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July 19, 2007

Comments

Dan, I think I already suggested above what I would support in the way of policy, though nobody has commented on it:

"Here's a modest proposal: If spending on children is so important, surely the government should not tax money spent to such ends. Alas, the poor don't have the income for such a targeted tax relief to help them.

Why not let anybody who pays for a child's healthcare/education/whathaveyou take a tax deduction, instead of just the parents?"

If the 'general Welfare' clause is as super-broad as you think, I don't see why the tax power clause wouldn't be so narrow. I think you are having a historical 'false friends' issue with the term 'welfare of the United States'.

It's true that USSC has interpreted the Taxation Clause very narrowly, but they've also interpreted the spending clause broadly.

If you're arguing that the court is inconsistent and that their interpretations are weird, I couldn't agree more. But while that's true as a general statement, once we've gone there you can't reasonably use their limited interpretation of "The Congress shall have Power To lay and collect Taxes" as *more* controlling than their broad interpretation of "welfare of the United States" in understanding that second clause. At least, I don't see how that could be justified.

"

I'm not clear what you're suggesting we do that isn't already being done; donations to most charities of the type we're discussing are already tax deductible. Correct me if I'm wrong; I'm decidedly non-wonky in the arcanities.

Crap. OK, the quote I was going for was "Feed The Children is a 501(c)(3) tax exempt organization. Donations and contributions are tax-deductible as allowed by law."

This is a quick reversal of your earlier position.

No, Sebastian, not at all. The theory on which the Supreme Court held the income tax to be unconstitutional was that it was supposedly a "direct" tax which, according to Art. I, Sec. 9, has to be apportioned among the states in accordance with their population (rather than income). Nobody doubts that the power to tax, and also spend, is limited by the restrictions contained in Art. I, Sec. 9.

What Brett, and perhaps you, are arguing instead is that the spending power is implicitly limited by the other grants of power contained in Art. I, Sec. 8, so that Congress can only spend money for something it is otherwise authorized to accomplish, like establishing an army, or the post office--but not for "general welfare" purposes like health care, or social security, or disaster relief, or purchasing Louisiana. That's sure not something the Constitution says explicitly, that's not what people prominent among the original drafters (e.g., Hamilton) thought they meant when they adopted the Constitution, and as it turned out, when those among the drafters who originally favored a more narrow construction had to deal with actually running the country, they soon came to the conclusion that the narrow construction was dangerously impractical, and abandoned it.

It's true that USSC has interpreted the Taxation Clause very narrowly

This isn't true, SCOTUS has said Congress can levy any tax it wants as long as it's not a "direct tax," and then it can still levy any tax it wants as long as its in proportion to population. SCOTUS hasn't ruled anything to be a "direct tax" since, IIRC, it ruled the income tax was one in 1895. That decision would almost assuredly have been overturned since then had the 16th amendment not made it necessary.

"Why not let anybody who pays for a child's healthcare/education/whathaveyou take a tax deduction, instead of just the parents?""

Whatever the virtues of this, surely, Brett, you don't feel that it would comprehensively help all or most children in poverty in the U.S.? Surely you agree that any increased aid as a result would be haphazard, at best? (As well as opening up another channel for tax fraud, but that's another question.) How would it be a "solution," as opposed to, at best, a faint amelioration, of child poverty?

I must have missed something -- is it actually a topic of debate as to why the Constitution would limit taxation more severely than spending?

Isn't the simplest answer the accurate one-- abuse of taxation having a far greater potential for harm than abuse of spending?

Brett: I think the number of people who really truly are concerned about the inconsistencies between the Constitution and the manner in which Congress exercises its spending power is less than 0.0001 percent. You (and Sebastian) never going to succeed in calling a constitutional convention with those kinds of number.

(It's also worth considering that a Supreme Court that takes an expansive enough view of its power as to invalidate federal budgets may also take an expansive view of its ability to invalidate state laws on, say, abortion, as interfering with the liberty interests established in the Bill of Rights. You may want to be careful what you ask for.)

More broadly, why fight federal spending in this area when it makes you sound so incredibly mean-spirited? Isn't there an incredible array of federal spending -- like the Farm Bill -- where your attack on the legitimacy of the spending (violates both the Constition and WTO rulings) as well as the wisdom of the spending (bad public policy) would gain you many more allies? (myself included.)

This isn't true

My bad. I knew that the income tax had required an amendment at one point, and misinterpreted Seb's 'hypothetical with multiple negatives on top' to mean that this was the grounds for the decision.

