Archive for December, 2010

Breaking New Ground

When Kenneth Feinberg was appointed to politicize oversee the BP restitution process, many of us were worried that even under the best of circumstances, the government was forfeiting confidence in the process to gain some expediency.  Now, it turns out that Feinberg was worried, too:

BP money is being used to pay $950 an hour to a law professor who has declared the administrator of the $20 billion claims fund for Gulf oil spill victims independent of the oil giant.Fund czar Ken Feinberg said Thursday he has agreed to pay New York University professor Stephen Gillers for his advice. Since being hired, Gillers has written a letter stating that Feinberg is neutral and not subject to BP’s direction or control.

“Is he being paid by BP money? Yes,” Feinberg said. “Who else is going to pay for the entire cost of this program? You can’t ask claimants to pay, you can’t ask states and federal governments to pay. The buck stops with BP and BP has agreed to pay the entire cost of the infrastructure of this program.”

Actually, Mr. Feinberg, the buck doesn’t stop with BP.  It stops with you, and it started stopping with you the moment you took on the role of sole arbiter of these claims.

BP is one of the parties to the arbitration and has no business paying an extortionist ethicist to determine the ethical behavior of the arbitrator.  Histrionics and legal theatrics aside, why on earth should the people putting in claims have any faith in the results of his “analysis?”  Which means that the government hasn’t even gotten Feinberg the appearance of ethics.

Of course, courts are considered honest brokers, with appropriate levels of review, without having to pay extortionist rates to college professors to tell them how to behave.

All of this could have been avoided if the administration had played against type and decided to follow existing law, rather than making it up as it goes along.

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Remind Me Again, Who Paid For This House?

The Denver Post reported earlier this week that someone who bought a house – and the land it sits on – managed to retain the right to demolish it and build a new house.  Gary Yourtz bought a nice, mid-century modern house at 825 S. Adams St. for $1.1 million, planning to raze the place and build a house he wanted to live in.  Using a law designed for historic preservation, neighbors filed an application for landmark designation on his home 15 minutes before the deadline.  Now, Yourtz’s lawyers are $18,000 richer, but he has the right to do what he wants with his property.

Of the two complainants, one, Susan Livingston, lives in Belcaro, the neighborhood where the house is.  The other, Mitch Cowley, doesn’t even live in Denver County, yet asserts a property right over a house he likes to look at.  By his logic, I have at least some right to go around dynamiting the vast majority of Denver’s public “art.”  (Actually, come to think of it, some sort of citizen petition process on these eyesores wouldn’t be a bad idea.)  Denver has hundreds, perhaps thousands of these houses, and I’m sure if Mr. Cowley is driving miles and miles out of his way to see this one, there are others he can learn to love.

I say this as someone who believes in historic preservation, loves the look of mid-Century architecture, and thinks that having the designation makes sense.  But this fellow paid for his house, neither of the complainants did.  To sandbag a guy after he’s bought a house and tell him he has to live in it as is or re-sell it is absurd.  Property is more than the dollar value assigned to it.  It’s the right (externalities aside) to use it as one wishes, to not use it at all, and to prevent or permit others to use it as one wishes.  It is also – painful though this may be – the right to destroy it and replace it with something better.

There’s a principle in historical research that thing used are not preserved, while those preserved are not used.  There’s no reason to believe that what holds for households shouldn’t also hold for houses.  Eventually, these preserved buildings will appeal to a narrower and narrower slice of owner, until they turn into museums.  Again, I have no problem with preserving some of these buildings.  I’m not a big fan of HOAs, but if Belcaro homeowners want to get together and sign off on never changing their homes, they can do so.  It’s their own rights they’re signing away, and anyone buying the house can do so knowing the rules.

According to Assistant City Attorney Kerry Buckey, “Some of these structures, in a way, are owned by the whole city.”
Ah, no.  No, they’re not.

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Ghosts of Constitutional Debates Past – Part II

In Ghosts of Constitutional Debates Past, I looked at some of the things that Centinel, aka Samuel Bryan, objected to in the Constitution, and how some of his projections about how power might migrate away from the original plan seemed to parallel the claims that the Progressives have made stick in order to distort the Framers’ initial plan.  The next few letters in the Library of America’s compilation of the debate likewise are from the anti-Constitutional party.  And they point out some of the things that they got very wrong.

