Galileo was born 449 years ago, which is reason enough for the publication of several books about him in 2013. In the New Yorker, Adam Gopnik has a great review-essay about Galileo, his trial, and the new books. I’m intrigued by the argument he presents that Galileo could have avoided a lot of trouble if he’d been just a little less stubborn and impolitic. Gopnik defends “the originality of the scientific revolution.” He talks about Galileo’s authorship of “the most entertaining classic of science ever published.” He even throws in an apropos Milton Friedman reference. Perhaps most impressively, he does a good job of helping us understand the perspective of the church hierarchy, which seems so foreign to our modern liberal sensibilities. 

If only he would work as hard to understand and present the views of modern market liberals.

In my recent study on infrastructure, I noted that federal spending is often designed to aid private interests, not the general public interest. As one example, I pointed to the Army Corps’ “MRGO” canal in Louisiana that was aimed at helping the shipping industry, but ended up being a wasteful boondoggle and harming the public interest.

The Washington Post today focuses on another dubious Army Corps project: the New Madrid Floodway project in Missouri. The aim of the project is to confer taxpayer benefits on a small group of private landowners, but it will harm the environment and undermine effective flood management on the Mississippi River.

Why would Congress consider going ahead with such a counterproductive project? Because the Army Corps has an institutional pro-construction bias and the agency is under the sway of certain powerful members of Congress, who do the bidding of private interests in their states. From the Post:

[Senator Roy] Blunt — who told reporters on Feb. 4 that he and Rep. Jo Ann Emerson (R‑Mo.) ‘spent all of last year trying to browbeat the EPA and the Corps of Engineers into doing this job’ — tweeted Friday that he would ratchet up the pressure.

Blunt’s comments make clear that political power, not sound economics, dominates policy in Washington. Yet many pundits and wonks continue to believe the fairy tale that if we boost federal infrastructure spending it will allocated in an efficient manner by impartial experts toward high-return projects that benefit the general welfare.

Perhaps there are exceptions, but, in general, the federal government has never worked that way. With regard to the Corps, pork barrel politics, boondoggles, and environmental harm have been the modus operandi for more than a century. Here’s what I noted regarding the New Madrid Floodway project in my study of the Corps:

The Corps and some members of Congress have pushed a $108 million project to drain tens of thousands of acres of flood-prone land in Southeastern Missouri to benefit a small number of corn, soybean, and cotton farmers. The area currently acts as a beneficial relief valve for the Mississippi River during floods. Many experts think that this project is absurd, but the Corps sought to speed project approval on the basis of a manipulated cost-benefit analysis. In 2007 D.C. District Court Judge James Robertson harshly criticized the Corps’ analysis as ‘arbitrary and capricious,’ and he said that ‘the Corps has demonstrated its willingness to do whatever it takes to proceed.’

As the story goes, when Benjamin Franklin left the Constitutional Convention in 1787, he was approached by a woman who wanted to know what type of government the delegates created. Franklin responded, “A republic, madam, if you can keep it.” Since the Founding, the Supreme Court has never directly defined what this “Republican Form of Government” is that Article IV of the Constitution guarantees to every state in the union — but cases come up every now and then invoking this provision (also known as the Guarantee Clause).

The latest such case comes out of Colorado and involves the ability of voters, protected in nearly every state constitution, to make law through various forms of direct democracy, such as voter initiatives. In 1992, Centennial State voters enacted a Taxpayers Bill of Rights (TABOR) to restrict the legislature’s ability to raise tax rates or increase spending, in a formula tied to the rate of inflation and population growth, unless otherwise approved by voters.

In Kerr v. Hickenlooper, the plaintiffs wish to remove this barrier and provide the Colorado legislature, municipalities, and school boards with full discretionary authority to tax, spend, and borrow, without voter approval. State Senator Andy Kerr and other government officials are seeking to redefine a “republic” as an institution whereby all legislation is solely the duty and privilege of the legislatures, and voter referenda are impermissible. The outcome of this revised interpretation could invalidate centuries of voter decisions at the ballots, abolish future voter input aside from the election of representatives, and give politicians carte blanche to tax, spend, and borrow.

