Friday, December 30, 2016

A Jewish Resurrection of Uncle Tom

Tonight a friend directed me to a segment of Backstory Radio about  Judaism in Americawhich aired on the first night of Hanukkah. The program covers the Jewish experience in Dutch colonial New York, George Washington assuring Jews in 1790 that they were welcome and that the young nation was indeed serious about the separation of church and state, the origins of modern day Hanukkah, Jewish delis, and popular songs rendered in Yiddish.  The hosts were struck by an early Jewish presence in the South, and how incongruous and uncomfortable the institution of slavery must have appeared at Passover prior to the Civil War. This reminded me of a play we saw at the Marin Theater Company three years ago, which centers on a Seder taking place on the day of Lincoln's assassination. 

Here is my review hoisted from the vault... 

The Whipping Man
By Matthew Lopez
Produced by the Marin Theater Company 2013

Matthew Lopez’s The Whipping Man is centered on a Passover Seder celebrated by two Jewish house Negroes (Simon and John) in the ruins of their former home in Richmond Virginia on April 14, 1865.  The date is significant because it is the day of Lincoln’s assassination, just five days after the surrender of the South.  A third member joins them at this Seder table, the son of the household who returned in the middle of the night at the beginning of the play, with a shot up leg. Before lighting the Seder candles the former slaves amputate their old master's leg just below the knee with a saw to save him.  

You might ask “Jews in the South?”  Well, yes, there was a Jewish population of approximately 25,000 in 1860 in the South, and those with means owned slaves.  Southern Jewish gentry tended to congregate in the cities, which means they owned “house negroes” not “field negroes” as Malcolm X would have it.   Malcolm X didn’t approve much of house Negroes. 

Harriet Beecher Stowe’s novel Uncle Tom’s Cabin, published in serial form in 1851-1852, sold 500,000 copies world wide by 1853.  The book has been credited by some with being responsible for the election of Abraham Lincoln, and it was instrumental in fueling the abolitionist movement leading to the end of slavery in the United States in 1865.  Wikipedia's encapsulation is:  “Stowe's melodramatic story humanized the suffering of slavery for White audiences by portraying Tom as a Christlike figure who is ultimately martyred, beaten to death by a cruel master because Tom refuses to betray the whereabouts of two women who escape from slavery.”  An early (1852) anonymous reviewer of the book in the Boston abolitionist publication, The Liberator, took exception to the saintly Christian pacifist portrayal of Uncle Tom:  “Uncle Tom’s character is sketched with great power and rare religious perception. It triumphantly exemplifies the nature, tendency, and results of CHRISTIAN NON-RESISTANCE. We are curious to know whether Mrs. Stowe is a believer in the duty of non-resistance for the White man, under all possible outrage and peril, as for the Black man….”  

In 1949, James Baldwin wrote an influential essay on Uncle Tom’s Cabin, titled “Everybody’s Protest Novel,” which excoriated the novel as a political pamphlet.  Baldwin argued that protest novels are inherently sentimental, and that sentimental art is inherently dishonest.  Thereafter, it was all downhill for poor Uncle Tom who came to be a derogatory epithet for excessive subservience and acceptance of a racially defined lower-class status, to the point of collaborating with the oppressor, and being a traitor to one’s own.  It’s what resonates in Malcolm X’s characterization of the “house negro.”  

Well this play has two house Negroes: the level headed, powerful, illiterate but wise Simon; and the younger, never-do-well, thieving, intelligent, literate, self-educated, and angry John.  But neither one of them has a trace of the pejorative “Uncle Tom.”  John was a rebel and was whipped for it.  Simon is like the original “paragon of Christian virtue” Uncle Tom, except he is a paragon of Jewish virtue.  His Jewish faith is more constant in the face of disaster than Caleb’s, the prodigal soldier son of the household.  [Not the only son, but that is another story]  Simon raised both Caleb and John, and he is the most powerful of the three.  He is powerful like a good version of Samuel L. Jackson’s Stephen in Django Unchained.  He runs the show.  

If Simon’s power comes from his Judaism, John’s (and what kind of meshugganah Jewish name is that?) comes from his learning and intelligence.  He knows that the Bible commands the Israelites that they may buy slaves from “the nations that surround you, … but over your brothers the people of Israel you shall not rule, one over another ruthlessly.”  Leviticus 25: 44-46.

"Were we slaves ..., or were we Jews,"  asks John.  He has within him the seeds of the Civil Rights movement, the seeds of affirmative action.  

Simon is promised his freedom by his master, who sold his wife, and who may be dead;  but John knows that, as to Hebrew slaves, the bible commands:  “in the seventh year you must let them go free.  And when you release them, do not send them away empty-handed.  Supply them liberally from your flock, your threshing floor and your winepress. Give to them as the Lord your God has blessed you.  Remember that you were slaves in Egypt and the Lord your God redeemed you. That is why I give you this command today.”  Deuteronomy 15:12-18.  

Here is the legislative history behind all of that.  

 Gives a whole new meaning to being "on the side of the angels” don’t it?

Keep a lookout for a production of the play and let me know what you think the implications might be of this Jewish resurrection of Uncle Tom. 

For those of you in the San Francisco Bay Area, check out Marin Theater Company's upcoming production of Native Son. 

Wednesday, December 28, 2016

The Formal End of the Two-State Solution

Vote on UNSC Resolution 2334, December 23, 2016

On December 23, 2016 the United Nations Security Council passed Resolution 2334 reaffirming the world's judgment that Israel should return land taken in the June 1967 war, subject only to mutually agreed upon adjustments. It reflects a continued international commitment to a two-state solution for the Israel/Palestinian conflict. The resolution called the ongoing Israeli settlement project a flagrant violation of international law. 

But it seems clear now, after 50 years of Israeli occupation and settlement of the West Bank, that Israel will never voluntarily help to create a Palestinian state. Israel's vehement response to Resolution 2334 speaks volumes that the time when Israel may have been willing to "exchange land for peace" has long passed. It seems equally clear that international law is impotent to bring about a two-state-solution, and that the international community lacks resolve.

At least that's the judgment of Benjamin Netanyahu and his government. 