(btw Seb, I've looked at that sentence like 10 times now, and it still isn't clear to me. Shouldn't the last bit be "would" instead of "wouldn't", if you're saying that a broad reading of one part ought to imply a broad reading of the other? Or, more generally, did I draw the correct conclusion above?)

More broadly, why fight federal spending in this area when it makes you sound so incredibly mean-spirited? Isn't there an incredible array of federal spending -- like the Farm Bill -- where your attack on the legitimacy of the spending (violates both the Constition...

That seems wrong to me. We shouldn't drag out these sorts of arguments only for things we don't like, otherwise we're never debating on the merits. And we're implicitly admitting that the argument itself is bunk (unless one is an anarchist).
It'd be like making breathing a capital offense so that we could execute child molesters.

"More broadly, why fight federal spending in this area when it makes you sound so incredibly mean-spirited?"

1. 'Cause the topic of the post wasn't the Farm bill. Post about the Farm bill, and I'll give you an earful. Had a neighbor who used milk subsidizes to fund his hobby dairy farm.

2. What makes you think I give a rat's ass about whether I sound "incredibly mean spirited" to the sort of people whose measure of whether or not you're mean spirited is your willingness to have the federal government spend somebody else's money on a problem?

"Isn't the simplest answer the accurate one-- abuse of taxation having a far greater potential for harm than abuse of spending?"

In modern deficit spending regimes the abuse of spending and abuse of taxation end up being the same thing--just spread out over time.

However you want to slice it rea and/or Carleton, many of the new Deal reforms were ruled unconstitutional at the time. They became constitutional after the President threatened the Supreme Court and the Supreme Court reversed its positions in a way that is relatively shocking.
From a practical point of view, that is a barn door that has been open far too long to make complaints about shutting it worthwhile--the animals are loose, make of that what we will.

Frankly I don't understand the argument for bothering with the ennumeration of powers if you are going to start with unlimited powers. It seems to me that if everything were covered, you would just outline the exceptions: Congress can do anything except have a post office.

But that may just be a failure of imagination on my part.

I would tend to think that the general welfare in this situation is meant to describe implementation--Congress can't just run a post office for the States it likes, it has to provide it for all of them.

'Cause the topic of the post wasn't the Farm bill.

and

the sort of people whose measure of whether or not you're mean spirited is your willingness to have the federal government spend somebody else's money on a problem?

People don't consider you mean spirited because of your lack of willingness to spend somebody else's money on any problem, they consider you mean spirited because you don't want to spend money on *this* problem. It's an important distinction to remember. People might also think you were mean spirited because you iirc want to spend somebody else's money to build a wall to keep illegal aliens out. Thus, the measure of meanspiritedness is not the fact that you spend money or not, it's what for purpose when you do spend it.

However you want to slice it rea and/or Carleton, many of the new Deal reforms were ruled unconstitutional at the time.

And why must we take that court's decisions at face value while discounting the many decisions since that time? Or, better yet, since we're discounting the USSC as the final arbiter, why should I respect that court's decision at all, rather than working from first principles?

Also, FDR appointed 8 justices after 1937; there doesn't seem to be any question that these justices supported the constitutionality of the New Deal, almost certainly regardless of the failed court-packing legislation of 1937. So it seems to me that the court-packing incident is a red herring.

Weren't the new deal reversal opinions and the opinions they reversed mostly 5-4 decisions? That's what I seem to recall. It would be one thing if they completely flipped from 9-0 one way to 9-0 the other, but one justice changing his mind doesn't seem that shocking (if i'm recalling correctly).

I do think there's something to the argument that the economy had changed enough from the time when most people never traveled more than a mile from the place where they were born in their lifetime to the economy in early part of the 20th century to give Congress a freer hand to regulate commerce - though that obviously didn't take place in the years durnig the switch in time.

many of the new Deal reforms were ruled unconstitutional at the time. They became constitutional after the President threatened the Supreme Court and the Supreme Court reversed its positions in a way that is relatively shocking

SH: you are not at your most persuasive when you're this vague. Findlaw's history of the spending power supports what ugh and rea are saying -- that the debate over the scope of the spending power goes back the earliest days of the nation, and the Hamiltonian broad view of the power won.

The FDR revolution was much more about the Commerce Clause, iirc.

Carleton,

And why must we take that court's decisions at face value while discounting the many decisions since that time? Or, better yet, since we're discounting the USSC as the final arbiter, why should I respect that court's decision at all, rather than working from first principles?

You're two stepping here. You were the one who appealed to the sense of the Court in "It's true that USSC has interpreted the Taxation Clause very narrowly, but they've also interpreted the spending clause broadly." Take the court seriously or don't, but please choose one side per argument.

