May 2014

From Monday we’ll be running an online symposium on Joseph Carens’s brilliant The Ethics of Immigration. (It is the book that sets a new standard for what “long-awaited” means.) So stay tuned. Meanwhile, I was speaking yesterday at a seminar organized by Democracy Forum at the House of Commons on “Immigration: Liability or Asset”. My talk, which shows the influence of Carens’s work in many respects, is below the fold.

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but David Brooks apparently doesn’t know what ‘democracy’ means.

The quickest way around all this is to use elite Simpson-Bowles-type commissions to push populist reforms.

The process of change would be unapologetically elitist. Gather small groups of the great and the good together to hammer out bipartisan reforms — on immigration, entitlement reform, a social mobility agenda, etc. — and then rally establishment opinion to browbeat the plans through. But the substance would be anything but elitist. Democracy’s great advantage over autocratic states is that information and change flow more freely from the bottom up. Those with local knowledge have more responsibility.

If the Guardian State’s big advantage is speed at the top, democracy’s is speed at the bottom. So, obviously, the elite commissions should push proposals that magnify that advantage: which push control over poverty programs to local charities; which push educational diversity through charter schools; which introduce more market mechanisms into public provision of, say, health care, to spread power to consumers.

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One of the most frequent motifs in the literature on Stalinism is that of the dissenter who confesses to a crime he never committed. What made Stalinism so depraved, in the eyes of intellectuals, was not that it jailed or slaughtered men and women by the millions; it was that it was that it got those men and women, who were plainly innocent, to affirm their guilt to a waiting world.

Here in the US, we don’t need to force people to confess to crimes they didn’t commit (though we certainly do that, too). No, to truly validate our system, we conscript the defendant’s soul in a different way.

A state-by-state survey conducted by NPR found that defendants are charged for many government services that were once free, including those that are constitutionally required. For example:

• In at least 43 states and the District of Columbia, defendants can be billed for a public defender.
• In at least 41 states, inmates can be charged room and board for jail and prison stays.
• In at least 44 states, offenders can get billed for their own probation and parole supervision.
• And in all states except Hawaii, and the District of Columbia, there’s a fee for the electronic monitoring devices defendants and offenders are ordered to wear.

These fees — which can add up to hundreds or even thousands of dollars — get charged at every step of the system, from the courtroom, to jail, to probation. Defendants and offenders pay for their own arrest warrants, their court-ordered drug and alcohol-abuse treatment and to have their DNA samples collected. They are billed when courts need to modernize their computers. In Washington state, for example, they even get charged a fee for a jury trial — with a 12-person jury costing $250, twice the fee for a six-person jury.

It would be short-sighted to see these policies as mere cost-saving measures. Their function seems as ideological as it is financial. As one court administrator in Michigan put it:

The only reason that the court is in operation and doing business at that point in time is because that defendant has come in and is a user of those services. They don’t necessarily see themselves as a customer because, obviously, they’re not choosing to be there. But in reality they are.

That these policies overwhelmingly target the poor only adds to their allure: What better way to reform capitalism’s losers than to force them to pay to play?

In the same way that the Stalinist show trial was meant to model the virtuous comrade—so dutiful to the ideals of communism that he would sacrifice his very life in order to validate the cause—so does the American criminal justice system model the virtuous capitalist: so committed to the ideals of the free market that he’s willing to pay the price, in both senses of the word, of his crime.

I have an oped in the New York Times on the Republican war on workers’ rights at the state level. My conclusion:

The overall thrust of this state legislation is to create workers who are docile and employers who are empowered. That may be why Republican legislators in Idaho, Wisconsin, Michigan, Maine, Ohio, Minnesota, Utah and Missouri have been so eager to ease restrictions on when and how much children can work. High schoolers should learn workplace virtues, says the conservative commentator Ben Stein, like “not talking back.” Early exposure to employment will teach 12-year-olds, as the spokesman of an Idaho school district put it, that “you have to do what you’re asked, what your supervisor is telling you.”