Israel's reaction to Resolution 2334 was apoplectic. Ahead of the vote, Prime Minister Netanyahu warned New Zealand that its support of the resolution was "a declaration of war," and after the vote, Israel withdrew its ambassador to New Zealand and barred New Zealand's ambassador to Israel. Netanyahu told his ministers on Sunday to stay away "from those countries that voted against us.” Israel's ambassador to the U.S., Ron Dermer called the Obama administration a "runaway train" for failing to veto this reaffirmation of international law principles. Netanyahu lectured John Kerry: "friends don't take friends to the security council." On Monday, Netanyahu doubled down, saying "Israel is a proud country. . . . We don't turn the other cheek. . . . . The nations of the world respect strong countries that stand up for themselves. They do not respect weak and obsequious countries that bow their heads.”  He called the U.S. abstention "a disgrace." "They betrayed us," he said. Netanyahu canceled a meeting with British Prime Minister Theresa May and a visit to Israel by the Ukrainian prime minister. Meanwhile, Israel's defense minister, Avigdor Lieberman, called an upcoming peace conference in Paris "a modern version of the Dreyfus trial."  Lieberman also ordered Israeli officials to cut all civil and diplomatic contacts with the Palestinian Authority. Education minister Naftali Bennett compared support for the resolution with “planes hitting buildings and trucks killing people in Berlin." 

It all adds up to Netanyahu and his government poking a finger in the eye of world opinion. The Israeli right that is in control of Israel doesn't care what the world thinks--they will not "exchange land for peace," they will not help create a Palestinian state, they will not stop settlements, they will not end the occupation. 

"This is just another instance of the UN ganging up on Israel," lamented Ron Dermer. But the reality is other: Israel's vehement response to Resolution 2334 amounts to a big rejection of the Palestinians and the international community. 

Here is a closer look at Resolution 2334:
The Security Council,  
Reaffirming its relevant resolutions . . . Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force, . . .  
Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem . . . . 
Expressing grave concern that continuing Israeli settlement activities are dangerously imperilling the viability of the two-State solution based on the 1967 lines, . . .  
Recalling also the obligation . . .  for the Palestinian Authority Security Forces to maintain effective operations aimed at confronting all those engaged in terror and dismantling terrorist capabilities, including the confiscation of illegal weapons, 
Condemning all acts of violence against civilians, including acts of terror, as well as all acts of provocation, incitement and destruction, 
Reiterating its vision of a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders . . .  
1. Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, . . . constitutes a flagrant violation under international law . . .  
2. Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory. . .  
3. Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations; 
4. Stresses that the cessation of all Israeli settlement activities is essential for salvaging the two-State solution . . .; 
5. Calls upon all States . . .  to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967; 
6. Calls for immediate steps to prevent all acts of violence against civilians, including acts of terror, as well as all acts of provocation and destruction, calls for accountability in this regard, and . . . for the strengthening of ongoing efforts to combat terrorism, including through existing security coordination, and to clearly condemn all acts of terrorism; 
7. Calls upon both parties to act on the basis of international law, . . .  to observe calm and restraint, and to refrain from provocative actions, incitement and inflammatory rhetoric, with the aim, inter alia, of de-escalating the situation on the ground, rebuilding trust and confidence, demonstrating through policies and actions a genuine commitment to the two-State solution, and creating the conditions necessary for promoting peace; 
8. Calls upon all parties to . . .  launch credible negotiations on all final status issues in the Middle East peace process . . . ; 
9. Urges . . . the intensification and acceleration of international and regional diplomatic efforts and support aimed at achieving, without delay a comprehensive, just and lasting peace in the Middle East on the basis of the relevant United Nations resolutions . . . and an end to the Israeli occupation that began in 1967; and underscores in this regard the importance of the ongoing efforts to advance the Arab Peace Initiative, the initiative of France for the convening of an international peace conference, the recent efforts of the Quartet, as well as the efforts of Egypt and the Russian Federation; 
10. Confirms its determination to support the parties throughout the negotiations and in the implementation of an agreement; 
11. Reaffirms its determination to examine practical ways and means to secure the full implementation of its relevant resolutions; . . . . 
What's to dislike here, unless you reject the very concept of a two-state-solution? 

“The status quo is leading toward one state, or perpetual occupation,” said John Kerry in his speech this morning. But we are past "leading toward." The moment has arrived. For the next four years Israel, it appears, will have enthusiastic support from the American administration for its one state reality and occupation. Incoming president Trump has nominated an ambassador to Israel who raises funds for West Bank settlements, who refers to the West Bank by its biblical names Judea and Samaria, who was bar mitzvahed at the Western Wall, who has spent his summers at an apartment in Jerusalem since 2002, who rejects a two-state-solution for the West Bank and Gaza, and who has described Jewish supporters of a two-state solution, as “far worse than kapos—Jews who turned in their fellow Jews in the Nazi death camps.” Under Trump's leadership, commitment to a two-state solution was removed from the Republican platform. See, e.g WSJ.

Perpetual occupation is the official policy of Israel and, in 23 days, the official policy of the United States. Resolution 2334 marks the formal end point of the two-state solution.

Tuesday, December 27, 2016

Switzerland Finesses its Anti-Mass-Immigration-Initiative

Landlocked in the EU

This is an update to my post on the Swiss anti-mass-immigration initiative two years ago.

Switzerland, too, has to deal with right wing nationalist populism. An anti-mass-immigration referendum passed by Swiss voters in February 2014 has been hanging over bilateral trade relations with the EU like a sword of Damocles for the last three years.  Last week the Swiss Parliament managed to significantly reduce the danger. Chalk it up as a round for common sense.

Switzerland has access to the EU common market by virtue of seven bilateral agreements signed in 1999 and effective in 2002. These treaties govern air traffic, road traffic, agriculture, technical trade barriers, public procurement, science, and--crucially--the free movement of people. As a result, most EU law applies universally throughout the EU, the European Economic Area and Switzerland. Switzerland is also a member of the Schengen area which permits people to move freely across borders in Europe. Switzerland has been able to enjoy its cherished independence and "neutrality" by not joining the EU, while at the same time enjoying most of the benefits of EU membership.

Yet, this virtual EU membership comes with strings attached. Switzerland, like other states, pays into the EU budget. And Switzerland, like EU member states, is bound by EU norms. The agreements are a limitation on Swiss sovereignty. Significantly, the EU insisted that in exchange for access to the common market, Switzerland may not pick and choose between which EU standards it will be bound by--Switzerland must take more or less the whole package. The bilateral agreements contain a "guillotine clause:" if any one treaty is abrogated, all seven treaties become null and void. 

