The Clamor of Many Voices

September 28, 2025September 27, 2025Leave a comment

September 28, 2025

By Stephen Stofka

This week I have been reading Jill Lepore’s recently published book We the People. She writes about our legal and legislative institutions and processes, but it is very much a book about people. What became clear to me while reading the book is that we deny others agency and rights in order to protect our own agency and interests. We defend our values and point of view in defiance of accusations of prejudice.

To keep this within a reasonable reading length, I will break this down into two parts. This week, I’ll discuss the topics in Lepore’s book. Next week, I will use some examples in Lepore’s book to explore the similarities and contrasts in political ideology and judicial interpretation.

Lepore explores the history of trying to amend the Constitution. Only a few of the more than 12,000 amendments proposed to Congress in the past 225 years have been ratified. Throughout the country’s history there have been repeated attempts to amend Article 5 of the Constitution, the article that sets the rules for an amendment’s ratification. An amendment must win two-thirds of the vote in both houses of Congress before it is sent to the states for ratification. Three-quarters of the states must ratify it before the amendment is added to the Constitution.

Leverage of power by a small minority had weakened the colonies under the Articles of Confederation and led to the drafting of the Constitution. Because of the three-fifths rule that counted slaves as three-fifths of a person, slavery gave the southern states excessive representation in Congress and in the Electoral College. Naturally, the slave states wanted to expand slavery to new territories and states to preserve and enhance those advantages. As the country expanded after the 1803 Louisiana Purchase, the framers knew that the ratification requirements set out in Article 5 were too onerous. The southern states and the newer states commanded far more legislative power despite their smaller populations. They used that power to block any amendments that threatened their advantage.

Throughout the country’s history, the amendment process has produced a lurching effect. Long periods of Constitutional inaction are followed by several amendments when there is a shift in popular sentiment and one party gains an electoral advantage strong enough to complete the obstacle path of ratification.

In the first part of the 19^th century, sixty years passed without an amendment jumping the high hurdle set by Article 5. The deaths of 600,000 soldiers in the Civil War changed that political landscape, and the 13^th, 14^th, and 15^th amendments were passed. Another 45 years went by before the four amendments of the so-called progressive movement passed during the Wilson era. These included the 16th amendment permitting the federal government to tax income, the 17th amendment enacting the direct election of senators, the 18th amendment prohibiting the sale of alcohol, and the 19th amendment, giving women the right to vote.

Lepore notes that there are two ways to amend the constitution. The first is by actual amendment and ratification. The second is through judicial interpretation. Because ratification is such an arduous process, each party tries to amend the constitution through judicial interpretation. There are two types of constitutional interpretation, statutory and contractual. A statutory approach reads the text of the Constitution as though it were a statute. A contractual approach regards the Constitution as a contract between states. Understanding the intention of the parties involved is key to deciding case law. That understanding may require the use of historical documents and other secondary sources.

Who decides how to interpret the Constitution? Jefferson and Madison favored a contractual reading, which emphasizes the mutual consent of the parties to the contract. The sanctity of contract was so important to the framers that Section 10 of Article I prohibits the states from passing any “Law impairing the Obligation of Contracts” (Source). Both men were advocates of the principle of nullification, that a state had a right to nullify any federal law that the state thought was unconstitutional. Hamilton and Adams preferred a statutory approach, relying solely on the text (p. 149-150. Note: any references I made with just page numbers will be to Lepore’s book).

Lepore writes, “Early Americans talked about their Constitution the way the English talked about theirs, less as a bucket of words than as a bag of principles. As Protestants, they considered any claim to an exclusive authority to interpret the meaning of scripture to be an act of religious oppression” (p. 149). A decade after the ratification of the Constitution chief Justice, John Marshall disagreed.

In the 1805 landmark case of Marbury versus Madison, Marshall established the principal that it is the Supreme Court that determines the meaning of the Constitution. Jefferson was President, and Madison was Secretary of State at the time of the decision, and neither agreed with this reasoning but Marshall’s decision scored a win for the administration so they did not protest. Under this principle, a few people, usually men, decide what the Constitution means. The formal process of amendment ratification requires thousands of people to agree.

Because it is so difficult to amend the Constitution, Congress and advocacy groups have tried to amend the constitution through judicial interpretation. The Executive and the Senate align to appoint federal judges and justices on the Supreme Court who will interpret the law in accordance with a political ideology. As early as 1801, a lame duck Federalist Congress reshaped the judiciary and Federalist President John Adams rushed to fill new positions in his last days in office (Source).

A strong disagreement with a Court’s decision has sometimes been the impetus for the passage of an amendment. The 14th amendment overrode the Supreme Court’s 1857 Dred Scott decision that all Negroes, slave or free, could not be American citizens (Source). The 16th amendment was passed to override the Supreme Court’s 1895 decision that a federal income tax was illegal (Source).

Let’s say that there are two broad types of judicial interpretations. One of those is that the constitution is fixed or, in Supreme Court Justice Antonin Scalia’s words, “It’s dead. Dead, dead, dead!” (p. 527). This type of interpretation tries to minimize any reliance on what the text implies, to “read between the lines.” Scalia adopted a form of originalism which Jack Rakove called “public meaning originalism” (Source). This school of originalism uses historical sources to understand the public meaning of the text of Constitution when it was written. This is essentially a statutory approach that I mentioned earlier. In the 1875 case Minor v Happersett, the Court ruled that the 14^th Amendment did not guarantee women’s suffrage. In a strict textual interpretation of the amendment, the Court decided that suffrage was not explicitly included and could not be implied in the general phrase “privileges and immunities.”

In contrast, Chief Justice Roger Taney supported his opinion in the 1857 Dred Scott decision with a school of originalism that searches for the original intent of the framers (p. 212). That school relies less on the Constitutional text itself and more on traditional practice (Maltz, 2007). Taney wrote:

When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit. (Source)

The second interpretative approach is that of retired Supreme Court Justice Stephen Breyer, who regarded the Constitution as a living document of values, principles and purposes, a contract between people and the governments who represent them (Breyer, 2024, p. xvii). The text of the Constitution points to the issues in the debate and cannot be the final word. As Jack Rakove (1996) pointed out in his book Original Meanings, there were inconsistencies in the wording of the hand-copied texts that were sent to the various states for ratification. In Breyer’s view, a judge’s task is to balance individual rights and the objectives of government policy.

Scalia and Breyer often debated in public (Breyer, p. 33). Scalia thought Breyer’s approach was ungrounded and arbitrary. Breyer thought that Scalia’s approach was too mechanical. He argued that an originalist approach did not achieve the objectiveness it aimed for. Since Scalia’s death in 2016, the Court’s conservative justices have struggled to apply an originalist interpretation in a consistent manner. They pick and choose the history that supports their opinions and reject the research and opinions of historians who come to different conclusions.

In Chapter 13, Lepore details this conflict in Second Amendment cases. After Justice Thomas invented a “text, history and tradition” test in writing the majority opinion in the Bruen decision, lower courts struggled to apply this multi-faceted analysis that combined both a textual emphasis and a historical-traditionalist approach. The confusion prompted another case, U.S. v Rahini, in which most of the conservative justices wrote separate opinions either concurring or dissenting with the majority decision (Source).

Lepore’s book is both informative and entertaining. She introduces us to long dead historical figures whose legacy affects our everyday lives and institutions. She takes us to seminal moments in history to give the reader a sense of time and place. She provides insightful analysis into the impassioned conflict between interests and principles. Next week, I will compare and contrast some of the judicial opinions and justices in Lepore’s book. Until then, baseball fans will have to content themselves with the start of an exciting playoff season!

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Photo by Rob Curran on Unsplash

Breyer, S. G. (2024). Reading the Constitution: Why I chose pragmatism, not textualism. Simon & Schuster.

Maltz, E. M. (2007). Dred Scott and the politics of slavery. University Press of Kansas.

Rakove, J. N. (1996). Original meanings: Politics and ideas in the making of the Constitution. Knopf.

A Clearer Vision?

August 31, 2025August 29, 2025Leave a comment

August 31, 2025

By Stephen Stofka

Sunday morning and another breakfast with the boys. This week Abel and Cain discuss several political theories as they try to make sense of current events. The conversations are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Abel said, “I was reading this week that there are now more GenXers than Boomers in the House. The Boomers still control the Senate by a good margin, though (Source).”

