US Health Care Judgement and How not To Oppose Big Government

The Supreme Court of the United States earlier today announced its judgement regarding the constitutionality of ‘Obamacare’, the core part of which is a mandate for everyone to purchase health care insurance or face a fine through the tax system.  The Court has decided that most of Obamacare, including the mandate, is constitutional. The constitutionality of the mandate has been justified on the basis for he taxation powers accorded to Congress in the Constitution, and not the power to regulate interstate commerce, which is how it had been justified.  So what the Court said was constitutional was the levying of taxes to penalise people who don’t purchase federally approved health care, after Obama had been very emphatic that the mandate was not a form of taxation.  

The litigation against Obamacare is associated with the libertarian law scholar Randy Barnett.  Barnett is not just libertarian, but anarchist in orientation, which makes it interesting that he specialises so much in arguments for an ‘Originalist’ (in line with the publicly understood intentions of the framers) view of the Constitution.  The 13 enumerated powers of Congress in the Constitution are surely 13 too many for Barnett.  It’s  not that unusual for originalist arguments to be put forward by those of anarchist inclination.  This and over oddities of Origanalism is something I keep meaning to blog about, and will soon in line with recent blogging on Hayek, Europe, law and so on.

Barnett, and others on his side (check Cato@liberty and the Volokh Conspiracy blogs), were warned by left leaning commentators that victory in the their anti Obamacare litigation would make it more likely that something worse would happen from the point of view, that is an expansion of the Medicaid federal program of health care for the poor, so that the US would move closer to tax funded universal health care.  At Volokh and Cato, I’ve seen that argument ridiculed.  That fact is the wanting was proved substantially correct today.  The Supreme Court has decided that it is constitutional to tax at a federal level to implement social welfare programs.  No one in the ‘liberty community’ seems to be conceding the obvious correctness of those warnings, and the inherent rashness of trying to use the Supreme Court as a way of overturning a social welfare program passed by Congress.  Surely the Constitution should largely be for regulating relations between parts of government, and blocking obvious deviations from basic rights and constitutional propriety.  After decades of increasing welfarism in the American Republic, it is a bit strange to argue that one more bit of welfare legislation is an attack on liberty and the constitution (not necessarily the same thing actually, but that’s something the Originalists will never concede), and indeed as some people claim some apocalyptic victory for tyranny.  

Of course the Originalists fervently believe that Obamacare is a gross departure form constitutional propriety, but really their reaction would only be justified by laws that allow arbitrary confiscation of property and arbitrary imprisonment, and extreme acts of government like taxing all incomes of all kinds at 99% from the first cent.  The kind of welfarist social democratic measure that characterises Obamacare is not a suitable object of such extreme attacks.  Is it the best health care policy?  No, for reasons that include the following.

1.  America is a large federal Republic that benefits from choice and competition between the 50 states regarding  social policy, taxation and various other matters.  So there is no need for a federal welfare state.

2. Obamacare pushes up the costs of healthcare by putting more conditions on health insurance and pushes people on just above poverty level incomes to make poverty inducing financial sacrifices for health insurance that provides more than they want.

3. Obamacare does not address issues that push up health care prices, including excessive requirements that routine medical car be carried out by doctors rather than nurse; tax exemption to companies for providing health insurance to employees, which has the effect of destroying incentives for users of health to check the costs and make decisions about which package is most cost effective.  

4.  A better option (at federal level if there must be a federal system, and as an example for states otherwise) is to give out ‘vouchers’ to purchase health care, allowing everyone to make choices with regard to different trade offs on cost and benefits of particular packages.  

These issues are a matter for policy debate, not shouting about unconstitutional tyranny and the intentions of slave owners in wigs and tricorn hats (a harsh way to describe the framers of the Constitution, not the only way to describe, and not a reason for ignoring original intentions, but an aspect that should never be overlooked).  

The results I’ve seen so far on the libertarian, and more general small government scene, include denial and anger.  The denial is the refusal to admit a defeat and to admit that Barnett was wrong to ignore left wing warnings.  The denial takes the form of saying that non one will ever support federal tax and welfare, so that attempts to bring it in by deceit (as some small government fans see it) through a mandate have failed and federal welfarism has failed for ever.  The trouble with that is that there is a federal welfare state, introduced through legislation under Franklin Delano Roosevelt in the 1930s and Lyndon Baines Johnson in the 1960s.  If they could do it then, others can do it now and in the future.  For those who think that somehow that was all back in the 30s and 60s and could not happen again, I just point out that the last Republican president, George W. Bush, introduced a new federal ‘entitlement’ much more recently, subsidies purchase of prescription drugs for senşors.  Obama has found that mandating purchase of welfare insurance is politically toxic, so will introduce further welfarist schemes (if any) on the basis of federal tax and spend, as will future presidents sympathetic to big government.  

