Libertarianism As Process

November 23, 2013, 9:20 p.m.

In the Excellent Society

"An excellent plumber is infinitely more admirable than an incompetent philosopher. The Society which scorns excellence in plumbing because plumbing is a humble activity and tolerates shoddiness in philosophy because it is an exalted activity will have neither good plumbing nor good philosophy. Neither its pipes nor its theories will hold water. . . . The tone and fiber of our society depend upon a pervasive and almost universal striving for good performance."

-- John W. Gardner, Excellence (1961), pp. 86, 132

The Goal

When Libertarians assert that the government should not forbid the sale of large sugar drinks, or foods with trans fats, or riding motorcycles without helmets -- because it interferes with what our Declaration of Independence refers to as individuals' "liberty and the pursuit of happiness" -- is there something wrong with their position? If so, what is it, and how would you articulate their error?

Is there some way that the values they hold -- indeed, all of us hold to some lesser or greater degree -- can be more deliberately incorporated into our public policy process, without necessarily adopting their position, or proposal hook, line and sinker on every given issue? These are the questions to which this blog essay attempts to find, if not the answer, at least some progress towards one.

Like many Americans, I find myself in agreement with a number of Libertarian positions -- especially their opposition to TIFs and other forms of corporatism (i.e., government transferring taxpayers' money to for profit, private businesses). It's that latter position, often seen in these blog essays, that causes some to believe I must be a Libertarian.

I'm not (in the sense of a formal, voting member of today's Libertarian Party), but I have often struggled with the questions with which this blog essay begins.

Now, thanks in part to one of my exploratory policy conversations with Jim Leach, my thinking has advanced a bit.

Here's the story.

Nouns, Verbs and Process
Buckminster Fuller (1895-1983) was a popular icon of the 1960s and '70s, whom his numerous followers referred to as "Bucky." He was, among a great many things, an architect (geodesic dome popularizer), author (30 books), and creative thinker on many topics. We occasionally shared the platform as speakers at the same gatherings.

Among his books was one with the title I Seem To Be a Verb (1970). As he explained it, "I don't know what I am. I know that I am not a category. I am not a thing — a noun. I seem to be a verb, an evolutionary process — an integral function of the universe."

I mention this because, like Bucky Fuller deciding he was a verb, I have finally come to the view that Libertarianism can most usefully be thought of as a process, or rather as having a legitimate and significant role in the policy formulation process, rather than a set of platform planks and "positions" on issues.

What's "Libertarian"?
"Libertarian" has become, in most common usage, a reference to a political party, now boasting the third largest membership after the Republicans and Democrats. By that definition it is relatively new, formed in 1971 and with its first presidential candidate in 1972. It is also, of course, a political philosophy with an American history prior to today's political party, origins around the late 1700s, and some claiming threads going back to the Greeks and even Lao-Tzu, in the 6th Century B.C.

Most Americans would find at least something with which they agree in the beliefs and positions of those who identify themselves as Libertarians. You can find Libertarians who are almost as anti-war as the Quakers, yet as strong for gun rights as the National Rifle Association; more conservative than most Republicans on fiscal matters, and yet more liberal than most Democrats when it comes to personal freedoms, such as gay rights and use of drugs.

But it was a recent column from the Heritage Foundation attacking the regulation of trans fats that got me struggling once again with the intellectual challenge of how to either utilize or respond to the Libertarian position on such issues. (Daren Bakst, "FDA's Proposed Trans Fat Ban is a Power Grab to Control Lives," The Heritage Foundation, Nov. 18, 2013; in The Gazette as, Daren Bakst, "FDA's Trans-Fat Power Grab," The Gazette, Nov. 21, 2013, p. A5.) What is the answer to those who refer to government regulation of personal life choices as the creation of a "nanny state"?

The Motorcycle Helmet Dilemma:
Wherein I Argue With Myself and Discover That
"I Can't Win, I Can't Break Even, and I Can't Get Out of the Game"
The motorcycle helmet dilemma has been the example most often used when thinking about the question, or discussing it with others.

There is probably as much diversity among libertarians' views on various subjects as there are for those of conservatives, or liberals. But it's a reasonable guess than a great many Libertarians would put the motorcycle helmet issue this way: "If someone wants to ride with no helmet, it is no business of the state. As long as they are doing no harm to anyone else, are fully informed, and know the risks, it's their life to live as they choose."

Previously, I have imagined myself being backed into an analytical corner.

First, I would say to myself -- or whomever else might be within earshot -- "they are doing harm to others, economic harm. If they are ever in an accident without a helmet, unless they have health insurance, or are independently wealthy, the rest of us -- hospitals' patients (and shareholders of for-profit hospitals), health insurance premium payers, taxpayers -- are going to be picking up some share of their initial medical bills. And if they are brain injured, or paralyzed for life, hundreds of thousands beyond that. The response: OK, but to get to the core of this,let's assume, hypothetically, that the motorcyclist posts a bond adequate to cover all costs.

Second, "Now what is your objection?" comes the real or imagined next question. I respond with something about the way the law permits plaintiffs to calculate damages in wrongful death cases -- namely, what they might have expected to receive from the decedent over the course of his or her lifetime had he or she not been killed as a result of actions by the defendant. To this the response is similar: "OK, so hypothetically assume the motorcyclist must take out a life insurance policy, too, with an initial value equal to the plaintiff's share of the decedent's future earnings." (Its value might decline over time, so long as the insured lives and the future plaintiff has received ongoing economic benefit from him or her. At any given point in time its value would roughly equal the anticipated economic benefits from then until the actuarially determined estimated year of death.)

This simply produces the same response: "OK, so now what is your objection?"

This process could probably continue, but at some point you've run out of potential economic losses, all of which have been covered in advance (at least hypothetically). You're in a corner. You're back where you started: "If someone wants to ride with no helmet, it is no business of the state. As long as they are doing no harm to anyone else, are fully informed, and know the risks, it's their life to live as they choose."

Continuing to travel further on down the wrong road doesn't make it the right road. So let's start over.

Of all the people who would not respond well to demands that they follow a particular procedure for making policy decisions, I can imagine that Libertarians might be at the top of that list.

This is Not About Libertarians; It's About the Rest of Us:
Libertarianism as Process in the Balancing of Values
So I'm not talking to or about Libertarians. I'm talking to the rest of us. And I'm suggesting that we do not need to approach Libertarianism as a body of predetermined platform planks and specific policy positions, binary yes-or-no decisions as a result of which Libertarians either "win" or "lose."

What if we viewed Libertarianism as part of a process, as a set of values that, though not decisive, not only can be, but should be, a legitimate part of the policy formulation process?

Are there analogies, or precedents, for this approach? Try the U.S. Constitution's Bill of Rights.

The Fourth Amendment is currently in the news as we receive revelation after revelation regarding the NSA's "searches" of Americans. The Amendment recognizes "The right of the people to be secure in their persons, houses, papers, and effects." But it also recognizes that some government searches may be justified. It expressly limits its prohibition to "unreasonable searches and seizures." Thus, "privacy" is identified as a value to be constitutionally protected, certainly to be considered as a part of the decision making process, but only up to the point where a governmental search may be "reasonable."

Similarly, the Eighth Amendment is unqualified in its prohibition of "cruel and unusual punishments." But when it addresses bail and fines it, like the Fourth, once again calls for a balancing: "Excessive bail shall not be required, nor excessive fines imposed . . .."

In the case of the First Amendment, the language is absolute: "Congress shall make no law . . . abridging the freedom of speech, or of the press . . .." Indeed, Justice Hugo Black read it as such, asking his colleagues the equivalent in his day of the current line, "What part of 'No' don't you understand?"

But in the case of the First Amendment, notwithstanding the "no," a majority of the Supreme Court justices has interpreted the language to require a balancing of the values associated with free speech (e.g., as a prerequisite for a self-governing democracy, a force to check abuses of power in and out of government, a process more likely to produce "truth," among others). Congress has been upheld by the Court in numerous cases in which Congress has made a law "abridging the freedom of speech."

Companies are legally required to reveal to potential customers the ingredients in their food products (labeling laws), and to potential shareholders the truth about their company (their stock prospectus). You are prohibited by law from telling jokes around an airport security checkpoint. The Copyright Law limits what you can do with others' writing. Courts can punish for speech found to be defamatory, obscene, or inciting to "imminent lawless action."

What I am suggesting is that we approach the principles and values of Libertarianism -- not the "positions" and fixed positions of Libertarians, or the platform of the Libertarian Party and its candidates, but their principles and values -- into our decision, and policy making, processes.