Cain poured a bit of syrup on his French toast. “Next year, the first Boomers are going to turn 80. I mean, don’t they have anything else to do? Are they all going to die in their seats like Diane Feinstein?”

Abel shrugged. “I think they get into politics because they want to make a difference and they get addicted to that sense of importance. The office comes to define them. They can’t let go.”

Cain nodded. “Ok, I can understand that, but why do voters keep putting them back in office? Feinstein served about thirty years. Most states have term limits for governors (Source). We have term limits for the President, but none for the House and Senate? Come on, we need a better system.”

Abel replied, “Congress rewards seniority. The oldest members get key assignments. They chair legislative committees that control what legislation gets to the floor of either chamber. Let’s say someone challenges a sitting Senator who chairs the committee on Energy and Natural Resources. Right now, that’s Mike Lee from Utah, a Republican. Through him Utah voters can steer policy. If the challenger wins, he doesn’t get to chair the committee. Utah voters lose that power. Why would they want that?”

Cain stabbed at his French toast. “The problem with that system is that it allows special interests to ‘capture’ a Senator or House member. What do they call it? An Iron Triangle. Special interests, key committee members and some executive agency all work together to steer policy to the benefit of the special interests (Source). For example, ranchers band together as a group to lobby for below market grazing fees for their cattle.”

Abel smirked. “What are you going to do? Stop people from being people? Sure, Senators and House members are supposed to represent a broad constituency but there are a lot of interests within that constituency. Interest groups have to compete with each other for representation. That’s just politics.”

Cain replied, “There’s a guy called David Pinsof who developed what he calls Alliance Theory. Political beliefs are not based on principles or moral maxims but are simply arguments that a coalition uses to cement alliances. His theory helps explain a lot of contradictions.”

Abel asked, “Like what?”

Cain looked up at the ceiling as he searched his memory. “Conservatives say they respect authority but they can disregard authority if they think a regulation is unfair (Source). They champion the free market but actively lobby for subsidies.”

Abel laughed. “Subsidies are in the best interest of their stockholders. Regulations are not.”

Cain smiled. “Exactly. Another example Pinsof gave was a distrust of foreigners but conservatives should trust Putin when he said that he did not interfere in the 2016 election.”

Abel laughed, asking, “Any contradictions on the liberal side?”

Cain thought a second. “Oh, yeah, here’s one. CEOs should not make so much more than their workers but it’s OK for stars in Hollywood to make way more than most working actors. What else? Liberals criticize those who stereotype Mexican immigrants as criminals but hold onto the stereotype that a lot of voters in southern states are racist.”

Abel nodded. “Like I said, it’s what people do. So what’s Pinsof’s theory?”

Cain replied, “Don’t waste time trying to find inconsistencies in political arguments. It’s just spin. The opposition points out those inconsistencies as a way of signaling to their own coalition. No one expects that the other side will change their mind when someone points out a contradiction in their argument.”

Abel frowned. “Trump instinctively knows that its all about alliances. That’s why he will say anything, do anything. He asks, ‘does it strengthen my alliances and weaken those on the other side of the political aisle?’ It’s just so, so…”

Cain asked, “Nihilistic? Is that the word you looking for? Cynical, transactional?”

Abel replied, “Yeah, nihilistic, unanchored to any moral principles.”

Cain nodded. “It’s the morality of me, me, me. I think Pinsof borrows some elements from Skepticism as well as Pragmatism, a philosophy that understands ideas by looking at the effect of those ideas in the world (Source).”

Abel interrupted, “Reminds me of Milton Friedman’s paper saying that an economic model was valid if it made good predictions, not whether it was realistic or consistent (Source).”

Cain raised his eyebrows. “Talking about economics, Trump said that he had fired Lisa Cook, one of the Fed governors.”

Abel frowned. “Yeah, he’s attacking the independence of the central bank. When I read that, I thought, ‘How much has the stock market gone down on that news?’ I glanced at the SP500 index. Nothing. No reaction. What the heck?”

Cain shook his head. “Hard to figure. Traders are betting that there will be a standoff. Trump is pushing. Cook and her lawyer are pushing back.”

Abel asked, “Yeah, but I read that she is off the job for now. The Fed meets again in mid-September to decide interest rates. Has Powell said anything about Cook’s firing?”

Cain replied, “I don’t think so. Anyone that Trump wants to put in her place will need to be approved by the Senate.”

Abel asked, “Has the Supreme Court said anything?”

Cain said, “Cook’s lawyers would need to file something with a district court. If the judge rules against Trump, the lawyers with the Department of Justice would need to file an emergency application with the Supreme Court asking for immediate relief. It’s called the Shadow Docket (Source).”

Abel shook his head. “I think of Trump in control of interest rates. Tariffs are already driving up prices. He said he wants interest rates to be like three percent less. Such a huge drop in rates would increase inflation, a tax on everyone. This guy’s got more ways to tax ordinary people while giving the rich big tax breaks.”

Cain sighed. “Well, the key interest rate, it’s called the Federal Funds Effective Rate, is set by a committee called the FOMC. They have 12 members. There are seven Fed governors, the president of the New York Fed bank, and a rotating panel of four presidents from the regional Fed banks. Even if the Supreme Court said that Trump could fire one of the Fed governors, he can’t fire any of the presidents of the regional banks because they are employees of their banks, not the Federal government (Source).”

Abel asked, “So let’s say Trump gets five governors to do his bidding. You’re saying there are still seven governors who could vote against policies Trump wants.”

Cain nodded. “One of those governors is the Chair, Jerome Powell. Earlier this year, the Court indicated that Trump could not fire the Chair (Source).”

Abel frowned. “Trump pushes boundaries. That’s his brand.”

Cain shook his head. “Trump wants what he wants. He doesn’t recognize the validity of boundaries. That’s his brand.”

Abel sighed. “He is going to provoke a final crisis. I was re-reading Generations by William Strauss and Neil Howe. They wrote that book back in 1991 and predicted a major crisis during this decade.”

Cain squinted. “Didn’t we talk about this a few weeks ago?”

Abel nodded. “Oh yeah. I think I was talking about their second book, The Fourth Turning. This first book goes into the history of the generational cycle. They trace the pattern in America starting in the 17^th century.”

Cain interrupted, “I’m skeptical about these grand cyclic theories. There are some stock traders who claim that the stock market works on Fibonacci cycles (Source).”

Abel argued, “Like Friedman said, does the theory make good predictions? If not, it’s not a good theory. Strauss and Howe predicted an inciting event sometime around 2005 that starts this two decade period called the fourth turning. It shakes the foundations of society before a final breaking point.”

Cain asked, “So, 9-11 or the financial crisis might have been those events? I don’t know. Seems like that would be fitting history to the theory.”

Abel replied, “Let me finish. Strauss and Howe thought the breaking point would come this decade. The last three turning points have been the Great Depression, the Civil War and the founding of the United States.”

Cain replied, “Ok, maybe it’s not just fitting data to a theory. A few weeks ago, we talked about legal turning points. I think I mentioned Richard Epstein’s book The Classical Liberal Constitution. He wrote about those turning points in Constitutional interpretation, or jurisprudence, I guess you could call it. Under the Fourteenth Amendment the Bill of Rights protections now applied to the states as well as the federal government.”

Abel interrupted, “Fat good it did down in the south. Jim Crow laws persecuted blacks.”

Cain sighed. “Yeah, these Constitutional protections don’t enforce themselves.”

Abel argued, “It was a failure of the Supreme Court, I think.”

Cain nodded. “Anyway, then there as a turning point Supreme Court decision in 1937 that set a precedent for big government. Helvering v. Davis upheld the constitutionality of the Social Security Act under the General Welfare clause of the Constitution (Source). A major expansion of the power and scope of the federal government.”

Abel said, “FDR was threatening to ‘pack’ the court. Increase the number of justices and put his own people in there.”

Cain agreed. “Yeah, FDR was a strongman, just like Trump. Unlike Trump, FDR had a clear electoral mandate from the 1936 election. He whupped the Republican candidate, taking all but a few votes in the electoral college (Source). He had a supermajority in the Senate so he would have been able to get his nominees for the court confirmed (Source).”

