Tuition and taxes

A few comments on taxes in the blogosphere:

I followed the link to find out what Bruce Murphy thinks is the "scandal" of college tuition. It turns out that average tuition in Wisconsin for a four year college, while materially less than in surrounding states, is $ 228 (4%) more than the national average. Must have been a slow news day.

Here's a differnent way of looking at it. Maybe the scandal is that we charge that above average tuition in a heavily taxed state.

Speaking of high taxes, MPS wants to raise its tax levy by 16.4%. Jay Bullock anticipates the responsorial growl and is reaching for ... the earplugs. Taxes too high? Talk to the hand. He isn't going to listen because the growlers must not live on MIlwaukee. (But what about, e.g., McIlheran and Harris and Belling?)

I would not want to tell the folks in Milwaukee what to do, but in a city with property taxes that are among the highest in the country, I would want to see a fairly powerful argument for an increase like that. You know, if it were me.

I'm not sure that a school district with the burden rate that MPS has could ever hope to make such an argument. As I have noted before, my daughter-in-law and sister work for MPS. I am happy that they have what they do (and that I don't have to pay for it.) But how can you impose that kind of tax increase on people when you provide the kind of gold plated fringes that MPS does?

Tonight ...

... the Packers run game (the resistable force) meets Denver's rush defense (the movable object). Which will win (or fail to lose)? Watch this space for details.

Update: So Kornheiser says that, if you believe the rules of drama, Farve would do something spectacular to either win or lose the game. O.K.

The resistable force mostly overcame the movable object, but it was the Force of Nature that carried the day.

The sixties are over, ma'am!

Or so said young MU student Brian Collar to an aging hippie protesting the existence of ROTC on the Marquette campus. Shades of the Strawberry Statement. At least he could have called her "miss."

This is what it's come to. You can't trust anyone under 50, man! I have mixed feelings about the sixties. All the protests and drugs and free love were pioneered by our older brothers and sisters. We envied them and there is a sense in which that never goes away. Nor do I have anything against idealism even though I mistrust messianic politics. I like the music. I enjoy some of the cultural references even if, srictly speaking, I was a child and not an adolescent when most of it, as they say, "went down."

But I do feel that the sixties are still a blight on our politics. They established some paradigms - pacificism, relativism and reification of the "other" - which, while they can serve a particular purpose at a particular time - are not as helpful today. Even as we have enjoyed a conservative ascendency, these paradigms still influence the way in which we think and must talk about a host of issues.

So while young squire Collar may have indulged in a few cheap "oldster" cracks, he is right. The sixties are over and we should get over them.

Will Senator Decker face the Monster?

(Warning: I have indulged in a rare vulgarity to make a point here. See if you can find it!)

As I suggested on Wednesday, months of legislative deliberation and negotiation about the size of government and the amount of taxation over the next biennium were materially altered on Friday by the use of the governor's extraordinarily broad veto powers.

Last year,the legislature passed a proposed constitutional amendment to end this silliness and they should do so again during this session. It has already passed the Assembly, but Senate Majority Leader Russ Decker isn't sure that he wants to bring it to a vote.

Why not? This isn't about Governor Doyle or the Democrats. Tommy Thompson fed his Frankenstein too and we will have Republican governors in the future.

If Decker doesn't want to bring this to a vote then he needs to explain why it's good policy to let the Governor turn a law passed by both houses of the legislature into something else entirely by treating it as a puzzle. Even if you think that the Governor should be able to make law subject to veto by a super-majority (and no one does), requiring him to do it by playing word Scrabble is inane.

Of course, he can't defend this. No one can. If this doesn't come to a vote, it's because Doyle has him on a leash. The legislature does many things and I understand that Senator Decker and the other legislators have many balls in the air. But isn't this important?

We don't sit around knitting nooses

There was something of a dustup in the local blogosphere over a comment made in response to a comment to a post on his blog by an anonymous blogger known as Illusory Tenant. (The term refers to someone who leases a rent controlled apartment and then does not occupy it but, rather, sublets it to someone else at a profit.)IT claims to be employed in the law and, based on his (or her, I suppose)facility with the law, is either a lawyer or someone who has studied law. In any event, IT made thinly veiled reference hinting that Jessica McBride could be described by a very bad four letter word beginning with "c."

After a rather weak attempt to deny that the word means what it does (you can find a inoffensive secondary meaning for most slurs), IT apologized. Good enough, but let's remember that the next time someone on the right side of the scrimmage line exercises the same type of misjudgement and then has the good sense to repent.

Why do otherwise intelligent folks get pulled into this type of incivility? A clue comes from a comment posted on the McBride stalking site, Whallah. Someone said:

This fake umbrage is funny. Does anyone doubt that the right-wingers who are expressing such outrage don't routinely slip into gross language when they're letting slip their real feelings about gays or blacks or Jews?

Well, I don't have to speculate because I know the heart of the vast right wing conspiracy. When its dark minions get together to smoke cigars and drink scotch and plot whatever, sometimes I'm there. So the answer to the question is "No, actually, they don't." What we say in the light, we repeat in the dark. The virulent "closet" racism and homophobia that you are so certain must exist doesn't exist. Learn that.

Shark on the air

This afternoon from 4:30 to 6:00 on WMCS-1290 during the Backstory segment of Eric Von's show. We'll talk about Katrina and SoCal, the budget, John Edwards and McGee's plans to seek reelection.

You can now listen on the internet.

More rumination on judging

I doubt the Chief Justice of the Wisconsin Supreme Court reads this little blog, but I do want to use it to acknowledge my gratitude for her willingness to speak to my class last night. I don't always agree with the Chief, but I have a great deal of respect for her and I hope that students enjoyed the opportunity to hear from her.

As for me, I got to thinking a bit more about judicial philosophy. A couple of law professors have done a study seeking to rank the most and least "activist" justices on the United States Supreme Court by looking at their tendency to set aside federal agency determinations. They also rank them on a liberal/conservative scale.

There are a number of problems with the study, some of which are set forth here, but it seems part of a move on the some to define judicial activism as upsetting the decisions of other branches. I suppose that we can all define these things in different ways, but I don't think that quite captures what we are concerned about when we speak of judicial restraint. Here are three base characteristics of restraint that I called out in a recent article in WI Interest:

1. A judge exercising restraint must act on external and legitimate sources of authority.

2.A judge must believe that rules mean something.

3.Judges practicing restraint will exhibit sensitivity for the role of other branches of government.

Of course, few judges would not claim to endorse these and few do not see themselves as applying them in greater or lesser degree. They are really the beginning of a conversation more than it's culmination. Still, I think that there are a host of interpretive techniques that serve these goals and that judges do differ in the extent to which they adhere to them. (Few do not adhere at all.)

That this can't quite be captured by the extent that courts strike down laws can be illustrated by a tale of three administrations. Let's imagine that the George administration and a quiescent Congress, seeking to fight the war on Terror, consistently pass legislation and take executive actions that violate fourth and fifth amendment rights. Courts during the George era will have to overturn more executive and legislative decisions than normal, but I think it would be a mistake to say they have become activist.

