Madison, Bingham and the Crapshoot of History

There was a lecture at the McKinney School of Law yesterday about Jonathan Bingham, the most important constitutional figure you’ve probably never heard of. One of the professors has just written a biography of him–“American Founding Son: John Bingham and the Invention of the Fourteenth Amendment.”

I came across Bingham and the role he played in U.S. history a number of years ago, when I was researching a book of my own. He was a Republican Congressman from Ohio, a fervent believer in racial equality, who wrote the first and most famous passage of the 14th Amendment–the one forbidding states to deny “the privileges and immunities of citizenship” to their citizens, and requiring that they extend to those citizens the guarantees of due process and equal protection of the laws.

It was clear even from the brief research I did then that Bingham’s intent was to finish what Madison had tried but been unable to do–apply the entire Bill of Rights to state and local governments. (Originally, the Bill of Rights only restrained the federal government.) In the aftermath of the Civil War, he was able to get it done.

Or so he thought.

The Supreme Court declined to interpret the 14th Amendment as requiring complete and immediate”incorporation,” the weird term used by lawyers that means applying the Bill of Rights’ restrictions against government at all levels. The Court opted for “selective” incorporation–and only over a period of many years, as cases came before it, used the Amendment as a vehicle to ensure that  local government units respect the “fundamental liberties” protected by the Bill of Rights.

What too few Americans appreciate is the importance of the 14th Amendment to our current Constitutional system. Yale Constitutional scholar Akil Amar has called the post-civil rights period and the changes wrought by the 14th Amendment a second founding, and it does seem odd that even Americans who are quite familiar with the roles played by Jefferson, Madison, Franklin, Hamilton et al have never heard of Bingham, nor been taught about the profound effect of his Amendment.

Just goes to show, I guess. HIstory’s a crapshoot.

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It’s All Connected….

One of the difficulties in crafting reasonable public policies is that the world isn’t nice and neat, so perfectly logical approaches to problem A often fail because the chosen solution doesn’t  take cause B into account.

This is especially true of efforts to improve public education. Those efforts are already fraught, because a substantial number of those arguing over reforms are acting on the basis of analyses based on political ideology rather than on evidence, and because there is no real agreement on either the nature of the education we’re trying to improve or the accuracy of efforts to measure it.

A persistent bone of contention in these debates has been the effect of poverty. Educators have insisted that poor children bring substantial barriers to learning into the classroom with them; their argument has been dismissed by reformers who respond that the “barriers” are just excuses for poor teaching.

If poverty makes it more difficult for children to learn, reform becomes considerably more difficult–so it is understandable that well-meaning people who want to do something now about low performance would be reluctant to consider how it fits into the mix. (One huge social problem at a time, folks!)

As long as this discussion was largely theoretical, reformers could focus on what happened in the classroom to the exclusion of the rest of poor kids’ lives. Aside from occasional acknowledgments of the role played by urban asthma and lead poisoning, there has been little recognition of the effects of poverty on IQ.

That may change.

Last month, the journal Science published a major study by researchers at Princeton, Harvard and the University of Warwick. (Science is a pre-eminent peer-reviewed journal.) The researchers concluded that “the condition of poverty imposed a mental burden akin to losing 13 IQ points.”

It’s important to clarify what that meant. Poor people don’t really “lose” those IQ points–mental capacities return when the stresses and preoccupations attendant to being poor lessen. The research compared human cognition to bandwidth–there’s only a finite amount of it, and poverty imposes a “mental load” that is the equivalent of losing a night’s sleep, or being a chronic alcoholic. As Princeton’s Eldar Shafir explained,

“When your bandwidth is loaded, in the case of the poor, you’re just more likely to not notice things, you’re more likely to not resist things you ought to resist, you’re more likely to forget things, you’re going to have less patience, less attention to devote to your children when they come back from school.”

This researchers studied adults, but obviously, the deficits they identified would affect the children of poor families in a number of ways.

The question is: what do we do to ameliorate the problem? Can we ever hope to “fix” public education without addressing poverty?

And why are our lawmakers so intent on shredding–rather than mending–the social safety net?

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When Elected Officials Don’t Get It, We All Pay the Price

Indiana Governor Mike Pence is adamantly opposed to the expansion of Medicaid in Indiana, despite the fact that his opposition will cost Hoosiers a lot of money–not to mention lives.

I have previously explained why our stubborn refusal to participate in this particular aspect of the Affordable Care Act is irresponsible, inhumane and costly.

When Pence announced his negotiated one-year “deal” with the federal government to continue “Healthy Indiana” in lieu of expanding Medicare (a “deal” that leaves some 400,000 Hoosiers without healthcare), he insisted that “Consumer driven healthcare is the path to the future.”

Sorry, Mike–but if that’s the case,  the future is pretty damn bleak.

Here’s the problem: markets work incredibly well when buyers and sellers operate on a level playing field. They work especially well when consumers are looking for widely-available goods and services, and can compare prices and quality and shop around for the best deal. Economists define a market transaction as one involving a willing buyer and willing seller, both of whom are in possession of all relevant information.

That description does not remotely apply to medical care.

The “consumer” who needs a hernia operation is highly unlikely to be in a position to shop around. He’s much more likely to need immediate care, and be locked into using a particular provider by his insurance company. And he is highly unlikely to know as much about the procedure as his doctor.