The fact is that my hypotheticals, in which the citizen who takes risks pays up front for the potential economic costs of doing so, are just that: hypothetical. There is a negative impact on our nation's economy from our risky behavior, the accidents and illnesses we bring on ourselves -- driving drunk or without seat belts, excessive use of alcohol and what I call the lesser drugs, tobacco, overweight and poor nutrition, failure to exercise, and, yes, riding motorcycles when not wearing helmets (and comparably risky activities).

Citizens' and Government's Legitimate Interests Beyond Economic Costs
But even if all those economic costs were nonexistent, whether hypothetically or actually, there is another value of legitimate interest to the American people and their democratically elected government. As I quoted John W. Gardner as saying, at the beginning of this blog essay, "The tone and fiber of our society depend upon a pervasive and almost universal striving for good performance."

America's greatest potential asset is performance at levels of excellence by each of its 227 million citizens (over 21) 365 days each year. It is in the best interest of each of us, interests that go beyond mere cost saving, that the government do all it can to ensure that all 227 million come as close to that ideal as possible -- for the good of all, as well as for the good of those individuals. That is why, even after the costs are covered, there is yet one more reason why it is appropriate for the government to concern itself with our self-destructive behavior -- because an excellent society requires a striving for excellence, as John Gardner reminds us, by its plumbers as well as its philosophers.

The point of "Libertarianism as Process" is that it is equally important to weigh heavily the benefits of incorporating into our public policy decisions the values of individuals' freedom, personal choices, and individuality. (To some extent this is, today, the product of the warring lobbyists, with their generous campaign contributions, fighting each other for the votes of House and Senate members. The difference is that I would like to substitute rational analysis, fairness, and incorporation of Libertarian values -- to whatever extent possible -- for raw political and economic power.)

The Radical and the Reasonable
And how might that be done? The way we often do it -- which requires, however, that we recognize the difference between the radical and the reasonable.

The radical positions regarding motorcycle helmets are, on the one hand, simply banning any manufacture or sale of motorcycles, and, on the other, imposing no safety regulations whatsoever. Permitting motorcycles, while requiring the riders wear helmets is, in reality, a middle position, a compromise, a balancing of values. That's not, alone, enough to say it should be the policy. That's not my point. Positioning oneself along this continuum from banning to no government involvement involves personal judgment. People will differ. It is only an example of how one might incorporate Libertarian values along with the state's legitimate interest in maintaining the productivity of its citizens who are motorcyclists.

Another example would be the policy regarding cigarette consumption. Again, the radical extremes would be, on the one hand, to simply ban the sale of any tobacco products, and, on the other, to make no efforts of any kind to limit the adverse health effects of tobacco use (including the 400,000 tobacco-related deaths a year). We have done neither. Cigarettes can be manufactured and sold. Smokers can continue to buy them. Some examples of the compromises have been to limit where they can smoke (as, in part, a response to evidence of harm to non-smokers from second hand smoke), to forbid tobacco sales to minors, the creation of smoking cessation programs, and the imposition of price increases to discourage young people from starting down the path to nicotine addiction.

A more local and recent example would be the Iowa City City Council's approach to the consequences of alcohol abuse by those legally forbidden to buy, possess, or consume alcohol (those under 21). The extremes would be to forbid their entry at any time into businesses whose sole purpose is to profit from the sale of alcohol, on the one hand, or, on the other, to permit their entry 24/7. The Council's balancing of values is a compromise that permits underage individuals to be in bars 20 out of every 24 hours a day, but requires they leave the bars between 10:00 p.m. and 2:00 a.m. See, "Underage Drinking As Human Right? I Don't Think So; Why Bar Owners, Students, Should Embrace Iowa City's 21 Law," Oct. 16, 2013.

And that's what I mean by "Libertarianism As Process."

# # #

Why Politics Make Us Stupid

November 17, 2013, 11:20 a.m.
Yes, Liberals, This Means You, Too
It turns out that the half-jocular line, "My mind is made up, don't confuse me with the facts," is worth more reflection than we may have realized.

Yale Professor of Law and Psychology, Dan Kahan, heads that school's Cultural Cognition Project, a national group of academic researchers who study how one's political or other group affiliations and opinions can alter an individual's perceptions of relevant data concerning, say, climate change or gun control. Nicole Ng, "Kahan Responds to Media Storm," Yale Daily News, Oct. 29, 2013.

This first came to my attention as a result of one of my many informative BBC program podcasts, this one from the program "More or Less: Behind the Stats" ("Numbers are used in every area of public debate. But are they always reliable? Tim and the More or Less team try to make sense of the statistics which surround us.").

This episode, titled "Does politics make us get our sums wrong?" was a exploration of Dan Kahan's research.

Kahan didn't take the easy way out, which would have been to choose a random or representative sampling of subjects from across our socio-economic-educational classes. Instead, he choose those with outstanding mathematical ("numeracy") skills. As he explains it, "We did tests and found that people who are more science literate and better able to make sense out of scientific data tended to be more polarized along cultural lines on issues like climate change or guns or nuclear power, not less. That’s not what you would expect if the problem were that people had a deficit in rationality — in that case, the people who are the most science comprehending among those different groups would be converging on their views consistent with the best evidence."

He began with an exercise that was political-value-neutral: two skin creams, one of which smelled like strawberries, the other like bananas. He told the participants that the strawberry cream was tested on 300 subjects, 200 of whom saw improvement in their rash, and 100 of whom did not. The banana cream was tested on a smaller group; it produced only 80 whose skin improved and 20 whose skin did not. Virtually all of those with high numeracy skills got the correct answer to the question, "Which was the better skin cream?" (If you're having trouble with this one, although 200 got improvement from the strawberry version, and only 80 from the banana, 200 out of 300 (200 plus the 100) is 66.6%, whereas 80 out of 100 (80 plus the 20) is 80%.)

On the other hand, when the exercise involved statistics regarding a politically loaded issue, such as gun control, the numeracy-gifted subjects came up with remarkably different rates of success. The subjects were divided into two groups, those who believe that crime rates come down when more people have guns, and those who believe that crime rates come down when there are bans on gun ownership. Both tended to respond according to their beliefs.

Let's assume, hypothetically, that the statistics again involved the 200-100 and 80-20 splits: out of, say, 100 cities 80 would have seen crime rates decline, and 20 would have seen no change.

When the correct answer supported the view of those who believed that more guns mean less crime, this high numeracy group scored about as well as they had on the skin cream exercise. However, when it did not, when the results seemed to show that gun bans did a better job of reducing crime, the percentage of those who came up with the correct answer dropped to as low as 35%.

I hasten to add, those who thought that banning guns would reduce crime produced exactly the same results. When the "correct" answer conflicted with their ideological opinion, only 35% of them came up with it.

We've seen reports of surveys that involve the provisions of a supposed legislative proposal. When Democrats are told that the provisions are in a bill from President Obama, the percentages that think it's a good idea are far higher than if they're told it comes from the Tea Party Republicans in the House. Republicans' responses show a similar disparity depending on the provisions' sponsor -- even though the specific provisions are precisely the same in all four tests. [Photo credit: Stan Honda / AFP-Getty Images.]

But Professor Kahan has now provided us with some scientific data that helps to explain how this happens. It turns out that the power of our predispositions is such that they can, even for the most mathematically gifted, scientific and data-driven among us, block out their ability to do simple math.

Oh yes, some liberals have read Kahan's data as supporting their assumption that conservatives are more stupid than liberals. Alas, not only are the liberals wrong about that, they have simply provided more evidence in support of his findings!

"My mind is made up, don't confuse me with the facts"? Ah, if only that were possible. Apparently, once our minds are made up it's highly unlikely that anything, including persuasive facts, will ever confuse us.

Exclusive: Insider Explains Healthcare.gov Fiasco

November 2, 2013, 4:00 p.m.

From 'Integration Testing' to 'Full End-to-End Testing'

Unless you've spent the last month in a cave with your mountain-dwelling guru, you're aware of the fiasco in the Obama Administration's roll out of the Web page that was supposed to provide the gateway for Americans' path to near-universal health insurance. [Cartoon credit: Steve Sack, Minneapolis Star-Tribune, Oct. 23, 2013.]

It's been hard to get the details on how such a thing could happen -- especially when Obamacare ("The Affordable Care Act") has been the one major accomplishment and showpiece of President Obama's Administration.

