Thursday, October 29, 2020

The Evolutionary Extinction of Trump's Republican Party

Over the past two years, I have written a series of posts (herehereherehere, and here) predicting the evolutionary extinction of Trump's Republican Party in the coming election.  

Political scientist Philip Wallach has argued that Trump's Republican Party is taking the path to extinction followed by the Whig party in the early 1850s.  The Whigs had been one of the two major parties--along with the Democrats--since the 1830s.  In 1848, the Whigs' presidential candidate was General Zachary Taylor, who had no political history in the party at all.  Although he won the election, this began a period of intraparty factionalism that brought the demise of the Whigs and the rise of the Republican Party, founded in 1854, as the new second party.  

I can agree with Wallach that if the Republican Party continues to embrace Trump's illiberal populism even after his defeat, then the party will become a permanent minority party, or it will disappear altogether.  But if American presidential elections show an evolutionary process of survival of the fittest as parties compete in the political marketplace, then both the Democrat and Republican parties have shown adaptive fitness in surviving electoral defeats.  The Republican Party can survive Trump's defeat, and even losing control of both Houses of Congress, but only if the Party adapts by rejecting the illiberal populism of Trump and returning to the values of the Lockean liberal Enlightenment that lies at the foundation of the American political tradition.

The primacy of the liberal Enlightenment for American politics was affirmed by Barack Obama in his Farewell Speech delivered in Chicago on January 10, 2017.  He claimed that what makes America exceptional is its commitment to the Lockean principles of the Declaration of Independence--"the conviction that we are all created equal, endowed by our Creator with certain unalienable rights, among them life, liberty, and the pursuit of happiness."  He saw this "essential spirit of this country" as established by the Founders as "born of the Enlightenment"--"a faith in reason, and enterprise, and the primacy of right over might."

Obama left office with an approval rating of 58%, while Trump entered his office with a 40% rating--the lowest ever for an incoming President--and in his first 7 months in office, that approval rating dropped to 34%--well below the average for any new president.  The day after Trump's inauguration, the Women's Marches against Trump brought out over 2 million people across the country--673 marches in all 50 states--which was probably the largest single-day mass protest demonstration in American history.  That this unpopularity had something to do with his illiberal policies became clear in the mid-term elections of 2018.  Trump turned these elections into a referendum on his two signature policies--trade wars and anti-immigration--and these policies were so unpopular with the voters that the Democrats had their biggest gain in a midterm election since 1974, in the aftermath of Watergate and Nixon's resignation.

It is true that Trump's policies of protectionist tariffs and immigration restrictions have a long history in the Republican Party.  Republicans supported the Immigration Act of 1924, which put severely restrictive quotas on immigrants from Southern and Eastern Europe and prohibited immigration from Asia.  Republicans also supported the Smoot-Hawley Tariff Act of 1930, which set the second highest tariff levels in American history.  But it became clear that the Smoot-Hawley tariffs worsened the effects of the Great Depression, which was one reason for the move to promote free trade agreements after World War II.  And the Immigration and Naturalization Act of 1965 eliminated discrimination against ethnic groups outside of Northwestern Europe.  In these ways, the Republican Party recognized the wisdom of John Locke's liberal argument for open borders and free trade.  Trump has turned the party against the Lockean liberal position.

If the Republican Party is to survive Trump's defeat, it will have to engage in the sort of adaptive change in its policies and demographic profile necessary for success in the two-party system that evolved in the United States in the middle of the 19th century.  The American Founders did not like the idea of political parties, because they saw them as advancing factional special interests contrary to the public good.  In George Washington's Farewell Address, he warned his audience "in the most solemn manner against the baneful effects of the spirit of party generally."  The U.S. Constitution says nothing about parties, and Richard Hofstadter (in The Idea of a Party System) identified it as "a Constitution against parties." 

Nevertheless, the conflicts between Alexander Hamilton and Thomas Jefferson in Washington's administration led to the first two-party system--with Hamilton leading the Federalists and Jefferson leading the Republicans.  And yet this seemed to confirm the fear that party competition was corrupting, because each party assumed that winning required the total destruction of the other party--there was no idea that the party in power could tolerate the party out of power as the "loyal opposition."

It was not until the early 1830s that the modern party system was invented in the United States as part of what some scholars have called the "open access order" (Douglass North et al., Violence and Social Orders).  (I have written about that in a previous post.)  An open access order allows most citizens to have open entry to economic, social, and political organizations that the state will support.  These organizations are free to compete with one another in peaceful ways.  Throughout most of human history since the Neolithic, organizations supported by the state were elite privileges that were not open to most people.

In 1828, the Democratic Party arose under the leadership of Andrew Jackson.  Then in the 1830s, in opposition to Jackson's Democrats, the Whig party emerged under the leadership of Henry Clay.  The Democrats and the Whigs competed as the two major parties.  Since then, the United States has had a two-party system in which third parties have not endured for very long because the electoral rule of "winner-take-all" discourages third parties.  This has created an electoral system of free competition through evolution by "creative destruction" (as Joseph Schumpeter called it): in party competition, any group is free to form a party organization, and those parties that succeed through innovative policies and coalitional strategies in the political marketplace gain power, while those that fail are forced to change, or they are extinguished.

By that standard, the Democratic Party has been a great success.  It has endured for 187 years, which makes it the oldest political party in the world.  The Whig party lasted for only about 22 years.  They were replaced in 1854 by the Republican Party, which has endured for 166 years, making it the third oldest party in the world.  The Conservative party of Great Britain is older--founded in 1834.

The great age and durability of the Democratic and Republican parties shows their evolutionary fitness for survival.  They have often faced challenging electoral defeats that appeared insurmountable at the time.  But they have developed adaptive responses to those challenges by changing their policies and socioeconomic demographics to exploit opportunities in the political marketplace.

But while both parties have had to change--changing their policies and changing their constituencies--in order to adapt to a competitive political marketplace, each party has a core character that has endured.  As Michael Barone has said, the Democratic Party has always been "a coalition of out-groups that, when held together, can win majorities," and the Republican Party has always centered on "a core constituency of people who are regarded by themselves and others as typical Americans, but who are not by themselves a majority of the electorate."

Despite these differences in their core character, however, both parties have to agree in their Lockean liberalism, because America is inherently a Lockean liberal society.  Louis Hartz (in The Liberal Tradition in America) was right about that: Lockean liberalism is America's one and only political philosophy.  That's why no truly illiberal political party has ever been very successful in the United States.  And that's why the survival of the Republic Party will depend on its rejection of Trump's illiberal populism.

Friday, October 23, 2020

Part 3 of "The Evolution of Human Progress Through the Liberal Enlightenment"

5. WHAT IS THE ULTIMATE CAUSE OF HUMAN PROGRESS?

Readers of Bailey and Tupy's book can see suggestions about four possible causes of human progress.  Two are explicitly stated by them--inclusive institutions and bourgeois ideas.  Two others are implied--the military success of liberal regimes and the evolved natural desire for freedom.  All four causes jointly contribute to the convergent evolution of liberal free-market democracies as the best social order.

