How to Negotiate with Iran

My latest article for the Atlantic Council is out. An excerpt:

It is still early in the second term of the Obama administration, and as with the beginning of all presidential terms, hope springs eternal in political circles that longstanding obstacles to policy progress will be swept away. In that spirit, a host of commentators are calling for the United States and Iran to make a renewed effort to resolve the differences between them.

Calls for the two countries to engage in talks have become especially insistent given the concern that Iran continues to make progress in its apparent effort to acquire nuclear weapons. Because of the urgency that issue, the United States may be tempted to make it the sole focus of talks with Iran. But a singular focus on the nuclear issue may not serve American interests well.

Both countries will use high profile negotiations to rally world opinion to their side; favorable public opinion will, after all, make it easier for the recipient of that public opinion to achieve its goals. In order to successfully rally world opinion to its side, United States would do well to make negotiations touch on a multitude of subjects that will serve to cement Iran’s image as a rogue state in the eyes of the international community. In particular, the United States should highlight the many human rights abuses that go on regularly in Iran, and make the case that through oppression of its people, the Iranian regime should be a pariah in the international community.

Read it all.

In Memoriam: Allan Calhamer

I have always wanted to become a Diplomacy aficionado, but never really got around to playing the game, let alone becoming good at it. A shame; I would probably have quickly become a fan of the game and I have likely deprived myself of some rather enjoyable experiences in my youth by not having taken it up earlier. (Now that the game is online, I really have no excuse not to try it.)

Diplomacy is back on my radar screen as a consequence of the death of its inventor, Allan Calhamer. This New York Times obituary is both charming and informative. I had no idea that the inventor of one of the world’s most popular games was a postal carrier, and that he invented Diplomacy while at Harvard law school (according to his obituary, Calhamer was not ruthless enough to have been a good player at his own game, or to pursue a career in the law. So much the better for his mental health, I imagine).

Oh, and of course, this passage is worth excerpting:

Mr. Calhamer remained deeply, if quietly, proud of Diplomacy, and though the royalties did not make him rich, they did once let him buy a Mercury Monarch. His other board games, never brought to market, include one in which, as Tatiana Calhamer described it on Monday, players move through dimensions of the space-time continuum.

For 21 years, until his retirement in the early 1990s, Mr. Calhamer delivered the mail in La Grange Park. He took pleasure, his family told The Chicago Sun-Times this week, in factoring into primes the license-plate numbers of cars on his route.

He almost certainly took pleasure, too — for this thought was doubtless not lost on him — in the idea that on any given day, slung unobtrusively over his shoulder, there might lurk a letter from one Great Power to another, filled with all the threats, blandishments and cunning hollow promises Diplomacy entails, awaiting delivery by its creator.

Requiescat in pace.

More Shameless Self-Promotion

From SSRN:

Dear Pejman Yousefzadeh:

Your paper, “DICK CHENEY AND THE ROBUST CONCEPTION OF PRESIDENTIAL POWER (BOOK REVIEW OF IN MY TIME: A PERSONAL AND POLITICAL MEMOIR BY DICK CHENEY)”, was recently listed on SSRN’s Top Ten download list for: Political Institutions eJournals.

As of 03/10/2013, your paper has been downloaded 147 times.

Very happy news. Again, keep downloading. Previous bit of shameless self-promotion found here.

Why Hugo Chavez Won’t Be Missed

Now that Hugo Chavez has gone to meet the arch-enemy of his Maker, it’s time to remind all and sundry just how dreadful a legacy he has left behind.

First, let’s take account of the purblind:

US filmmaker and long-time Hugo Chavez supporter Oliver Stone hailed the late Venezuelan leader as a “great hero” on Tuesday, saying he will “live forever in history.”

Actor and activist Sean Penn, another Hollywood friend to Chavez, also paid tribute saying the world’s poor had lost a “champion” and America had also lost “a friend it never knew it had.”

“JFK” and “Natural Born Killers” director Stone said: “I mourn a great hero to the majority of his people and those who struggle throughout the world for a place.

“Hated by the entrenched classes, Hugo Chavez will live forever in history,” he added in a statement released by his publicist, adding: “My friend, rest finally in a peace long earned.”

Stone has regularly praised Chavez, whom he interviewed for a 2009 documentary “South of the Border,” exploring the outspoken Venezuelan leader’s role in bottom-up change sweeping South America.

Penn, in a statement reacting to Chavez’s death aged 58, added: “Venezuela and its revolution will endure under the proven leadership of Vice President (Nicolas) Maduro.

“Today the people of the United States lost a friend it never knew it had. And poor people around the world lost a champion. I lost a friend I was blessed to have.

“My thoughts are with the family of President Chavez and the people of Venezuela,” he added.

Uh-huh. Let’s consider just how good Chavez has been to the people of Venezuela.

We’ll start with the fact Chavez left Venezuela in terrible shape:

Dead at 58, Hugo Chávez leaves behind a country in far worse condition than it was when he became president, its future clouded by rivals for succession in a constitutional crisis of his Bolivarian party’s making and an economy in chaos.

A former paratrooper, Mr. Chávez had a radical vision for “21st Century Socialism,” which was never fully explained. His skillful rhetoric, which filled supporters with utopian dreams, was used to justify the methodical destruction of Venezuela’s democratic institutions and the free market.

Shortly after coming to office, he rewrote the constitution to his liking and aggressively set out to rig elections and stifle adversaries in the legislative branch and the courts. Unable to brook criticism, he turned his fire on the independent news media, eventually silencing most voices of opposition by bully tactics and economic intimidation.