And if workers don’t learn that lesson in junior high, recent Republican changes to state unemployment codes will ensure that they learn it as adults. In 2011, Florida stipulated that any employee fired for “deliberate violation or disregard of the reasonable standards of behavior which the employer expects” would be ineligible for unemployment benefits. Arkansas passed a similar amendment (“violation of any behavioral policies of the employer”). The following year so did South Carolina (“deliberate violations or disregard of standards of behavior which the employer has the right to expect”) and Tennessee. The upshot of these changes is that any employee breaking the rules of her employer — be they posting comments about work on Facebook, dating a co-worker or an employee from a rival firm, going to the bathroom without permission — can be fired and denied unemployment. Faced with that double penalty, any worker might think twice about crossing her boss.

What might Adam Smith, often claimed as the intellectual godfather of the American right, have said about these legislative efforts? “Whenever the legislature attempts to regulate the differences between masters and their workmen,” wrote Smith in “The Wealth of Nations,” “its counsellors are always the masters. When the regulation, therefore, is in favour of the workmen, it is always just and equitable; but it is sometimes otherwise when in favour of the masters.”

Indeed.

The oped is based on Gordon Lafer’s eye-opening report last fall for the Economic Policy Institute, “The Legislative Attack on American Wages and Labor Standards, 2011-2012,” which you should also read.

Like lots of other readers of Thomas Piketty’s Capital, my big concern is not with the accuracy of the diagnosis and prognosis but with the feasibility of the prescription. Piketty’s proposal for a global wealth tax requires an end to the capacity of capital to escape taxation by exploiting the limitations of national taxations system, through tax havens, transfer pricing, artificial corporate structures and so on.

Given the limited record of success in past efforts to control global tax evasion and avoidance, Piketty is reasonably pessimistic about efforts in this direction. But the latest news from the OECD is remarkably positive. All members of the OECD (notably including evader-friendly jurisdictions like Austria, Luxembourg and Switzerland) have agreed to a system of automatic information exchange for tax purposes. Moreover, the “too big to jail” status of major banks engaged in facilitating tax evasion and money laundering, may finally be coming to an end.

On the face of it, the oft-repeated, but so far unjustified claim that “the days of tax havens are over“, may finally be coming true, at least for all but the wealthiest individuals. But the crackdown on individual tax evaders only points up the ease with which corporations (and individuals with the means to establish complex corporate structures) can avoid tax through a mixture of legal avoidance and unprovable evasion (for example, by illegal but unprovable internal transfers).

At the core of the problem is the ability to establish corporations in ways that make their true ownership impossible to trace. And, the jurisdiction most responsible for this is not a Caribbean island or European mini-state, but the “First State” of the US – Delaware, which has long been the preferred location for US incorporation by reason of its business friendly laws.

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If you think there’s the slightest chance that you would enjoy a book about Maurice Noble, who designed the backgrounds for all your favorite Warner Brothers cartoons (and a bunch of other animated works you love), you should get The Noble Approach: Art and Designs of Maurice Noble [amazon]. [click to continue…]

The 10-year old, upon seeing part of the trailer for Godzilla. “What if it has … Godzuki in it!” (Looks at me with dum-dum-DUM! expression, wide-eyed!)

Later she tells me she and her friend are writing another storybook. What is her book called? “It’s called ‘And Then!'”

I think “And Then!” is the best title for a story ever. And I tell her so. She’s like: “What? What’s so great about it?”

When I wasn’t MOOC’ing my heart out this semester, I was trying to help my students improve their writing. In my classes that means: writing fairly short essays that are supposed to contain arguments. The real challenge is getting through to the students who are very bad at this, despite really trying. Good, hardworking students are easy to teach. You point out what’s wrong and they don’t do it anymore, most days. But the hardworking student who persists in submitting terrible stuff can be a real puzzle. You pin and label individual errors. But they just do it again. Teaching ‘informal reasoning’ doesn’t help, mostly. Students who have trouble seeing that there are major problems with their arguments – up to and including: you have no argument – are not assisted by lists of fallacies.

