There have been three really good blog posts in recent days, playing off of one another, and emphasizing some points I think are of value in planning strategy for Indiana’s future.

The first was Aaron Renn’s comparison of Gov. Daniels’ economic strategy versus Mike Pence’s. The second was Richard Longworth’s “Debunking St. Mitch.” And the third is Just Harter’s “I was emphatically wrong about my political beliefs.”

My take away, which isn’t really surprising now that they’ve spelled it out, is that racing to the bottom probably isn’t going to work for us. I’m sure there are places willing to go a lot further in that direction than I want to. Cutting fat is fine. Cutting bone is counter-productive. And, if I might mix my metaphors, you don’t want to eat your seed corn. And, again, as Mr. Renn says, you don’t want to live in the cheapest house or the cheapest neighborhood. And, I’m not sure we want the companies that want the cheapest house; at least not if we can figure out a way to attract other types of companies.

As Justin puts it:

[G]iven the obvious reference points we have of spectacular places to live with growth, economic stability, and social mobility like the Netherlands and even Canada and, here in America along the coasts, the trick to making life better is to make your people better and treat them as assets and not operating costs. You race to the top, not the bottom. The bottom is for commodity markets, and I don’t want to be a commodity.

He even has what strikes me as a pretty likely suggestion on what might be driving some of our present decline:

It seems more likely to me at this point that America’s problems are caused by a death spiral of employers withholding exorbitant profits from employees in favor of dubious managers and executives who don’t drive that much value in most places, which reduces consumer spending power around and around.

As Aaron pointed out, Governor Daniels at least had the nominal goal of raising the the net disposable income of individual Hoosiers. Had he succeeded in that, it might have reversed the downward spiral described by Justin. But, he didn’t, and Mike Pence doesn’t even have that as a goal. Pence just wants Hoosiers to have jobs. Working harder without ending up with more money in our pockets isn’t going to fix anything; it’s just going to mean we’re working harder. Work is a proud thing; but it ought to have a purpose.

Today is the 150th Anniversary of the Battle of Antietam. In their effort to split apart the Union to preserve their right to own other people, the rebel forces, fighting in Maryland, killed approximately 2,108 American soldiers and wounded approximately 10,000 more. The rebels themselves had casualties of 10,318 with 1,546 dead.

The battle was a tactical stalemate – in no small part because of Union General McClellan’s extreme cautiousness – but forced the rebels out of Maryland and gave President Lincoln sufficient political cover to issue the Emancipation Proclamation five days later. That Proclamation did not, technically, free very many people because it applied mainly to areas in rebellion and not under the control of the U.S. government. But, as the Union re-gained control of the territory in rebellion, the slaves in those areas were freed. This also had the strategic effect of dissuading France and England from recognizing the Confederates. With the Union having won at least a nominal victory and explicitly tied its efforts to ending slavery, France and England couldn’t support the Confederacy. Far from seeing it as a positive good worth committing treason over – as the officials in the state governments of the South had done – France and England had abolished the practice.

The Confederates were on their own. They were weaker and in the wrong. Eventually, the United States would win and preserve our country.

Nancy A. Youssef and Amina Ismail, writing for McClatchy Newspapers,
have a good play-by-play on how a poorly made, intentionally offensive video clip went from being pimped by its anti-Muslim zealot creator to a reporter to being the ostensible focal point of the latest round of violence and protest in the Middle East. (Our old friend Terry Jones, the grand standing, Koran burning Florida preacher makes an appearance).

Part of the problem seems to be, culturally, a lack of understanding and appreciation for our First Amendment. The Middle East is full of places where government can and does suppress speech it deems troublesome. When the U.S. doesn’t suppress something here, it probably looks to them like an endorsement on some level. In addition, our exposure to so much garbage because of the First Amendment gives us a sort of strengthened immune system we take for granted. Getting violently angry just because someone said something deliberately obnoxious strikes us a bizarre.

The story of that anti-Islam “film” that is the subject of a lot of anger in the Middle East is weird. The purported filmmaker is, at best, a pseudonym. It might just be some poorly spliced clips jammed together to piss people off. It was posted on Youtube and nobody seemed to notice until:

Spreading the word about the film were two men, an Egyptian-born Christian activist in Washington, D.C., named Morris Sadek and his friend Terry Jones, pastor of a church in Florida who made headlines last year when he burned a Quran. Terry Jones says he hasn’t seen the full two-hour film but he liked what he saw in the preview.

Now, it appears, that al Qaeda used protests as a smoke screen for an attack on the Libyan embassy.