Similarly, let's say that the George administration is replaced by the Hillary administration. That admininistration, again abetted by a compliant legislature, tries to expand federal authority in ways that are clearly unconstitutional and seeks to adopt restrictions on campaign advertising, "hate" speech and public religious expression that are plain violations of the First Amendment. Our courts are still throwing stuff out, but are they activist?

Finally, an exhausted populace turns to the Calvin administration. It advocates a return to "Normalcy" and adopts only the most modest of policies. Our courts - let's assume that we have all the same judges - suddenly start affirming most legislative and executive enactments. What changed?

WPRI and school choice

A few quick points about the WPRI study on public school choice.

1. The Journal Sentinel article reporting on the study seems almost certain to have led readers to think that the study loooked at the voucher program for private schools. It used the term "school choice" and discussed other aspects of the voucher program. It wasn't until we get down to the description of methodology at the bottom of the piece that we learn that the study was focused on public school choice. Indeed, local blogger Jay Bullock to wrote a post arguing that the study vindicates his views of the voucher program.

2. Another blogger, the Public Policy Forums's Anneliese Dickman, picks up on the nature of the study but seems to want to say that it tells us something about private school choice as well. She may be right but there are a few obstacles in the way.

First, the study doesn't really measure what parents in Milwaukee actually do. As the authors say, "the basic approach was to identify the determinants and frequency of parental choice and parental involvement using a national data set, and extrapolate those results to Milwaukee, relying on the particular demographics of the MPS district." In other words, they take national data on how households with particular demographic characteristics act with respect to choosing schools and becoming involved with the schools and then assume that people with those characteristics in Milwaukee would act the same way. They then look at the characteristics of families in MPS and run the numbers.

That's a respectable approach, although it would not catch the effects of any local efforts to improve decision-making or increase parental involvement.

Second, it seems less plausible to extrapolate from these data to families who choose voucher schools. The demographics of that group may be different. In addition, opting out of the public schools may itself reflect a higher degree of involvement with a child's education (it presumably takes more effort) and a population that does that may differ from others with same socioeconomic characteristics. Jay acknowledges this, writing that "many students whose parents are most likely to push them to achieve have left the district, leaving us with students whose parents are more likely to come to school to beat up other kids, if they come at all."

3. Jay makes an interesting point, consistent with what I have heard from other teachers in MPS. He writes "[i]f just a few more of my students in any given class could have the kind of parental backing that is so important to student success, the culture and climate of my classes and the school could change in a positive direction."

I don't doubt that but what are the implications? Should we deny parents the choice of a better educational option for their children so that those kids can be the raw material that makes Jay's classroom a better place? If, in fact, what happens at home is so critical to what happens in the classroom (and I suspect it is), then maybe solutions that believe schools can do for children what their families will not are destined to failure. I shouldn't think WEAC would want that idea to get around.

4. When the WPRI says something that my friends to the left of me don't like, I often hear that it is a right wing think talk paid for by the Bradley Foundation and businesses, yadda yadda. By way of full disclosure, I have done stuff for WPRI in the past and am working on something now, but I am still going to suggest that this is a teachable moment. When WPRI asked me to look at a certain legal hypothesis, the question was not "can you support it" but "is it right?" Obviously the folks associated with it have a more conservative perspective, but that doesn't mean that they subvert professional standards and intellectual integrity to that perspective. The next time, respond to the message and not to the messenger.

More on the Wisconsin Constitution and the Budget

Two years ago, I wrote a column in the Journal Sentinel called Fattening Frogs for Snakes. Go ahead and reread it. We think we know what the new state budget says, but we won't really know until the Governor finishes playing Scrabble with it. Wisconsin governors have extraordinary veto powers when it comes to appropriations bills. They can no longer cross out letters but they can cross out individual words and digits. They can line out numbers and write in smaller ones. They can, if they are clever and the words fall in a way that makes it possible, turn the law into the something that is completely inconsistent with - even the opposite of - what was passed. They can reduce spending and, as my column pointed out, Governor Doyle has managed to veto his way to an increase in spending. (Tommy Thompson was a master at this as well. We live in the time of the Puzzle Masters.)

Two years ago, I wrote:

No one would propose making the governor an elected kaiser who can create a wholly new budget, subject only to veto by two-thirds of both houses of the Legislature. His power is limited only by his ability to read legislation as a type of code. Take every third word on every other page, cross out each number that appeared in last night's Lotto drawing and we have a new law.

The point is not whether we like the effect of Doyle's vetoes. The budget should be determined by our democratically elected representatives subject to a veto by the governor, rather than the cryptology of a Scrabble king and his retinue of bright young geeks who can complete the Sunday Times crossword puzzle in 12 minutes. In pen.

If a future Republican governor figures out how to cut taxes by folding the budget into origami figures, it'd still be wrong.

They don't make community columnists like they used to.

The Wisconsin Constitution and the Budget

Last week, Charlie Sykes commented upon the logrolling that seemed to be an integral part of, if not at the heart of, the state budget process. There is,as he pointed out, a criminal statute that prohibits vote trading among legislators, but there are also a couple of constitutional provisions that are aimed at sneaking special favors into larger bills.

Art. IV, sec 18 of the Wisconsin Constitution, for example provideds that "[n]o private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." "Local laws" apply only to particular places and "private laws" apply only to particular persons or things. To get all hammy about it, section 18 says that if we are to hand out the other white meat, the pork must be identified on the label and we can only have one meal at a time. The obvious purpose is to prevent special favors to be stuck in the fine print of a bill and to prevent assembling a majority for a piece of legislation through the passing of the platter.

But there's more. Article IV, section 31 prohibits private and special laws on a variety of subjects, although section 32 permits it to be done by general laws operating by classification.

There have, historically, been two ways around this. One, as section 32 suggests, is to legidlate by classification. This is often done when the legislature wants to do something for or to Milwaukee. Laws are passed that apply only to cities of the first class which is defined in a way that could only apply to Milwaukee.

Another is to argue that the law relates to a state responsibility of statewide dimension and will have a direct and immediate effect on a specific statewide concern or interest. Thus, if the budget bill included funds for a new building to house the DMV in, say, Mazomanie, that'd pass muster.

I have not gone through the budget bill and cannot say whether any provison may run afoul of these constitutional restrictions, but some of the DOT grants to municipalities, the moving of the Mars Cheese sign, etc., raise questions. They may all be fine but keep this in mind as people actually read the thing.

Why a corporate income tax?

Paul Soglin, reading my post called The corporate goose, does not like my suggestion that income should be taxed when it finally reaches someone who can spend it. The context for my comment was the double taxation inherent in the corporate income tax. I don't think it makes sense to tax profit at the corporate level and tax it again when it reaches shareholders.

One solution to this is to eliminate or greatly reduce taxation of dividends and capital gains. This is the route that Congress took in the Jobs and Growth Tax Relief Reconciliation Act of 2003. (I preferred the day when legislative proposals didn't have brand names.)

This is better than complete double taxation but it's not the route I would take. I am not a fan of picking and choosing when it comes to taxation. Whether I earn my income from working for someone else or from long term investment, I ought to be taxed at the same rate (although the latter income needs to be indexed).