Teaching fallacies is mostly helpful for good students, even though it seems very basic. You are giving names to things they already get, thereby sharpening existing perception. The bad students, by contrast, have more of an ‘if it were a bear, it would have bitten you’ problem. Providing labels – brown, black, grizzly – is not going to help with ‘why did you completely miss it?’ [click to continue…]

I just wanted to give a quick shout-out to an important new blog—Ms. Perestroika—that’s keeping track of the gender gap in academic political theory. It just started, but already it’s got informative posts on recent job searches and hires, the publication record of Political Theory, whose books are getting reviewed and by whom, and the composition of panels at the Western Political Science Association. This seems like an important initiative, so I wanted to make sure folks knew about it.

As you probably know, several of us at CT are big photography enthusiasts. While we seem to be more interested in taking photos of nature and architecture, next time we want to shoot a family portrait or an item, we’ll have to be careful with our approach. The US Patent Office recently granted Amazon a patent for taking photos against a white background. For real. So is their plan to start trolling portrait studios and Ebay/Etsy sellers to see whom they can sue?

I am no lawyer, but the language seems rather vague. For example, “a top surface of the elevated platform reflects light emanating from the background such that the elevated platform appears white”. So what level of off-white should a photographer strive for to avoid litigation?

What follows is a talk I gave at the University of Washington this past weekend on my working paper “Smiling Faces Tell Lies: Pessimism, Originalism, and Capitalism in the Jurisprudence of Clarence Thomas.” The paper is still incomplete. I only managed to write about Thomas’s theories of racism and how they intersect with his philosophy of constitutional interpretation. In the coming months, I intend to expand the paper to talk about Thomas’s views on capitalism, and how they inform his jurisprudence about the Commerce Clause, the Takings Clause, and more. Ultimately, this paper will be published by the University of Chicago Press in a volume on African-American political thought, edited by Melvin Rogers and Jack Turner. Other contributors will include: Cedric Johnson on Huey Newton, Nikhil Singh on Malcolm X, Lawrie Balfour on Toni Morrison, Michael Dawson on Marcus Garvey, Naomi Murakawa on Ida B. Wells, Jason Frank on Langston Hughes, Tommie Shelby on Richard Wright, Danielle Allen on Ralph Ellison, and many many more. It’s going to be fantastic. But until then, here’s my talk on Clarence Thomas. If you’d like a copy of the paper, email me at corey.robin@gmail.com.

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Yesterday, Nikhil Singh said that more than any other figure in the African American canon, Malcolm X is someone who everyone thinks they know. Clarence Thomas, I’ve discovered in the past six months, is also a figure who everyone thinks they know. In the interest of dispelling that expectation, which many of you may share, I’d like to present five facts about Clarence Thomas that perhaps you didn’t know.

1. The first time Clarence Thomas went to Washington, DC, it was to protest the Vietnam War. The last time that Clarence Thomas attended a protest, as far as I can tell, it was to free Bobby Seale and Erikah Huggins.
2. Clarence Thomas does not believe in color-blindness: “I don’t think this society has ever been color-blind,” he said in 1985, in the third year of his tenure as head of the EEOC. “I grew up in Savannah, Georgia under segregation. It wasn’t color-blind and America is not color-blind today…Code words like ‘color-blind’ aren’t all that useful.” Or, as he told Juan Williams in 1987, “there is nothing you can do to get past black skin. I don’t care how educated you are, how good you are—you’ll never have the same contacts or opportunities, you’ll never be seen as equal to whites.”
3. When Clarence Thomas was in college he memorized the speeches of Malcolm X; two decades later, he could still recite them by heart. “I’ve been very partial to Malcolm X,” he told a libertarian magazine in 1987. “There is a lot of good in what he says.”
4. There’s a law review article about Clarence Thomas that’s called “Clarence X?: The Black Nationalist Behind Justice Thomas’s Constitutionalism.”
5. Clarence Thomas resents the fact that as a black man he’s not allowed to listen to Carole King.

