Author Archives: Susan Simpson

Does the May Jobs Report Show Unemployment is Down and the Number of Jobs Has Gone Up? Think Again.

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The May Jobs Report was released today, and on the face of it, it indicates that 431,000 new jobs were created last month. Although this number was somewhat of a disappointment, as it did not show as much growth as had been estimated and hoped for, the result of the report was a flurry of media articles trumpeting that “May brings 5th straight month of jobs growth” and “U.S. adds jobs in May”, although, to be fair, the exuberance of these articles was tempered somewhat with somber commentary on the modest increases in private sector employment.

But a closer look at the May jobs report shows a situation deeply more concerning than what the media is describing. (Alas, the stock market isn’t falling for the spin either, it seems.)

Breaking the establishment report down, which is the source of the BLS’s number proclaiming job growth, we see the following:

Total Increase in Jobs: 431,000.
Total Government Job Increase: 390,000
Total Private Sector Increase: 41,000

But wait. We added a total of 411,000 census jobs in May — which means we actually lost 21,000 non-census government jobs. (Which means, not counting census jobs, there was only a net increase of 20,000 jobs total.)

And it gets worse. In the private sector, the largest growth was found in a category called “temporary help services,” with an increase of 31,000 jobs. Perhaps this is merely reflecting a May increase in summer jobs that will be gone again in August, such as camp counselors and resort employees? At any rate, it is not a strong indication of job market stability.

On the other hand, the unemployment rate at least has been reported as being modestly optimistic, falling from 9.9% to 9.7%, as shown in the household survey. It went from 15,260,000 unemployed in April to 14,973,000 in May, for a total swing of -287,000 unemployed persons. That’s good news, right?

Not so fast.

These two statistics — the decrease in unemployment and the increase in jobs — come from entirely different surveys. The figure showing a growth in jobs was taken from the establishment survey, while the May Job Report’s conclusion that there was a decrease in the unemployment rate comes from the household survey.

But while the household survey does show a decrease in unemployment, but it also shows a decrease in total employment as well. In April, the household survey found 139,455,000 employed persons. In May, it found 139,420,000, i.e., it found a decrease in total employment of 35,000 persons. How is it possible for the survey to show both a decrease in jobs and decrease in employment, you might ask? Because it also found a decrease of 322,000 in the overall civilian labor force.

Looks like there’s been some statistical cherry-picking here. Favorable numbers from each survey have been reported, and the unfavorable ignored.

The discrepancy between the two reports can be explained in part because the two use different methods, and count slightly different types of data. For instance, the household survey looks at employed persons, while the establishment survey looks at number of employment positions on the payrolls, so a person with two jobs shows up once on the first survey, but gets counted twice on the latter.

But the discrepancy between the two surveys is better explained by the fact that the alleged “increase” in jobs or “decrease” in unemployment are in fact meaningless, nothing more than statistical phantoms. As the BLS report states,

BLS analyses are generally conducted at the 90-
percent level of confidence.

For example, the confidence interval for the monthly
change in total nonfarm employment from the
establishment survey is on the order of plus or minus
100,000. Suppose the estimate of nonfarm employment
increases by 50,000 from one month to the next. The 90-
percent confidence interval on the monthly change would
range from -50,000 to +150,000 (50,000 +/- 100,000).
These figures do not mean that the sample results are off by
these magnitudes, but rather that there is about a 90-percent
chance that the “true” over-the-month change lies within
this interval. Since this range includes values of less than
zero, we could not say with confidence that nonfarm
employment had, in fact, increased that month.

At an unemployment rate of around 5.5
percent, the 90-percent confidence interval for the monthly
change in unemployment as measured by the household
survey is about +/- 280,000, and for the monthly change in
the unemployment rate it is about +/- 0.19 percentage point.

Full disclosure: I haven’t taken a course that required me to do math since freshman year of college, let alone taken statistics. So I can’t comment too deeply on what’s going on here.

But it looks to me like the May Job Report is largely a wash. Most of the increases or decreases are just a chance fluctuation, not a reflection on any actual underlying change in the data.

The BLS report also states that “An over-the-month employment change of about 100,000 is statistically significant in the establishment survey, while the threshold for a statistically significant change in the household survey is about 400,000.” [Note: I’m assuming by statistically significant they mean the odds of it being meaningless are the usual 1-in-20 figure? Which is why these numbers don’t quite match up with the previous quote, which used a 1-in-10 figure.]

So remember that net change in the employment rate of 287,000? Yep, turns out that doesn’t mean anything. There has been no actual decline in unemployment, as far as is shown by the BLS’s May Jobs Report — and ignoring the minor blip upwards in unemployment rates that happened in April, we’ve had essentially stagnant unemployment rates for all of 2010 so far.

As for the establishment survey, true, the increase in jobs that it found is significant. But remember — 411,000 of the new jobs were from census positions, which will evaporate once the census is over. And that 41,000 uptick in private sector jobs? Illusory. This survey does not demonstrate any net increase in private sector jobs; the most positive thing that can be said about it is at least it doesn’t necessarily mean there’s been any decrease, either.

Moral of the Story: If it were not coincidentally that time of the decade for the census, we would have zero job growth right now. Take out the census, and we only “gained” 20,000 jobs in May — a statistically meaningless number, under either of the BLS’s surveys.

-Susan

Braddock’s Rock: The Key of All Keys, at the Bottom of a Well

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If you head across the entrance ramp to the Roosevelt Memorial Bridge,
going along US 50 across to Virginia, if you look out the driver’s side window you can see an unassuming circular rock structure. It looks like it might just be nothing more than a sewer cover, but the little plaque in front of it suggests otherwise.