Nativist nationalists in Switzerland have chafed at this loss of sovereignty, especially where the free movement of people across borders is concerned.  In February 2014, the conservative Swiss Peoples Party (SVP) sponsored an initiative to curb mass-immigration to Switzerland, including immigration from EU member states. The mass-immigration-initiative, adopted on February 9, 2014, directed the Swiss Parliament to establish immigration quotas (although the quota levels were left open). But adopting such immigration limits would violate the agreements with the EU regarding the free movement of peoples.

In light of "the guillotine clause" this 2014 initiative has threatened to derail all of Switzerland's bilateral agreements regarding free trade with the EU. Under the treaties, Switzerland had three years, until February 9, 2017 to sort this out. 

The Swiss parliament has chosen to interpret the anti-mass-immigration initiative as non-binding insofar as the initiative could not be implemented without violating the EU agreements. The initiative was not a decision by Swiss voters to exit from its virtual  EU member status, said Simonetta Sommaruga at a press conference (German) last Thursday. The initiative did not say what to do if Parliament could not implement the initiative without violating agreements with the EU--without jeopardizing Switzerland's access to the EU common market--said Sommaruga. 

The Swiss parliament thus enacted a symbolic measure: in sectors of the Swiss economy suffering under high unemployment employers must first attempt to fill vacant positions with Swiss applicants before considering workers from other states. But there are no robust enforcement mechanisms. In Brussels,  European Commission spokesman Margaritis Schinas said that “at first sight we would say that the law appears to go in the right direction” suggesting that the EU will accept the Swiss "solution" to its anti-mass-immigration initiative. The SVP, sponsor of the 2014 initiative, complains that the "solution" tramples on Swiss democracy by circumventing the intent of the anti-mass-immigration initiative, but the SVP appears to have accepted that in a post-Brexit world, the Swiss voters (today) would not support a Swiss exit from its quasi EU membership status. 

Simonetta Sommaruga, Swiss Justice Minister

Sunday, December 18, 2016

The Emolument Clause in Light of Trump's Risk to be Swayed by Private Financial Interest

Howard Chandler: Scene at the signing of the U.S. Constitution
The United States constitutional convention convened in Philadelphia on May 14, 1787. The final draft of the constitution was signed by 39 of 42 delegates who remained in Philadelphia on September 17, 1787. Congress promptly submitted the proposed constitution to the states for ratification. In order to persuade reluctant New York, and other states, Alexander Hamilton, John Jay, and James Madison published their Federalist Papers, one of the highlights of our democracy, between October 1887 and August 1888. In February 1788 a compromise was reached promising that a Bill of Rights securing basic political rights would also be adopted. The Constitution took effect on March 4, 1789.

Over the succeeding 225 years the world has changed dramatically. The constitution has evolved with the times, not as much as it might have or should have, but change it did. 

What has not changed is human nature. The fact that private financial interests can subtly sway even the most virtuous leaders remains as true now as then.  And it was to guard against such influence over our leaders from foreign powers that the framers included Article I, Section 9 in the constitution, the Emolument Clause: 
“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
--Merriam Webster (2016): "Emolument: 1. the returns arising from office or employment usually in the form of compensation or perquisites; 2. archaic advantage."

The clause represented "a sweeping American rejection of European corruption and foreign influence," say Norman Eisen, Richard Painter, and Laurence Tribe in an article examining the Emoluments Clause published this week by Brookings. I will refer to them as EPT. 

Does the Emoluments Clause Apply to the President?

Yes, the emoluments clause applies to the president. EPT show how this has been confirmed repeatedly by the President's Office of Legal Counsel, most recently in 2009 when Obama received his Nobel Peace Prize. It's consistent with the plain meaning of the clause, of course. The presidency is referred to in the constitution as an "office" (e.g. Art. II, Section I). Do read EPT's article which goes into convincing details.

What Qualifies as an Emolument?

The clause prohibits "any kind (of emolument) whatever" and thus signals that it is to be given a broad interpretation. When the constitution was ratified, the term was often used as a catch-all phrase for improper remuneration, say EPT. The word "emolument" was understood "to encompass any conferral of a benefit or advantage, whether through money, objects, titles, offices, or economically valuable waivers or relaxations of otherwise applicable requirements." 

"The Clause unquestionably reaches any situation in which a federal officeholder receives money, items of value, or services from a foreign state," say EPT.

The Clause "just as plainly," say EPT, "covers any transaction between a federal officeholder and a foreign state in which the foreign state offers a 'sweetheart deal' or any other benefit inconsistent with a purely fair market exchange in an arms-length transaction not specially tailored to benefit the holder of an Office under the United States."

Finally, say EPT, "the best reading of the Clause covers even ordinary, fair market value transactions that result in any economic profit or benefit to the federal officeholder." They point to the text which prohibits “profit” from any employment, as well as “salary.” It seems clear, therefore, that even remuneration fairly earned in commerce can qualify and that the Framers sought to prohibit even reasonable money-for-services arrangements between officeholders and foreign states. "It would be absurd to imagine," say EPT, "that an otherwise forbidden emolument in the form of a foreign government’s payment to the American President could be cured if the President were to give that foreign government its money’s worth (or more) in services advancing that government’s interests, which might well be contrary to our own." EPT are lawyers, and I might add we lawyers have no difficulty grasping that if the President were a partner in a law firm and prince Bandar were to bring his account to the firm while the president is in office, this would be a prohibited emolument even if the firm provides good advice at market rate.

What qualifies as a "King, Prince, or Foreign State?"  

It is settled in all circumstances, say EPT, that the Clause applies not only to "foreign states" but also to their agents and instrumentalities. Therefore, OLC has determined that “corporations owned or controlled by a foreign government are presumptively foreign states under the Emoluments Clause" [citing to 33 Op. O.L.C. 1, 7; n.6 (2009)]

The Office of Legal Counsel has relied on various factors over the years, including: 1) whether a foreign government has an active role with the decision making entity (i.e. the entity granting the emolument); 2) whether a foreign government, as opposed to a private intermediary makes the ultimate decision to grant an emolument; 3) and whether a foreign government is a substantial source of funding for the entity that grants the emolument. OLC considers these factors in light of the underlying purpose of the Emoluments Clause.

When he was an assistant Attorney General in 1986, current associate Supreme Court Justice Samuel Alito put it as follows: "The answer . . . must depend [on] whether the consultancy would raise the kind of concern (viz., the potential for ‘corruption and foreign influence’) that motivated the Framers in enacting the constitutional prohibition." Laying the groundwork for potential Supreme Court battles to come, EPT are very complimentary of Alito's approach here: "That is precisely the kind of commonsense approach that is important to understanding this Clause," they applaud.

