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Market Distortions

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June 28, 2026

By Stephen Stofka

Last week I wrote about different types of authority, and whether authority without responsibility is legitimate. From last week: “Through its legislative authority and police power, a government controls the terms of contracts between private parties. It grants licenses to individuals and companies to conduct business. It sets rules that contracts must follow. Those contracts govern the distribution of wealth within a society. Does a government have an accompanying responsibility to ameliorate the economic outcomes from those contracts?”

A utopian economic model popular with some libertarian economists is laissez-faire economics. In this model, government has a limited role in commerce, but what are those limits? The term acts as a signaling device between pundits rather than a precise economic doctrine. Economists prefer to discuss the balance between market failures and government failures. Market failures occur when market participants don’t pay for a benefit or inadvertently cause harm. Pollution is a frequently used example. Let’s turn to government failures.

In his seminal work The Wealth of Nations, Adam Smith argued that governments provide essential institutions for commerce. These include defense, a court system to adjudicate contracts and protect property, provision of public works, a system of weights and measures, a reliable money to conduct business, and the granting of patents and copyrights. Smith supported public education, a controversial idea in the late 18th century. He thought it would improve the labor pool and civic life. He thought there should be few regulations and few, if any, programs of redistribution  to people or businesses. He was very critical of grants of monopolies, which stifled competition and retarded commercial improvement.

Governments inherit a legacy of past arrangements, property rights and commercial licenses that were doled out by a king or some other royalty after a conquest. The island of Manhattan in New York City is some of the priciest real estate in the world. During the reign of England’s King Charles II, the English navy seized the island from the Dutch in 1664. The king granted the land to his brother, the Duke of York (Source). A common practice was to subdivide the land and sell it for money, or to secure key political allies. Our economic system is built on a legacy of colonial conquest and monarchical power and privileges.

A company may owe part of its fortune to its ownership of a key parcel of land in a harbor port like New York City. That ownership is based directly or indirectly on a conquest and land grant. These past arrangements have created economic advantages for some private parties who leveraged those assets over decades, then sold them to other private parties. Those advantages may have seemed right and fair several centuries ago, but standards of fairness change with the passing of generations, and each generation must deal with the legacy of those past arrangements.

Governments protect the transfer of property rights down through the generations to maintain a stable and predictable economic and legal system, the backbone of a flourishing society. Long lived governments like the City of New York inherited an authority of several centuries. They have an accompanying responsibility to rectify the unequal outcomes that have arisen from those ancient arrangements. Denying that responsibility diminishes their authority in the eyes of those they govern.

Naturally, those that benefit from those advantages fight to keep those benefits. They believe their wealth was entirely deserved and promote ideologies that champion the virtues of accumulated wealth. Descendants inherit the authority over the assets but reject any responsibility for the circumstances under which those assets were accumulated. Our legal system accommodates the inheritors of wealth because the rules were written by the inheritors.

When governments try to correct those inequalities of income and circumstance, they often make a mess of it. Frederich Hayek (1899 – 1992), a Nobel Prize winning economist, pointed out that market prices carry a lot of information that coordinates production and distribution. Government redistribution schemes distort that information system. To achieve their goals, governments can not access enough information to make prudent decisions. Inevitably, they distort the private marketplace and investment decisions. It’s a matter of opinion whether corrective redistribution programs do more good than harm to the people they are designed to help.

Prices in a market system provide both information and benefits that we take for granted. Let’s consider a textbook example of rent regulation in New York City. 1.6 million people live on the island of Manhattan in an area of 22 square miles. That’s a density of 73,000 people per square mile (Source), more than four times the density of Greater Tokyo. Brooklyn has 38,000 residents per square mile. Naturally, there is a strong demand for housing and this puts upward pressure on prices and rents. For many working families, housing costs can consume 50% of income, far above the 30% recommended threshold. I grew up in the city and left in my 20s because living costs were too high.

For over a hundred years, there has been some form of rent regulation in the city. Under the old systems, known collectively as rent control and phased out in 1969, rents were often frozen. Landlords skimped on building maintenance and tenants were reluctant to push too hard for repairs or improvements in case the landlord used that as a reason to do upgrades which terminated the apartment’s status as a rent controlled unit.

The Rent Stabilization program was created in 1969 and replaced the older rent control systems that had been in place for fifty years. There are more than two million rental units in the city and slightly less than half are rent regulated. Almost all of those units are under the new rent stabilization program. Unlike the older rent control program, annual rent increases occur without landlords having to apply to a government agency.

In a market system model, supply and demand regulate prices. In the Rent Stabilization program, a government agency called the Rent Guidelines Board sets a cap on these rent increases (see note below). The Board must review thousands of data points on the costs of providing housing to determine a reasonable percentage cap for rent increases (Source). In a market system, thousands or millions of people make choices that influence the price of the goods and services they buy.

Several economic studies have concluded that rent regulation reduces housing supply. An investor can’t simply buy an older building, move the old tenants out, demolish the building and build something new. Rent stabilized buildings have guaranteed lease renewal so it is very difficult to move the old tenants out. Rent regulations dampen investment in new housing. Even though new buildings are exempt from rent stabilization, policies can change and investors can not be assured that a newly constructed building will remain exempt (Source).

Rent stabilization reduces the turnover rate. Tenants remain in their rent stabilized units regardless of a change in their job location, income, or family size. This encourages mixed-income neighborhoods but the benefits of the program flow to high income families who don’t need the financial assistance. Critics say that housing vouchers would better target needy families.

Under a free market system, prices respond as people make choices to balance their income and needs. Given the cost of living in New York City, why don’t more people move to Clifton, New Jersey? The city has a population of 90,000, a density of only 8,000 per square mile and it’s a 35 minute drive from Manhattan. Housing prices are modest and the city gets a good rating at Livability.com. Why isn’t the free market system inducing more people to move from NYC to Clifton? The fact that prices and quality of living are not attracting more people indicates that the housing market has characteristics and constraints that place it outside of the free market model.

People buy more than square feet when they buy or rent a home. A home is an essential part of daily life and each family’s home package is unique. They purchase a housing package of resources that include job opportunities, schools, churches and other social institutions, transportation, shopping, green space, hobbies and entertainment, and networks of other people. A family may spend $3000 a month for housing in a city with adequate public transportation so that they do not have to spend $1000 a month on a car and gas to get to work, school and play activities. Another family spends $2000 a month for similar housing but has additional transportation costs that add $1000. Both housing packages cost the same.

When some pundits criticize rent regulation as government interference, it is important to keep in mind that, in those cities with rent regulation, the physical home is a small part of the entire housing package. One time when I visited my brother who lived in Manhattan, we went deep sea fishing during the day then attended a riverboat concert that night. We took public transportation and spent about $300 (2026 dollars) combined, including meals. That seems like a bargain but we need to add in the cost of apartment rent in Manhattan. Access to all the amenities that the city has to offer comprises the entire housing package and is capitalized into the cost of housing. That’s why rents and housing prices in New York City are so high.

Secondly, the free market model is a distortion of actual free market dynamics because most markets have frictions and ancillary benefits. When economists build their models, these frictions and benefits are assigned a Greek letter and added to the equation. Present day governments must negotiate a long history of entitlements and endowments that were themselves a distortion of the free market. With authority comes responsibility. When pundits complain about government distortions of the market, ask yourself if a government program is distorting the market more than the model itself. I hope to see you next week.

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Photo by Kaleb Nimz on Unsplash

Note: On Thursday evening, June 25, the Rent Guidelines Board voted 7-1 to freeze rents on units with 1 and 2 year leases. This is the first time in the 56 year history of the rent stabilization program (Source).

Picture of a domed government building

Which Authority?

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June 21, 2026

By Stephen Stofka

Last week I looked at schisms in religious and political organizations. I ended with the speculation that many of our disagreements ultimately are about authority. I want to take a look at the various types of authority we recognize, and what characteristics they share. Secondly, what is the relationship between authority and responsibility?

