Tuesday, March 27, 2012
In Department of Health and Human Services v. Florida (No. 11-398), it is being argued by the State of Florida and opponents of the Patient Protection and Affordable Care Act that the federal government, in this Act of Congress, exceeded the powers granted to it by the Constitution. Supporters of the Act will want to rule that it is constitutional, in line with many prior findings, over the course of two centuries, that the Commerce Clause effectively allows for national laws telling citizens what to do or not do about all manner of things.
At the mass media story line level, this case is about whether the federal government can tell a citizen to buy medical insurance, and fine any citizen who does not do so (just $95 per year in 2014, but rising to $695 per year by 2016). Or, and this is important, to put it in the negative: citizens may not walk around without having some sort of medical insurance.
If you think about it for a moment, the federal government tells us we cannot do many things, even if we don't need to cross state lines to do them. We cannot grow, harvest, consume or smoke marijuana, for instance. We may not own heavy armaments. We can't manufacture a fleet of cars that only gets an average of 12 miles to the gallon, nor can we use American Eagles for target practice.
If the Supreme Court says that we cannot be required to buy health insurance, the entire house of cards may collapse. There are a lot of cards that conservatives like, and a lot of cards that liberals like, and probably some cards that both teams like.
The liberal position has consistently been that the federal government has all the power it wants as long as it does not violate certain key sections of the Constitution. The building of this position began in Gibbons v. Ogden, [22 U.S. 1 (1824)], where the Supreme Court decided that individual states could not grant monopolies to steamboat lines that prevented competing companies from offering interstate service. It made a big leap forward when railroads and other trans-state corporations began to be regulated in the late 1800's.
During the New Deal, in the 1930's, the Supreme Court at first resisted, and then admitted (after some changes of personnel), that the power of the federal government to regulate commerce, and anything related to commerce, was virtually unlimited. Famously, in Farmer Filburn (Wickard v. Filburn, 317 U.S. 111 (1942)), the Court ruled that the Department of Agriculture could tell Roscoe Filburn how much wheat he could grow on his private property, even if the wheat itself was not sold, but was used to raise chickens.
The current case is not about States Rights, but has a similar feel to it. Conservatives want federal laws when that helps them get their way, with states rights allowed to stop federal laws they don't like. For once Liberals are completely in agreement: they want federal laws when that helps them get their way, with states rights allowed to stop federal laws they don't like. For instance, when slavery was federal law, liberals wanted states rights to apply so that they could have slavery-free states. Later, when trying to enforce civil rights legislation in the 1960's, liberals were against those very same ideas of states rights, proposed by Democratic Party leaders in the South as a means of preventing segregation.
What we are likely to see is the conservative members of the Court trying to distinguish the Affordable Care Act from other laws that they wish to keep in place, like the marijuana laws and the laws against various tactics that unions would like to use.
We might, in fact, be about to see the Gruel of Law cooked up before our eyes. We may see the pure power of having 5 like-thinking judges on a Supreme Court. They are likely to try to find a way to disembowel the Affordable Care Act while protecting their favorite federal no-nos, like the war on recreational drugs.
I particularly hope that Justice Clarence Thomas writes an opinion. In the liberal-to-left spectrum Thomas is often derided as not just plain wrong, but as beneath the intellectual level as other members of the court. I tend to disagree with Judge Thomas on issues, but I have read a number of his opinions, and found they were well-argued, and illustrate lively intelligence. Thomas dissented in Gonzales v. Raich, in which the majority ruled that the Commerce Clause gives the feds the power to criminalize patients who grow their own medical marijuana. So if he votes against the mandate in the current case, at least he could claim consistency. Ginsburg, Stevens, Kennedy, Souter and Breyer all voted to persecute sick people who use the herb. If any of them (of those still on the court) vote against the Affordable Care Act, they have a lot of explaining to do.