The Corruptibility of Donald Trump

We are thinking about the Emoluments Clause, of course, because never in the history of the Republic has an incoming president been so at risk to be swayed by private financial interests as Donald Trump.

Consider these potential domestic entanglements, say EPT: There are more than ten cases pending before the National Labor Relations Board challenging Trump labor practices—which has two vacancies, both to be filled by Trump.  The Internal Revenue Service is auditing Trump, who will soon pick its new chief.  The Trump International Hotel in Washington, DC is located in the Old Post Office and leased from the General Services Administration (GSA); once Trump takes office, he will be in violation of the lease, which bars elected officials from sharing in any benefit.  Trump owes several hundred million dollars to banks, but is now responsible for selecting the next Treasury Secretary and may influence interest rate policy.

The Associated Press reported on December 13, that Trump's business entanglements are a "complex and opaque hodgepodge of an empire scattered around the globe." Here is the New York Times on November 14, 2016:
Mr. Trump has had business deals with foreign governments or individuals with apparent ties to foreign governments, including multimillion-dollar real estate arrangements in Azerbaijan and Uruguay. His children have frequently traveled abroad to promote the Trump brand, making trips to Canada, the United Arab Emirates and Scotland. Closer to home, the Bank of China is a tenant in Trump Tower and is a lender for another building in Midtown Manhattan where Mr. Trump has a significant partnership interest. 
The Trump Organization's website boasts that Trump directs new project acquisition and development in regions “from Eastern Europe to Southeast Asia, the Middle East to South America, mainland China to the United States.”

Think about such a business empire doing business in China. Many major Chinese Businesses are intimately connected with the Chinese government. See my article about "Who is the Shanghai Construction Group" HERE. Think about Trump's nomination for Secretary of State, Rex Tillerson, and his connection to Rosneft, the Russian oil conglomerate.

"It seems a virtual certainty," say EPT, that many transactions between foreign states and the Trump empire will "create the risk of divided or blurred loyalties that the Clause was enacted to prohibit." We are not assured by the fact that Trump has failed to disclose his tax returns, or that he keeps the details of his business entanglements opaque. "Presidents," say EPT, "often act covertly on the basis of extremely complicated motives. Disentangling any potential improper influence resulting from special treatment of Mr. Trump's business holdings by foreign states (will) be extremely difficult." Already the American people are confronted with uncertainty and innuendo and our political discourse is rife with unresolved and unresolvable accusations of corruption, say EPT.

They go on: 
This is exactly what the Emoluments Clause is meant to head off at the pass. Rather than deal with potential impropriety in a case-by-case manner, or with ad hoc managerial walls between the President and his private interests, the Constitution forbids the very circumstances that give rise to such concerns in the first place. By imposing clear limitations, the Clause avoids a situation in which the American people must try to read the President’s or a foreign leader’s mind, searching for hints of private favoritism toward foreign powers, or of foreign attempts to seduce the American President into compromising our national interest for his private profit.
The numerous conflicts arising out of Trump's business empire, his personality, and his behavior, are a huge concern. Both during the campaign and since the election, Trump has promoted the close connection between himself and his businesses.  It seems natural, suggest EPT, that some foreign leaders will conclude that there is advantage to be gained by doing business with the Trump organization. Foreign leaders may be tempted to reach out to Trump through his business channels rather than through official channels.  The idea festers in the reality that Trump seems intent on continuing to operate from Trump Tower in New York City as well as from the White House.

"Trump answers the phone directly. I just call him and we talk," said Paul Ryan on 60 Minutes recently. He's an approachable guy for the right people.  Some of these people will undoubtedly be interested in commingling state interests with business interests.

Beyond actual conflicts and emoluments that may exist today, EPT worry that Trump's ongoing promotion of the Trump empire will have a snowballing corrupting effect:
The risks of improper dealing may be increased if foreign powers come to believe, even mistakenly, that offering benefits to Trump-associated businesses is important to maintaining good will with the President. At the very least, that perception could affect the conduct of foreign nations, resulting in many more situations that present the appearance of impropriety and fuel persistent doubts (at home and abroad) about the integrity of our political system.
And EPT bring forth worrisome examples that have already occurred in the very brief time since the  election. For example, Trump recently took a break from picking his cabinet in order to meet privately with developers from India doing business with the Trump organization. During this meeting he made observations about the Indian political leadership which were then released to the press both in India and the United States. Since his election, Trump has met in his office with developers and business partners from the Philippines. In a recent telephone call with President Erodgan of Turkey Trump "went out of his way" to praise his business partner in the Trump Towers in Istanbul.

Since the election Trump has used his Twitter account to lash out at people critical of his businesses. Such conduct, say EPT, serves to create the impression that Trump makes no distinction between his private interest as a business tycoon and the public interest that he supposedly represents as the president-elect. Such conduct--which shows no evidence of abating--sends a strong message to foreign states that they too should draw no distinction between Trump the man, his business interests, and his office as President.

Trump is a walking, talking, Emolument Clause violation, say EPT. They are surely correct.

What's to be Done?

Trump has placed himself and the country in an untenable position. Nothing good will come of this. 

EPT have no convincing remedy. None of the pseudo blind trust ideas floated by Trump will help. The idea that having the children manage the business empire, even as they too are involved in the administration, and even as Trump does not divest himself from any of those interests, is a cynical joke. The only true remedy, say EPT, is for Trump and his children to completely divest themselves of all ownership interest in the Trump business empire. They will not be doing this. 

GOP operatives are suggesting we need to just get used to this violation.  Trump is unique. Yes, Trump will violate the Emoluments Clause, he will promote his personal financial interest, he will accept sweetheart deals, compensation, and gain advantage from his dealings with foreign states. He will make the Trump Empire great again! We should accept this, because, after all, Trump will make America great again, too. 

Trump's violations of the Emoluments Clause are an impeachable offense. It's not going to happen under Speaker Ryan. All we can do is pay attention to these conflicts. Sooner or later a transgression is bound to get political traction. 

There is still time for the Electoral College electors to not vote for Trump. But the Electoral College doesn't meet as a body, and as Jack Balkin has pointed out, there simply is not enough time to organize the Electoral College to act independently of voters. It won't happen. 

Litigation does not seem to offer an attainable remedy. The courts are likely to consider the President's Emolument Clause violation a political question, private parties would have difficult standing issues to overcome, and it is very unclear what kind of remedy the courts could fashion. 