Abel asked, “Wasn’t the court all FDR nominees by the time he died?”

Cain nodded. “Yeah. No one should have that much power.”

Abel interrupted, “Trump is trying to expand his personal power under some Unitary Executive theory. The scary part is that some of the conservatives on the court support that theory (Source).”

Cain shook his head. “Hey, I’m all about checks and balances. This administration is all about consolidating power and I’m against that. In 1945, F.A. Hayek wrote a landmark essay The Use of Knowledge in Society that explained why central planning would fail. Those in control cannot get or process enough information to make successful decisions (Source).”

Abel smirked. “DOGE is a great example of that. Even with sophisticated computers and data tools, they made a mess of things.”

Cain sighed. “The question is how much damage will Trump do. So, why do these turning points come every eighty years or so? Something to do with the human life span?”

Abel replied, “Strauss and Howe separate out four generations within that life span. Each has different characteristics as they move through their life cycle from youth, to rising adult, to middle age and then the final stage as elders. It’s the combination, the sequence of generations that causes the turning point, I think is what they say. There is an idealist generation that precipitates the crisis. This generation has a historical impact late in life.”

Cain shook his head. “What are some examples? It’s hard to follow.”

Abel nodded. “Lincoln, FDR, and Trump were all part of an idealist generation. Strauss and Howe identify several tendencies within each generation. Idealists think their principles are transcendent and they have unyielding opinions (page 11).”

Cain looked skeptical. “I don’t think of Trump as an idealist.”

Abel argued, “Well, he’s been saying the same crazy things for decades about criminals and immigrants.”

Cain interrupted, “Unyielding opinions? The guy changes his mind from day to day. He exaggerates most of the time and doesn’t care. And yes, don’t say it. I voted for him. It wasn’t my idea to have two old-timers run against each other in the 2020 election or the 2024 election. That’s why I want to change the system. The bosses in both parties are hurting the American people.”

Abel nodded. “Yeah, I agree. Most voters get herded into one of two corrals when they would prefer more alternatives. The whole election process is designed to suit the party bosses and the fundraising effort. It’s not about empowering voters.”

Cain laid his napkin on the table and stood up. “We said earlier that no law enforces itself. Principles of governance don’t just happen. The question is how does a system change without a civil war or an absolute economic catastrophe like the 1930s? It’s not a question I like to think too much about.”

Abel looked up. “See you next week.”

Cain turned. “Till then.”

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Photo by Josh Calabrese on Unsplash

Conflicting Principles

May 11, 2025May 10, 2025Leave a comment

May 11, 2025

By Stephen Stofka

This is part of a series on persistent problems. The conversations are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Abel looked across the restaurant at a family seated around several tables. “I wonder why the kid is dressed in white.”

Cain turned to look. “Oh, yeah. First Communion, maybe? I think it’s that time of year.”

Abel spread some honey on his toast. “Last week, we were talking about charter schools. A few days later, I was listening to a Supreme Court case about a charter school in Oklahoma” (Source).

Cain asked, “What do you mean listen to?”

Abel replied, “Lawyers for both sides argue their case in front of the Supreme Court and the justices ask them questions. ‘Oral arguments,’ it’s called (Source).”

Cain nodded. “I know about oral arguments. I didn’t know they were broadcast.”

Abel finished chewing. “They started that in the pandemic, I think. If you subscribe to the Oyez podcast, you can listen to it a day or two after the argument. Their web site has a lot on past court cases (Source). There’s also a link on the Supreme Court’s web site where we can listen to them live (Source).”

Cain asked, “So what was the case about?”

Abel said, “Oklahoma has a state charter board that approves or denies applications to become charter schools. A few years ago, the state board approved an application for a Catholic charter school named St. Isidore, allowing them to freely follow their religious beliefs.”

Cain interrupted, “Wait. I thought charter schools were publicly funded by taxpayer dollars. What about separation of church and state?’

Abel nodded. “That’s what the state attorney general wondered.”

Cain asked, “A Democrat? I thought Oklahoma was fairly red.”

Abel shook his head. “No, a Republican. The AG’s office brought the case to the state’s Supreme Court, arguing that the charter should be nullified. The court agreed. Both the school and the state’s chartering board brought the case before the federal Supreme Court, where the two cases got joined together.”

Cain raised his eyebrows in mock drama. “So one state agency, the AG, is pitted against another state agency, the charter board.”

Abel laughed. “And there’s some political machinations on the court.”

Cain twirled an imaginary moustache. “Politics on the Supreme Court? Surely, you jest, my man!”

Abel smiled. “Justice Barrett, one of the conservative justices, recused herself from the case so there are just eight justices, a five to three split between conservatives and liberals. If the three liberal justices can bring Chief Justice Roberts to their side, the decision would result in a 4-4 tie, which would let the Oklahoma Supreme Court decision stand.”

Cain asked, “So what are the issues both sides are fighting over?”

Abel put his coffee cup down. “Before I get to that, let me get back to the politics. So the justices direct their questions to the lawyers for either side, but the questions are designed to bring up points that the conservatives and liberals think are important to their argument.”

Cain replied, “Indirectly steering the debate as the justices hope to sway Roberts.”

Abel smiled. “Yeah. So the liberals focus on the establishment clause in the First Amendment that prevents the government from favoring one religion over another.”

Cain looked puzzled. “I thought charter schools were private.”

Abel replied, “They are, but they are publicly funded, and they have to follow the same rules as other public schools. They can’t choose which students they admit.”

Cain interrupted, “We talked about that last week. The schools are not supposed to do that. Some states are rather lax in how they enforce that rule.”

Abel nodded. “Good reminder. The school has to get approval for their curriculum, and the state closely monitors the school to make sure that it meets the state’s requirements. The state may even have a representative on the charter school’s board. Plus, the state can close the school down. Even though the school is private, the state has a lot of control.”

Cain said, “Reminds me of the debate over independent contractor status. If XYZ company hires someone to do a job, and XYZ has substantial direction and control of how that person performs the work, then that person is an employee, not an independent contractor. XYZ company has to pay employer taxes for whatever money they pay that person.”

Abel nodded. “That’s a good point. It’s the familiar ‘if it quacks like a duck’ argument. So the plaintiffs for the state chartering board and St. Isidore, the charter school, stressed the private ownership of the school, religious freedom and free expression. The respondents, the AG’s office, focused on the control that the state has over St. Isidore and that control makes them an extension of state legitimacy and power.”

Cain looked surprised. “I agree with the AG’s office.”

Abel replied, “I think it’s a case of which precedent do you think should carry the most weight. The conservative justices focused on the equal protection clause of the 14^th Amendment (Source). A charter school must meet minimum curriculum requirements. One of the lawyers said the state even specifies that dangling participles must be taught in English class. But the school can have a focus like science, the arts, or on Chinese language skills, offering some language immersion classes.

Cain interrupted, “That shows how much control the state has. So what was the counter argument from the conservative justices?

Abel replied, “I think it was Kavanaugh who expressed concern about equal treatment. Each charter school can have a different focus, but if a school has a religious focus, that’s unconstitutional?”

Cain tilted his head slightly. “Ok, good point. An American history teacher at St. Isidore could stress Christian principles as fundamental ideas to the founders who wrote the Constitution. If that teacher cited some Bible verses to illustrate those principles, is that legal? The teacher is paid with public taxpayer dollars. Is the government promoting one religion over another?”

Abel argued, “Michael Klarman wrote a book on the founding called Framer’s Coup. At the beginning of the introduction, he cites Madison and Benjamin Rush referring to an ‘Almighty hand’ or the ‘hand of God’ (Source).”

Cain looked skeptical. “Yeah, but they weren’t referring to a specific religion, or even a broad category like Christianity.”

Abel said, “Should a school teacher in a publicly funded institution cite any religion? If the Supreme Court decides that the state can charter religious schools, where does it stop? What if a teacher cited the Koran as embodying the founding principles of the American Constitution?”

Cain smirked. “Not a lot of Muslims in Oklahoma. I could see where Catholics and Protestants would get into a war over this issue. Catholic teaching would stress the Federalist view of government at the founding. More centralized and authoritarian, the one championed by Hamilton. Protestant teaching would stress the anti-Federalist view associated with Jefferson. Decentralized power, more autonomy at the local level.”