One of Centinel’s worries was that the Constitution would create a permanent aristocracy.  But his concerns center not on the executive, but on the Senate.   Interestingly, Centinel’s analysis virtually places the Senate not in the legislative branch, but in the executive branch, since it has a role in approving treaties and confirming appointments.  The Vice President, of course part of the executive branch, is President of the Senate.  With a weak executive, Bryan is more concerned that we’ll see a hegemony of the Senate than of the Presidency.  He’s correct that Montesquieu prescribed a strict separation of the executive and legislative powers as a precondition of liberty.  But it’s the Presidency, with the help of a Congress that has delegated legislative power to the executive, and the complicity of favorable Supreme Court rulings, that has gotten there, not the Senate.

One of the recurring themes also was the preservation (or the alleged lack thereof) of the juries in civil cases.  Now, eventually this was rectified in the 7th Amendment (thank you, George Mason), but what’s interesting here is the rhetoric.  The anti-Constitutionalists assume that this was a deliberate act by the Convention, in order to help the higher courts usurp the lower courts, and to weaken liberties.   In fact, this point was debated in the Convention, in the context of a Bill of Rights.  But the reason that some opposed including it in the Constitution was that the laws varied from state to state, and that detailing which cases were appropriate for juries would be difficult.  (There are some civil cases that traditionally did come before judges rather than juries; in such cases “equity” law was said to apply.  I’m nowhere near an expert on what made a case an “equity” case as opposed to a jury case, and apparently the Conventioneers were similarly daunted by setting forth rules for the distinction.)

So, while Bryan and his cohort did get certain concerns correct, they missed others by a wide mark: it wasn’t the Senate that was the threat, and the fact that the Convention missed some elements didn’t imply a grand conspiracy to deprive people of their liberty.

UPDATE: After further reflection, the importance of juries in civil suits, which are  by definition property rather than criminal cases, reinforces the fact that property rights were seen (and ought to be seen) as identical with political rights.

I’d also point out that Centinel’s concern that the federal courts would inevitably trump the state courts in civil cases has also not borne out.  One instance is liability law, where the worse abuses have occurred in state courts (take asbestos, for instance), and the federal courts have been powerless to stop them.  The situation has only gotten better with the revisions of state law to make them more sensible.

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True Grit

Definitely not your father’s True Grit.

I hadn’t even seen the John Wayne original from 1969 until TCM showed it on Wednesday evening.  (Like most people, I still haven’t read the original Charles Portis book on which both movies are based.)  But seeing the two in such proximity has some advantages and disadvantages.  Unlike many, I don’t have old memories of the original to fall back on, only a recent side-by-side comparison.  Given the film-making of the time, the attitudes, the position that The Duke held in the national pantheon, the original can only suffer by comparison.

Much has been made of the fact that John Wayne’s only Oscar was for his portrayal of Rooster Cogburn, but Cogburn comes across to me as much less complex a character than, say, Tom Doniphin in The Man Who Shot Liberty Valance.  By the time of True Grit, Wayne’s career was already near the end of his career, and the Oscar has the feel of a career award.  Despite himself, Wayne is less cantankerous and curmudgeonly, and more avuncular.

There’s none of that with Jeff Bridges.  Bridges is a tough, ornery, all-business (when he’s not drinking) Cogburn.  When Wayne says he robbed a high-interest bank in New Mexico, we forgive him because he’s The Duke.  When Bridges says it, we forgive him because he a tough SOB who’s proven his worth.

In the confrontation between Cogburn and the Texas Ranger LeBeouf (Glen Campbell in the original; Matt Damon in the remake), Wayne by far gets the better of it.  In the remake, Damon’s LeBouef is verbose, but not the borderline-clownish that Campbell’s was; the tension between LeBeouf and Cogburn is much more evenly matched, much more serious, the anger much closer to the surface.

Hallie Steinfeld also plays a more serious, more persuasive Mattie Ross than Kim Darby.  Just as tough, but called on the manage both Cogburn and the Cogburn-LeBeouf relationship in a way she doesn’t in the first movie.

On the whole, a grittier Grit, closer to the bone, and closer to the novel.

UPDATE: Lori Horn reminds me that the scenery in the original is breathtaking.  True enough, given that the scenes in the “Indian Territory” were mostly shot in southwest Colorado, in the San Juan Mountains.

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Ghosts of Constitutional Debates Past

I’ve been working my way (slowly) through the Library of America’s Debate on the Constitution, a two-volume set.  While the Federalist is a  – the – American political philosophy, it represents the thoughts of only three authors, and can’t possibly answer all of the concerns that people had about the Constitution at the time.  The entire debate is a much more complete document, all the more valuable because it preserves the dissenting opinions.  We do that in judicial cases because the reasoning itself may be important to future decisors.  It puts the defenses in context, perhaps anticipates future arguments.