Inclusive institutions.  At the beginning of their book (3), Bailey and Tupy embrace the argument of Daron Acemoglu and James Robinson in their 2012 book--Why Nations Fail: The Origins of Power, Prosperity, and Poverty--which turns on the contrast between "inclusive institutions" and "extractive institutions."  Acemoglu and Robinson have adopted the institutionalist theory of Douglass North and his colleagues in Violence and Social Orders (2009).  And the contrast between inclusive and extractive institutions corresponds to the contrast made by North and his colleagues between "open access societies" and "limited access societies."  (I have written about Violence and Social Orders here.)

Since the Neolithic Agricultural Revolution and the establishment of bureaucratic states, most societies have had extractive institutions through which a few ruling elites extract resources from the multitude of people excluded from power.  Only in the last 300 years, have a few societies--beginning in Great Britain and in North America--developed inclusive economic and political institutions that distribute economic and political power widely.  Inclusive institutions such as property rights, the rule of law, free markets, and political freedom create incentives for innovation through evolution by "creative destruction"--economic and political entrepreneurs who innovate in profitable ways succeed, and those who do not fail.  These inclusive institutions have created the conditions for all the great improvements in human well-being--the progressive global trends--that Bailey and Tupy present in their book.

According to Acemoglu and Robinson, the Glorious Revolution of 1688 in Great Britain created the world's first inclusive institutions, which became the turning point in human history towards modern liberal social orders.  In the Glorious Revolution, King James II was forced off the throne by the Whig revolutionaries, who then invited William and Mary to take the throne under the condition that they accept Parliament's Declaration of Rights, which ended divine right monarchy and established the supremacy of Parliament as representing a broad coalition of economic and political groups.  This liberal Whig movement was supported by a coalition of merchants, industrialists, the gentry, and diverse political groups.  New merchants and businessmen wanted free markets that allowed for innovative creative destruction in ways that would benefit them.  Eventually, this led to the Industrial Revolution, beginning in the 18th century, and then to the Great Enrichment, beginning in the 19th century.

North and his colleagues emphasize the importance for the new open access orders of the general laws of incorporation enacted in Great Britain and the United States in the 1840s and 1850s.  These laws allowed citizens to form corporations with legally stipulated rights and duties through procedures for registration and minimal conditions impersonally applied.  What previously was an elite privilege was openly available based on impersonal standards for registration as a corporation.  This created open entry to forming economic, social, and political organizations that were free to compete with one another.

In this way, inclusive or open access institutions allow creative political, economic, and social destruction through competition, in which successful enterprises proliferate and failed enterprises are eliminated.  Society secures open access to organizations as vehicles for political, economic, and social entrepreneurs to compete in implementing their ideas.  Such free competition in social experimentation allows a social order to achieve adaptive efficiency in responding to new and unpredictable challenges.

Bourgeois ideas.  Even if Acemoglu, Robinson, and North are right about the importance of inclusive or open access institutions as the necessary conditions for the modern liberal social order, we might still wonder whether Deirdre McCloskey is right in arguing that this is not sufficient to explain the uniqueness of the Great Enrichment, which required an intellectual change in ideas.  The triumph of liberalism required a rhetorical change in moral ideas so that a bourgeois way of life--a commercial way of life--could be seen as virtuous.  Bailey and Tupy apparently accept this point when they endorse McCloskey's point about the need for "major ideological shifts" (3-4).

In their account of the Glorious Revolution of 1688 as initiating the turn to inclusive institutions, Acemoglu and Robinson rely on Steven Pincus' history--1688: The First Modern Revolution--which argues that this political revolution was a revolutionary transformation that prepared the way for the Industrial Revolution.  But Acemoglu and Robinson ignore Pincus' stress on the importance of the Whig ideas of John Locke and other writers in driving the revolutionary resistance to the Stuart monarchy and in shaping the Glorious Revolution into a modern revolution that established a "bourgeois culture."  What McCloskey identifies as bourgeois ideas are actually the Lockean ideas of natural human liberty and equality--the moral ideas that constitute and sustain the inclusive institutions that have promoted modern human progress.  (I have written about this here and here.)

Might makes right.  Because of his involvement in conspiracies for violent revolution, Locke was forced to flee to Holland to avoid being beheaded by the King, like Algernon Sydney and other radical Whig theorists.  Locke saw appeals to natural right as ultimately appeals to the force of arms--the "appeal to Heaven"--so that disagreements over right are settled by conspiratorial violence and military conflict.  Contrary to the common belief that the Glorious Revolution was a bloodless revolution, there were many violent clashes in the revolution; and the revolution would have failed if the military forces of James II had defeated the military forces of William II.

Acemoglu and Robinson recognize this point, and they note that even as late as 1746 the revolution could have been overturned by the Jacobite rising if the army of Charles Edward Stuart had not been defeated at the battle of Culloden in Scotland.  This shows, they observe, that the history of inclusive institutions has often been decided by the contingencies of warfare.

Bailey and Tupy also seem to recognize this when they note that "confrontations between extractive and inclusive regimes, such as World War II and the Cold War, have generally been won by the latter," because "liberal free-market democracies are resilient in ways that enable them to forestall or rise above the kinds of shocks that destroy brittle extractive regimes" (4).  Do they mean to suggest here that liberal regimes will always prevail in military conflicts with illiberal regimes?  If Hitler had not committed the blunder of attacking the Soviet Union in June of 1941, which forced the German armies to fight on two fronts--western and eastern--is it possible that Nazi Germany might have won the war and thus turned the tide of history towards illiberal regimes?

Or can the assertion of natural rights in Lockean liberalism be grounded in the natural human propensity to forceful resistance to oppression and tyranny, so that it really is true that might makes right?  (I have written about this herehere, and here.)

The evolved natural desire for freedom.  If inclusive institutions have caused the global human progress surveyed by Bailey and Tupy, and if "inclusive institutions are similar to one another in their respect for individual liberty" (3), then the ultimate cause of this progress would seem to be liberty.  That this is so can be confirmed by the fact that the "Human Freedom Index" correlates with all of the progressive trends towards increasing human well-being: the free societies tend to be the societies were human life is flourishing.  (I have written about the "Human Freedom Index" here.)

The universal appeal of freedom is perhaps most clearly manifested in what Francis Fukuyama in 1989 called "the end of history."  History as the human search for the fully satisfying social order has come to an end, he suggested, because with the defeat of fascism and Nazism in World War II and the fall of the Soviet Union in 1989, liberal democracy remains with no serious challenger, and most of the people in the world today agree in principle that liberal democracy is the final form of government.  Bailey and Tupy see this as Trend 8--"Democracy on the March."  The proportion of countries with autocratic governments has declined, while the proportion with democratic governments has risen.