Abel argued, “But both of those views could be taught without referencing back to the Bible or the Koran. Religious traditions provoke too much dissent and violence. The founders wanted to stress constitutional principles that bound the thirteen colonies together, not tore them apart. The European powers were already trying to do that. In Federalist #10, Madison noted the conflict of political factions with differing regional interests (Source). He hoped that the Constitution would balance the tension between national and local interests.”

Cain nodded. “Getting back to the issues involved, you’re saying it’s the First against the Fourteenth? The conservative justices and the Catholic charter school use the 14^th Amendment to justify their opinion. Liberal justices and the state’s AG office base their arguments on the 1^st Amendment.”

Abel smiled. “It’s more complicated. The conservative justices also focused on the free exercise clause in the First Amendment. The Supreme Court has long struggled with the balance between the establishment clause and the free exercise clause (Source). An individual’s free exercise cannot conflict with state interests like public safety and health. As long as a school meets the curriculum requirements, it has satisfied other state interests. Is it not entitled to express its views? If other charter schools can focus on climate change and environmental science, why can’t a school express its religious views?”

Cain sighed. “So the First and the Fourteenth Amendments are bound together in a way.”

Abel nodded. “Remember that in 2015’s Obergefell case, a conservative court decided that same sex couples had a right to marry (Source). Equal protection. That decision angered some conservative religious groups. The conservative justices seem to favor that combination of equal protection and free exercise over a state’s interest in remaining religiously neutral. I think Alito mentioned the Masterpiece Cake Shop case.”

Cain replied, “Yeah, the owner of the shop didn’t want to make a custom cake for a gay couple’s wedding. Against his religious beliefs, he said. The state said he had to serve the public and couldn’t discriminate against a customer because of his religious beliefs. The Colorado Supreme Court agreed. The federal Supreme Court overruled and said that a custom made cake was a form of expression protected under the First Amendment (Source).”

Abel argued, “Yeah, but the state did not fund the cake shop with taxpayer dollars. Alito sees only the context that will support his judicial instincts. He wrote the Dobbs decision overturning Roe, reasoning that the Constitution did not give a woman a right to an abortion because it was not deeply rooted in American tradition (Source). His ‘reasoning’ conveniently left out the fact that the Constitution as written in the 18^th and 19^th centuries gave women few rights. They were subservient to men. That’s the bubble of reason that Alito lives in.”

Cain sighed. “Well, remember that he’s writing the majority opinion, so its not just his reasoning.”

Abel shook his head. “Basing decisions on ‘history and tradition’ is flawed. It invites the justices to pick and choose only the history and tradition that supports their biases.”

Cain laughed. “Boy, we could spend a few days on that topic. I do think that the conservative justices are opening a can of worms on this one. If they are going to allow states to charter publicly funded religious schools, some state charter board is going to discriminate against a particular religion. The board will cover their tracks for sure, claiming that the applicant did not meet the state’s curriculum requirements. The applicant will file a lawsuit, claiming religious discrimination. This is an activist court issuing decisions based on unclear reasoning.”

Abel interrupted, “Unclear reasoning. You are being generous.”

Cain shrugged. “The lower courts don’t know how to apply that reasoning. Inevitably, more cases will come to the court, and it will clarify its reasoning.”

Abel smirked. “This court will be dominated by this kind of thinking for decades to come. Anyway, let’s move on from court stuff. Last week, we were talking about problems in education. One of the problems we didn’t discuss is the expectations of parents. Mom and dad might expect school instruction for their child to have the same elements as when they went to school. Like multiplication tables in grammar school or some in high school who had to memorize a poem by Shakespeare.”

Cain nodded. “Well, I thought it was reassuring that they are still teaching dangling participles. There was much more focus on rote learning when we were going to school.”

Abel continued, “That rote learning helped kids learn some basic job skills, like how to make change. Today, some might argue that kids rely on the cash register or the computer to do the math for them so why should kids learn basic math skills? I’d argue that, without those basic skills like percentages and such, kids will become easy prey when they grow up. People can dazzle them with fancy figures that they can’t follow and sell them financial products that hurt rather than help them.”

Cain laughed. “They will ask ChatGPT for financial advice, I suppose. They’ll become like the society in the movie ‘Wall-E’ where they are totally reliant on machines for everything. But what kid thinks about investments? That’s far in the future.”

Abel argued, “Maybe at a very young age, you’re right. A month from now is a long time in a young kid’s mind. But there have been good experiments with high schoolers managing stock portfolios.”

Cain replied, “Goes to show that incentives matter. In the search for YouTube subscribers, a kid will rip a favorite album and upload it to YouTube, complete with notes and navigation to each track in the album. The kid will see little money for all that effort because the recording artist will monetize any ad revenue, but just the prospect of getting more subscribers gets the kid to spend that time and effort. We need to apply those lessons to school learning.”

Abel looked doubtful. “Look, there’s stages in brain development. At the risk of herding kids to learn the same thing at the same time, we can’t be teaching calculus to sixth graders.”

Cain argued, “We had our daughter in Montessori school for a few years. She was in a classroom with kids of different ages. She was about seven and heard about fractions, told the teacher she wanted to learn about them and the teacher had one of the older girls show her fractions. We need more innovative teaching methods, not rigid curriculum.”

Abel shook his head. “Some kids really struggle with fractions and decimals and need to be taught by someone with more experience. You know, someone who knows different approaches to help them understand. The fault of ‘new math’ when it was taught in the 1970s and 80s was trying to teach kids about rules and how they affect relationships between numbers. It was too abstract for a lot of kids.”

Cain was equivocal. “Well, there were also kids who were good at memorizing. They had memorized that three-eighths was less than a half without really understanding the concept. I remember one kid in fourth grade, I think. To add two fractions, he cross multiplied them even when they had the same base.”

Abel cocked his head. “What do you mean?”

Cain replied, “Like two-fourths plus one-fourth. He didn’t need to find a common denominator and cross multiply because the two fractions already have the same base, which is four. The kid had found that the cross-multiplication procedure got the right answer, so he used that all the time.”

Abel looked puzzled. “What if the problem involved adding a whole number and a fraction, like four plus a half.”

Cain smiled. “He would convert the whole number to a fraction, like make four into a fraction of four over 1, then go through his procedure. He was so resistant when I tried to show him any method that was quicker. ‘I might get the wrong answer,’ he told me.”

Abel lifted an eyebrow. “You know, I’ll bet a lot of people carry that approach into their adulthood. They resist change, new methods of doing things, or new arguments. If we looked closely, we’d probably see that same rigid approach at parent-teacher conferences and city council meetings.”

Cain laughed. “Or on the Supreme Court. Using the same kind of reasoning in two cases that have critical differences. Some justices ignore the different principles involved, brushing the differences aside as unimportant.”

Abel smiled. “Different species of animal tend to follow a well-worn path in the forest, even if there has been some change to the landscape and there is an easier path down to the river, for instance. Do they take the easier path? No. They use the same rule.”

Cain asked, “How do we teach kids that different rules apply in different circumstances? That’s what English and math are all about. That’s the importance of learning a foreign language. We become aware that other languages have different rules than our native language. It makes us more aware of the rules that structure our native language.”

Abel asked, “So what about a public school teaching comparative religions? The kids would learn that each religion has different beliefs, customs and rules for interpreting our relationship with the infinite, our own mortality, and the society around us. Could a public school teach both Islam and Catholicism?”

Cain looked puzzled. “What about the Jewish faith? Or Evangelical beliefs? A good background in comparative religions is a lot to ask of a 4th grade teacher. I still think that the state needs to steer clear of funding religious instruction.”

Abel sighed. “I think this decision will be important. Last week, you mentioned that a third of Rochester’s public schools are charter. One of the lawyers arguing at the Supreme Court mentioned that all of New Orleans public schools are charter (Source). The state, as a whole, has only 11% charter schools, but it’s a growing constituency (Source).”

