Category Archives: Political Science

Confuse the Record

Hillary Clinton is the secret love child of Bill Maher and Rachel Maddow who became the brain-eating zombie Queen of planet Zorg before traveling back in time to marry Bill Clinton and kill Vince Foster with her retractable poisonous fangs because he was about to reveal that she was conspiring through a private email server to use her speaking fees to raise funds for terror attacks in Benghazi to distract us from her plan to have the Clinton Foundation use climate change as a cover for to enslaving humanity for her Muslim overlords.

Come at me bro.



For several months now, I’ve kind of been planning to vote in the Republican primary here in Illinois, just so I can vote against Donald Trump. As the day finally approached, however, I gave it a little more thought and realized there was a better way to use my vote. (It may not be worth much, but I might as well maximize its impact.)

While the Presidential elections have been getting all the news coverage, a different election has been attracting attention here in Chicago. That’s the vote to replace Cook County State’s Attorney Anita Alvarez, a movement that has grown massively, ever since the video from the LaQuan McDonald shooting by a police officer was released to the public in November.

This seems to have been driven on the ground by a mostly grass roots movement (except for support from a few key criminal justice reform supporters) led by a collection of mostly black community organizations like Black Youth Project 100, Assata’s Daughters, and Black Lives Matter Chicago, although I get most of my news about if from following Prison Culture. I can’t go an hour on Twitter without seeing the #ByeAnita hashtag floating across my screen. Especially on this election day.

Bye Anita Selfie

To be honest, I don’t think Anita Alvarez is the sole reason police in Cook County seem to be getting away with murder. It’s a nationwide issue, and I doubt Alvarez is much worse in that respect than many other chief prosecutors. But the folks running the #ByeAnita campaign decided to make sure that she faces the consequences nonetheless.

And she will.

Don’t Make History

Today is Super Tuesday, which is a pretty big day in the primary election season. And if you’re in one of the states where people are voting today, you have a chance to make history. And I don’t mean that in a good way.

I think we’ve seen a lot more noise than usual from the alt-right, including the misogynist wings of the men’s rights movement and GamerGate, neoreactionaries who don’t like democracy because it’s not going their way, those white-supremacy-lite folks who say “cuck” all the time, resurgent anti-immigrant bigots, “racial realists” worried about the white man, and whatever the hell it was that happened to the Hugos last year.

And just in the last year we’ve seen the rise of Donald Trump, a lying, narcissistic, nationalist who preaches isolationism and blames foreigners and immigrants for everything he thinks is wrong with this country. He’s a thin-skinned bully who picks fights with everyone but can’t take criticism and threatens the press. He puts down minorities, insults women, and seems to sincerely believe that he is so awesome he’s the solution to every problem.

Or at least he thinks people will believe that he’s the solution to every problem, just because he tells them they’re great and that he hates the same people they do. The worst part is, it seems to be working, especially with the alt-right. For some reason, this asshole is on the brink of being on the ballot for President.

I realize I’m exaggerating. Not all GamerGaters are misogynists, and not everyone who opposes free trade and immigration is a bigot. And unlike traditional populist demagogues, Trump hasn’t gone after academics all that hard, and he seems to have Muslims playing the role usually reserved for the Jews. A lot of much, much worse people have been given power in crises. But…

This kind of situation — rough economy, warfare, lots of disgruntled folks flocking to a charismatic strong man for leadership — this is the kind of thing you read about in history books, usually in a sections titled “Why the Republic Fell” or “Causes Of the Civil War.”

So please don’t vote for Donald Trump. Trust me, you don’t want to live through a time that will get a big section in the history books.

Down With The Donald: A Manifesto

As I was writing this post, I happened to receive an email message that began this way:

From: Committee to Restore America’s Greatness
To: Mark Draughn (Windypundit)
Subject: Donald Trump Needs Your Help



The short answer is fuck no. Or if you prefer, FUCK NO. The long answer is the rest of this post.

I don’t believe we have a general duty to denounce all evils. Yet for some reason, I feel I should say something about Donald Trump. Maybe it’s because I tend to like non-establishment candidates, and I don’t want you to mistakenly think I’m a Trump supporter. Or maybe I should just blame it on a couple of recent Facebook posts by D.C.-area criminal lawyer Mirriam Seddiq. In the first one, she wrote:

The other day my Yonas came home from his Bibi’s house and said “Mama, I watched Donald Trump on TV and I almost started crying. I was thinking of Matthew and my other friends and how I would never see them again if he kicks me out of the country. I don’t want to leave.”

Mirriam is just about the only Muslim person I know. I’m sure there are others, but it seems inappropriate to ask. Mirriam, on the other hand, talks about her background all the time. So when I think of American Muslims, I think of Mirriam. She and her lovely family were the first people I thought of when when Trump started talking about banning Muslims from entering the country, and it makes me angry that Trump is upsetting her children.

I initially dismissed Trump’s popularity as one of those flash-in-the-pan political phenomena that appears out of nowhere and disappears just as quickly. The polls have proven me wrong, but I’ve still been ignoring most of the Trump phenomenon, except to enjoy some of the terrific comedy material he’s inspired. Then a couple of days ago Mirriam posted this:

I honestly wonder right now how many Germans thought Hitler was brave and doing what no one else had the balls to do. I mean he wasn’t entirely PC either was he? This isn’t something I would normally say, but when a potential leader has the power to instill fear of losing a homeland into millions of people, maybe you white folks should stop and think that this isn’t as funny to us as it is to you.