His Bolivarian regime rewarded supporters and punished opponents, giving rise to enormous corruption and the creation of a new class of greedy oligarchs with political connections. Unfortunately for Venezuela and for all his political skills, the president was both an incompetent executive and a worse economist.

In an energy-rich country that once knew no blackouts, electrical shortages are frequent, the result of Mr. Chávez’s plundering of the country’s public oil company. In a country that once enjoyed a thriving free market, prices are controlled and food items often scarce.

In recent weeks, while Mr. Chávez was hospitalized, Venezuela was once again forced to devalue its currency, this time by one-third. This was the inevitable outcome of a series of disastrous economic decisions that included nationalizing the telephone company and other utilities, which scared off foreign investors and spurred capital flight.

This might help explain why Venezuelans in the United States—who unlike those in Venezuela proper, are free to express their opinions—are so delighted that Chavez is dead:

Venezuelans in the U.S. cheered and expressed cautious optimism that new elections will bring change to their homeland after the death of President Hugo Chavez.

“My hope is that Venezuela will become a free country once again,” said Elizabeth Gonazalez, 52, who wore a smiley face sticker on her sweater with the words, “Venezuela without Chavez.”

A jubilant celebration broke out in the Miami suburb of Doral late Tuesday after word spread of the death of the 58-year-old leftist. Many dressed in caps and T-shirts in Venezuela’s colors of yellow, blue and red.

“He’s gone!” dozens in the largely anti-Chavez community chanted.

And why shouldn’t they be happy?

IN Caracas, Venezuela, you could tell a summit meeting mattered to Hugo Chávez when government workers touched up the city’s rubble. Before dignitaries arrived, teams with buckets and brushes would paint bright yellow lines along the route from the airport into the capital, trying to compensate for the roads’ dilapidation with flashes of color.

For really big events — say, a visit by Russia’s president — workers would make an extra effort, by also painting the rocks and debris that filled potholes.

Seated in their armor-plated cars with tinted windows, the Russians might not have noticed the glistening golden nuggets, but they would surely have recognized the idea of the Potemkin village.


That same dramatic flair deeply divided Venezuelans as he postured on the world stage and talked of restoring equilibrium between the rich countries and the rest of the world. It now obscures his real legacy, which is far less dramatic than he would have hoped. In fact, it’s mundane. Mr. Chávez, in the final analysis, was an awful manager.

The legacy of his 14-year “socialist revolution” is apparent across Venezuela: the decay, dysfunction and blight that afflict the economy and every state institution.

Read the whole thing, which makes clear that just about everything Chavez touched turned to ashes. More from Michael Moynihan:

Chávez presided over a political epoch flush with money and lorded over a society riven by fear, deep political divisions, and ultraviolence. Consider the latest crime statistics from Observatorio Venezolano de la Violencia, which reckons that 2012 saw an astonishing 21,692 murders in the country—in a population of 29 million. Last year, I accompanied a Venezuelan journalist on his morning rounds at Caracas’s only morgue to count the previous night’s murders. As the number of dead ballooned, the Chávez regime simply stopped releasing murder statistics to the media.

All of this could have been predicted, and wasn’t particularly surprising from a president who believed that one must take the side of any enemy of the “empire.” That Zimbabwe’s dictator Robert Mugabe was a “freedom fighter,” or that Belarusian dictator Alexander Lukashenko presided over “a model of a social state.” Saddam Hussein was a “brother,” Bashar al-Assad had the “same political vision” as the Bolivarian revolutionaries in Venezuela. He saw in the madness of Col. Gaddafi an often overlooked “brilliance” (“I ask God to protect the life of our brother Muammar Gaddafi”). The brutal terrorist Carlos the Jackal, who praised the 9/11 attacks from his French jail cell, was “a good friend.” He praised and supported FARC, the terrorist organization operating in neighboring Colombia. The list is endless.

His was a poisonous influence on the region, one rah-rahed by radical fools who desired to see a thumb jammed in America’s eye, while not caring a lick for its effect on ordinary Venezuelans. In his terrific new book (fortuitously timed to publish this week) Comandante: Hugo Chávez’s VenezuelaThe Guardian’s Rory Carroll summed up the legacy of Chávez’s Venezuela as “a land of power cuts, broken escalators, shortages, queues, insecurity, bureaucracy, unreturned calls, unfilled holes, uncollected garbage.” One could add to that list grinding poverty, massive corruption, censorship, and intimidation.

This was Chávez’s reign and his legacy; extralegal, vindictive, and interested in the short-term gesture rather than the more difficult, long-term solution. From his revolutionary comrades in Cuba, he borrowed the slogan “patria, socialismo o muerte”—fatherland, socialism or death. The fatherland is a shambles, Bolivarian socialism has failed, and Comandante Chávez is dead. May the “revolution” die with him.

Quite so. It should come as no surprise that the Iranian regime is deeply saddened by Chavez’s death, having lost in Chavez an inspiration for how to annihilate a country’s prospects and oppress its people.

It’s worth noting as well that Chavez left behind a country with an unbelievably dysfunctional political system. Link:

In one neighborhood, Chávez supporters set fire to tents and mattresses used by university students who had chained themselves together in protest several days earlier to demand more information about Mr. Chávez’s condition.

“Are you happy now?” the Chávez supporters shouted as they ran through the streets with sticks. “Chávez is dead! You got what you wanted!”