The anger is denunciation of the Supreme Court for justifying tyranny, destroying libert… oops sorry İ fell asleep there.  I really can’t stand this kind of rhetoric.  It’s all culminated in a rather pathetic obsession with broccoli mandates.  This as funny for five minutes when it first came up, but has now become a hook for obsessives, and a substitute for thought.  There are issues with governments trying to control people’s health choice, but no government  has told anyone in the democratic world they have to purchase healthy vegetables, and it’s not going to happen anytime soon.  

The ‘liberty’ movement (which I support in a very moderate way) needs to focus on policy debates and outcomes, not ranting about constitutionalism and tyranny, and not kidding itself that there will never be a democratic majority for more tax funded welfarism.    Certainly not at a time when big government left wingers have picked up on right wing originalism and found that they can make good cases for supporting.what they want on originalist grounds.  

Another bit of wishful thinking is that small government advocates will rally behind Mitt Romney, so ending Obama’s big government presidency.  Romney introduced the first version of Obamacae when he was governor of Massachusetts, and will ave trouble with his record of Obamacare, We should also note that Gary Johnson offers the strongest yet Presidential candidate for a libertarian point of view and the very divided nature of small government advocates in America with regard to drugs, gay rights, religion in schools, defence, national security…. 

European Union and Hayek

At last I’m blogging again on the topics I raised in my 1st June post, ‘Europe and Liberalism: Beyond the Clichés’.  I was much more dominated by the task of completing a draft of a book (Kierkegaard and Political Community) which I sent to a publisher yesterday.  I didn’t try to get a contract for the book while writing it, so I have no ides who it will publish it, or when I can reach agreement with a publisher.  Anyway, back to criticisms of the way Hayek is brought up in relation to the European Union, and other criticisms of standard issue American libertarianism, from the point of view of a moderate libertarian who is often irritated by movement  libertarianism and the writers who use its clichés.

I made some numbered points in that initial posts.  In this post, and several more coming soon, I’ll paste one point from the original post into each new post and expand on that point.

So, original comment 1.

Hayek’s comments on constructive rationalism are trotted out regularly in relation to the European Union and have achieved the status of cliche rather than interesting use of Hayek’s thought.

No time right now to dig through Hayek for the best quotes and references on this topic.  Maybe another time.  Those quotes would refer to the issue of constructive rationalism rather than the European Union, anyway.  Though a lot of people think they know what Hayek would have thought about the European Union and the Euro, and that is he would have hated them.  We’ll return to that shortly, but first Hayek and constructive rationalism.  Hayek argued that liberty and economic prosperity are deeply tied up with the capacity of humans to produce wealth, culture,political institutions and so on, through evolution or emergence, rather than grand rational constructions, based on reflection and planning.  The most important example in Hayek is that of the price mechanism.  Changing prices in the economy signal preferences and scarcity, which keep adjusting due to changes in individual preferences, reactions to higher and lower prices, decreasing or increasing price of inputs, reactions to increasing or decreasing demand and so on.  The whole market economy and all prices in are an unplanned system of information, which cannot be replaced by planning, however much effort planners might go to in discovering preferences and costs, and their interactions.  Price controls, along with over forms of economic intervention, try to replace spontaneous order with rational constructivism that always fails, because it can never model, let alone track in reality,  so much change in so many heads and so many formal and informal agreements between individuals.

Hayek died in 1992, but did not comment publicly on the European Union, which was still known as the European Community until the following year.  If he did comment publicly no one seems to have noticed, because no one ever quotes him on the subject   What we do now is that at least in the 1940s he favoured federation between European democracies, and a possible federal union between a wider group of democracies.  He says so in The Road to Serfdom and ‘The Economic Conditions of Interstate Federalism’.  What he means by federation is a level of government largely concerned with promoting free trade and preventing war, so he means something with more modest ambitions than the EU, though we should also say that while there is largely free trade within the EU it’s no as free Hayek would have liked.  Anyway, self styled libertarians and classical liberals who like to refer to Hayek in their bashing of the European Union rarely note that Hayek was in favour of European federation in some form for at least a few years in his, life and maybe longer since he never renounced the idea.  In fact I’ve never seen that kind of EU basher acknowledge that complicating reality.