Of course, a part of the cause may have been CMS' [U.S. Centers for Medicare and Medicaid Services] failure to fully investigate the record of their prime contractor:

Canadian provincial health officials last year fired the parent company of CGI Federal, the prime contractor for the problem-plagued Obamacare health exchange websites . . . after the firm missed three years of deadlines and failed to deliver the province’s flagship online medical registry. . . . The CMS officials refused to say if federal officials knew of its parent company’s IT failure in Canada when awarding the six contracts.

Richard Pollock, "Canadian officials fired IT firm behind troubled Obamacare website," Washington Examiner, Oct. 10, 2013.

There is project management software appropriate to this task. It is called the PERT ("planning, evaluation, review technique") system, something used and developed in part by the Polaris submarine project as I observed it in the 1960s. Polaris required the ability to manage a project involving tens of thousands of sub-contractors under an extremely tight schedule. Surely PERT could have helped, with or without a failed CGI Federal.

Thus, the Healthcare.gov scenario has been a dramatic case study in both (1) the consequences of a failure to understand some basic principles of Management 101, and (2) how not to roll out a massive, new, and complex bit of software.

Although I did some computer programming in the simplistic Basic language over 30 years ago, since then I've limited myself to some easily mastered DOS and html commands and left the real programming to others. But I've experienced enough to agree with the observation of the head of a university's computer science department when told there were over 100 million lines of code in President Reagan's "Star Wars" program: "I've never seen a computer program that was more than three lines long that ran the first time it was tried."

So I asked a very reliable source whether I could share with you some professional insights which they have provided. This source, in no way affiliated with the Healthcare.gov effort, has so many years' experience in the business, in a variety of contexts, that to help to maintain his or her anonymity I have substituted "nn" in the following at the spot where they reveal that number. I found what was sent to be helpfully informative, and it's shared here in the hope and expectation you will find it so as well.

# # #
I've been closely following the developments in the healthcare.gov debacle. I'm not a politician nor a healthcare expert, so I really can't comment on whether the Affordable Care Act will achieve its goals or fatally undermine the American Dream. That sort of pontification I leave to Democrats and Republicans, respectively.

What I am, though, is a veteran software engineer with nn years of experience dealing with large projects in both the public and private sector.

Point blank: we have been lied to, and we are being lied to, about the future of the healthcare.gov site.

I could write five thousand words on precisely how many deceits are on display. I'll try to keep it under a few hundred and just focus on the one whopper of a lie that I believe even non-programmers can understand.

The contractors who originally delivered healthcare.gov advised the White House that full end-to-end integration testing had not been completed -- and, in fact, had not even started until a few days before the October 1 rollout. That's a technical term, "full end-to-end integration testing," so let me explain what we mean by that. Integration testing means "we're putting the pieces together to see if they work well." End-to-end integration testing means "we're putting *all* the pieces together to see if they work well." And finally, full end-to-end integration testing means, "we're putting *all* the pieces together and testing them exhaustively to ensure they work well."

To put things in terms of cars: when the team building the tires meets with the team building the hubcaps and the team building the rims and the team building the axles, and they make sure the tires fit on the axles and the hubcaps look nice, that's integration testing. When all the teams come together to assemble a complete car, that's end-to-end integration testing. And when they put a test driver behind the wheel and send the car out for a five hundred mile drive at the local track, that's full end-to-end integration testing.

Any engineer will tell you that full end-to-end integration testing is a headache and a half. Things always go wrong, and they're never the things you expect. As a result, full end-to-end integration testing takes a long time -- oftentimes measured in months.

Would you buy a car if the vendor said, "We only started test laps at the track a couple of days ago and it had some serious problems we haven't been able to fix"?

Of course not. But that's exactly what happened with healthcare.gov when it rolled out on October 1.

Secretary Sebelius has been publicly humiliated over the defects in healthcare.gov. She and the President have promised the website will be fixed and will be reliable no later than December 1.

My question is, where will she find the time to do full end-to-end integration testing? Even if all the changes to the healthcare.gov infrastructure are completed November 1, that still leaves only a month for testing to make sure the site works. The contractors who originally developed healthcare.gov were adamant that testing it properly would require months. From my own experience, I am inclined to think four months of testing is about the minimum required.

I'm not a politician and I'm not a healthcare expert -- but I'm a very good software engineer.

The system needs at least four months of testing and it's not going to get it. That means that, come December 1, the best we can hope for is that we will be delivered a new healthcare.gov site which will not have received any significant testing. Rather than being able to point to a record of successful tests, we will instead be asked to take Secretary Sebelius at her word. "Trust me! It works fine now."

Software that has not been thoroughly tested, or has not passed its thorough testing, is fundamentally incomplete.

Healthcare.gov will be fundamentally incomplete on December 1.

There's simply not enough time for it to be tested, and that means there's not enough time for it to be completed.

# # #

Underage Drinking As Human Right? I Don't Think So

October 16, 2013, 3:25 p.m.

Why Bar Owners, Students, Should Embrace Iowa City's 21 Law
This morning's Daily Iowan carries an opinion piece arguing that those whom the law forbids to consume alcohol at any time (those under 21) have been denied their human rights by the Iowa City Ordinance forbidding them to be in places of business, the sole purpose of which is to profit from the sale of alcohol, between the hours of 10:00 p.m. and 2:00 a.m. Blake Whitten, "21-Ordinance Violates Human Rights," The Daily Iowan, Oct. 16, 2013, p. A4. It is reproduced in full at the bottom of this blog essay.

Those urging repeal of the so-called "21" ordinance come at their efforts at arguments for doing so from a variety of directions. I have already addressed the argument that goes, "because the drinking age should be 18 rather than 21, therefore, those under the age of 21 should be permitted to be in bars between 10:00 p.m. and 2:00 a.m." (even though, I would add, for them to drink during those hours is a clear violation of law). "Deeth's Drinking Age: A Reply; 21 -- 'Not Just a Good Idea, It's the Law,'" October 6, 2013. [Photo credit: lionsdenu.com.]

The following was added by me as a comment to the online version of this morning's Daily Iowan column that attempted to argue why the 21 ordinance is a violation of students' "human rights." It was subsequently published by the Daily Iowan as "Letters to the Editor/Online Comments."

Re: 21-Ordinance is Human-Rights Violation
Nicholas Johnson
The Daily Iowan
October 17, 2013, p. A4

There are all kinds of age-based laws and regulations restricting those underage from, among other things, getting married, driving cars, buying guns, performing in porn videos, purchasing cigarettes -- and yes, alcohol. None is considered a human rights violation. See, "Deeth's Drinking Age: A Reply," http://fromdc2iowa.blogspot.com/2013/10/deeths-drinking-age-reply.html

Bars are in the business of profiting from the sale of alcohol. Those under 21 are legally prohibited from buying, possessing or consuming alcohol. The logical, and most easily administered, standard would be to prohibit anyone under 21 from ever entering a bar -- as is the standard in many places.

Instead, Iowa City lives with a compromise that enables bar owners to profit maximize, and those who cannot legally purchase what they have to sell to be in bars for 20 out of every 24 hours each day. Those under 21 are only kept out of bars from 10 p.m. to 2 a.m. It's scarcely "21-only"!

It seems to me the City Council's approach is exceedingly generous to bar owners and their illegally binge drinking students alike, not something either should be protesting.

And since the author raised the "no one over 50 in bars after 10" example, nor is it a denial of my human rights as an old geezer that I have to get my driver's license renewed more often than my middle-aged children do. Someday it may be forcefully taken from me. The state has a right to determine if my driving puts at risk my own safety and that of others.

As John Neff has noted in a comment on the blog essay linked above, "The age dependence of hazardous use of alcohol decreases much faster than a Constant/Age with most of the problems in the 15 to 25 age range. The peak age is about 19, so 21 is a reasonable compromise for the minimum legal age to drink." In short, that's why the legal drinking age is 21. It, like limitations on my driving, is designed to minimize the risk of harm underage drinkers pose to themselves and others.

Meanwhile, 21 remains the legal drinking age. John Deeth has endeavored (earlier on these pages and elsewhere) to make the case for lowering the drinking age to 18. But until he persuades the Congress and Iowa Legislature of his position, (1) keeping those under 21 out of bars is logical, (2) permitting them in bars until 10 p.m. is generous, and (3) leaving them there until 2 a.m. is just asking for trouble -- the trouble we got the last time we tried.

Here is the Daily Iowan opinion piece to which the above is a response:

21-Ordinance Violates Human Rights
Blake Whitten
The Daily Iowan, October 16, 2013, p. A4.
Imagine that we’re debating a law that reads:

“No person, individual, association, corporation, partnership, or club holding a liquor-control license, wine, or beer permit, which authorizes on-the-premises consumption, nor his or her agents or employees shall allow a person who is 50 years or older to enter or remain in the licensed or permitted establishment between the hours of 10 p.m. and closing.”