Whether despite his conflict of interest problems, President Trump and the GOP led Congress will "Make America Great Again" remains to be seen. For now, what is certain, Trump will make America corrupt again. 

Read the excellent EPT Article HERE.

Follow me on Twitter @RolandNikles

The 13 States in 1789

Tuesday, December 13, 2016

Rex Tillerson: It's the Conflict of Interest Stupid

The drug being offered by the doctor in the cartoon above may be the right drug, and it might help the patient, but the conflict of interest concerns us. Doctors should not put themselves in such a position. Rex Tillerson, president-elect Trump's choice for Secretary of State, is a virtuous Texan. But he should not become Secretary of State because he has an unavoidable conflict of interest that would undermine the office and bring into question the administration's decision making process. He may have the right message, but he's the wrong messenger.

Tillerson was born on March 23, 1953 in Wichita Falls, Texas where his father was stationed as a career staffer with the Boy Scouts of America. "As the family moved between Boy Scout offices in Wichita Falls, Stillwater, Okla., and Huntsville, Scouting was ever-present for Tillerson," reported the Dallas News in 2012.  "As a child and into adolescence, he racked up not just merit badges but some of Scouting’s highest awards, designated for leadership abilities and dedication." He scouted his way through college, along with playing in the marching band, and kept on scouting, rising to become president of the organization in 2010-12.

Tillerson studied engineering at the University of Texas where he was a member of Alpha Phi Omega fraternity.  Houston attorney James Flodine, a fraternity brother of Tillerson told the Dallas News: "Instead of throwing keggers à la Animal House, brothers spent their time wheeling disabled students around campus or acting as intermediaries between police and students protesting the Vietnam War." Tillerston, said Flodine, "was one of those guys who ... went to school for a purpose, and it wasn’t to drink beer and goof off. … When he was getting ready to leave, he told me he was going to work for Exxon, and I thought, he’s an Exxon sort of guy.”

And so he turned out to be. Tillerson joined Exxon as a production engineer in 1975. Fourteen years later he rose to general manager of the central production division of Exxon USA. In 1995 he became president of Exxon Yemen, Inc. In 1998 he became responsible for Exxon's holdings in Russia and the Caspian Sea area. And in 2006 Tillerson was elected as chairman and CEO of Exxon-Mobil. 

He has been an effective leader and a diplomat. During his stint on the executive leadership board of the Boy Scouts of America he was instrumental in moving the Boy Scouts to accept openly gay youth as members (2013). In 2011 he negotiated a deal to develop oil fields in the Kurdish region of Iraq, contrary to the wishes of both the Iraqi government and the Obama administration. That same year he signed a deal with Russia for Exxon-Mobil to explore in the Russian Arctic, a deal which was interrupted due to American economic sanctions on Russia following Russia's invasion of the Crimea (2014). 

Tillerson "has forged close relations with both President Vladimir Putin and Igor Sechin, the close Putin ally who runs Rosneft, one of Russia’s oil-and-gas giants," says Steve Coll at the New Yorker. Some Republicans in Congress, including Marco Rubio, John McCain, and Lindsay Graham, have expressed concern about the close relationship between Tillerson and Russia. One of the concerns is that Tillerson would seek to reduce or eliminate sanctions against Russia in order to help Exxon's interests in that country.  

Here is how Steve Coll expressed his concern: 
In nominating Tillerson, Trump is handing the State Department to a man who has worked his whole life running a parallel quasi-state, for the benefit of shareholders, fashioning relationships with foreign leaders that may or may not conform to the interests of the United States government. In his career at ExxonMobil, Tillerson has no doubt honed many of the day-to-day skills that a Secretary of State must exercise: absorbing complex political analysis, evaluating foreign leaders, attending ceremonial events, and negotiating with friends and adversaries. Tillerson is a devotee of Abraham Lincoln, so perhaps he has privately harbored the ambition to transform himself into a true statesman, on behalf of all Americans. Yet it is hard to imagine, after four decades at ExxonMobil and a decade leading the corporation, how Tillerson will suddenly ... embrace a vision of America’s place in the world that promotes ideals for their own sake, emphatically privileging national interests over private ones.
On global warming, Tillerson would not be as bad as many in this incoming administration. Exxon-Mobil as a corporation has supported the levels of carbon emissions adopted by the international community in Paris last year.  Tillerson himself has said that climate change is a global problem that warrants action.  See WSJ. Under his leadership, Exxon-Mobil has lobbied for a carbon tax as the best tool for combatting global warming.  

Exxon-Mobile is rule bound, says Steve Coll, has built up a relatively strong safety record, "and has avoided problems such as prosecutions under the Foreign Corrupt Practices Act, even though it operates in many countries that are rife with corruption."  

Conflicts of interest are harmful because they call into question motivations and the integrity of decision making.  We don't want judges overseeing a case to have a close relationship with one of the litigants because it brings into question the judge's impartiality, and impugns the fairness and outcome of the proceeding. It doesn't matter how fair and correct the judgment is in fact, the appearance of impropriety, and the suspicions created by the conflict undermine the process. Tillerson was presented a Russian Order of Friendship medal by Putin, their relationship and Exxon-Mobil's financial interests in Russia will bring into question Tillerson's motives if he were to advocate for an end to sanctions on Russia. As Politico reports, by the end of October 2016, the Crimea sanctions have cost Exxon-Mobil more than $1 billion. The U.S. does much less trade with Russia than the EU, and it seems likely that no other American company is affected by American sanctions against Russia like Exxon-Mobil is. And Exxon-Mobile, the fifth largest company in the world, has many other interests around the world that are often not the same as American national interests, and that would bring into questions the motivations of Rex Tillerson as Secretary of State. Do we really want our representatives to be subject to such conflicts of interest? 

As a company, Exxon-Mobil has been firmly opposed to international sanctions in general, unless they are very tightly and very well executed, Tillerson has said. There is surely some merit to this position. What have we accomplished with our sanctions on Cuba for the last fifty years? We have sanctioned Russia after Crimea to a) punish Russia, and to b) deter further Russian incursion into Ukraine, or into the Baltic states. But it’s not clear to me that if sanctions were lifted and Exxon could go through with its deal of exploring the Russian arctic shelf for oil that this might not lead to positive things. Are these sanctions actually deterring Russia in a meaningful way? Is it holding back the normalization of relations?  The answer to these questions are not clear.  