Also, FDR appointed 8 justices after 1937; there doesn't seem to be any question that these justices supported the constitutionality of the New Deal, almost certainly regardless of the failed court-packing legislation of 1937. So it seems to me that the court-packing incident is a red herring."

The switch occurred before the appointments, so I don't see how the court packing incident could be considered a red herring.

Ugh, "It would be one thing if they completely flipped from 9-0 one way to 9-0 the other, but one justice changing his mind doesn't seem that shocking (if i'm recalling correctly)." Owen Roberts' switch was very radical considering his own previous opinions. If Marshall had suddenly decided that the death penalty was ok, it would be really odd considering his previous decisions.

However you want to slice it rea and/or Carleton, many of the new Deal reforms were ruled unconstitutional at the time.

But Sebastian, they were not ruled unconstitutional on the basis of purported limits on the spending power, so the fact that they were ruled unconstitional doesn't support an argument for limits on the spending power.

The issue that the Supreme Court reversed position on supposedly in reaction to Roosevelt's proposal to increase the number of justices, was whether a minimum wage law was an unconstitutional impairment of freedom to contract.

The key decision holding part of the New Deal unconstitutional turned on whether the commerce clause allowed comprehensive federal wage and price setting, and whether the scheme Congress had adopted amounted to impermissible delegation of legislative power to the executive.

For the record, I consider Brett mean-spirited because he apparently feels that the paper-pusher behind the desk down at WIC doesn't do enough to make the poor parents who want some Cheerios, milk and cheese feel more ashamed for not earning sufficient minimum wage income to feed their children. But that's neither here nor there.

Otherwise, what LJ said. I'm also thisclose to asking Brett what he gave to charity last year, but it's probably a tasteless and counterproductive question.

"Findlaw's history of the spending power supports what ugh and rea are saying -- that the debate over the scope of the spending power goes back the earliest days of the nation, and the Hamiltonian broad view of the power won."

The Hamiltonian view was NOT that any-old spending counted. Whether a health insurance program would have counted pre-New Deal is something I don't have firm opinion on, but the idea that it was a slam dunk because 'general welfare' means any-old-thing is not something I can sign on to. I don't believe the modern liberal theory of jurisprudence which interprets general concepts in the Constitution so broadly as to make huge portions of it completely superfluous.

I think it is a particularly silly version of jurisprudence to believe that the framers wrote:

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

if they had already said--"Congress can do anything for the good of the nation". No matter how vague you can convince me things are, you can't get me to buy that.

Brett: I apologize for calling you mean-spirited. That was uncalled-for and rude.

What I was trying to get at is that it seems to me that there are areas of federal spending in which you are far more likely to build coalitions across party lines and across theories of constitutional interpretation.

Phil: I'm also thisclose to asking Brett what he gave to charity last year, but it's probably a tasteless and counterproductive question.

I'm considering mentioning that I also considered asking Brett that question three hours ago, and decided then it was tasteless and counterproductive, but I'm afraid that Von, DaveC, and OCSteve will take this as further evidence that we can be classified as members of the same species, when at most, we're just in the same genera.

Brett: your willingness to have the federal government spend somebody else's money on a problem?

So, instead: why do you assume that no one on this blog pays income tax? (Obviously, I don't pay US federal income tax, but I do pay income tax and NI tax towards the health care in my country.) If you pay income tax, it's not "somebody else's money": it's yours. (Along with a whole lot of other people, of course, but partially yours.)

You're two stepping here. You were the one who appealed to the sense of the Court in "It's true that USSC has interpreted the Taxation Clause very narrowly, but they've also interpreted the spending clause broadly." Take the court seriously or don't, but please choose one side per argument.

Actually, I was trying to stop you from doing that, I was just more polite about it. I said that if you want to use the court's interpretation of one clause, then you have to give some weight to their interpretation of the other clause. If-then clauses don't imply the truth of the antecedent.
To recap, right after what you quoted, I said you can't reasonably use their limited interpretation of "The Congress shall have Power To lay and collect Taxes" as *more* controlling than their broad interpretation of "welfare of the United States" in understanding that second clause. At least, I don't see how that could be justified. Again, Im talking about *you* two-stepping (and perhaps tripping on your own feet?), not me.

The switch occurred before the appointments, so I don't see how the court packing incident could be considered a red herring.