One possible explanation for this is offered by Spinoza in The Theological-Political Treatise, perhaps the first full defense of modern liberal democracy.  He declared that the democratic state is "the most natural state," because it approaches most nearly the equal liberty of human beings in the state of nature.

Darwinian evolutionary psychology can confirm this by showing that the social life of our hunter-gatherer ancestors manifests the individual liberty and equality that liberal theorists have attributed to the state of nature.  And therefore the liberal conception of government as instituted among men to secure the individual rights that first arose in the state of nature might indeed be "the most natural state."

Foragers assert their individual autonomy and liberty in resisting the attempts of anyone to establish dominance over them.  So the liberal ideas of equal liberty and dignity for all individuals and resistance to the sort of dominance hierarchies established in agrarian states (with extractive or limited access institutions) can be understood as appealing to the original liberalism of the state of nature.

This kind of Darwinian liberal thinking is suggested in the writings of people like Alexandra Maryanski, Jonathan Turner, Paul Rubin, Christopher Boehm, and Christian Welzel.

Tuesday, October 20, 2020

Part Two of "The Evolution of Human Progress Through the Liberal Enlightenment"

 4. ARE THERE OTHER IMPORTANT TRENDS OF HUMAN PROGRESS?  INCREASING RELIGIOSITY OR INCREASING SECULARIZATION?

In explaining some of the trends in their book, Bailey and Tupy rely on the World Values Survey, which has been collecting social survey data for 40 years in over 120 countries around the globe, under the direction of Ronald Inglehart, Christian Welzel, and others.  Bailey and Tupy cite this survey data as evidence for Trend 12--"Global Happiness Is Rising."  They write:

"University of Michigan sociologist Ronald Inglehart, founder of the WVS, reports in his book Cultural Evolution that ascending levels of subjective well-being correlate strongly with rising per capita income, rising levels of democracy and increasing social liberalization as expressed by growing tolerance for racial, sexual, and religious outgroups.  Those three factors combine to broaden the range of free choices available to people, thus enhancing happiness" (31).

Their graph showing increasing "global average happiness, 1981-2012" is taken from Inglehart's book.

If you look at Inglehart's book, you will see that he does report, as Bailey and Tupy indicate, that "rising freedom of choice" is correlated with "rising happiness."  But he also reports that "religious people tend to be happier than non-religious people," and therefore "both faith and freedom can be conducive to happiness" (Inglehart 2018, 164-172).  Oddly, Bailey and Tupy are silent about this--how increasing religiosity contributes to increasing happiness.  In fact, they say nothing about religion anywhere in their book, although they do casually refer to increasing religious toleration, as they do in the passage I just quoted.

For Trend 17--"Choosing Smaller Families"--Bailey and Tupy present the evidence that women in the richer and freer countries are choosing to have so few children that fertility has fallen below replacement levels.  A fertility rate of 2.1 children per average female is required to keep the population from shrinking--one child to replace each parent and a small fraction to cover infant and childhood mortality.  European fertility rates are generally below this replacement level.  If this were to continue, eventually there would be no Europeans left in Europe.  Bailey and Tupy regard this as a positive trend because it shows that women in these modern countries have more reproductive freedom than women in traditional societies who were forced to spend their lives bearing and caring for large numbers of children.  

Bailey and Tupy are silent, however, about the success of the alternative reproductive strategy adopted by religious people, who tend to have high fertility rates.  Inglehart reports: "Due to these demographic trends, the world as a whole now has more people with traditional religious views than ever before-and they constitute a growing proportion of the world's population" (68).  To recognize this, Bailey and Tupy could have added to their list of trends the trend towards increasing religious belief.

Perhaps they didn't do this because they agree with Inglehart's claim that modernization brings secularization--declining religious belief.  But then it seems Inglehart is contradicting himself in saying that religious belief is both increasing and declining.  Inglehart denies that there is any contradiction here by explaining:

"Rich societies are secularizing, but they contain a declining share of the world's population; while poor societies are not secularizing, and they contain a rising share of the world's population.  Thus, modernization does indeed bring a de-emphasis on religion within virtually any country that experiences it--but the percentage of the world's population for whom religion is important is rising" (68).

So it is consistent to say that we see opposing trends in different parts of the world: religion is declining in rich societies but increasing in poor societies.

That this is not exactly true, however, becomes clear as soon as one notices the differences in fertility rates within societies.  In European societies, average fertility rates are generally well below replacement levels--around 1.50.  But serious religious believers are the one European group showing fertility rates well above replacement. In Western Europe, the more religious Christians continue to have large families: for women ages 18-44 who attend a religious service more than once a week, the average fertility rate is 2.66, although it's lower in other parts of Europe (Frejka and Westoff 2008, 23).  In Israel, Ultra-Orthodox women have very high fertility rates--an average of 7.1 per woman compared to 3.1 in the general population (Malach and Cahaner 2018).  

If this trend continues, the religious people will always outnumber the irreligious people around the world, in both the poorer and the richer societies.  In the evolution of religion, it's survival of the fittest; and the religious have higher reproductive fitness than the irreligious (Sanderson 2018; Stark 2015).


To be continued . . .


REFERENCES

Frejka, Tomas, and Charles F. Westoff. 2008. "Religion, Religiousness, and Fertility in the US and in Europe." European Journal of Population 24:5-31.

Inglehart, Ronald F. 2018. Cultural Evolution: People's Motivations Are Changing, and Reshaping the World.  Cambridge: Cambridge University Press.

Malach, Gilad, and Lee Cahaner. 2018. "2018 Statistical Report on Ultra-Orthodox Society in Israel." The Israel Democracy Institute.

Sanderson, Stephen K. 2018. Religious Evolution and the Axial Age: From Shamans to Priests to Prophets. London: Bloomsbury Academic.

Stark, Rodney. 2015. The Triumph of Faith: Why the World Is More Religious Than Ever. Wilmington, DL: ISI Books.

Saturday, October 17, 2020

The Evolution of Human Progress Through the Liberal Enlightenment

 "All things considered, do you think the world is getting better or worse, or neither getting better nor worse?"

In 2016, the global public opinion survey company YouGov asked people in 17 countries to answer that question.  58% thought the world was getting worse.  30% thought it was neither getting better nor worse.  Only 11% thought the world was getting better.  Other surveys with similar questions yield the same results.  Most people around the world think things are getting worse, so that on the whole there has been no human progress.

This is especially remarkable if one considers that most of these surveys are online surveys, and the people answering such surveys are probably smart and well-educated people.  So smart people around the world think things are generally getting worse.

They are wrong.  

If one looks at the relevant factual evidence for global trends over the past few centuries, it is clear that the world is getter better, because human life is more satisfying for more people that ever before in human history.  On the whole, people are living longer, healthier, and happier lives.  Their lives are generally more peaceful--less exposed to violence--than ever before.  They have more opportunity to live their lives as they wish.  They have more chances to satisfy their natural human desires and thus to live a flourishing human life.