Most cultures recognize a parental authority derived from the responsibility that a parent has for a child. Religious tradition claims that parental responsibility and authority come from God, not the state. However, states claimed a responsibility under the doctrine of parens patriae, a Greek term meaning “parent of the country.” Therefore, the state had a duty to protect anyone, particularly children, who could not protect themselves. In 1962, a seminal paper published by Kempe, M.D. et al (Source) identified a clinical condition of physical abuse in young children that the authors termed battered child syndrome. Doctors and hospitals became more likely to report suspected child abuse to local authorities, and legislatures passed laws mandating such reporting

On the other hand, many jurisdictions regarded the home as a private sphere. Police were reluctant to actively intervene in cases of suspected domestic violence (Source). Litigation and activism by women’s rights groups prompted legislatures to adopt laws that criminalized domestic violence, rather than treating it as a private family matter. As we can see, the spheres of authority are not clearly defined and clashes over authority are frequent in human societies.

Governments at all levels claim a political authority, a right to make and enforce laws in its role as the parent of the country. Authority is not power but authority can be imposed by power. Monarchies and theocracies base their claims to authority on God, not the people. In a democracy, a government’s police power is based on the consent of the governed. In a multi-layered system like the United States, governments often clash over jurisdictional authority.

A central debate divides the electorate. Through its legislative authority and police power, a government controls the terms of contracts between private parties. It grants licenses to individuals and companies to conduct business. It sets rules that contracts must follow. Those contracts govern the distribution of wealth within a society. Does a government have an accompanying responsibility to ameliorate the economic outcomes from those contracts? Half of the population says yes, and advocate social programs that address inequalities of circumstances. Half of the electorate says no. The government may make the rules but has no responsibility for the outcomes. Question: is authority without responsibility legitimate?

Legal authority is derived from political authority, but is concerned with applying the law rather than making it. It is the least responsible branch of government in our country because many judges are unelected and are not held accountable to the public. Often there is not a clear distinction between applying the law and making law. Lawmakers often write laws using imprecise language so that they can reach a consensus. Judges must interpret such language, and are accused of making law when some people don’t like their interpretation.

However, even when a law or constitutional amendment is clearly worded, judges have been unable to resist a secret desire to write law through their interpretation. Let’s  call this an authority by implication, by implied meaning. Here’s an example. The 14th Amendment states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In the 1873 Slaughterhouse Cases, a 5-4 majority of the Supreme Court interpreted that language to create two sets of citizenships with distinct rights (Source). Citizens of the United States had one set of rights. Citizens of the State had a separate set of rights. Does the 14th Amendment state any such thing? No. Does that language imply that there are two separated sets of rights? Implied meanings are personal and quite arbitrary. Did the framers intend to give the judiciary both arbitrary power to draw their own implications and lifetime tenure? These are the essential characteristics of kingly power. After a seven year war of independence against the British King George, they decidedly did not grant such a power. The judiciary grabbed that power.

God is a convenient source for authority claims, because God can accommodate many different claims to truth. Clergy claim a religious authority based on sacred texts like the Bible, or Qur’an, or on some divine revelation. Why do church institutions feel the need to claim authority? Ultimately, they want to convince others to submit to their authority. The philosopher Fredrich Nietzsche (1844 – 1900) rejected claims by any institution that it had unquestionable authority over human thought, morality, or values. His targeted Christianity because of its influence over European morality, but his criticism extended to all religious, moral and political systems that claimed control of the human mind.

Clergy often link religious authority with moral authority, claiming that objective morality is impossible without God. Early Christian leaders like Augustine and Aquinas taught that all moral laws are derived from God. Of course, the classical Greeks would have disagreed, but Christian teaching has long rejected secular principles and virtues. More recently, the evangelist preacher Billy Graham preached that, without God, everything was permissible. Without God as a foundation for morality, actions cannot be judged right or wrong. Right actions are simply social and personal preferences. There is an obvious contradiction here. How can a subjective belief in God create a foundation for an objective morality? Religious believers are practiced at embracing contradictions. Never let a contradiction get in the way of a religious claim to truth.

Expert authority may be based on a practiced knowledge or it may be based on nothing more than the recognition of other practitioners in a certain field. For several thousand years, the theory of humors was the bedrock of the medical practice. First proposed by the Greek physician Hippocrates (c. 460 B.C.E. – c. 375 B.C.E.), the theory claimed that disease was an imbalance of four humors in the body. Bloodletting was a common practice to rebalance the humors. The theory was flexible and could be used to explain any outcome. If the patient got better after bloodletting, that demonstrated the truth of the theory. If the patient died, as in the case of President Washington, it was because the humors were too far out of balance. The effectiveness of bloodletting was not tested until around 1820, when it was shown that bloodletting was either ineffective or harmful for most diseases. How did experts get it wrong for two millennia? They relied on an authority based on tradition.

Many of our institutions depend on managerial authority, derived from the hierarchy in an institution. Examples include corporations, universities, and military organizations. A manager with little experience in a field may override the experience and knowledge of employees that he manages. The problem is particularly acute in the federal government. After a change of the executive, political appointees are put in charge of a large department based on their loyalty to the President or fundraising ability rather than knowledge critical to the successful operation of the department.

Linked to managerial authority is economic authority. Employers, lenders, and property owners control economic assets, investment and job opportunities. As a recent example, Iran’s control of the Strait of Hormuz, a key shipping lane, supported an economic authority that proved to be as powerful as the authority that the United States claimed as a military hegemon.

We can classify authority by its justification. There is an authority by force, which needs no justification. Might makes right, as the saying goes. Even those who use force to impose their authority often make some of the other justifications I have noted above because force is an expensive tool to implement a regime of command. Authority by consent enlists the cooperation of those subjected to that authority and requires fewer resources. Expertise, tradition, political, moral and religious justifications are often woven together in a packagethat helps defeat challenges to an institution’s authority. In our daily disputes, we can keep an eye out for these combinations of justifications to help us unravel competing claims. And, with that, I hope to see you next week.

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A canyon forms a vee shape of sky.

The Schisms

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June 14, 2026

By Stephen Stofka

This week I want to write about the divides within human organizations, particularly our political and religious institutions. I’m trying to understand what there is about us as social beings that causes these splits. Typically, a fundamental issue comes up that cannot be resolved and a congregation will split over the disagreement. Are these ideological splits inevitable, a product of the human temperament? Let’s look at some historical examples and see if we can see some common elements.

Soon after the founding of our country, two political parties formed with fundamental differences about the role of the federal government. The Federalists favored a strong central government, following the sympathies of Alexander Hamilton, President Washington and John Adams. The Democratic-Republicans wanted a weaker federal government with stronger state and local control, a type of governance favored by Thomas Jefferson and James Madison. What started as a political dispute has now grown into separate philosophies about the role of local institutions, including the family, in our lives.

In Islam, the Sunnis and Shia split over the leadership of the Muslim community. The Sunni believed that the community should choose its leader from among qualified companions of the Prophet, leading to the selection of Abu Bakr as the first caliph. The Shias believed that succession after Muhammed’s death in 632 C.E. should remain within the Prophet’s family and that his cousin and son-in-law, Ali ibn Abi Talib, had been designated as his rightful successor. What began as a political dispute gradually developed into distinct religious traditions. Over time, Sunni and Shia Islam evolved different views about religious authority, leadership, and certain theological questions.

In the ancient Jewish community, the Pharisees and Sadducees disagreed over the source and interpretation of religious authority. The Sadducees accepted only the written Torah (the first five books of the Hebrew Bible) as authoritative. The Pharisees accepted the written Torah but also believed in an Oral Torah—a body of interpretations and traditions passed down alongside the written text. Because the Sadducees’ authority was tied closely to the Temple, its destruction in 70 A.D. caused their movement to disappear. An oral tradition allowed the Pharisees to adapt religious law to new circumstances and eventually became the foundation of Rabbinic Judaism.