Sunday, March 25, 2012
Despite the Catholic Church's oppression of Cubans and cooperation with the corrupt, murderous, but Catholic Fulgencio Batista and his followers before the Revolution, Cubans have enjoyed far more religious freedom under the Communist regime than under its predecessors. They enjoyed the right to not be Roman Catholic: to be atheists, agnostics, or Protestant Christians, or whatever. Generally speaking, when Catholics have been jailed, it has not been for their religious beliefs, but because they were working against the regime. The regime has promoted atheism of the Marxist sort, but that is simply modernizing and educating people.
That said, the Cuban regime, popular or not (more popular after the revolution when the sting of Batista's whips was still on people's backs), is not a democracy. It should become one. The repression of political dissenters is wrong, although all governments, including that of the United States, have always punished rebels, whatever the pretext for rebellion.
I know of no instance in history when Catholics have not imposed their religion on others when they have had the power. The Catholic Church is officially against democracy, as shown in a series of Papal Bulls over the last two centuries, which have never been retracted. The Catholic Church brought us Adolf Hitler, Francisco Franco, Benito Mussolini, and Philippe Petain, the great Catholic dictators of the 20th century.
Having lost World War II, the Vatican had to pull in its horns, and decided to cooperate with the British and American empires against socialism and communism. That was one of the great scams of history, one few Americans want to acknowledge.
The only thing that Pope Benedict has to offer the Cuban people is the usual lies. Some Cubans may want to believe them, but they are still lies. Jesus was not god, and even if he was there is no specific New Testament support for the idea that the Bishop of Rome should be the global Catholic dictator.
In England, usually depicted as the birthplace of our beloved American personal freedoms, the barons and people forced the evil King John to sign the Magna Charta in 1215 A.D. Later, naturally, King John tried to renege. "John was assisted by the Pope, who, as overlord of England, annulled the Charter and excommunicated all who sustained it." [A Manual of English History, Edward M. Lancaster, p. 63]
The Pope's repression of freedom in the Middle Ages in England was no fluke. The Church has consistently demanded to reach deep into our personal affairs, as Rick Santorum, Newt Gingrich, and allies advocate even in these United States.
By all accounts most Cuban Catholics are nominal, much like most American Catholics. They treat the Catholic Church as some sort of ethnic group they belong to. They don't believe the Pope should be a global dictator. They don't go to church on Sunday, not because they can't, but because they know in their hearts it is a waste of time.
Let's not be fooled again. The Pope might use the term "democracy" as a crowbar to re-invigorate his power base in Cuba, but he and his cardinals are deeply devoted to tyrannical rule over their fellow human beings. If Castro had forced people to go to mass (and shot those who failed to attend, as General Franco did in Spain), the Pope would not be talking democracy. There would be hugging, kissing, and making mutual congratulations.
Monday, March 19, 2012
Law tends to complexity when confronted with reality, and international law concerning war crimes is no exception.
President Barack Obama is Commander in Chief of the armed forces of the United States of America. Sergeant Robert Bales is a member of the U.S. Army who reportedly shot and killed sixteen civilians, including women and children, on March 11, 2012, in the Panjwai district, Kandahar province, Afghanistan.
Rather than being tried in Afghanistan for his criminal behavior Sergeant Bales has been returned to the United States, under arrest, to be tried. This recalls to us of the imperialist right to extraterritoriality, long viewed as an insulting injustice by Asian nations.
It is possible, and often happens, that a soldier commits a war crime against the commands of his superiors. His superiors are not generally held responsible. However, I would argue that the U.S. (& allies) war against Afghanistan is a war of aggression. To quote the lead American prosecutor, Robert H. Jackson, during the Nuremberg Tribunal of German/Nazi leaders after World War II:
"To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
To initiate a war is a crime against peace. The initiators are Class A war criminals, to distinguish them from lesser war criminals, like those who follow orders to drop bombs on civilians. Was a crime agaisnt peace committed by President George W. Bush and continued under the Obama administration?