The point is that even without the court-packing, FDR's view of the Constitution would certainly have been the USSC's view in 1945, because he had appointed virtually the entire court. Ascribing the Court's ongoing opinion to a single, failed incident is flawed thinking in face of this fact.
Imagine that the incident never occurred; FDR still appoints 8 justices who would favor expanded federal powers. And, in that hypothetical, there'd be no reason to call the USSC's decisions compromised. Ergo, there's no reason to call them that now.

People might also think you were mean spirited because you iirc want to spend somebody else's money to build a wall to keep illegal aliens out.

Brett- is this accurate? My fingers are too tired to google.

Carleton, you need to read the whole thread. I didn't appeal Supreme Court's interpretation of the clause earlier.

My point from the beginning was that institutions rarely give up the power they take for themselves. In saying that, I was talking about Congress and the Presidency. Other people insisted that I ought to be talking about the Supreme Court, but I wasn't. I was talking about the Congress and the Presidency. I've gotten sucked into a talk about the Supreme Court since then but my point was that Congress and the President took powers for themselves, pushed the Court into allowing it, and haven't ever given them back.

"Imagine that the incident never occurred; FDR still appoints 8 justices who would favor expanded federal powers. And, in that hypothetical, there'd be no reason to call the USSC's decisions compromised."

Interesting how we never have to mention little things like the actual Constitution in that theory.

In light of the newly discovered common ground that finds Phil next to Jes 8^O, I cracked open another TiO thread.

Interesting how we never have to mention little things like the actual Constitution in that theory.

The Constitutional interpretation of the USSC has ranged from reasonable to downright bizarre.
That's not the point at all- my point wasn't about the text, it was about the interpretation of the text. I think it's unreasonable to maintain that FDR's appointees only ruled for increased federal power bc of intimidation. He appointed them bc he agreed with their vision of the Constitution. Outside of what I said above about decisions being bizarre, if we're going to accept any decisions as definitive we really ought to be accepting all of them- and that includes the post-FDR court's decisions. Or we can accept none of them, but then variations of your criticism of the court's New Deal jurisprudence could be applied to any number of USSC decisions.

...and haven't ever given them back.

The reason you actually are talking about the Supreme Court is that the Court has to affirm this position. And it has, over and over. Someone asked earlier how zombie FDR is still compelling the Court to agree with him...
I mean, sure Congress wants to keep the power, but they can't do it on their own.

Carleton, you need to read the whole thread. I didn't appeal Supreme Court's interpretation of the clause earlier.

I don't know how else to interpret your comment. Of course, I also found it difficult to parse... but it seems to say that the USSC's interpretation of clause A had more weight in interpreting clause B than their interpretation of clause B. To me, that looks like multiplying probabilities- the probably of X and Y can't be more than the probably of X. Likewise, relying on one interpretation to discredit another doesn't make sense to me.
But maybe you'd like to clarify: what did you mean by If the 'general Welfare' clause is as super-broad as you think, I don't see why the tax power clause wouldn't be so narrow.

Why don't you consider private charity as a solution?

I think sticking a gun in people's faces and telling them to contribute to your favorite charity or be locked up in a small room is unfair.

First, I tip my cap to Brett for arguing the minority position here. It ain't an easy job.

A couple of things.

First, why is it only sticking a gun in people's face when it's the feds? Why isn't taxation at any level of government equally odious?

Second, why is taxation to fund health insurance any worse than the other 100,000 things we pay for through taxes?

Why not get rid of Social Security, Medicare, and Medicaid? Those are the most expensive items in the budget by far. Let everyone plan for their own retirement and potential ill health.

Why not get rid of public schools and libraries? If you want your kid to get an education, get together with your friends and hire some teachers.

Why not get rid of the US Postal Service? There are private carriers to carry the mail.

Why should there be a tax writeoff for mortgage interest? If you want to buy a house, buy one. Don't ask me to subsidize it through a tax incentive.

Why should there be writeoffs for business or investment losses? If you put your capital at risk and don't do well, you lose. That's what "risk" means. Don't ask me to subsidize it.

Why should there be tax writeoffs for business expenses and capital investment? Again, if these expenses are justified on their merits, great. Don't ask me to help you pay for it.

You get the idea.

As I make it out, the reason we fund all of the above through taxes is that it is, broadly, in the public interest to do so. I'm a big lefty, so that doesn't bother me at all.

What's different about funding health insurance or health coverage?

Thanks -

"I'm also this close to asking Brett what he gave to charity last year"

$200 a month make you happy, chuckles?

With regards to spending other people's money, we happen to have a 'progressive' income tax in this country, much as it disgusts me. Meaning that most of the cost of government is paid by a small fraction of the population. The logical implication of this, in case you didn't notice, is that most people advocating government spending are advocating spending somebody else's money.