Mirriam was exaggerating for effect, but she’s got a point. So let me take some time to explain why I think Donald Trump is a bad person and would make a bad President. In no particular order:

  • Start with where I first remember hearing of Trump, when he tried to use eminent domain to force an elderly widow out of her home so he could expand one of his casinos. His justification is typical Trump: “Cities have the right to condemn for the good of the city. Everybody coming into Atlantic City sees this terrible house instead of staring at beautiful fountains and beautiful other things that would be good.” He has consistently advocated the use of eminent domain to take properties from private owners and turn it over to developers. People like it that Trump builds things, but also wants to steal them.
  • In the fall of 2014, when Dr. Kent Brantly and his assistant Nancy Writebol were infected with Ebola while fighting the epidemic in Africa, Trump opposed letting these heroic Americas return here for treatment, saying things like “People that go to far away places to help out are great — but must suffer the consequences!” That’s not the kind of thinking that will ever make America great. That’s not the kind of thinking we want in a commander who will send soldiers into battle. Speaking of which…
  • Trump mocked Senator John McCain for getting captured in Vietnam, saying “He’s not a war hero. He was a war hero because he was captured. I like people who weren’t captured,” Thus Trump showed that not only is he an asshole, but he also doesn’t understand why McCain is considered a war hero.
  • During his official announcement that he was running for president, Trump made a point of trashing Mexican immigrants, saying “When Mexico sends its people, they’re not sending their best. […] They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” It’s hard to tell if he’s only talking about illegal immigrants, as some contend, but it’s pretty insulting either way. And does he think Mexico actually sends people?
  • In that same speech he also claimed that Japan and China were somehow “beating us” economically, and that our last quarter GDP was “below zero” which is impossible. (He probably meant the GDP growth rate, but this is typical of his economic idiocy.) The American economy is better off than either of those countries.
  • Speaking of economic idiocy, he once proposed a plan to pay off the national debt with a one-time confiscation of 14.25% of the assets of rich people, an idea so awful that government leaders just talking about it could harm the U.S. economy by discouraging investment.
  • Trump stuck to his nonsense claim that he saw thousands of New Jersey Muslims celebrating after 9/11, and he wants the U.S. government to block future Muslim travel to this country, track all Muslims already here, and forcibly close some mosques.
  • Not only does Trump want to build the wall at the border with Mexico, he also wants to deport millions illegal residents and their American-born children.
  • He wants to close parts of the internet…somehow…because “We’re losing a lot of people because of the internet” or something. It doesn’t actually make any kind of sense.
  • Donald trump is a birther.
  • There’s his frequent denigration of women he doesn’t like or that simply annoy him, not to mention the creepy way he talks about his daughter.

If you’re like me, you’ve got to wonder what the hell is wrong with this guy. Is there anything that ties all this craziness together? Is he for real? Or is he just trolling us? I can’t help but think of this pair of quotes:

“A lot of people sit down and discuss their lives, things like are they happy, but it’s not like that with me. I don’t think positively, I don’t think negatively, I just think about the goal. But it’s not like I sit down and write goals. I just do things.”

— Donald Trump, Master Apprentice, 2005 (source).

“Do I really look like a guy with a plan? You know what I am? I’m a dog chasing cars. I wouldn’t know what to do with one if I caught it. You know, I just…do things.”

— The Joker, The Dark Knight, 2008 (source).

Trump isn’t just a guy with bad policy ideas, he’s an awful human being with bad policy ideas. Pete Suderman discusses that in a recent piece at Reason:

Trump frequently declines to propose anything that resembles what most would call a policy to resolve the problems he identifies, but even when he does, the legal and practical mechanisms by which he would implement those policies are almost always left unstated. He describes the effect he hopes to produce, but not the path by which he would get there […]

One reason for this is that Trump often seems to have no idea what he is talking about, and frequently appears to be making it all up on the spot. […]

Indeed, most of his answer is just rambling, in which he lobs insults, vaguely insists that the solution merely requires identifying the right people (the best, most brilliant individuals that only Donald Trump knows about) and putting them in charge, and dismisses out of hand any concerns about freedom of speech and other individual liberties. Trump’s answer does not tell us much about his plans for the Internet, but it does tell us something about Trump, and how his mind works.

He clearly has no idea what he is talking about, yet even in his incoherence, he gravitates toward insults and power grabs while insisting that anyone concerned about freedom must be ignored.

In other words, Trump’s response when he does not know what he is talking about, which is often, is to engage in a kind of brainfart fascism.

I think those “fascist brainfarts” are a symptom of the kind of person Donald Trump is. Consider some of Trump’s personality traits:

  • glib and superficial
  • egocentric and grandiose
  • lack of remorse or guilt
  • lack of empathy
  • deceitful and manipulative
  • shallow emotions

That’s not my attempt to describe Trump’s personality. It’s a list of the emotional and interpersonal traits displayed by psychopaths, according to Without Conscience: The Disturbing World of the Psychopaths Among Us by Dr. Robert D. Hare, a leading expert on psychopathy.

The book goes on to list six more social deviance symptoms of  psychopathy, some of which also seem to apply to Trump:

  • impulsive
  • poor behavior controls
  • need for excitement
  • lack of responsibility
  • early behavior problems
  • adult antisocial behavior

Trump certainly seems impulsive and he doesn’t seem to be able to behave himself. Although his golfing hobby isn’t very exciting, I think his reality TV show and series of Presidential campaigns probably count as a need for excitement, and I think multiple corporate bankruptcies indicate a lack of responsibility. His father described him as “a pretty rough fellow when he was small” and sent him off to a military academy, so I think counts as early behavior problems. And I think much of the way he conducts business counts as adult antisocial behavior.

Dr. Hare points out that psychopathy is a mental health diagnosis, and even trained mental health professionals can’t diagnosis someone on television. So I can’t say that Trump is a psychopath in the clinical sense. But that’s okay, because I’m not planning his treatment or committing him to an institution. I’m just some guy on the internet expressing an opinion about a candidate for public office. And my opinion is that Donald Trump is at least a little psychopathish.

