Some cannot wait until summer inspiration:
Some cannot wait until summer inspiration:
Jean-Jacques Rousseau is not only the author of radical freedom, evolution, and equality, but he appears to be the author of the State. In Book 2, Rousseau find sovereignty in the general will, which acts always for the common good. Private, or particular, wills are bad because they are not common wills/goods. Rousseau finds the private wills too divisive to society and hostile to the common.
The general will tends toward equality. he asserts. There is a sense of schizophrenia in all of this because the Swiss emphasized obeying one’s will as the definition of freedom (in Book 1), but now he seems to be saying in book 2 that the individual must obey the State. Which is it? In the Social Contract it seems he settles on the power of the State.
The general will, he argues, can never err, and upon entering in a compact, the sovereign, which represents the general will, will decide what does and does not matter in terms of what rights may be alienated. This means the majority will will determine what the people’s rights are, or which are active. The general will, though, must come from all and apply to all. But what should the general will be?
It ought not come from the law of nature, or reason per se! Metaphysical thought only messes up the works. So, we should look to the State for our moral laws. From the State comes clarity. In book 2, chapter 6, Rousseau seems to bring together this nasty little problem with freedom and obedience by stating that submission to the State is freedom because it comes from the general will. This is good, because we would never harm ourselves, thus, since the general will never errs, and does not harm, it is an expression of freedom!
There is one big problem with all this: the general will is not wrong, but unenlightened. This strains the argument in chapter 2 that the general will cannot err. However, the general will needs guidance. And who is to provide that guidance? The legislator.
It is a conspicuous element of the Progressives: the knowledge the great leader possesses. But, perhaps this is portentous? The figure is God-like: someone who knows all about human beings, but experiences none of their “passions.” This is a person who believes he can change “human nature.” He must be able to give humans new modes and orders. It is not like this has not happened before, we have examples–why look at Lycurgus! Lycurgus, Plutarch tells us, changed the polis of Sparta forcing upon them a communistic form of government. Those that did not agree were taken care of, or left the city. His reforms controlled everything from diet, to exchanges, to living arrangements, to family issues–in other words, Lycurgus’s reforms touched every part of human life.
It would be incorrect to say that the legislator forces his will on the people–instead, it would be better to say that the lawmaker guides the people in the direction they ought to go, but only insofar as they can handle the direction they ought to go. In other words, the people have to be able to endure the laws.
But, if it looks like Rousseau is making the case for the State and big government (as in big administration), think again. Rousseau sees bureaucracies, and over regulation as the death of the State. so while he wants the State to be a powerful entity, he does not want he State to regulate, and tax all. A State that makes a myriad of laws, and different laws for different people, loses the people, and ultimately, the State collapses of its own largess.
Too, the Social bonds of society are strained under a large State. While Rousseau certainly states that small states are generally better than big ones, he is not saying this is always the case. He does cast doubt on the realistic survival of big States, but it seems that administration crushes the individual; it also crushes familial bonds. However, the question is this: with his focus on State, how could it not become big and regulatory? Does not Rousseau’s thought carry the practical seeds of its own destruction?
More and more businesses are coming out and saying that the new health care plan will cost jobs, increase taxes, and, perhaps, cause layoffs and firings. Part of the reason for this is because businesses received a sort of kick-back in their health care costs from the federal government. The problem with health care, then, is that is trades one form of government largess for another. The market has been skewed for a long time. Nevertheless, the self-interested consequences are real–taxes are going up (here comes the VAT), businesses will not hire more workers (as promised by the administration).
More from Kudlow below.
Unless there is a huge economic turn-around (and it is possible) the Republicans should make great gains in November.
Pelosi is open to the VAT:
Some spirited debate on Kudlow this Friday. The Euro and Greece could be saving the dollar and thwarting inflation, but there is still too much going on to say for sure. Kudlow thinks we are in recovery.
The WSJ has an interesting post on people who were rejected by elite institutions, like Harvard, and yet went on to make something of themselves, and became more successful than their rejected colleges believed. The stories are different. Some, after being rejected, never went to college and yet made millions. Others, after rejection, applied to other colleges–perhaps not as prestigious–and proved Harvard wrong.
It prompts a question: does everyone need college? Can not people make something of themselves, and be just as important despite enrolling to less prestigious colleges? The answer seems to be no in the first, and yes in the second.
According to this report:
Lengthier smoking habits—but not more intense ones—seem to reduce the odds of developing Parkinson’s disease, according to a study in Neurology. The inverse association between smoking and Parkinson’s—the neurodegenerative disease characterized by difficulty in controlling movement and speech—was first reported half a century ago, but this is the first study to separate the number of years smoking from the number of cigarettes smoked per day. Researchers compared the smoking histories of 305,468 elderly subjects, 1,662 of whom had been diagnosed with the disease in the previous decade. Compared to the nonsmokers, subjects who had smoked at least a pack a day for one to nine years were only 4% less likely to develop Parkinson’s. But subjects who smoked as many cigarettes a day for more than 30 years had 41% shorter odds of developing the disease. The number of cigarettes a day, however, had no significant independent effect on Parkinson’s risk. The results suggest that any Parkinson’s-protective effects of tobacco reach saturation at low doses, the researchers said.