Paul thinks that my idea (tax the money when it reaches the shareholders) would mean "that the poorest consumer and wage earner will ultimately pay the tax, resulting in little progressivity."

But that's precisely what it won't do. Much of the corporate income tax is actually borne by labor and consumers. He cites a DOR study that says this is a little less than half which may or may not be so. The point is that much of it is not paid by the plutocrats.

But with my idea, it all is or the savings are passed on to laborers and consumers who will generally pay a lower tax rate and benefit from the additional income or savings. Corporations cannot buy yachts or sip Dom on the Cote d' Azur. The point is to make money for the shareholders and, at some point, they must take it into income. Tax it then but, of course, tax it as little as possible.
We don't want to kill that corporate goose.

Practicalities

Politics is the art of the possible. There is a lot in the state budget compromise that I don't like. I am particularly turned off by the cigarette tax increase because it seems to me to be a prime example of NIMBY taxation. Let's stick it to some other people. But if the revenue that the tax will provide is really needed, shouldn't we all be willing to pay it? I understand the argument that smokers increase health costs but I am also aware that, strictly speaking, the net effect of smoking may be to decrease and not increase health costs. I am aware that a tax increase might make some people quit, but sticking it to people who presumably have an addiction and will find it very difficult not to pay is a tad sleazy.

On the other hand, it's not the fox hole that I want to die over.

I also think that conservatives and the GOP need to think hard about just what our position on health care reform ought to be. HSAs and consumer choice are important but we are kidding ourselves if we think that's going to carry the day.

I have blogged before that we may need to tolerate a certain amount of government control of the market in recognition of the realities of health care. Unfettered markets require allowing people to fail. If you can't sell widgets, you go out of business. If you are employed by a company that makes film for cameras, you are likely to be laid off.

But we aren't going to let you die of an easily treatable disease because your business failed or your employee needed to deploy its resources elsewhere. We can argue about whether Graeme Frost's parents should have made the choices that they did, but, while we talk, we want the kid to see a doctor.

Because we aren't going to let you fail in this way, it may well be that we have to require you to insure yourself. Because everyone won't be able to afford it, we may have to provide subsidies. And because everyone may not be able to qualify for insurance, we may have to prohibit - or limit - individual underwriting.

The key, it seems to me, is to realize that these interferences in the market create inefficiencies and ought to be minimized. Thus, I am skeptical that the health proposal announced today by a group that includes business leaders ought to be considered close kin to Healthy Wisconsin.

If we must have a health care mandate, it seems to me that the minimum plan must have few or minimal mandates (devising a method for evaluation of plans will be a challenge)and high deductibles. Any subsidies ought to be means tested. The government ought not to be setting prices.

But, at the end of the day, conservatives ought to agree that the present system (which is rife with inefficiencies) needs to be changed. We should not allow ourselves to be identified with the status quo.

Irony

On the way home from church, we were listening to TMJ's replay of Brett Favre's first game (other than one play the week before)as a Packer. One of the first things that Max McGee said after Don Majkowski left with an injury and Favre came in was to note that, if Brett Favre went down, Ty Detmer could become active and finish the game. Max McGee had many years ahead of him but he would not live to see Brett Favre go down. (Although Favre has left a few games with what proved to be, in his world any way, "minor" injuries.)

As for Max, I only met him once and very briefly. He was a witness in a case I was involved in up in Minneapolis and did not know a thing. But, given his role on the old Packers and years as a radio guy, I do feel a bit like an aquaintance has passed. R.I.P.

The Beast is holding its own

I've been thinking a bit about the debate over the budget in Wisconsin in particular and the more general debate about taxes and the size of government. I responded a bit to Paul Soglin's suggestion that we treat government like a business and "invest." I should not think his friends at AFSME would want to go there.

I do not consider myself a business person. I just turned a pretty sweet job at a great company into a consulting gig because my heart and mind laid elsewhere. But I did spend almost ten years as part of senior management, dealing with business issues at more general, "high perspective" level.

And I learned a lot. The business people that I worked with were whip smart. They know their stuff and have the bottom line to prove it.

One of the things I learned is that we do not assume that our costs must go up. In fact, we work very hard to reduce them. When business is down and we don't have the revenue that we used to have, we don't call our customers and tell them that they must dig deeper. We compare our costs to industry benchmarks and, if they are higher than our competitors, we try to address that.

The debate around taxes and government spending is often reduced to one side claiming that government ("the beast") is being starved while the other suggests that the beast is still feeding. Who's right?

Last night I saw some interesting numbers in an essay by William Voegeli in the Claremont Review of Books (sorry, it's only available on processed pulp). He points out that, in the period from 1956 to 1981, real (adjusted for inflation) per capita spending increased 94%.

Did Reagan reverse that trend? No. Did he stop it? No. From 1981 through 2006, real per capita federal spending increased 41%. He slowed it.

Is this more recent spending largely in the area of defense? It looks like it isn't. As a percentage of the budget and gross domestic product, military spending increased until 1987 and then decreased until 2001. Today, it is 20% of the federal budget and 4% of GDP. Both figures are lower than at any point in the Carter administration.

If you want to put this in the best light for conservatives, you could point out that federal spending as a percentage of GDP was 22.2% of GDP in 1081 and 20.3% in 2006. Spending at all levels of government was 31.6% in 1981 and 31.8% in 2006. So the best that the right can claim is that it has fought the Beast to a draw.

So let's keep things in perspective when we hear the words "slash," "starve" and "decimate" in connection with our budget debates.

The market for taxes

I spent the day in Fargo testifying in an asbestos case. I was the corporate representative for a defendant who never made or sold anything with asbestos but such are the vagaries of litigation. I had never been in Fargo and certainly did not have a comprehensive tour. But the part that I saw seems to have been oddly frozen in about 1959. I couldn't decide whether I liked that or not.

But back home, I see that Paul Soglin wasn't much impressed with the AFP rally in Madison and thinks that those who oppose more and more taxation in Wisconsin are penny wise and pound foolish. He notes that private firms certainly invest in the future, even when the return on that investment is not immediate and he is, of course, right about that.

But there are problems with the analogy. First, they invest in the hope of a return and the market will eventually tell them whether those hopes were realized. Government is not as readily disciplined.

Second, they do not simply decide what revenue is required to go out and do what they think is wise. They can't repeatedly raise prices. They can't charge more than their competitors without providing something that is worth the difference.

In other words, there is no market to tell them that their decisions are good or bad. You may say that, with government, it is the voters who impose this discipline.
Probably so, but that is what the AFP rally was about. People opposing taxes are the faces of discipline.

It seems to me that in a high tax state, the notion that citizens might believe that their government ought to be able to do what it needs to do without new revenue is hardly outrageous.

Businesses make that kind of decision every day.

Guns and lawyers

There was a very nice turnout (over 100) for the Marquette Federalist Society's debate between John Lott and Richard Withers on gun control. John McAdams liveblogged the event.

I didn't do much but introduce the speakers and ask a few questions.