For all guys like Jones and organizations like al Qaeda probably actually hate each other, they certainly have common ground. Leaders of Christian and Muslim extremists alike have a joint interest in having their followers angry at one another. It makes the leaders strong.

Seems like the period just before a Presidential election is the most fraught with danger for American foreign policy. There has to be a great temptation among the candidates to make policy statements based on the lowest common denominator of the electorate instead of what might be in the country’s best long-term interests. “Vote for me! I’m manlier! The other guy is a wimp!” Don’t get me wrong; there is a certain amount of that all year, every year. But, just before an election, when so much is at stake and when such declarations might actually motivate enough low-information American voters to make a difference; that’s dangerous timing.

We’ll see how this dynamic plays out with the attack on the Libyan consulate and the saber rattling of Israel toward Iran and attempts to lock the U.S. into Israeli policy decisions.

For only minimally coherent reasons, the dynamic reminds me of the Dropkick Murphys epic tune, “Barroom Hero”:

Face down in the gutter won’t admit defeat though his clothes are soiled and black,
He’s a big, strong man with a childs mind, don’t you take his booze away!

He’s been at it for years drinking balls and beer he’s a hero to most he meets,
But inside he cries black swollen eyes, this man he sheds no tears!

Now his wife and kids sing a different tune as they worry about their daddy dying,
But this arrogant fool breaks every rule it’ll be nothing but pride that kills him.

Could he listen no he won’t that’s all she wrote he’ll be dead before the daylight shines,
But the thoughts and prayers of a million strong might keep this fool from dying.

He’s a legend in the bar with every scar fights a thousand bigger men,
But now he fights and loses got all the bruises will someone please step in?

Cause this Irish fools got a great big heart he keeps climbing back in to the ring
In the low down circles where he holds his court this man he once was king.

I guess it’s the juxtaposition of being stupid, drunk, brave, and a hero to the folks at the bar; meanwhile the family is worried about their daddy dying.

There is a brouhaha afoot in Lafayette with respect to the local Planned Parenthood which apparently dispenses RU-486 pill (Mifepristone). The pill is USFDA approved to terminate pregnancies of up to 49 days gestation. Per Wikipedia:

Mifepristone was approved for abortion in the U.S. by the FDA, in September 2000.[46] It is legal and available in all 50 states, Washington, D.C., Guam and Puerto Rico.[47] It is a prescription drug, but it is not available to the public through pharmacies; its distribution is restricted to specially qualified licensed physicians, sold by Danco Laboratories under the tradename Mifeprex.

I haven’t read a legal brief or anything by Indiana Right to Life which is raising this issue, so I can’t conclude from the J&C story the precise contours of its legal position, if it is taking one, but generally speaking, they complain that Planned Parenthood is providing the pill without being licensed as an abortion facility. IC 16-21-2-2.5 speaks to the State Department of Health’s development of rules for licensure of abortion clinics. However, “abortion clinic” is a term defined by the Indiana Code under IC 16-18-2-1.5:

Abortion clinic
Sec. 1.5. (a) “Abortion clinic”, for purposes of IC 16-21-2, means a freestanding entity that performs surgical abortion procedures.
(b) The term does not include the following:
(1) A hospital that is licensed as a hospital under IC 16-21-2.
(2) An ambulatory outpatient surgical center that is licensed as an ambulatory outpatient surgical center under IC 16-21-2.
(3) A physician’s office as long as the surgical procedures performed at the physician’s office are not primarily surgical abortion procedures.
As added by P.L.96-2005, SEC.2.

Under that definition, a facility would not become an “abortion clinic” by virtue of giving a pill that induces abortion because providing that pill does not constitute a “surgical abortion procedure.”

Indiana Right to Life’s letter to Attorney General Zoeller is here (pdf).

Our request stems from concern that women’s health and safety may be in jeopardy due to the fact that these abortions are occurring in a facility that is not inspected or licensed as other abortion clinics are required to do by law.

So, their concern does appear to be directed at Indiana’s abortion clinic licensure requirements; but, as I say, it looks fairly clear that the definition of “abortion clinic” under the Department of Health licensure provisions concerns itself with facilities that provide surgical abortions.

Charles Wilson, reporting for the AP, has a story about three Indiana Senators looking to press on with a case abandoned by the Indiana Attorney General. (h/t Indiana Law Blog)

Indiana passed immigration legislation that looked a lot like Arizona’s. Recently, the U.S. Supreme Court struck down that legislation as unconstitutional — the state of Arizona was trying to usurp the prerogatives of the federal government. Prior to that decision, the Indiana Attorney General was fighting the good fight – making its pitch for Indiana’s version of the immigration law. But, when the U.S. Supreme Court issued its decision, the writing on the wall was clear, and the Indiana Attorney General declined to keep up a fight that was futile.