Their disagreement reminds us of the disputes between Christians who insist on a literal interpretation of the Bible and those who understand the Bible as story, as allegory, as poetry. We can see elements of this dispute  in our current debates about judicial interpretation and analysis. The Sadducees rejected any doctrines that were not explicitly stated in the written Torah. Textualist judges believe that legal analysis must be firmly grounded in and confined only to the text, and its meaning as they understand it.

The first followers of Jesus were Jewish. They attended synagogues, observed Jewish law to varying degrees, and regarded themselves as part of Judaism. Some believed Jesus was the Messiah that Jewish tradition had long spoke off. However, some followers began to regard him as divine, provoking a clash with Jews who believed in strict monotheism. After the destruction of the Second Temple, Rabbinic Jews rejected claims that Jesus was the Messiah or divine. By the middle of the second century, many Jews and Christians regarded themselves as separate communities.

Over the centuries, frictions over papal authority grew between Greek-speaking Christians in Eastern Europe and the Middle East, and Latin-speaking Christians in Western Europe. The bishops in Rome, the center of western Christianity, claimed universal jurisdiction over Christians everywhere. Bishops in the east believed that they should govern together as equals. This is similar to the disagreement between the Federalists and anti-Federalists at the Constitutional Convention. The Federalists wanted a strong centralized structure. The anti-Federalists wanted a confederacy of equals. In 1054 C.E., the bishop of Rome, also called the pope, and the bishop, or patriarch of Constantinople excommunicated each other. Western churches called themselves Roman Catholic. Eastern churches called themselves Eastern Orthodox.

The historical examples so far have been ideological divides over authority. Who gets to be boss? It surprises me that these persistent divisions in human society have similar characteristics to playground disputes. A fundamental feature of loosely organized games is the lack of authority, an anarchy that is central to the relations between countries. If the players do not agree to a higher authority, then disagreements are inevitable.

In the 16th century, Martin Luther challenged the hierarchical structure of the Catholic Church and Christianity divided into Catholics and Protestants. Catholics believed in the authority of priests and bishops to interpret the Bible, and salvation was through these intermediaries. Protestants advocated for a more collegial structure in which believers and local churches had the final authority to interpret the Bible. Salvation was directly from God. This echoes the political disputes over the role of the central government in American society, and the schism between the eastern and western churches. Throughout Europe, Protestants and Catholics fought a series of bloody civil wars without resolving these conflicts. Whole countries went one way or the other. Many European countries in the south went Catholic. Those in the north went Protestant.

In 19th century France, republicans and conservatives argued over the role of religion in the educational curriculum. In 1881- 2, the Ferry Laws made primary education free, compulsory and secular. Republicans believed that the curriculum should foster loyalty to the French Republic, not the Catholic Church. Conservatives, monarchists, and many Catholics maintained that religion was essential to moral education, and the integrity of society itself. Secular schools could not instill the principles that built moral character. The dispute concerned the identity of France itself. Would it be an orderly society grounded primarily in Catholic tradition or one organized around less clearly defined republican and secular principles?

In the 19th century, American Methodists divided over slavery. Northern Methodists opposed slavery, while southern Methodists believed slavery was compatible with Christian principles and the Bible. After a hundred years, the two branches reunified in 1939. Divisions over same-sex marriage and the ordination of gay clergy led to another split. Underneath these disagreements lies a major dispute among Protestant Christians over the interpretation of the Bible. Should sacred texts be understood through historical tradition and the plain meaning of the text, or should interpretation be guided by changing social and cultural circumstances? There is a similar dispute among judges as to the proper way to interpret the Constitution and the law.

Disputes over ideological matters can mask a dispute over authority. Take the case of the Methodists and slavery. In Colossians 3:22 and 1 Peter 2:18, the apostle Paul encourages slaves to obey their masters. Does that mean Paul endorsed slavery or is he advising a behavior within a relationship that was common in the old world? Pro-slavery interpreters argued the former. Abolitionists argued the latter contextual understanding. Slavery contradicted the central message of Christianity, that all people were equal before God and could be saved. Why did this drive the Methodist congregations apart? In many southern churches, Jim Crow laws mandated that enslaved people sit in segregated sections of the church. Northern churches had no such restriction.

Hidden within that tangle of claims and arguments is a question of authority. Whose rule wins? Who is the final interpreter, the decider of what the Bible, or the Constitution, or the Quran means?There is none. Organizations are glued together by forced or voluntary consent. To secure ratification of the Constitution, the framers agreed to add the First Amendment. This separated the government’s power to enforce consent from the voluntary consent of religious belief and association.

The natural tendency of human organizations to fracture leads to a profusion of beliefs and practices. Ideas evolve as living creatures evolve. They adapt to a changing social, economic and cultural environment. Conservatives naturally resist institutional change but it is inevitable. Progressives want to engineer institutional change but such change must happen in response to changes in the environment of a human society. That’s why so many proposed changes seem forced.

There is no newspaper titled Our Daily Disputes but that is the news. Knowing that most conflicts in our lives are really about authority, and who gets to make the rules, can help us understand our own feelings. I hope to see you next week.

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Photo by Fineas Anton on Unsplash

A man in a red parka stands on a snow covered hill looking at jagged mountain peak ahead of him

The Visible and Invisible

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May 31, 2026

By Stephen Stofka

One of this summer’s biggest movie releases is Christopher Nolan’s The Odyssey, the story of a military commander returning to his home in Greece after the Trojan war. When he encounters several dangers on the trip, Odysseus prays to the Greek goddess Athena for help. For much of human history, we have tried to leverage invisible powers to help us get what we want. These invisible powers were capable of work. We prayed to invisible beings for love, for rain, for relief from sickness and pain. Roman families prayed to their household gods, the Lares, for protection of their home and other favors. The Jewish people were the chosen people of their god.

Gods were not neutral. They took sides in battle. Gods had to be placated. If our side lost, it was because our sacrifices, our rituals had not pleased our gods. If our side won, it was because our god was more powerful than their god. Catholics and Jews shared the same God, the same Old Testament, but differed on the belief in the divinity of Christ. Jews had to be punished and persecuted. Catholics and Muslims shared the same God, but Muslims had an entirely different text, the Koran, and a prophet that Catholics did not recognize. The Catholics launched several crusades to defeat the Muslims. Protestants and Catholics had the same god and the same sacred texts, but a different hierarchy, and different worship rituals. Each side believed that their way of worship was right and warred against each other throughout Europe.

The Age of Neutrality

The realm of the natural was visible, capable of being perceived by our senses. Phenomenon not accessible to our senses was the realm of the supernatural. In 1644, Evangelista Toricelli showed that the atmosphere had weight. We were like crabs out of water, walking beneath an ocean of air (Source). The invisible was no longer the realm of the supernatural. A few years later Otto von Guericke showed that the weight of the air could be used to lift objects. For the first time in history, an invisible being could do work, and the word force was repurposed to include these “gods” of nature. A few decades later, Newton published his theory of gravity in 1687. These natural gods like gravity were neutral. The god of gravity treated everyone the same. These natural forces were more reliable, more predictable than the supernatural gods. In several more decades, Thomas Newcomen developed an efficient steam engine. People were learning to bring the invisible forces of heaven down to earth, ushering in the First Industrial Revolution (Source).

Social Exchange

As physical scientists explored the exchange of energy in physics, chemistry and biology, social scientists began to investigate exchanges of the invisible among people. In 1776, Adam Smith published The Wealth of Nations, an analysis of the production and exchange of goods among people. Money cannot be consumed yet it has value, an invisible quality. A pound of flour can be consumed but only as an ingredient in bread. It’s value is latent. In Part 1, Chapter 4, he wrote about the diamond water paradox. Water is far more useful to people than diamonds, yet the exchange value of water is much lower than that of diamonds. To help resolve the paradox, Smith developed two notions of value, value in use and value in exchange, and noted how unrelated the two values could be.