Jean-Jacques Rousseau is bold and moves into new territory. He is one of the first thinkers of History. He has affected our language today even though he was walking the earth some 300 years ago. Consider what Rep Louise Slaughter (D-NY) said about the recent passage of the Health Care bill:
“It makes me so happy that, after 100 years, we can finally catch up with the rest of the world.”
At its core, that is an historical statement, an historicist statement. Somehow, the world is more “in tune with the times” and the U.S. is “behind the times.”
Rousseau’s Social Contract is a book about reconciliation of the state of nature with the illegitimate society we find ourselves in. On the surface, he seems to have many of the same opinions as Hobbes and Locke. For example, he believes we are naturally equal and that man has no superior. So far so good. However, he he links the equality to a kind of freedom that comes from the will. Where is our reason in relation to our will? It seems that our Swiss is also the father of radical individualism in some respects.
Alienation: What of this concept of alienation? Marx picks up on this idea and applies it to society in terms of the worker. But Rousseau has an expansive view of it–to give or sell ourselves is to alienate ourselves. And this seems to be a bad thing, for to not be free is to be inhuman.
But clearly, one might say, Rousseau believes in reason for he speaks of an age of reason in chapter 2. At a certain age, humans have the capacity to judge. He speaks of it tho, in terms of societies. And we know from the discourses, that society is a corrupting thing. Further, as already noted, later he places much emphasis on the will and the expression of the will as being necessary for freedom. And, we read at the end of chapter 2 that we are born into slavery–society stinks, no?
Next time, we will look at what Rousseau believes are “legitimate powers.” Humans should only “obey” legitimate powers–and that discovery is the purpose of the Social Contract.
As we await the vote (or non-vote) today, it is important to consider (reconsider) the constitutionality of deem and pass (D&P). Even though the Congress determined not to use the procedural rule, the use of D&P has been used in the past, and may be used again. The issue is still before us: is it constitutional? Both parties have used the procedure to pass certain pieces of legislation. We cannot assume that just because the majority has elected not to use it in this instance that it will not be used again.
Law professor Michael McConnell wrote a follow up to his original piece in the WSJ. He makes additional arguments and expands on his previous article. He maintains that the use of D&P would have been unconstitutional if the majority would have utilized it to pass some form of health care.
I have had had quite a debate with law grads on this topic. There are two questions: the enrolled bill practices, and the role of SCOTUS to determine whether the practice is unconstitutional: they would not unless the question is before them. If the question is not before them, then they have no recourse to determine whether the practice is unconstitutional. Wrapped up in that debate is the power of the Court. Do they have the authority to do that? If they did rule the practice unconstitutional, would that be a position in support of judicial supremacy? My position is yes, and no respectively. Disagreeing with me to an extent, one person wrote me:
There is a separate issue, which is this: what if a statutory interpretation question was before the court, and during the argument the court realizes that the statute might be unconstitutional. Should the court hold the statute unconstitutional even though the question wasn’t originally before it? I think yes, with the caveat that the best practice would probably be for the court to give the litigants (and probably the government as well) a chance to brief the issue. The authority to say what the law IS should not be taken lightly, and having the issue briefed is a check on bad or incomplete reasoning.
Another chimed in:
I agree…Unlike the French constitutional court, our courts (all of them, not just SCOTUS) exercise judicial review only “incidentally,” when passing on a constitutional issue is absolutely necessary to the legal dispute. The core responsibility to resolve the concrete dispute between litigants. This underlying authority is the only authority granted to the courts by the constitution.
It is also worth asking: if not the Enrolled Bill Doctrine, what evidentiary standard should courts use to determine whether a bill has passed? At some point, the courts simply must accept somebody’s word that a law was legitimately passed. Would it really be desirable to haul every Congressperson and Senator before a court to testify under oath to their vote? What if the law is challenged long after all those legislators are out of office, or dead? Now, perhaps the Enrolled Doctrine goes too far by crediting the affirmation of a single person. (I think it does.) But ultimately, some evidentiary rule is necessary, and the nature of evidentiary rules is that they will occasionally exclude relevant evidence.
Now, to a certain extent, we are talking past one another because, as legal minds, they are emphasizing different aspects of the problem (that is not a criticism). Mine is more fundamental.Now, my interlocutors may not characterize the debate that way; they may view their arguments as fundamental. They are also troubled by the procedure as it would have been used by the majority in this case. However, I insist that the theoretical role of republicanism is most important, not the specific legal question.