Moving onto the Euro, it is true that Hayek is unlikely to have approved of it, since he did move towards favouring privatisation of currency, that is abolishing nation state monopoly of provision of currency.  However, the EU bashers, again, rarely mention this.  How much they leave out of account!  They generally focus on condemning the EU currency rather than national currencies.  In that case, we can reasonably assume that many of these people are sovereigntist-nationalists at heart, and that this is just as dear to them as classical liberal or libertarian ideas.  If people have a good rant about how Hayek would be against the Euro, but don’t mention the support for federalism of some kind or the support for privatised currency, we can certainly wonder whether they are more sovereigntist or more liberal.

The issue of currency is not the only one where Hayek is against ‘constructive rationalism’ and it is not just something he mentions in relation to economics.  His view on law is that it should be evolutionary, based on judge’s interpretations of laws and previous cases, and he thought of law as emerging from custom and from generally held standards of justice.  He found it worth distinguishing between ‘legislation’ made by states, and ‘law’ based on shared rules of justice outside the political process.  Political institutions that work well emerge from that foundation.  That is not realistic to my mind.  Our ideas of ‘law’ are just as much an outcome of the political process as the shared unwritten standards Hayek loves.  That is definitely true of the United States and Britain, which the fans of anti-design elements in Hayek tend to deny, labouring as they do under the absurd and fantastical belief that laws and institutions in Britain emerged from the primordial ideas of justice of the Medieval English, and that this was transplanted to the United States in pure form, and  the American Revolution was about preserving that.  More on this in other posts, but it is a feeble sided comprehension of history.  That is the basis of a lot of Euro bashing, the EU currency did not ’emerge’ in the way that the US dollar, the pound sterling and other national currencies supposedly did.  This is more fantasy.  These national currencies were adopted as state monopoly currencies as part of a political process, and did not ’emerge’ from the market, they played a large role in defining the nurture of a market economy under a system of nation state laws.  That is economic integration in the US, UK and so on is partly a result of adopting those currencies and enforcing their monopoly status.  The monopoly has not always existed.  There were private currencies issued by private banks in pre-Civil War America and in 18th century Scotland.

It’s possible to argue about whether the European economies were close enough before the Euro was launched, but it is also important to acknowledge that the closeness of the Scottish and English economies, or the economies of the various American state is in some degree a product of design, planning, calculation and political processes at state level.

The summary.

I don’t trust people who use Hayek’s arguments against rational design purely, or largely against the European Union, without acknowledging the implications for the American Republic, the United  Kingdom and so  on.

Hayek said a lot of different things at different times.  The moments  when he made his most radical claims that law, state institutions economies and so on, can and should emerge through pure spontaneity free of the slightest taint of politics and autonomous state action, are deeply implausible.  Implausible or not, I don’t trust people who use that aspect of Hayek for polemical purposes and don’t acknowledge just how radical and universal the consequences are.  The most plausible way to take Hayek is to combine that emphasis on spontaneous orders with acknowledgement of how those orders have always been influenced by ‘rational constructivism’, or actually often in practice, crazy irrational constructivism.

Why Anti-Abortion People should Oppose the Manner in which Abortion is Becoming Illegal in Turkey

Whatever you think about abortion, you should be concerned that, the Turkish government is showing contempt for democracy and resorting to a natalist nationalist ideology, which is destructive of individual rights including women’s rights.  

It looks like abortion after the first month of pregnancy will soon become illegal in Turkey.  It is currently legal for the first 10 weeks of pregnancy.  We will to see what, if any, medical exemptions are allowed to see how much this is a ban.  When abortion was first legalised in Britain during the 1960s, it was only made legal when the physical and mental health of the mother was to to be under threat.  In practice, this was interpreted broadly enough to mean that abortion became available on demand through the National Health Service.  The rhetoric of the Turkish Prime Minister (Recep Tayyıp Erdoğan), and his ministers, certainly does not suggest that they will allow such a possibility.  Detecting pregancny in the first month is evidently difficult and unusual, and the strict application of a ban beyond one month will effectively mean that legal abortion in Turkey will become very unusual.  