For a few years now, I have wondered what the heck this thing is. I thought it might be some sort of historic site, but not one I had ever heard of, and not one I was able to find any information on. But I drive by this area a lot, and pretty much every time it I saw it, it bugged me that I didn’t know what it was.

I did try Googling variations of, “round stone historical marker on US 50 just before Roosevelt Bridge,” but to no avail. A few times, while out playing softball near Lincoln, I have considered slipping away from the game to get a closer look. The rock is in an awkward spot, though, with no foot paths and a busy road with no crosswalks in the way, and I never got around to it.

Braddock's Rock, as seen from Google Maps

I was wondering about the rock again today, for no particular reason, and thought I would try to look it up on Google Earth. I hit pay dirt. Someone had taken a photo of the monument, labeled it, and linked it up to the spot on Google Earth where its located. Turns out, this is the marker for Braddock’s Rock, a memorial that pre-dates even the existence of the United States. An excellent compilation on the history of Braddock’s Rock can be found here, in the 1899 edition of The American Monthly Magazine.

Braddock’s Rock got its name in commemoration of the landing of General Edward Braddock, at the beginning of his march to Fort Duquesne in 1755. [Spoiler Alert: It didn’t go well for him.] According to legend, anyway, the fleet carrying Braddock’s army — which included a young soldier named George Washington — tied up on the rock when it set up camp alongside the shore of the Potomac, while on its way to the Battle of the Monongahela.

No, Braddock’s boat was not tied up to the round stone outcropping depicted here. Rather, Braddock’s Rock is located some 16 feet below, down at the bottom of the well and usually under a few inches of water. In 1755, however, this now submerged rock was in fact a notable outcropping, and “[t]he water, at the time of Braddock’s ill-fated expedition, was so deep that his vessels landed the troops at what was known as the ‘Big Rock,’ at the foot of ‘Observatory Hill.” As one account of Braddock’s Rock has it,

Alexandria, then a colonial village, eight miles down the Virginia side of the Potomac, was the recruiting point of Braddock’s Army… [As the fleet headed up the river,] Braddock himself, with his own personal retinue, got separated from the remainder of his party and landed on this side of the river opposite Analostan Island [note: now known as Theodore Roosevelt Island], at what is now the foot of Twenty-fourth Street, Northwest, then a stretch of woods. Braddock’s vessel was drawn close up to shore and moored to a big boulder protruding from the bank[.]

And another account:

Braddock’s Rock is upon the site occupied by the British and provincial troops in April, 1755. The British troops landed here from their transports, the ‘Sea Horse’ and the ‘Nightingale,’ and here pitched their tents on April 14, 1755. It is a matter of tradition that Washington, then an officer of Virginia colonial troops, and later aide-de-camp to Braddock, was camped also on this very hill, and was so impressed with the beauty of the site and of the surrounding country that he was subsequently led to choose it for the location of the National Capital. This is the very spot which he, in 1796, designated as the location for the University of the United States.

Braddock’s rock has been known by this name ever since the time of Braddock’s departure, and is still so known by old inhabitants of the vicinity, among whom are several who remember when it was touched by the waters of the Potomac, since diverted farther southward[.]

Although there is some debate about how much truth there is to the legends of Braddock’s mooring, the rock predates the failed Braddock Expedition, and has been mentioned in historical writings from as early as 1632. Early accounts of the area described it “as a large rock lying at and in the river Potomack,” and it was commonly labeled on maps as the “Key of All Keys.” The promontory was also used as a starting point for surveys establishing property lines for early settlers along that stretch of the Potomac.

The construction of Washington, D.C. marked the beginning of the end of Braddock’s Rock. The stone outcropping was a convenient source of rock for building the Capital, and in the early 1800’s it was blasted away:

It is said to have furnished stone for the foundations of both the White House and the Capitol. Later, stone from Braddock’s Rock was used in the construction of the Chesapeake and Ohio Canal. About 1832, when the canal was extended below Georgetown to connect with the Washington City Canal, nearly all that was left of the original outcrop of Braddock’s Rock was blasted away. The riverside swamps have long since been filled and the land raised above the level of the original surface. All that remains of Braddock’s Rock can still be seen enclosed in a circular granite-lined well south of the grounds of the old Naval Hospital, amidst the approach ramps to the Theodore Roosevelt Bridge.

What little remained of Braddock’s Rock was left standing when the Roosevelt Bridge was constructed. Although very few people will ever see it, a marker now sits next to it, giving a brief account of submerged rock’s historical significance:

The Memorial Plaque at Braddock's Rock

The Braddock’s Rock plaque is wrong, though. Braddock’s expedition wasn’t ambushed, they just got the snot kicked out of them. Braddock died four days after the battle, and only 456 of the British troops were killed. (Also, I know I’m being nitpicky, but saying “his men” were killed is also misleading. About 50 women marched with the expedition, too, and over 90% of them did not make it back alive.)

-Susan

North Korea Officially World’s Worst Place To Watch the World Cup

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Things are not looking good for North Korea’s football fans.

After qualifying for the World Cup for the second time ever, and for the first time since 1966, the North Korean squad’s prospects took a nose dive when the draw for the tournament put it in the same group as Brazil, Cote d’Ivore, and Portugal — a.k.a. the Group of Death.

And now North Korea might not even be able to watch the World Cup, as South Korea is threatening not to broadcast the games to the North:

As part of a policy to improve ties with Pyongyang, [in 2006] the South Korean government picked up the bill for national broadcasters to relay live transmissions of the matches into the North.