What is clear is that someone with a very substantial conflict of interest like Tillerson is not the right person to be deciding such questions on behalf of the country. Even if what he argues is wise and correct, the existence of the conflict undermines the integrity of government and calls into question the decision making process. Even if Tillerson were to have the right message, he would be the wrong messenger.

Follow me on Twitter @RolandNikles

Thursday, December 1, 2016

Foot Voting vs. Ballot Box Voting: Exploring Ways to Make Democracy Work Better

Democracy and Political Ignorance: 
Why Smaller Government is Smarter
Ilya Somin
Stanford University Press, 2d Ed. 2016
312 pages.

"I'm shocked, shocked that gambling is going on in here," Captain Renault famously feigns to Rick in Casablanca. Ilya Somin's newly reissued and updated book has a bit of Captain Renault about it: "I'm shocked, shocked that voters in modern democracies are woefully ignorant and uninformed when it comes to choosing their leaders; we should immediately reduce the size of government, privatize many government functions, and let voters make decisions for themselves in the private realm, or let them vote with their feet by moving away from jurisdictions whose policies they do not like and towards jurisdictions whose policies they do like because they pay better attention when they do this."

Somin is a professor at the Antonin Scalia School of Law at George Mason University. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy. He is a libertarian and his arguments serve the libertarian cause. But Somin is also a generous, intellectually honest, and interesting writer who is genuinely struggling with the problems of democracy and the rule of law. If you care about democracy and the rule of law--and we had all of us better care in this age of Trump--Somin's book presents a thorough and broad survey of the challenge posed by voter political ignorance, and suggests some places to look for solutions.

The Extent of Voter Ignorance

Somin begins with an assessment of the extent of political ignorance. It's bad. "Father forgive them, for they know not what they are doing" Jesus cried out on the cross, and he might well cry out today after 62 million voters have made Donald J. Trump President elect of the United States.

Before the 2014 election, Somin reports, 62% of voters did not know which party controlled Congress. In August 2013, 44% of voters did not know whether Obamacare was still in effect. With Trump appointing Obamacare foe Congressman Tom Price to run the Department of Health and Human Services, it looks like the answer may soon be "No," even as many Trump voters have come to rely on Obamacare.  See NYT 11/25/16.

A September 2014 Pew study found that two in three Americans mistakenly thought that we spend more on foreign aid than on social security. In reality, foreign aid accounts for less than one percent of the budget while social security accounts for ~25 percent of the budget. It's hard for the electorate to evaluate political talking points when they have such a high level of misunderstanding about the underlying facts and issues.

We've been talking about income inequality for the past few years, yet only a small sliver of Americans can recognize the shape of our income inequality on a chart.

How can we have a meaningful public discussion about income inequality when most voters cannot recognize what income inequality looks like on a chart? 

As the Bush v. Kerry campaign was heating up "in late 2003," says Somin, "more than 60 percent of Americans did not realize that a massive increase in domestic spending had made a substantial contribution to the then-recent explosion in the federal deficit.”  With the federal deficit a hot campaign topic, it's hard to imagine voters who don't have any sense why the deficit increased (Bush tax cuts, Iraq war, medicare drug benefits) making an informed choice between the competing policy directions on offer in the 2004 election.

As we might expect, a corollary to this is that most of the public is unaware of the wide range of government programs structured as tax deductions, or the massive extent to which many of these programs transfer wealth to the affluent. 

In 2007, after more than three years of war in Iraq, and non-stop news coverage about the Middle East, 68 percent of the public could not identify “Sunni” as a major branch of Islam when prompted with “Shiite” as the other branch. It's this level of ignorance that has enabled Donald Trump to ride the xenophobic mob specter of "radical Islam" among the 90 million white non-college educated crowd who favored him with nearly seventy percent of their votes. 

Most voters lack an ideological framework for processing political information, says Somin. As a result they miss the connections between issues and their views are very fluid and subject to crass manipulation. 

There is a large political knowledge underclass, “know nothings” who possess little if any basic political knowledge, says Somin. This voting army of "know nothings" riding roughshod over the field of politics seems to comprise as much as 25-35% of the U.S. public.

Here's G.W. Bowersock , NYR 11/10/16,  characterizing where this all can lead in light of the most recent election results: “The present election process has revealed that an ignorant, mendacious, and inherent bully can find support among important segments of the American people. The impact of this support is potentially catastrophic…. The people, whom the Greeks called demos, whence democracy derives its name, can be easily swayed by plainspoken leaders who speak directly to their deepest anxieties.” What price we will all pay for this particular election outcome remains to be seen.  

Do Voters Know Enough

Can we make democracy work with an electorate that lacks basic knowledge about the important issues of the day and doesn't seem to care?  "Do voters know enough?" asks Somin. 

It's a rhetorical question. Of course we voters don't know enough, and when we do know things we often apply our knowledge irrationally. But what choice do we have? Smaller government, and making more political decisions through people voting with their feet, says Somin. When citizens move away from government policies they don't like towards jurisdictions that have policies more to their liking, says Somin, citizens take their information gathering more seriously, they know more, and they make better decisions. We should be looking for opportunities where foot voting is feasible.

In 1950 Joseph Schumpeter observed that “The typical citizen drops down to a lower level of mental performance as soon as he enters the political field. He argues and analyzes in a way which he would readily recognize as infantile within the sphere of his real interest. He becomes primitive again.”  Capitalism, Socialism, and Democracy (1950). 

Somin tries to steer us to the conclusion that, yes, democracy may be the best thing going, but as actors in democracy we are not nearly as competent than we are as actors in our spheres of real interest--our jobs, our hobbies, our passions. The more we can shift the burden of collective decision-making to our private spheres of real interest and away from ballot box voting, therefore, the better off we'll be. 

There are four common notions of how democracy works in theory, says Somin.  They are fictions, really, thought-props. Looking at the amount of knowledge required from voters, from least to most, says Somin, these are: 1) retrospective voting, 2) Burkean trusteeship, 3) representation of popular preferences on specific issues, and 4) deliberative democracy. Lets just focus on the least demanding, retrospective voting. 

Schumpeter advocated for the retrospective voting model. “Electorates normally do not control their political leaders in any way except by refusing to reelect them,” said Schumpeter.  Somin claims that the idea of retrospective voting assumes that citizens can assess the performance of incumbent officeholders.   “At the very least retrospective voting requires that the electorate possess sufficient knowledge to determine how well political leaders are performing their assigned duties.”  Kindle Loc 964. When voters lack knowledge, retrospective voting can be counterproductive, says Somin: with lack of knowledge voters are at risk of elevating scoundrels and incompetents over smart, experienced, technocratic leaders.