Cain laid his napkin on the table next to his plate. “Sometimes I think that these problems persist because we hold onto conflicting principles. We want schools to be like a Swiss army knife, a multi-tool that addresses several problems and we can’t agree on priorities. We want people to be housed but we want to preserve the character of our neighborhoods and that makes it difficult to build affordable housing. We want the state to stay out of religion, but we want to preserve free speech and religious freedom.”

Abel nodded. “Maybe that’s the most persistent problem of all. It’s like we’re sitting on a wagon being pulled by two horses and we have no reins to guide the horses. Hey, I see you’re ready to go. Maybe we could talk about that next week.”

Cain laughed as he stood. “I like that horse analogy. My treat this week. See you next week.”

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Image by ChatGPT in response to the prompt: “draw an image of two ghosts styled like Casper the Ghost getting ready to have a boxing match.”

How We Choose

October 27, 2024October 29, 2024Leave a comment

October 27, 2024

By Stephen Stofka

This week’s letter is about our vote, our political perceptions and institutions. This past week, an NPR reporter asked an undecided voter in Pennsylvania which candidate they were leaning to. The voter responded that he did not like the way the Biden administration had handled inflation. Since Harris was part of that administration, he was leaning toward Trump. The NPR reporter did not present the voter with the information that it was Fed Chairman Jerome Powell, appointed by Trump, who had been chiefly responsible for the government’s response to inflation. Would this new information have an effect on the voter’s thinking? Would the voter hold Trump partly responsible for the surge of inflation during the pandemic recovery? That dialog was never developed. I have noticed that reporters from the British Broadcasting Corporation (BBC) develop a more proactive dialog with those they interview. The resulting interviews are more lively and informative than those conducted by reporters in U.S. news media.

Candidates in presidential elections frame issues to elevate them from the temporary to the eternal. In The Commanding Heights, Daniel Yergin and Joseph Stanislaw (1998) tell the story of Samuel Insull, a tycoon in the electricity industry during the 1920s, who wanted to build a sprawling infrastructure that would supply electricity to every home and business in America. His empire collapsed during the Depression and investors lost 99% of their capital. Franklin Roosevelt (FDR) ran on a campaign that included a promise “’to get’ the Insulls” (p. 47). FDR had elevated a case of speculation and overreach into an eternal battle where the rich preyed on the poor. His administration pursued the tycoon as he sought refuge in various European countries. Finally, Greece extradited the man back to the U.S. where he stood trial for fraud. Prosecutors could not convince a jury that Insull was guilty of anything more than ambition. His investors were mostly professionals, people who hoped to capitalize on that ambition. The jury speedily exonerated Insull.

One voter in Pennsylvania explained to the same NPR reporter that he needed to sit down and study the issues. Political campaigns must craft an issue complicated by dense details and conflicting principles into a clear and simple tale that appeals to the emotions and morals of voters. There are four aspects of most issues: the practical, the moral, the intellectual and the emotional. Repeated studies of patients whose right and left brains have been separated by accident or surgery indicate that each of these aspects is processed by different parts of our brain. To reduce our “brain load” we use shortcuts in our reasoning process to guide us through a jungle of complexity. I will note that Nelson et al. (2013) found little biological evidence for the idea that the processing of various tasks are localized to either half of the brain.

Steckler et al. (2017) found that many of us determine an action’s morality based on intention rather than outcome. Their research indicated that we process those types of moral judgments with our right brain. Many researchers have concluded that emotional responses are mainly generated in the right brain (Gainotti, 2019). Sorting through the practical details and isolating the principles involved in an issue involve the left side of the brain. We don’t carry a handy little tool in our pocket to consider these various aspects to get to the heart of the matter. After a long day at work, it is tiring just to think about the more complex issues. To keep it simple, political campaigns play to just one aspect, but not to the practical details where the momentum of a campaign narrative can get lost.

Political campaigns are sales campaigns. Central to sales practice is the KISS principle – Keep it simple, Stupid. The lessons of history are too nuanced and contradictory for a sales campaign. Candidates try to hypnotize voters with one or two shiny issues. They target the right brain which has a prominent role in emotional and moral judgments. They make up details to support their emotional or moral argument. Anything to stoke outrage, anger and moral condemnation. Simple and short lies with little or no evidence work the best. Scapegoat a minority group. Immigrants eating pets. Jews sacrificing Christian children. Catholic voters wanting to make Catholicism the national religion. In southern states, many black men were lynched after a hasty accusation of raping a white woman.

Voters are beset with distortions from opposing campaigns. Most of the evidence for or against a candidate overwhelms many voters so they concentrate on a few key details. They rely on their own party affiliation, a few key media sources, a family member or a friend. Campaign rules do not prohibit lying and candidates have little to gain from nuance or truth. A Congressional Research Service analysis found that 36% of current House members and 51% of Senate members are lawyers. They have learned how to shape facts and issues into a convincing argument.

America was founded by the wealthy to be a plutocratic republic with the trappings of a democracy. To preserve a plutocratic Constitution, the founders made it difficult to amend the rules. The Electoral College was designed to check the popular will. The rules of the Senate and House concentrate power in a small elite of party leaders and committee chairs. In a plutocracy, the wealthy find it easier to influence a small number of legislators holding the reins of public policy. Election campaigns in America are longer and more expensive than in any other democracy. An Open Secrets analysis found that total spending in the 2020 election surpassed $14 billion, doubling the money spent in the 2016 election. Much of that money comes from wealthy patrons who wish to align public policy to their priorities and principles. Candidates are the messengers of the rich, conveying a message from the upper echelon of our society to the rest of us. That hypnotic message is your vote matters.

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Photo by Victoriano Izquierdo on Unsplash

Keywords: Electoral College, Constitution, vote

Gainotti, G. (2019). The role of the right hemisphere in emotional and behavioral disorders of patients with frontotemporal lobar degeneration: An updated review. Frontiers in Aging Neuroscience, 11. https://doi.org/10.3389/fnagi.2019.00055

Nielsen, J. A., Zielinski, B. A., Ferguson, M. A., Lainhart, J. E., & Anderson, J. S. (2013). An evaluation of the left-brain vs. right-brain hypothesis with resting state functional connectivity magnetic resonance imaging. PLoS ONE, 8(8). https://doi.org/10.1371/journal.pone.0071275

Steckler, C. M., Hamlin, J. K., Miller, M. B., King, D., & Kingstone, A. (2017). Moral judgement by the disconnected left and right cerebral hemispheres: A Split-Brain Investigation. Royal Society Open Science, 4(7), 170172. https://doi.org/10.1098/rsos.170172. Available

Yergin, D., & Stanislaw, J. (1998). The commanding heights: The battle between government and the marketplace that is remaking the modern world. Simon & Schuster.

Expectations and Elections

June 23, 2024June 22, 2024Leave a comment

June 23, 2024

by Stephen Stofka

This week’s letter begins a series on the shaping of Americans’ expectations by the election system. The structure of U.S. political institutions and election rules favor a two-party system that channels voter choice and identification. In this system there are unlikely alliances as voters are corralled into one of two political pens. Voters may feel like the patrons of the Olympia Restaurant, whose meal preferences were bluntly diverted by John Belushi to the only meal choice the restaurant served – cheeseburgers, chips and Pepsi (1978 SNL YouTube clip). Despite an election cycle that is far longer than those in Parliamentary democracies, voters have less choice, and it is no surprise that average turnout in a U.S. Presidential election is only 60%. In a 2001 election in the U.K. that same percentage of turnout was a hundred year low for the Brits (Clark 2021). In America, party platforms and policy aims are as immaterial as the menu items at the Olympia Restaurant.

The U.S. was set up as a republic of thirteen colonies for their mutual benefit as stated in the Preamble to the Constitution. It is those colonies, now numbering fifty states, who elect the President through the Electoral College. The College was an arcane compromise between those who favored a popular vote and those who wanted the state legislatures to elect the President. The Federalists at the Constitutional Convention hoped that the Electoral College would act as buffer between public passion and the power of the Presidency. At the Constitutional Convention, the Antifederalists objected to the Electoral College but could not offer a more acceptable alternative (Klarman, 2016, p. 367). They argued that a majority of electors was unlikely in a nation of such diverse interests and most Presidential elections would be decided in the House, effectively sidelining the public voice. Their fears were confirmed in the 1800 and 1824 elections.