Value is a property as invisible as a god, its existence and effectiveness only apparent by its manifestation in the natural world. Value in use was a functional value, the ability of a commodity like corn to satisfy some human want. That function was only possible through transformation by people. The land had to be tilled and sown. The crop had to be weeded, harvested, and stored. Many foods needed a final transformation to make them palatable or digestible. While it was difficult to measure a property, the costs to realize the functional value of a commodity could be measured. In those days when humans or animals did most of the work, the chief cost of a commodity was human labor.

Value in exchange could also be measured by human labor, since this was the most common tradeable value that people had. Smith, David Ricardo and other early 19th century economists developed a labor theory of value as a solution to the riddle of the diamond water paradox. In the latter half of that century, the increasing use of machines in production tested the logic of that theory. Karl Marx was such a fierce adherent of the labor theory of value that he regarded any contribution by machinery or capital as an exploitation of labor.

Marginal Analysis in Economics

Marx introduced an edifice of historical, political and social relations that obscured the fundamental economic principles of exchange. In an effort to concentrate solely on the economic aspects of the marketplace, economists like Jevons, Edgewater and Marshall introduced the idea of marginal usefulness, or the value of one additional unit. Value was situational, determined by supply and demand, and based on individual preference.

How did these economists resolve the diamond water paradox? Water was vital to a human being, but when there is a good supply of it, an additional glass of water has little value. Because diamonds are scarce and convey a prestige highly valued by people, an additional diamond may have high marginal value.

Scarcity and surplus determine the price of a good. The seller of a loaf of bread does not price his product based on the wage or earnings of his customers. Buyers and sellers have a shortage or surplus of a good and want to maximize the usefulness of the next unit of that good or service. These economists, called marginalists, rejected the belief that there was any value infused in a commodity. The only measure of that value was the price.

Political and Social Theory

For more than a century, marginal analysis has been the dominant theory of economic study. Can it be used to understand political and social relationships? Perhaps not. It has some disturbing implications. Despotic governments are governed by marginal thinking, the idea that human value is based on a person’s usefulness to the ruling regime to maintain its power and control. In a liberal ideology, political rights are grounded in the theory of natural law, whose chief proponent was the 17th century philosopher John Locke. People are imbued by their creator with certain inherent or natural rights that are inviolable to a government.

A marginal analysis of personal and social relationships treats people as means to satisfy our ends. The philosopher Emmanuel Kant wrote “So act as to treat humanity, whether in your own person or in another, always as an end and never as only a means.” People had an intrinsic worth in their own right. But this view is not grounded in anything other than an agreement among people that humans have worth. Their suffering has meaning. Yuval Harari, the author of Sapiens, A Brief History of Humankind, laments the fact that people on one side of a conflict struggle to even acknowledge the suffering of people on the other side. We are so invested in the about the righteousness of our actions that we lose sight of the intrinsic worth of those on the other side of a conflict.

The Sacred and Humanist

People of faith claim that the natural world must be connected to the supernatural to have any meaning. Without a belief in a creator God, they claim that morality is ungrounded. Human life has value because we are creatures of God. The Constitution was divinely inspired, a work of the Christian God.

Humanists believe that people have a responsibility and capability to act ethically without a belief in supernatural gods (Source). That responsibility is based on our innate sense of compassion. That capability is born of our rationality. It is up to us, not some invisible gods, to shape the meaning of our lives. I hope to see you next week.

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Photo by Joshua Earle on Unsplash

Keywords: marginal, economics, categorical imperative, value, religion

Blurb: The gods of our ancestors have vacated heaven and now live among us in a myriad of forces and energy.

A painting of a beach with a curve of water on the left edge of the painting. A lone figure clad in black stands in the distance.

Work of Art or Sacred Text?

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May 24, 2026

By Stephen Stofka

In her last interview, author of The Origins of Totalitarianism, Hannah Arendt said that Americans regard their Constitution as sacred text (Source). “There are no natives here. The natives were the Indians. Everyone else are citizens. And these citizens are united only by one thing and this is true: That is, you become a citizen in the United States by a simple consent to the Constitution.” Arendt was speaking of those, like her, who immigrated to America. For those born in the United States, even that consent is not a prerequisite to citizenship.

Is the Constitution sacred and what did Arendt mean by that? Former Justice Antonin Scalia was famous for his remark that the Constitution was “dead, dead, dead” (Source). Scalia believed that the meaning of the Constitution was fixed forever at the time it was written. In later remarks at Princeton University, he clarified that he favored an enduring rather than a living Constitution (Source). Scalia meant that the meaning of the Constitution was enduring. In his book Reading the Constitution, former Justice Stephen Breyer regarded the intention of the framers as enduring (p. 262). Breyer gave more weight to a law’s purpose and consequences in deciding the merits of a case before the court, rather than the text itself (p. xvi). I will call that intentionalism.

Scalia advocated a judicial interpretation he called originalism, an approach that tries to understand the original meaning of the text. Scalia’s method involved reading the Constitution as though it were a statute. In a speech he gave to students at Princeton University in 2012, Scalia said “When we read Shakespeare we use a glossary because we want to know what it meant when it was written. We don’t give those words their current meaning. So also with a statute — our statutes don’t morph, they don’t change meaning from age to age to comport with the whatever the zeitgeist thinks appropriate.”

The word naughty in Shakespeare’s time meant wicked or immoral, a moral condemnation. We use the word to describe someone acting mischievously. The word in his current usage does not convey moral condemnation. Of course, the English language was in a state of great transition during Shakespeare’s time. The meaning of the words in the Constitution have changed relatively little since 1787. A soldier carrying a flintlock rifle and an M-16 rifle are both bearing arms, the phrase used in the Second Amendment. Due to advances in gun technology and manufacture, the scope of that phrase has changed. The M-16 can be set to fire more than one shot. Did the framers intend to include any weapon that can be carried by a person, no matter how powerful and destructive it can be?

A Constitution is written using broader terms. A statute is written with specific terms and often contains definitions of those terms. Here is an example from the Colorado Revised Statutes: “Each eligible individual who is partially unemployed shall be paid a partial benefit. Partial benefits shall be in an amount equal to the eligible individual’s weekly benefit amount for total unemployment, minus that part of wages payable to the individual with respect to the week that is in excess of fifty percent of the individual’s weekly benefit amount…” (Source). Terms are defined as in “’Benefits’ means the money payments payable to an individual with respect to his unemployment. The different classifications of benefits are set forth in section 8-70-110” (Source).

Let’s look at Article 1, Section 2 of the Constitution, one of the more specific sections in the Constitution. “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” At first glance, the language might seem precise, but there are a lot of details missing. How shall the Representative substantiate his age? Birth certificate by a state agency? Eyewitness sworn before a local judge? A document signed by a registered midwife? If citizenship was not granted at birth, how should the Representative certify citizenship? A federal document attesting to that fact? What if there is a line entry in a federal register attesting to such citizenship, but the document itself was lost in a fire? Is that enough documentation? Does the qualification for state residency vary with the regulations of each state? These details are handled by statute or agency regulation, not by a Constitution.

Unlike statutes, the U.S. Constitution has few defined terms. James Madison objected to the insertion of the term “general welfare” in Article 1 of the Constitution because the term was imprecise. Others at the Convention responded that it would be up to future generations to determine what the phrase meant. Scalia and other textualists attach their own meaning to words, then claim the meaning they favor was the original meaning of the word. When historians show evidence to the contrary, textualist judges rarely defend their research.

The Constitution is like a landscape painting by James Whistler (Source). It is imprecise. Many details are missing. The painting is an invitation to come inside its borders, to explore its mood, the people and objects within that rectangular frame. A statute contains the details involved in constructing that painting. These include the kind of paint, it’s source and mixture, the quality of the linen for the canvas and how it should be primed. Constitutional text contains the vision. The supporting statutes are the instructions for implementing that vision. Textualist justices like Antonin Scalia, Samuel Alito and, to a lesser extent, Clarence Thomas treat Constitutional interpretation as though the Constitution was a paint-by-numbers hobby kit (examples here). Because it is not, the justices simply write in their own numbers on the canvas, and claim that the founding generation wrote in the numbers.