One loophole in the crime against peace idea is the word aggression. Who gets to decide who is the aggressor? If a soldier of country A throws a stone over the border with country B and hits a soldier, does country A then have the right to invade country B and execute people as war criminals? Another way of obtaining the same end, denial, can be based on the clear statements of international law that each nation has a right to self-defense.
Sometimes nations go to war by more or less mutual consent, as the great European powers did at the beginning of World War I. Sometimes the aggressor and defender nation roles are clear, at least to neutral parties. Yet often both sides, or even an obvious aggressor, claims that they are engaging in self-defense, which is not a crime against peace or war crime.
The American government, like most governments, characterizes all of its wars as wars of self-defense.
Recall that the armed forces of Afghanistan did not attack the U.S. No Afghans participated in the attack on the World Trade Center. While the pursuit of the criminals behind that crime was certainly justifiable, a massive war of aggression against Afghanistan was unnecessary and, for that matter, mostly ineffective.
There is another argument claiming that President Barack Obama is not responsible for crimes against peace and the specific war crimes committed by U.S. soldiers and mercenaries in Afghanistan. His defenders say that the current President inherited the war from President Bush. But Adolf Hitler died, and so the National Socialist Party leaders hung by the Nuremberg Tribunal merely inherited his war. What really is the difference, except that Germany lost World War II?
Focus back on Sergeant Bales: was he insane at the time of the shootings, and therefore not to be held responsible? That idea, too, presents difficulties. Just as all murderers would like to be freed on the basis of a plea of self-defense, failing that they would all like to escape punishment by reason of momentary insanity.
We may agree that murder and war are insane, but turning that idea into the operational result that war criminals and murderers should never be punished leaves us with no method to deter future wars and murders.
I believe the only U.S. citizen ever convicted of war crimes was William Calley, convicted for his role in the My Lai Massacre during the Vietnam War. While officially Calley's actions were against orders, in reality he was carrying out a policy decided at much higher levels. He took the fall both for his men and for his superiors. Lyndon Johnson was his commander in Chief, though Johnson might have claimed he inherited the war from John Kennedy.
Robert Bales should never have been in Afghanistan. But he was there, he committed his crimes there, and he should be turned over to the government of Afghanistan for punishment. If they decide he was or is insane, fine by me. Afghanistan would be wise to then call an international tribunal, like the one at Nuremberg, to look at the scope of the matter.
The United States could then extradite Presidents Bush and Obama, their top advisers, their top military commanders, and the members of Congress who voted to permit the war of aggression against Afghanistan to be tried by the international tribunal.
Oops, I forgot: in reality we have the Gruel of International Law. The strong convict the weak, not the other way around.
Saturday, March 17, 2012
Typical treatments in American History books provide little insight. Take, for example, this passage from The American Pageant by Stanford historian Thomas Bailey:
"The low ethics of the [Ulysses S.] Grant era are well illustrated by a fantastic scheme of "Jubilee Jim" Fisk and Jay Gould. This precious pair conceived the plot, in 1869, of cornering all the gold on the New York market and netting additional millions. Their cunning game could succeed only if the Federal Treasury would hold back its funds. The conspirators worked on Grant directly, and also on his brother-in-law, who received $25,000 for his complicity. On "Black Friday" September 24, Fisk and Gould madly bid the price of gold skyward, while scores of honest businessmen were driven to the wall. The bubble broke when the Treasury, contrary to Grant's earlier assurances, was forced to release gold."
Returning to the gold standard is a hallmark of Ron Paul's presidential campaign. Running parallel to the current gold bubble (which may already be popping), the idea that gold is the only sound form of money (excepting maybe silver) has become quite popular. The idea only appeals because people have had time to forget just how unworkable the gold standard used to be. Black Friday 1869 illustrates that, and more.