One of the first arguments against the Constitution comes in a letter from “Centinel” (they had plenty of variant spellings back then), one Samuel Bryan, in a letter to the Independent Gazetteer, dated October 5, 1787, less than a month after the Convention adjourned.  While we consider the Constitution to be brilliant applied political philosophy designed to protect our God-given natural rights, the opponents were often concerned that it would prove to be a path to despotism, that is, that the Constitution itself contained the means to undermine liberty.  Since the Independent Gazetteer didn’t survive long enough to sign a deal with Righthaven, I’ll quote at length.

He is skeptical of John Adams’s claim that a balance of powers at the federal level is even achievable:

This hypothesis supposes human wisdom competent to the task of instituting three co-equal orders in government, and a corresponding weight in the community to enable them respectively to exercise their several parts, and whose views and interests should be so distinct as to prevent a coalition of any two of them for the destruction of the third.

One could reasonably argue that the executive, with the collaboration of the Court and the capitulation of the Congress, has been progressively acquiring legislative powers.

Bryan anticipates the misreading of the Progressives of Article I Section 8:

“the Congress are to have the power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense, and general welfare of the United States; but all duties, imposts and excises, shall be uniform throughout the United States.”  Now what can be more comprehensive than these words; … to grant… the absolute controul over the commerce of the United States….The Congress may construe every purpose for which the state legislatures now lay taxes, to be for the general welfare, and thereby seize upon every object of revenue.

He’s focusing on taxes, but the abuse of the general welfare clause is indisputable, and he anticipates the erasure of the proper reading of the Commerce Clause.

Bryan also predicts the hegemony of the courts, in particular, the hegemony of the federal courts over state courts, and of the erosion of state power at the hands of the federal government in general.

…it is more probable that the state judicatories would be wholly superceded; for in contests about jurisdiction, the federal court, as the most powerful, would every prevail.

To put the omnipotency of Congress over the state government and the judicatories out of all doubt, the 6th article ordains that, “this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land…”

By these section, the all-prevailing power of taxation, and such extensive legislative and judicial powers are vested in the general government, as must in their operation, necessarily absorb the state legislatures and judicatories, and that such was in the contemplation of the framers of it…

Now to be fair, in order to reach these conclusions, he has to ignore other sections of the Constitution, distort the Framers’ clear intent, and claim that later rebuttals are in bad faith.  Congress is explicitly limited in the types of taxes it may levy.  The Commerce Clause is not as expansive as he reads it.  The General Welfare Clause is not blanket permission to enact any sort of law Congress wants to.   Some of them would later be explicitly rectified by the Bill of Rights.   Others would indeed be exploited by judges looking to change the system.  But for him, these failings he claims to have discovered are a bug; for the Progressives, they’re a feature.

While we consider Madison, Hamilton, and Jay to be the heroes of the piece,  that Centinel predicted so many of the distortions later introduced by the Progressives lends his arguments relevance.

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More Lefty Back to the Future

Of all the ideas for public transportation, one of the nuttiest to take hold in recent years is to revive streetcars.  They have all the disadvantages of light rail, on a small scale.  These include inflexibility and large capital costs.  They carry a few more people than buses, but no faster, and are more expensive to build and maintain.  They offer virtually unlimited opportunities for graft in the form of routing and station location.  They offer the additional benefit of being anti-car while not replacing enough bus service to reduce traffic.  In short, they’re a bureaucrat’s dream, a union’s gravy train, a taxpayer’s nightmare, and a commuter’s inconvenience.  No wonder the Left loves them.  (See the numbers here, pages 19 & 20.)

The Federal government has awarded Denver $2 million to continue to study such a boondoggle from the State Capitol out to the Fitzsimmons campus.  Of course, for the Feds this is chump change, seeing as they’ve already funded over $300 million of your money for other cities to build these things (p. 48 & 51).  That same presentation has several different proposals for lines east of Civic Center, costing between $100 million and $175 million.

For that, we won’t replace buses, but will allow politicians and political appointees to collect their share in graft.  We won’t make traffic and better, and will likely make it worse.  When neighborhoods change, we’ll have to lay more track instead of just re-routing bus lines.  All in all, the $2,000,000 alone would pave a lot of roads, but the $175,000,000 of the largest project would pave a lot more, and repair a fair number of bridges as well.