Since then, North Korea has conducted two nuclear weapons tests and shot a South Korean tourist in the back. Many here also suspect the North may have attacked a South Korean warship, the Cheonan, killing 46 sailors.

Now that South Korea has concluded that North Korea is responsible for the attack on the Cheonan, North Korea’s access to World Cup broadcasts is likely in even greater jeopardy. The Cheonan, a South Korean warship, sank on March 26, with the loss of 46 lives. Serial numbers on the torpedoes that were recovered from the wreckage of the ship have since been identified as originating from North Korea.

Even had North Korea managed to refrain from attacking its only source of World Cup coverage, however, it was already unlikely that the average North Korean citizen would have the opportunity to watch any of the matches. Kim Jong-il has already declared that games will not be shown live, and only footage from games which North Korea wins will be shown at all.

As it turns outs, this means that whether or not South Korea is willing to broadcast the World Cup to North Korea is probably a moot issue. The North Korean team — nicknamed the Chollima, after Korea’s version of the Pegasus — is something of an underdog, facing (rather generous) odds of 350-to-1 against them winning the tournament. North Korea’s placement in the Group of Death, which means they will face Brazil (ranked #1), Portugal (#3), and Cote d’Ivore (#27) in the opening rounds, makes it extremely unlikely that they will win even a single game.

North Korean citizens hoping to catch the World Cup won’t have the option of seeing it in person, either, thanks to North Korea’s policies regarding border security. It would not look good for North Korea, however, if it no fans showed up at its games. This presents Kim Jong-il with something of a problem: how can North Korea make sure it has supporters in the bleachers when the team heads down to South Africa?

Answer: Buy them.

Few North Koreans will be able to cheer their team at the World Cup in South Africa. So the country is recruiting 1,000 Chinese fans.

The Beijing office of the North Korean Sports Committee is giving out tickets to the tournament, China’s state-run Xinhua News Agency reported.

The Chinese fans will attend North Korea’s games against Brazil and Portugal, Xinhua said.

Rather than watching the World Cup, North Koreans hoping to watch some soccer this summer may have to settle for Centre Forward instead. You can watch the the trailer for the movie on YouTube here, and see why critics have declared Centre Forward to be “the best North Korean football-themed movie of all time.”

-Susan

Arizona’s Ban on Ethnic Studies Doesn’t Actually Ban Anything

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When I first heard talk about Arizona’s HB 2281 — a.k.a. the anti-ethnic studies bill — I couldn’t decide if the law banned a majority of all social science classes, or if it banned nothing at all.

After getting a chance to read the bill’s text, however, I think it’s clear that the answer is almost certainly the latter. The law is too vaguely written for it to be anything other than a disorganized attempt at populist rabble-rousing, resulting in a bill that lacks any teeth and has no actual legal effect.

But saying that the bill has no real effect is not the same as saying that the bill is harmless. Chicken Little laws are not something to be encouraged, particularly where they invoke racial bogeymans that do not exist outside of legislature’s minds.

Look, no one involved in passing HB 2281 is making a secret of what this bill is really trying to prohibit: a hypothetical high school class intended for Hispanic students which tells them to blame their problems on the people whom are euphemistically referred to today as “Real Americans.” That such a class does not actually exist is, apparently, an unimportant consideration.

Tom Horne, the bill’s champion, is quite open about the fact that he is specifically attacking Latino studies courses. Although the Tuscon school district also offers courses in African-American studies, Native American studies and Pan-Asian studies, Horne claims he is not (yet) trying to get rid of those — Horne says that he’s studying those classes now to see whether they can stay, but that he “felt he [already] knew enough about Mexican-American studies” courses to advocate for their elimination. (As an Agnes Scott grad, I suppose I’ll just be grateful he hasn’t yet decided to target women’s studies.)

Some people have argued there is an inequity in the fact that Arizona offers all these ethnic studies courses, and yet doesn’t offer “European-American studies.” The reason that class doesn’t exist, of course, isn’t because of some anti-European-American sentiment, but because in the context of American school curriculums today, a European-American course simply wouldn’t have any academic value; a majority of humanities courses are already approached from a predominantly European-American perspective, so there is nothing new to be gained from magnifying that focus even more.

On the other hand, there are plenty of universities overseas that offer American studies classes, a course offering that is completely appropriate given that “American culture” is not the predominant theme of the rest of those universities’ curriculums. I’m sure Tom Horne or other supporters of the Arizona bill don’t find it objectionable that foreign schools offer courses in American studies, so why is it objectionable to offer studies of foreign cultures here in States?

The ethnic studies courses in Arizona come in a variety of forms — there are offerings in history, sociology, and literature. As with all humanities or arts courses, these classes have selected a particular narrow segment of human civilization for special scrutiny. The usual theme in ethnic studies courses is a focus on a given subset of the population with common traits and historical backgrounds, be it a race, a nationality, or a culture. The courses then pick out relevant people, events, or books related to that category, which the students are then expected to learn about, discuss, and then do typical high school class tasks such as “analyze the unifying themes” or “identify similarities between the authors.” It’s not exactly rocket science, no, but it is a useful academic enterprise.

Selecting “Latin American literature” as the lens through which the art of writing will be examined is no more or less legitimate than selecting “modern literature” or “Middle English literature” or “Shakespeare.” Selecting “African-American history” as the lens through which some segment of American history is to be examined is no more or less legitimate than selecting “history of American cuisine” or “history of the women’s movement” or “history of the Oregon Trail.” Ethnic studies classes simply are not different from other humanities courses in any manner which could create a legitimate government interest in banning them without banning all other humanities courses to boot.