So I sat back and was surprised at how little conflict there was between Lott, who is the bete noire of the gun control movement, and Withers who, although he now works for the Milwaukee Common Council, was formerly co-director of the Medical College of Wisconsin's Firearm Injury Center. He has some street cred on that side of the issue and is a bright and personable guy.

What surprised me were his concessions on Lott's big issues. While Withers argued that it was possible that there might be some places and circumstances where a gun ban would be appropriate, he also agreed that he knew of no place on Earth where a ban had resulted in a reduction in gun crime. He also stated that my impression of the social science research, i.e., that it either shows no increase in gun crime as a result of concealed carry laws or, as Lott argues (and Withers would probably dispute) a reduction in gun crime following the adoption of such laws. (Withers explanation is that few people actually get concealed carry permits.)

Mostly, Withers did not want to talk about gun bans or concealed carry. He did not really want to talk about crime at all, but about "public health." His focus tended to be on "defects" in guns that could be fixed to make them safer like combination locks, etc.

Is this potential common ground or is it politics? Does it represent a recognition that gun bans are not possible so that the route for those who want to restrict gun ownership ought to be to make them as expensive as possible?

Withers recited some interesting stats about guns and suicides on dairy farms. Although he did not make it, some of his numbers could support an argument that we ought to ban handguns in rural areas where they are not likely to be needed for self defense and permit concealed carry in the inner city where they are. That's not likely to be common ground.

The Corporate Goose

As our budget impasse meanders along, there is renewed energy behind the notion that the problem in Wisconsin is not that we tax too much, but that corporations are taxed too little. Paul Soglin is on board with that and cites to a Wisconsin's Future study that says that the percentage that business pays of all state taxes and local property taxes is a five percentage points below the national norm. Jack that up (why shouldn't we lead the pack on all sorts of taxes?) and there would be that much more love for all manner of governmenty goodness.

Maybe, but isn't the problem here the difficulty in double taxation ? If I tax a rich man and forget about the disincentives to income generating activity, it may well be that he'll just buy a smaller yacht, hoard less gold, cop a few less carbon credits, etc. In other words, he may cut his overconsumption and stop building his already obscene net worth. That may suck if you work for a yacht company or are looking to borrow money for a new business, but, you know, cry me a river.

But what happens when I tax that mysterious vehicle of modern evil - the corporation. It can't reduce its consumption because it can't consume. (Yeah, I know about business perks but that's not enough to be material here.) It can hold cash but this just deprives the shareholder.

So it must either short employees or shareholders or pass the cost on to customers. There will be a variety of effects of that, but, to the extent that employees and shareholders take the hit, won't one be to reduce individual income and, as a result, individual taxes? Although I can imagine that some kinds of taxes - those that closely correspond to the services provided to an entity - might be imposed at the corporate level, can't you make an argument that the best place to tax income or wealth is where it comes to rest?

Shark in the middle

I will be moderating a debate between John Lott and Richard Withers on District of Columbia v. Heller,(captioned as Parker v. D.C. there) a decision of the D.C. Circuit Court of Appeals invalidating Washington's gun ban. The debate will be at noon on Tuesday at Marquette University Law School and is sponsored by the MULS Federalist Society.

Wherein I do what Al Gore will not

Admit that I (inadvertently) overstated something.

Jay Bullock points out that the news reports of the decison of the Queen's Bench in Dimmock v. Secretary State for Education and Skills are inaccurate in that the court was not charged with identifying errors per se. Having now looked at the opinion (as opposed to reading the news reports), I think it was wrong to say that the court required fixing "inaccuracies." The film may be rife with inaccuracies, but that wasn't the question before the court. Thanks to Jay for pointing that out. I know that news reports often get court decisons wrong and almost always read the primary source before referring to them in this blog. I should have done that this time as well.

But the larger point stands. What the judge did do was test the film against scientific consensus as measured by the report of Gore's co-recipient, the IPCC. He found areas where Gore departed from the report. Now you can say that there were "only" 9 but, as I said in my earlier post, these tend to be the money points; the ones that claim an impending apocalypse. For example, here's what the judges said about a claim regarding coastal flooding:

This is distinctly alarmist, and part of Mr Gore's 'wake-up call'. It is common ground that if indeed Greenland melted, it would release this amount of water, but only after, and over, millennia, so that the Armageddon scenario he predicts, insofar as it suggests that sea level rises of 7 metres might occur in the immediate future, is not in line with the scientific consensus.

This is, as I have blogged in the past, reflective of a problem with the "global warming movement" generally. Having made the dubious point that challenging scientific consensus amounts to some type of irrational "denial," it engages in a game of bait and switch by trying to extend that consensus to include these alarmist claims that supposedly justify more extreme policy repsonses.

I am not in the "global warming is a non-issue" camp, but I do keep reading these very well reasoned treatments of the issue which suggest that trying to project climate is extremely difficult and that the net effect of greenhouse gases is far from clear. There seem to be powerful arguments that policy responses that supress global prosperity will cause more harm than climate change and may even interfere with what may be the most effective responses to technological advances that may be the most effective response to climate change. I blogged about one here.

But this is a conversation that Al Gore does not want to have. The earth has a fever and while he cannot be bothered to give up even one of his houses, the rest of us better hunker down. Nice champion you have there.

Will he use the prize money to buy another house?

I understand that the people who hand out the Nobel Peace Prize don't necessarily place a great deal of value on the truth. They did give one to Rigoberta Menchu. But, in that case, no one really knew that she had lied in order to serve the truth until after she won the prize.

Al Gore's most prominent contribution to the issue of global warming was to put out a feature length power point called An Inconvenient Truth. Even if you believe that human contribution to climate change is a serious problem that requires a response, it is hard to deny that most inconvenient thing about his movie is that it contains an awful lot of stuff that's not true. An English court recently held that it could not be shown to school children without the correction of multiple inaccuracies. In one of the tastier ironies of contemporary politics, Gore's film which (unscientifically)urges us to shut up about the fact or extent of global warming because of "scientific consensus" departs from that consensus when necessary to make the threat of global warming appear to be more dire than most scientists believe it to be. Gore himself may have admitted this when he said it was appropriate to have an "overrepresentation of factual presentations on how dangerous" global warming is. (Although, in fairness, who know that that means?)

I have a hard time taking people who gave Yassir Arafat a peace prize seriously, but there is still some value in the Nobel brand. Is the committee endorsing truthiness? Is it telling us that exaggeration in a "good cause" is to be commended? Is it saying that, yes, Virginia there really is a ManBearPig.

Ann Coulter's teachable moment

Before I post on Ann Coulter's remarks on Jews and Christians, I want to point out a bit of personal history. My daughter-in-law, who I love dearly, is Jewish. When my grandson was born, she and my son briefly considered not raising him in any particular religious tradition so that he could choose one when he was older. I, of course, did not say anything but thought that was a mistake. Upon further review, they decided that he should be raised in the Jewish faith. I was greatly relieved by that. It is a far better choice for him. I congratulated them on their wisdom.