If after all that, for some reason, you’re still nostalgic for streetcars, you shouldn’t go away empty-handed:

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Finally, The Photos From the Las Vegas Road Trip






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Did Colorado Republicans Really Outperform Democrats?

Since the election, Colorado Republican Chairman Dick Wadhams, who has still officially not announced for re-election, has been regularly sending out emails defending his and the state party’s performance during the campaign season.  In particular, he has addressed two issues that are not always clearly understood: vetting, and the role of the party’s turnout operations.  I’ll save vetting for another post, because there are some worrisome signs that the Old Bulls of the party have learned nothing from this cycle, and it deserves a separate treatment.  For the moment, let’s talk about turnout operations.

Now, before I start, I want to make it clear that I’m not here to defend or attack Dick’s overall performance as party chairman.  Dick was personally very supportive during my 2008 run, and financially supportive at the beginning of the 2010 campaign.  It’s for that reason among others that I want to stay clear of personalities.  He’s more than capable of speaking for himself and defending his own record with its considerable accomplishment.  He doesn’t need me to do that.

Now Dick’s answer to the question I pose in the title is a resounding, “Yes!”  He points to the large edge that Republicans had in turnout.  In a state with about as many registered Dems as Republicans, many more Republicans turned out to vote.  Dick would argue that that turnout edge may not have been enough to save Ken Buck, but did provide the edge in the other statewide races, and took back the State House of Representatives. He draws a line – traditionally correct – between the party’s job to turn out its voters and the candidate’s job to persuade unaffiliated voters.

And by that standard, the party succeeded and the candidates – all of them, except for John Suthers – failed.  Because the only way you get a 100,000 vote edge in turnout and win by substantially less than that is if the unaffiliated voters turn against you.  In this case, they turn against you radically and decisively in a way that’s not predicted in any poll leading up to the election.

I believe that the Democrat turnout effort was focused not only on registered Democrats, but also on Democrat-voting unaffiliated voters.  That the Left – not just the Democrat party – has done a better job of identifying, contacting, engaging, and recruiting those unaffiliated voters who lean their way than we have, while we are content with robocalls to right-leanings U’s in the weeks leading up to the election.  I believe that their focus on social networking and social media, both on their own sites and on larger social networking sites, has helped them identify these voters.

It is also true that, for the moment, the Democrats can call on the foot soldiers of the labor unions to go walk precincts on Election Day, which provides them with an advantage in that regard.  But this is not new, and there is no reason we can’t develop our own sources of manpower.

What I am seeing from the State party is a lack of constructive self-criticism, instead focusing on what went well, rather than on how the game has changed and what the proper responses to it are.  The Republicans are playing checkers, and the Democrats are playing three-dimensional chess, and we had better hope that the answer to the above question is a decisive, “No.”  Otherwise, we have pretty much lost the middle permanently, and are looking not at the middle of a comeback, but at a high-water mark.  I don’t believe that’s true; there’s almost no polling that supports that thesis.  But we’ve probably come as far as we can with the old model of how things work.

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Colorado Misses Out On Another Wave

The Wall Street Journal reports that resource-rich states are recovering quite well from the recession:

Wages of workers in 10 states and the District of Columbia have more than regained ground lost during the recession, with the recovery concentrated in regions benefitting from the commodities boom and federal spending.

Many of the laggards, meanwhile, are states where the housing bust hit hard or where the collapse of the auto industry and other old-line manufacturing pulled down wages during the slump, according to a Commerce Department figures released Friday.

That Colorado is a resource-rich state can hardly be doubted.  We have coal and natural gas in abundance, minor metals like molybdenum, potentially uranium.  While real estate has suffered, we never had the kind of overbuilding seen in Florida, Arizona, or southern California, so we never had the kind of collapse, and manufacturing hasn’t been a mainstay of the Colorado economy for a while.

So why aren’t we recovering?  Why is the state’s unemployment up to 8.8%, with only modest improvements projected (for whatever that’s worth)?  Well it’s true that, unlike DC, northern Virginia, and suburban Maryland, we lack the ability to coerce the rest of the country to pay for our standard of living.  But more importantly, the outgoing Ritter administration and its Democrat allies have waged an ongoing war against the exploitation of our natural resources.

I don’t want to see the state return to the boom-bust cycle that characterizes an economy overwhelmingly dependent on drilling and mining.  But Colorado is clearly suffering from a national policy -seemingly unique in the industrialized world, and reinforced by state government – of refusing to exploit natural resources that our economy actually depends on.

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