(In the unlikely event that Trump discovers this post, he’s welcome to prove me wrong by releasing the results of a PCL-R assessment done by a qualified and neutral mental health professional who’s not a paid hack like his doctor. I was going to suggest prominent forensic psychologist J. Reid Meloy, but it turns out he may not be unbiased when it comes to Trump. In any case, normal people tend to score between 3 and 6 on the 40-point PCL-R scale, and you have to score at least 30 to be diagnosed as a psychopath. I’ll bet Trump scores closer to 30 than 6.)

Psychopaths have no conscience. They don’t feel bad about people being harmed, not even if they’re the ones doing the harm. In the worst case, they are shockingly violent criminals, committing despicable acts for money, sexual gratification, or personal amusement. They also have poor impulse control, hurting other people (or even themselves) on a whim. A psychopath will stab a guy to death in a bar over an insult, get out of jail fifteen years later, and promptly day stab another guy to death in a bar.

At the opposite end of the spectrum are “successful” psychopaths who avoid a life of violent crime and choose instead to pursue careers in business or politics. One of the reasons they can do this is because (unlike many criminal psychopaths) they learn from their mistakes. And one of the things they learn is how to fake it as a normal human being. Psychopaths are spectacular liars.

They aren’t good liars in the technical sense: They often tell implausible stories that are relatively easy to disprove, and they make little effort to keep their stories consistent when lying to different people. But they make up for that by being very good at selling their lies. They are very good at figuring out what people want to hear and telling them things they want to believe, which seems to be Trump’s campaign strategy.

Psychopaths have no empathy. They don’t feel your pain, and they certainly don’t care about your happiness. At best, they’ll pretend to like you for exactly as long as you are useful to them. Every person in their lives is a means to an end, every interaction a manipulation. They want you to like them because that’s another way they can control you. We may wonder whether Trump sincerely believes the crazy stuff he says, or whether he’s just trolling us, but I don’t think he worries about the difference. He’s just saying whatever helps him manipulate people.

The psychopath’s lack of empathy cuts both ways. Because they don’t care for other people, they focus instead on physical sensation and material wealth, on status and power. They keep score by money and fame, and they see women only as sources of sexual pleasure. Again, who does this remind you of? Trump loves to boast how rich he is, and he talks about women like they’re only valuable if they’re sexy.

As Suderman points out, Trump talks a lot about the problems he’s going to fix to “make America great again” but he can’t explain how he’ll implement his ideas because he doesn’t think he needs to. Trump offers his followers “buttfart fascism” because buttfarts are all he thinks he needs to get what he wants, and “fascism” it just another way of saying he wans to be in control.

Psychopaths can seem like normal people, but they are aliens among us. Their disguise is often excellent — good enough to fool teachers, girlfriends, investors, judges, mental health professionals, and corrections officers. However, they lack the instinctive empathy that normal people have, so they slip up in situations where they haven’t yet learned to fake normality. Trump says terrible things, and then he’s genuinely surprised that people are shocked.

(You might think I’m overstating the degree to which psychopaths are different from normal people, but I’m trying to counter the usual mistake people make with psychopaths, which is to assume they can’t really be that bad, they’d never do something so nakedly awful, that this time you’ve gotten through to them, and this time they’re really trying to do better…)

It’s no defense of Trump to point out that other politicians have done the same things Trump is doing. That just means a lot of other politicians also have psychopathic tendencies, which doesn’t surprise me. A lot of business people have those tendencies too. It turns out that focusing on your own goals with utter disregard for the welfare of others is a common route to some forms of success. From a distance, it can even look a lot like confident leadership.

Which brings me to the thing about Trump’s campaign that is perhaps most disturbing, the thing that I suspect worries my friend Mirriam the most: What if Trump is right? If he’s so successful because he’s telling people what they want to hear, then why do so many of my fellow Americans want to hear such awful things? If Donald Trump is appealing to, in words of Fox host Shepard Smith, “the worst, darkest part of all that is America,” then shouldn’t we be worried that polls say he appeals to so many Americans?

I’m inclined to say we shouldn’t be too worried. I think I still buy Nate Silver’s basic argument that at this point most voters aren’t really paying attention to politics yet, so the people being polled are basing their poll answers on random bits of information about the candidates that they picked up in passing. Trump goes off lots of different directions — promising to stop terrorism, attacking Hillary Clinton, railing at the media — and so he’s appealing to a lot of different people for a lot of different reasons, but I don’t think they know that much about him, and I don’t think they represent a cohesive force in politics.

Further evidence of this comes from a recent poll showing that a substantial minority of Americans want to bomb the fictional city of Agrabah, including a whopping 41% of Trump supporters. It’s funny to think that this shows how stupid Trump supporters are, but I think you could argue that it shows how little thought people give to answering poll questions from random strangers.

I’d like to think we’re still a country that is more or less (on good days) freedom loving, tolerant, inclusive, and smart enough to reject the awfulness that is Donald Trump. I hope that when it comes down to the election we are no more likely to elect Trump than we are to bomb Agrabah.

Who Will Run With Trump?

I still believe in Nate Silver’s argument for why Donald Trump will almost certainly not be the Republican nominee for President (basically, if he doesn’t blow up his own campaign, the party establishment will do it for him), but the strength of my belief has been shaken by the Donald’s surprising staying power in the polls and by the big-time professional political operatives who have gone to work for him. It’s getting a bit scary.

This raises the question of who Trump might pick for Vice President if he becomes the Republican presidential nominee. It’s fun to speculate, because the usual rule is that the running mate has to be crazier than the main candidate, and who that heck would that be?

Michele Bachmann seems to be auditioning for the role with some of her recent remarks (the satirists are already giving her the job), and former pro-wrestler and Governor of Minnesota Jesse Ventura has indicated he’d be interested. And in breaking news, so has Charlie Sheen, who certainly meets the requirement, but I think he’s kidding.