The reason for this is freedom.  Over the past two centuries, there has been a progressive expansion of freedom around the world.  It has been freedom at all levels: economic freedom, social freedom, political freedom, and intellectual freedom.  This has been driven by the global spread of liberal free-market democracies.

We can call this the Liberal Enlightenment. I have written about the empirical data showing human progress through the Liberal Enlightenment throughout history--in ancient Athens, for example.  But the accelerating growth in this progress has come over the past few centuries with the global spread of Lockean liberal ideas and institutions.  Some of my posts on this are hereherehereherehere, here. and here.

Much of this evidence for human progress through liberalism has been presented by Max Roser at his "Our World In Data" website, by Steven Pinker in his books--Better Angels of Our Nature and Enlightenment Now--in the Cato Institute's Human Freedom Index, and in Marian Tupy's "Human Progress" website of the Cato Institute.

Now we have a new book that conveniently and beautifully presents this evidence--Ronald Bailey and Marian Tupy's Ten Global Trends Every Smart Person Should Know--And Many Others You Will Find Interesting (Cato Institute).  They present 78 global trends showing that the world really is getting better.  For each of these trends, they provide a one-page vignette accompanied with a one-page chart or graph displaying the data showing the progressive trend.  In this way, they follow the example of Pinker in the deft use of the visually engaging presentation of data to support his argument for human progress through modern liberal enlightenment.  (I must complain, however, that those of us with declining eyesight in our old age have to use a magnifying glass to read this book because of its tiny font.)

Here are their Top 10 Trends:

1.  The world economy has grown more than a hundredfold since 1820.

2.  While most people throughout history have lived in extreme poverty, today less than 10% of the global population lives in poverty.

3.  We are not running out of natural resources, because resources have become more abundant relative to the demand for them.

4.  We are moving towards a "Peak Population": the world population has grown from under one billion in 1800 to about 7.7 billion today, although this rate of growth is now slowing; and demographers are now projecting that the population will peak later this century at somewhere between 8.9 and 10.9 billion, and then it will probably decline.

5.  Because of the growing supply of food around the world, there is very little famine.

6.  The forested areas of the Earth have been expanding overall, despite the deforestation in the tropics, which shows that human beings are withdrawing from the natural world.

7.  While throughout history, most human beings have lived in rural areas and engaged in agricultural labor, now most human beings live in cities; and this urban life brings economic, cultural, and environmental improvement.

8.  Over the past 200 years, there has been a steep decline in the proportion of countries under autocratic governments, along with a steep increase in the proportion under democratic governments, which confirms Francis Fukuyama's claim that liberal democracy has become the final form of government for humanity.

9.  Over the past half century, the number of interstate wars has declined; and this seems to be because capitalist democracies are more peace-loving than other regimes.

10. Because of increased wealth and technological progress, the deaths from natural disasters--such as earthquakes, floods, storms, wildfires, and epidemics--have declined dramatically.   

Looking at such claims, a critical reader of this book might ask at least five questions.  (1) Can Bailey and Tupy explain why so many smart people think the world is getting worse?  (2) How do they explain the negative trends that apparently show historical decline?  (3) How persuasive is their evidence for these 78 progressive trends?  (4) Have they ignored some important trends--such as religious toleration and secularization?  (5) If they are right about this human progress, have they explained its ultimate cause?  I will take up each of these questions.


(1) WHY DO SO MANY OF US THINK THE WORLD IS IN DECLINE?

The answer, Bailey and Tupy suggest, is that the human mind suffers from some psychological glitches that mislead us so that we pay more attention to what's negative in our lives than what's positive.  We are surrounded by the journalistic reporting of news, and news is generally bad news, because that's what grabs our attention.  

So, for example, acts of violence--murders, terrorist attacks, killing in war--are dramatic news; but the fact that the rate of killing through homicide and war has been declining is not news.  This is what behavioral scientists Amos Tversky and Daniel Kahneman called the "availability bias": shocking events come easily to mind, but that there has been a slow decline in such shocking events does not catch our attention.  

When Bailey and Tupy report that there has been a slow but steep decline over the past one hundred years in the rate of deaths from infectious disease, many of us will think: But what about COVID-19?  The disturbing harm from this pandemic today so fills our minds that it's hard to believe the historical data showing the general progressive trend towards protecting us from infectious diseases.

It is also possible that we have an evolved instinct for negativity.  If you're an ancient hunter-gatherer wondering whether that rustle in the grass is caused by a lion or the wind, it's best to assume it's a lion.  So perhaps we have inherited from our evolutionary ancestors a propensity to see threats everywhere.

Moreover, Bailey and Tupy observe, progress tends to mask itself, because as we become better at solving our problems, our expectations are raised, and we are frustrated by any problems that are not yet solved.  So, for example, it's hard to feel good when Bailey and Tupy report that there has been a big decline in hunger and malnutrition around the world, because we worry about the many people who are still hungry and malnourished.


(2) WHAT ABOUT THE NEGATIVE TRENDS?

The 78 global trends that Bailey and Tupy present in their book are all positive trends that show human progress towards a better life.  But of course they have to admit that some global trends are negative.  And so we must wonder whether they are justified in not giving prominence to those negative trends, and whether recognizing those negative trends negates their story of progress.

They respond to this concern by quoting Steven Pinker: "It's essential to realize that progress does not mean that everything gets better for everyone, everywhere, all the time.  That would be a miracle, that wouldn't be progress" (1). So does this imply that true progress means that most things get better for most people, most places, most of the time?  Must the positive trends outweigh or outnumber the negative trends?  Or must we see evidence that the positive trends are likely over time to eliminate or slow down the negative trends?

Bailey and Tupy mention seven examples of global negative trends.  Manmade climate change from increasing atmospheric concentrations of carbon dioxide is creating serious problems for human beings in this century.  Increasing plastic debris in the oceans is harmful to the environment.  Many wildlife populations are declining.  The areas of tropical rainforest are shrinking.  Many people around the world are malnourished.  Many are dying in violent conflicts.  And we all know about the global coronavirus pandemic.

But then they try to show how some of their 78 positive trends can alleviate these negative trends.  For example, while there has been no reduction in the absolute quantities of carbon dioxide emissions, they observe, there has been a decline in emissions per dollar, which they call "decarbonizing the economy," because there's an economic incentive for businesses to reduce their energy costs (115-16).  And in the United States, over the past 50 years, although carbon dioxide emissions have increased by 22%, the total emission of six principal pollutants dropped by 74%; and during this period, the gross domestic product increased 275%.  This shows that "richer becomes cleaner" (169-70).