Let it be noted that in Venezuela, asking for political transparency can leave you vulnerable to mob attack. More:

Shortly before announcing that Hugo Chávez died, Venezuela’s government resorted to one of the late president’s favorite ploys to try to unite his supporters: allege a conspiracy by the U.S. to destabilize the country.

Vice President Nicolás Maduro kicked out two U.S. military attachés for allegedly plotting against Venezuela and even suggested that Washington may have been behind Mr. Chávez’s cancer.

“Behind all of [the plots] are the enemies of the fatherland,” Mr. Maduro said on state television, flanked by the entire cabinet, state governors and Venezuela’s military commanders.

Mr. Maduro said that the U.S. Embassy’s Air Force attaché, Col. David Delmonaco, and another unnamed U.S. military official had approached members of the Venezuelan military and tried to recruit them into plans to “destabilize” the oil-rich South American nation. Mr. Maduro didn’t offer further details on the alleged plot.

Mr. Maduro also suggested that the country’s “historic enemies,” a phrase long used in Venezuela to refer to the U.S. and its allies, may have caused Mr. Chávez’s cancer. He said the country would likely discover in the future that Mr. Chávez “was attacked with this illness.”

This is the response of the government of a country which is going down the tubes?

And let’s remember what the last presidential election was like. Consider this story about Henrique Capriles, who challenged Chavez last year, and who is likely to challenge his successor, Maduro, in upcoming elections. Look at what he had to put up with:

Last year, government supporters threw racist and homophobic taunts at Capriles, who has Jewish roots and lost great-grandparents in the Treblinka concentration camp in German-occupied Poland during World War Two.

One can be certain that these attacks were approved by Chavez, or by people close to him.

This blog post has gone on for a while, so I will close it by recommending this piece by Zack Beauchamp, who is on the other side of me politically, but who is a worthy and interesting interlocutor on Twitter. He urges Democrats not to think fondly of Chavez—and isn’t it sad that some Democrats needed urging? Finally, consider this from the late and missed Christopher Hitchens regarding a 2008 trip to Venezuela:

Recent accounts of Hugo Chávez’s politicized necrophilia may seem almost too lurid to believe, but I can testify from personal experience that they may well be an understatement. In the early hours of July 16—just at the midnight hour, to be precise—Venezuela’s capo officiated at a grisly ceremony. This involved the exhumation of the mortal remains of Simón Bolívar, leader of Latin America’s rebellion against Spain, who died in 1830. According to a vividly written article by Thor Halvorssen in the July 25 Washington Post, the skeleton was picked apart—even as Chávez tweeted the proceedings for his audience—and some teeth and bone fragments were taken away for testing. The residual pieces were placed in a coffin stamped with the Chávez government’s seal. In one of the rather free-associating speeches for which he has become celebrated, Chávez appealed to Jesus Christ to restage the raising of Lazarus and reanimate Bolívar’s constituent parts. He went on:

“I had some doubts, but after seeing his remains, my heart said, ‘Yes, it is me.’ Father, is that you, or who are you? The answer: ‘It is me, but I awaken every hundred years when the people awaken.’ “

As if “channeling” this none-too-subtle identification of Chávez with the national hero, Venezuelan television was compelled to run images of Bolívar, followed by footage of the remains, and then pictures of the boss. The national anthem provided the soundtrack. Not since North Korean media declared Kim Jong-il to be the reincarnation of Kim Il Sung has there been such a blatant attempt to create a necrocracy, or perhaps mausolocracy, in which a living claimant assumes the fleshly mantle of the departed.

If only Hugo Chavez were as obsessed with venerating the living as he was with glorifying the dead, Venezuelans may have done better under his leadership.

Happy News from SSRN

Dear Pejman Yousefzadeh:
Your paper, “DICK CHENEY AND THE ROBUST CONCEPTION OF PRESIDENTIAL POWER (BOOK REVIEW OF IN MY TIME: A PERSONAL AND POLITICAL MEMOIR BY DICK CHENEY)”, was recently listed on SSRN’s Top Ten download list for: LSN: Structure of Government & Political Theory (Topic), LSN: Structure of Government & Separation of Powers (Topic), Law & Politics eJournal, Law & Society: Public Law - Constitutional Law eJournal, PRN: Political Processes, Public Policies, Individual & Social Well-Being (Topic), PSN: Executive Authority (Topic) and Political Institutions: The President & Executives eJournal.

Keep downloading.

I’ve Never Been So Happy to Have Demonstrated Bad Timing in All My Life

So, apparently we won’t put my master plan into effect. Hugo Chavez became … oh, how shall I phrase this? … a victim of sequestration with no possibility of reversal via subsequent legislation. He joined the bleeding choir invisible. His death affords cancer a unique opportunity to improve its PR standing throughout the world.

There is little I need to add to my earlier post regarding Chavez. He was a thug and a tyrant. He violated the political and human rights of his opponents and he drove Venezuela’s economy into the ground. Deep into it. “Oh, but he won elections,” his supporters—yes, there are some—will protest. Well, if you gave control over the Venezuelan state media apparatus to me instead of to Chavez, I might have won those elections. Chavez made sure not to play on a level playing field where his political opponents might have stood a chance of beating him. He rigged the political game in his favor. It’s no wonder he won elections, but the mere winning of elections does not a democracy make. Chavez won by seizing power and resources in order to further his propaganda, and by intimidating and harassing opponents who remained brave enough to defy him. He was a great many things in his life, but “friend of liberty” was not one of those things.