The thing is though, the usual rules don’t apply to Donald Trump. The reason for picking someone crazy as a running mate is so they can act as the campaign attack dog, savaging opponents while allowing the presidential candidate to assume a dignified position above all the dirty fighting. But Trump likes the dirty fighting. In the Trump campaign, Trump is the attack dog.

I suppose it’s possible that Trump will follow the measured and careful advice of his high-priced political operatives and pick someone who balances out the ticket and helps with votes in critical states. But if Trump was the kind of guy who played it measured and careful, none of us would know his name. Trump is going to do something outlandish.

When he was sniffing around the presidency in 1999, Trump famously announced that he would fix U.S. trade policy by appointing himself as the country’s Trade Representative, so I wouldn’t be surprised if he’s thought of running for both President and Vice President.

That probably won’t happen. But at the same time, Trump loves the attention, so it’s hard to imagine him sharing the limelight with anyone else. Still, I think he’s got to pick someone, so who will it be?

Trump has a giant ego — the biggest, classiest, best ego — and he thinks he can run the country like he runs his company, so my prediction is that his second-in-command for the nation will be his second-in-command for his company: Donald Trump Jr. Because why wouldn’t he pick his eldest son to take over if he dies?

His other children, Ivanka and Eric, are too young to meet the presidential age qualification, but I expect that regardless of whether Junior gets the VP nod, if The Donald becomes The President, he’ll want some of his kids in the White House with him, if not in the Cabinet. Because that’s just how he rolls.

And in the unlikely even that he ever comes across this post, his honest response would probably be, “What’s wrong with that?”

Obama and Running Away

Allen Clifton at Forward Progressives has a post complaining about Democratic candidates trying to run away from President Obama. He then goes on to list some of Obama’s accomplishments:

The same president who has presided over:

The creation of over 10 million jobs in less than 6 years.

Obama inherited an economic recession. Recessions end. Of course it got better. It would have gotten better under President McCain too. The U.S. economy has some pretty sound fundamentals. It recovers from slowdowns.

The finding, and killing, of Osama bin Ladin.

A fair, although minor, accomplishment.

A huge drop in the number of uninsured Americans.

Fair enough, I guess, although I’m not sure that reducing the number of uninsured Americans by requiring Americans to buy health insurance or face a penalty is something to brag about. The roll-out of the exchanges did not go so well, and it will take a while for the full effects of the Affordable Care Act to become apparent. It won’t help to have health insurance if doctors and hospitals start going out of business.

Record stock levels.

Again, the stock market recovered from the recession, as it always does. Sarah Palin could have been sitting in the oval office for the last six years and the stock market would have still rebounded.

The saving of the American auto industry.

More like the saving of the inefficient Detroit-based part of the American auto industry at a cost of billions to taxpayers. It’s not that hard to save a failing business with a massive infusion of someone else’s cash. And it’s not clear that it’s necessary: If Detroit automakers had gone under, Americans would have still needed cars, and some other part of the auto industry would have expanded to supply them.

An unemployment rate that’s now below 6%.

Yet again, this was the inevitable, but unusually slow, recovery from the recession. Obama’s Portuguese Water Dog Bo could have been sitting in the oval office and unemployment would have improved.

The ending of discrimination against homosexuals in our military.

Seriously, this was a good thing. Well done, President Obama. Nobody should be running from this. Which brings us to the final item:

Same-sex marriage being on the verge of national legalization in the very near future.

What a strange thing to include on the list. The expansion of legalized same-sex marriage in the United States happened despite the opposition of President Obama. Obama was opposed to same-sex marriage for most of his political career, deciding to support it only recently.

Now let’s look at a few things Clifton left out of his list of accomplishments of the Obama presidency:

  • Despite campaign promises of greater transparency, the Obama administration has reduced cooperation with the press and stepped up prosecutions of leakers.
  • Used the NSA to spy on the press…and everyone else.
  • Refused to investigate torture under the Bush administration.
  • Despite campaign promises, has not closed Gitmo.
  • Despite campaign promises to rein in executive power, the Obama administration has actually expanded it.
  • Ordered the execution by drone strike of American citizens without due process.
  • Allowed the DEA to step up its war on effective treatment for chronic pain sufferers.
  • Continued federal raids on state-approved marijuana dispensaries.
  • Led us back into war in the middle east.

And that’s just off the top of my head.

Frankly, I don’t know how many of those items are enough to keep Democrats away — I don’t hear too many of them complaining about these issues — but President Obama has pretty much run away from just about everything that I liked about Candidate Obama.

Good Faith, Bad Policy

An interesting discussion broke out in the blogosphere last week. It all started with Andrew Cohen in The Week, complaining about the legal fiction of “good faith.”

When I was a young man learning the law, I was taught about the “good faith” in which all public officials are always and forevermore presumed to be acting. This presumption, this so-called “implicit covenant,” is an axiomatic cornerstone of both civil and criminal law. And why not? Our courts are busy enough these days without requiring judges to peer into the motives and the biases of the parties moving through our justice systems.

What a tidy but self-defeating fiction the “good faith” presumption has revealed itself to be over my 25 years in the law. The more I study criminal justice, the clearer it is to me that public officials on every level of our justice system are wholly unworthy of the benefit of the doubt the law ascribes to their actions.

I first read those words over at a public defender where Gideon was a little surprised, not by the revelation, but by how long it took:

For Cohen, who’s been a lawyer for a long time and a distinguished legal writer, to come to this realization 25 years into his career is quite telling.

It reveals that we are all operating from the same basic assumption that the system, in the end, works: that everyone in it is doing the best they can do and that any injustices are the outliers. “The best system in the world” is the norm and the wrongful convictions and the prosecutorial misconduct are the inevitable bugs in a system manned by humans.

But if you’ve been reading this blog, or others, or have had any involvement with the system, you know that the assumption is false: it’s a fiction created to grant a sense of stability to the system.