In the 2008 District of Columbia v. Heller opinion, Scalia treated the clause in the Second Amendment regarding the militia as a prefatory or incidental clause. The right to bear arms was not connected to service in the militia, Scalia argued. Why did the framers put that clause in? Scalia admitted that the “structure of the Second Amendment is unique in our Constitution” but found some examples in state constitutions (Source). This is the ploy of originalism. A jurist can dig through any number of historical documents until they find something that supports their interpretation of a text. They ignore all other historical evidence that contradicts their opinion, then pronounce that their opinion is grounded in the original meaning of the text.

In the 2022 Dobbs v. Jackson Women’s Health Organization opinion, Justice Alito wrote that the word abortion was not in the text of the Constitution (Source). Therefore, it was not a protected constitutional right. In the 2010 Citizens United v FEC opinion, former Justice Kennedy was not an originalist but found that money as a funding source for speech was protected under the First Amendment (Source). The First Amendment states “Congress shall make no law … abridging the freedom of speech.” The framers could have written “Congress shall make no law … abridging the freedom or funding of speech,” but didn’t. Justice Kennedy and the conservatives on the Court rewrote the Constitution they way they would have done it if they had lived two hundred years ago. That is a radical, not a conservative, approach.

The framers used general language in the Constitution to state principles, not regulations, so that future generations could instantiate those principles in evolving circumstances. The process of amending the Constitution, as set forth in Article V, was arduous. Surely, the framers did not intend that a few men on the Supreme Court could effectively amend by the Constitution by reinterpreting it. The framers never intended to give away their power to the judiciary. To do so would have been irrational. In Marbury v Madison (1803), Chief Justice John Marshall claimed the authority to decide the meaning of the Constitution, effectively executing a judicial coup of the legislature and the executive. Neither President Jefferson nor the Democrat-Republicans in Congress challenged Marshall. They were too involved in negotiations for the Louisiana Purchase completed two months after Marshall’s decision. Why did the framers give life tenure to judges? They never intended the judges to have Constitutional authority.

The Republican led Congress has abdicated their power and authority to the courts and to the Executive. It is time to restore the primacy of Congress, the representatives of the people. In Federalist #51, James Madison wrote “In republican government, the legislative authority necessarily predominates” (Source). Legislative supremacy was a long tradition in England after the Glorious Revolution of 1688. By its nature, a legislature has several internal controls. The Executive and Judiciary do not. Why? Those two branches were never meant to become as powerful as they have. It is time for the Congress to undo that. That is the why of the problem. The how is a matter of deliberation but the how is not possible until both parties in Congress can agree on the why. On that note, I hope to see you next week.

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Image: Beach Scene by James McNeill Whistler, 1896. Public domain (Source)

A wall with propaganda posters from several countries

Power and Propaganda

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May 17, 2026

By Stephen Stofka

This week I want to explore the nature of propaganda. Is it a form of speech? Is it in the eye of the beholder, like beauty? Did the framers intend to protect propaganda as a form of speech?

Let’s look at a dictionary meaning of propaganda: “information, ideas, or rumors deliberately spread widely to help or harm a person, group, movement, institution, nation, etc.” (Source). The Bible would satisfy that definition. Most of the political spin that comes out of the White House would also satisfy that definition. CYA, or “Cover Your Ass” comments and redirection is a form of propaganda.

I prefer the definition in the Oxford English Dictionary (OED), which describes the meaning as “the systematic dissemination of information, esp. in a biased or misleading way, in order to promote a particular cause or point of view, often a political agenda” (Source). Propaganda is prop-agenda,  a propping up or boosting of an agenda or regime. Propaganda is systematic, not casual. Harm to a group or person is incidental to promoting a particular cause. This helps distinguish retribution  from propaganda.

President Trump often attacks people he doesn’t like in a systematic way, a characteristic of propaganda, but he does not promote a particularly coherent cause. Trump uses repetition as a strategy of branding or labeling. His attacks on Jerome Powell, Chairman of the Federal Reserve, for being “incompetent” and “crooked” is a branding strategy in a campaign of retribution (Source). It is not propaganda.

The former talk show host Rush Limbaugh used repetition and ridicule to brand political figures that he didn’t like. Trump borrows some of those techniques but doesn’t have Limbaugh’s imagination. Limbaugh invented colorful names and phrases to belittle political opponents, and the reach of his radio program helped them become common usage. Examples include tree huggers for environmental activists, feminazis for abortion activists, and drive-by media for mainstream media. Both Limbaugh and Trump emphasized the entertainment aspect of political discourse.

In 1922, journalist Walter Lippmann published Public Opinion, about the shaping of public opinion in a democracy. World War I had birthed a massive propaganda machine in America, led by George Creel, who headed the Creel Committee, appointed by President Wilson to promote America’s involvement in the war (Source). Wilson had won re-election in 1916 on the promise that America would stay out of the war in Europe, and he needed to combat the isolationist sentiments of the majority of Americans. Creel fought “for the minds of men, for the conquest of their convictions” to spread “the gospel of Americanism” to “every corner of the globe,” Lippman quoted Creel (p. 19). So began the evangelical crusade to convince the world that American institutions were superior to those of other nations.

Lippmann wrote “Without some form of censorship, propaganda in the strict sense of the word is impossible” (p. 18). Censorship is a key aspect because it is a police power, a function of government. Lippmann wrote “a group of men, who can prevent independent access to the event, arrange the news of it to suit their purpose” (p. 17). All governments claim that war justifies an additional degree of censorship, but that is an ugly term in the minds of Americans. We have the First Amendment and a free press. Censorship is a term we associate with Communist Russia, China and North Korea.

In 1918, Congress passed the Sedition Act of 1918 to outlaw any “disloyal, profane, scurrilous, or abusive language” about the government, the military or the flag that interfered with the war effort. It was meant as an expansion of the Espionage Act of 1917, and more than a thousand people were prosecuted under both acts. In Debs v United States, the Supreme Court upheld the conviction of Eugene V Debs for an antiwar speech he gave (Source). The decision was unanimous, indicating how little importance the Court paid to individual rights during wartime. Although the Sedition Act was repealed in 1920, the Espionage Act remains in effect to this day (Source).

The first thing American politicians must do is sell censorship to Americans as something other than censorship. An administration may be “combating misinformation” for the “public safety.” Censorship is necessary to “protect national security.” Another ploy is the use of a national emergency. The administration often claims that bold and unconventional action is needed because of a national emergency, but can’t give a coherent explanation of the emergency because of national security. George Carlin (1937 – 2008) was a comedian who famously poked fun at many of the euphemisms we use. He would have found the Trump administration a rich source of material for his stage act.

To justify censorship, American politicians have been in state of war since World War 1. If they are not fighting communism, terrorism, or totalitarianism, they are at war with drugs, poverty, and injustice. War for a noble cause can be used to justify secrecy and censorship. During the Vietnam War, reporters and TV crews had fairly free battlefield access. Both the Johnson and Nixon administrations felt that an honest and open coverage of the war contributed to public skepticism and a lack of support for the war.

During the Gulf War twenty years later, reporters were herded into press pools or embedded with military units. Reporting was subject to military security reviews to prevent the leak of any operational details and for the protection of the troops. Imagery of casualties was kept to a minimum and the emphasis was on the technological prowess of the American military. Those censorship policies continued during the Iraq and Afghanistan Wars. Both Israel and America have tried to hide the costs of the current war against Iran. The Trump administration has suppressed reports of damage to American military bases in the Gulf Coast states. Defense Secretary Hegseth has purposely understated the monetary costs of the war. Israel has effectively imposed a total black out of damage within its country. Both countries have discarded the trappings of democracy, and adopted the tactics of totalitarian regimes.