Of course, restricting the legal right of older citizens to freely associate is ludicrous, outrageous, and completely unacceptable. As fair-minded Iowans, we wouldn’t stand for such a law, however benevolent the reasons advanced by the law’s proponents and regardless of how many community leaders endorsed it. [Photo credit: San-Antonio-Daily.com.]

Replace the words “is 50 years or older” with “who has not yet attained the legal age,” and you have the 21 bar-entry ordinance.

But is discriminating against a younger demographic of Iowa City citizens really the moral equivalent of discriminating against older citizens? Apparently so, according to Iowa City’s own human-rights ordinance enshrined in the city code:

“It shall be unlawful for any person to deny any other person the full and equal enjoyment of the goods, services, facilities, privileges, advantages of any place of public accommodation because of age, color, creed, disability, gender identity, marital status, national origin, race, religion, sex or sexual orientation.”

Apparently staff brought this conflict to the attention of the city recently. In true Orwellian fashion, the council has decided to redefine human rights to specifically exclude the 21-ordinance as a human-rights violation. Poof. Age no longer matters.

City councilors chose a path of political expedience and hypocrisy. But what about the rest of us, those who don’t have political careers to protect or the need to publicly save face? Do we fold human rights neatly into a box that we call the law, or do the inalienable nature of such rights impel us to reconsider the law itself?

I wish that Sally Mason understood the irony that each time she extols the “nanny state” by promoting the 21-ordinance in a speech to the student council or in a press interview, she actually works against instructors who demand personal responsibility, hard work, and academic excellence in the classroom. Students rightly perceive the hypocrisy of the mixed message between rights and responsibilities: “Study hard, but be home in bed by 10 o’clock.”

One issue rarely mentioned is the example we’re setting for our ever-growing contingent of international students, many of whom hail from countries whose governments are considered less than democratic. These students are watching: Is America still the land of the free and the home of the brave? Are vulnerable minorities (in this case, young adults) treated with dignity and respect?

I call on students to vote YES on Public Measure G to affirm that you matter. (It’s especially easy for in-state and out-of-state students to register and vote early at campus locations before Oct. 25.)

Vote YES for your fellow students’ dignity and self-respect. Vote YES to show your international colleagues (international students) that the American dreams of freedom and equality are alive and well, right here in Iowa City.

Much has been debated about safety. The consensus seems to be that downtown is quieter but that house parties are better attended since 2010. But if the goal is a quiet downtown at the expense of freedom, then let’s be fair about it by passing a curfew that forbids everyone from being downtown after 10 p.m. Short of that, and in the great Iowan tradition of grace and fair play, let’s remove the human-rights violation known as the 21-ordinance. Vote yes on Public Measure G.

Blake Whitten is a lecturer in the Department of Economics and the Department of Statistics.

Deeth's Drinking Age: A Reply

October 6, 2013 10:30 a.m.

21 -- "Not Just a Good Idea, It's the Law"
Reluctantly, I must part company with John Deeth -- for whom I have enormous respect when it comes to his political work and judgment -- on the matter of underage drinking. (His original column, and his response to this blog essay, appear below in their entirety.)

There is a long list of reasons why.

A drinking age of 18 is something that he and a great many others support -- including those whose motto is "Iowa City: Where Great Minds Drink Alike." [Photo credit: Nicholas Johnson.]

Teach Children Respect for Law: Follow It or Lobby to Change It. So far as I'm concerned, those who would like to change the law are welcome to try. It is not my purpose on this occasion to make arguments for, or against, reducing the legal drinking age to 18. Thus, assertions such as, "If you're old enough to fight a war, you should be old enough to have a beer," are irrelevant. From my perspective, arguments for changing the law are unpersuasive as reasons for violating the law.

Perhaps it is the lawyer in me, but I think it is irresponsible, and poor parenting, to tell our children, as John Deeth writes, that "It's tacitly OK to start drinking in your late teens, as long as you don't get caught." Kids have enough inclination as it is to be bound by no higher moral and ethical standards than whatever is required to avoid getting caught. Are there any laws, regulations, or religious values that John believes one should comply with, whether or not one will get caught? If so, he has failed to provide us his standard by which we might figure out what they are. From this perspective, young men might also be advised, as some seem to believe without the advice, that "It is tacitly OK to start raping in your late teens, as long as you don't get caught."

It's Not True "You Can Only Learn From Experience." I am similarly troubled with his unqualified assertion that "you can only learn from experience." Does he really believe that the only way young college women can only learn of the possibility of pregnancy from drunken, unprotected and unwanted sex is to become pregnant? The only place students can learn of the risks of toxic blood alcohol levels is in an emergency room? The only way they can learn of the possibilities of killing friends and themselves in auto accidents while driving drunk is by doing so?

I thought the human species had options. I thought one of them was K-12 and college education. What a multi-billion-dollar waste education turns out to be if "you can only learn from experience." (And see the comment on this blog from "Anonymous," below, a 21-year-old who seems to have found other paths than "experience" to knowledge regarding alcohol.)

Our "21 Only" is Neither "21" Nor "Only" -- It is a Compromise, and One Bar Owners Should Embrace. From the standpoint of the law, and common sense, what we call in Iowa City a "21-only" law is far from what its name suggests. It is a very generous compromise between what the law might require, and John's "18-only" position, one that ought to be gratefully grabbed by him, bar owners and students seeking the nation's "Number One Party School," rather than being opposed by them.

"Smothers Brothers Comedy Hour" head writer Mason Williams' multiple talents include a knack for one-liners, one of which is: "Here's a ball; don't bounce it."

Think about it. The law forbids those under 21 from purchasing, possessing, dispensing, or consuming alcohol. Bars are business establishments designed to maximize income from the sale of alcohol. That's not to say that nothing else goes on there, or that no one enters a bar except for those whose sole purpose is the consumption of alcohol. It is only to say that sales of alcohol are bars' exclusive business purpose and source of profit. Clearly, any activity that would substantially reduce profits would probably not be permitted to continue for long.

The common sense approach, and the law in many jurisdictions, would be to forbid anyone to enter a bar who cannot legally engage as a customer in the business in which that bar is engaged. That would be "21 Only" -- only those 21 or older would be permitted in bars.

Our "restriction," by contrast, only prevents underage students from being in bars for four hours a day: from 10:00 p.m. to 2:00 a.m. They can go into bars during the early morning hours (when bars are open on game days), they can go in throughout the day, they can go in at night until 10:00. Whatever one can say of such a law, it is clearly not "21 Only."

So why do bar owners and some students want underage students in bars between 10:00 and 2:00? Because underage students want to drink alcohol then (in the many ways they find to do so), and the bar owners want the profits.

Just as it is not my purpose to make arguments why the drinking age should be kept at 21, rather than lowered to 18, similarly I am not making an argument for keeping (or repealing) the law that forbids underage students to be in bars after 10:00 p.m.

All I am pointing out is that our out-by-10 law is not "21 Only," as it permits underage students to be in bars 20 out of every 24 hours a day. This standard seems to me a quite reasonable compromise between keeping them out entirely, and letting them drink 24/7.

We Have Already Separated the 'Alcohol Abuse' and 'Underage Drinking' Issues. John Deeth writes that we need to, "separate the 'alcohol abuse' issue from the 'underage drinking' issue." Aside from the PAULA-only violations (possession of alcohol under the legal age), and even for most of those, it seems to me that what Iowa City police are already doing is precisely what Deeth is proposing.

John says we must "recognize the rights and wishes of young adults." He seems to be trying to turn a violation of law into a "right." Even if there was a "right" to violate this law (underage drinking), hopefully even John Deeth would acknowledge that there are no rights to violate the laws that are violated as a consequence of underage drinking: driving over the 0.08 blood alcohol level, rape, fights, property damage, public urination, and other behavior of the young inebriated. See, "'GO, HAWKS!' -- Just Not in My Yard."

It's relatively unlikely in Iowa City -- not impossible, but relatively unlikely -- that any underage students who have consumed modest amounts of alcohol will be arrested, if they are otherwise behaving as rational, sober adults, they are not walking around with open containers, and they are not engaged in other varieties of law violations or obnoxious behavior.
_______________

"Separate Alcohol Abuse and 'Underage' Issues"
John Deeth
Iowa City Press-Citizen
October 6, 2013, p. A6
America has a dysfunctional coming of age ritual with alcohol. It’s tacitly OK to start drinking in your late teens, as long as you don’t get caught. That makes access to alcohol, while not difficult, still a valuable commodity for the coming-of-age person, emphasizing the link between adulthood and alcohol and encouraging over-use when the “forbidden” (nudge wink) fruit is available.