Luckily, however, the Arizona bill doesn’t actually ban anything at all. Ethnic studies courses are not in jeopardy in Arizona, or at least they aren’t threatened by HB 2281.

Let’s take a look at the text. The law states in its Declaration of Policy that:

The legislature finds and declares that public school pupils should be taught to treat and value each other as individuals and not be taught to resent or hate other races or classes of people.

Ignoring the gratuitous use of political buzzwords, this isn’t too objectionable. Valuing individuals is good. Hatred is bad. Courses that teach the opposite don’t actually exist, but sure, why not, let’s prohibit them, just for funsies.

After the O&P, we get to the actual prohibitions of the bill:

A. A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:

1. Promote the overthrow of the United States government;

Again, there is nothing particularly objectionable about this law, save for the fact it is tilting at windmills. Advocating the overthrow of the government already puts you on rather shaky First Amendment grounds, not to mention that First Amendment rights in public schools already can be restricted based upon legitimate pedagogical concerns — and those who fund public school systems can legitimately object to teaching that they should be overthrown by coup — so I can’t say I really disagree with this clause. But it doesn’t actually do anything, because no course in Arizona, or in all of the U.S., actually promotes such a thing.

Just to be sure, however, I did go look for evidence of a case where a public school was advocating for the overthrow of the U.S. government. The closest I could find on all the interwebs was this video here. This video features a dude who is a teacher who is speaking on some steps somewhere, and he apparently has a crush on Che Guevara. However, he is speaking at night, so he is obviously not teaching public school course of any sort. Whether or not you believe that people who share the dude’s views on Che Guevara should be allowed to be public school teachers, this law would do nothing to address the issue either way.

2. Promote resentment toward a race or class of people;

I would love to see a court try to handle this section of the ethnic studies bill. How on earth do you ban middle and high school courses that “promote resentment?” That’s what middle schoolers and high schoolers do. They are essentially jackals that have acquired the rudimentary elements of speech; they spend their days resenting stuff and hating stuff, no matter what courses they are in. Gym makes them resent gym teachers and peers that are more athletic than they are. Calculus makes them resent Newton. English lit makes them resent the fact that Chaucer couldn’t just speak normal English like everyone else does. It can’t be helped.

On a more serious note: how do you teach WWII without teaching students to resent or hate those who carried out the Holocaust? How do you teach the Civil War without promoting “resentment or hate” for the ideology that believed one human could own another? How do you teach about the suffrage movement without promoting “resentment” for those who believed two X chromosomes made you unqualified to vote?

Unless Tom Horne has the balls to come out and actually re-phrase the law so that it specifically prohibits teaching student about anything bad that any white Europeans or Americans may have ever done to any Native American or Latin American, the Arizona statute is meaningless. This legislation cannot actually address the “problems” its framers are claiming its supposed to fix, or at least the bill cannot do so without simultaneously prohibiting the teaching of most of global history.

3. Are designed primarily for pupils of a particular ethnic group.

The Federal Constitution already prohibits any real problem that this portion of the law is aimed at, so it’s more or less redundant. Once again, I don’t agree that the problem is real, but to whatever extent this is an actual issue, I’m fine with the Arizona legislature prohibiting it. The greatest value to be had from any ethnic studies course is the same as it for any other humanities course — that is, exposing students to ideas and knowledge they had not encountered to before. An ethnic studies course designed only for students already of that ethnicity is needlessly crippling itself.

4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.

This portion of the law would target subjects its framers never intended to. Any sort of pro-America message could conceivably be prohibited — because, after all, nationalism does not advocate the individualism of every special snowflake, but advocates a unity based upon shared passports.

Not to mention, teaching “Asian studies” does not advocate “Asian solidarity” any more than “Philosophy of the Enlightenment” might advocate “Rationalist solidarity.”

But all of the above aside, any potential bite that the prohibitions in the Arizona law may have had is completely eviscerated by parts E & F of the bill:

e. This section shall not be construed to restrict or prohibit:

1. Courses or classes for Native American pupils that are required to comply with federal law.
2. The grouping of pupils according to academic performance, including capability in the English language, that may result in a disparate impact by ethnicity.
3. Courses or classes that include the history of any ethnic group and that are open to all students, unless the course or class violates subsection a.
4. Courses or classes that include the discussion of controversial aspects of history.

f. Nothing in this section shall be construed to restrict or prohibit the instruction of the Holocaust, any other instance of genocide, or the historical oppression of a particular group of people based on ethnicity, race, or class.

Pay special attention to e(4) and f. Because e(4) does not contain the “unless the course or class violates subsection a” language which is specifically enumerated in e(3), it very likely that e(4) would be interpreted to offer a blanket exemption for courses which include controversial aspects of history. As if that wasn’t clear enough, section f goes on to explicitly exempt from the prohibition the study of the Holocaust or any other oppression of a particular class of people. That pretty much gives a pass to every ethnic studies course in Arizona that doesn’t happen to be calling for a revolution. Which is, well, all of them.

-Susan

One Latin Cross in the Desert, Protected by the Extraordinary Efforts of Congress

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Salazar v. Buono [PDF] has been released — and the Sunrise Cross gets to stay.

A Kennedy-Alito-Roberts plurality found that the lower courts were in error when they found that the Government’s transfer of the land to a private party was not permissible. I’ve only been able to read over the plurality and concurrences, and Breyers’ dissent, but here’s my initial take on it.