In each state, the two parties choose a slate of electors for their Presidential candidate. A vote for a candidate is a vote for that candidate’s electors, not the President. In most states, the candidate that gets the most votes in that state gets awarded all of that state’s electors, a winner-take-all system. A Presidential election is a composite of fifty elections that rewards each party for incremental gains as a path to national power. Each party tries to control a state legislature, which constructs the districts within the state and writes some election rules that exclude certain people from voting. Many voting districts are gerrymandered to ensure victory for the party who draws the electoral map (O’Neil et al., 2018, 114). The party in power partitions the voters to maintain the party’s power in the state. Thus, the two parties curb any but the most incremental changes in political power.

Control of a state legislature gives a party greater power in choosing a President. The Constitution gives each state a lot of discretion in the conduct of their elections for national office. Article 1, Section 4 states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.

However, the Constitution makes a special provision for a Presidential election. Article II, Section 1 states:

The Congress may determine the Time of chusing[sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The word “may” indicates an optional power for Congress, not the specific duty conveyed by the word “shall.” May appears only 33 times in the Constitution while shall appears 192 times. This careful wording acknowledged a certain degree of state autonomy even in Presidential elections.

The contentious 2000 Presidential election first introduced the terminology red states and blue states to refer to those states which were reliably Republican or Democrat, respectively. The phrase has become so popular and often used that it seems decades if not centuries old. There are twenty reliably red states, twenty reliably blue states and ten states that lean toward one of the parties or are toss ups. The concerns, interests and perspective of a Democrat voter in a red state are effectively silenced. The same for a Republican voter in a blue state. Voters are like the crowd at a football game. They do not control each team’s strategies or the rules of the game. The framers constructed a system that separates political power and fosters incremental policymaking. There are no “Holy Mary” passes, only a grinding ground game to further the progress of one’s policy goals. Only special interest groups have the ear of the leaders on each political team and are able to achieve their objectives (O’Neil et al., 2018, 125). Marginalized by the two parties, many voters become disinterested, and the control of power becomes increasingly consolidated in a small number of political party operatives and special interests.

That undemocratic result is by design. In a long election cycle, a smaller pool of dependable voters makes the marketing of candidates and ideas less expensive. There simply is not enough money to fund many closely contested state elections so the parties try to construct voting districts that minimize those types of elections. In a two-party system that limits choice, each party appeals to alliances of socioeconomic status, alliances of regional interests, alliances by tradition and those by race, or at least a shared history of grievance. The different expectations and anticipations of the voters within those alliances can make those connections fragile. More on that next week.

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Photo by Erik Mclean on Unsplash

Keywords: Constitution, Electoral College, election, red states, blue states

Clark, D. 2021. “Voter Turnout in the UK 1918-2019.” Statista. https://www.statista.com/statistics/1050929/voter-turnout-in-the-uk/ (July 9, 2021).

Klarman, Michael J. 2018. The Framers’ Coup: The Making of the United States Constitution. New York, NY: Oxford University Press.

O’Neil, Patrick H., Karl J. Fields, and Donald Share. 2018. Cases in Comparative Politics. 6th ed. New York: W.W. Norton & Company.

AI, Ideas and Perspectives

December 17, 2023December 16, 2023Leave a comment

December 17, 2023

by Stephen Stofka

This week’s blog is about perspective as a launching point for understanding current and historical events and our own transformation in this digital age. There is plenty of controversy over the wars in Israel/Palestine and Ukraine, immigration and abortion policy. In 1991 Rodney King was beaten with batons by several L. A. police. In an age before cell phone cameras, a bystander on his apartment balcony recorded the incident with a video camera. When the video was shown by a local TV station, the city brought charges against four officers. When a jury acquitted the officers a year after the incident, L.A. erupted in riots that lasted almost a week. Rodney King famously asked, “Can we get along?,” which became a Why can’t we get along? meme. We don’t get along because we have individual perspectives.

Perspective is a point of view that encompasses beliefs, identity, values and assumptions. Although each person has a unique perspective formed by individual experience, we form groups with those who share a similar perspective. We convince ourselves that our values and assumptions are the correct ones. From the jury box of our values and assumptions we judge the actions of others.

The elements of perspective are the foundation of an analytical framework, a toolset of principles and theories that help us build a community of shared perspectives. A framework prioritizes some values and assumptions to achieve the goals of the analysis. An academic researcher and an advocacy group have different goals and methodologies. The advocacy group uses a framework like that of a lawyer, sifting through facts and opinions to find those that support the group’s policy goals. Substance above process. A researcher will adopt a framework with a sound and accepted methodology that will most likely earn favorable peer review and publication. That researcher may filter out facts that don’t fit the methodology. Process above substance.

Our conclusions are shaped by our attention. Our attention is directed by our intention. We discredit facts that threaten our intention and undermine our self-interest, values or identity. On the other hand, we do not challenge those facts that confirm our perspective. Why should we? We interpret facts to support the assumptions so foundational to consensus within a group. Social media has increased the scope of our conflict and consensus. We can agree or disagree with strangers around the world about the ethical issues of current events. We can hone our skills of ridicule and outrage. We can join a group to exploit trading platforms in the hopes of financial gain, buy almost anything online, and find romantic partners and people with similar hobbies and interests.

The chain of communication breakthroughs began with Gutenberg’s printing press 500 years ago. Broadsheets and newspapers followed in the following centuries but their ideas and sentiments were constrained by geography. The circulation of the Federalist papers supporting the adoption of the U.S. Constitution was limited. The ideas penned by Madison and Hamilton found a wider audience when a publisher bound those op-eds into a single volume. In the 20^th century, radio and TV spread ideas, new and entertainment to a wider audience. The development of the internet in the 1990s led to a revolution in time – information and entertainment became both a good and a service.

Last week I wrote about the four types of goods/services. Many goods are asynchronous. The consumption of the good occurs at a different time than the production of the good. Many services are synchronous. A haircut is consumed and produced at the same time. Social and news media captures both aspects. The content may be asynchronous, produced and stored on a server in the cloud. It may be synchronous – either a broadcast of an event or a Twitter exchange in real time between two people separated by multiple time zones. Social and news media has changed our daily experience. We may cling to the belief that our perspective has remain unchanged, our values and principles intact, but have they? Experience shapes perspective and an evolving set of experiences must surely have some effect on our values, assumptions and the way we interpret events.

Will the internet change history? The printing press changed individual perspectives. Within a few decades it made possible the wide dissemination of Luther’s 95 theses in 1517 that sparked the Protestant Reformation. Luther’s principles challenged the long dominant authority of the Catholic Church in the interpretation of the Christian faith. In 1543 Copernicus’ book on the revolution of the planets and other celestial bodies ignited the Scientific Revolution. His ideas challenged the centuries old thinking of Ptolemy, the second century Greek astronomer and mathematician.

In the political sphere, the works of John Locke led to an uprising in England that challenged the extent of monarchical authority. Those ideas would become the foundation of America’s Constitution. Not only was it the first written Constitution but it had to be printed and circulated to state assemblies as well as the general public in order to win ratification. Almost 400 years after Gutenberg invented the printing press, the United States emerged from the printing press.

It was a country built on confrontation, cooperation and conflict between regional interest groups that threatened to tear apart the new republic. The economies of the southern states were based on agriculture while those in the north were founded on industry. There was so much fractiousness at the Constitutional Convention in Philadelphia that the delegates fought over the text of the Constitution behind closed doors. America has stayed intact despite a civil war because its Constitution encourages public arguing as an alternative to civil war.

Social media companies have developed algorithmic platforms that support arguing as a way to keep viewers engaged. Arguing fosters new combinations of identities and values and these shifting combinations promote new group formation much like the variety of Protestant sects that emerged during the Protestant Reformation. To a historian in the twenty-fifth century, the historical significance of the internet age may be the development of artificial intelligence, or AI, to efficiently mimic many human capabilities. A set of algorithms cannot replicate the intricacies of individual perspective but it will alter our perspectives. We are becoming not the hardware cyborgs of science fiction movies but the software cyborgs of ideas and perspectives.