The college drinking culture cost me a point off my GPA and my first serious relationship. My own difficult experience with alcohol tells me you can only learn from experience. That’s why I so adamantly oppose the 21 drinking age and why I voted “yes” to repeal the 21-only ordinance.

21-only supporters try to claim that this fight is not about the drinking age. But by refusing to engage on this under-discussed issue, they perpetuate that cultural dysfunction and lose credibility with the same young people they’re patronizingly trying to “protect.” That makes it harder to address the binge drinking problem they claim to care about.

Nearly every politician I know privately says the 21-only drinking age is unworkable. Some even admit it’s unfair to the young adults whose support they eagerly seek in general elections. But almost none say so in public. The city-university establishment stance on this is that the end, cracking down on the No. 1 Party School, justifies the means.

For almost all purposes besides alcohol, 18-year-olds are considered adults. In 1971, our nation made a wartime decision, by the overwhelming majority that a constitutional amendment requires, that the age of adulthood was 18. The drinking age is nowhere near as enshrined. It’s just legislation. It can be changed.

Even an assistant city attorney now admits that the 21-only ordinance has human rights implications. But instead of addressing that by recognizing rights, the city wants to redefine rights to get their desired outcome.

Rights fights are uncomfortable sometimes. You have to stick up for unsympathetic characters like Larry Flynt and Illinois Nazis, and Vodka Samm and self-interested bar owners. (Yet self-interest is OK if you want to keep beggars away from your jewelry store.) Rights aren’t less important just because the right in question is less high-minded.

Some people in this town would be happier if the university were nothing but athletes, tenured faculty, invisible grad students who never leave the lab and the cultural amenities usually seen only in much bigger cities. But without our students, without those immature and inconvenient freshmen and sophomores, there is no Iowa City.

The young adults who drive Iowa City’s economy want and deserve adult fun. I’m not pretending that 19-year-olds will go to the bar “just to dance,” or sip on one drink while earnestly discussing their literature class in a quiet pub. They’ll make mistakes.

That’s the point. “We don’t want to go back,” says 21 Makes Sense (sic), yet their vision looks back to the we-know-what’s-best-for-you attitudes of the 1950s. Instead, we should encourage young adults to make their own decisions and take responsibility.

Only when we separate the alcohol abuse issue from the “underage” (sic) drinking issue, and recognize the rights and wishes of young adults, can we Old People be taken seriously on the very real problem of binge drinking.

And voting “yes” to repeal the 21-only ordinance is a good first step toward the conversation about the drinking age we need to have.

Iowa City grandfather John Deeth turns 50 this year. He had his last drink on Aug. 25, 1985.

'GO, HAWKS!' -- Just Not in My Yard

October 5, 2013, 2:30 p.m. Homecoming's Public Urination
The Athletic Department needs to put at least a half-dozen porta-potties along Melrose Court, from its intersection with Melrose Avenue to the barricade at the intersections of Melrose Court, Myrtle Avenue and Greenwood Drive.

It's Homecoming.

For some football fans Iowa City is home. For others a second home. For still others it's just the home of Kinnick Stadium.

Unfortunately, apparently some fans came from a place where "home" means you can pee on your neighbors' lawns whenever you want. [Photo credit: Nicholas Johnson.]

It's nice that the Athletic Department can drop 70,000 folks into a tiny residential neighborhood designed for about 200, and that the crowd can feel at home. Sharing the football Saturday with friends. Tailgating. Throwing a football around. Playing the beanbag game. The colorful clothes, the music, the chatter.

What's to complain about that?

I am a resident of that neighborhood (in the house I lived in from 1941 to 1952, and returned to in 1989). So far as most of the fans are concerned, there's little, if anything, about which I complain. They are friendly, fun-loving, and respectful.

Unfortunately, that can't be said of all.

I have often written in the past about the trash that gets left behind. Most of it is left out in the open and can be easily picked up by the neighbors. The two exceptions are (1) the broken glass created, and left behind, by those who enjoy throwing beer bottles into the air just to watch them crash and shatter on the sidewalk, and (2) those who think it tidier to throw trash under bushes, out of the way, perhaps not realizing that means we need to get down on our bellies and crawl under the bushes to get it back out. [Photo credit: Nicholas Johnson, 2012.]

In fairness, early Sunday mornings these days there seems to be less trash throughout the neighborhood than there used to be. There's an organized trash collection and removal effort. This is in addition to the valuable service provided by those who have always gathered the visible cans and bottles and carried them off on their backs, in large 300-container bags, in exchange for the redemption money welcomed by those down on their luck.

But the public urination business is another matter. It's really offensive, and quite common. The two pictures embedded in this blog essay were taken within 10 minutes of each other while my wife and I were trying to enjoy breakfast on our back patio this morning. [Photo credit: Nicholas Johnson.]

I've never called the police to report it. It would never have occurred to me to do so. But two weeks ago, during the Western Michigan game, I noticed an Iowa City Police car parked in front of the house and went out to see what was going on. The friendly officer asked if I lived here. I said I did. He asked if I had given students permission to urinate in my yard. I acknowledged that I had not. "Just wanted to make sure," he responded, "because I just gave a guy a ticket for public urination." What a unique experience it was for me; the first time since 1941 that anyone had ever been ticketed for peeing in our yard (so far as I'm aware).

As we continued to talk, I noted that a little earlier I had asked three or four guys who were urinating on my front lawn to please go down the street to the Myrtle Street Parking Lot, where there are usually a dozen or more porta-potties, and how they'd argued with me. Their analytical position seemed to derive from their possession of an entitlement to pee wherever they wished. The officer explained that I should not expect to have reasoned discourse with a drunk.

OK, he's right. But I do expect reasoned discourse with the Athletic Department. The football program pulls in (and spends) tens of millions of dollars each year from television revenues, ticket sales, and gifts. This morning's paper explains that it spends over $200,000 on paying the dozens of regional law enforcement officers needed for security. Tara Bannow, "About a Dozen Agencies Protect Gamedays; UI Spent About $210K on Security Last Season," Iowa City Press-Citizen, October 5, 2013, p. A1. It can put up porta-potties by the dozen when and where it wishes. Why can't it put up a half-dozen where its paying customers, and neighborhood residents, have to put up with the externalities created by 70,000 Hawkeye fans -- including their public urination?

Oh, and sorry about the 26-14 outcome today.

# # #

Paying By The Mile Is A Terrible Idea

September 25, 2013, 9:00 a.m. (And see, "Gas Tax Critics: A Response," Dec. 10, 2013.)

The Gasoline Tax Is Our Friend

Don't it always seem to go
That you don't know what you've got
Till it's gone
-- Joni Mitchell, "Big Yellow Taxi"

As children we used to sing "London Bridge Is Falling Down." It involved a land far away, a fantasy, because none of us had ever heard of a bridge actually falling down.

Now we have.

We're told many of Iowa's bridges are in need of replacement or repair -- including our own Park Road bridge over the Iowa River. Roads, too, are crumbling and in need of replacement.

It all costs money. How to pay for it? For years it's been paid for with the federal and state gasoline taxes. Today "tax" is one of our few three-letter dirty words. Political rhetoric permits a discussion of "taxes" disconnected from a consideration of what we buy with them. Taxes are, after all, just another way of buying stuff we need -- like roads and bridges. Paying nothing for roads and bridges is not an option. One way or another we'll either pay for them or we won't have them. But in order for the gasoline tax system to work, the taxes need to be raised to a level that recognizes both inflation and current need for funds. Politicians who have convinced their constituents that taxes are evil are reluctant to do this, and are looking for alternatives.

Current proposals to substitute a kind of mileage tax, or toll road, for gasoline taxes are, unfortunately, gaining favor. Before these ideas go much further, it's time to explain why they are little more than a shell and pea game designed to further enrich the oll and automobile manufacturing industries.

One of the primary virtues of the gasoline tax is that it is what's called a "user fee." The more you drive on the roads, the more gasoline you'll buy, the more gasoline tax you'll pay, and the more you'll contribute to the building and maintenance of the roads you use. Unlike the railroads that must pay the whole cost of building and maintaining their roadways, the trucking companies have all of us pitching in to build their roadway system. [Photo credit: multiple sources.]

Ah, say the mileage fee advocates, but under our proposal the amount paid by drivers would also be tied to their usage.