I don't say that to show that I am some paragon of tolerance, but to point out that, when it comes to people who I would, quite literally, die for, I think that being a practicing Jew is a very good thing and, like any good grandfather, I think my little Aidan is perfect.

I should also point out that, as is so often the case with Coulter, her flippant way of putting things seems (and maybe is) calculated to give offense. I can't imagine wanting to say what she said in the way that she said it. What I am about to say about the need for us to be willing to take other's ideas seriously and to be willing to listen to them even when we don't like them does presume that those ideas ought to be expressed with some regard for the sensitivity of the audience. I can't really blame people for being annoyed at the suggestion that they need to be "perfected." I also am aware that, when it comes to Jews, many Christians over many years have misunderstood and distorted the proper relation between their faith and Christianity and have expressed it through the evil of anti- semitism. We can't ignore that context even if we want to be funny.

So without letting her off the hook for all that, I want to break down what she said because I think at least some of the outrage about it reflects our inability to take religious ideas seriously and the way in which we think they ought to be circumscribed in public discourse. I am, of course, a little reluctant to use the remarks of a political entertainer as a vehicle to do so. I understand that there is something put on about the little dance that she and Deutsch did. She likes to provoke because it is money. He likes to put on the armor of offense and allow her to provoke because he is an entertainer too. But that's what gets attention nowdays and you work with what you have to.

Did Deutsch need to be so offended? Could she have expressed something of the concepts that she was driving at in a way that would be socially acceptable public discourse?

Ann said that she thinks everyone should be Christian. Is that, in and of itself, offensive? Christianity teaches that God made a unique and critically important revelation in Jesus Christ. Attending to that revelation, we say, is a very good thing. Why would we not want everyone to do it? Even if we believe (as mainstream Christianity also teaches) that non-Christians can be saved and have faith traditions that are important and valued, we also believe that others would benefit by acknowledging and trying to live into that revelation. (Although there is also a strain of thought in Christianity that, because of the unique covenant between God and the Jews, even those Jews who become Christians ought to remain Jews. Paul believed that. So in that sense if Coulter is saying - as Deutsch suggested - that Judaism ought to be thrown away, there may be a further theological problem.)

You are free to disagree and decline that invitation just as I can decline the invitation of others. I know, for example, that Muslims believe that we all should convert to Islam. The new breed of evangelical atheists who keep writing books think that we should all abandon belief in God. I think both groups are wrong, but they don't offend me and I don't assume that the statement of their views is hateful.

As far as the "perfected" part, that is, of course, overly simple and needlessly provocative. It also implies (although I don't think she meant) that Christians are more valued by God and I don't find that anywhere in my religion. But, of course, Christians believe that God's revelation in Christ was a fulfilment of a promise to the Jews and is a step forward in and even a completion of humanity's understanding of and relation to God, freeing us from the yoke of the law. Although to call that a "fast track" hardly does it justice, it certainly could be called a perfection - not of people - but of that relationship. (And is, if you believe inconsequential Christians like the Pope and lions of theology like Karl Barth, a perfection that benefits everyone.)

My point here is not to defend Ann Coulter. I don't really care about what anyone thinks of her and she seems quite able to take care of herself. I think that we should, out of common courtesy and in order to be taken seriously, phrase things in a way that communicates respect for others. My point is to say that people ought to be able to express what they believe and not have everyone go off in spasms of offense because they don't accept it. While I realize that how we say things is an important part of making that happen, I also think, again, that we should be slower to outrage.

Shark on the Air

If you are on your way anywhere (or near a radio with time on your hands), I, as on most Thursdays, will be on Backstory with Eric Von and company from 4:30 pm to 6:00 pm. WMCS-1290. The Talk of the Town.

The perils of envy

And since we are talking of taxes, nationally (Glenn Reynolds and Kevin Drum) and locally (Patrick McIlheran and Jay Bullock) has differed as to the progressivity of federal taxes. Drum put together a bar graph which showed that, when you put FICA and income taxes together, the percentage of income paid in taxes rises progressively as income increases and then flattens out. The bar graph looks like a little hill leading to a plateau. Jay liked it so much that he duplicated it on his blog.

The problem, of course, is that little hill of progressivity (including households with incomes up to 200,000) comprise over 95% of all households. One gets fairly close to the top federal income tax rate well before one becomes enormously wealthy. There are very few people in the right half of Drum's bar graph.

They do earn a lot of money and we could, I suppose, argue that the wealthy should pay even more but given that there are relatively few of them (and that their taxable income tends to dry up in response to tax increases), I am not sure that there is much relief there for the rest of us.

It is certainly true that FICA taxes reduce (although not eliminate) the progressivity of all federal taxes in the sense that they tend to even out the percentage of income paid in federal taxes because they (and the benefits that they finance) are phased out at a certain level of income. But this was by design. Social security has been sold (somewhat inaccurately) as a system of old age and disability insurance and not as welfare. If the point is to insure and benefits, although they do go up with income, are capped, why would we ask people to pay into the system beyond the point where the additional payments would have the potential of yielding additional benefits? (Actually, to some extent, we do, but you get the point.) FICA taxes aren't supposed to be progressive.

Reynolds' point was that there is something intrinsically dangerous about a system in which a large percentage of voters pay no income taxes. What possible reason would such voters have not to increase spending? Generally, we think it helps people to make wise decisions if they participate in the consequences of those decisions. That these folks do pay FICA taxes doesn't change his point. FICA taxes aren't supposed to be used to finance the general operations of government (although, tragically, they have been.)

The better argument for the left would seem to be not that taxes are insufficiently progressive but that the distribution of income is too skewed. In an ideal world, it would be flatter. But making it flatter would require a great deal of interference with the market and that seems to result in less and not more total income. Is it better to have a small share of a large pie or an equal share of a small one? Focusing exclusively on distribution issues ignores that question.

The Alternative Maximum Tax

Congressman Paul Ryan deserves a lot of credit for proposing the abolition of the Alternative Minimum Tax. Congress' persistent refusal to modify the AMT (which is unindexed or adjusted for changes in tax rates) has let it effectively increase taxes sub silentio and to do it in a way which largely penalizes middle-class households. It has a particularily pernicious effect on people who live in high tax states like Wisconsin and the relative silence of our congressional delegation on the issue has been a collossal failure of leadership.

But Ron Kind says that to close the AMT without raising other taxes would be "irresponsible." We are, it turns out, counting on the money. Rep. Kind would like to stop ripping off middle class taxpayers, but he's got a family full of programs to feed.

The AMT has resulted in tax increases that no one voted for. It ought to be repealed. If this leads to a hole in the budget, then it is incumbent upon Congress to close it. But it can't avoid that responsibility by continuing to impose a tax on people that no one intended to impose it upon. If I've got problems with my household budget, I don't get to continue to steal from my employer until I figure out how to fix it. Responsibility involves being accountable for your actions. Allowing the AMT to expand in the way that it has was a way of avoiding that.

Should we roll up the moving trucks?

