but that’s not to say that my way of being is better than hers. In a lot of ways, having a more clear idea of what I want to do would really help me organize my life around achieving those goals.

Unless Sullivan is some sort of inhuman brute who never had a childhood dream, then his critique seems to be more about Kagan’s success at translating her childhood dream into a career than it is about her dreaming capacity as such.

Sullivan’s complaints, and the many others who share them, reveal more about the speaker than they do about Kagan. It’s plain old Daft Punk jealousy that someone else was harder, better, faster, or stronger than us — smarter than us, harder working than us, and ultimately more successful than us. Or, Sullivan’s complaints are that Kagan had different goals than he did. He wanted to pontificate from his La-Z-Boy. She wanted to be a Supreme Court Justice. Maybe Sullivan wants to say that wanting to be a Justice is beyond the pale. That’s a problem, because I’m pretty sure it’s an awesome job, and I doubt I’d turn it down if I had the chance. And I doubt Andrew would, either. The next step is to organize one’s life around attaining that goal. That’s something Kagan was willing to do, so good for her. It’s not something Andrew has done, nor I (given that you’re reading this public blog post). But it’ll be a cold day in hell before people in general give up their dreams to please our own sense of propriety about just how high they’re are allowed to rise and just how hard they’re allowed to work and just how much they’re allowed to give up in return for achieving their goals.

Why can’t they just say what they mean?

My father recently became interested in constitutional law. As a genuine, gun-toting liberal, he was particularly interested to read Scalia’s majority opinion and Stevens’ dissent in the Supreme Court’s 2008 Heller decision, [which established 2nd Amendment rights as individual rights and applied the ruling to all federal enclaves but not the states]. First he read Scalia’s opinion and found himself persuaded. Then he read Stevens’ dissent and thought his argument, too, was persuasive. His ultimate complaint fell against the Founders: “Why couldn’t they have just said what they mean?” This is a typical complaint against laws in general and the Constitution in particular. Wouldn’t life be simpler if these documents just said what they mean?

Maybe that’s asking too much. Keep in mind that the Constitution is two things at once: 1) our founding document and basic law, and 2) a political compact, the result of negotiations rooted in a particular historical context. Clarity and precision might be desirable for a constitution, but it can be anathema to political compacts. The Founders were trying to entice the separate states into a permanent political union with each other, a complex negotiation that required drawing in the disparate geographical regions, economies, social classes, races, ethnicities, cultures, and religions then present among the states.

As any negotiator can tell you, specificity can be essential to bringing agreement. The 3/5ths compromise on representation (a boon for the southern slavocracy) was balanced against the prohibition of the slave trade after 20 years (a boon for the anti-slavery faction north and south, as contemporaries thought that slavery would never survive through natural population increase). Specific constitutional provisions were needed to entice these two opposing factions into political union.

But sometimes specificity can be an obstacle to political compromise. One big sticking point during the constitutional convention and later during ratification was the philosophical disputes between the federalists and the anti-federalists on the nature and duties of government. Very briefly, Federalists like Hamilton thought that securing specific rights in the Constitution was unnecessary (since non-enumerated rights were still reserved to the people) and antithetical to the idea of a democratic government (since only under monarchies did people negotiate with their rulers to carve out liberties). Anti-Federalists like Jefferson and Madison were very concerned with securing an enumerated list of the people’s liberties that was as complete as politically possible in order to prevent tyrany of centralized government.

Short of solving this age-old philosophical debate in the few short years of negotiation, ratification, and initiation of the federal government (which is clearly impossible), how could the Framers entice these two sides into a political union? One answer seems to be the artful use of ambiguity. Agree to enumerate a brief Bill of Rights in the first Congress, but make the Bill brief and vague enough to be open to interpretation. After all, that’s why you went to the trouble of creating a judiciary based on common law in the first place. Like any good negotiator, when the Founders were faced with an intractable problem, they did their best to satisfy people’s deepest concerns, and then kicked the can down the road to let the judiciary sort things out as best they could in the future.

Let me conclude by saying this is a feature, not a defect, of our Constitution. A handful of rich, old, white men working in a short span of time cannot sufficiently answer every single constitutional question that will face a nation of any longevity. They can do the best possible given their cognitive, temporal, and political constraints, and then leave the task up to us to continue. That’s why they can’t just say what they mean. They don’t know exactly what they mean, and some things are best left ’till later.

Update: It’s nice to get some back-up from someone who’s actually an expert on conlaw. Here’s Justice John Paul Stevens’ take on political compromise, ambiguity, and the role of the judiciary from a great profile in the New Yorker:

[Stevens] recalled an incident involving an antitrust law: “I remember explaining one of the tricky problems in the statute to one of the members of the [House] committee. I got all through it, and he said, ‘Well, you know, let’s let the judges figure that one out.’ ”What that told [Stevens] was that “the legislature really works with the judges—contrary to the suggestion that the statute is a statute all by itself,” Stevens said. “There is an understanding that there are areas of interpretation that are going to have to be filled in later on, and the legislators rely on that. It’s part of the whole process. And you realize that they’re not totally separate branches of government—they’re working together.”