Did the framers intend propaganda to be included in First Amendment protections? That is not so clear. The first use of the word in its current political meaning did not occur until 1790, according to the historical examples shown in the OED entry. The chaos of the French Revolution and the prospect of war with France led Federalists in Congress to pass the Alien and Sedition Acts in 1798 (Source). They did not refer to propaganda, as such, but used similar terms, like “seditious writings,” “foreign influence,” and referred to the “licentiousness of the press.” The Sedition Act criminalized publishing “false, scandalous, and malicious writing” against the federal government, Congress, or the president. Federalists argued that coordinated attacks by partisan newspapers could undermine public confidence and destabilize republican government.

Before the Acts expired in 1801, several defendants challenged the constitutionality of the Sedition Act. Matthew Lyon, a Republican congressman, was prosecuted and jailed for criticizing President John Adams. Lyon argued the law violated freedom of speech and press protections. Thomas Cooper challenged the constitutionality of the Sedition Act in court, arguing that criticism of government officials was protected political speech. At that time, people disagreed whether federal courts had the authority to strike down acts of Congress. A few years later, Chief Justice Marshall set a precedent in Marbury v Madison that it was the responsibility of the Supreme Court to interpret the Constitution.

Is “false, scandalous, and malicious writing” a form of propaganda? The Federalists were worried about coordinated acts by newspapers, a systemic campaign that would indicate propaganda. Remember that Walter Lippmann introduced a distinguishing characteristic of censorship, which implies a police power. I might think that Fox News broadcasts propaganda, but does Fox News have the power to impose censorship? Viewers can choose to watch or not. The coverage might be biased, but it is not propaganda. That element of censorship can only exist when government institutions produce a biased set of information and opinion in a systematic manner.

The use of propaganda is an existential tool for any political regime. That’s especially so when the media is privately owned. An administration must carefully prune information which undermines its effectiveness. The Trump administration has been particularly aggressive in reducing data gathering at federal agencies that Trump does not like (Source). He has cut staff at NOAA because he doesn’t like climate change. NOAA is responsible for climate modeling and weather forecasting. Farmers in Iowa who no doubt voted for Trump depend on that information to manage their business. He has reduced staff at the CDC and eliminated surveys that gauge reproductive health and infectious disease (Source). Like many conservatives, Trump does not like the Department of Education and would eliminate it if he could (Source video). Most of the staff at the National Center for Education Statistics has been terminated (Source). The department administers student loans and special education funding. It enforces civil rights protections and helps equalize funding across states. How well is the Trump administration managing those areas? Without a national database of information, Trump can avoid scrutiny.

Under the Freedom of Information Act (FOIA), media organizations file hundreds of thousands of requests to gain access to information. If the administration denies the request, the requester can file a lawsuit. There is no central database that compiles FOIA requests by administration or agency, but the number of FOIA lawsuits (not requests) during the first Trump administration far surpassed that of previous administrations (Source).

In casual conversation, we may label something as propaganda, but it is limited to a government with the police power to limit information and prosecute offenders. Detecting propaganda is made more difficult if it aligns with our biases. We may tolerate censorship by an administration that we favor, reasoning that they must have a good reason. However, we are alert to any censorship from an administration that we don’t like. We are suspicious and more apt to believe in conspiracy theories about that administration. In an electorate that is evenly divided, as we have now, half of voters are tolerant of propaganda and half are not. We need to be less tolerant of propaganda and censorship from either party. Yes, it takes time and resources. Yes, we have other concerns in our daily lives. The health and viability of a democratic republic depends on an informed people who are not duped by politicians from either party.

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Photo by Sinitta Leunen on Unsplash

The Judicial Bird Cage

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May 10, 2026

By Stephen Stofka

Last week, I wrote about the Supreme Court’s cutting away key portions of the Voting Rights Act. This week, I want to understand the conservative attempt to keep the country imprisoned in the sentiments and prejudices of the 19th century.

Three-quarters of the states must vote in favor of an amendment to the Constitution. It takes only a plurality of Supreme Court justices to amend the Constitution through reinterpretation. Throughout our history, the Court has acted as a second Congress, limiting or amending statutes using some judicial theory invented by one or more members of the Court. The Congress must jump a high hurdle to make substantial constitutional changes. The Court has only to step a bit higher to have the same effect.

At the Constitutional Convention, the framers underestimated the power of the judiciary so badly that they left it up to the first Congress to draft the rules. What if the Constitution had set the same three-quarters threshold for substantial changes to the Constitution? Today’s court would need seven justices to set new precedent, amend or overturn a former precedent. Key decisions of the Roberts’ court would not have met the minimum threshold.

Marbury v Madison  and Roe v Wade (abortion) would have passed the test. Dobbs v Jackson Women’s Health Organization, which overturned Roe, would not have passed the test. Infamous rulings like Dred Scott v Sandford and Plessy v Ferguson would have passed the test. The 13th and 14th Amendments overturned the Court’s decision in Dred Scott. Brown v Board of Education overturned Plessy and was a unanimous decision.

Conservatives on the court often refer to customs or precedents mentioned in 18th and 19th century text. In District of Columbia v Heller, Justice Antonin Scalia used 18th century dictionaries, English common law and practices in the American colonies to understand what the words “bear arms” meant in the Second Amendment. What was the notion of self-defense in colonial times? He used this historical foundation to justify his interpretation of the Second Amendment as an individual right to carry a gun. Scalia declared that the First, Second and Fourth Amendments were pre-existing rights. The Constitution could only recognize then, not create them. Thus, it could not diminish or take away those rights.

Scalia was a proponent of Originalism, a judicial analysis which insists that modern opinions rely on the meaning of texts when a law was written, and the historical practices and statutes prevalent in that period. Originalism has a central conflict. The Constitution, the Bill of Rights and statutes written during the decades before the Civil War were based on a different understanding of rights than we have today. In the 18th and early 19th century, rights depended on each person’s status in society, their race, gender or property. Different people had to play by different rules. A historical analysis of the law must struggle to overcome those multiple standards and reach a precedent that is consistent with modern sensibilities.

The problem was that different people had different sets of rights. White people had rights that black people didn’t. A shop owner had rights that his workers did not have. Women had few rights. Under the common law custom of coverture, a married woman’s legal status was merged with her husband. She could not make a contract, own property or sue in court. The English jurist William Blackstone wrote that a husband and wife were one person in the eyes of the law.

The Declaration of Independence stated that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” In America, unlike Britain, official titles of class and nobility were forbidden, but people understood that there were roles in society, and roles were not equal. This was especially true in the southern states whose economies were founded on agriculture. Their social hierarchies were more static than those in the northern states. My maternal great-great-great grandfather was a farmer in S. Carolina, and three succeeding generations of sons were farmers. Rights varied by one’s role in society. The responsibility of a state was to manage the roles and rules within that society.

It’s important to understand that, prior to the ratification of the 14th Amendment, the protections contained in the Bill of Rights applied only to the Federal Government, and not to the states. The founding states were concerned that the central government not interfere with the sovereignty of the states in how they dealt with their citizens. The protection of the rights of their citizens was the main responsibility of the states. In fact, the constitutions of some states afforded far better protections of individual rights than was contained in the Bill of Rights.

By the time of the Civil War, Americans recognized that the southern states had managed those roles and rules to segregate or exclude black Americans in private and public life. After the Civil War, the Equal Protection and Due Process clauses of the 14th Amendment promised to equalize the rights and freedoms that people enjoyed. Following the passage of the Civil War amendments, several Supreme Court decisions reduced their scope by drawing distinctions between civil and social rights, and enacted double standards for government and private business.

In 1875, Congress passed the Civil Rights Act to ensure the equal treatment of black Americans in hotels and inns, in theaters and on public transportation. In The Civil Rights Cases(1883), the Court ruled that the Fourteenth Amendment allowed the federal government to regulate discriminatory behavior by state and local governments, not private businesses. This was an 8 – 1 decision, reflecting the normal understanding of rights as they were understood at the time the 14th Amendment was ratified. If Justice Scalia’s Originalist approach is correct, then today’s justices should apply that same distinction between government and private parties.