Scott Greenfield has a problem with Andrew Cohen’s piece, and with some of the reaction to it, because apparently the presumption of good faith has a technical meaning in the arena of law. Scott’s not writing Intro to Law, so his explanation of what good faith means is a little vague, but I gather that the presumption of good faith specifies a default assumption that is supposed to be used when resolving legal disputes.

But that’s not a reason to question the good faith presumption.  Missing is an understanding of what it is and why it exists.  The law is replete with presumptions, the one most honored here being the presumption of innocence.  It means that a person is innocent until proven guilty. It reflects a fundamental policy choice, does a criminal defendant start from a position of innocence or guilt?  It proceeds to establish a baseline, where the burden of rebutting the presumption falls on the party that disagrees with it.  So the prosecution has the burden of proving guilt rather than the defendant having the burden of proving innocence.


But it’s just a starting point. Without starting points, the law would require litigants to reinvent the wheel from scratch every time.

The beauty of such presumptions is that they are rebuttable.  The law may presume a public official to act in good faith, but that merely informs the parties of who has the burden to dispute the presumption and the burden of proof.

In other words, if I have this right, in the absence of evidence to the contrary, a judge is supposed to assume that public officials are acting in good faith, much as he is supposed to assume that a criminal defendant is innocent. He can’t just make up crazy ideas about why the public official is a scumbag any more than he can make up crazy ideas about why the defendant is guilty. I’ve never really thought about that before, but it seems to make sense. The basic idea seems to be that judges shouldn’t make stuff up without evidence. Hard to argue with that.

The real problem, according to Scott, is that judges aren’t taking seriously the possibility that the presumption of good faith can be rebutted.

This is the core distinction that is confused by the challenge to the presumption of good faith.  The problem is not that we begin with the presumption, but that our system suffers from inherent prejudice that prevents public officials, particularly judges, from correcting the bad faith of other public officials.

The fault Cohen complains of is undoubtedly real, but the cause isn’t the presumption of good faith.  The cause is the refusal of establishment stakeholders to care enough about the integrity of the system and their own self-respect to make hard decisions, to condemn wrongs of their fellow establishment stakeholders and to use their power to correct the faults.

I don’t know enough about the law to judge whether Scott is right about this, but it certainly makes sense.


Not being a lawyer, and therefore not being aware of the legal presumption of good faith, I was thinking of something else when I read Gideon’s post and Cohen’s column. Law is not the only discipline in which it makes sense to talk about a “presumption of good faith.” The question of whether public officials are acting in good faith is an important issue in analyzing public policy and the nature of government.

I’m pretty sure that Radley Balko, who is also not a lawyer, was thinking along the same lines:

We tend to assume that public employees always act in the public interest — or at least we write our laws and structure our government in a way that assumes it. But there’s nothing transformational about a government paycheck that turns the name on the “payable to:” line into an altruist. This isn’t to say that government employees are especially evil or awful or terrible, only that they’re just as human and fallible as anyone else.

Back when I was a teenager around the end of the 1970’s, I was only just becoming concerned about nature of government, but one of the things that bothered me was the problem of bad cops. It seemed to me that whenever some community activist would complain about police brutality, defenders of the police would argue that the police were there to protect us from criminals and that they deserved our respect. It seemed to me, however, that they were ignoring an important problem: Sure, most cops protected us, but given the amount of trust and power we invest in police officers, that rare bad cop could do an awful lot of harm.

As it turns out, the problem was somewhat worse than I imagined.

When economists study the market, they make some rather cynical assumptions about how people behave. In particular, it is axiomatic in economic thinking to assume that people are selfish, in the sense that, given a choice, they will always choose whatever advances their own selfish interests.

This assumption has proven useful in thinking about the behavior of the free market: Consumers want good deals, employers want hard work at a low wage, employees want light work at high wages, and investors want to make as large a profit as they can. Surprisingly, economic theory tells us that even with all this selfishness, the incentives within an ideal free market will encourage people to produce the goods and services that will most improve the lives of consumers. As Adam Smith wrote, “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.”

You may notice that I referred to an ideal free market. The reasoning leading to the conclusion that markets optimize production and consumption only works if markets meet certain ideal criteria. (The the economics equivalent of the physics assumption that everything is spherical and frictionless.) Real markets are not ideal markets, of course, and there are complications — transaction costs, information asymmetry, monopoly power, externalities — all of which economists refer to as market failures. And in most cases of market failures, economists (and everyone else) used to assume that the government should step in to correct the problem. Exactly how the government would fix things was not explored.

In the latter half of the last century, however, economists began examining the behavior of government using the same analytical tools that they used for the market. In particular, they assumed that the people making up the government were no less selfish than the people who made up the free market. So instead of assuming that the government would just fix problems, they assumed that everyone involved — voters, elected officials, bureaucrats, and special interests — would selfishly look out for themselves. This was called public choice theory.

People seem to have a hard time thinking this way. Even after years of skepticism about the wonders of government, I still catch myself trusting it too much.

Take net neutrality, the concept that internet service providers should carry all kinds of content at the same speed for the same price, as opposed to offering to carry some content under better terms in return for payments. Advocates for net neutrality, such as the Save the Internet Campaign, believe that this would be disastrous because it would allow internet companies to discriminate against certain sites or content, it would raise costs, and it would stifle innovation. Simplifying a bit, phone and cable companies would act in their own interest, and not in the interests of internet consumers. The market would have failed.

That may be. But if you click through to the “Take Action” page, the very first recommendation is to contact the FCC:

Net Neutrality is on life support. To save it we need to turn up the heat on the Federal Communications Commission and Chairman Tom Wheeler. We must stop the FCC from passing rules that would break the Internet and allow discrimination online. The agency needs to reclassify broadband Internet access as a telecommunications service, which would pave the way to long-lasting Net Neutrality rules.

