Tag Archives: volokh conspiracy

About the coming crisis in public pensions

Nicely said, by Nick Gillespie in article #2 below:

‘There is a looming showdown in American society between public-sector employees and the rest of us, in terms of job security and, especially, unsustainable gold-plated retirement and health benefits that are working hard to bankrupt whole states.”

The massive underfunding of  public pension systems results — like so many of our problems — from powerful groups exploiting weaknesses in our  information systems that show future results expected from current actions.  AKA accounting.  Politicians give obligations to pay money and benefits to powerful civil service unions — in exchange for support.  Since government accounting runs from primitive to bacterial, often insufficient (or no) funds are committed now to pay those benefits.  But they are our obligations, and they’re beginning to come due now.

It’s a serious problem, part of the larger problem of adapting to an aging society — serious because we’ve prepared by covering our eyes and ears and singing “la la la.”  The key fact we must realize:  it’s too late to prepare.  Except in the sense of “fasten your seat belts”.   We must plan how to distribute the shock of the now-inevitable impact:  too many retirees, too little saved.

After years of expert warnings, now the public becomes aware.  Some posts about the looming crisis …

  1. It’s a wonderful life working for the government“, Michael Barone, Washington Examiner, 30 December 2009
  2. Public Sector Drives Deep Into The Night“, Nick Gillespie, Reason magazine, 30 December 2009
  3. Employee Compensation in State and Local Governments“, Chris Edwards, Cato Institute, January 2010 — Still more evidence that government officials are often paid better than their private sector equivalents (with far greater job security).
  4. Public workers under fire for cost of pensions“, Cincinnati Enquirer, 3 January 2010
  5. More on The Coming War Over Public-Sector Pensions“, Nick Gillespie, Reason magazine, 4 January 2010
  6. US public pensions face $2,000bn deficit“, Financial Times, 4 January 2010
  7. Society cannot walk away from the problem, but individuals can — see this post at the Volokh Conspiracy, 5 January 2010


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Tom Friedman provides a window to the thinking of our ruling elites

Our elites tolerate the republic, as it provides a stable political regime without limiting their ability to amass wealth and power (for details see “Wealth, Income, and Power” by G. William Domhoff).  Thomas Friedman explains how this works in “Our One-Party Democracy“, op-ed in the New York Times, 8 September 2009.

His logic is bizarre but inconsequential.

“The fact is, on both the energy/climate legislation and health care legislation, only the Democrats are really playing. With a few notable exceptions, the Republican Party is standing, arms folded and saying ‘no.’”

So a vibrant two-party democracy requires both political parties to agree.  Nonsensical, but it is after all just propaganda.

“From the way some of you young fiends talk, anyone would suppose it was our job to teach!
— Advice from Screwtape to his nephew, from chapter I of The Screwtape Letters by C. S. Lewis

More sincere, I suspect, is his admiration for autocratic states.

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So many Americans approve of torture; what does this tell us about America?

It is something new, I believe, that so many Americans approve of torture by our government.  Perhaps this is another result of the horrific mixture of hubris and paranoia (described in America’s Most Dangerous Enemy) that has come to dominate our culture.  It so, I believe it a symptom of a serious illness afflicting our society.  Incidents like this provide a mirror, benchmarks by which we can see how America has changed.

This raises questions about the American project.

  • How will a failure to thoroughly investigate these crimes affect America?
  • If not this, then what will crimes by government officials deserve prosecution?

For a brief discussion of the legal basis for torture, and the complexities of prosecuting officials, see these posts at the Volokh Conspiracy:  here and here.


  1. Some applause for America’s torturers
  2. Excerpts
  3. Reports by our government, its officers and agents, and major NGO’s about torture
  4. Other articles about torture
  5. Update:  the My Lai Massacre — evidence we sometimes approve of torture
  6. Afterword and for more information

Sections 3 and 4 provide links to a wide range of sources.

(1)  Some applause for America’s torturers

Comments posted here and at Matthew Yglesias’ site about torture.  Thousands more are scattered about Internet.  Cry for America, for what we have become.

The difference is that you know Zubeydah or whoever is a bad man. (source)

Has M.Y. forgot about 9/11? These enhanced interrogation techniques are used only on the worst of the worst. Would you prefer that we Mirandize terrorists? If we stop using these techniques, then there will likely be another attack, but this time, the blood will on MY’s hands! Rudy/Palin 2012! (source)

I don’t think we need to apologize to the world for beating up knuckleheads who send even their children to blow us up. Rather it is our DUTY to do everything reasonable to save innocent lives. (source)

“Torture” and “Torturers” are loaded terms. I would hazard that most of these detainees were treated less harshly than most kids at the hands of bullies, every day in what pass for public schools. (source)

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Legal experts discuss if the Paulson Plan is legal

Summary:  a continuation of the previous post, America appoints a Magister Populi to deal with the financial crisis.  Here we discuss if the Paulson plan is legal.  While presumably accurate, these legal experts cited below are telling us that the Constitutional regime is comatose if not yet terminal.  Their analysis reads like a follow-up chapter to my 4 July 2006 post “Forecast: Death of the American Constitution.”  Does it reassure you to learn that NAZI philopher Carl Schmitt provided the intellectual basis for these sweeping emergency actions?  (Reminding us once again that in many ways Hitler was just early, and that the struggle against these ideas has not ended).