Another positive trends is the accelerating speed of vaccine development (77-78).  It took thousands of years before scientists developed vaccines for polio, smallpox, cholera, typhoid, and measles.  But the vaccine for Ebola was developed only 43 years after the discovery of the virus.  And human trials for a COVID-19 vaccine began only four months after the virus was discovered.  Even if a COVID-19 vaccine is not discovered, Bailey and Tupy suggest, other treatments are likely to be developed quickly to end the pandemic.

As long as the positive trends outweigh the negative trends, we can see that on the whole the arc of history bends towards progress.


(3)  ASSESSING THE EVIDENCE FOR THE POSITIVE TRENDS

For each of their 78 trends, Bailey and Tupy provide a chart or graph that displays the empirical evidence for that trend.  The evidence comes from databases compiled by various scholars and reputable agencies--such the World Bank, the United Nations, and the Environmental Protection Agency.

I think that most readers will find this evidence to be reliable in most cases.  But I did see a few places in the book where the evidence looks dubious.

For two of their trends--Trend 1 ("The Great Enrichment") and Trend 13 ("Global Income Is Rising")--Bailey and Tupy rely on the database for the statistics of economic history compiled by Angus Maddison.  Maddison (1926-2010) was a scholar of quantitative macroeconomic history who spent his life collecting and analyzing statistical estimates for gross domestic product (GDP) and population for countries around the world and throughout history from ancient Rome to the present.  When he died in 2010, his database was preserved and extended by people at the "Maddison Project" at the University of Groningen.

Using Maddison's data, Bailey and Tupy were able to design graphs showing the growth in the total world economy and in global GDP per capita from year 1 AD to the present.  These are two of the most dramatic hockey-stick graphs in the book.  Global GDP per capita starts in year 1 at $800 (as measured in 2011 US dollars), and the line stays flat until the year 1800, when it rises to $1,140 per person per year, then to $2,180 in 1900, and finally to $13,172 in 2008.  Bailey and Tupy can point to this as showing that between 1800 and 1900, "humanity made over twice as much progress in 100 years as it did in the previous 1800 years."  This also shows that "the real standard of living rose by more than tenfold between 1800 and 2008" (33).

Any careful reader will ask how Maddison came up with these numbers.  By the middle of the 19th century, modern statistical offices and censuses were collecting statistics for the economies of Europe and North America.  But for the thousands of years of economic history prior to 1800, it's hard to find documented economic statistics.

If one goes to Maddison's books, one can see that his estimates for GDP per capita in the year 1 AD in 20 countries as measured in 1990 international US dollars ranges mostly from $400 to $450.  For example, for Sweden, Mexico, and North America, it's $400; for Belgium and Portugal, it's $450 (Maddison 2007, 382).  One looks in vain for any explanation as to how he decided on these numbers.  How does he know that in 1 AD the North American Indians were living on the equivalent of $400 per person per year?  

Maddison says: "Before 1500, the element of conjecture in the estimates is very large indeed" (Maddison 2001, 259).  He uses the words "conjecture" and "assumption" a lot.  He assumes that prior to the year 1000, most people in most countries lived close to subsistence levels of income, which he sets at $400 per capita per year.  But he does not explain how he arrived at this $400 number.  

Some of his colleagues at the University of Groningen have said that "his strategy was to produce numbers even if a solid basis for them did not always exist" (Bolt and van Zanden 2014, 628).  They correct Maddison's estimate for subsistence by lowering it to $250-$300, but they don't explain how they arrived at this new number.

Economic historian Gregory Clark identifies this "element of conjecture" in Maddison's numbers as the problem at the core of the whole Maddison Project.  "All the numbers Maddison estimates for the years before 1820 are fictions, as real as the relics peddled around Europe in the Middle Ages" (Clark 2009, 1156).

For this reason, I think Bailey and Tupy are mistaken in relying on Maddison's fictitious database for the economic history prior to 1820.  Remarkably, they are not alone in this.  Many economists and economic historians have used Maddison's data for developing and testing theories of economic development while remaining silent about the "element of conjecture" in his numbers.

There are a few other points where Bailey and Tupy make conjectural projections about future trends that cannot be decisively confirmed by empirical evidence.  Two examples of this are "Peak Population" (Trend 4) and "Peak Farmland" (Trend 48).

The demographic data show that there has been a stunning growth in world population over the past 200 years, so that now the world population is around 7.7 billion.  The demographic data also show that over the past 75 years the growth in population has continued, but the rate of growth has slowed, because as people become wealthy and well-educated, their fertility rate tends to decline.  As women gain social and economic freedom, they choose to have fewer children, so that they can invest resources in those children, allowing them to flourish in a modern economy.  This is called the "demographic transition," and I have written about it (here).

This demographic database provides empirical evidence for the growth of human population--first rapid and then slowing--up to the present.  But of course it does not allow us to precisely predict the future.  If there is going to be a "peak population," as Bailey and Tupy claim, identifying it requires a speculative projection that cannot be settled by empirical evidence.  The United Nations' World Population Prospects 2019 projects that the world population will reach 10.9 billion in the year 2100.  Bailey and Tupy say that this is too high, because it does not put enough weight on the demographic transition that will lead more and more women to choose to have few children, which is likely to keep the peak population well below 10 billion; and after that peak, the world population will decline.  This seems plausible to me, but this can only be a conjectural projection that cannot be confirmed by present evidence.

Similarly, their "Peak Farmland" trend is a speculative prediction that has some plausibility based on some evidence, but the evidence cannot precisely confirm the prediction.  Here's the figure used by Bailey and Tupy that presents the data showing the gradual rise of global arable land from 1961 to 2009, followed by projections of a drop of global arable land to 2060.



This figure comes from Jesse Ausubel and his colleagues (Ausubel 2014, 2015; Ausubel et al. 2012).  Ausubel is often identified with "ecomodernism"--the idea that the best way to reverse environmental degradation and restore natural wildness is to liberate technological innovation in response to free-market incentives to solve environmental problems.  So, for example, he foresees that advances in farming technology along with changes in consumer tastes and a slowing growth in human population could bring about what he calls Peak Farmland, which would allow for a large global restoration of land to Nature.

Compared with what they were doing 40 years ago, American potato farmers grow about 40% more tons of potatoes, while planting about 20% fewer acres.  Similarly, American corn farmers now grow about five times as many bushels as they did in 1940 on the same land.  Because of the technological ingenuity of farmers, less land can produce more calories, so that agricultural food production can increase while farming acreage decreases.  At the same time, there has been rising demand for chicken and corn and falling demand for potatoes and beef.  Depending on how these and other trends play out, it is possible that over the next 40 years we could see nearly 988 million acres restored to nature, which is twice the size of the United States east of the Mississippi.

That's the optimistic projection in the figure above.  But while this is based on the empirical evidence for some trends in recent history, this projection for the future is conjectural.


To be continued . . .


REFERENCES

Ausubel, Jesse H. 2014. "Peak Farmland and Potatoes." Plenary address to the 2014 Potato Business Summit of the United Potato Growers of America, San Antonio, 8 January.