To which I reply, "Yes, but . . .." Yes, but look at all we give up in the process. Abandoning the gasoline tax system, as Joni Mitchell reminds us, is going to leave us with the realization that we didn't know how good we had it before it disappeared.

Crumbling roads and falling bridges are not our nation's, and our state's, only challenges. (1) All Iowans, but especially our farmers, are discovering what "climate change" means in our day-to-day lives and business operations. We need to do everything possible to reduce our use of fossil fuels. (2) And, to the extent our dependence on fossil fuels will continue, we want to become as energy independent as possible. When "our oil" somehow gets beneath the sands of Middle Eastern countries, it costs us trillions of dollars, and thousands of lives, for our military to go get it out for us.

There are many reasons why the gasoline tax is not creating the revenue we need to keep an adequate vehicular infrastructure up to snuff. Mostly it's the failure to raise it to the levels required by inflation.

But it's also a good news, bad news story. You want the good news first? OK.

There are three other factors at play. (1) Higher gas mileage cars and trucks, (2) hybrids, and (3) electric vehicles (along with some other alternatives) all use less gas per mile than the averages when the gasoline tax was put in place. As a result, we are both (a) putting less volume of greenhouse gases into the environment than we otherwise would be, and (b) are less dependent on foreign oil supplies. There are many motivations and forces that support the growing interest in these three alternatives to low mileage cars and trucks, but a major one is the price of gas (including the gasoline taxes).

That's the good news. The other side of that coin is that, notwithstanding the benefits of our using less gasoline, the less gas we use the less revenue the gasoline tax produces, the less money we have for roads and bridges.

So why not substitute a mileage charge? There are many reasons. But whether you eliminate the gasoline tax, reduce it, or hold it at present levels, one consequence is that doing so reduces the marketplace incentive to produce and purchase better gas-mileage vehicles, including hybrids and electrics -- which is something we should want to encourage, not discourage.

By raising the gasoline tax to the levels necessary to maintain our road and bridges infrastructure we can actually increase the incentive to fuel efficiency.

It is difficult to change an entire nation's culture and habits -- as we have seen with tobacco use. But note that, in that case, we used all of Larry Lessig's four options for modifying human behavior (law, norms, market, architecture). We have laws that prohibit smoking in some places. The norm is that smokers ask permission to smoke in your presence (or simply refrain from doing so), rather than assuming it is of course OK, because, after all, "everybody smokes." And convenience stores have moved the cigarettes behind the counter, where they are more difficult for teenagers to steal (an "architectural" change). But one of the biggest factors has been a marketplace modification: teenagers are much less likely to take up smoking at $7.00 per pack of cigarettes than at $2.00.

When you pay by the mile, you can drive as low mileage a vehicle as you want -- a spiffy Hummer (some models get 9 mpg in city) or an inefficient old vehicle. You'll still pay more per mile for the gas, but at least you won't be paying a tax on top of that to maintain your roadway.

Another disadvantage to the mileage charge is the sheer administrative complexity of operating such a system, with its much wider array of possible fraudulent evasions than available with the gas tax.

My proposal? Continue to fund road and bridge construction and maintenance with gasoline taxes. Raise the tax rate to whatever level is necessary to do that. Continue to give the more efficient, and alternatively-fueled, vehicles the advantage needed by any new, socially beneficial technology when trying to change culturally embedded habits and (in the case of electrics' need for battery recharging stations) infrastructure. (That is, the advantage of paying less, or no, gasoline tax -- similar to what we've done during the early years of the Internet.) Years from now, when the alternative vehicles industries, and their necessary infrastructure, have crossed the threshold that make them sufficiently popular and profitable to stand on their own, design any one of a number of possible approaches for collecting a road-maintenance contribution from alternatively fueled vehicles.

But, please, think long and hard before adding, or substituting, a mileage fee system for the gasoline tax. Let's not wake up to discover that, "You don't know what you've got until it's gone."

# # #

Is 'Moderately Honest' Enough?

September 20, 2013, 6:30 a.m.

When Is an Elected Official's Behavior Disqualifying?

Moderation. Avoid extremes; forbear resenting injuries so much as you think they deserve.

-- Benjamin Franklin, The Autobiography of Benjamin Franklin (1791), p. 82

A moderately honest man, with a moderately faithful wife, moderate drinkers both, in a moderately healthy house: that is the true middle-class unit.

-- George Bernard Shaw, Maxims for Revolutionists (1903)


Background. An Iowa City attorney, upon discovering that he had overlooked the need to request documents from opposing counsel in a timely fashion, made a series of mistakes. He predated a letter of request, sent it to opposing counsel, and when called on it lied to the judge. In our recently digitized world, the letter contained code that recorded and revealed the actual date of the letter's creation.

The legal profession holds its members to detailed and high ethical standards embodied in formal rules and normally enforced by a state's supreme court. See Iowa Rules of Professional Conduct. This lawyer's behavior was brought before the Iowa Supreme Court Grievance Commission, which has recommended his license be suspended for six months. The Iowa Supreme Court can modify that, but it is clear he has been severely punished -- with the suspension of his license, the need to resign from his law firm, and the emotional and professional damage as a result of the widespread publicity surrounding the case.

Although there is no doubting, or excusing, the seriousness of the charged offenses, especially when done by someone within the legal profession, it is also notable for what it did not involve. He did not enrich himself at another's expense. He caused no firearm or other violence. He did not disparage anyone's reputation but his own. He didn't engage in sexual misconduct. His actions could not have benefited him in any way -- aside from covering up his forgetfulness. Indeed, his primary motive may have been to better serve his client. Obviously, his actions failed on both counts, as should have been obvious to him ahead of time.

Normally, there the matter would have rested. A local lawyer, caught in an ethical violation, has his license suspended. In a town the size of Iowa City, that is front page news: Adam B. Sullivan,"McGinness could face license suspension; Commission finds School Board member falsified documents, recommends 6-month suspension," Iowa City Press-Citizen, September 5, 2013, p. A1. But that probably would have been the end of it. Actually, for two weeks it was the end of it. No more big stories; no editorials.

But the lawyer was also a school board member. And so gradually some community members, and journalists, began asking themselves, and others, whether it was appropriate to have someone serving on the school board who had been sanctioned for this ethical breach by his professional colleagues. There was an editorial in which the paper acknowledged that, "In the two years he has been in office, [he] has been a good School Board member. In meetings, he consistently brings his A-game and shows he has done his homework. He’s available and approachable to his constituents. And the board benefits often from his training as a lawyer." It did not directly ask for his resignation ("we’re of two minds on whether to call on [him] to resign immediately"), but noted "questions": "Ethics violations raise questions about McGinness," Iowa City Press-Citizen, September 18, 2013, p. A13. And the next day there was a follow-up story on the responses from the school board members and others ("Iowa City Community School Board members aren’t saying much about a fellow board member’s legal woes that first were reported two weeks ago.") Adam B. Sullivan, "Legal woes bring mostly silence; School Board member: McGinness' troubles not connected to district," Iowa City Press-Citizen, September 19, 2013, p. A1. [Photo credit: Nicholas Johnson; not the current board members.]

And that is what prompted this op ed column in the Press-Citizen. It was stimulated by the facts and issues in this case: "Should the fact of a individual's falsifying documents and lying about it, in his private capacity as a lawyer and wholly unrelated to his school board duties, be grounds for his removal from a local school board?" But that is not it's focus, which is directed rather more generally at an exploration of the factors that one might appropriately take into account when evaluating the consequences of behavior that violates community (or professional) norms. If, as George Bernard Shaw is quoted above as suggesting, the advice that we should "be moderate in all things" means that most of us are satisfied to be "moderately honest," how much higher a standard is it reasonable for us to set for our elected officials -- especially with regard to matters unrelated to their official responsibilities?

Working Our Way Through the McGinness Kerfluffle
Nicholas Johnson
Iowa City Press-Citizen
September 20, 2013, p. A7
A Frenchman, asked why he kissed women on the hand, replied, “Because you have to start somewhere.”

But where should one start with the porcupine of prickly issues emerging from the kerfluffle surrounding Jeff McGinness’ difficulties? There’s little about it you’d ever want to kiss anywhere.

In law professor fashion, I’m not offering answers – just questions. McGinness, school board members, citizens, the Press-Citizen -- all of us need to think this through for ourselves.

But I do see some issues.

How should we go about judging what is, and is not, forgivable in others? Are there any normative principles? Or is every case a one-off?

We can start with Iago’s observation, “he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed.” Othello, Act 3, Scene 3.