There are four knowledge prerequisites for competent retrospective voting, says Somin. Voters must: 1) have some understanding of which problems are caused by poor government policies, or what problems can be alleviated by good government policies; 2) voters must know which incumbent officeholders are responsible for which issue areas; 3) they must know at least the basic facts about what happened with respect to those issues during the incumbent’s term; and 4) they must be able to determine, at least to some extent, whether the incumbent's policies were the best available under the circumstances, or whether their opponent’s ideas might have fared better.  Loc 986.   “[Retrospective voting] calls for a much greater level of political knowledge than the theory’s more enthusiastic advocates acknowledge,” Somin concludes. Kindle Loc 993.

But why "must?" We clearly don't meet these "prerequisites," but what of it?

As Brad DeLong notes, "Democracy has never been a particularly good way of choosing smart, technocratic leaders." Democracy's main virtues are that (a) it rules out the mirage of violent revolution as a solution to current disappointments, and (b) that, despite all, it provides powerful insulation against certain rent-seeking by the currently rich, who are always in favor of wealth extraction from the rest, and always opposed to the creative destruction that economic growth brings (because it is their wealth that is being destroyed). But the problem of "being ruled by the current group of clowns" that the people chose, when the people can vote to change the "current group of clowns"--even if the people were incompetent in appointing the "current group of clowns," and may be incompetent in appointing the next--is a more benign problem than the problem of people being oppressed by a tyrant that they are stuck with, no matter how technocratically incompetent, corrupt, or venal that tyrant may be.

But surely we can do better. How do we improve?

Somin thinks voters don't know enough and we, therefore, need mitigating measures to guard against misguided voter action. "Do no harm" is the gist of the Hiipocratic oath, and the majority who voted for Hillary Clinton in the election might well be wondering how to minimize harm over the next four years. But what are such mitigating measures?

Democracy and Political Ignorance sets out to open our minds to the possibility that improvements might be found in smaller government, more foot voting, and more private action in the marketplace, thereby reducing the scope of issues that must be decided (or overseen) by an unknowledgeable electorate at the ballot box.

The Rationality of Political Ignorance

Somin seeks to reduce the range of issues to be decided at the ballot box because he feels there are no effective shortcuts to actual knowledge that are available to the electorate (there is a whole chapter on this) and because he does not believe that the level of voter knowledge can be significantly raised in the foreseeable future (and he has a chapter on that).  A real problem, suggests Somin, is that it is rational for voters to take no more than a superficial interest in voting because an individual voter has virtually no chance of influencing the outcome of an election—possibly less than 1/100 million in modern U.S. presidential election, says Somin. Kindle Loc 1460. 

We have a rough general sense that devoting more than minimal time and effort to acquiring political information is rarely worth the trouble.  Loc 1448.  The task of becoming adequately knowledgeable is too daunting. Take, as one example, the Trans Pacific Partnership: even experts have a hard time assessing its merits, how could the rest of us ever hope to evaluate it? 

But does this say anything about whether the TPP is a net positive or negative? Whether we, as a country, should go through with it or not?  It seems to me the conclusion "We should not have the TPP" does no follow from the premise "the electorate is not able to meaningfully evaluate it rationally!"  

Somin ponders the question "why do people vote at all?"  Rational choice models seem to predict that people wouldn’t vote unless they have some reasons for casting a ballot that is unrelated to the likelihood of changing the result, he says. But if the core of the problem is that we are partisan and irrational, we use our reasoning skills, our argumentative skills, and the little knowledge we gain to advocate for the stories we tell ourselves (and the stories we tell ourselves are highly dependent on which tribe we belong to), then rational choice theory does not appear to be the correct place to be looking for answers. 

It seems silly, for example, to suggest that 129 million people voted in this election because they mistakenly (or irrationally?) thought their individual vote might be determinative. Voting is a social act of civic involvement. We have to look at the psychology of crowds, at our civic values--or lack thereof, not to the rationality or irrationality of individual voters. Voting is something we do as a community because we have internalized certain civic virtues. We vote in spite of the fact that we know our individual vote will make no difference. We vote because we trust in our fellow citizens and because we believe that collectively we can make a difference. All those non-college educated whites in Wisconsin, Ohio, Pennsylvania, Michigan, and Florida who came out to favor Trump in this election determined the outcome. They may have been less than rational in their choice, but who is to say they were irrational in showing up to vote and responding as a group? 

As Matt Yglesias recently noted: "It's important to remember that 2016 fundamentals favored the GOP and Trump underperformed. There is no secret political magic to his candidacy." The shocking thing about the election, of course, is that Trump, given his inexperience, his dishonesty, his extreme and disturbing rhetoric, and lack of any clear program managed to garner 46.4% of the vote and a majority of the Electoral College. For the 48.2% plurality of voters who voted for Clinton, this is a problem, but it's not clear that it's a problem that smaller government would have avoided. 

It's ironic that the harm feared by the majority who voted for Hillary Clinton in this election is the very "remedy" that Somin advocates: the shrinking of government. The Clinton plurality fear the federal government will retreat from environmental oversight, from consumer protection, giving tax cuts to the wealthy and providing fewer benefits for the elderly, the sick, and the poor.  There is talk of privatizing medicare and government providing less support for education. All of this might shrink the size of government, but savy electorate or ignorant, it's not at all clear how this would make most of us better off.  

Somin is exploring whether we'd be better off with more foot voters and smaller government than our current size of government that ballot box voters are not able to properly oversee.    

Prospects for Foot Voting over Ballot Box Voting

So what is foot voting and how would it make us better off?

Somin cites three different kinds of foot voting: (1) voters physically leaving one jurisdiction and moving to another jurisdiction to live; (2) residents abandoning state services of that jurisdiction and using private services as a substitute (sending our kids to private school would be an example); and (3) consumers making purchasing decisions in the market place. 

Mormon migration West 1846-47
Federalism enables citizens to “vote with their feet” by moving from one jurisdiction to another. Within the United States it is easy to pack your bags and move from one state to another. We have many ways to learn about specific conditions in other states: we can visit, we have friends and family there, and the official news media and social media provide us with information about relative conditions. Want to live among self-reliant survivalists?  Move to Heyden Idaho. Want to live in a vibrant LGBTQ community? How about San Francisco, Seattle, or New York? It's a lot easier to move to San Francisco, property values and rents notwithstanding, than it is to convince Mississippi to pass legislation to protect LGBTQ rights.  Want to make a living in the marijuana industry? Move to Humboldt County, California.