The "I'd ask a rude personal question but that would be rude" praeteritio above doesn't help.


"The logical implication of this, in case you didn't notice, is that most people advocating government spending are advocating spending somebody else's money."

Bush says, "It's your money", not addressing only the top 1%. I hope. If I'm a zillionaire and want to live in a democracy, how do I avoid my voice being privileged by your argument?

"Here's a modest proposal: If spending on children is so important, surely the government should not tax money spent to such ends. Alas, the poor don't have the income for such a targeted tax relief to help them.

Why not let anybody who pays for a child's healthcare/education/whathaveyou take a tax deduction, instead of just the parents?"

What differences are there between your proposal and the way it is now? And how more efficient/lucrative is it likely to be?

(And I wouldn't call Brett mean spirited. I might call him unfamiliar with how the philanthropy, charities and non-profits work, based on what he's said, however...)

With regards to spending other people's money, we happen to have a 'progressive' income tax in this country, much as it disgusts me. Meaning that most of the cost of government is paid by a small fraction of the population.

This is also the case with charities. 90% of the money comes from 10% of the people (now tending toward 95/5).

In the words of the famous poster: What if libraries and hospitals were fully funded and the Pentagon had to have a bake sale?

The logical implication of this, in case you didn't notice, is that most people advocating government spending are advocating spending somebody else's money.

They may be spending more of other people's money than they are of their own (so what sez I), but if I'm not spending my money on "someone else's problem" (like I'm not going to need a doctor in 25 years time), I need a BIG refund.

BTW, why is the first reaction of libertarians to tax issues ALWAYS the "gun in the face"? Don't they realize that it undercuts any valid objection they might make?

"This is also the case with charities. 90% of the money comes from 10% of the people (now tending toward 95/5)."

But Brett will point out that this is voluntary. He's doing the whole "taxation is coercion" thing, not neglecting the usual use of "guns" and "thugs" for emotional resonance.

It's an axiomatic difference between libertarians and non-liberatians (and why I wouldn't label myself a "libertarian," although I happen to be strongly and fundamentally for liberty, and as a matter of practice agree with a number of libertarian opinions to one degree or another -- but not as an absolute, or the only value -- and most particularly I don't accept the whole "all coercion is illegitimate" argument) and it seems inarguable except at either a deeper philosophical level -- which I don't have the technical tools to engage in, myself -- or emotionally or via other means of argument I don't accept as legitimate.

But I always enjoy seeing "guns" and "thugs" invoked, though we've yet to get to pointing out their jackboots.

My apologies to Brett; I was hasty, and careless: he didn't use either the word "guns" or "thugs"; he invoked "jail[ing] people." Sorry about that, Brett.

Not so fast with the apology, Gary. Upthread he said those of us who supported government spending on the social safety net wanted to have tax evaders shot.

"Upthread he said those of us who supported government spending on the social safety net wanted to have tax evaders shot."

Yes, I didn't withdraw my point, which I believe is perfectly valid; I withdrew and apologized for my error in my specific assertion that he used the words "guns" and "thugs" in this thread.

Meaning that most of the cost of government is paid by a small fraction of the population.

It's hard to think of a time in this nation's history when that wasn't so. Long before we had an income tax at all, we ran the country on tariffs and luxury taxes.

most people advocating government spending are advocating spending somebody else's money.

Could be. For the record, and FWIW, not me.

Thanks -

Sebastian said: "If we believe that it is a duty to provide basic human needs, that IS charity whether or not the government does it."

Some advocates of universal healthcare argue that access to healthcare should be conceived of as a right rather than a commodity. If healthcare is a matter of right, then it ceases to be a commodity. And if it isn't a commodity, then it isn't something that one can be said to earn or be granted through charity.

Now, one might object: Since healthcare has to be bought and paid for, it is always a commodity in fact, if not in name. So, if healthcare is provided to someone otherwise unable to pay for it himself, that's charity plain and simple.

The objection seems to me mistaken. Not everything bought and paid for is a commodity. For example, we don't ordinarily think of free speech as a commodity, but maintaining it costs a lot of money. The court system is expensive. Still, freedom of speech isn't granted as charity, at least as we usually understand that term. Everybody pays for it, and everyone gets it.

Uh, "everything" should be: every thing. Shoot.

But Brett will point out that this is voluntary. He's doing the whole "taxation is coercion" thing, not neglecting the usual use of "guns" and "thugs" for emotional resonance.