Obviously those who oppose abortion to the extend that they believe it should be a crime will welcome this.  Some of those who welcome this will not be supporters of the moderate Islamist-conservative government in Turkey and will be socially liberal on other issues.  In that respect, the government has chosen to push a social conservative issue in quite a clever way, as being for abortion rights is a socially liberal issue that’s divide for social liberals, particularly those  with religious commitments.  

There have been demonstrations agains the proposed legislation in Istanbul, but numbered in the thousands.  Only demonstrations in the hundreds of thousands could possibly make a difference, since the government party, the Justice and Development Party, has a very large majority in the national assembly.  If there are any constitutional barriers to the proposed legislation, I have yet to hear about them.

Why should ‘pro-life’ antiabortion people be concerned?  

First of all, lack of democratic procedure.  The idea of legislation has come up very suddenly.  It was not in the AKP (Turkish acronym for the government party) general election program.  There is no proposal for a referendum, and no proposal for consultations with civil society, expert groups, or the opposition parties in the National Assembly.  If the government wants to introduce such legislation, the decent thing in terms of respect for democracy as a set of procedures, and not just the brute power of the governing majority, would be consolation, followed by a referendum, or by preparing a proposal to be included in the party’s next general election proposal.

Secondly, the appeal to a natalist nationalist ideology which is bad on a few fronts itself.  The Prime Minister and his associates, have justified the proposed restrictions on abortion with reference to promoting population group and the paranoiac assumption that hostile parties want to restrict the growth of the population in Turkey.  The appeal to population growth rather than the welfare of the people, and the justice of the laws of the nation, is a resort to a nationalist ideology destructive of individual rights and general welfare.  The suggestion that women are under a duty to breed more Turks is the reduction of women to the status of instruments of nationalist ideology and encourages a whole culture of disrespect.  This obsession with natalist nationalist ideology extends to opposition to birth by cesarian section, because this reduces the future reproductive possibilities for the pregnant woman.  This should be a purely a matter of the choice of the woman concerned, acting in the light of medical advice of a kind referring to her welfare and not bombastic anti-individualistic forms of nationalism.  

The natalist-nationalism is a guaranteed failure, and storming suggests that AKP cannot last as a large democratic party.  Experience shows that increased prosperity reduces child birth s in all countries, and maintaining the population level is enough of a difficult task  

Back to the Zimmerman-Martin Case, Again!

My recent June 2nd post on the case regarding the shooting of a black teenager, Trevyon Martin, by a white man, George Zimmerman,  corrected things I said in a first post.  What I was largely correcting was what I picked up from left-leaning coverage.  I now need to correct what I picked up from the more libertarian and small government conservative coverage!

In the last post I said it was inaccurate to bring ‘stand your ground’ into the Zimmerman-Martin case.  That is the ‘stand your ground law’ which allows someone carrying a gun to shoot rather than retreat in a  threatening situation.  A law I find repugnant, as I said yesterday.  The idea that this law  was inapplicable in this case is something I largely picked up from the libertarian-constitutional originalist blog The Volokh Conspirary, as in this item by David Kopel.

However, this just in from The Guardian, a quote from Zimmerman’s lawyer arising from Zimmerman’s imminent return to prison after being found to have lied about his finances in relation to fixing bail (something I covered yesterday).

“If he was in on something that was not truthfully revealed to the judge, when there is a ‘stand your ground’ hearing, of course you’re going to second-guess him,” Hill said.

Oh dear, oh dear, serious seeming libertarian originalist blog sphere, you are just as careless as the serious seeming  leftish blog sphere.

The overall lesson is to never take anything on trust ever!  An obvious lesson, but one that needs to be learned over and over again.  I look at Volokh regularly, agreeing with some stuff but sceptical about what relates most to a nomocratic originalist agenda.  This raises issues about libertarianism, and what reservations I have about some forms of libertarianism, in  a post of two days ago.  A lot more coming from that post.

I hope not to post on Zimmerman-Martin case again, and will only do so if I find more evidence that I repeated misguided views, or if something really fascinating, and exciting, in issues of rule law and American politics emerges from the case.

Great quotes from the British Newspapers Today

John Rentoul in The Independent on George Osbourne’s budget

 one of his own backbenchers, Douglas Carswell, made mock of the Chancellor, saying sarcastically that at last he understood. The Budget announced in March, Carswell said, was a “beta” version that was now being “crowdsourced” to produce a working piece of software.