Oh, and I suppose that it’s worth noting that like a great many other tyrants, Hugo Chavez was a rabid anti-Semite:

Venezuela’s Jewish community, amounting to less than 1 percent of the country’s total population of 26 million, is among the oldest in South America, dating back to the early 19th century. During the struggle for independence from Spain, the fugitive revolutionary Simón Bolívar found refuge among a group of Venezuelan Jews, some of whom later went on to fight in the ranks of his liberating army. Today, the majority of the country’s Jewish population is descended from an influx of European and North African immigrants who arrived during the years surrounding World War II. Most reside in the capital city of Caracas, comprising a tightly knit community made up of roughly equal numbers from Ashkenazi and Sephardi countries of origin.

Venezuelans pride themselves on living in an ethnic and religious melting pot. Their homeland, unlike its neighbors Argentina, Paraguay, and Chile, has no history of having harbored Nazi fugitives. Before Chávez came to power, members of the Jewish community reported little animosity from either the government or the populace, and sharply anti-Zionist rhetoric was relatively uncommon. Nor did Venezuela’s fifteen synagogues (all but one of them Orthodox) experience much of the anti-Semitic vandalism common in other Latin American countries with tiny Jewish populations. The Hebraica center—its building functions as a lavish social hub, elementary school, country club, sports facility, and gathering place for Caracas Jewry—was largely left in peace.

No longer. Since Chávez took the oath of office at the beginning of 1999, there has been an unprecedented surge in anti-Semitism throughout Venezuela. Government-owned media outlets have published anti-Semitic tracts with increasing frequency. Pro-Chávez groups have publicly disseminated copies of the Protocols of the Elders of Zion, the early-20th-century czarist forgery outlining an alleged worldwide Jewish conspiracy to seize control of the world. Prominent Jewish figures have been publicly denounced for supposed disloyalty to the “Bolívarian” cause, and “Semitic banks” have been accused of plotting against the regime. Citing suspicions of such plots, Chávez’s government has gone so far as to stage raids on Jewish elementary schools and other places of meeting. The anti-Zionism expressed by the government is steadily spilling over into street-level anti-Semitism, in which synagogues are vandalized with a frequency and viciousness never before seen in the country.

There is no reason whatsoever that so awful an individual should be missed by any decent person. And yet, some who claim to be decent people make noises vaguely resembling sorrow over Chavez’s death. One such person is Jimmy Carter, who reminds us why Americans were wrong to give him one term in office, and right to deny him a second one:

Rosalynn and I extend our condolences to the family of Hugo Chávez Frías.  We met Hugo Chávez when he was campaigning for president in 1998 and The Carter Center was invited to observe elections for the first time in Venezuela.  We returned often, for the 2000 elections, and then to facilitate dialogue during the political conflict of 2002-2004.  We came to know a man who expressed a vision to bring profound changes to his country to benefit especially those people who had felt neglected and marginalized.  Although we have not agreed with all of the methods followed by his government, we have never doubted Hugo Chávez’s commitment to improving the lives of millions of his fellow countrymen.

Not a word spared for the victims of Chavez’s persecution. Also being morally obtuse: Representative Jose Serrano, who needs to soundly lose his next election. How much worse did Chavez have to be for Carter’s and Serrano’s eyes to have been opened?

Thankfully, we will never have to find out. Goodbye, Hugo Chavez. You will not be missed. And if you will be kind enough to indulge me, gentle readers, as a Jew, I would like to offer the following prayer—especially for the Jews in Venezuela who suffered the anti-Semitic lunacy of the Chavez regime:

                                                   .בָּרוּךְ אַתָּה יְיָ אֱלֹהֵינוּ מֶלֶךְ הַעוֹלָם שֶׁהֶחֱיָנוּ וְקִיְּמָנוּ וְהִגִּיעָנוּ לַזְּמַן הַזֶּה

When Your Enemy Is as Good as Dead, Offer to Help Him

Hugo Chavez is in a bad way and might not be long for this world. Only those who approve of Chavez’s particular brand of moral idiocy and his unique capacity to annihilate the Venezuelan economy could possibly feel badly about this, and we know what that makes those people. I suppose that it is worth noting that once upon a time, Michael Moore—who certainly approves of moral idiocy and the destruction of economies via the implementation of socialist economic policies—once made a movie about how Cuban health care might be preferable to the health care found in the United States; Chavez has received lots and lots (and lots) of treatment in Cuba. Maybe future editions of the movie ought to be received with a postscript—Cuban health care appears to have all but killed a head of state who was exceedingly friendly to the Castro brothers. Irony, thou art a cruel mistress.

Chavez may be beyond saving at this point, and is certainly does not deserve to recover from his health woes, but it wouldn’t be the world’s worst idea for the United States to offer to try to help him out via a public statement to the effect that Chavez would be welcome to come to the United States and go to any hospital he wants in order to combat the ailments a just Deity has visited on him. I put forward this idea for the following reasons:

  • It makes the United States look kind and merciful;
  • Looking kind and merciful will do more to improve our soft power than have any number of “resets” the Obama administration has tried;
  • Chavez and his regime will be flummoxed by the offer from a public relations standpoint, and …
  • There is absolutely no way that Chavez will accept the offer.