Kennedy, writing for the three, is almost convincing. I’m not even sure I disagree with the legal analysis. But the factual findings that form the underpinnings of Kennedy’s argument — that no act of religious endorsement has occurred here — are not credible. Kennedy spends a great deal of ink arguing that legislation passed by Congress to protect an unconstitutional establishment of the Christian religion was not in fact religiously motivated. Instead, he insists, this was all a secular misunderstanding — Christianity is not even implicated here, it’s just a war monument! The message conveyed by the cross, and Congress’ decision to save the cross, “assessed in the context of all relevant factors,” signifies only respect for veterans, not respect for Christian sentiment. “One Latin cross in the desert,” Kennedy concludes, “evokes far more than religion.”

I’m not buying it.

Anyone who believes that that the extraordinary lengths undertaken by Congress to preserve the Sunrise Cross were motivated by anything other than a desire to protect Christian symbolism is being deliberately myopic. Would Congress have ever gone to similar lengths to protect a Wiccan alter on Federal land? No. Never. And if anyone else out there thinks otherwise, well, I’ve got some CDOs backed by subprime mortgages I’d like to sell you.

But, to be fair to Kennedy, it’s true that Congress’ decision to transfer the cross to private land, taken by itself out of context, does not pose much of a threat to the Firth Amendment. But it is less the transfer itself, and more the institutional bias towards the protection of Christianity, that is the true problem here. That is where the government endorsement of religion comes from; that is what the harm under the Establishment Clause lies. As a legal matter, I have a hard time finding too much fault with Kennedy’s opinion — but I also believe there is a violation of the spirit of the Constitution here, even if not the letter. The single disputed act at issue in Buono might not mean much, but set into the cultural and institutional history of the United States, it is part of a widespread pattern and practice of religious establishment. Although Kennedy’s opinion focuses extensively on taking the Sunrise Cross “in context” of the surrounding circumstances to find that it is not really a religious symbol, Kennedy completely ignores that taking Congress’ efforts to preserve a cross “in context” with Congress’ wider history of religious protection shows a government whose religious preferences are at the heart of its decision.

The abstract and non-concrete nature of the harm caused by the cross under the Establishment Clause, Chief Justice Roberts, in his one page concurrence. Roberts thinks that there is no dispute here that is worth the Court’s consideration, as it is all a dispute over symbolism and vague feelings of hurt, and not a dispute over any concrete, non-symbolic injury. As the Constitution “deals with substance, not shadows,” there is no First Amendment problem to speak of. And to a certain extent, I actually agree with Roberts’; the shadow-problems in Buono are not so much about a specific substantial and obviously unconstitutional violation of the First Amendment, but rather about pervasive governmental effort to protect shadows of Christianity over the shadows of all other religious beliefs.

Alito’s opinion irks me the most. It is full of sentimental claptrap and light on legal reasoning. He uses heartwarming anecdotes to suggest that, because America is so wonderful and tolerant of diverse religious practices, there is no harm in giving the Government a little slack when it comes to showing a tiny bit of bias for Christianity. To do otherwise, he argues, would be “interpreted by some as an attesting symbol of a Government that is not neutral but hostile on matters of religion.”

No, Justice Alito. It would have been interpreted by the voters of many Congressional districts to show a government hostile not to religion in general, but a government hostile to Christianity in particular. And hostility to Christianity is not an electorally popular platform.

The First Amendment, however, does not permit the Government to engage in protection of religious symbolism that happens to be favorable to a Representative’s chances of reelection, while simultaneously declining to protect those religious symbols for which protection would be politically harmful or neutral.

But Alito seems to think the fact that protecting crosses is so popular means it cannot be religious favoritism. “It is noteworthy,” he writes, “that Congress, in which our country’s religious diversity is well represented, passed this law by overwhelming majorities: 95-0 in the Senate and 407-15 in the House.”

The whole point about having a Constitution, though, is that the popularity of a given legislative act is entirely divorced from whether or not it is constitutionally permissible. Not to mention, the idea that “religious diversity is well represented in Congress” is so laughable, I won’t even bother to debunk it here; there are plenty of other sites that have already taken care of that.

In the end, it is the concurrence of the Scaliomas that comes closest to winning me over. While regretfully noting it would be a shame for the litigants to come all this way only for the Court to be unable to hear the dispute on the merits, their opinion would resolve the case on standing grounds alone. The harm to the plaintiff, they argue, is the presence of the cross on Federal land. The cross is no longer on Federal land. Ergo, no Article III case or controversy and no Supreme Court jurisdiction.

Scalia argues that the real harm being argued in this case, the harm that the parties and the other Justices are focusing on, is the harm in having Congress selectively protect Christianity. However, Scalia points out, that harm is not the harm the original injunction addressed, and the injunction cannot expand. Because Buono initially claimed injury as a result of the cross’s presence on federal land, he cannot now argue before the Supreme Court that he is injured instead by Congress’ religious favoritism in passing the Sunrise Cross act.

But in counterpoint to that argument, Breyers, too, limits his analysis to whether or not the injunction had been properly interpreted by the District Court. Unlike the Scaliomas, however, Breyers finds that the District Court was well within its rights to find that the Government’s actions violated the injunction that had been in place. Although I’d want to spend more time with it to make up my mind, right now I am definitely leaning towards Breyers on this one. True, my knowledge of injunction jurisprudence is pretty limited, so this based mostly on the premise that “parties should not be allowed to engage in creative subterfuge and sketchy dealings to avoid injunctions.” But as made-up legal doctrines go, that’s a pretty sound one to follow.