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Photo by Amador Loureiro on Unsplash

Keywords: Constitution, analysis, values, assumptions, perspective

Great But Not Perfect

June 18, 2023June 17, 2023Leave a comment

June 18, 2023

by Stephen Stofka

This week’s letter is about the political movement to remove books from schools and libraries that reveal the uglier parts of American history. Any society makes mistakes, historical debts that never be paid and the succeeding generations are reluctant to shoulder the burden of those mistakes. A truly great people acknowledge those flaws and adopt policies that ameliorate some of the suffering caused by those mistakes. Some who shout the loudest that America is great are more concerned that America appears great than contributing to America’s greatness.

For some groups in America, the nation was never great. Some laws kept people out of restaurants, bathrooms, schools and other public places. American customs and federal policy kept some Americans from living in certain neighborhoods – the process of redlining in real estate. Some customs kept some Americans from jobs and credit because of their religion or skin color. These restrictive laws have been repealed or found unconstitutional but the customs and sentiments live on.

In 1705, Bernard Mandeville (1795) published The Fable of the Bees: or Private Vices, Public Benefits, an eleven page poem and commentary about a thriving beehive. When some bees complain about the many vices of their neighbors in the colony, the god Jove grants their wish and makes everyone virtuous. Bars are closed for lack of business, prices fall to an honest level, debtors pay their debts, and most lawyers are put out of business. Criminals are either hanged or set free and the jails closed. The jailers and attendants are put out of work. Many locksmiths and blacksmiths are idled because no one needs security locks or bars. Without vanity, the now contented bees no longer want clothes and other accoutrements that signify their civic stature, and this causes much industry to be idled. As the bees leave the hive, it collapses.

A prosperous society emerges from both the virtues and the vices, Mandeville claimed. Preachers assailed Mandeville’s criticism of good Christian virtues. That a good could come from vice was a heresy at the time of the book’s publication in the early 18th century. Mandeville described an emergent vitality and wisdom in the interplay between vice and virtue, contradicting the Christian teaching that wisdom was received from God’s or from reading the ancients.

Mandeville’s thoughts inspired David Hume, a giant of 18th century philosophy, and Adam Smith, the founder of the study of economics. Both were keen observers of human behavior, empiricists who believed that a variety of perspectives promoted vitality in a society. In time Adam Smith would develop the concept of the division of labor, that greater specialization improved productivity and promoted economic growth. Specialized trades can only develop and flourish in areas with large populations. Competition and diversity were the key to this outlook.

In another camp of political philosophy were Rousseau, Kant, Hegel and Marx, idealists who believed that a uniformity of rules and circumstances was the key to social improvement. A rigid adherence to norms that curbed people’s greed and self-centeredness was the key to a flourishing society. Policy proposals that ban books and public behaviors fall into this camp.

The Declaration of Independence and the U.S. Constitution embody this conflict between the idealists and empiricists. The Declaration of Independence espoused an idealistic uniformity like “All men are created equal.” Governments were allies to the individual’s pursuit of happiness. In contrast, the U.S. Constitution was an act of pragmatic bargaining to form a more powerful alliance between diverse colonies. In the text (Article 1, Section 2) of that bargain, slaves were to be counted as three-fifths of a person and the Congress could not regulate the importation of slaves for twenty years (Article 1, Section 9). Article 4, Section 2 preserved a universal right of ownership of a human being regardless of which state that human being was located. Governments promoted the happiness of some at the expense of others.

If we are a great nation and a great people, we teach our children about the good, bad and ugly truths that formed the backbone of this nation. There is a lot of each. Teach it all. A great people stand up in the daylight of truth. They pick up their legal tools and their steel tools and they get to work fixing the ugly, not burying it. They don’t drape themselves in flags and blather slogans. They put on their work clothes because building strong institutions and repairing ugly is hard work.

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Photo by Tom Hermans on Unsplash

Keywords: Constitution, Declaration of Independence, history, book bans

Mandeville, B. (1795). The fable of the bees: Or, private vices, public benefits. Printed for C. Bathurst and others. Available free from https://books.google.com/books/about/The_Fable_of_the_Bees.html?id=I7JlAAAAMAAJ&printsec=frontcover&source=kp_read_button#v=onepage&q&f=false

America 4.0

September 11, 2022September 11, 2022Leave a comment

September 11, 2022

by Stephen Stofka

I hope that those in the UK can find some common ground in their grief over the Queen’s death this week. Britain was still recovering from World War 2 when the crown was laid on her young head in 1952. Seventy years later, the political culture has fractured over Brexit and the repercussions of leaving the EU. There is much needed investment in a nation that has barely managed 2% growth in the past decade. In three years, three Prime Ministers have led the Parliament. The long reach of the Queen’s lifetime can help us lift our heads and take a longer view of events. When we mark history in lifetimes, not years, the beginning of our nation was about three lifetimes ago.

For most of mankind’s history, production harnessed human or animal energy, the thermal energy stored in wood and coal, and the kinetic energy of falling water turning a mill. In a world with only gradual change, there was little need for rapid communications technology. The men – yes, all men of property and standing – who crafted and voted on the U.S. Constitution lived in a world limited by crude animal and chemical power for energy, transportation and communication. John Adams, one of the Constitution’s signers, spent weeks traveling from his wife, family and farm in Braintree, Massachusetts to Philadelphia, Pennsylvania. Today, a person on a bicycle can make the journey in three 10-hour days.

The discovery and refinement of oil as an energy source changed our society and our politics. The 13^th, 14^th and 15^th amendments of the Reconstruction Era were ratified at the dawn of a new age of energy and communications. The telegraph had only just come into use just prior to the Civil War. Edwin Drake drilled the first oil well in Pennsylvania in 1859, two years before the start of the Civil War. Those who passed the initial ten amendments and made the amendment process so difficult lived in an era where transformations of society occurred over decades or centuries. The amendments meant to protect people from the yoke of a regal government now shackle us to a historical reality that no longer exists.

America was built on a lack of consensus between regions, between a newly emerging urban population in the north and a rural population harnessed to the land in the south. In 1776, the colonies had first cohered as a mutual defense pact against the British and the encroachment of the Spanish and French on colonial territory. The seven year war of Independence liberated the colonies from British rule in 1783 but left the colonies with a large debt. Their mutual defense pact gave a lot of autonomy to each of the thirteen states but the central government had little power or authority to tax the individual states. By 1787, that confederacy was on the brink of failure, unable to pay its debts and largely isolated from international capital markets. Under those dire circumstances, the colonies ed anew, drafting an entirely different pact that initiated America 2.0.

The American Constitution embodied the divisions of regional interests and the differing ideological principles of its founders. The proceedings were so combative that the deliberations were sealed from the press for fear that exposing the rancor between delegates would doom the process. Three lifetimes later, we exhibit the same level of discord as our founders. Our Senate has become an insipid institution, crippled by parliamentary rules that make any Senator the ruler of his own nation, the King of Negation that stops most legislation from reaching a vote in the chamber. For 25 years, the House has passed Continuing Resolutions (CR) because they cannot pass a budget on time (Wezerek, 2018). Some years the budget is never passed and the government operates under a year-long CR.

On this 21^st anniversary of 9-11, we still live in its shadow. The precautions at the airport, the fastidious matching of our names, letter for letter, hyphen for hyphen in our identification. Our nation grieved together, our Congress stood together and passed the Patriot Act. That was the end of togetherness. A common grieving does not knit a nation for long. Our media speaks a common language but the discourse – the assumptions and values that form the bedrock of our perceptions – are so different. Why? Because our Constitution has died.

Distrustful of each other, the Constitutional delegates forged a pact that was difficult to amend. They bound it so tightly that it could not expand and breathe. It is like a dead Pharoah mummified in tightly wrapped cloth and buried deep within a pyramid of time. Each year, the justices of the Supreme Court venture into the tomb to ask questions of the dead Pharoah. When they emerge into the sunlight, the people gather round to hear what the dead Pharoah has revealed. The justices speak in tongues – discourses that are intelligible to some people and babble to others. The Civil War was America 3.0. Let us grieve that our Constitution has died and adopt a new pact to celebrate America 4.0.