Now, the truth is that there’s nothing all that surprising about the fact that Clarence Thomas is black and conservative. There’s a long tradition of black conservatism in this country. And from Edmund Burke to Ayn Rand, conservatism always and everywhere has been the work of outsiders, men and women who hail from the peripheries or margins of the national experience.

Nor, in the end, is Clarence Thomas’s early engagement with black radicalism all that surprising. After all, one of the great clichés of the twentieth century is the young left-wing radical graduating to middle-aged conservatism. And as Cedric Johnson, Michael Dawson, and other scholars have reminded us, there’s a deep affinity between conservatism and parts of the Black Power/Black Nationalist tradition.

But here, I think, is what is surprising about Clarence Thomas: First, he’s a Supreme Court justice who has managed in his jurisprudence to incorporate rather than repudiate some of his early commitments to Black Nationalism and Black Power; I think it’s fair to say no other Supreme Court justice has done that. And, second, Thomas is a constitutional originalist, and a rather radical one at that. Unlike any other justice—not Scalia, not Roberts, not Alito—Thomas wants to restore the Constitution to the meaning it had in 1789.

How Thomas has been able to marry an incredibly bleak vision of the black past, a vision rooted in black nationalism, to a document that is not only the fountainhead of that past but is also, on his account, the source of an alternative black future—not, as Thurgood Marshall and other liberal constitutionalists would have it, because it is a “living Constitution,” but precisely because it is dead: that is the basic puzzle of Clarence Thomas and what makes him, I think, more interesting than many of us realized. [click to continue…]

I’ve been reading my way through the New Sun tetralogy again over the last few months. In honour of the day, one of my favourite passages (as the protagonist, Severian descends a cliff, in a world grown so old that the object of ‘mining’ is not to find seams of raw minerals, but instead to discover the relicts of the past and convert them to use).

The past stood at my shoulder, naked and defenseless as all dead things, as though it were time itself that had been laid open by the fall of the mountain. Fossil bones protruded from the surface in places, the bones of mighty animals and of men. The forest had set its own dead there as well, stumps and limbs that time had turned to stone, so that I wondered as I descended, if it might not be that Urth is not, as we assume, older than her daughters the trees, and imagined them growing in the emptiness before the face of the sun, tree clinging to tree with tangled roots and interlacing twigs until at last their accumulation became our Urth, and they only the nap of her garment.

Deeper than these lay the buildings and mechanisms of humanity. (And it may be that those of other races lay there as well, for several of the stories in the brown book I carried seemed to imply that colonies once existed here of those beings whom we call the cacogens, though they are in fact of myriad races, each as distinct as our own.) I saw metals there that were green and blue in the same sense that copper is said to be red or silver white, colored metals so curiously wrought that I could not be certain whether their shapes had been intended as works of art or as parts for strange machines, and it may be indeed that among some of those unfathomable peoples there is no distinction.

At one point, only slightly less than halfway down, the line of the fault had coincided with the tiled wall of some great building, so that the windy path I trod slashed across it. What the design was those tiles traced, I never knew; as I descended the cliff I was too near to see it, and when I reached the base at last it was too high for me to discern, lost in the shifting mists of the falling river. Yet as I walked, I saw it as an insect may be said to see the face in a portrait over whose surface it creeps. The tiles were of many shapes, though they fit together so closely, and at first I thought them representations of birds, lizards, fish and suchlike creatures, all interlocked in the grip of life. Now I feel that this was not so, that they were instead the shapes of a geometry I failed to comprehend, diagrams so complex that the living forms seemed to appear in them as the forms of actual animals appear from the intricate geometries of complex molecules.