Senators Delph, Boots, and Steele apparently want to continue litigating where Attorney General Zoeller has determined further litigation would be wasteful in light of the Supreme Court’s decision. So, they’ve engaged the legal arm of the Federation for American Immigration Reform (FAIR) – a group about which the Southern Poverty Law Center has a dim view. They’re petitioning the court to intervene and try to defend the parts of the law that the attorney general views as indefensible in the wake of the Supreme Court’s ruling.

This reminds me a bit of the tension you always see when criminal defense lawyers represent clients who want them to advance implausible legal theories. These criminal defendants are very imaginative, but their legal theories are fantastic and frivolous. So, they feel slighted when their legal counsel, more grounded in reality, has to admit to the court that they don’t have a case.

It’s Labor Day. And, on this day, it occurs to me that I could use a new job. Not because I’m unhappy with my current job; it’s just that I see a connection between a few of my previous posts that it’d be great to have a couple of months to think about and tie together into a book or something. So, the new job would have to be one that grants sabbaticals right of the gate. Maybe I’d better stick with what I’ve got.

The first post was “Technology and the Future of Work” from last April. The second was just the other day, “Liberty, Laws, and Property.” And, the third, was from last October entitled “Fred Clark: Unemployed in the Affluent Society.”

The problem I see, this Labor Day, is that compared to recent centuries, wealth is fairly abundant, but the amount of labor necessary to create that wealth is very much diminished. And, yet, because of the history of how wealth was traditionally created, we generally tie the legitimacy of one’s claim to property to some sort of labor that goes into creating that wealth. Then, we allow (even encourage) the laborer to contract away much of that claim to an employer – someone with specialized access to tools needed to create wealth (large machines, in many cases) or maybe specialized access to the demand or markets for certain types of labor.

But, now, with the demand for labor at very low levels, the individual has very little leverage when negotiating away their claim to property (e.g. the employment contract). This leverage is further reduced by the fact that the person has certain basic needs – food, shelter, health care, etc; and, by and large, can’t simply walk away from the table in most cases. (If demand for labor is high, then you can simply go on to the next employer; if not, you have to take what you can get.)

Meanwhile, employers (those with specialized access to tools or markets) can accumulate great wealth because they can bundle together the shares of access to property traded away by the laborers (value created by labor but not retained by the laborer) and pocket that value for themselves. They’re able to do this because they are operating in an environment featuring a cocoon of infrastructure and property laws; among other things. Absent this environment, their deals with laborers (and with makers of the specialized tools and with the markets they have specialized access to) would be worth precisely nothing. Without this cocoon, you get Somalia. Which is why, despite Randian fantasies of “going Galt,” the employer class never seems to voluntarily absent itself from “government oppression.” They benefit from the rights decreed in their favor and burdening everyone else as described by Jeremy Bentham:

Rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence. According to the nature of things, the law cannot grant a benefit to any, without, at the same time, imposing a burden on some one else; or, in other words, a right cannot be created in favour of any one, without imposing a corresponding obligation on another. In what manner is a right of property in land conferred on me? By imposing upon every body, except myself the obligation not to touch its produce. Rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence. According to the nature of things, the law cannot grant a benefit to any, without, at the same time, imposing a burden on some one else; or, in other words, a right cannot be created in favour of any one, without imposing a corresponding obligation on another. In what manner is a right of property in land conferred on me? By imposing upon every body, except myself the obligation not to touch its produce.

So, because the people who profit by contracting with laborers are dependent on the cocoon of infrastructure and property laws, laborers acting through their government are not entirely powerless to leverage a new deal. And, because of the disparity of profits made possible by this system, it’s not entirely unjust to use that leverage. I tend to envision such a system featuring secure access to necessities such as food, shelter, and health care; but it should not be so luxurious as to turn our current hyper-abundance of labor into a shortage.

On the other hand, drawing off some of the labor force would, to some extent, be a feature, not a bug. If labor were not quite so abundant, that would increase the negotiating leverage of the remaining laborers. This line of thinking runs deeply, deeply against our Puritan roots. Sloth! Idle hands are the devil’s work shop! Back in the days when those roots were taking hold, the situation was different. As described by Fred Clark, channeling John Galbraith:

Goods were vitally necessary; the loss of available labor to produce those goods was extremely detrimental to society; and, therefore, the penalty – deprivation of all or most of an individual’s income – was appropriate. The penalty was so justified that there was no moral obligation to help someone who wasn’t helping themselves by working.