Now, I don’t know about the rest of you, but I count this as a win-win. The United States can make it look as though it is willing to help Chavez out, thus winning points for its humanitarian gesture. Chavez will likely refuse the generosity of the United States, look churlish as a consequence, and then will likely soon join the bleeding choir invisible. About the only way that this might—emphasis on the word “might”—go wrong is if Chavez accepts the offer, comes to the United States, kicks the bucket, and then a public relations campaign begins blaming the United States for (perhaps deliberately) causing Hugo Chavez to have an eternal meeting with Beelzebub. But I count the chances of that happening as very low indeed. And even if it does happen, how successful would any such public relations campaign be? I mean, would you buy a story claiming that Hugo Chavez was within kissing distance of Death, so the United States invited him to our shores to make sure that both sides puckered up and smooched? Even some Chavistas might have problems taking such a claim seriously.

So what is the United States waiting for? President Obama should loudly and publicly invite Hugo Chavez to take advantage of our advanced medical care, watch him and his regime sputter out a rejection of the offer, bask in the public relations coup that follows, and then pop popcorn and let nature take its course.

What’s not to love about this plan?

How the Hart-Dworkin Debate Applies to Egyptian Legal Reform

My latest article for the Atlantic Council. An excerpt:

The Hart-Dworkin debate was and is no mere academic exercise. Quite the contrary; it touches on very tangible issues in the world today. Consider the case of Egypt. In December of last year, Egypt approved a constitution that made shari’a law “the main source of legislation.” This language was also present in the 1971 constitution, but the 2012 constitution goes further by listing said principles ( “evidence, rules, jurisprudence and sources”) and by giving “unprecedented powers to Al-Azhar, Sunni Islam’s most respected religious school, by saying its scholars must be consulted on all matters relating to Sharia. The 1971 charter did not mention Al-Azhar.”

Click on the link for more.

As Larry Solum Might Say …

“Download [my article] while it’s hot!” From the abstract:

The memoirs of former Vice President Dick Cheney advance — among other things — his expansive view of executive power. This Book Review discusses Cheney’s those views. It depicts Cheney’s Nixon Administration experience, his time as a member of Congress, and his service as secretary of defense and vice president. In all of his years of public service, Cheney did not become a skeptic of executive power. On the contrary, even as a member of Congress, he sought to safeguard executive power against what he — and others around him — saw as encroachment by Congress. This Book Review also highlights two notable instances in which Cheney, as a member of the Executive Branch, sought to protect presidential power — and one instance in which he worked to preserve the autonomy of the Vice President from the President and his staff.

Repeat After Me: “Biotech Crops DON’T Post a Health/Safety/Environmental Risk”

And anyone who tells you otherwise is (a) lying; or (b) incredibly misinformed. Also, (c) if their lies/misinformation are accepted as true, the resulting lack of biotech crops will cause millions to starve to death.

Incidentally, it is worth noting that the people who denigrate biotech crops and GMOs are overwhelmingly found on the port side of the partisan divide. Their war against biotech crops/GMOs should be termed a war on science, and would be if the people waging that war were Republicans instead.

Guest-Blogging on Lawfare

As a follow-up to this postBenjamin Wittes, the editor-in-chief of Lawfare, invited me to do a guest-post on how the game of Go is teaching us to counter cyber security threats. My thanks to Ben for the opportunity, which I enjoyed. And I am more than glad to reiterate my praise for Lawfare as one of the most informative blogs around.

Making Reaganism Relevant

I have written before that instead of asking whether some aspiring political leader is “the next Ronald Reagan,” conservatives, small-government libertarians, and Republicans in general should demand an original leader who is well-equipped to take on current challenges. Ramesh Ponnuru argues—quite properly—that in addition, Reagan’s entire philosophy of government has to be updated to address present day issues:

When Reagan cut rates for everyone, the top tax rate was 70 percent and the income tax was the biggest tax most people paid. Now neither of those things is true: For most of the last decade the top rate has been 35 percent, and the payroll tax is larger than the income tax for most people. Yet Republicans have treated the income tax as the same impediment to economic growth and middle-class millstone that it was in Reagan’s day. House Republicans have repeatedly voted to bring the top rate down still further, to 25 percent.

A Republican Party attentive to today’s problems rather than yesterday’s would work to lighten the burden of the payroll tax, not just the income tax. An expanded child tax credit that offset the burden of both taxes would be the kind of broad-based middle-class tax relief that Reagan delivered. Republicans should make room for this idea in their budgets, even if it means giving up on the idea of a 25 percent top tax rate.

When Reagan took office, he could have confidence in John F. Kennedy’s conviction that a rising tide would lift all boats. In more recent years, though, economic growth hasn’t always raised wages for most people. The rising cost of health insurance has eaten up raises. Controlling the cost of health care has to be a bigger part of the Republican agenda now that it’s a bigger portion of the economy. An important first step would be to change the existing tax break for health insurance so that people would be able to pocket the savings if they chose cheaper plans.

Conservative views of monetary policy are also stuck in the late 1970s. From 1979 to 1981, inflation hit double digits three years in a row. Tighter money was the answer. To judge from the rhetoric of most Republican politicians, you would think we were again suffering from galloping inflation. The average annual inflation rate over the last five years has been just 2 percent. You would have to go back a long time to find the last period of similarly low inflation. Today nominal spending — the total amount of dollars circulating in the economy both for consumption and investment — has fallen well below its path before the financial crisis and the recession. That’s the reverse of the pattern of the late 1970s.