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Photo by Jeremy Bezanger on Unsplash

Wezerek, G. (2018, February 7). 20 years of Congress’s budget procrastination, in one chart. FiveThirtyEight. Retrieved September 9, 2022, from https://fivethirtyeight.com/features/20-years-of-congresss-budget-procrastination-in-one-chart/

House of Money

June 12, 2022June 9, 2022Leave a comment

June 12, 2022

By Stephen Stofka

Economics students learn that money is a complex function, a multi-tool that plays three roles in our lives. Lawyers study the role of money in contracts. Psychologists study how our beliefs and personal history shape our distinct attitude to money. Our use of money embodies our expectations of the future and our perceptions of risk. The financial crisis demonstrated that money connects us and separates us. The struggle between cooperation and distrust is the foundation of our experiment in democracy.

Money is the Swiss army knife of most societies. As a medium of exchange, it saves us the cost of matching our needs. We can store our labor in a unit of money, then trade it for the things we want. The law regards an exchange of money as a “consideration” that distinguishes a contract from a gift. Current Supreme Court precedent has held that money is speech. Because we use money to store purchasing power, we want it to be a reliable container that doesn’t leak value. Money’s role as a unit of account requires legal institutions to administer the rules of that accounting.

We buy insurance to mitigate risk but to do so we are herded into risk pools based on age, sex or occupation. Those under age 25 pay higher car insurance premiums but lower health insurance premiums. Because they make less money as a group, they have a higher loan default rate and must pay higher borrowing costs. Roofers pay higher workmen’s compensation premiums than police. Heights are more dangerous than criminals. Before Obamacare, health insurance companies charged women of childbearing age higher premiums for individual policies (Pear, 2008). The premiums reflected the higher expected costs of pregnancy regardless of whether a woman had any intention of getting pregnant. We are Borg.

Companies may classify our risk profile but we have a unique relationship with money, a composite of personal experience and inclination. “Me” and “my” are appropriately contained in the word “money” because our attitude toward money is as unique as our fingerprints. In 1984, British psychologist Adrian Furman (1984) led a study to assess people’s attitudes toward money. The questionnaire included 150 questions grouped into five areas that probed the subjects’ beliefs, their political attitudes and affiliations, their sense of autonomy and personal power. An argument about money can be as complex as that questionnaire.

Many political debates involve money. Each party tries to gain control of the public purse to fund its priorities. After 9-11, the debate over money intensified. The hijackers had attacked a money center as a symbol of American hegemony. While Americans debated the justification for an invasion of Iraq, the budget surplus of the late Clinton years evaporated. For some voters, the choice was a stark one – spend money to blow up people in a foreign land or spend it to strengthen American communities. To calm his critics, Mr. Bush promised that Iraq would repay American war expenses with its oil revenues. This was one of several follies that turned voter sentiment toward Democrats in 2008.

The financial crisis showed us the complex nature of money and tested the values that we attach to money. In the last months of a flailing Bush Presidency, the crisis exposed the corruption, greed and stupidity of the country’s largest financial institutions. Billions of taxpayer money had created and fed a thicket of regulatory agencies that were either corrupt or incompetent. The crisis ignited a strong moral outrage that intensified when Democrats fought to pass Obamacare.

The debate may have ebbed during the decade that followed but the Republican tax cuts of 2017 reignited public disdain and distrust. While many American families struggled to recover from the crisis, the politicians and their rich patrons fattened their fortunes.

Money is the heart of the American experience. The American confederacy of colonies that had won independence from Britain could not pay its debts or borrow money. The writing of the Constitution was sparked by the urgent desire to resolve that crisis or risk becoming subjects again of a colonial power. To reach consensus, the colonies had to overcome their distrust of a central government with the power to levy taxes. The colonies distrusted each other and the regional coalitions that might take the reins of that central government. The founders built their distrust into the Constitution and its governing institutions. In grade school we learn them as “checks and balances,” a euphemistic phrase for distrust.

On social media we argue about the many aspects of money. Our experiment in democracy will be over when Americans stop having spirited discussions about money.

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Photo by Kostiantyn Li on Unsplash

Furnham, A. (1984). Many sides of the coin: The psychology of money usage. Personality and Individual Differences, 5(5), 501–509. https://doi.org/10.1016/0191-8869(84)90025-4

Pear, R. (2008, October 30). Women buying health policies pay a penalty. The New York Times. Retrieved June 7, 2022, from https://www.nytimes.com/2008/10/30/us/30insure.html

The Fuel of Fear

January 12, 2020January 11, 2020Leave a comment

by Steve Stofka

January 12, 2020

The Constitution requires that a census be taken every ten years. The first census in 1790 counted almost four million people. The Census Bureau estimates the population at 330 million now, a hundred-fold increase (Census Bureau, 2019). The Constitution was a hard-fought bargain between representatives of regional interests. Politicians in the North and South distrusted each other. Southern states estimated that they would gain the most population growth in future decades because the growing season was longer in those states, and most people depended on agriculture for their existence. Until those population trends developed, the South worried that the more populous North would dominate Federal policy (Klarman, 2016). Our lives are impacted by the fear and distrust of our founders.

Minority and isolated rural communities are at risk of being undercounted because they distrust government. Minorities may have come from a country where there is good reason to distrust government. Indian tribes have several hundred years of reasons to distrust state and federal governments. Response rates to the census questionnaire vary dramatically. In some of the 3000 counties nationwide, responses are only 20%. In some, the response rate is 80-85% (C-Span, 2020). An advocacy group testifying before the House Oversight and Reform Committee hearing this week estimated that 400,000 Latino children aged 0-4 were not counted in the 2010 census (C-Span, 2020). Pre-school programs for at-risk Latino children receive less funding when the government doesn’t know those children exist.

During the Great Depression, President Franklin Roosevelt and a Congress ruled by the Democratic Party made an abrupt shift in the role of the Federal government. Until then, the policies of state governments had a more direct impact on the lives of most Americans. Today, the Federal government is involved in every aspect of our lives. Census counts determine the distribution of hundreds of billions of Federal tax dollars each year. Political scammers rely on the fact that minority populations are fearful, and they spread disinformation about the census to fuel that fear and help reduce the population counts of those communities. Because so many federal programs are tied to the census, people who are fully counted in one state benefit if those in a neighboring state are under counted. The counting of people has become a political sport.

Politicians are afraid of losing the jobs they worked hard to get in the first place. Their interests become aligned with companies whose campaign contributions help protect a politician’s position. Some fault the private market for overpriced drugs and high housing costs but it is the failure of policy makers to respond to the interests of the constituents who voted them into office. Politicians respond instead to the wishes of pharmaceutical, energy and real estate companies. A dominant company in an industry does not want competition. They lobby politicians to craft policies that make the market less free to protect their market domination. It is not the role of private companies to respond to a broad constituency of voters. That is the role of politicians, who blame the private market instead of their own public policy. Then they call for more public policy failures to fix private industry. Private industry increases their lobbying and campaign contributions in response.

Humans have a proclivity for fear and are more alert for negative experiences. Psychologists calls it a negativity bias (Cherry, 2019). For good and bad, fear infected our Constitution at the outset and drove the founders to craft a Constitution of compromise. Smaller states feared the majority will of the larger states. The founders feared the power of the British Parliament and the king just as minority populations fear the government today. Driven by fear for their own political survival, politicians sought the support of the few at the expense of the people who voted them into office. Then and now, we fuel our public policies with fear of the other, whoever we think that is. Our country becomes ruled by fear.

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Notes:

Cherry, K. (2019, April 11). What is the Negativity Bias? VeryWellMind. [Web page]. Retrieved from https://www.verywellmind.com/negative-bias-4589618

C-Span. (2020, January 9). Hearing on 2020 Census: Response rates. [Video, Transcript]. Retrieved from https://www.c-span.org/video/?467977-1/hearing-2020-census&start=12401

C-Span. (2020, January 9). Hearing on 2020 Census: Latino children. [Video, Transcript]. Retrieved from https://www.c-span.org/video/?467977-1/hearing-2020-census&start=13069

Klarman, M.J. (2016). The Framers’ Coup: The Making of the United States Constitution. New York: Oxford University Press. Pg. 192.

Photo by Drew Graham on Unsplash

U.S. Census Bureau. (2019, July 1). Quick Facts. [Web page]. Retrieved from https://www.census.gov/quickfacts/fact/table/US/PST045219

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