Ausubel, Jesse H. 2015. "The Return to Nature: How Technology Liberates the Environment." Breakthrough Journal 5 (Summer).

Ausubel, Jesse H., Iddo K. Wernick, and Paul E. Waggoner. 2012. "Peak Farmland and the Prospect for Land Sparing." Population and Development Review 38 (Supplement): 221-242.

Bailey, Ronald, and Marian L. Tupy. 2020. Ten Global Trends Every Smart Person Should Know, and Many Others You Will Find Interesting. Washington, DC: Cato Institute.

Bolt, Jutta, and Jan Luiten van Zanden. 2014. "The Maddison Project: Collaborative Research on Historical National Accounts."  The Economic History Review 67 (3): 627-651.

Clark, Gregory. 2009. Review of Angus Maddison, Contours of the World Economy, 1-2030 AD.  Journal of Economic History 69: 1156-1161.

Maddison, Angus. 2001. The World Economy: A Millennial Perspective. Paris: Organization for Economic Cooperation and Development.

Maddison, Angus. 2007. Contours of the World Economy, 1-2030 AD: Essays in Macro-Economic History. Oxford: Oxford University Press.

Sunday, October 11, 2020

The Michigan Supreme Court Declares Whitmer's Lockdown Orders Unconstitutional--Reviving the Lockean Nondelegation Doctrine

In April, I wrote a series of posts (herehere, and here) arguing that Michigan Governor Gretchen Whitmer's lockdown orders were unconstitutional, because she was acting as a tyrant in exercising arbitrary absolute power in suspending the liberty of Michigan citizens.  Last week, the Michigan Supreme Court reached the same conclusion, and in doing so, the Court joined a judicial movement for reviving the Lockean doctrine of nondelegation--that the lawmaking power of the legislature cannot rightly be delegated to the executive, because the combination of lawmaking and executive powers in one person is tyranny.  The Court quoted Montesquieu: "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty."  The Wall Street Journal editorial on this decision began by declaring: "Michigan's one-woman rule is no more."

Two weeks ago, I wrote about the federal court decision striking down Governor Tom Wolf's lockdown in Pennsylvania as unconstitutional.  So we are seeing a growing judicial scrutiny of the constitutionality of the COVID-19 lockdowns based on rule by executive decrees that violate the principles of separation of powers and the nondelegation doctrine.

To understand what is going on here, I will move through three steps by examining the nondelegation doctrine in the Michigan Constitution, in the U.S. Constitution, and in John Locke's Second Treatise


NONDELEGATION IN THE MICHIGAN CONSTITUTION

On March 10, in response to the COVID-19 pandemic, Governor Whitmer declared a "state of emergency" under two Michigan laws--the Emergency Powers of the Governor Act of 1945 (the EPGA) and the Emergency Management Act of 1976 (the EMA).  The EPGA says that the Governor may proclaim a state of emergency when there is a public emergency that threatens "public safety."  "After making the proclamation or declaration," the law states, "the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control."  These orders, rules, and regulations remain in effect until the governor declares that the emergency no longer exists.

The EMA allows the governor to declare a "state of disaster" or "state of emergency."  But after 28 days, the governor must declare that the state of disaster or emergency is terminated unless a resolution of both houses of the legislature has approved the governor's request for an extension of the state of disaster or emergency for a specific number of days.

On April 1, Governor Whitmer requested that the Legislature extend her declarations of disaster and emergency for 70 days.  The Legislature responded by giving her an extension to April 30.  On April 30, she issued an executive order terminating her declaration of disaster and emergency under the EMA.  But she then immediately declared that there was still a state of disaster and emergency under the EPGA, which extended her lockdown of the state indefinitely.

Some Michigan healthcare providers filed a lawsuit in a federal district court charging that Governor Whitmer did not have the legal authority to prohibit them from performing "nonessential" procedures--in particular, a patient had been unable to undergo a knee-replacement surgery that had been scheduled for the end of March.  The federal district court certified two questions for the Michigan Supreme Court to answer.  Did the EPGA and the EMA give Governor Whitmer the authority to continue her lockdown orders?  Did the EPGA or the EMA violate the clause in the Michigan Constitution requiring the separation of powers and prohibiting the legislature from delegating its lawmaking powers to the governor?

In answering the first question, the seven Supreme Court judges unanimously decided that under the EMA Whitmer did not have the legal authority to extend her emergency declaration beyond April 30, because the Legislature had refused to extend her declaration.

In answering the second question, the majority of the court--four of the seven--ruled that the EPGA was unconstitutional because it violated the separation of powers in the Michigan Constitution of 1963, particularly Article 3, section 2: "The powers of government are divided into three branches: legislative, executive, and judicial.  No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution."  

Assuming emergency powers to protect the public safety or public health belongs to the "police power" of the Legislature.  But the EPGA allows the governor to exercise that legislative police power free from any constraints by the Legislature, which means that the governor can combine both executive and legislative powers, and this is the arbitrary, absolute rule of one person over all the citizens.  This violation of the separation of powers means the suspension of the constitutional liberties of the people.

Justice Stephen Markman wrote in his majority opinion that Governor Whitmer's rule by executive decrees in imposing the COVID-19 lockdown on Michigan dramatically illustrated the danger in allowing a governor to set aside the constitutional system of separation of powers with checks and balances:

". . . no individual in the history of this state has ever been vested with as much concentrated and standardless power to regulate the lives of our people, free of the inconvenience of having to act in accord with other accountable branches of government and free of any need to subject her decisions to the ordinary interplay of our system of separated powers and checks and balances, with even the ending date of this exercise of power reposing exclusively in her own judgment and discretion" (47).

Justice Bridget McCormack wrote for the three dissenters who argued that under the precedents set by the Michigan courts and the U.S. Supreme Court, the EPGA could not be struck down as a violation of the nondelegation doctrine.  McCormack pointed out that the U.S. Supreme Court had invalidated a statute under the nondelegation doctrine in only two cases, both of them in 1935,  Since then, the U.S. Supreme Court has repeatedly upheld very broad congressional delegations of legislative powers to the executive branch and administrative agencies.  The only requirement has been that the legislature must provide an "intelligible principle" to guide the executive decision maker, and this "intelligible principle" standard has been easily satisfied.

"Until today," McCormack observed, "a delegation was invalid only when there were no standards" (7).  And "the bar for what standards qualify as constitutional is low."  McCormack wrote:

"The delegation in the EPGA plainly has standards that surmount that bar.  For the Governor to invoke the EPGA plainly has standards that surmount that bar.  For the Governor to invoke the EPGA, her actions must be 'reasonable' and 'necessary,' they must 'protect life and property' or 'bring the emergency situation . . . under control,' and they may be taken only at a time of 'public emergency' or 'reasonable apprehension of immediate danger' when 'public safety is imperiled.' . . . Those are standards.  Reasonable people might disagree about their rigor, but this Court and the United States Supreme Court have consistently held similar standards constitutional."