I would add that it should still be possible to have a flatter, lower overall tax system, with the top rate close to 25%, but like Ponnuru, I am surprised that more Republicans haven’t gotten on the bandwagon to lower the payroll tax. I have argued for them to do so in the past. It would be a great way for Republicans to start to win back middle class voters, and it would be very good policy to boot.

Some Facts about Sequestration that the New York Times Fails to Understand

Sequestration, by the Times’s own admission, “will not stop to contemplate whether [the programs it cuts] are the right programs to cut; it is entirely indiscriminate, slashing programs whether they are bloated or essential.” And yet, the Times pretends throughout its unsigned editorial—I wouldn’t want to put my name on it either—that sequestration represents the only pathway by which center-right policymakers want to shrink government, or at least reduce the growth of government.

This, of course, is a silly argument, but one that has great sway in the epistemically closed world in which the Times finds its most ardent fans. Few, if any small-government libertarians and conservatives would propose to shrink government in the manner that sequestration calls for; they would by contrast be more than willing to reduce government “substantially, but thoughtfully, considering the nation’s needs” via regular order as contemplated by the traditional appropriations process. The problem, however, is that it has been nearly four years(!) since Senate Democrats passed a budget—we have been operating on continuing resolutions since then—and there is no Fiscal Grand Bargain in the offing, especially not with a White House that signaled its intention very early after the November elections to make war with Republicans during the president’s second term, and which doubled and tripled down on those intentions in the inaugural and State of the Union addresses. Because the parties don’t appear to be in a mood to deal, and because any further delay in getting our fiscal house in order might further jeopardize our credit rating, we have the sequester to force matters along. Either the parties get their respective acts together, or we get the meat cleaver.

Am I happy about the sequester? Of course not; it’s a dumb way to grapple with fiscal issues. But instruments like the sequester get designed and implemented because national leaders too often become shirkers of responsibility. If elected officials stepped up and did their jobs, we might have nice(r) things.

Would it be too much to ask that the Times remember all of this? Would it be too much to ask that it refrain from implying—and the Times does more than imply—that sequestration has come about because too many representatives and senators have worn out their copies of The Conscience of a Conservative and their DVDs of Ronald Reagan’s first inaugural? Would it be too much to ask that the Times recall in its editorials that Democrats joined Republicans in implementing the sequestration mechanism to force themselves and each other to act And while I am asking questions, would it be too much to ask that the Times remember which president signed the sequester into law? Here’s a hint; he’s the current Democrat-in-Chief.

Some might wonder why I bother asking these questions. After all, the irresponsibility of elected officials is not the only reason why we can’t have nice(r) things. Journalists aren’t exactly setting records these days either.

(Nota bene: Not being the New York Times, I have no problems with my name being associated with this blog post.)

In Memoriam: Ronald Dworkin

The most consequential legal philosopher since H.L.A. Hart passed away on February 14th. Edward Luce discusses Dworkin’s legacy:

Most accounts of western liberal thought conclude with its seemingly inevitable drift into relativism – the denial that there is any such thing as a right answer. If the 18th and 19th centuries belonged to positive liberty – the idea that a free society could be grounded in morality – the 20th gave way to the negative, as argued by Isaiah Berlin: the only thing society can ultimately promise is freedom from oppression (and that society is largely silent on what people should do with their freedom.)

Ronald Dworkin swam powerfully against that tide. As one of America’s most celebrated liberal philosophers, Dworkin, who has died at 81 in a London hospital, dominated or heavily influenced every field of philosophy he touched. A life-long Anglophile who studied and taught on both sides of the Atlantic, he was a philosopher of constitutional law, morality, politics and how to live life.

Running through all Dworkin’s work, from the seminal Taking Rights Seriously that took on the legal positivists who dominated Anglo-American jurisprudence, to the more recent Justice for Hedgehogs, is the idea there is a right answer to everything. We may not always know what it is – or be able to reveal it to everyone’s satisfaction. But to deny its possibility is to flirt with nihilism.

Professor Larry Solum remembers Dworkin thusly:

… Dworkin’s output was prodigious and his intellect was ferocious.  He was famous for making seemingly effortless presentations, composed in perfect sentences and paragraphs, but apparently delivered on the fly—almost always without notes.  Dworkin was not one to give ground.  Critics were frequently frustrated by his deflection of arguments by restating his position in a way that objections did not apply and then insisting that this had been his position all along.  He was famous for the workshops he hosted, in which he would both present and critique the authors work: it was always quite a show.  Dworkin was for many years the Professor of Jurisprudence at the University of Oxford, he followed H.L.A. Hart in that chair.  He also taught at New York University, Yale, and the University of London.  He clerked for Learned Hand and worked at Sullivan and Cromwell.

Dworkin was undoubtedly one of the greats.  He transformed legal theory and the philosophy of law.  He was deeply committed to liberalism and equality, and lived a life of style and much grace.

Randy Barnett had the opportunity to study with Dworkin:

Dworkin did me a very good turn once. When I was deeply absorbed in Harvard’s extensive 9-hour criminal law trial practice program, I neglected my other courses. I showed up for one only to find I didn’t understand a word the professor was saying. After class, I made a bee line to the Registrar to drop the course, but being a third year student, I needed to find replacement credits. Dworkin agreed to sponsor an independent study for 1 credit hour (I don’t remember how I made up the other 2). I wrote a paper criticizing a chapter of his recently published book, Taking Rights Seriously, devoted to the proposition that there is “no general right to liberty.”