Surprisingly, and despite any showing that voter initiatives are somehow incompatible with “republican government,” the federal district court allowed the lawsuit to proceed. Now before the U.S. Court of Appeals for the Tenth Circuit, Cato has joined the Independence Institute on an amicus brief arguing that, absent controlling legal precedent, the phrase “Republican Form of Government” should be defined by the standard sources the Supreme Court uses to decipher constitutional language: Eighteenth century political works, contemporaneous dictionaries, and official records and commentary from the Constitutional Convention, which for our purposes here all define “republic” in a way fully consistent with direct citizen lawmaking.

The most popular example of voter participation at the time of the Founding was through the town meeting, employed to this day throughout much of New England. Moreover, Massachusetts ratified its state constitution of 1780 by referendum, and Rhode Island even used a referendum to ratify the U.S. Constitution itself. Entry of those states into the union entailed recognition that those existing states had a republican form of government.

Based on all available evidence, the Guarantee Clause doesn’t require Colorado to dismantle its TABOR system of checks and balances. We urge the Tenth Circuit to reverse the district court’s denial of Colorado’s motion to dismiss and allow the state to preserve its model of self-governance.

Paul Krugman has a post in which he proclaims “The Death of Protectionism.” He refers to this chart from the U.S. International Trade Commission:

And he says:

In doing course prep for trade policy, I looked, as I always do, at the latest edition of the USITC publication on the economic effects of import restrictions — and discovered that my subject was gone. At least according to the ITC estimates, there’s almost nothing left to talk about.

…

What happened? Mainly the end of the Multi-Fiber Agreement; also, US and world sugar prices have converged. But now that protectionism is a trivial issue, what will economists inveigh against?

The ITC chart shows tariffs falling from about 3.5% in 1993 to under 1.5% in 2011. That sounds like they started low and got lower.

But it’s important to note that these are average tariffs. Tariffs on certain goods are still quite high. A publication called World Tariff Profiles illustrates this nicely. If you look at p. 170 for U.S. statistics, you will see tariff duties for four general product categories of over 10%. You’ll also see maximum tariffs (i.e., the high tariff on particular products) of over 100%!

And if you look at the duty rates for other countries, they are generally much higher.

And none of that includes special “trade remedy” tariffs (anti-dumping, countervailing duties, safeguards), subsidies, discriminatory government procurement, or domestic laws and regulations that discriminate (such as local content requirements).

So, protectionism is alive and well. 

I have little doubt that Krugman knows this. So why is he doing a post proclaiming the death of protectionism? I don’t know for sure, but allow me to speculate. He wants the focus of economic growth policy to be on fiscal and monetary stimulus. He doesn’t want free trade agreements to be offered up as an alternative growth strategy. Thus, he is telling people that there is not much for free trade to do.

I don’t know if that’s really what’s going on. But it could be.

Ben Smith has a mostly excellent piece titled, “Obama Prepares to Screw His Base”:

[T]he health care overhaul known as ObamaCare [is] calculated to screw his most passionate supporters and to transfer wealth to his worst enemies.

The passionate supporters are the youth, who voted for him by a margin of 60% to 36%, according to exit poll samples of people 29 and under. His enemies are the elderly: Mitt Romney won 56% of the votes from people 65 and over…[W]hat follows may come as an unpleasant surprise to many of the president’s supporters. The provisions required to make any sort of health insurance plan work — not just ObamaCare, but really any plan of its sort — require healthy young people to pay more in health insurance than they consume in services, while the elderly…consume far more than they pay in…[T]his year will be spent laying plans to shift the burden further toward the young…

And so this vast transfer or resources from young to old — just the latest in a long line of these transfers — hasn’t been discussed much because it is totally uncontroversial.

The piece falls shy of totally excellent because Smith incorrectly asserts, contrary to the economics literature, that young people have to subsidize old people for health insurance markets to work. Smith correctly notes that ObamaCare screws young people, but thinks that’s unavoidable, if unfortunate. Since there’s no reason to screw young people at all, ObamaCare is even worse than Smith portrays it.

But Matt Yglesias takes the cake. ObamaCare does not screw the young, he writes. Sure, millions of young adults will pay more for health insurance, even after accounting for ObamaCare’s subsidies. But young adults shouldn’t sweat the triple-digit premium hikes ObamaCare forces them to pay solely for the benefit of subsidizing older people who have more resources than they do. Why? Because today’s young adults will benefit later when ObamaCare does the same for them at the expense of subsequent generations. You know, if they don’t die first. What could go wrong? 