". . . The particular standards in the EPGA are as reasonably precise as the statute's subject matter permits.  Given the unpredictability and range of emergencies the Legislature identified in the statute, it is difficult to see how it could be more specific" (7).

In response, Justice Markman argues that the EPGA's delegation of legislative powers to the governor is too expansive, too indefinite in its duration, and too inadequate in its standards to sustain this delegation of powers to Governor Whitman.  It's too expansive, because it allows the Governor to suspend all of the constitutional liberties of the people in exercising arbitrary, absolute power over the entire social and economic life of Michigan.  It's too indefinite in its duration, because the law sets no time limits on the Governor's emergency powers: she is free to exercise those powers for as long as she wants.  It's too inadequate in its standards, because the standards set by the words "reasonable" and "necessary" are so vague that they supply no genuine guidance to the Governor in the exercise of her authority and no constraints on her actions.

Markman observes:

". . . A person driving on the road instead of staying inside at home, for example, may fairly be understood as posing a threat to 'life' and 'property' because there is perpetual risk that he or she will be involved in an automobile accident.  Thus, the Governor under the EPGA may find an order prohibiting a person from driving is warranted merely on the basis of this rationale.  The contagions, accidents, misfortunes, risks, and acts of God, ordinarily and inevitably associated with the human condition and with our everyday social experiences, are simply too various for this standard to supply any meaningful limitation upon the exercise of the delegated power" (33).

Both sides in this debate on the Michigan Supreme Court recognize that a similar debate is taking place on the U.S. Supreme Court over the constitutional status and meaning of the nondelegation doctrine.  One side wants to stay with the low standard for nondelegation that has been in force for 85 years--a standard so low as to be toothless.  The other side wants to enforce a higher standard--like that stated in 1935--that would seriously constrain legislative delegations of lawmaking power.

This constitutional debate is ultimately a philosophical debate over whether the separation of powers with the rule of law can be reconciled with the need for lawless executive prerogative in times of emergency or in response to other contingencies that cannot be governed by general laws prescribed by the legislature.


NONDELEGATION IN THE U.S. CONSTITUTION

 Unlike the Michigan Constitution, the U.S. Constitution does not have a section explicitly stating that there must be a separation of powers between the three branches of government, so that officers in one branch cannot exercise the powers of those in the other two branches.  The Michigan Constitution follows the example set by the Massachusetts Constitution of 1780, which was drafted by John Adams.  In Article XXX of the Declaration of Rights--the first part of the Massachusetts Constitution--it is declared:

"In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; The executive shall never exercise the legislative and judicial powers, or either of them; The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."

Notice that Adams states the "end" or purpose of such a strict separation of powers--to ensure that there is a government of laws and not of men.  If any one person or group of people could exercise the lawmaking, executive, and judicial powers of government, they would have unlimited power to rule over the country as they pleased; and such a power would inevitably be abused for tyrannical purposes, because human beings are naturally inclined to use unlimited power to dominate over their fellow human beings.  A republic is the best form of government, John Adams argued in Thoughts on Government, because it is "an empire of laws, and not of men," which is secured by the popular control of government, but also by the separation of powers.  This secures the impartial rule of law because no one person or group of people has the power to make, execute, and judge the law so that it serves their selfish interests rather than the common good.

When Governor Whitmer imposed her COVID-19 lockdown orders on Michigan, she legislated her own orders, executed those orders, and judged the application of those order to particular cases.  The Michigan Supreme Court quoted James Madison in Federalist number 47: "The accumulation of all powers, legislative, executive, and judiciary, in the same branch, whether of one, a few, or many . . . may justly be pronounced the very definition of tyranny."  If so, then Governor Whitman was acting as a tyrant.

Still, however, we might wonder whether the U.S. Constitution really does enforce a strict separation of powers, since it does not have the explicit language of the Michigan Constitution.  In 1789, James Madison proposed this amendment to the Constitution to be included in the Bill of Rights:

"The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments."

When Madison introduced this amendment in the First Congress, congressman Roger Sherman objected, saying that the amendment was "altogether unnecessary, inasmuch as the Constitution assigned the business of each branch of the Government to a separate department."  Madison agreed, he "supposed the people would be gratified with the amendment, as it was admitted that the powers ought to be separate and distinct; it might also tend to an explanation of some doubts that might arise respecting the construction of the Constitution."  The House of Representatives approved this amendment, but the Senate struck it down.  The majority of the Congress might have agreed that while the amendment was unnecessary, it would do no harm.  The majority in the Senate might have thought that if it was unnecessary, it should not be added to the Constitution.

This amendment was unnecessary insofar as the Constitution's "vesting" clauses imply a separation of powers and a nondelegation doctrine.  Article 1 begins: "All legislative Powers herein granted shall be vested in a Congress of the United States."  Article 2 begins: "The executive Power shall be vested in a President of the United States of America."  Article 3 begins: "The judicial Power of the United States shall be vested in one supreme Court."  By implication, no one in one of these branches can exercise the powers "vested" in the other two; and the Congress cannot delegate to the other branches the legislative powers "vested" in the Congress.  Notice that this does allow for some constitutional mixing of powers: for example, the President is "vested" with a power to veto legislation of the Congress, which involves the President in the legislative process of lawmaking.

Before the 1930s, the congressional grants of authority to the executive branch were so limited that they could be easily upheld by the Supreme Court as conforming to the nondelegation doctrine.  But then President Franklin Roosevelt's New Deal programs expanding the role of the federal government in the American economy seemed to require broad congressional delegations of power that provoked the Court into striking down some statutes as violating the separation of powers.  The Court did this twice in 1935, striking down provisions of the 1933 National Industrial Recovery Act, which was a crucial element of Roosevelt's New Deal policies.

In A. L. A. Schechter Poultry Corp. v. United States, the court reviewed a congressional statute that gave the President the power to approve "codes of fair competition" for slaughterhouses and other industries.  But Congress provided no guidelines for what counted as "fair competition."  The President adopted an elaborate code of fair competition that had been written by some New York poultry butchers, and some of their competitors charged that this code was written to serve the self-interest of those who wrote it.

One of the rules in this code made it a federal crime for butchers to allow customers to select the chickens they wanted to buy.  The Schechter Poultry Company was a group of kosher butchers who found it hard to follow these rules.  They were convicted of selling an "unfit" chicken and other charges.  When this case was brought before the Supreme Court, the statute allowing the President to do this was struck down as an unconstitutional delegation of law-making power.  Writing for a unanimous court, Justice Benjamin Cardozo complained that "anything that Congress may do within the limits of the commerce clause for the betterment of business could be done by the President . . . by calling it a code.  This is delegation running riot."