-Susan

First President Steals Copy of Vattel’s Law of Nations, Uses It To Break Treaty With France

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On Oct. 5, 1789, President Washington checked out Vattel’s Law of Nations from the Manhattan library, and failed to return it. He has now wracked up a $300K late fee on that and another volume, although the odds of collecting on the debt are, as the library acknowledges, remote.

I’m not so disappointed in GW’s failure to return the book as I am in the fact he had to borrow a copy of Law of Nations at all. Surely the man should have possessed his own copy of the book. After all, Vattel was a significant influence on the U.S. Constitution — but then again, maybe GW only got around to reading it until after the Constitution had been finished up, and suddenly George found himself in charge of faithfully executing what was in it.

Even before George Washington was president, however, he would have dealt with people quoting Vattel at him. John Jay, the future first Chief Justice, wrote to GW, who was presiding over the Constitutional Convention, and made a recommendation to him regarding the requirements of holding office under the new Constitution. Jay’s letter borrows the phrasing of “natural born citizen” from Vattel’s Law of Nations:

“Permit me to hint, whether it would be wise and reasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.”

Still, perhaps George Washington made good use of his stolen copy of the Law of Nations. Less than four years after he checked it out, in 1793, Vattel played an important role in an early United States’ foreign affairs crisis, when the actions of the French ambassador, Edmond-Charles Genêt, threaten America’s neutrality to European conflicts. Hamilton and Jefferson wrote to Genêt, in which they defended the right of the United States to suspend the treaties in place between itself and France. Vattel, they conceded, had written that there was a “fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness.” However, Hamilton argued that, although France may have had a right to changes its government, France did not have any right to force the United States to become involved in that civil conflict. If international law allowed for such a situation, “[t]his would be to give to a nation or society, not only a power over its own happiness, but a power over the happiness of other Nations or Societies. It would be to extend the operations of the maxim, much beyond the reason of it—which is simply, that every Nation ought to have a right to provide for its own happiness.”

This was (and is) a pretty subtle question of international law, really. In the case of a nation torn by civil war, to which faction is a duty arising to that country under international law owed? To the established government? To the belligerents? At what point do the belligerents become the establishment, and are therefore the inheritors of the rights and duties under treaties incurred by previous administrations?

Young America, following a policy of neutrality set by President Washington, simply did not want to become involved. Ambassador Genêt was less than impressed with the Washington Administration’s reliance on the subtleties of international law, however. He wrote back, angrily, accusing the federal government of “bring[ing] forward aphorisms of Vattel, to justify or excuse infractions committed on positive treaties.”

This all sounds pretty familiar, really. For as long as the U.S. has been a nation, it has been using complicated interpretations of international law in order to avoid duties incurred under treaties. And for all the haters out there who think America shouldn’t bother itself with international law, I say that if it was good enough for George Washington to steal, it’s good enough for us to pay attention to today.

-Susan

Gay Rights Are Human Rights

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Earlier this week, President Obama issued a memorandum on “Respecting the Rights of Hospital Patients to Receive Visitors and to Designate Surrogate Decision Makers for Medical Emergencies.” The memo requires all hospitals that participate in Medicaid and Medicare to (1) Allow patients to designate who is able to visit them, and (2) Follow the advance medical directives of their patients, such as durable powers of attorney and health care proxies.

Yesterday, a Circuit Court Judge in Arkansas issued an order striking down an Arkansas law that prohibits any unmarried person who has a non-platonic relationship with someone they live with from either adopting or fostering a child.

These two decisions are being trumpeted as victories for gay rights, as they should be. But the gay rights promoted by these decisions are only a component of the much broader category of human rights that are being recognized here — the associational rights of all persons. In other words, the decisions recognize peoples’ right to establish interpersonal relationships in the manner that best serves their individual needs, and not in the manner dictated by social tradition. In a free society, we should be free to choose which relationships we want to have with which people, and the degree of importance to be attributed to each of those relationships. The government has no business in deciding on everyone’s behalf which sorts of relationships “count” — i.e., only those between kin and those between opposite sex spouses.

The Executive Memorandum issued by Obama was a no-brainer that should have been done decades ago. Hospitals do not operate on the free market — people just don’t get to pick and choose hospitals based upon the associational rights they recognize. In the case of sudden injury, people can be transported to a hospital not of their choice. Or, in the case of rare conditions that require a specialist facility only found in a handful of hospitals across the country, a patient will have no effective ability to choose a hospital based on whether or not they will allow a partner to visit.

In a case like that, I have no problem with the government ordering hospitals to respect patient’s wishes. Hospitals that mandate only kin are allowed to visit are substituting a patient’s actual preferences (or even contractual specifications!) with an idealized, moralistic vision of who a patient should prefer to visit them.

The issues raised by the Arkansas Act — which is “An Act Providing That An Individual Who is Cohabitating Outside of a Valid Marriage May Not Adopt or Be a Foster Parent of a Child Less than Eighteen Years Old” — are not quite so cut and dry. Although the state has no legitimate interest in dictating people’s personal relationships, the state very much does have a legitimate interest in protecting the best interests of the children placed in its care. The trick, then, is to prevent the government from using its interest in children’s welfare as a means of infringing upon rights they have no business messing with.

In Cole v. Department of Human Services, the judge decided that the U.S. Constitution was not implicated, but that the statute violated the Arkansas state constitution’s protection of privacy rights.