The debate about creating a sound money and banking policy for the United States dates back to the colonial era. Money, until the 1900's, was thought of as either being metallic or paper. Metallic money tended to maintain its value better, but the U.S. had to import most of its gold and silver until gold was discovered in California in 1848. Prior to that time the economy was constrained by a lack of gold currency. While paper money could easily be printed to alleviate the shortage of coins, the temptation to just keep printing it has been difficult for politicians and bankers to resist. Too much paper money causes the prices of goods in terms of money to go up: we get inflation. It should be noted, however, that when new sources of gold were found, that also caused too much money to be coined, resulting in inflation. Gold has less inflationary danger as a whole because you can't just print all you want, so for the most part the gold standard has been associated with either price stability or deflation resulting from the constraint on trade from insufficient gold in circulation.
But wrap your head around this: most money today is electronic. That is right. While Tea Party economists prescribe gold as an antidote for Federal Reserve Notes, only a tiny percent of American money today is paper. Money now sits on computers. Bank computers, grouped together, are an accounting system that electronically registers how much money each person has or owes. What is important is not that it is in electronic form (it used to be on old-fashioned paper ledgers), but that the accounting system itself is fair, accountable, and manageable. The Federal Reserve's real job is to keep our economy, and our individual stakes in it, accountable. That is a very hard concept for people who shy away from abstract and complex thoughts, which is most of us most of the time.
The United States economy had seen numerous boom and bust cycles before the Civil War, each with their own unique aspects. The expense of the Civil War led to a number of important economic changes. Paper money was issued by the Federal government; previously it had been issued by private banks. These federal "greenbacks" were meant to supplement, not substitute for, the gold supply and bank-issued money. They could be redeemed for government gold. They allowed for a tremendous expansion of economic activity in the North during the war.
A national banking reserve system was also put in place before 1869. To make bank notes roughly equivalent and prevent bank failures, smaller (typically rural) banks had to keep reserves in larger (urban) banks, and in turn New York City banks held reserves of the banks around the country. While this helped with many old problems, it left a seasonal liquidity problem. Even after the Civil War America's wealth was largely farming-based. In the fall, when farmers sold their crops, "actual cash money" was needed to pay them. This drained the local banks, who in turn called in their reserves. In New York City the reserves drained out of the major banks, and out of the stock and commodities markets. Since this happened each year, and could be predicted, while some banks tried to be prepared, certain speculators took advantage of the situation. In the simplest version, if you wanted to take over a corporation, you could usually buy its stock cheaper in the fall than during the rest of the year.
As described in The First Tycoon: The Epic Life of Cornelius Vanderbilt by T. J. Stiles, railroads were the biggest American corporations of that era. "Commodore" Vanderbilt had achieved successful railroad takeovers partly by purposefully creating money crunches, then buying the stock of rivals cheap. Sometimes he even forced down the price of stocks he owned, so that he could buy back a larger share at low prices. On September 19, 1869 he dumped his stock in the Lake Shore railroad. Lockwood & Company, a large Wall Street brokerage house, had borrowed money to invest in Lake Shore, and was driven to bankruptcy.
Jim Fisk and Jay Gould were rivals of Vanderbilt. Vanderbilt's Lake Shore scheme came during the Gould-Fisk gold corner scheme, which was part of a bigger plan. If dollars sank in price compared to gold, then American crops would be more competitive overseas. Hence, they would need to be exported, and to do that they would have to be shipped to East Coast ports via railroads owned by Fisk and Gould. They would make money on the gold corner and make money for their railroads. They acquired large amounts of gold starting in August, and by mid-September gold was in a bubble, which they planned to deflate while taking profits and after the crops had been shipped.
On September 24, 1869, the Federal Government announced it would sell some (not that much, a few million dollars worth) of its gold. The price of gold collapsed; stocks followed gold down. Many Wall Street companies failed. Neither the gold supply nor the banking reserve system could supply enough liquidity to allow the markets to right themselves.