Well, yes, but my point is that you can't point to non-profits as a superior method, even if its voluntary, when government is mimicking what non-profits are doing; "fairness" arguments rings a bit hollowly as it suggests money gathering HAS to be following this kind of model to be effective.

And, I seem to recall that while most money collected DOES come from the rich, it's not quite at the disproportionate level of charities (though I could be wrong about that).

I'm curious, what difference is there between healthcare and education that makes one charity and the other not? Or is education a charity as well, but one we can live with?

Are public roads a charitable gift? Is use of an army/navy to protect a country and its citizens a charitable contribution to the citizenry by the volunteer military? How about police? Paid fire department? The diplomatic corps? Collecting garbage?

to say nothing of creating & enforcing the right to private property.

$200 a month make you happy, chuckles?

1. I have a name. It's right there. Use it or don't address me at all.
2. I genuinely don't care, although it does make you one of the rare ones who actually puts his money where his mouth is.

With regards to spending other people's money, we happen to have a 'progressive' income tax in this country, much as it disgusts me. Meaning that most of the cost of government is paid by a small fraction of the population.

Much of the wealth in the country is also held by a small fraction of the population. The rest of the problem is left as an exercise for the reader. (Although you may want to look into what percentiles actually pay the most tax when sales taxes, payroll taxes, et al. are taken into account.)

The logical implication of this, in case you didn't notice, is that most people advocating government spending are advocating spending somebody else's money.

Blah, blah, blah. We all pay, and it all goes into the same frigging pot. The people who hold the most wealth and pay the most taxes certainly benefit enough from what government does for them.

The logical implication of this, in case you didn't notice, is that most people advocating government spending are advocating spending somebody else's money.

that's why Brett won't drive on public roads, eat food made from government-subsidized crops or inspected by the USDA, listen to weather forecasts from the National Weather Service, set foot in any court building, fly on planes that are inspected under the guidance the FAA, etc..

it's a hard life, being an ideologue, but the knowledge that you're not enjoying the benefits of pooled tax dollars makes all those nights spent alone squatting in your lean-to worth it!

Brett says: "You see, that's one of the problems with government "entitlements"; They're not condescending. The sting of depending on charity is, after all, one of the things which motivates people to support themselves."

Unfortunately, this kind of moralizing -not entirely without virtue, perhaps, but as hopelessly out of place today as an ox-drawn wagon on the freeway - also prevades those gov't 'entitlements' that can be conceived as going to Them, for various values of Them (not including giant mutant ants, presumably). See for example - just to grab something recently read - Monday Afternoon at the Welfare Office.

Katherine, thanks for that thought.

Katherine, I'm right there with you regarding the enforcement of property rights, but I am curious regarding your statement that government creates property rights. Is it your opinion that rights are something granted to people by governments, or are there some rights that people hold (setting whether or not they can enforce them aside) extrinsic to what government is willing to grant them? Thank you.

Sebastian and Brett, let me make clear that I find the tone of this thread is unhelpful and unfortunate, and I didn't make my comment in the spirit of a pile-on.

G'Kar: FWIW, ordinary usage tracks Katherine's comment, I think. Rights are created. The creation of rights is coeval with the creation of a system for enforcing rights. Absent such a system, rights do not exist. Maybe they ought to exist, but they don't.

Of stateless persons in Nazi territories during WWII, we would not say: "They're rights are not being respected." We would say: "They have no rights." Of African Americans under Jim Crow, we would say: "They're rights are not being respected." We would not say: "They have no rights." The difference is that the rights of African Americans were encoded in Federal law, but the courts weren't following the law. Whereas, with black South Africans, the courts were following the law; it's just that the law did not include robust rights for blacks.

Now, whether ordinary usage tracks the metaphysics of morals, I don't know. Maybe it does; maybe it doesn't. In any case, I have laundry to do.

"FWIW, ordinary usage tracks Katherine's comment, I think. Rights are created."

For the most part I think this is incorrect. The ordinary usage of 'rights' especially as in 'human rights' (but also as in 'property rights') suggests that they are something that people have whether or not the government respects them. To take your extreme example of the Nazis, Jews had the right not to be murdered and subjected to genocide no matter what the formal rules of the German state were.

I think you last sentence has it flipped around. The more academic analysis of metaphysics of morals might talk about the creation of rights, but your average person using the term in its average way doesn't think of 'rights' as a formal process of government creation. When pro-choice women say "I have a right to control my own body" it isn't footnoted with "so long as the government says so" even in their minds. It is a moral argument about how the law ought to conform to something much bigger and more important than mere governmental codification.