Somin points to both historical and current examples. There was the migration of the Mormons to Utah in the 18th century. Then between 1880-1920 one million southern born African Americans migrated to the North or West.  Relatives and acquaintances already living there provided information. Black media encouraged migration.  There were emigrant agents recruiting for businesses seeking to hire African American Workers.

Foot Voting against Jim Crow
Black migrants had good reasons for leaving the South: lynchings, racial discrimination, and other hostile government policies. But the choice they faced was complex because there was extensive racism and government sponsored discrimination in the North as well. Most scholars agree, Somin reports, that Blacks benefited from moving to the North overall and that in doing so they made effective use of the knowledge that they acquired and, that generally, they chose their destinations wisely. They displayed better information gathering skills than ballot box voters.

African American foot voting during Jim Crow (about 10 percent of the African American population migrated) had positive effects for those left behind. In response, southern states were forced to provide a better education to Blacks and to provide better protection for their persons and property in order to keep the labor force. And these improvements came about without ballot box voting, and probably could not have been achieved through ballot box voting.

Today, libertarians are flocking to New Hampshire. The state collects neither a sales tax nor an income tax. If that's what you like, it's easier to move to the granite state (population 1.3 million; median household income of $61,000) than to convince California it should abandon its income tax and sales tax through an initiative.

And foot voting opportunities exist even without having to pack up your bags and leaving your state. State residents can choose to opt out of state services, or state services can be streamlined in ways that facilitates foot voting over ballot box voting. Privately planned communities such as condominium associations are examples of foot voting, says Somin. These associations take care of many needs traditionally provided by government, such as trash removal, tree pruning, security, environmental protection, local land-use rules, etc.  A single metropolitan area can contain many planned communities, making it easier for potential residents to find a community that best fits his or her needs. Unlike local governments, planned communities are entirely self-supporting. This increases their incentive to compete for residents. The profit motive introduces incentives to make good decisions in a way that is often missing from government services. At the same time, planned communities must be keenly attuned to their member's desires because people have fewer ideological commitments to planned communities than to municipalities.

Local governments can be structured to promote foot voting. Bruno Frey, a Swiss economist, says Somin, is working on developing models for government services with overlapping jurisdictions. These models would allow citizens to choose between different government service providers across jurisdictional lines, thus forcing government service providers to compete with each other. Current common examples are companies choosing which jurisdiction will govern a commercial transaction, or selecting the jurisdiction where a business is incorporated.

The more issues that fall under control of regional or local governments, as opposed to national, the greater the range of policy choices over which citizens can exercise leverage through foot voting.   Information gathering advantages inherent in foot voting suggests that we should be looking for opportunities to take more issues outside the control of government entirely, leaving them in the hands of the private sector and vibrant engaged foot voting citizens. 

James Madison in Federalist 62 said: “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” He had a point. Smaller government, suggests Somin, could help with voter ignorance because there is less government for voters to know about. The greater the size and scope of government the more voters have to know to control the policies through the ballot.

Consumers, of course, routinely make foot voting decisions through their loyalty to and abandonment of competing products and brands.  In the private sector, voting with your feet against a product or service entails minimal moving costs. The same holds true for most civil society organizations. To the extent that some government services can be devolved to the private commercial sector or to civil society organizations, voters can be given a greater opportunity for foot voting, and voting will be better informed and effective.

Foot voters have greater and better incentives to make well-informed decisions, to acquire accurate and reliable information, than ballot box voters do, says Somin. The consequences of foot voting decisions are real, tangible, and result in more immediate consequences than ballot box voting. Take the Bush administration's prescription drug bill, passed in 2003: although seventy percent of ballot box voters were unaware of this legislation when it passed, most seniors were able to act in a way to take advantage of the new law, says Somin. It's an example of low information at the ballot box, but effective information gathering sufficient for foot voting.

Friedrich Hayek, argued that rational behavior causes individuals to be successful, and forces others to imitate this rational behavior to also be successful. Such positive imitation is absent among ballot box voters. Ballot box voters have no need to be more rational (or as rational) than the rest. In the marketplace, foot voters have the incentive to become fully informed in a way that ballot box voters simply do not. The effect can be nearly magical. A Yale study reported by Somin found that subjects who were able to properly interpret statistical data regarding the effectiveness of skin cream to eliminate rashes were unable to properly interpret the same data applied to politically charged issues, like gun control, when it cut against their ideologies. 

Foot voters in the private sector, of course, also make mistakes due to ignorance or irrationality, says Somin. But much research suggests that cognitive biases that show up in laboratory experiments largely disappear under conditions that closely approximate real world market decisions. Foot voters are apt to learn from their mistakes; ballot box voters forget their mistakes the next morning and proceed as if nothing ever happened.

Foot voting, of course, has its disadvantages as well. These include moving costs; destructive races to the bottom in which competition between regions enables harmful policies to prevail; and danger that federalism might lead to the oppression of minority groups. Economic externalities such as pollution, global warming must be taken into account and guarded against in any system that attempts to promote foot voting over ballot box voting.


We humans have been living in complex societies, cities and states, for only 150 generations or so. That's about four fruit-fly years. It's not a long time to fine tune how to live in a complex social, peaceful, and mutually beneficial manner. On the whole we've not done so well. As the Marcus Turner tune goes: "... these eternal executions, and the bloody revolutions, and the ultimate solutions too, have all been seen before."

Somin's work in Democracy and Political Ignorance is preliminary exploration. Opportunities for effective foot voting in a manner that benefits society as a whole must be fleshed out, and how broadly foot voting can effectively replace ballot box voting remains to be seen. This work should be pursued independently of any ideological commitments to "smaller government" for its own sake.

As the TPP example shows, "government should be smaller" does not necessarily follow from the fact that voters don't know enough. A question left hanging is whether smaller government providing fewer services might in fact be significantly worse for some? Somin does not here try to describe what smaller government would look like, or why it would be better for most people. He makes no comprehensive effort in this book to come to terms with the question of how small?

But the fact that foot voters are better at gathering information, and that they are more responsible in their choices seems persuasive. We should all be looking for ways to make democracy better for all, and exploring where we might productively rely on foot voting over ballot box voting seems like useful and productive work.

You can purchase a copy of Somin's book at Stanford University Press  HERE and at Amazon HERE.

Follow me on Twitter @RolandNikles.