Vanderbilt, probably the richest man in America, calmed the markets. He had not meant to sink the entire American economy, just some of his railroad rivals. As gold dropped in value, people stopped hoarding it, so gradually both gold and paper money supplies returned to normal.
The nation had several more lessons in the need for a money system that could expand and contract in line with both short term economic conditions and longer trends. Finally, in 1913, the Federal Reserve System was formed.
There are certainly problems with the Federal Reserve System. The Great Depression was not prevented by Federal Reserve action. Neither was the inflation of the 1970s. Nor can the Federal Reserve by itself make up for the stupidity of Congress, or of Wall Street guys who, like Fisk and Gould, outsmart themselves.
But forget the Gold Standard. It is suitable only for antique shows along with muskets, horse-drawn trams, and cowrie-shell money.
Fix and improve the Federal Reserve System; don't abolish it. Clearly it needs to be run by better decision makers. They should put the public interest above the current mission of insuring profitability for bankers and their fat-cat Wall Street shenanigans.
Just as we really need to increase math and science literacy in the United States, we need to increase business and economics literacy. An ill-informed electorate is apt to elect ill-informed and crooked men who can break any system, no matter how well-constructed the system itself is. Discussing the gold standard is a great opportunity to explain how the modern electronic-money economy can be made to work.
Wednesday, March 14, 2012
author: Amitav Ghosh
publisher: Farrar, Straus and Giroux; New York
year of publication: 2011
reviewed March 14, 2012
hardcover (also available as paperback & e-book)
Complex and beautiful, River of Smoke takes the reader back to a time when the tiny, greedy, uber-violent nation of Britain ruled much of the world and still had difficulty distinguishing between trading and piracy. Building slowly from a side show in Mauritius, its central plot follows the fortunes of an Indian merchant, Bahram, who has decided to risk his family's fortunes on a vast cargo of opium for the Chinese market.
Bahram's story line alone would have sufficed for a major novel, but it is just one of many wisps in the complicated plot. Smoke is worth breathing for its rich vocabulary, a melange of words from an array of linguistic groups. The names of characters reflect this, as do the names of the foods they enjoy. Savoring new words, readers can get an introduction to pidgin, the common language of Asia ports.
For florists, gardeners, and art lovers, too, there is a subplot: the search for a rare Chinese flowering plant rumored to convey longevity. This involves botanical illustrations, gardeners, more than one painter, and some love affairs.
Bahram has done well as an opium trader. He knows that technically he is a smuggler, that taking opium to China is illegal, but in the past the corruption of Canton officials has made the practice easy and yet still highly profitable. Now a new Emperor, for the benefit of his people, is determined to stop the opium trade, which is destroying the culture and economy of China. Bahram's shipment, which was to finally win him great wealth and respect in his home community, is first decimated by a storm in transit. Then it sits in the waters near what will become Hong Kong, unable to be sold.
In the end Bahram prefers the pipe dreams induced by opium to his shattered dreams in life itself.
I wonder how much most Americans know of the aftermath of the events that take place in Smoke. The first of the Opium Wars followed, in which the British attacked China and secured a treaty allowing them to trade freely in Chinese ports, and continue to sell opium is vast quantities. China, the richest nation in the world in 1700, was a hallowed-out shell by the time the British (and Americans, and Dutch, French, Germans, Russians and even Japanese) had worked their "free market" magic. Many American fortunes were made in the opium trade, notably those of the Forbes family and the Delanos (later of Franklin Delano Roosevelt).
In the jungles, the oceans, and in human culture too, new life cannot come into existence until something old dies, making some room, providing fertilizer by its decay. Today the opium (now heroine) trade runs the other way, hallowing out not so much nations as susceptible segments of a global society, supplemented by a vast array of newer drugs, diversions, and human luxuries. The Chinese people are, for now, back on top, hopefully wiser for the experience of having spent over a century down-and-out, trying to work their way back to prosperity and to understand how they could have allowed a small group of English (and Scottish) gangsters to cause so much misery and death.