Vic Marks in The Guardian on the England cricketer Kevin Pieterson 

Pietersen stirs the emotions like no other. He divides us all. It seems as if some people hate him, while others simply don’t like him.

Back to the Zimmerman-Martin Case

I’ve blogged on the killing of Travyon Martin by George Zimmerman  (I don’t post links to my own story, please use search window if you can’t see the previous item on the homepage) recently and need to go back to this story.  I thought about deleting the original post, because enormous problems have emerged with the point of view I expressed.  Thinking about this has been a bit of a distraction from blogging.  In the end, I though it’s better to leave the original post and reflect on it in a new post.  Some retraction is in order but not a complete retraction.

I initially said that the killing in Sanford Florida of a black teenager by a white neighbourhood watch leader was a case of vigilante justice by an out of control racist, and that it brought back memories of the segregationist South, suggesting that the interest of the Federal government in possible lack of a justice for an African-American in former state of the Confederacy was a return to the problems and solutions of the Civil Rights era, when the Federal government did start to act against southern racist violence.  On this case I was very much impressed by the coverage in left leaning blogs and news sources, and shared their feeling that not seeing the case in this way was weird contrarianism if not outright racism.

Martin was a black schoolboy walking home after buying snack food in a local shop, Zimmerman thought he might be a criminal and phoned the police.  He was advised to leave the matter to the police by the person who answered the phone (who was not a police officer).  Instead Zimmerman followed Martin.    There was a fight and Zimmerman killed Martin with his gun.  The police arrested Zimmerman but no charges were made and he was quickly released on the grounds of self-defence.  However, not everyone on the public law enforcement side agreed with this. The lead police investigator wanted to file charges, but this opposed by the state attorney’s office.  On the night of the shooting, the personal the prosecutors office on call opposed filing charges.   The Sanford chief of police also opposed filing charges.  On that night Zimmerman was found to be injured, and pictures exist of his injuries but these are superficial cuts.  He was not tested for alcohol or drugs.  This has been later explained by the lack of a warrant, but I’m pretty sure there are means of obtaining such a warrant at short notice, otherwise hardly anyone ever would be tested.

The initial coverage of the killing referred to Zimmerman making a racist remark to the police phone operator, this was later found to be a lie made up by a network television employee.  The case is nevertheless racially charged.  Claims that Zimmerman is a clear racist, vociferously supported in the left leaning coverage of the incident have not been supported.  Zimmerman looks like a rather odd character and not the kind of person a lot of people would want to be involved in leading neighbourhood crime watch schemes, but there is no good reason to believe he is a racist, and no reason to believe that  that the killing of Martin was the equivalent of a Klan lynching of an ‘uppity’ African American.  We cannot completely exclude the possibility that Zimmerman has some underlying racist attitudes, but that applies to just about everyone.   There was a deluge of anger about the appearance of the police letting a racist killer off the hook.  The faded film director Spike Lee got a bit of publicity for releasing Zimmerman’s home address, which turned out to the wrong address.  The behaviour of Lee and others came disturbingly close to calling for vigilante action against someone, that is use illegal violence to punish someone who has not had the chance to defend himself in court.

That is part of the problem with the actions of those police officers and state legal officials who decided there was insufficient evidence to prosecute Zimmerman.  By denying Zimmerman the chance, even though an unwanted chance, to defend himself in court, they created the possibility of violence illegal retribution.  One function of criminal justice is to protect criminals, that is protect criminals against what some angry individual or mob, might to to that person, in circumstances when psychological restraints on violence and sadism are weakened.   Orderly punishment through a legal system is likely to be more moderate and respect of the humanity that criminals share.  Though the cries of racist directed at Zimmerman, and anyone who made any attempt to suggest hat the killing might have been legitimate self-defence, have been shown to be tawdry nonsense (something I failed to recognise at the time), there is a racial angle.  The fact is white police officers, and legal officials, thought it was not even worth filing a charge of manslaughter  against an armed white man who shot to death an unarmed seventeen year old boy.  We do have to ask at least two questions here.  1.  Would those people have opposed charges against someone who shot the son of a police office or a legal official in similar circumstances?  That is a question about whether they would have opposed changes if someone they recognised as one of their own had been killed in such a manner.  2.  Following on from 1, and expanding on the issue of recognising someone as one of your own, would they have opposed filing charges against a black adult who killed a white 17 year old?  It would be going to far to accuse all these people of being out and out racists, but we can at least ask if they are too inclined to assume that certain groups of people are victims and certain groups are offenders.  An armed man  killed an unarmed boy, surely the man should have his day in court to explain what he did, facing a charge of manslaughter at the very least.