Save the Internet doesn’t want phone and cable companies to control their own pricing policies because they think the folks who run phone and cable companies are scumbags. So they want the FCC to control internet service pricing policies. But here’s the thing: What is their reason for assuming that the folks who run the FCC aren’t also scumbags? Why do they believe that Comcast and AT&T will selfishly advance their own prosperity, but the FCC will benevolently protect the interests of ordinary people?

We know how government appointments are filled, and the process is not reassuring. Current FCC Chairman Tom Wheeler was a lobbyist for the cable television and internet industry and he appears to have been appointed in part because of his fundraising efforts on behalf of President Obama’s election campaign. That’s not a selection process that seems particularly designed to choose administrators based on their honesty, altruism, or appreciation for the needs of the citizens.

This is a problem that people on the political left tend to overlook as they continue to recommend more and more government intervention to combat the inequities of the free market in pursuit of social justice. People on the political right, on the other hand, are inherently skeptical of attempts to solve the world’s problems with “big government.”

Except when they aren’t. Which is to say that conservatives seem to forget all about these problems when it comes to the military and law enforcement.

There are some bad people in our society, bad actors, who lie, cheat, rob, rape, and kill, and we need to protect our society from them. So we create a system of justice, with police departments and prosecutors and courts and prisons, and we give it money and special powers to investigate crimes and punish offenders. But there’s a problem — one that I’ve started to think of as the fundamental problem of policing — which is that the people to whom we give this power are chosen from the same pool of humanity which produces the criminals. We thus face the challenge of designing a system of justice that will protect us from bad people even though parts of it will, at times, be run by bad people.

It’s not just the very bad people, however. The theory tends to assume that most people will behave selfishly most of the time, and there isn’t a whole lot of evidence that it’s wrong. This points to what I guess could be called the fundamental problem of government: What’s the best way to build a government given that its officials and functionaries are drawn from the same pool of humanity they are governing? I don’t have a precise answer, but I’m pretty sure that giving them gobs of power with little accountability is a bad idea.

That’s what I was thinking when I read Andrew Cohen’s column — that this was about policy and trust, not a formal legal presumption — and I’m pretty sure it was what Radley Balko had in mind as well. I thought that’s what Cohen and Gideon had in mind too, but now that I’ve read Scott’s post, I’m not so sure.

Frankly though, I’m not so sure what Scott has in mind either, because bits like this don’t sound like he’s talking solely about the legal issues:

We tend to favor survival, and that relies on bridges not falling down and traffic signals that prevent the selfish jerk in the Esplanade from t-boning the Prius.  We go to sleep at night because we believe the police are out there preventing some really bad dude from breaking into our homes and slitting our throats.

Trust is a valuable thing to have, because it saves us a lot of trouble. You only have to look at a few broken-down third world countries to see what happens when nobody can really trust anyone else. But it’s something that has to be built up and maintained. You can’t just make policy founded on the hope that everyone can be trusted to act in good faith.

There is nothing wrong with the presumption of good faith, and our nation would cease to function without it.  What is wrong, and deeply wrong, is that those empowered to decide whether the presumption is rebutted lack the fortitude to serve the public, honor the Constitution and protect society.

In other words, we’re trusting too much that those who are “empowered to decide” will act in good faith.

The State of the Union in 2013

The official Whitehouse web page on the State of the Union speech asks as to give our responses, so as is the tradition at Windypundit, I have a few thoughts. In a break from tradition, however, instead of posting the whole speech, I’ll just post a few excerpts

Tonight, thanks to the grit and determination of the American people, there is much progress to report. After a decade of grinding war, our brave men and women in uniform are coming home. After years of grueling recession, our businesses have created over six million new jobs. We buy more American cars than we have in five years, and less foreign oil than we have in 20. Our housing market is healing, our stock market is rebounding, and consumers, patients, and homeowners enjoy stronger protections than ever before.

Your mileage may vary.

So, together, we have cleared away the rubble of crisis, and we can say with renewed confidence that the State of our Union is stronger.

Hey, the state of the union is strong. Who saw that coming?

But we gather here knowing that there are millions of Americans whose hard work and dedication have not yet been rewarded. Our economy is adding jobs — but too many people still can’t find full-time employment. Corporate profits have skyrocketed to all-time highs — but for more than a decade, wages and incomes have barely budged.

Two things: First, corporate profits are paid to shareholders, where they are counted as income. So somebody must be getting the money.

Second, most economists believe that the income statistics understate the welfare increase due to advancing technology. Our phones are better, our cars are better, our computers are better. These things are hard to convert to a dollar value, so in the interest of reliable measurement, they are left out of the calculation. I’m not saying it’s tons better, but it’s better.

It is our unfinished task to make sure that this government works on behalf of the many, and not just the few; that it encourages free enterprise, rewards individual initiative, and opens the doors of opportunity to every child across this great nation.

Remember those phrases. I have a feeling I’ll be mentioning them again.

Over the last few years, both parties have worked together to reduce the deficit by more than $2.5 trillion — mostly through spending cuts, but also by raising tax rates on the wealthiest 1 percent of Americans. As a result, we are more than halfway towards the goal of $4 trillion in deficit reduction that economists say we need to stabilize our finances.

I’m not sure exactly what he’s talking about, but that sort of statement about deficit reduction usually just means that our current plan for the next ten years is to spend $4 trillion less than our previous plan for the next ten years. It doesn’t mean we’ll actually spend less than we have been, and anyway it’s all kind of theoretical at this point.

Already, the Affordable Care Act is helping to slow the growth of health care costs.

Actually, there’s some evidence it’s increasing some costs…which is, I guess, not incompatible with slowing the growth…well played Mr President, well played.

Our first priority is making America a magnet for new jobs and manufacturing. After shedding jobs for more than 10 years, our manufacturers have added about 500,000 jobs over the past three. Caterpillar is bringing jobs back from Japan. Ford is bringing jobs back from Mexico. And this year, Apple will start making Macs in America again.