Sebastian: When pro-choice women say "I have a right to control my own body" it isn't footnoted with "so long as the government says so" even in their minds.

Actually, it is acknowledged that the government has the ability to remove a woman's right to control her own body, and leave only the practical fact that, unless a government is willing to institute monthly pregnancy tests and an automatic prison sentence under 24-hour observation for every woman who tests positive, women will strive to control our own bodies, regardless of the law removing a woman's right to do so.

Thank you all for a most interesting set of diversions this morning. I can't contribute as knowledgeably as others, but can't resist putting down an opinion, either.

I tend to find myself starting from Hayek: "There is no reason why, in a society which has reached the general level of wealth ours has, the first kind of security should not be guaranteed to all without endangering general freedom; that is: some minimum of food, shelter and clothing, sufficient to preserve health. Nor is there any reason why the state should not help to organize a comprehensive system of social insurance in providing for those common hazards of life against which few can make adequate provision."

Preserving health has become more complicated than it was when Hayek wrote that; and more expensive as well, to such a degree that it is possible to successfully treat many conditions, but at an expense such that few can make adequate provision for paying for it themselves. Put me in the camp that believes that medical insurance would be covered by his statement.

The remaining debate would seem to be about means, effectiveness, and efficiency. Charity is generally inefficient in the sense that it cannot provide guarantees; that doesn't stop me from making contributions to what I perceive to be good causes, but I don't think we can be dependent on it either. And if you accept Hayek's position that such a minimum should be a guarantee, there is no reason for demeaning those who require assistance.

Finally, as to the shift in power between the federal government and the states, I find myself thinking in terms of physical mobility. When the Constitution was written, it could take weeks to make the trip from Virginia to Boston; today we fly from LA to NYC in less than six hours, or move an entire household that same distance in a matter of days. It seems to me that a contemporary reading of the Constitution must be done in light of far greater movement of people (and goods, and on and on) between States than the original authors could have conceived of. This shifts the balance of power between state and federal governments.

I think, again, we are confusing legal rights with human rights. Pre-Roe, it was still argued that a woman had a right to control her own body, despite the fact that it was not legal to have an abortion. The argument isn't very effective otherwise.

Everyone acknowledges that governments have the capability of squashing people like bugs under a shoe. Whether or not that is under color of law for the most part doesn't change the discussion. Sending people to the gulag was perfectly legal under the Soviet system, but it violated its victim's human rights nonetheless.

This harkens back to the Enlightenment and Romantic views of the Magna Carta--whether or not it formally represented an 'agreement' with the Crown, in reality it merely reflected the rights of the people as they existed independent of the document itself--see for example Samuel Johnson's many discussions. Interestingly see Jonathan Swift for the alternative view--that Parliament had unlimited power.

In any case, my sense of the actual usuage of rights by non politicians/lawyers/academics is as if the right existed whether or not it was a 'legal right'. In fact the whole concept of 'legal right' suggests that it is a more limited set of rights--the rights set down into law as opposed to merely unmodified 'rights'.

I'll concede that the state has the ability to take away any number of rights. But I do not believe, for example, that the fact Congress passed and George Bush signed McCain-Feingold means that I no longer have the right to free speech, but only that the government is attempting to take away rather than protect that right.

Sending people to the gulag was perfectly legal under the Soviet system, but it violated its victim's human rights nonetheless.

Fair point: I was confusing legal right with human rights. Yes; denying women the right to decide to abort is legal in many countries, but it is still a violation of human rights.

A brief comment, offered with fear and trepidation, on the use of abortion as the example of whether rights are inherent or granted by the state.

The question regarding abortion is, I think, less one of whether women have an inalienable right to do as they wish with their bodies, or not. If I understand the debate correctly, it has more to do with balancing women's rights against those of the fetus.

The reason it's such a thorny issue is that each person's opinion of what, exactly, the standing of the fetus is depends on lots of other factors, which are extrinsic to law.

For the record, I'm not taking a side in that debate here, I'm just making an observation.

I will put myself in the "rights are inherent" column, however. IMVHO, law and similar institutions flow from human understanding and experience, rather than creating them.

Thanks -

That is an excellent point, russell. I concur with your analysis; this is, I believe, what makes abortion such a contentious issue.

Somewhere in the mists of time there was a thread in which I believe hilzoy critiqued the libertarian concept of property and specifically argued that property was not a natural right. I'm on a mobile device and can't easily search , but someone else might find it.

If I understand the debate correctly, it has more to do with balancing women's rights against those of the fetus.