I met with him a couple times to discuss my paper, and the interchanges were amazing. Rather than respond to the criticism or argue, he got inside my argument to see what I needed to say in order to make it work. When he asked me whether I was willing to trade off property rights for an increase in liberty, and I declined, he replied: “Well then you’re not a libertarian, you’re a propertarian.” That challenge inspired a great deal of my early work on liberty that culminated in my book The Structure of Liberty: Justice and the Rule of Law (OUP 1998). (I am currently writing an Afterword for a new edition to be published by Oxford University Press).  (I still think I am a libertarian.)


A master rhetorician, Dworkin was not without his faults and weaknesses, but today is not the day to dwell on these.  Today, I choose to remember the man who did me a very good turn when I needed it badly, at a school where good turns from faculty were hard to come by, and something he did not need to do.  I remember him as a debater extraordinaire who, in his prime, could simply take your breath away when in verbal combat.  I remember him as a scintillating teacher who had a deep influence on me.  Before I became an originalist in the late 90s, if you had asked me about my approach to constitutional interpretation, I would have described myself as a Dworkinian.  Even when I was a very junior professor, he seemed to remember me when we met and was very gracious in his praise.

Another libertarian—Walter Olson—writes that there is much in Dworkin’s work that ought to appeal to libertarians:

I’ve taken a less-than-reverent view of Dworkin’s work myself on occasion, but obituaries make a suitable time to emphasize the positive, and the fact is that over decades of intra-Left legal debates, Dworkin repeatedly took the better side, arguing for the importance of individual rights, free speech and the integrity of law as a discipline in itself. His forceful arguments on First Amendment values were important in preventing the anti-speech feminism of Catherine MacKinnon from becoming the dominant view in American progressive circles. He warned appropriately against the temptation on both left and right to abdicate questions of jurisprudence to simple majoritarianism in one form or another, and argued eloquently on behalf of both formalism and constitutionalism (legal reasoning yields correct answers for adjudicating particular cases, and law is not merely an extension of politics by other means). True, he tended to fill these honorable vessels with very different contents than I or my Cato colleagues might. But better that than to smash the vessels and leave us with no inheritance of law or constitution or legal principle or rights at all, as not a few others on the Left were attempting to do over Dworkin’s long heyday.

Thanks to the Hart-Dworkin debate, Dworkin will forever be linked with H.L.A. Hart. Back in 2007, law professor Scott Shapiro outlined the nature of that debate. From the abstract:

Although trying to capture the essence of a philosophical debate can be tricky, I think that there is an important unity to the Hart-Dworkin debate that can be described in a relatively straightforward manner. I suggest that the debate is organized around one of the most profound issues in the philosophy of law, namely, the relation between legality and morality. Dworkin’s basic strategy throughout the course of the debate has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well. This contention directly challenges, and threatens to undermine, the positivist picture about the nature of law, in which legality is never determined by morality, but solely by social practice. As one might expect, the response by Hart and his followers has been to argue that this dependence of legality on morality is either merely apparent or does not, in fact, undermine the social foundations of law. 

I recommend downloading the full paper. I side with Hart in the debate; morality can be—and often is—a subjective construct that depends in large part on cultural and religious norms. We all have our own concept of what constitutes morality and we would like that morality to find a place in the law, but my morality may not be yours and it is a tricky thing (to say the least) to demand that judges incorporate a standard of morality into their rulings when there are so many different standards of morality out there. To ensure that a standard of morality finds its place in the law, it is best to agitate for political action and to place pressure on legislative bodies in order to bring about a desired addition of a particular moral code into a body of law. So long as a law obeys the dictates of a validly enacted constitution and is passed by officials who are freely elected in a manner that comports with constitutional law, that law should be considered valid. Whether that law is moral is another matter—one best left for politicians and the electorate to hash out in debates and elections.

One of the problems with a Dworkinian jurisprudence is that it conveniently leads to legal outcomes that Dworkin the political animal liked. The New York Times’s obituary notes the following quote from Judge Richard Posner: “Dworkin’s dominant bent as a public intellectual is to polemicize in favor of a standard menu of left-liberal policies.” This critique was echoed by the late Judge Robert Bork, who said that “Dworkin writes with great complexity but, in the end, always discovers that the moral philosophy appropriate to the Constitution produces the results that a liberal moral relativist prefers.” It was fine and good for Dworkin to have a distinct political philosophy to which he professed great adherence throughout his life, but to come up with a method of jurisprudence that just happened to demand that judges make that particular political philosophy part and parcel of their rulings constituted gaming the system. Not everyone shares Dworkin’s political philosophy, but to believe in the validity of Dworkinian, anti-positivist jurisprudence, one is obliged to. That is a step too far.

And of course, some of Dworkin’s comments in the political sphere were silly. David Wagner’s remembrance recalls the following comment from Dworkin during the 2008 election:

Even a mediocre Democratic candidate should win easily. If a remarkably distinguished candidate like Obama loses, this can be for only one reason. We Americans can do something great in November. Or we can do something absolutely terrible and then live with the shame of our stupid, self-destructive racial prejudice for yet another generation.

Of course, it ought to go without saying that there were and are reasons to wish that Barack Obama were not president that have nothing whatsoever to do with race. And I have to believe that Dworkin was smart enough—and not nearly too partisan, despite his obvious partisanship—to believe otherwise.