Under the U.S. Constitution, the right to adopt or foster a child is not fundamental, and that cohabitating people are not a not a suspect class. Therefore, rational basis review was to be applied. Therefore, the Arkansas Act could only be examined under rational basis review, which means the ban on adoption by a cohabitating person is constitutional so long as it is ‘rationally related to a legitimate government purpose.’ This is a very easy test to pass — under rational basis review, even if it’s very obvious that the legislature was talking out of it’s ass when it made up a piece of legislation, so long as a judge can squint at it and conceive of some sort of logical purpose that the legislature could have had, the statute will be allowed.

The state’s theory was that “cohabitating environments, on average, facilitate poorer child performance outcomes and expose children to higher risks of abuse.” Although this is an overbroad and less than scientific assumption, under a rational basis review, it’s sufficient. I’m a little skeptical, however, of the judge’s blithe assumption that rational basis review applies here.

First, the idea that no “fundamental right” is at stake doesn’t square with the judge’s analysis under the Arkansas constitution. The Arkansas Adoption Act was invalidated for violating the “fundamental privacy right to private, consensual, non-commercial sexual activity” under Arkansas’ constitution. This sounds awfully similar to the same fundamental privacy right protected by the Federal Constitution that the Supreme Court has recognized in sodomy and contraception cases.

Second, I’m not completely buying the idea that “cohabitating couples” are not a suspect class. Under the Equal Protection clause, federal laws addressing “illegitimates” are reviewed under an intermediate level of scrutiny. I wonder if perhaps this precedent could be turned around and used to advance the argument that the parents of out of wedlock kids are themselves semi-suspect class. After all, at its heart, the court’s illegitimacy jurisprudence truly is truly one about associational rights — i.e., whether or not the government can decide, ex ante, for all people, that relationships with out of wedlock children are not as significant as relationships with children from wedlock.

So given all that, I’m not really convinced that the judge had to decide this case based upon the Arkansas Constitution and not the U.S. Constitution. Then again, this would be a pretty effective way of possibly insulating the case from review by SCOTUS…

Constitutional law aside, the Judge’s invalidation of the Arkansas Adoption Act was not specifically about gay rights, but about the private association rights of all persons. For instance, in the following scenario, a straight person is just as adversely effected by the law: Say that both of a child’s parents die. The child’s aunt then wants to adopt her niece or nephew, but she is living with her long term boyfriend, whom she has been a stable relationship with for ten years. Under the Arkansas Adoption Act, she is prohibited from doing so.

It is not the state’s place to mandate the interpersonal relationships people must have in order to enjoy equal protection under the law. Gay or straight, the government has no legitimate interest in who we decide to invite to our holiday dinners or who we choose to make a home with. Although I’m happy to see ever greater protections afforded to gay Americans, that is only the beginning, not the end, of the fight against governmental coercion in peoples’ personal relationships.

-Susan

How Free Were American Women in the Gilded [C]age?

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Bryan Caplan apparently missed the memo that nostalgia for the 18th and 19th centuries is, at best, an emotional appeal that connects with only a very narrow segment of the population. He’s taken it to a new low, however, by defending tooth and nail his theory that women possessed more freedom in 1880 than they do today, in 2010.

I was very relieved to see, however, that Caplan’s dive into the deep end of the libertarian crazy pool was a solo performance. Most libertarian-esque bloggers — in fact all the ones I’ve seen so far — have strongly pointed out that the idea women in the 1880’s lived in a libertarian utopia is nonsensical, ahistorical, and a really horrible argument for libertarianism. Because if libertarianism truly believes that women would be better off if they traded in the freedoms they enjoy now in favor of the “freedoms” they enjoyed in 1880, then libertarianism is too gruesome of an ideology to ever be worth defending.

I was struck by how deeply paternalistic Caplan’s argument was, and how much it echoes the same arguments that have been made against women’s rights for centuries. For instance, Caplan believes that the fact women were denied the vote is not indicative that women were any less free then they are today:

Yet the fact that women were unable to vote in defense of their “basic liberty rights” doesn’t show that American political system denied them these rights.

This is the same argument that was made against women’s suffrage for much of history. Why should women possibly need the right to vote? Their interests were adequately represented in politics already — after all, women have husbands and fathers looking out for their best interests, and to vote on their behalf. Their husbands and fathers love them, so of course they would not vote for politicians or legislation contrary to women’s interests.

Under Caplan’s theory, life in the gilded cage was a life of liberty — after all, so long as you don’t mind giving up your autonomy, and you are willing to accept legal and social restrictions that drastically narrowed the choices available to you, life in the 1880’s wasn’t so bad, now was it?

Sure, in 1880, personal opportunities were severely restricted — but that’s not a problem, says Caplan, because only a portion of it was directly mandated by legislation. And moreover, the tax rate was hardly objectionable at all — there wasn’t even a 16th Amendment. It’s utopia!

Of course, if I’m living in the 1880s, whether or not there is an income tax probably isn’t my foremost concern, as the odds are overwhelming that I won’t be working for pay, anyway. If I am, it will probably only be for a few years out of my life. In 1890, only 18 percent of women worked for pay. [PDF] So while there may not be a federal income tax, it’s not really that material to me, as I probably don’t have an income in the first place. And, once I get married, my odds of working go down to a meager 4.6%. Not to mention, once I’m married (and the odds are overwhelming that I will be), I also give up my right to own property, enter contracts, possess an independent legal existence, or not be raped by my spouse. Married or unmarried, I still can’t vote, can’t hold office, and I am forbidden from working in most occupations (and essentially all high paying ones). Technically, there’s still a chance I could’ve been a lawyer — thanks to good old Belva Ann Lockwood (GW Law Alum, ’73), one year previously, in 1879, I would have been allowed to practice in federal court. But given that there are about three female lawyers in all of America at this time, it’s a safe bet I won’t be one of them.