Taxes, exceptional trees, and government waste

April 15 is just around the corner — a mere 1 month away! — and that means it’s time to break out your abacus and legal dictionary, and start reading the fine print. I’m always amazed at how unnecessarily complicated the US’s income tax system is. One irate taxpayer compiled this funny list of all the various esoteric tax breaks in state tax codes across the country. My favorite is the Exceptional Trees Deduction in Hawaii, which applies to state tax form line 17:

Exceptional Trees Deduction: You may deduct up to $3,000 per exceptional tree for qualified expenditures you made during the taxable year to maintain the tree on your private property. The tree must be designated as an exceptional tree by the local county arborist advisory committee under chapter 58, HRS.

First, there’s the obvious question: what kind of tree is so exceptional it needs up to $3,000 in maintenance each year?

But more importantly, why on earth is this in the tax code in the first place? If the good people of the state of Hawaii decide that they want to incentivize private property owners to maintain and protect what must be some really awesome trees, cool. Apparently the state already has a system of local arborists, so why not have the arborist team up with the treasurer of the local government to cut people checks for taking care of their fabulous trees?

Because that would be evil, evil ‘government spending’, which is a big no-no in the modern political climate. So instead, we’ve turned to the tax code for a big chunk of our policy implementation. The end result is the same — more money in the hands of people who care for exceptional trees — but instead of directly spending the money by cutting a check, we use tax expenditures. We reduce the dendro-samaritan’s tax burden from what it normally would be and then necessarily keep everyone else’s taxes just slightly higher than they’d need to be, in order to pay for the original tax expenditure. And this is just one of a million other examples: mortgage write-offs, health care benefit write-offs, business investment write-offs, dependent write-offs, blind person write-offs, etc., etc., etc. .

I’m actually a fan of robust government, and I think it’s a net positive thing to incentivize people to do good things they wouldn’t otherwise do enough of, like investing and create new jobs, or providing health insurance to employees. But our myopic and infantile politics means that if we do this by cutting people checks, then we’re socialists. But if we do it through tax expenditures, we’re just good pragmatic capitalists.

When choosing between direct spending and tax expenditures, the net social effect is exactly the same. But which one we choose matters, because the result of our love of tax expenditures is a hodgepodge of refunds, exemptions, write-offs, exclusions, that even forces experts to use TurobTax when they file. Americans now spend a total of 6.6 billion hours and $194 billion every year just to file their taxes. Clearly it’s better for all those normal, non-exceptional-tree-owning, Hawaiian tax payers to not have to waste their time reading through the rules about Line 17 deductions, and to just have the local arborists cutting checks while everyone else gets on with their lives. But I wouldn’t hold my breath waiting for that socialist utopia.

First they’d need to give a sh*t

Well, it was Ross Douthat’s turn to fill some space on the NYT opinion page again yesterday, telling a story about how it was Republican ‘tough on crime’ incarceration policies that brought down the late-20th century crime wave, and how it is now Republicans’ turn to reform the worst abuses of the judicial system. I have 2 criticisms of Douthat’s argument. First, he casually asserts causality on a complicated topic that academics spend careers analyzing – and he gets it badly wrong. Second, he seems either naive or willfully ignorant of the Republican Party’s demise into a state of total obstruction and pandering.

Maine’s Question 1: marriage equality returns to court

Election Day thought #2: Bigotry is here for the long-run. The passage of Question 1 in Maine, which overturns the Maine legislature’s legalization of gay marriage earlier this year, is a big blow to those of us who hoped that the tide was turning in favor of marriage equality in the US. It is looking increasingly likely that marriage equality will depend on judicial decree to spread in the future. Which is bad news from gays living in large parts of the US, because action by the US Supreme Court is unlikely.

Killing people with the proper perspective

Since capital punishment was resumed in 1976, 1,174 convicted criminals have been executed by state governments in the US.  About three times as many, or another 3,297, were waiting on Death Row to be executed as of the beginning of 2009. With each capital case, the governor has the opportunity to review the case and either execute the prisoner or granting clemency or a pardon and spare the prisoner’s life. Must be a tough decision. One thousand, one hundred seventy-four times in the past 30 odd years, a governor has had the opportunity to spare life but instead decided to go ahead with the execution. And being a governor is only going to get harder, with many more life and death decisions coming to her or his desk in the coming decades.

Setting aside the question of capital punishment itself, we can all agree that the clemency/pardon review should be a gut-wrenching process for a governor, and one that any executive should approach with the proper perspective. No one wants to deal with life and death cavalierly. But looking at history, how seriously do governors actually take their duties when it comes to executing convicted felons?

Justice or Law: What do you want from your leaders?

The New York Times recently published a series of questions for Judge Sotomayor as her confirmation hearings begin. The questions are insightful, and in a perfect would definitely would be posed to the potential justice. Of course, her actual confirmation hearing is likely to follow the pattern of the post-Bork era: uninformed, leading, or just dim-witted questions will be followed by evasive, vacuous, or disingenuous answers.

But let’s take one of the questions seriously for a second: “Given your public remarks about the importance of judges showing compassion, do you believe there is a difference between doing justice and applying the law?” Good question.