In Plessy v Ferguson(1896), the court ruled that segregated but equal accommodations enacted by state law did not violate the equal protection of the law. This was a 7-1 decision, reflecting the dominant understanding of equal protection at the time the 14th Amendment was ratified. The lone dissent, authored by Justice Harlan, did not reject the distinction between government and private parties but noted that a private institution like a railroad serves a public function and is subject to the protections contained in the 14th Amendment. In Brown v Board of Education (1954), the Court overturned that precedent of “separate but equal.” If Justice Scalia’s Originalist approach is correct, then today’s justices should apply that same understanding of “separate but equal,” and overturn the precedent set in Brown. Do you think that is not coming? Just wait.

In fact, the inevitable outcome of Originalism, consistently applied, is to resurrect these 19th century understandings, the sentiments and prejudices of that age. Both the Originalism and Textualism projects will rationalize stratifications in our society because of the roles that people play. Six of the current Court’s justices are involved in one or both of these projects.

In Trump v United States (2024), the Court gave former Presidents “absolute immunity for actions within his conclusive and preclusive constitutional authority,” and “at least presumptive immunity from prosecution for all his official acts.” This is 19th century court jurisprudence that sets out different rules and rights depending on one’s role in our society.

In Dobbs v Jackson Women’s Health Organization, Justice Samuel Alito concluded that the Constitution did not “confer a right to abortion.” He based his reasoning on 18th and 19th century abortion regulations and English common law, all of which regarded women as functions, as roles in our society. Women bore the children, kept the house and cooked the meals. Society did not recognize a woman’s personal boundaries. With  that understanding as a foundation, it is no wonder that Alito could find no sense of privacy, of personal sovereignty for a woman who was performing a role similar to a brood cow.

The 18th century philosopher, Immanuel Kant (1724 – 1804) formulated a rule of ethics that we should treat people as ends, not just as means. In other words, people were more than the roles, the functions they played in society. That ethical rule ran counter to 18th and 19th century legal jurisprudence which regarded people as functions, not beings in their own right. In fact, much of English common law and Blackstone’s Commentaries, used frequently by conservative justices on the court, regard people as functions within society. By basing their reasoning on that ancient jurisprudence, the conservative justices on the Court reject Kant’s rule.

Three of the six conservative justices might serve another 20 – 25 years, so we can expect more of this type of jurisprudence in the future unless Congress changes the number of seats on the Supreme Court just as it did after the Civil War. That is quite an undertaking but the Originalism and Textualism projects were big undertakings that began in the 1970s with the establishment of the Federalist Society, ALEC and Heritage Foundation.

We can be a nation rooted in the present and looking to the future, or we can be a nation trapped in the birdcage of historical prejudices. The conservative court constructs a cat’s cradle of confusing opinions and unexplained shadow docket rulings that the lower courts have struggled to apply. The court itself has little to no checks on its power to interpret the Constitution and we must correct that. We can open the bird cage. I hope to see you next week.

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Photo by Enrique Chagoya on Unsplash

The Samurai Supreme Court

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May 3, 2026

By Stephen Stofka

This week, while waiting to cross a busy intersection, I noticed the networks that surround us. Traffic light sequences, driving regulations and customs help us navigate our world. Clouds gathered in the afternoon sky, a sign of the water cycle of evaporation, condensation and precipitation, a network of energy. My phone is a node in an information network. My bike is a network of mining and manufacturing. My clothes are a network of agriculture, manufacturing and transportation. Fish swim in water. Human beings swim in networks of words, legal rules and social customs.

As societies, we are the network. Networks operate by rules. In a republic or democracy, the voters determine those governing rules or elect representatives to craft those rules. The voting process itself abides by rules. In the United States, some rules are determined by the states, some by Congressional statute, others by the Constitution. Article 1 of the Constitution gave the states the primary responsibility for administering federal elections but allowed Congress to make laws as well (Source).The Constitution required each state to redraw its congressional districts to adjust for population changes and balance geographic population shifts within the state.

In 1965, under the authority granted by the 14th and 15th Amendments, Congress passed the Voting Rights Act (VRA) to counter decades of discriminatory voting practices in some states (Source). Under Jim Crow laws, the southern states had marginalized black voters for eighty years by requiring black voters to pass tests before they could vote.

Section 2 of the VRA sets the principle: “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color” (Source). Section 4 of the VRA stipulated that any states or counties that had an election test in place on November 1, 1964, were discriminating against some voters (Source). Section 5 of the VRA subjected the election practices of those violators to a preclearance review by federal authorities. Those violators included seven southern states, Alaska and Arizona. Other states had some districts within their state subject to the same review. The whole state of North Carolina was not subject to review, but many of its counties were. Several counties in New York, Florida, S. Dakota and California were also subject to review (Source).

The law is a vast network of principles and values, history and consequences, all bound together by words. Conservatives have long sought to weaken the voting rights network by attacking key clauses in the VRA. Since his time working in the Justice Department under the Reagan Administration in the 1980s, Chief Justice Roberts has advocated a weakening of Section 2 of the Act. In Chapter 12 of her book Without Precedent, Lisa Graves describes this long history.

In Shelby County v Holder, decided in 2013, the Court ruled that Section 4 of the VRA was unconstitutional because the criteria that determined a violator did not respond to current conditions (Source). In his opinion, Chief Justice Roberts encouraged Congress to update the criteria but the John Lewis Voting Rights Advancement Act was filibustered in the Senate. A key segment of the Act was severed.

In Brnovich v. Democratic National Committee (2021) the Court limited the type of practices that could be considered discriminatory under Section 2 of the VRA (Source). Justice Alito wrote the majority opinion. Another key segment cut.

This week, in Louisiana v Callais, a 6-3 majority of the Court voted along ideological lines that any election practice in violation of Section 2 of the VRA must be intentionally racially discriminatory. Another segment of the network cut. The court effectively raised the bar for anyone claiming discrimination because proving intention is a difficult task. A redistricting map that discriminates against Democrats is not racial discrimination if a state legislature can claim that the map meant only to discriminate against Democrats.

Justice Alito, the author of the majority opinion, stated, “When Section 2 of the Act is properly interpreted, it imposes liability only when circumstances give rise to a strong inference that intentional discrimination occurred. Properly understood, Section 2 thus does not intrude on States’ prerogative to draw districts based on nonracial factors, including to achieve partisan advantage” (Source). Alito’s interpretation is based on a textual analysis, or textualism.

Textualism selects and emphasizes words and combinations of words that support a justice’s preferred interpretation. Alito calls his preferred interpretation the “proper” one, as though it were endorsed by a higher power. Textualists claim that their opinion is based on the text, so that makes their opinion objective. However, those opinions are based on some of the text, and what constitutes that some is a matter of the justice’s discretion. Textualism is the art of selecting words that justify a justice’s sentiments. Judicial interpretations based on textualism use a divide and conquer strategy. By dividing the text into separate compartments, they conquer the intentions of the whole of the text.

In the District of Columbia v Heller decision, former Justice Antonin Scalia negated more than a century of precedent and opined that the Second Amendment contained an individual right to bear arms (Source). The founders hotly debated the words in the Constitution and the Bill of Rights because those words were critical to ratification. In drafting the Second Amendment, they inserted the clause about the militia. If only they could have known that Scalia would choose to disregard their efforts, they wouldn’t have bothered. Scalia discarded that half of the text of the Second Amendment having to do with the militia. It was a “prefatory clause,” Scalia wrote, whose meaning was subjunctive to what Scalia thought was the main clause, which agreed with Scalia’s sentiments. Because a textualist approach is inherently arbitrary, the lower courts had difficulty applying Scalia’s reasoning in subsequent cases and began to use a balancing approach traditionally associated with First Amendment cases.