More likely, I would have been earning poverty-level wages as a seamstress, working 12 hour days — or more likely still, working in someone else’s house. In 1870, of the women who did work, 60% of the non-farm laborers were household servants. Although generally unmarried and not living with their families, they lived with their employer, and they did not have autonomous existences — being a household servant was deemed a way to provide a semi-respectable means for a woman to work, and yet still provide them with extensive supervision. I could possibly have been a nurse or teacher — in terms of “careers,” that was pretty much the extent of it — but even in 1890, only 2,500 women in all of the United States earned a bachelors degree.

So to recap, in the 1880s, the odds are better than 4 to 1 that I don’t work. If I do work, I have very few career options available to me, and the ones that I do have pay 1/3 to 1/5 of what men are paid for comparable work. I am probably working 12 hour days, and likely have to live with my employer. If I get married in a state with coverture, my effective tax rate becomes 100%, as I cannot own property, and any money I earn belongs to a male caretaker — a husband, or if I am younger, a father — who is in charge of my financial and legal affairs. On the up side, he probably does have my well-being in interest at heart. On the down side, he holds the absolute power to define what exactly my “well-being” is. If I disagree with his assessment of what is best for me, I have few legal options available to contradict it, and even fewer social options. Oh, and did I mention I don’t even have the right to vote?

Now, let’s fast forward to 2010. Suddenly, I possess the full set of legal rights that U.S. citizens currently enjoy. It’s not perfect, but the basics are mostly there. Oh, yeah, and women can vote, too. The income tax rate is high, that’s no fun, but on the other hand, I can actually make an income now, in just about any profession I want. Okay, true, I can’t make an income selling recreational drugs. But I can be a doctor, or an engineer, or a politician. And, sure, there are lots of petty and ill-considered economic regulations that interfere with any business plans I may have… But owning a business encumbered by federal legislation is still a lot better than not being able to own a business at all.

There shouldn’t be a question here about which is the better option. No rational actor would voluntarily choose the freedom available to women in 1880 over the freedom available to women in 2010. And for the majority of people, 2010 is still the far preferable choice, whether the average tax rate is 30% or 50% — or even higher still.

-Susan

Economics + History = … Science? A Brief Introduction to Cliometrics

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I’m not sure if it says more about my lack of education or about cliometrics’ obscurity, but I first heard about the field of cliometrics from Eifelheim — a science fiction novel set in mid-14th century Germany, and based in part upon the unexpectedly entertaining synthesis of quantum physics and quantitative economic history. Or, rather, “cliogy,” as it’s called in Eifelheim. While I was reading the book, I took cliology to be a fictional branch of academia, something more or less a present-day version of Asimov’s psychohistory. After some snooping on wiki, however, I learned that the branch of history called cliometrics really does exist.

Cliometrics is “is the application of economic theory and quantitative techniques to describe and explain historical events.” The name is derived not from some scientificky sounding Latin terminology, but rather from Clio, the Greek muse of history. As a non-historian and non-economist, probably the most fascinating parts of it for me is largely the random historical-economic factoids — such as that in 1700 in Maryland, for a female indentured servant, one lash was worth about 38 cents, or about two days of labor.

Sadly, despite having snagged a Nobel in 1993, cliometrics is something of a has-been among academic disciplines. Too many articles on cliometrics are of the “What Has Cliometrics Achieved?” and “Reflections on the Cliometric Revolution” variety — it’s never a good sign for an academic field when the meta-commentary plays more prominent role than the regular kind does. The idea of making some sort of falsifiable, scientific study of history does seem appealing, but as cliometrics’ critics are quick to point out, the whole point about it being “history” means there’s too often not a complete set of data to work from, leaving researchers no choice to theorize in the gaps. The mere presence of numbers does not actually turn subjective analysis into an objective one.

Still — how can you not love a discipline that results in articles like “The Suitability of Domesday Book for Cliometric Analysis” and “An Economic History of Bastardy”?

-Susan

A Movement That Equates “Freedom From Slavery” with “Freedom to Possess Marijuana” Needs A New Marketing Strategy

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Over at Reason, David Boaz has a sensible and thought-provoking article up that is worth checking out. The article is a reminder to libertarians that at the time of the Founding Fathers, all of humanity — save for the (partial) exception of white males — existed under conditions of tyranny, servitude, and deprivation of rights. ‘Freedom’ is not a word that could be used to describe the state of most of the people who lived then.

In light of this fact, Boaz makes the obvious point that the Libertarianesque message of “1776 was great! Let’s try and recreate those conditions today!” makes for a less than persuasive political slogan. Unfortunately, the commenters on the article react to this rather reasonable message with a mixture of disgust and outrage, going so far as to call Boaz a “communist” and a traitor to the libertarian cause.

The commenters as whole provide a rather excellent demonstration of why the libertarian party, more so than any other political group, is composed of young white guys who don’t like to go to church all that often.

I wonder when organized libertarian groups will realize there’s a reason that particular demographic is so grossly overrepresented among them. Maybe it’s because white men love freedom more than everyone else does. Yeah, that’s it. Libertarians are mostly white dudes because only white dudes truly desire liberty and freedom from oppressive governments. There couldn’t possibly be a more obvious explanation for the discrepancy, could there?

-Susan