  1. Can Congress exempt Executive actions from Court review?
  2. The Bailout Statute“, by David Zaring, posted at the Conglomerate, 20 September 2008
  3. A stream of excellent analysis at The Volokh Conspiracy.
  4. A further Schmittian (and constitutional?) moment“, Sandy Levinson, posted at Balkinization, 19 September 2008
  5. Our Schmittian Administrative Law“, Adrian Vermeule (Harvard Law School), Harvard Law Review, 2009  — Who is this NAZI?
  6. New deal or no deal“, Eric Rauchway, posted at Edge of the American West, 20 September 2008 — Compare this with New Deal legislation.
  7. Delegation Run Amok“, David Bernstein, The Volokh Conspiracy, 21 September 2008 — Another reason this plan is Court-proof.


1. Can Congress exempt Executive actions from Court review?

Section 8 is an essential and necessary requirement for the role of Magister Populi. To make it legal I believe (having no training in the law) that this clause invokes Article III, Section 2 of The Constitution:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

2.The Bailout Statute“, by David Zaring, posted at the Conglomerate, 20 September 2008 — Excerpt:

Congress bailed out S&Ls before, and survived constitutional challenge then, I can’t see why it wouldn’t be able to bail out other financial institutions now. So: can it do this? Yes. However:

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Another step away from our Constitutional system, with applause

Summary:  A crisis like we have today tests both out system of government and America’s values.  How is our Constitutional regime doing?  Not so well, taking more hits to its already weak superstructure.  Not that many in America care, as we still have cable to watch as our Republic slowly fades away.

Systemic failure manifests itself in the weakest part of a machine.  Today that weak part of our political engine is Congress.  The history of English democracy rose with power of Parliament.  American democracy may die with the power of Congress.  Power flows year by year to the Imperial Presidency, a trend obvious since the early 1960’s.

But be chipper, legislative power is so yesterday.  Fast, dynamic Executive Leadership is 21st century America — a government fit for consumers.  For peons.

Lawmakers Left On the Sidelines As Fed, Treasury Take Swift Action“, Washington Post, 18 September 2008 — Excerpt:

The frenetic pace of the financial crisis has forced the Treasury Department and Federal Reserve to make rapid-fire decisions in recent days, leaving Capitol Hill lawmakers effectively impotent — and frustrated. … Congressional leaders learned of the rescue late Tuesday during a hastily called meeting in the Capitol with Bernanke and Treasury Secretary Henry M. Paulson Jr., who explained the deal after it was done.

Congressional Irrelevance“, Todd Zywicki, posted at The Volokh Conspiracy (an A-team law blog), 18 September 2008 — Excerpt:

One interesting aspect of the recent government bailouts has been the complete irrelevance of Congress. The operation and decision-making seems to be run almost entirely by the Secretary of Treasury and Federal Reserve. Congress appears to lack the ability, the will, and the decisiveness to play any role except spectator, as a handful of senior executive branch officials have nationalized major portions of Wall Street.

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Remembering what we have lost… thoughts while looking at the embers of the Constitution

This is a follow-up to See the last glimmers of the Constitution’s life…, suggesting that the euphoria is undeserved about the Heller decision affirming our right to bear arms (see Zenpundit for a thoughful example).   Our political rights — the ones limiting government’s power, focus of the Constitution and Bill of Rights — peaked with the battles from 1930 – 1969 over the First Amendment (freedom of the press) and (far more important) the Fourteenth Amendment (equal protection).

This period also saw expansion of government and increased focus on equality over liberty — which have inevitably slowly rotted away the foundations of our Constitutional regime.  In return we have gained greater personal autonomy.  Although on our way to serfdom, we can obtain contraceptives and abortions while practicing a wider range of sexual activities.  Some think this a fair trade.

For a powerful analysis about one aspects of the Constitution’s fading influence, see “Lessons for gun rights supporters from the property rights experience” at The Volokh Conspiracy (26 June 2008).  Too rich and detailed to be properly excerpted here, I most strongly recommend reading it.  Understanding the fading away of property rights in America (or rather, one aspect of this) is an antidote to the euphoria about the Heller decisions about the right to bear arms.  Here are snippets, to encourage you to read the Volokh Conspiracy post.

Part One

From the 1930s to the 1980s, federal courts almost completely abandoned the protection of property rights, with the important exception of requiring “fair market value” compensation for complete physical occupation of property by the government.

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