Today's Journal Sentinel recounts an increase in property tax delinquencies in Milwaukee County. The usual suspects are rounded up to blame the unlikely. It's a weak economy and "minimal" wage increases that are eaten up by price increases. But the economy is booming and wages are increasing. It's "predatory lending" (i.e., foolishly lending money to people who could not pay it back so they could by homes they cannot afford). That may be closer to the mark but it seems that even that would not lead to foreclosures without flat or slightly declining housing prices. After the run up in values, we seem to be in an inevitable period of adjustment.

County officials apparently think the cause is all sorts of things that are not increases in property taxes and maybe they are right about that. Scott Walker has done a good job of keeping the county tax flat and state law has helped with school levies. Just think of how bad it could have been.

But, if too many people are having trouble paying their taxes, doesn't that suggest that local government ought not contribute to the problem by raising them? Wisconsin in general and Milwaukee County in particular have extraordinarily high property tax rates. Monthly escrows for property taxes are quite often material in relation to - and sometimes even higher than - monthly mortgage payments.

I understand that Milwaukee County government in particular would like to spend all sorts of money on things that it cannot. As everyone now agrees (but did not while it was happening), the people who formerly ran county government - the AFSME heroes and denizens of Democratic clubs - treated county government as a personal piggy bank for years. That party is over and the hangover is ugly.

But raising property taxes into that will cause real pain for people who aren't particularly wealthy. I sure hope Sen. Lena Taylor finds time to address that.

Shark at WPRI

I have a commentary up on WPRI's site on the constitutionality of residency requirements in the Senate Democrat's Healthy Wisconsin proposal.

What if they gave a war and nobody came?

I've gotten a certain amount of flak for defending John McAdams' piece in WI Interest. I am, depending on who you listen to, in the tank for all conservatives or for anyone and anything associated with Marquette, presumably in an attempt to curry favor with my new paymasters. (I doubt they're all that impressed.)

So what happens next, but John McAdams takes issue with my views on the Folsom Street Fair. Apparently John and I failed to get the memo that we are supposed to think alike.

But watch, here's the way that this political debate thing can work.

John's position has a certain realpolitik attraction. If the game is to shut up your opponents by insisting upon one-sided standards of propriety, then it may be necessary to respond in kind. John thinks it's like a prisoner's dilemma. Both sides would be better off if they stopped trying to shut up their opponents, but if either one stops unilaterally, it'll get creamed. Describing the impact of an ordinance that prohibited only certain types of "hate speech," Justice Scalia summed up the kind of debate that John is concerned with:

One could hold up a sign saying, for example, that all "anti-Catholic bigots" are misbegotten; but not that all "papists" are, for that would insult and provoke violence "on the basis of religion." St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.

But the thing about a prisoner's dilemma is that the players are prisoners. They must play and they have no ability to try to change the rules of the game. But we don't have to play. We (and I mean people of varying political views) can try to point out that throwing a conniption fit every time you hear something that you don't like is no way to go through life. We can try to reassert the value of free and rational discourse. All of that will carry more credibility if we try to avoid our own conniption fits.

I suppose that John would say that I am naive. I may think I can reason with people about this but I can't. In a political war, you can't throw beanbags if the other side has rifles.

In this view, it is useful that someone on the right tries to match the left in the sensitivity sweepstakes. Think of it as a politics of mutually assured destruction. In an iterated prisoner's dilemma, both sides learn to cooperate because their defection is repeatedly punished by the defection of the other side. (Think of the computer's game of tic-tac-toe at the end of the spectacularly bad 80s movie, WarGames.)

(I appreciate that some people on the left are going to say that they are the ones that need to react to the aggression of the right, although in the case of academia raised by John, it would seem that the breakdown is usually as he says.)

Is Professor McAdams right? I am not as pessimistic about the prospect for cooperation without retaliation or that one doesn't actually win points in this game by taking the high ground. I am also influenced by a comment by Dad29 on John's blog. He thinks that I am "surprisingly laid back" about attacks on Western civilization. (He must not have gotten the groupthink memo either.)

But he's wrong. I'm not so laid back. There are some attacks on western values - of which overweening political correctness is one - that you cannot be laid back about. This is another area where the PD breaks down. There are areas where I must defect and, unless you try to change the rules of the game by pointing our what's wrong with perpetual offense and attacks on discourse, that defection will destroy the cooperative equilibrium. That's why I think you have to be careful about when and why you boycott.

The PD analogy suggests that toleration of opposing viewpoints is a weak strategy. People would really prefer a world in which their views are tolerated and opposing views are not. They can only be made to buy into cooperation (in this case, toleration) by the threat of retaliation. That, if it is true, is itself an abandonment of the values of western civilization and we ought to point that out.

Gee, Wally, who are you?

The Reddess and I are watching TV last night. I am engaging in the hunter-male's search for game, channel surfacing. She is there to tell me to knock it off and actually find something to watch.

Suddenly we are in a parallel universe. It's Leave It to Beaver but Ward is not Ward and Wally is not Wally. Mr. Rutherford was there but he was not Mr. Rutherford. He was some guy named Baxter who worked for a milk company. For a moment, we were uncertain whether our senses were betraying us or the laws of nature had been suspended. I mean, Ward sounded like Ward, offering slightly sardonic but essentially good natured commentary from behind the paper. Wally was still all integrity with a dirty face. Jerry Mathers was the Beaver. But who took Hugh Beaumont and Tony Dow? If Richard Deacon was not Lumpy's father, who was? (I guess, in the end, they decided it was the milkman. Deep.)


At the commercial break, we learned it was the rarely seen pilot episode. Order had returned to God's creation. A bit later I saw a glimpse of a world that might have been when Bizarro Ward (Max Schowalter who was then known as Casey Adams and who was about ten years younger that Hugh Beaumont)confronted the man who should have been Fred Rutherford. There he was - Ward Cleaver - jabbing a cigarette at the fellow and blowing smoke through his nose like Jimmy Cagney. I am glad they dumped him. I would not have wanted to grow up in that world.

The Supreme Court at prayer

Archbishop Timothy Dolan spoke with Mike Gousha at Marquette Law School this past Thursday. He is an impressive fellow and John McAdams live-blogged the event.

What I want to note is a recent op-ed by Professor Marci Hamilton taking six Justices of the Supreme Court to task for attending the Red Mass in Washington D.C. this past Sunday. The Red Mass is a Roman Catholic tradition, praying for the Holy Spirit to guide officials and magistrates.

Archbishop Dolan was the homilist and he apparently spoke of reverence for life in the Catholic tradition (although he apparently also drew upon the sources for that reverence in other faiths and secular traditions). Professor Hamilton believes that the Justices somehow created a question as to their impartiality by allowing themselves to hear such things by the representative of a church in which such beliefs are linked to strong stances on abortion and euthanasia. (She did not mention capital punishment.)

Quite clearly she doesn't like what the Archbishop said, but the problem, if there is one, has to be more than what he said. That would imply that judges need to be cloistered and avoid hearing anyone express any principles that might have something to do with a matter that may come before them. Are they to shun the events of any organization that takes a position on an issue that might come before the Court? This proves too much.