River of Smoke is a sequel to Sea of Poppies, which is set in India, and which I have not yet read. I did read and review The Calcutta Chromosome. Amitav Ghosh now has 9 published novels.
Saturday, March 10, 2012
I was thinking about writing a science fiction novel in which (on another planet, in a different time) doctors are predators, a sort of subspecies of the regular denizens of my imaginary civilization. Where could I get such an outrageous idea? Well, there is the opening section of B. Traven's The Rebellion of the Hanged, in which Marcelina, a Mexican peasant, falls deathly sick. Her husband Candido takes her to town to see the doctor. Candido's life savings consist of 18 pesos, but the doctor wants 200 pesos to operate. The town's leading citizen offers to loan money to pay for the operation, with the Candido to work off the loan at a timber camp, cutting old-growth mahogany. Candido accepts the loan, the Doctor operates, Marcelina dies anyway, and Candido becomes an enslaved timber worker. Thus setting the novel in motion. It is a great novel, which is why you probably never heard of it before.
Yes, I recently had a walletectomy performed. Walletectomies are the most common medical operation in the United States, and most are 100% successful. Fortunately for me they only did local anesthesia. I jumped out in the middle of the operation, so I have half a wallet left. I am hoping the rest of the wallet will grow back eventually, or that half will keep me going until I die of some other cause.
According to the American Bankruptcy Institute, 1,362,847 people filed for bankruptcy in the United States of America in 2011. According to Medical Bankruptcy in the United States, 2007, published in The American Journal of Medicine, in 2007 "using a conservative definition," 62.1% of all bankruptcies were medical. Do the math and you have about 850,000 people who went bankrupt due to medical bills or health issues in 2011. And probably more this year. It adds up.
Note too, that the habitually poor don't go bankrupt, and have their medical bills paid by Medicaid. The rich go bankrupt on occasion, but usually from bad investment decisions or cocaine habits. Bankruptcy from medical bills is a working and middle class phenomena. It typically involves losing home ownership. After you are totally impoverished, you too can qualify for Medicaid, food stamps, and Section 8 housing (warning: there is a very long waiting list for section 8 housing).
Some say maybe people should buy better insurance, then they could survive an expensive illness. The problem with that theory is that most people don't make enough money to buy the best insurance policies. Given the level of prices and wages now existing in the U.S., most people would have to live in a tent and eat grass so that all their wages could go to medical insurance. So we take our chances with less than wonderful policies.
The problem is not entirely caused by a predatory medical profession. The bigger problem is low wages. While low wages is also a complex problem, it mainly comes from decisions made internally within corporations. The people who divide up the pie take the biggest pieces, leaving crumbs for the workers. Also, some sectors of the economy are just less profitable than others, and yet someone has to do that work.
Workers today are too busy fighting each other for crumbs to organize themselves to fight for a fair share of the pie.
Modern science has provided some nearly-miraculous healthcare technology, including a few wonder drugs and amazing surgical techniques. It has also created a bunch of drugs that have little benefit to patients and yet cost tens of thousands of dollars a year to take.
Society has to be built on trust. We can't each of us be jacks-of-all-trades. We must each have our place. We also can't all be millionaires. But it seems like everyone who enters medical school thinks they are getting a ticket to be a millionaire, if they can just stick out the hazing. Because that is the way the American Medical Association set up the system over a century ago, by limiting the number of doctors allowed to graduate from American medical schools each year.
If I ran things one of the first things I would do is open a bunch of competing medical schools, maybe doubling the number of seats there are now. Then I would choose students not strictly by their grades, or ability to pay tuition, but largely by their desire to alleviate the suffering of the sick. I would guarantee them a decent, above-average salary once they were trained. And I would nationalize the health insurance industry.
Then we could trust doctors to do what is good for us, instead of what is good for their own wallets.
But that would be socialism.