Zimmerman has now been charged with second degree murder, a charge which got past the grand jury, which might make you wonder why all those people did not want to file charges in the first place.  Zimmerman was imprisoned and then released on bail.  He will have to back to prison soon as he has been found to have lied about his financial circumstances, which reduced the bail money he had to pay into court.  He has also been found to have concealed ownership of two passports.  None of this suggests he is guilty of a crime in the killing of Matin, but he does suggest he is a strange and unreliable character, something which could affect the trial, and that there are many twists left in this tale.

Initial coverage included misleading aspects as I have already indicated.  Other dubious aspects of the coverage include initial exaggeration of the difference in size between Zimmerman and Martin.  Martin was slightly litter than Zimmerman.  Matin was represented as a particularly innocent cure harmless teenager, but was clearly amore troubled person and a tougher looking teen than early coverage I suggested.  As mentioned above, some left leaning sources really went to the extreme in placing the worst possible interpretation on the killing and on the case.  Posters, even more so commenters, at generally serious blogs lost self restraint in the assumptions and accusations made.  The coverage has calmed down and some left leaning coverage is leaning towards the innocence of Zimmerman, notably at the left leaning law blog TalkLeft: The politics of crime.  A lot of initial coverage suggested that the failure to file charges against Zimmerman was connected with a ‘stand your ground’ law in Florida, which means killing with a gun is legal if it is an alternative to retreating from a threatening situation.  Personally  I am against such a law, anyway it appears to be irrelevant in this case, or no one who write in an informed way about the law, and the cases in which it has been used think it is relevant.  Zimmerman’s defence is that he was being held down and beaten, and was in fear for his life when he pulled out his gun and shot Martin.  There is no doubt that Martin and Zimmerman were on the ground fighting when the killing took place.  By the way I support the right to bear arms, though I have never owned or carried a gun myself and have no wish to do so in the future.  It’s the kind of right I support in principle, but don’t get worked up about, or think has to be exercised as often as possible.  Anyway, bearing arms in considered a constitutional right by the Supreme Court in the USA, and Zimmerman had the right to wear a gun.

Some left wing writers behaved poorly in seeing this case in the most extreme terms, and in the accusations they made against those who disagreed with them.  People who left comments below those online items behaved even more badly, as is common.  I don’t say this to condemn the left or to say it is less fair and intelligent than the right.  I don’t place myself on the right anyway.  I class myself as a classical liberal or libertarian and hate half the people who carry that label anyway.  We all make mistakes, I hope some left wing writers will realise they made mistakes and will try to learn something about resorting to quickly to an already formed narrative about racist violence.  I made a mistake in going along with that exaggerated overage.  Part of that was that I thought the internet enables quick access to all reasonable views, and initially only found contrarians and racists to be be criticising the coverage much.  I will have to be more careful and sceptical in future.  Maybe Zimmerman will be found guilty of second degree murder, the left leaning coverage at the beginning will still have been in large part misguided, as was my own post.  If Zimmerman is found guilty it will be a case of an unstable personality overreacting to a tense situation, not racist execution covered up by old school southern white supremacists.

Europe and Liberalism: Beyond the Clichés

I haven’t blogged for a while, partly because of working on  a book.  No contract so I don’t want to go into it, if and when  it is contracted, I’ll post about it.

One thing I’ve been thinking about posting on, but couldn’t formulate something for, is the historical and value basis of the European Union from a liberal (particularly classical liberal/libertarian) perspective.  A post on another site that annoyed me, has helped me to formulate something; sometimes an antagonist, a negative stimulus of some kind is just what is needed.  So thanks to Chidem Kurdas for his post ‘Euro Crisis from Long Perspective’ at Think Markets: A Blog of the NYU Colloquium on Market Institutions and Economics Processes.