Reputation is a valuable possession. Corporations put a dollar value on goodwill. Spreading falsehoods is defamation. The unnecessary spread of truth can also be harmful. At a minimum, we should think twice before speaking ill of others.

Deserved or not, the publicizing of one’s faults is itself a serious punishment.

The forms of expressing disapproval extend over quite a range. It can take the form of a private thought, a whispered comment, public speech, or newspaper editorial. It can include a demand for resignation, or other punishment.

Suppose the irrefutable facts were that Governor Branstad regularly instructed his drivers to speed. (His Lt. Governor said they have a tight schedule – reminiscent of President Nixon’s explanation to David Frost that, “When the President does it, that means it is not illegal.")

Would it be reasonable, or fair, to try to bring about his removal from office for this behavior? If he also served on a church’s board of trustees, should he be asked to resign?

Does disapproved behavior at work warrant harsher penalties than if done in a bar, or at home?

Is it less bad if no one has suffered any physical, financial or reputational harm – aside from the perpetrator?

Should we distinguish between a weekend problem drinker who’s a top employee, and one who shows up drunk, or drinks at work?

How serious would you consider a coach who covers up a valued player’s crimes? A businessperson who lies about their “need” for a TIF? A professor who raises the failing grade of an athlete to keep him eligible? The university’s administrator who requested she do so? Someone who files taxes late, and predates the check? A church official who moves a pedophile minister to another church? A negligent doctor, threatened with a malpractice suit, who forces his nurse to lie? An administrator who is known to be condescending and mean to store clerks, waiters, and trades persons working on his property?

Should these facts, if sufficiently proven, disqualify those persons from serving on the board of a local, non-profit, volunteer organization?

Does it make a difference whether a financial vice president embezzles funds from her company, or as treasurer of her church? What if she had an off-duty ethical lapse wholly unrelated to the kind of work she does? In short, does it make a difference that the wrongdoing involves a personal quality required by her job? That it was done elsewhere?

How far can one indiscretion fairly be stretched to general conclusions about character? During a trial, unless a party or witness raises character issues, there are limits on the introduction of past derelictions. Of course, in our day-to-day lives we have neither the resources nor the restraints of trial lawyers. One lie may not legitimately make one “a liar.” But we recall “fool me once, shame on you; fool me twice, shame on me.”

Finally, we’re voters. We can vote for or against elected officials for whatever fool reasons we want. But we’ll feel better about ourselves if we’ve been thoughtful and fair in our judgments.
_______________
Nicholas Johnson, a former member of the Iowa City Community School Board, teaches at the University of Iowa College of Law and maintains www.nicholasjohnson.org and FromDC2Iowa.blogspot.com.

# # #

School Board Election: Whom to Vote For?

September 9, 2013 2:15 p.m. [If you're looking for "Syria: Moral Imperatives and Rational Analyses," Click Here.]

Nine Candidates, Three Positions; How Can We Benefit From All?


A Win-Win Advisory Board for District
Nicholas Johnson

Iowa City Press-Citizen, September 5, 2013, p.A7

Be sure to vote Tuesday for Iowa City Community School Board.

OK; but for whom?

We are blessed with this year’s offering: nine good choices. Each brings at least one quality that would benefit our board. [Photo credit: KWWL-TV; Iowa City Community School District Board, Feb. 5, 2013]

Study what the Press-Citizen brings us about them. There may be reasons for your preferences.

If you want a steady-as-she-goes board member — responsive to community pressure, soft spoken, able, collaborative — some candidates’ training and experience suggests they might be, by your standards, marginally preferable to others.

If you want a shake-’em-up board member — innovative, constructively abrasive, researching and advocating best practices, willing to take on the administration and special interests — you may find others marginally preferable.

If you think, however significant the district’s challenges and opportunities may be, the first task before taking up that agenda is for board members to understand board governance — the role of a board members and their interaction with the administration — there may be others who appeal to you.

But there’s no bad vote; no candidate who needs to be avoided at all costs.

When I was a School Board member, I used to say, “you may not get any pay, but at least you get a lot of grief.” Anyone who cares enough about K-12 education to be willing to serve deserves our encouragement and thanks.

It is mathematically impossible to put all nine on the School Board and still have a board of seven members.

So how about, this year, we create the opportunity to benefit from all of them, with a “School Board Advisory Board”?

No matter who wins, there will be six who don’t. There’s no way their votes on board business could be counted legally. Only elected board members can vote. But their comments at board meetings, and revealing how they would have voted on items, could be a significant contribution to board discussions and outcomes. Whomever they may turn out to be, it seems a shame to lose their commitment, enthusiasm and obvious abilities following Tuesday — if they would be willing to serve in that way.

Just a thought.

_______________
Nicholas Johnson
Iowa City

# # #

Syria: Moral Imperatives and Rational Analyses

September 4, 2013, 9:15 a.m.
Spotting the Issues

"The fundamental shift in the character of war is illustrated by a stark statistic: in World War I, [for every] nine soldiers [killed there was one] civilian life lost. In today’s wars, [for every nine soldiers killed in battle] it is estimated that [90] civilians die . . .."

-- Greenberg Research, Inc., The People on War Report, International Committee of the Red Cross, 1999, p. iii; from "Civilian Casualty Ratio," Wikipedia.org.

"My brother need not be idealized, or enlarged in death beyond what he was in life; to be remembered simply as a good and decent man, who saw wrong and tried to right it, saw suffering and tried to heal it, saw war and tried to stop it."

-- Edward M. Kennedy, "Address at the Public Memorial Service for Robert F. Kennedy," June 8, 1968, American Rhetoric Top 100 Speeches.

[Chart credit: Wikipedia Commons, "Casualties of the Syrian Civil War", Wikipedia.org.]

We are genetically programmed to be physically and emotionally moved by suffering. "I feel your pain" is more than politicians' casual rhetoric. Animal rights activists are not the only ones among us with empathy for suffering animals, whether a beached whale or dolphin in the wild, or a pet cat or dog in our home. Especially is this so when it is humans who are hurting. We feel a special outrage when children are unnecessarily suffering from disease or starvation, and worst of all when they are the victims of deliberate, senseless and inhumane infliction of violence by adults. Photos move us more than text, videos more than still photos, and personal witness most of all. [Photo credit: multiple sources.]

Moreover, when there is the possibility that we might be able to do something to alleviate the suffering of others, there is at least a part of what Ted Kennedy saw in his brother Robert in all of us. We come together to try to right wrong, heal suffering, and stop war.

Indeed, many would say we have a moral, religious, or philosophical obligation to do so -- sometimes with the possibility of great harm to ourselves. That's why a swimmer may dive into a river to save a drowning stranger, or quickly remove someone from an onrushing car or train, or burning building. It is also a part of what motivates the vicarious helping, in the form of charitable giving by individual Americans -- for 2011, two-thirds of the roughly $300 billion total contributions, 12% of which went to human services, with a 15% two-year increase in giving to international affairs organizations. "Charitable Giving Statistics," National Philanthropic Trust (which see for additional data).

And so it is with our feelings for the people of Syria.

We spend more on defense than the next ten countries combined. If it was possible for us to use that overwhelming military might to heal the Syrian people's suffering, and stop their war, I for one think we would have a moral obligation to do so -- however unpopular that view may be in some quarters. There are already 90,000 dead, and two million refugees from this war. We may not have the responsibility, or resources, to be "the world's police force." But I do think, when it is within our power to prevent the killing of tens of thousands more, we have a moral obligation to do so, given that we still remain the world's most powerful nation at this time in history.

The problem on this occasion, as with so many in the past and future to come, is that saving their lives is not within our power. Indeed, it is highly likely that our intervention, whether with a single missile strike or a prolonged bombardment, would increase rather than decrease the suffering and death of the Syrian people.

Of course there are many other issues surrounding President Obama's desire to send missiles to Syria. I may later itemize some of them below. Although there is a case to be made, and that the Administration has attempted to make, for this action, I do believe that any rational benefit-cost analysis finds that case decisively outweighed by the likelihood of its doing more harm than good, with risks and costs orders of magnitude greater than any possible benefits.

But that will have to wait for later. This blog essay is deliberately narrowly focused on the moral issue.

There may be, and often are, cases in which the moral obligation to prevent human death and suffering is politically, or emotionally, overridden by other considerations -- such as the Allies decision to fight World War II. As a result of that decision, some 38 to 55 million innocent civilians were killed, many of whom might have lived had Hitler been left free to take over all of Europe and more. I do not believe a civil war within a single country, at least not today's Syria -- one that has neither attacked us, nor shown present intention and ability to occupy surrounding countries, Nazi style -- is such a case.