My argument begins with Federalist #78:
It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. [emphasis added]
So, SCOTUS is supposed to determine whether an act, or an action, is constitutional first and foremost. In every case the people (the rational expression of the people as codified in the Constitution) takes precedent.
But that does not actually address the point at issue. No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in “the same form” as either bill separately.
Leaving aside commentary on Article 1, Sec. 7 (since we have already covered that earlier), McConnell brings up yet another reason–the president must sign a bill that has passed (exactly) both houses. Under the rule/procedure, that would not be the case. But, is there a way a self-executing rule may be constitutional? Maybe:
Defenders of the Democratic strategy say that a self-executing rule has been used many times before by both parties. But never in this way. Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution. I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote.
Self-executing rules have also been used to increase the debt ceiling by virtue of adopting a budget resolution. That procedure is questionable, but because budget resolutions are not laws, this usage does not have the feature of using one vote to send a bill to the president and at the same time to send a different bill to the Senate. There may have been other questionable uses of self-executing rules, but not often enough or in prominent enough cases to establish a precedent that would overcome serious constitutional challenge.
So, the problem with the Slaughter Solution was to use the self-executing rule in an unprecedented way. I maintain, it it likely unconstitutional no matter when and how it is used IF each house does not give its yeas and nays on the bill. Nevertheless, McConnell again:
the question will be whether using a self-executing rule in this way is consistent with Article I, Section 7. It is one thing for the Supreme Court to defer to Congress on questions of what Congress did, and quite another to defer to Congress on the meaning of the Constitution. Indeed, in United States v. Ballin, decided the same year as Field, the Court ruled, “The Constitution empowers each House to determine its own rules of proceedings. It may not by its rules ignore constitutional restraints . . . .”
Now, as it pertains to the health vote today, these questions have been avoided for the moment. There will be Constitutional challenges on other grounds, mostly from the states on federalism grounds. There is also the question of whether the Federal Government may force its citizens to engage in commerce, as this bill does. There are also tenth amendment questions (those are the weakest arguments, but nothing says the 10th will forever remain a dead amendment). The health care debate is far from finished. Passage and a presidential signature today does not change that.
About 4 hours ago the Democrats gave up on “Deem & Pass” and are now posed to vote on their HR 4872 as well as the Senate Bill. Obama came to the Hill today to make a plea to the Democrats to come his way and pass the bill. The reconciliation session of the House Bill was tense:
On another note, I caught this video quite by accident while changing channels. If true, it is quite a challenge to some of the rhetoric we have heard from both parties:
[hana-code-insert name=’Stossel’ /]
The House took a dramatic step toward using “Deem and Pass” by rejecting a resolution for an up and down vote on the Senate version of nationalized health care. The clerk’s office has the roll call. Of the West Virginia Delegation, the below voted yea:
Only one voted nay:
The last 24 hours has seen a big debate over the CBO’s numbers regarding how much the House bill will cost. However, as we saw in the last 10 hours, those numbers can change. As a matter of reliability, the CBO numbers are meaningless for these reasons:
As already noted, taxes are going to increase for everyone and increase much. Furthermore, the spending on health care will likely be much, much higher than predicted. There is simply no way that creating a new entitlement will not cause great demand, which will in turn have to be funded. This high demand will turn into rationing. We can certainly argue over numbers and anecdotes of health care successes and failures under the current system, but the deeper question is whether this is the proper role for government. As a matter of practicality, if other countries are any example, health will dominate our discussions to the point of distraction. In the U.K. you can see how much the topic consumes their time. There is no reason why this would not be the same for the U.S. Here is one PM Question example:
Our government will be forced into arguing over services, employment issues, rationing issues, quality issues, wait times, R&D issues, etc. In other words, everything the invisible hand sort of manages, will be placed upon our lawmakers for their decisions and direction. Each year the parties will argue over who can do a better job of providing health services to the people with the limited sources at hand.
But, we get ahead of ourselves, if any health care bill passes, there will be hurdles and problems. First, the Senate will have to assent to the bill. That is unlikely, so we will see another round in the House. Second, if the House uses Deem & Pass (and some version–the Senate’s!–is signed by the president–see why the Dems need Deem and Pass.), it will head for a legal challenge. Speaker Pelosi admits that the rule allows House members to not vote on the Senate Bill. The status of Health Care will be unknown for some time. Under this scenario, the President would sign the Senate bill without formal voting in the House. The legal challenge under this case would be immediate. The complicated and arcane rule kind of challenges the intro to civics lesson we all know:
There is much merit to the challenge to Deem and Pass (what some people call Demon Pass). For the House would really never vote on the Senate bill, but vote on amendments, that would never be considered in the Senate (or they may under one scenario), and then the Senate bill would be signed into law. The Article 1, Sec. 7 violations are great with violates of the pass rule, the presentment cls, and the bi-cameralism requirement.
Politics is never dull. Here is the text of H.R. 4872.