I posted a long comment which is pasted below.  I didn’t know anything about Kurdas before, and I didn’t check her out online before posting  my comment. She is a less of a technocrat and more of a partisan than I realised from her post.  If you Google the name you will see that is connected with hard core kind of libertarian places like the  The Independent Institute and The Freeman.  Rather hard core by my standards anyway.  These are both places where you can find the default American libertarian position, which gives extremely high priority to the greatness of the American constitution and the Originalist reading of it (a way of reading the constitution which goes back to the a supposed original public meanings of the text, discussion of the text at the time, and the publicly known intentions of the framers).  In that case I’m sure she found the comments I made about the US constitution repeated below, particularly obnoxious.  I have to say I find Originalist Libertarianism evasive and complacent.  That is not to say that everyone who has that position is stupid or dishonest, or that I disagree with everything they say.  This is a rather long post already and I’ll have to explain more in other posts and I think that will come quickly.  Where Kurdas is coming from in the post I’m commenting on is a bit of Hayek I don’t have time to locate right now but hope to in a post in the near future, which is widely quoted to the extent of being over quoted.  It has become libertarian boilerplate and inevitably like boilerplate versions of all positions, it tends to serve as a substitute for thought .  This is where Hayek criticises rational construction in law and politics, on the grounds such a thing is a top down imposition, which he compares unfavourably with law, and resulting political institutions, which emerges from a discovery process in which judges (and presumably juries) look at written law and custom in relation to basic social norms about justice, in an evolution of laws.  Libertarian critics of the European Union, very frequently and to the point of tedium bring out the relevant passage(s) in Hayek and claim the problem withe EU, by way of contrast with the USA, is its rational constructive basis.  What is below put that in context of the European Union and the United States.  AS I’ve said, more on the various aspects of this in future posts.

1. Hayek’s comments on constructive rationalism are trotted out regularly in relation to the European Union and have achieved the status of cliche rather than interesting use of Hayek’s thought.

2. The post compares the political arrangements of the early United States with the economic arrangements of the European Union. A comparison of limited use.
3. The United States constitution is commended as an example of Hayekian discovery procedure, but is itself an example of rational constructivism and intellectualism. Of course the colonists took things from English legal and political precedents, but the Constitution of the United States attempts to create a perfect republic on federal grounds which has no precedent in Britain. There is an evident element of fantasy in thinking that everything in the constitutional arrangements of the United States stems of Medieval England.
4. The United States constitution was also formed by a political economy/public choice process to satisfy sectional demands. The understanding of this process are not assisted by references to rugged colonists and the legal traditions of Merrie England, which in large part evolved through the violent impositions and constructivist projects of Norman and Plantagenet monarchs.
5. The US constitution which is commended was not able to prevent a devastating Civil War, the EU’s constitutional arrangements have yet to suffer such a blow.
6. The US constitution did not prevent a series of extremely ugly Indian Wars, and the effective destruction of the customary laws and property of American Indians. The EU has yet to be party to such a horror.
7. The problem with EU monetary union, with the Euro, is the lack of a fiscal union, not some failure to commune with the unwritten spirit of the law as it has evolved over history in the different European nations.
8. United States debt is at a level which would cannot be sustained without a crash at some time. The federal state has kept growing under both Republican and Democratic Presidents. Civil liberties are being trampled by the Patriot Act. It is very strange that we are invited to look to the United States for some alternative to the EU in constitutional and economic matters.
9. The EU will not be improved by a mixture of well worn passages of Hayek and idealising references to the United States, and its supposed continuity with monarchist feudal Medieval England.
10. If these bits of Hayek are going to be trotted out, again, it would be instructive to at least have some consideration of how compatible his very traditionalist views about law are with his views about economic and social innovation.
11. The politicians of European nations who created the European Union are no less part of tradition than the politicians who created the American Republic and its Constitution. The idea of the European Union, and its political basis in the Franco-German relationship has evident roots in the 9th Century Carolingian Empire, and even earlier in the Frankish monarchy.
12. The nature of EU federalism is clearly shaped by German experience in the federal republic, which itself draws on Weimar federalism, which evolved out of the federal aspects of Bismarckian Germany, itself developing of of the proto-federal nature of the Holy Roman Empire of the German Nation,a nature which it had acquire by early modern times. We can also see precedents in the unification of Italy (Mazzini was an enthusiast for European Federation) and the federal nature of the Netherlands going back to the formation of the Dutch Republic, itself an important precedent for the American Republic.
13. The EU also draws on the precedent of the Concert of Nations that emerged from the Congress of Vienna and which led to intervention in national affairs by the major powers claiming to act on behalf of Europe. It can also look back to the transnational legal and political role of the Medieval Catholic Church, a legacy of the the Roman Empire which itself provides an important precedent for ideas of pan-European law and sovereignty.