But while Dworkin could be criticized for certain glaring faults, this is not the time to dwell on them. I certainly don’t want to dwell on them. Rather, let me end this post with an excerpt of Dworkin’s with which I am very much in sympathy:

We have a responsibility to live well, and the importance of living well accounts for the value of having a critically good life. These are no doubt controversial ethical judgments. I also make controversial ethical judgments in any view I take about which lives are good or well-lived. In my own view, someone who leads a boring, conventional life without close friendships or challenges or achievements, marking time to his grave, has not had a good life, even if he thinks he has and even if he has thoroughly enjoyed the life he has had. If you agree, we cannot explain why he should regret this simply by calling attention to pleasures missed: there may have been no pleasures missed, and in any case there is nothing to miss now. We must suppose that he has failed at something: failed in his responsibilities for living.

What kind of value can living well have? The analogy between art and life has often been drawn and as often ridiculed. We should live our lives, the Romantics said, as a work of art… . We distrust the analogy now because it sounds too Wildean, as if the qualities we value in a painting—fine sensibility or a complex formal organization or a subtle interpretation of art’s own history—were the values we should seek in life: the values of the aesthete. These may be poor values to seek in the way we live. But to condemn the analogy for that reason misses its point, which lies in the relation between the value of what is created and the value of the acts of creating it.

We value great art most fundamentally not because the art as product enhances our lives but because it embodies a performance, a rising to artistic challenge. We value human lives well lived not for the completed narrative, as if fiction would do as well, but because they too embody a performance: a rising to the challenge of having a life to lead. The final value of our lives is adverbial, not adjectival—a matter of how we actually lived, not of a label applied to the final result. It is the value of the performance, not anything that is left when the performance is subtracted. It is the value of a brilliant dance or dive when the memories have faded and the ripples died away.

It was once popular to laugh at abstract art by supposing that it could have been painted by a chimpanzee, and people once speculated whether one of billions of apes typing randomly might produce King Lear. If a chimpanzee by accident painted Blue Poles or typed the words of King Lear in the right order, these products would no doubt have very great subjective value. Many people would be desperate to own or anxious to see them. But they would have no value as performance at all. Performance value may exist independently of any object with which that performance value has been fused. There is no product value left when a great painting has been destroyed, but the fact of its creation remains and retains its full performance value. Uccello’s achievements are no less valuable because his paintings were gravely damaged in the Florence flood; Leonardo’s Last Supper might have perished, but the wonder of its creation would not have been diminished. A musical performance or a ballet may have enormous objective value, but if it has not been recorded or filmed, its product value immediately diminishes. Some performances—improvisational theater and unrecorded jazz concerts—find value in their ephemeral singularity: they will never be repeated.

We may count a life’s positive impact—the way the world itself is better because that life was lived—as its product value. Aristotle thought that a good life is one spent in contemplation, exercising reason, and acquiring knowledge; Plato that the good life is a harmonious life achieved through order and balance. Neither of these ancient ideas requires that a wonderful life have any impact at all. Most people’s opinions, so far as these are self-conscious and articulate, ignore impact in the same way. Many of them think that a life devoted to the love of a god or gods is the finest life to lead, and a great many including many who do not share that opinion think the same of a life lived in inherited traditions and steeped in the satisfactions of conviviality, friendship, and family. All these lives have, for most people who want them, subjective value: they bring satisfaction. But so far as we think them objectively good—so far as it would make sense to want to find satisfaction in such lives—it is the performance rather than the product value of living that way that counts.

(Footnote omitted.) Ronald Dworkin: A Life Well Lived.

Requiescat in pace.

Restoring Checks and Balances to the Drone Warfare Program

I am very pleased to report that I have an article on the website of the Atlantic Council regarding the subject. A snippet:

The Department of Justice has recently released a white paper detailing what it believes to be the scope of the president’s authority to kill Americans suspected of being members of al Qaeda—killings that are usually conducted via drones. The white paper argues that the killing of such suspects does not violate due process or the Fourth Amendment, claims that a lethal operation against such suspects does not violate the tenets of Executive Order 12333 (which among other things, prohibits assassinations), and states that the power to kill such suspects can take place “away from the zone of active hostilities.” Additionally, the president can authorize legal force against an American citizen located in a foreign country that either gives its consent to a legal operation, or “after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.” A suspected American terrorist can be killed outside of the United States if the suspect “poses an imminent threat of violent attack against the United States,” but this “does not require the United States to have clear evidence that a specific attack on U.S. persons or interests will take place in the near future.”

The white paper has prompted spirited reaction. Indiana University law professor Gerald Magliocca argues that it is too easy to authorize a lethal drone operation because it is not clear who qualifies as “an informed high-level official” for the purposes of determining that “a targeted individual poses an imminent threat of violent attack against the United States,” and because the language of the white paper might suggest that only one such “high-level official” is needed to issue such a determination. George Washington University law professor Jeffrey Rosen claims that the administration’s arguments do not pass constitutional muster. Harvard law professor Jack Goldsmith states that while “[t]here is little of substance that is new in the White Paper,” the white paper “does reveal problems in the administration’s political and legal strategy for conducting drone strikes, especially against American citizens,” including “excessive secrecy.” Goldsmith also argues that we need “a new framework statute” that would “define the scope of the new war, the authorities and limitations on presidential power, and forms of review of the president’s actions.” Goldsmith’s call for a new framework is echoed by former secretary of defense Robert Gates, who has argued for the creation of a “third group” that would inform Congress and intelligence communities about drone strikes, thus creating more oversight for the process.

Click for more regarding what shape I think such oversight should take.