God, it’s always about manufacturing with politicians! Like the rest of us don’t count. Only about 9 percent of the people have manufacturing jobs. Does anybody remember “make sure that this government works on behalf of the many, and not just the few” from only a few paragraphs back? I guess sometimes government does work just for the few.

So tonight, I’m announcing the launch of three more of these manufacturing hubs, where businesses will partner with the Department of Defense and Energy to turn regions left behind by globalization into global centers of high-tech jobs. And I ask this Congress to help create a network of 15 of these hubs and guarantee that the next revolution in manufacturing is made right here in America. We can get that done.

Industrial policy. Because that always works.

Now, if we want to make the best products, we also have to invest in the best ideas. Every dollar we invested to map the human genome returned $140 to our economy — every dollar.

Yes. I agree. If we’re going to invest in research, it should be in the kind of basic science that benefits everybody. That’s generally the sort of thing where a little government investment can go a long way.

But for the sake of our children and our future, we must do more to combat climate change. Now, it’s true that no single event makes a trend. But the fact is the 12 hottest years on record have all come in the last 15. Heat waves, droughts, wildfires, floods — all are now more frequent and more intense. We can choose to believe that Superstorm Sandy, and the most severe drought in decades, and the worst wildfires some states have ever seen were all just a freak coincidence. Or we can choose to believe in the overwhelming judgment of science — and act before it’s too late.

That’s not quite how the science works. It’s almost impossible to attribute a single weather event — such as a hurricane or a drought — to climate change. Sometimes, the weather just does what it does. It really could just be a freak coincidence. Global warming is proven by statistics, not anecdotes.

I’m also issuing a new goal for America: Let’s cut in half the energy wasted by our homes and businesses over the next 20 years. We’ll work with the states to do it. Those states with the best ideas to create jobs and lower energy bills by constructing more efficient buildings will receive federal support to help make that happen.

Actually, lower energy bills should be their own reward. If that’s not good enough, perhaps it’s time to increase the cost of energy.

So tonight, I propose a “Fix-It-First” program to put people to work as soon as possible on our most urgent repairs, like the nearly 70,000 structurally deficient bridges across the country. And to make sure taxpayers don’t shoulder the whole burden, I’m also proposing a Partnership to Rebuild America that attracts private capital to upgrade what our businesses need most: modern ports to move our goods, modern pipelines to withstand a storm, modern schools worthy of our children. Let’s prove that there’s no better place to do business than here in the United States of America, and let’s start right away. We can get this done.

Hey, giving out public construction contracts! Obama really is from Chicago! I guess sometimes government does work just for the few.

Right now, there’s a bill in this Congress that would give every responsible homeowner in America the chance to save $3,000 a year by refinancing at today’s rates. Democrats and Republicans have supported it before, so what are we waiting for? Take a vote, and send me that bill. Why would we be against that? Why would that be a partisan issue, helping folks refinance? Right now, overlapping regulations keep responsible young families from buying their first home. What’s holding us back? Let’s streamline the process, and help our economy grow.

I wish I knew what he was talking about here. Government promotion of the idea that banks should loan money to everyone who wants a home was a big cause of the mortgage crisis.

And that has to start at the earliest possible age. Study after study shows that the sooner a child begins learning, the better he or she does down the road. But today, fewer than 3 in 10 four year-olds are enrolled in a high-quality preschool program. Most middle-class parents can’t afford a few hundred bucks a week for a private preschool. And for poor kids who need help the most, this lack of access to preschool education can shadow them for the rest of their lives. So tonight, I propose working with states to make high-quality preschool available to every single child in America. That’s something we should be able to do.

Hey, more jobs for teachers! I guess sometimes government does work just for the few. I mean, this may not be a bad idea, but it’s also a handout to Democratic supporters.

So tonight, I ask Congress to change the Higher Education Act so that affordability and value are included in determining which colleges receive certain types of federal aid. And tomorrow, my administration will release a new “College Scorecard” that parents and students can use to compare schools based on a simple criteria — where you can get the most bang for your educational buck.

You could also let the banks take more risk on student loans and restore the right of college students to declare bankruptcy. You’ll get more bang for your bucks when the people providing the bucks have more skin in the game.

Real reform means strong border security, and we can build on the progress my administration has already made — putting more boots on the Southern border than at any time in our history and reducing illegal crossings to their lowest levels in 40 years.

The reduction in immigration is almost certainly because our economy tanked, not because of Obama’s odious border enforcement.

Real reform means establishing a responsible pathway to earned citizenship — a path that includes passing a background check, paying taxes and a meaningful penalty, learning English, and going to the back of the line behind the folks trying to come here legally.

Again, there is no frickin’ line. Not unless you actually start letting them in. Although maybe that’s what he means with this part:

And real reform means fixing the legal immigration system to cut waiting periods and attract the highly-skilled entrepreneurs and engineers that will help create jobs and grow our economy.

…Tonight, let’s declare that in the wealthiest nation on Earth, no one who works full-time should have to live in poverty, and raise the federal minimum wage to $9.00 an hour.We should be able to get that done.

The key phrase being “no one who works.” The general rule of demand is that people buy less of something when its price goes up, so raising the minimum wage should reduce the number of available jobs. As it happens, however, econometrics studies have found little if any effect on jobs from raising the minimum wage (probably because low labor mobility forces workers to take below-market jobs). But if we keep raising it, eventually we’ll get it high enough to start killing jobs. I hope this isn’t the time.

In fact, working folks shouldn’t have to wait year after year for the minimum wage to go up while CEO pay has never been higher.

What, other than class warfare, do those things have to do with each other? CEO’s get lots of money for a variety of reasons, not all of them good, but that’s a problem of corporate governance that has little to do with minimum wage policies.