Nor can it simply be that the statements were made at a religious service by a cleric. Some argue that religion is different from other affiliations because it demands uncritical allegiance at great cost (loss of salvation) for dissenters. That is, of course, a caricature of religion that bears no resemblance to what I have experienced in the Anglican and Roman catholic traditions and was nowhere in what I heard Archbishop Dolan say on Thursday. I should think Professor Hamilton is too smart for that. That religious allegiances are uniquely binding and divisive doesn't quite ring true in secular 21st century America. (If you are a law nerd and want to read more about the "division" argument in religion clause cases, check here.) The problem has to be more than that the Justices heard these statements at church.

Her problem is with the Roman Catholic Church and abortion. It seems that she believes that, at least for five of the six justices who are Catholic, attendance at the mass suggests some type of affirmation or obeisance to the views of the homilist or to the church of which he and they are a member. She did not, but might have cited the recent statements by Archbishop Raymond Burke has said that a pro-abortion politician has fallen out of communion with the Church and should not receive the sacrament. But what are the implications of that? Must Roman Catholic judges now avoid Mass (at which pro-life sentiments are sometimes expressed)lest their impartiality be questioned? Too much again.

In fairness, she doesn't want that. What she does want is a statement from the Justices about the relationship between faith and judging. She wants them to make a JFK-like disavowal that they will take marching orders from Rome. But why single out Catholics? Of course, Justice Scalia has done just that. But, again, why single out Catholicism or even religion in general? Religious affiliations and beliefs certainly exert an influence on people, but so do a variety of other beliefs and affiliations. Should the Justices list all the institutions and organizations with which they have an association and make clear that they are not bound by its positions? Should Judge Ginsburg have publicly distanced herself from her former employers at the ACLU and clients at NOW? Should Justice Thurgood Marshall have made clear that he is no longer marching for the NAACP? Those organizations have, after all, actually taken positions on questions of constitutional interpretation.

Seeking to bolster her position, Professor Hamilton invokes questions raised by another lawprof Geoffrey Stone who expressed concern that last term's Carhart decision, rejecting a facial challenge to a ban on partial birth abortion, consisted of an all-Catholic majority and, in the view of many, effectively overruled a prior precedent, albeit a very recent one. She apparently thinks that Justice Kennedy's decision in Carhart was so bad that it must have been (figuratively) written in Rome.

But you don't have to be a Catholic to defer to Congressional findings on disputed medical issues (even if Professor Hamilton thinks they "probably" are not) or, as Justices Alito and Scalia noted, that Roe v. Wade is bad law. In fact, Catholic Justice Kennedy was instrumental in saving Roe from the dustbin of history. Did he just now find Jesus or (as Professors Hamilton and Stone imply)Bendedict?

Professor Hamilton is prominent for advocating for a very weak Free Exercise clause. She is well regarded, although her most recent book, explaining that position for a general audience, was the subject of one of the more devastating academic reviews that I have read written by one of the leading religion clause scholars in the country. You can read her response and Professor Laycock's rejoinder here.

I don't want to get into that (I generally disagree with her, but have found her scholarly articles to be well done), but I do want to comment on the cheap shot that she took at Archbishop Dolan. She thinks that it was poor form to invite him to speak at the Red Mass because he has allowed the Archdiocese's lawyers to aggressively defend their client by, for example, making arguments that are perfectly consistent with Wisconsin precedent in a case that the Archdiocese ultimately agreed to sell the Cousins Center in order to settle. That kind of thing is unworthy of a law teacher.

Leather and the Last Supper

I have not blogged on the controversy over Miller's sponsorship of the Folsom Street Fair and the appearance of its logo in conjunction with a parody of DaVinci's Last Supper.

One of my rules in life is that you ought to try very hard not to be offended. For that reason I am not a fan of Bill Donohue and the way in which he has run the Catholic League for Religious and Civil Rights. His appetite for offense appears to border on gluttony.

But the Folsom Street parody of the Last Supper is not like the parody on the Simpsons or most other well known parodies of the painting. This parody was undertaken by a group that is at odds with the Catholic Church and much of the Christian world. The latter tells them that their sexual practices are immoral and harmful. They don't like that and the Last Supper tableau, imputing those practices to Jesus and the Apostles is an aggressive and nasty way of expressing that dislike. (Even an alternative interpretation that Jesus accepts the sexual practices celebrated on Folsom Street is rather in your face.)

I think that the parody reflects an ugly and distorted view of the world, but that alone doesn't get me exercised about Miller. While beer companies would like us to think that they are like us and really cool so we should associate them by buying their beer, there is, for most of us, nothing to Miller other than whatever is in the can or bottle. They like the Brewers in Milwaukee and the Cubs in Chicago. They will sponsor parish festivals as well as leather meets. They are everything to everyone, so they are nothing. They are a bottle of beer. Whether they love Jesus, praise Allah or dance around trees means nothing to me.

For me to get excited, I have to believe that their sponsorship has some impact in the world. If, for example, I believe that the Folsom Street Fair promotes an objectification of sex or the promotion of sexual practices that harm those who engage in them, then I may not want to provide Miller the money to do it by buying their beer. I might feel the same way if I think that they pollute more than they should or exploit third world workers, etc.

Of course, you could also argue that the parody will promote disrespect for Christianity or lead people astray, but I have to be careful about that. Any expression of a belief that I disagree with or attack upon a belief that I hold dear may persuade someone in a way that I don't like, but I can only boycott so much at a time. In any event, whether I am offended has nothing to do with it.

As for this particular case, I am not sure that, in a world where so much happens that shouldn't, Miller's offense is a high priority. But, then again, I can't boycott what I don't buy so Miller ought to be as indifferent to what I think as I am to what they think.

Was Peter Singer in Milwaukee?

Seen last night on N. 13th Street, a car with these two bumper stickers: If you oppose abortion, get a vasectomy ! and Equal Rights for all Species!.

Yesterday in Madison

While this may not be of general interest to either of you, I was in the Wisconsin Supreme Court yesterday. Once again, I was impressed with the conduct of the Court in oral argument. I like aggressive questions from an appellate court but the point of questions is to get an answer. I have to say that, while all of them challenged counsel, the Justices (even the ones I often disagree with)seemed to recognize that the point of asking a question was to get a response. You might learn something.

This should be routine rather than refreshing. But there are more appellate judges than you might imagine who don't get that.

And, while I know that it may get off-topic responses, I feel compelled to observe that new Justice Annette Ziegler asked some very good question.

The Shark Speaks

This noon I will be speaking at a "First Monday" event (on First Tuesday) sponsored by some student organizations at Marquette Law School. I will be talking about Washington State Grange v. Washington Republican Party, et al., a case that deals with the associational rights of political parties and that was argued yesterday. I wonder what I will say?

McCain on the Founding

So how much churn will there be over John McCain's statement that the Constitution nation? Of course, the Constitution doesn't do that in any sense that makes it, as he implies, "preferable" to have a Christian president. (It actually forbids religious tests for office, but that's not what he was talking about.)