Social scientists have a term to describe the role that people like Yglesias play in a confidence game. It’s called “cooling out the mark.” In his classic 1952 article, sociologist Erving Goffman explains. See if you can find any similarities:

The confidence game — the con, as its practitioners call it — is a way of obtaining money under false pretenses by the exercise of fraud and deceit…

The typical play has typical phases. The potential sucker is first spotted and one member of the working team (called the outside man, steerer, or roper) arranges to make social contact with him. The confidence of the mark is won, and he is given an opportunity to invest his money in a gambling venture which he understands to have been fixed in his favor. The venture, of course, is fixed, but not in his favor. The mark is permitted to win some money and then persuaded to invest more. There is an “accident” or “mistake,” and the mark loses his total investment. The operators then depart in a ceremony that is called the blowoff or sting. They leave the mark but take his money. The mark is expected to go on his way, a little wiser and a lot poorer.

Sometimes, however, a mark is not quite prepared to accept his loss as a gain in experience and to say and do nothing about his venture. He may feel moved to complain to the police or to chase after the operators. In the terminology of the trade, the mark may squawk, beef, or come through. From the operators’ point of view, this kind of behavior is bad for business. It gives the members of the mob a bad reputation with such police as have not yet been fixed and with marks who have not yet been taken. In order to avoid this adverse publicity, an additional phase is sometimes added at the end of the play. It is called cooling the mark out. After the blowoff has occurred, one of the operators stays with the mark and makes an effort to keep the anger of the mark within manageable and sensible proportions. The operator stays behind his team‑mates in the capacity of what might be called a cooler and exercises upon the mark the art of consolation. An attempt is made to define the situation for the mark in a way that makes it easy for him to accept the inevitable and quietly go home. The mark is given instruction in the philosophy of taking a loss.

So remember, young voters. ObamaCare doesn’t screw you. ObamaCare is good for you.

See you next time.

Hawaii, no longer content to trample on the Fourteenth Amendment alone, is about to bid a sorry aloha (farewell) to the First Amendment. In a brazen giveaway to celebrities who like to like to vacation on its pristine beaches, Hawaii’s Senate is poised to pass the “Steven Tyler Act.”

The bill, named after — indeed, written by — the Aerosmith frontman, could punish anyone who takes a photograph of a celebrity in public. That includes a tourist who takes out her iPhone to snap a pic of an aging rocker, or perhaps the Obama family. Specifically, the bill would prohibit recording someone “in a manner that is offensive to a reasonable person,” while that person is “engaging in a personal or familial activity.” The Steven Tyler Act not only departs from a century’s worth of privacy laws, but does so at a huge cost to the First Amendment’s guarantee of the freedom of speech. As my frequent co-author, law professor Josh Blackman explains, there are several constitutional defects here:

First, the bill offers no exceptions for newsworthy content. It simply assumes that if a person is “engaging in a personal or familial activity with a reasonable expectation of privacy,” any photograph would be illegal. Newspapers covering matters of public affairs (that may be personal or familial) could be snared by this staute.

Second, the proposed statute is purposely vague. It offers no guidance of what “personal or familiar activity” means.

Third, courts would have the authority not only to stop the initial publication of a photograph, but allows for restraining orders for future, subsequent reproductions of the same photograph. This type of authority is called “prior restraint” — highly suspect in First Amendment jurisprudence — with nary a compelling government interest at stake.

Fourth, the penalties are severe, and include compensatory damages, treble punitive damages, and disgorgement of profits. Such penalties on a vague statute would easily chill speech far beyond the worst kind of paparazzi any celebrity can imagine.

Fifth, this standard applies not only to the person who takes the photograph, but potentially to anyone who uses the photographs in any capacity. The only existing publication-related laws even approaching such a strict liability standard involve child pornography. As Josh notes based on one of his law review articles, many of these constitutional defects could be fixed by adding a newsworthiness exception to the law and limiting the scope and nature of damages that can be awarded. These tweaks would bring the law more in line with existing privacy law, while still respecting the Constitution. Protecting privacy in public is a laudable goal that in our constitutional jurisprudence dates back at least to the seminal article “The Right to Privacy” by Samuel Warren and Louis Brandeis. Indeed, we’re all affected by the sweet emotion of seeing celebrities harassed by the paparazzi (viz., Princess Diana). The Steven Tyler Act, however, misses a very important thing — that privacy and the First Amendment can coexist.

Hawaii shouldn’t walk this way, instead promoting the right of privacy that our society should strive for while ensuring the freedom of speech. Let’s not be jaded by the costs of freedom. Anything else is just crazy.