After Scalia died, the court tried to clarify Scalia’s textualist approach in New York State Rifle & Pistol Association v. Bruen (2022). Justice Clarence Thomas wrote the majority opinion urging the lower courts to use history and tradition to understand restraints on government power. Did the Founding generation or the Civil War generation have a similar law? Thomas called this the text, history and tradition approach. Where Scalia had used history to understand the meaning of a section of text, Thomas used history as a guiding boundary of government power. In his dissent, former Justice Stephen Breyer noted that a justice has a wealth of history to pick and choose from to support their opinion. Both the strict textualist and text, history and tradition forms of analysis are ungrounded and arbitrary. This approach looks to the past. It’s the judicial version of walking backward.

On page 111 of his book Reading the Constitution: Why I Chose Pragmatism, Not Textualism, retired Justice Stephen Breyer offered an alternative judicial analysis: text, values and consequences. The text of a statute or the Constitution represents the past. Justices should consider the consequences of their opinion, a respect for the future. What joins past and present are the enduring values embodied in a law.

Breyer often held public debates with Scalia and recalled the irresolvable issues between the two justices. Breyer read the totality of a statute or a constitutional amendment. He saw the law as a network of words, and that network had a purpose, a problem that it wanted to resolve. Scalia, on the other hand, picked out the words in a text that he thought were important. He pretended to be a historian, able to divine the original meaning of the words that 19th century legislators used. According to Breyer, page 25, Scalia thought that his approach would create a “science of statutory interpretation.” Far from it. Since the Heller opinion, there have been several cases in which the court tried to amend, extend and clarify the jurisprudence of Heller.

The specific finding in the Louisiana v Callais case was that Louisiana’s redistricting map was unconstitutional because it was based on racial gerrymandering (Source). In Rucho v. Common Cause (2019), Roberts had written that partisan gerrymandering was political and beyond the reach of federal courts. In Roberts’ view, partisan gerrymandering does not undermine the Court’s precedent of  “one man, one vote,” even if that gerrymandering weakens the electoral voice of constitutionally protected black Americans.

In Shelby County and in this case, the Court has not eviscerated the VRA, but wounded key segments of the Act, Sections 2, 4, and 5. More than 80% of black voters choose a Democrat candidate. As the dissent in Louisiana v Callais noted, it will be difficult for any plaintiff to show that a redistricting map discriminated against voters based on their race or color. The respondents can claim that political divisions, not race discrimination, motivated the redistricting schema. What did the network of words in the 15th Amendment and Voting Rights Act try to accomplish? To undo the silencing of a particular minority at the ballot box. The Court has effectively undone that undoing. I hope to see you next week.

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Photo by Krys Amon on Unsplash

Note: When Alito’s opinion refers to section 2(a) or 2(b), he is referring to the text of the U.S. law that encodes the Voting Rights Act as amended. See here (Source).

Several older men seated around a table playing cards

Rules and Relationships

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April 26, 2026

By Stephen Stofka

My younger brother and I used to argue a lot about the rules when we played card games. One rainy Saturday, our dad walked into the room, slapped down a book on the table where we were playing and said he was tired of listening to us argue. The book was a used copy of Hoyle’s Rules of Games (Source). Instead of arguing, we could just look up the rule. That helped a lot but we still argued over terms like discard. If I put a card down on the discard pile but my finger is still touching the card, does that mean my turn is over? Can I still change my mind, pick up the card and lay down an alternate card? There was nothing about that in the rule book. Without knowing it, we were noticing a difference between rules and regulations, one of the topics I want to explore this week.

In casual conversation, we use the two terms interchangeably and it surprised me that Congress treats the two terms as synonyms (Source). There are subtle differences between the two terms. Regulations are published implementations of law by some governmental agency. Rules are designed to augment or address gaps in regulations as they apply to specific situations (Source). If those rules affect the behavior or obligations of an outside party, then an agency like the IRS makes those rules public. Otherwise, the rules are internal to the agency. I guess the rules in Hoyle’s rule book were more like regulations. My brother and I still had to make up a rule to deal with the fine points of discarding a card.

Regulations and rules usually have some enforcement mechanism, and some punitive process. Typical language might include the maximum amount of a fine and the maximum jail sentence. In international relations (IR), there are rules published by international organizations like the United Nations but there is no clear enforcement mechanism other than violence. Two countries cannot agree on what is a threat and the degree of that threat. The leaders of countries have to deal with the internal politics of their own country and the very real threat that they will look weak or stupid. We know from recordings of President Johnson’s conversations that he thought Vietnam would be a boondoggle, but didn’t want to look like a weak and circumstantial president after the assassination of President Kennedy. To save face, he sent thousands of young men to die in the jungles of southeast Asia to support a corrupt and unpopular government (Source).

Will Donald Trump, the candidate who promised no more foreign wars, follow in those footsteps? President Johnson, like Trump, had a gargantuan but fragile ego. Unlike Johnson, President Trump has achieved a cult-like status among his followers and that makes him even more dangerous. He thought the February 28th attack on Iran would be an intimidating strike that ushered in regime change as it did in Venezuela. He was wrong. Unfortunately for the rest of the world, Trump is never wrong, at least not in his own mind. The rest of the world has to suffer as he tries to make reality agree with his distorted vision of himself.

In many court cases, President Trump has shown that he considers himself above regulations or rules. In the 2024 Trump v United States decision,the Supreme Court bestowed on Trump the immunity that he has claimed throughout his life, whether President or not (Source). He fights rules made by others, then gets angry when others fight his rules because he expects his power to be recognized and respected as absolute.

He has attacked Supreme Court justices that he appointed because they voted against his tariffs (Source). The conservatives on the Court have given him many victories on the so-called “shadow docket.” These were decisions for his administration that have not worked their way through the lower courts. There is little formal briefing and no oral argument. On several occasions, Trump has thanked Chief Justice Roberts for his partisan support. Thinking that the court had his back, Trump felt betrayed because of one legal rebuke. Relationships is the second topic I want to explore this week.

America was founded on the premise that we would be a nation of laws – that rules, not relationships, would be the dominant governing principle of the new country. The Constitution forbade the granting of titles which cemented political relationships in many European countries. Yes, it was an aspiration more than a reality. As a center of power, Washington runs on relationships and each President has a style of leadership that emphasizes rules or relationships. A President cannot act effectively if he forsakes either of those approaches.

Lincoln’s greatest strength was his ability to use both rules and relationships to manage a nation that was tearing itself apart. When he broke the rules, he fitted the action to the emergency. Lincoln first suspended habeus corpus at the start of the Civil War, when rebels were in control of the region surrounding Washington. The suspension was limited to that general region (Source). Unlike Lincoln, Trump used the pretext of emergency to impose tariffs. When he attacked Iran, he did so under the pretense that Iran was a week away from a nuclear weapon. Lincoln went to Congress to get authorization for habeus corpus as the Constitution calls for, but Democrats loyal to the rebel states blocked action on several bills for 18 months. Finally, in 1863, the Habeus Corpus Suspension Act passed. Trump has not gone to Congress to authorize his war against Iran.

To achieve his political ends, Lincoln tolerated ambitious politicians like William Seward, his Secretary of State. Seward was a good strategist who kept Britain and France from recognizing the Confederacy as a legitimate sovereign. Lincoln valued outcomes above all. Trump values relationships more than rules, but values loyalty in a relationship, loyalty above competence and experience. To negotiate with Iran, Trump appointed his son-in-law and his golfing buddy, neither of whom have any diplomatic experience. Unlike Lincoln, Trump does not have a clear vision of his political ends.

Preserving the Union was Lincoln’s primary goal. A secondary objective was a moral goal, the end of slavery, but Lincoln was a practical man, willing to strike a bargain if the southern states would abandon their dream of expansion into western territories. What are Trump’s goals? Historical importance, personal wealth and the political power to avoid any recrimination for his decisions and behavior while in office or out of office.

Each of uses some combination of rules and relationships to manage our lives. We develop an instinctual preference for one or the other. What is your preference? On that note, I hope to see you next week.

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Photo by Nick Fewings on Unsplash