I suppose that you could make an argument that, as a matter of intellectual history, certain elements of Jewish and Christian theology paved the way for liberal democracy as it is practiced in the West or that a majority of Americans have generally subscribed, in theory of not always in fact, to Christian principles. That seems to be where he wanted to go:

I would probably have to say yes, that the Constitution established the United States of America as a Christian nation. But I say that in the broadest sense. The lady that holds her lamp beside the golden door doesn't say, “I only welcome Christians.” We welcome the poor, the tired, the huddled masses. But when they come here they know that they are in a nation founded on Christian principles.

Throwing in the Constitution is a mistake, but let's give McCain a little slack on that. But he also said:

I admire the Islam. There's a lot of good principles in it. I think one of the great tragedies of the 21st century is that these forces of evil have perverted what's basically an honorable religion. But, no, I just have to say in all candor that since this nation was founded primarily on Christian principles.... personally, I prefer someone who I know who has a solid grounding in my faith. But that doesn't mean that I'm sure that someone who is Muslim would not make a good president. I don't say that we would rule out under any circumstances someone of a different faith. I just would--I just feel that that's an important part of our qualifications to lead.

What does he mean here? Whatever relationship may exist between Judaism and Christianity and western liberal democracy doesn't mean that people who are steeped in the values of liberal democracy must also be steeped in the values of its intellectual predecessors. Who knows anything about the Greeks nowdays?

I think he may have meant to say that Judaism and Christianity co-exist well with liberal democracy in a diverse nation, while there may be other religions, say the more fundamentalist forms of Islam, that don't, but that's not quite what he said.

I suspect that we'll hear that he was pandering to the Christian conservative base.
That could be, although the comments don't read like something that was planned or put together in a way calculated to have political impact. They seem to be a bit tentative and meandering.

While I may qualify as a Christian conservative, I think that this trope about American being founded as a Christian nation is unhelpful. To the extent that it's true, it doesn't prove much. To the extent that it might prove something, it's not true.

On the other hand, I suspect that whatever blowback there is about McCain is going to be in the nature of 1)he's an idiot or 2)he's a bigot since so much of our political conversation seems to have to fit that template. He's neither but, in this instance, I think he doesn't have it quite right.

More on race and incarceration

Starting round 3, Paul Soglin says that he will "try again" to address his problem with John McAdams' study on racial disparity in incarceration. I don't think it's unfair to summarize Paul's position as stating that the problem is poverty so we should just eliminate that. This is, he says, why he supports the Governor's Commission on racial disparities in the criminal justice system. I have blogged my affirmation of that goal. Jesus may have said that the poor will be with us always, but he also rather forcefully suggested that we ought not be indifferent about that.

But the Governor's commission is not about eliminating poverty. It is about the criminal justice system and, if it is presuming that racial disparities in that system are caused within the system, then it's not going to do much about eliminating poverty and, as I have said, may even make it worse if it windups interfering with efforts to control crime in the central city - some of which may have a racially disparate impact.

Changing the question in this way, the good Mayor suggests that the problem with Professor McAdams (and maybe even me) is the failure to believe that traditional anti-poverty programs work very well. He implies that social science has proven that these programs work and that those who do not believe that are properly compared with Kevin Barrett and Ward Churchill.

I am probably more willing than most conservatives to spend money on poor people. But much of what the government proposes to do is to provide for people what their families did not. Sometimes that is the only thing we can do, but the sad fact is that the state is a fairly poor family substitute. So, if we are to spend money, it seems to me that the first presumption ought to be that we spend it in a way that reinforces middle class values, families, and, I am so sorry, the traditional bourgeois morality associated with them. We ought to remember that we cannot redistribute our way to prosperity.

Just what all that means is something that we can debate, but I don't know why trying to distill the extent to which disparities in the criminal justice system stem from bias in the system is inconsistent with that.

Conversation requires a presumption of good faith

Last Thursday, I participated in a discussion of the O'Reilly controversy on WMCS. I suspect it was entertaining, but I increasingly find the whole thing depressing.

O'Reilly was trying to make a point about the ways in which white people misapprehend black culture and the way in which hip hop culture feeds those misapprehensions. He may not have made it with the aplomb that he ought to have made it and he made not have included all the necessary disqualifiers like, well, of course, every one should have expected the scene at Sylvia's in Harlem to be as it was. A huge emphasis is placed on the statement that he "couldn't get over" what he observed at Sylvia's, although, as I have already blogged, the context in which he made the statement and his reference to conversations that he had with his grandmother over 40 years ago suggests another interpretation.

My colleagues made statements that are just as stereotypical as the ones that they wrongly accuse O'Reilly of. Bill is "too old" to have his first experience with civil black people at Sylvia's in 2007. But the problem there is that we know - at the very least from his statements about his grandma, that this is not true.

Another said that "Billie" had culture shock because he finally got to the hood. But we know, because Al Sharpton has told us, that O'Reilly has dined in Harlem with him on more than one occasion.

On the one hand, I can understand this. O'Reilly began his discussion by making the point that every black person in America has experienced racial stereotypes and that has to affect the way that you see the world. A local blogger, Rene Crawford, recently wrote a post that discussed her experience of what she saw as subtle racism. I have no doubt that some of what she describes reflects racial stereotypes. That's problematic because, although it may not have hurt Rene for people to call her "polite," the fact that the stereotypes exist can have more troublesome manifestations.

But another local blogger, Nick Schweitzer, wrote an interesting response. The trouble with the search for "subtle" racism is that it is without content. There are no standards and we can find or not find it as we see fit.

During the break during the discussion on MCS, one of my colleagues, Curt Harris, observed that we come from different experiences and this bears upon how we see things. Absolutely true but that is part of the problem and not the key to a solution. An African-American might say that she "knows" that something is racially motivated because she can recall instances when it turned out that similar things were the product of racial bias. A white person may respond that he "knows" it is not, because he can recall white people doing the same thing without racial motivation.

My problem with the reaction to O'Reilly is bound up with two things. First, I think it's largely a product of the left-right war. It's more about O'Reilly than about what he said.

Second (and more importantly), I think that it reflects an approach to race that is rooted in a time when racism was far more pervasive and threatening that it is today. While that doesn't mean that racism is not still a problem, a good deal of our discussion about race today probably needs to focus on things other than racial bias. We need to talk about things that may be, in some sense, a product of historical bias and our response to it, but that won't be ameliorated by the elimination of bias.

That was what O'Reilly was trying - however clumsily - to do. I know that at least two of my interlocutors on MCS agree with the larger point he was making about hip hop culture. To draw on another local example, there was an immediate reaction to John McAdams study on racial disparities in incarceration in WI Interest which I believe missed the point because the critics focused on the old racial template. But yesterday, in the New York Times, a black sociologist named Orlando Patterson who is not, in any sense, a conservative pointed out the obvious. Addressing racial bias in the criminal justice system is a worthy and essential goal, but eliminating it will not do away with the racial disparity in incarceration. The solution to that lies elsewhere.

It's going to be hard, however, to talk about that if we enforce a racial speech code that is both hyperactively aggressive and wildly subjective. In light of our racial past, white people need to try to be sensitive about what they say. But we also ought to recognize the sea change in our country and start to presume good faith. Without that, we'll stay stuck in 1967 and that's not a good place to be.