In the second case in 1935--Panama Refining Co. v. Ryan--the Court struck down a statute that authorized the President to prohibit the transportation of petroleum produced or withdrawn from storage exceeding the quotas set for each state.  The Court decided that since Congress "has declared no policy, has established no standard, has laid down no rule," this was an unconstitutional grant of legislative power to the President, so that he could act as a lawmaker.

After those two cases, the Court never again declared any statute in violation of the nondelegation doctrine, even as the Congress has authorized an administrative state, in which administrative agencies in the executive branch have combined lawmaking, executive, and judicial powers: administrators make their own rules, enforce those rules, and adjudicate cases under those rules.

We must wonder whether administrative law is unlawful (as suggested in the title of a book by Philip Hamburger).  If administrators in the executive branch of government can exercise binding legislative and judicial powers that are outside and above the legislative power of the Congress and the judicial power of the courts, is this an exercise of absolute power?  Didn't Anglo-American constitutional law originate to defeat such claims of absolute power by monarchs?  If so, could it be argued that the administrative state is not just unconstitutional but anti-constitutional?

Some American conservative judges (those affiliated with The Federalist Society) have answered yes to those questions, and they have proposed constitutional limits on the administrative state grounded in a revival of the nondelegation doctrine as it was interpreted in the Schechter and Panama Refining decisions.  Last year, in the Supreme Court case of Gundy v. U.S., five of the Supreme Court justices--Roberts, Thomas, Alito, Gorsuch, and Cavanaugh--took this position.  If Trump's nominee--Amy Coney Barrett--is confirmed, she could become the sixth judge for this group.  But even without her, the five on the Court now would be a majority for any future case on nondelegation.

The four Michigan Supreme Court justices who struck down the Emergency Powers of the Governor Act cited Gorsuch's dissenting opinion in the Gundy case as evidence that the U. S. Supreme Court was moving towards reviving the nondelegation doctrine.

The issue in the Gundy case was whether the Sex Offender Registration and Notification Act (SORNA) violated the nondelegation doctrine.  SORNA gave the U. S. Attorney General the authority to "specify the applicability" of the mandatory registration requirements for sex offenders convicted before the enactment of SORNA.  The law provided no clear policy to guide the Attorney General in the exercise of his discretionary authority.  Nevertheless, the majority on the Court upheld the constitutionality of the law. 

Because of the vacancy created by Justice Scalia's death, there were only 8 justices on the Court, and Justice Cavanaugh had been confirmed too late to participate in deciding this case.  So four judges (Kagan, Ginsburg, Breyer, and Alito) constituted a majority for upholding SORNA as constitutional, although Alito indicated that he would be willing in a different case to enforce a higher standard for nondelegation.  Gorsuch wrote a dissenting opinion, in which Roberts and Thomas joined.  Kavanaugh said publicly that if he could have participated in this decision, he would have concurred with Gorsuch's opinion.

Gorsuch's opinion summarizes all of the reasoning developed by originalist legal scholars for restoring the nondelegation doctrine as a serious limit on the Congress's authority to delegate its legislative powers to the President and to administrators in the executive branch.  "If the Congress could pass off its legislative power to the executive branch," Gorsuch observes, "legislation would risk becoming nothing more than the will of the current President" (8).  This suggests that although he was appointed by Donald Trump, Gorsuch would not agree with Trump's rule by executive decrees and Trump's claim that the Constitution "allows me to do whatever I want to do."

Similarly, Gorsuch denies the constitutionality of the Congress delegating its lawmaking powers to the Attorney General in SORNA.  And in doing this, he echoes the language of Cardozo's Schecter Poultry opinion, as in the last two sentences of Gorsuch's opinion: "while Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation's chief prosecutor the power to write his own criminal code.  That 'is delegation running riot'" (33).

Gorsuch recognized that the first statement of the nondelegation doctrine was in Locke's Second Treatise, particularly in section 141, which he quoted:

"The legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.  The people alone can appoint the form of the commonwealth, which is by constituting the legislative, and appointing in whose hands that shall be.  And when the people have said we will submit to rules, and be governed by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; nor can the people be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them."

We must wonder, however, whether this strict separation of powers can be enforced in circumstances where we might need to have chief executives and administrators exercise broad discretionary powers.  After all, Locke thought that any effective executive must exercise "prerogative," which is the power "to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it" (ST, sec. 160).  Is it necessary to allow this, particularly in times of emergency--such as war or a pandemic?  This has been the claim made by governors like Whitmer who have asserted the emergency power to impose lockdown orders to protect the public health.  I have taken up some of these issues in Political Questions, 250-262, and in a previous post.


Saturday, October 03, 2020

How Trump Defeats the Pandemic

Since Trump's announcement yesterday that he has been infected by the coronavirus, most of the popular reaction has assumed that this is disastrous for his campaign for two reasons.  First, it makes him look foolish for playing down the danger from the pandemic and for mocking people who wear masks.  Second, it brings the pandemic back into the center of the presidential campaign debate, which favors Biden because Trump's handling of the pandemic does not look good.

But consider Trump's rhetorical psychology.  He must boast that he always wins at everything he does.  He never loses.  So he must turn every failure into a success.  He is certainly not going to admit that his sickness shows his foolishness.

Consider then how Trump could turn this all to his rhetorical advantage.  Sure, the virus could kill him, and that would be the dramatic end to his presidency.  But the odds are against that.  Even older obese men like Trump have maybe somewhere around a 90-95% chance of surviving the viral infection.  So if he survives, as he probably will, imagine what he could say.

I've done it.  I have defeated the virus.  I decided that I needed to expose myself to the virus, so that once infected, I could show how to overcome it.  Although we don't yet have a vaccine, there are lots of experimental treatments to mitigate the infection.  I have tried all of them.  And even though I belong to a group that is most vulnerable to the virus, I am strong: I fought it and won.

So, you see, I have just proven--by my self-sacrificial fight with the virus--that the pandemic is no longer a threat to our lives.  As I have always told you, I alone can fix it.

Now that I have defeated the pandemic, we can Make America Great Again!

There are some remarkable similarities--but also differences--here with Woodrow Wilson and the flu pandemic of 1918-1920, which killed perhaps 50 million people around the world and 675,000 in the U.S., making it much deadlier than the coronavirus pandemic today.

As president, Wilson did almost nothing to control the pandemic.  He did not even speak about it in public.  Public health policies were managed mostly by state and local governments.

In April of 1919, Wilson was at the Paris Peace Conference to negotiate peace terms for the end of the World War.  He became infected with the flu virus.  He was 63 years old and in bad health.  He became deathly ill, but he survived.  Even in this deadliest pandemic in human history, most of the people infected survived.  Unlike Trump's illness, Wilson's was kept secret.  A few months later, Wilson suffered a stroke that incapacitated him.  He lived on until his death in 1924.

I have written about the flu pandemic of 1918-1920 as compared with the present coronavirus pandemic here, and here.  One crucial difference is that in the flu pandemic there was no governmentally mandated lockdown of economic and social activity like that recommended by Trump in March.