Tonight, let’s also recognize that there are communities in this country where no matter how hard you work, it is virtually impossible to get ahead. Factory towns decimated from years of plants packing up. Inescapable pockets of poverty, urban and rural, where young adults are still fighting for their first job. America is not a place where the chance of birth or circumstance should decide our destiny. And that’s why we need to build new ladders of opportunity into the middle class for all who are willing to climb them.

Propping up failed cities is not a good policy. Cities with shrinking populations should make adjustments to what they’ve become.

Let’s offer incentives to companies that hire Americans who’ve got what it takes to fill that job opening, but have been out of work so long that no one will give them a chance anymore. Let’s put people back to work rebuilding vacant homes in run-down neighborhoods.

The homes are vacant because people don’t want to live there. Why fight it? Tear down the vacant homes and turn them into parks. Or let neighbors buy them to expand their plots, as larger play areas for children or as small farms for locally-grown food. Or maybe car parks. Really, just do whatever works when population density declines.

And this year, my administration will begin to partner with 20 of the hardest-hit towns in America to get these communities back on their feet. We’ll work with local leaders to target resources at public safety, and education, and housing.

These cities are emptying out. They don’t need housing.

We’ll give new tax credits to businesses that hire and invest.

No. Please don’t. It will just distort business decision making to try to score some tax relief, probably by gaming the system. Also, if you do this, then businesses that did the hard work of hiring and investing last year will then be forced have to compete against businesses that got a government handout this year. That’s not fair.

Now, as we do, we must enlist our values in the fight. That’s why my administration has worked tirelessly to forge a durable legal and policy framework to guide our counterterrorism efforts. Throughout, we have kept Congress fully informed of our efforts. I recognize that in our democracy, no one should just take my word for it that we’re doing things the right way. So in the months ahead, I will continue to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.

Obama has promised transparency before, and he failed to deliver. Heck, he’s actively fought transparency. The only prosecutions of those involved in torture under the Bush administration have been those who blew the whistle on it.

America must also face the rapidly growing threat from cyber-attacks. Now, we know hackers steal people’s identities and infiltrate private emails. We know foreign countries and companies swipe our corporate secrets. Now our enemies are also seeking the ability to sabotage our power grid, our financial institutions, our air traffic control systems. We cannot look back years from now and wonder why we did nothing in the face of real threats to our security and our economy.And that’s why, earlier today, I signed a new executive order that will strengthen our cyber defenses by increasing information sharing, and developing standards to protect our national security, our jobs, and our privacy.

That doesn’t sound good…

But now Congress must act as well, by passing legislation to give our government a greater capacity to secure our networks and deter attacks. This is something we should be able to get done on a bipartisan basis.

He says “secure our networks.” I hear “control our networks.”

Now, even as we protect our people, we should remember that today’s world presents not just dangers, not just threats, it presents opportunities. To boost American exports, support American jobs and level the playing field in the growing markets of Asia, we intend to complete negotiations on a Trans-Pacific Partnership. And tonight, I’m announcing that we will launch talks on a comprehensive Transatlantic Trade and Investment Partnership with the European Union — because trade that is fair and free across the Atlantic supports millions of good-paying American jobs.

Free trade is always good. If that’s what this is (and the whining from the protectionist left suggests it is) then it’s a good thing.

We also know that progress in the most impoverished parts of our world enriches us all — not only because it creates new markets, more stable order in certain regions of the world, but also because it’s the right thing to do. In many places, people live on little more than a dollar a day. So the United States will join with our allies to eradicate such extreme poverty in the next two decades by connecting more people to the global economy; by empowering women; by giving our young and brightest minds new opportunities to serve, and helping communities to feed, and power, and educate themselves; by saving the world’s children from preventable deaths; and by realizing the promise of an AIDS-free generation, which is within our reach.

That all sounds real good. I hope it happens.

In defense of freedom, we’ll remain the anchor of strong alliances from the Americas to Africa; from Europe to Asia. In the Middle East, we will stand with citizens as they demand their universal rights, and support stable transitions to democracy.

More freedom in the world. Sounds great. See if you can send a little of that freedom our way while you’re at it.

Defending our freedom, though, is not just the job of our military alone. We must all do our part to make sure our God-given rights are protected here at home.

Then stop violating our rights. That would be doing your part!

Of course, what I’ve said tonight matters little if we don’t come together to protect our most precious resource: our children.

Protecting the children. That never ends well, legislatively speaking. In this case, it’s gun control:

It has been two months since Newtown. I know this is not the first time this country has debated how to reduce gun violence. But this time is different. Overwhelming majorities of Americans — Americans who believe in the Second Amendment — have come together around common-sense reform, like background checks that will make it harder for criminals to get their hands on a gun. Senators of both parties are working together on tough new laws to prevent anyone from buying guns for resale to criminals. Police chiefs are asking our help to get weapons of war and massive ammunition magazines off our streets, because these police chiefs, they’re tired of seeing their guys and gals being outgunned.

If you want to get “weapons of war…off our streets” then stop giving them to police departments!  These guys and especially these guys are not outgunned. And neither was this guy, or these guys. If you want to get weapons of war off the streets, you go first. Reverse the trend toward increasingly militarized police forces.

But as Americans, we all share the same proud title — we are citizens. It’s a word that doesn’t just describe our nationality or legal status. It describes the way we’re made. It describes what we believe.

It also describes the rights we’re supposed to have and the freedoms that the government is supposed to protect.

It captures the enduring idea that this country only works when we accept certain obligations to one another and to future generations, that our rights are wrapped up in the rights of others; and that well into our third century as a nation, it remains the task of us all, as citizens of these United States, to be the authors of the next great chapter of our American story.

I suppose it does. My chapter would not include the War on Drugs, grabby TSA agents, vast armies of border guards, or cops and other government officials that hate us for our freedoms.