For that matter, this “consumer transaction” isn’t going to be negotiated by the patient and his doctor. The real parties to this transaction are the doctor and the health insurance company–and as recent news reports have reminded us, the needs of the patient are rarely front and center. (The Star recently reported on a lawsuit brought by the widow of a man who needed a pacemaker–despite the urging of his own doctor and another doctor who was consulted for a required “second opinion,” the insurer delayed its approval, and the man died. The doctor insists that, had his patient had a timely procedure, he’d be alive today.)

There is no market in health care. There never will be. Hernias and heart attacks aren’t widgets and mousetraps; there is not and cannot be a level playing field where consumers have as much information and power as their providers–or where their providers have as much power as the insurers. Other countries have figured that out. And in those other countries, amazing as it may seem, big bad evil government has turned out to be more protective of patient needs than for-profit insurance companies beholden to their shareholders.

To suggest that “consumer-driven” healthcare is the future is to display profound ignorance of market economics.

I think it’s interesting how many “free market” ideologues like our governor have no idea how markets really work.

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The Purpose of Language

Perhaps Tallyrand was right when he (purportedly) said that language was given to man to conceal his thoughts; we sure aren’t using it in order to communicate with each other these days.

In order to use language to exchange ideas, rather than to evade the chore of thinking, we’d have to stop the increasing tendency to substitute labeling for communicating. There are two major problems with that substitution: it allows us to avoid responding to the merits of an argument, and the labels themselves are all too often devoid of any meaningful content.

As many of you know, I alternate columns in the IBJ with Peter Rusthoven–I write one week, he the next. Generally, we do not take issue with each other, but a few weeks ago, I wrote a column that criticized the GOPs repeated efforts to derail “Obamacare,” including the House of Representatives’ forty (meaningless/posturing) votes.  Rusthoven disagreed with that column, as he has a perfect right to do. But opened his “response” by pointing out that I am (in his lexicon, at least) a liberal. The implication was clear: we need not spend any time on the merits of her arguments, because we’ve placed her in this particular box and we have all made up our minds about the content of that box.

It may not be fair to pick on Peter for this behavior, because he is far from the only person who engages in it–on either side of the political spectrum. Furthermore, we all classify others to some extent; it’s human and it’s often efficient. The problem is, if we are going to affix a label that actually assists us in understanding where another person is coming from, we need to agree on the meaning of that label. And these days, we don’t.

Labels have lost their descriptive utility–they’ve become insults. Epithets. This is especially true of political labels.

A couple of years back, I proposed a quiz:

What highly placed political figure took each of the following actions?
  • Established the Environmental Protection Agency
  • Pardoned a powerful person who had committed a felony
  • Changed the rules governing welfare to restrict benefits and add work requirements
  • Defended the right of gays to serve in the military
  • Imposed wage and price controls during an inflationary spiral
The answers are: Richard Nixon established the EPA and imposed wage and price controls during his presidency; Gerald Ford pardoned Nixon after his resignation; Bill Clinton proposed and signed legislation “reforming welfare as we know it;” and Barry Goldwater vigorously defended the right of gays to serve openly in the military.
Which of these actions–and political figures– would we label “liberal” and which “conservative”?
Since Obama’s election, the problem has only worsened. The people who insist that the President is a “socialist” clearly don’t have the faintest idea what a socialist is. (And as I have pointed out elsewhere, he can’t be both a socialist and a Nazi at the same time; “National Socialism” is not the same thing as the political philosophy known as socialism.)
Actually, when I read “The Audacity of Hope,” it reminded me of my own platform when I ran for Congress in 1980–and at the time, I was labeled a conservative Republican.
When I encounter one of these accusatory critics, I want to shout “Agree with the President or disagree with him on the merits of his performance or positions. The substitution of (highly inaccurate) labels simply lets people know that you don’t know what you’re talking about.”
What reasonable people hear when a label is used in lieu of an argument is: I don’t like person X or position Y.  I have no clear reason for my animus, and no persuasive counter to his position, so I’ll just call up a handy label.
That’s not communication, and it doesn’t advance any debate.  Tallyrand to the contrary, it doesn’t even conceal the speaker’s thoughts.
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A Perfect Analogy

Don Knebel is one of the lawyer/scholars who contributes to the Center for Civic Literacy’s new blog, and he can be counted on to have wise words for all of us. I particularly loved this one, because–as he notes–people constantly compare the national budget to those of everyday Americans.

Politicians often say that the federal government should emulate families in budget matters.  They are right, but not for the reasons most of them think.  Until the government distinguishes among types of expenditures as families (and businesses) do, we will not be able make sound financial decisions.  Perhaps more important, we will not be able to evaluate the claims of our politicians about the size of our annual deficits.

I particularly loved his analogy to those real families.

The reported deficit simply compares the amount of cash going out with the amount coming in.  So, whether the money is spent for a dam capable of producing electricity for 50 years or a toothpick, the money is all counted toward the deficit in the year in which it was spent.

No family looks at its budget that way.  When a couple earning $50,000 a year spends $100,000 for a new house, borrowing $80,000, they don’t believe they are $30,000 in the red for the year.  They recognize the debt is offset by the value of the house and spread the cost over the expected life of the house or at least over the length of their mortgage.  On the other hand, they know they could be in serious financial trouble if they borrowed the same $80,000 to take their family on an around the world cruise generating no offsetting asset.  Understanding the difference, prudent families borrow for homes but not for cruises.

The average American family understands and acts upon the difference between capital investments and everyday expenses. We should expect our politicians and pundits to  understand that difference as well, and those who don’t–and those who pretend not to understand it–should be sent to a remedial classroom where Don Knebel can explain it to them.

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