Those conditions are no longer so operative. Maybe it’s time we consider a new New Deal; even if it makes John Calvin cry.

Tipsy has a really good blog post up over at his site entitled “Inscrutable Justice.” Go read it. It considers our inappropriate tendencies toward private vengeance in the administration of our public criminal justice system and some further thoughts on whether these tendencies are modeled after certain views about how God administers justice. I love the description of the Calvinist view of the Almighty as sort of a thin-skinned medieval lord who is infinitely offended and of John Edward’s “Sinners in the Hands of an Angry God” as a near-slander of God.

More to the point, however, indulging our natural, individual thirst for vengeance is digression from the public goals of the criminal justice system. Maybe a toxic digression. This came up for me in a discussion over at Kole Hard Facts of Life about the seemingly very light sentence of Anders Breivik in Norway. He was sentenced to 21 years for killing 77 people.

Admittedly, the severity of the punishment is not comparable to the severity of the crime. But, then, really nothing the State could do to Breivik could match his crime. However, it’s not the goal of the State to inflict as much pain on the criminal as the criminal inflicted on the victims. Rather, the goals are to keep the public safe, deter future crime, and – in service of those two goals – rehabilitate the criminal, if possible. Now, I know that the desire for vengeance is a motivating emotion in some who create and administer the criminal law as well as many of the citizens who support the criminal law. But, vengeance is an individual feeling; not a desirable attribute of the State.

So, while I would shed no tears if Breivik suffered a freak accident that caused him to die a painful death; I can’t fault Norway for not codifying vengeance. As I understand it, after the 21 years is up, if a determination is made that Breivik is still a threat to public safety, there are mechanisms in place for extending that sentence. I can’t look at Norway and then at the United States; their relative crime rates; and their relative costs of administering criminal justice and conclude that we know better than Norway how to do these things – even if their public system doesn’t happen to scratch my personal itch for retribution.

The law cannot create rights without creating the corresponding obligations. It cannot create rights and obligations without creating offences. It can neither command nor prohibit, without restraining the liberty of individuals.

In his “Principles of the Civil Code,” Jeremy Bentham has some interesting thoughts on the relationship between liberty and property. (h/t Marc) He points out that property laws, like all laws, are infringements of liberty. They are useful infringements, but infringements all the same.

Rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence. According to the nature of things, the law cannot grant a benefit to any, without, at the same time, imposing a burden on some one else; or, in other words, a right cannot be created in favour of any one, without imposing a corresponding obligation on another. In what manner is a right of property in land conferred on me? By imposing upon every body, except myself the obligation not to touch its produce.
. . .
The proposition, although almost self-evident, that every law is contrary to liberty, is not generally recognised: on the contrary, the zealots of liberty, more ardent than enlightened, have made a conscience of combating it. And how have they done it? They have perverted the language, and will not employ this word in its common acceptation. They speak a language that belongs to no one: they say, “Liberty consists in the power of doing every thing which does not hurt another.” But is this the ordinary meaning of this word? The liberty of doing evil, is it not liberty? If it is not liberty, what is it then? and what word should we make use of in speaking of it? Do we not say that liberty should be taken away from fools, and wicked persons, because they abuse it?

Libertarians are perhaps better regarded as propertarians. Bentham suggests that laws should only be enacted where the burdens they impose are outweighed by the benefits they confer.

The legislator ought to confer rights with pleasure, since they are in themselves a benefit; he ought to impose obligations with repugnance, since they are in themselves an evil. In accordance with the principle of utility, he ought never to impose a burden but that he may confer a benefit of a greater value.

The libertarians I have read don’t seem to bother much with this sort of calculus when it comes to property rights. They take it as an article of faith that property rights always outweigh the corresponding restrictions on liberty. This is so, I think, because of the tendency to regard property rights as “natural rights” — something that comes not from the rational acts of humans but from the ether or something. I’ve never heard a convincing explanation of “natural rights” — mainly just hand waving references to a Creator whose mind is apparently known to those who divine the natural rights. Fact is, in the absence of law, there are no rights; just unenforceable opinions about how things ought to be.

But, I think in the coming years as the nature of work evolves, we’ll have to be more aware of the calculus underpinning our assessment of property rights and the corresponding burdens imposed thereby.

I’ll keep thinking about this. I think it plays into all kinds of major concerns: jobs, debt, taxes, the shrinking middle class, etc.

Update Came across a quote from Adam Smith in his “Wealth of Nations” which seemed appropriate to this post:

“Civil government, so far as it is instituted for the security of property, is, in reality, instituted for the defense of the rich against the poor, or of those who have property against those who have none at all.”