That is certainly how pro-lifers prefer to frame the debate: when a woman's human rights should be abrogated, and for what cause, rather than stepping back and acknowledging that there's a real question if a woman's human rights should be abrogated, and why there's even an argument that some human beings ought to have their human rights abrogated, because if they were permitted inalienable human rights they'd be sure to make bad use of them. (That is: the pro-lifer argument is that if women have abortion on demand as a legal right, women will inevitably start having late-term abortions for reasons pro-lifers regard as frivolous.)

Well, I cannot speak for pro-life people, as I believe that a woman ought to have the right to an abortion whenever she so chooses, but I think that the conflict remains one of opposing rights nonetheless. I don't know when a fetus becomes a human being, and I don't think there is ever likely to be a bright line, but clearly it happens at some point, and I think that point is before birth. Still, I think that the woman's right has to trump the fetus/child's right simply because until birth, the child is within the woman's body and if we don't have the right to decide what we're going to do with our bodies, then any discussion of rights seems to me likely to end pretty quickly. So I don't think that the argument is merely a rhetorical tactic of pro-lifers.

Well, I cannot speak for pro-life people, as I believe that a woman ought to have the right to an abortion whenever she so chooses, but I think that the conflict remains one of opposing rights nonetheless. I don't know when a fetus becomes a human being, and I don't think there is ever likely to be a bright line, but clearly it happens at some point, and I think that point is before birth. Still, I think that the woman's right has to trump the fetus/child's right simply because until birth, the child is within the woman's body and if we don't have the right to decide what we're going to do with our bodies, then any discussion of rights seems to me likely to end pretty quickly. So I don't think that the argument is merely a rhetorical tactic of pro-lifers.

I think it is a particularly silly version of jurisprudence to believe that the framers wrote: [list of exress powers granted in Art I, Sec. 8, other than the powers to tax and spend]if they had already said--"Congress can do anything for the good of the nation". No matter how vague you can convince me things are, you can't get me to buy that.

Well, of course, what you are failing to recognize is that there are other things Congress can do with a problem besides spend money on it. A broad grant of power to spend for the general welfare does not, for example, render the subsequent grant of power to regulate interstate commerce meaningless--there are all sorts of ways to regulate interstate commerce without spending money. The Constitution isn't "vague" at all in this regard--it's quite explicit.

Your problem, Sebastian, is that you want the Constitution to say something other than what it says, and something other than what the founders understood it to mean. You distrust the government--particularly the legislative and judical branches--more than the founders did.

G'Kar: Idon't know when a fetus becomes a human being, and I don't think there is ever likely to be a bright line, but clearly it happens at some point, and I think that point is before birth.

But that's irrelevant, if you consider a woman to be human, with inalienable human rights. There are no competing rights to be considered: there is no human right to make use of another human being's body against her will, not even to stay alive.

Still, I think that the woman's right has to trump the fetus/child's right simply because until birth, the child is within the woman's body and if we don't have the right to decide what we're going to do with our bodies, then any discussion of rights seems to me likely to end pretty quickly.

....Sorry, I should have read your whole comment first (I have as yet had no sleep, thanks to Pötterdämmerung): I see that while we're not expressing it quite the same way, we're definitely in agreement.

Sebastian, I'll concede much of your point. Sometimes, some people do, in fact, argue: So-and-so ought to have such-and-such a legal, because so-and-so natually has such-and-such a human right. That type of argument appears to be underwritten by a different ontology of rights than the statements I mentioned before.

The lesson I draw from this isn't onotological. It was never meant to be. It was just an observation about what people tend to say. My views about rights are independent of my views about ordinary speech.

You've impressed on me that ordinary speech about rights is rather unsystematic. The more I think about it, the more I realize that people say all sorts of things about rights! My first approximation was insufficiently nuanced.

Your reference to Samuel Johnson suggests that the rhetoric of rights (that is, non-legal rights) is older than I previously supposed. Can you give me a citation? I'd appreciate it.

Jes: "... Pötterdämmerung ..."

(raises coffee mug in appreciation; curses the difference in time zones, which means that my copy has yet to arrive. Although I could have just bought one ...)

(And I cleverly went to sleep without taking off the lightning-bolt tattoo that the kid next door gave me, and it sort of transferred itself off my forehead. I now know what Harry Potter would look like were he a rumply old pillow.)

I've been seeing Pötterdämmerung around the Internets for a week or so: I thought it was brilliant, too.

And I have just - on minimal sleep and a great too much coffee - finished reading Harry Potter and the Deathly Hallows. I should have gone to sleep at least an hour ago, but I couldn't till I'd got to the end.

It was definitely worth it, though.

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