My conclusion: If it were possible for us to stop the Syrian civil war, prevent the deaths of thousands more, and the continued suffering of hundreds of thousands more refugees and others, I think we would have a moral obligation to do so. When that is not possible, as I believe to be the case, especially given the additional harm that would probably result from our intervention, the same rationale and analysis leads me to the conclusion that we have a moral obligation to stay out.

[More on other issues, below.]

# # #
The Other Issues
Let's put aside the moral issues for the moment, however you came out on those, and look at some of the other troublesome aspects of this venture.

A Rational Analysis of the Military Option.

One way into war, seemingly popular with some elected officials, is shouting slogans like "USA! USA!" or "Nuke 'em!" or "Let's kick some butt!" or "These colors don't run!" While energizing and possibly emotionally satisfying, it lacks something as a precise analysis.

An alternative is an approach I used in a column prior to the Iraq War: Nicholas Johnson, "Ten Questions for Bush Before War," The Daily Iowan, February 4, 2003, p. A6. Not all of those ten questions are specifically applicable to sending missiles to Syria, of course, but the approach is similar.

1. What is our goal, our purpose, in intervening in Syria? As I used to put it to my school board colleagues, "How would we know if we'd ever been successful?" Our purpose seems to have included, at various times, regime change, humanitarian aid for the innocent suffering Syrians, providing weapons to the insurgents, creating a no-fly zone to protect Syrians from aerial attack, punishing the leadership for gassing its citizens while warning other nations never to do it, and most recently, knocking out the government's command and control facilities -- as the Senate puts it, "shifting the momentum on the battlefield," over a period of 60 days with a 30-day extension.

It's hard to critique a proposed attack of some kind on Syria without knowing the nature of that attack, the purpose it's designed to serve, and how long it's gong to last.

2. Whatever the answers to those questions may be, once those answers are obtained the next question is, "Why do we think the military exercise we've envisioned will produce the result we desire?" Are there alternative approaches that might be more effective, cheaper, and less likely to have negative consequences -- diplomacy, economic sanctions, charging Assad with war crimes in the International Criminal Court?

3. After our attack, will the people of Syria be better or worse off than they were before we took whatever action we end up taking? In particular, to the extent our goal is regime change, what is the likelihood that the new, replacement regime will be better for the Syrian people -- and us? Indeed, given all the disparate groups jockeying for dominant control, and likely to continue fighting if and when Assad is ever replaced, what are the odds of any "regime" emerging?

4. Do the American people, and their elected representatives, support this military action, and if they do now, how long can that support be sustained? Do the people of Syria? Does the Obama Administration have the support of the United Nations, NATO, the Arab League? It would appear not. The British House of Commons voted to stay out. Polls indicate most Americans are opposed, and the House of Representatives is unlikely to authorize the President's new "war." The Russian and Chinese veto pretty much prevents any United Nations action. The "Arab street" seems at best split over the desirability of "Western intervention."

5. The total costs of the Iraq and Afghanistan Wars, including lifetime support of those who've served, looks something like $2-3 trillion. What are the economic and political consequences of adding to that debt?

6. Once we have identified our goal, and if it involves the betterment of the Syrian people, and if we are successful in achieving it, what will be required to secure and maintain those gains? How long will we need to be involved in some way, even if it does not involve American military personnel inside Syria? It's not clear whether the promise to not put any "boots on the ground" only refers to "combat troops," or really means we will keep all American CIA and military personnel out of Syria.

7. And finally we come to "exit strategy." How do we get out? What happens when we do? Why will our gains, our achievement of our goal (if it was ever precisely identified and ultimately reached), be maintained after we are no longer there?

Inconsistencies and Other Troubling Features of the Operation

8. Why now? Put aside the chemical attacks for the moment. Syria's President Bashar al-Assad has killed 90,000 of his people the old fashioned way. If a part of our motivation is to protect the Syrian people from their government, why did those deaths not move the Administration to action months ago? Why not wait for the report of the UN investigators regarding the cause of death, and whatever evidence can be found regarding who was responsible for it?

9. Now let's address the chemical warfare. I get it; that's a violation of international law. Conventional weapons are usually legal under international law. Personally, I find killing your own people, innocent civilians, to be pretty disgusting regardless of the means used. But even if the only thing that moves you to action is the use of chemical weapons, why was that not a concern the 14 prior times he used them? Why were we so totally unconcerned when Saddam Hussein used them on his Kurds and the Iranians, and suddenly concerned enough to go to war now? Why do we think it's OK for us to possess them?

10. What's with this "red line" of Obama's? If he's going to throw down challenges, doesn't he realize he needs to be prepared to act, and quickly, when Assad crosses his line? Why didn't he act the first time Assad used chemical weapons once the red line was drawn? How much of the "urgency of now" with regard to this attack on Syria is driven by the president's personal embarrassment from his new-found awareness that failing to follow up on threats is extraordinarily damaging to our national interests? Isn't this behavior reminiscent of President George W. Bush's complaint that Saddam Hussein "tried to kill my daddy" -- injecting a president's personal involvement, reputation, or embarrassment, into what ought to be depersonalized analysis?

11. Beyond a reasonable doubt. It is not enough for a jury to find a defendant guilty of a routine crime because "he probably did it." They need to find his guilt proven "beyond a reasonable doubt." Based on the photos and video we've seen, the likelihood is that chemical weapons were the cause of the recent death and suffering. But when it comes to finding Assad "guilty," basically all we have is "he probably did it." That may be enough for some responses, like diplomacy, and our intuition is certainly more solidly grounded in this case than when the last president wanted to go to war with Iraq because it was a "slam dunk" that Hussein had weapons of mass destruction. But is it enough to go to war?

12. Congress. So the president is asking Congress to sign off on his war. Never hurts to follow the Constitution from time to time. It would be nice if presidents would always do that. (It would also be nice if presidents and Congress would impose extra pay-as-you-go taxes to pay for wars before the wars, rather than putting them on our grand children's credit cards.) But I'm not sure it's accurate or fair to say congressional approval, if it comes, can be fairly said to represent the support of the American people. For starters all but about 10-to-15% of the American people are disgusted with Congress. And roughly two-thirds of Americans (depending on how they are asked the question) oppose going to war with, or lobbing missiles over, Syria.

13. Find a better place for war. The Middle East is probably the worst possible place to start lobbing missiles toward someone. It is as likely to harden Assad's resolve as to weaken it. It will certainly continue to accelerate our very successful program of increasing the number and ferociousness of al-Qaeda recruits -- who may very well be the ones to take over and rule Syria if we were to be successful at "regime change." And there is no credible scenario that I have seen as to why it is not likely to bring in the Russians and Iranians, possibly provoke attacks on Israel, and otherwise spread to other neighbors of Syria. On the assumption our actions don't provoke a World War III, and we just risk attacks on Israel, and further alienation of China and Russia, we next explore what other blowback is possible.

14. Blowback. How have those missile attacks been working out for us in the past? Not so well. (a) In 1983 we shelled military forces engaged in a civil war in Lebanon, in that case in an effort to support the Lebanese army. What was the reaction? A month later suicide bombers blew up our Marine barracks, killing 241 Marines. We brought the survivors home, and the civil war continued until 1990. (b) In 1998 al-Qaeda bombed our embassies in Kenya and Tanzania. The U.S. answered with missile hits on al-Qaeda bases in Afghanistan, and, with erroneous intelligence (that it was a chemical weapons plant), a plant in Sudan producing medicine for the Sudanese people. The blowback? The USS Cole was attacked, and a year later we were dealing with 9/11.

It wasn't long ago we closed numerous embassies, especially in the Middle East and Africa, out of concern they might be attacked. After we lob missiles at Syria is it more, or less, likely that those concerns will prove to have been well-founded? (Apparently, intercepts have already revealed plans to attack the U.S. embassy in Bagdad if we attack Syria.) By what standard can an increased risk of attack on Americans, as we have experienced in the past, be said to improve our national security?

15. "Collaterally damaged" civilians. As the quote at the top of this blog essay reveals, war produces as many as ten times the number of civilian casualties as military. This is not a very effective way to "win hearts and minds."

There's more to be said -- but not by me. This is enough to give you a sense of my thinking on the matter. What's yours? "Not in my name" says little without the backup of some reasoning. American citizens still have some credibility and respect abroad on the part of those in other countries who are willing to say, "It's not the American people, it's their government." However, unless we all speak up, it will be done in our name, and it will be the American people who will be properly faulted, not just our government.

# # #