A Stitch in Haste

And who, you might be wondering, is Ms. Maureen Felix of West Orange, New Jersey?

She holds the prestigious position of "random interviewee on the street" — and now seeks the higher office of your mommy:

The thought of taxing a Big Mac or a Wendy's burger came up at a New Jersey Hospital Association meeting where Gov. Jon S. Corzine was asked if it could be an option to help fund struggling hospitals. At the meeting, he reportedly called it a "constructive suggestion."

A spokesperson for the governor, however, told CBS 2 on Wednesday: "The governor is open to reasonable solutions to help solve our financing problems, but there are no plans for any fast food tax."
...
"I think this country has gone too much in the direction of fast and unhealthy food, and if people are taxed they may terminate that and turn toward more healthy foods," said West Orange resident Maureen Felix.

Of course, why anyone should give any kind of a damn what Ms. Maureen Felix of West Orange, New Jersey, thinks about whether fast food (defined how? by whom?) should be taxed (to what extent? with revenues deployed how?) — or about anything else, for that matter — remains unanswered. As does the precedent question of what basis a free society has in the first place for using taxation to control behavior rather than solely to raise revenue to fund legitimate public goods.

Because to nanny-staters, no such reason is required. Ms. Maureen Felix of West Orange, New Jersey, has an opinion, damn it. The fact that her opinion is baseless, uncorroborated, un-American, anti-freedom — not to mention mind-bogglingly stupid — in no way changes the fact that Ms. Maureen Felix of West Orange, New Jersey, has an opinion, damn it. What right do you have to mock it? And, more importantly, what right does a politician have to ignore it?

She is, after all, Ms. Maureen Felix of West Orange, New Jersey!

Kip's Law: Every advocate of central planning always — always — envisions himself as the central planner.

Via Fark. More thoughts at QandO.

Far too much cyber-ink is being spilled regarding a new book by a noted legal scholar, Cass Sunstein, and an equally noted economist, Richard Thaler, called Nudge.

An excerpt from the book's introduction:

Many of the policies we recommend can and have been implemented by the private sector (with or without a nudge from the government). Employers, for example, are important choice architects in many of the examples we discuss in this book. In areas involving health care and retirement plans, we think that employers can give employees some helpful nudges. Private companies that want to make money, and to do good, can even benefit from environmental nudges, helping to reduce air pollution (and the emission of greenhouse gases). But as we shall show, the same points that justify libertarian paternalism on the part of private institutions apply to government as well.

The premise of Nudge, usually referred to as "soft paternalism" (or, outrageously, "libertarian paternalism") can be summed up with great ease:

You're stupid.
If "stupid" seems too harsh a word, then substitute "irrational."

You're irrational, for example, because you don't max out or even contribute at all to your 401(k) plan, even if your employer matches your contributions. You're irrational because you don't sign your organ donor card. You're irrational because you make all kinds of choices that are "wrong."

What (supposedly) makes Sunstein and Thaler different from any other two-bit hubris-drenched central planner wannabe is that they claim to define "wrong" not by their own subjective tastes and preferences, but by objective standards. To ignore a costless opportunity to get free money is, they submit, objectively irrational. To deny some innocent person access to your organs after you're dead is, they submit, objectively irrational. And so on.

What also (supposedly) makes Sunstein and Thaler different is that they claim not to want to coerce anybody to behave rationally. They do not want to force you to enroll in your 401(k) plan. They do not want to seize your body after you die. All they want is to rejigger the rules a bit so that you do not have to "choose to be rational" (e.g., by having to opt in to a 401(k) plan) but rather that you would have to "choose to be irrational" (e.g., by having to opt out of your 401(k) plan). Yes, they're going to be paternalistic toward you, but not at the point of a gun.

All they want to do is "nudge" you.

What of course does not make Sunstein and Thaler different, meanwhile, is that they want to be ones doing the nudging. Kip's Law prevails yet again.

Two things amaze me about the excessive hype over Nudge. First, it seems to me that the book's thesis is, at the end of the day, its own worst enemy. A complex, dual-disciplined (i.e., law and economics) theory that, when put to the test, can only generate a handful of de minimis policy recommendations — default opt-in to 401(k) plans, a presumption of consent in organ donation, etc. — can hardly be described as revolutionary — or, for that matter, useful. To the extent that the soft paternalists truthfully say, "this far, no further" (i.e., to the extent they are eager to assure us that their proposals are "no big deal"), then they only win by losing. If the debate is simply whether the entry for "soft paternalism" should read, "harmless" or "mostly harmless,"* then the soft paternalists have lost that debate before they've even started.

Second, and far more relevant in the context of Kip's Law, is that the debate is definitely not between "harmless" and "mostly harmless." No activist legislator, nanny-stater or other anti-freedom malcontent is going to take a theory like "soft paternalism" and invoke it only in the context of 401(k) plans and organ donation. Even if all you promise to do is "nudge," then suddenly you're going to start seeing lots of things that need "nudging."

The tax code is one giant nudge: nudging us into home ownership, child rearing, charitable donating, etc. Apologists for Social Security insist that it is merely a "nudge" into saving for retirement (indeed, Thaler was a leading advisor to President Bush on Social Security reform). Hillary Clinton insists that she is not a health care socialist — she just wants to "nudge" us into (compulsory) insurance programs (which, somehow, does not constitute "socialized medicine" — but that's a whole other blogpost).

Practically any incursion into personal autonomy can be repackaged as a "nudge" — from seat belt laws to the war on drugs. Some anti-liberty laws are "nudgier" than others, to be sure. But all derive from a belief that the government is legitimately authorized not just to protect us from each other, but also to protect us from ourselves — to "nudge" us.

Mario Rizzo, a noted free-market economist at NYU, puts this in terms of "slippery slopes" —

The new paternalism claims that careful policy interventions can help people make better decisions in terms of their own welfare, with only mild or nonexistent infringement of personal autonomy and choice. This claim to moderation is not sustainable. Applying the insights of the modern literature on slippery slopes to new paternalist policies suggests that such policies are particularly vulnerable to expansion. This is true even if policymakers are fully rational. More importantly, the slippery-slope potential is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed to help. Accepting the new paternalist approach creates a risk of accepting, in the long run, greater restrictions on individual autonomy than have been heretofore acknowledged.

Or you can just "opt out" of Rizzo and "opt in" to Lewis Black: Government is human beings.

More thoughts from Will Wilkinson.

Kip's Law: Every advocate of central planning always — always — envisions himself as the central planner.

---

(*Explanation, for the uninitiated, here.)

A libertarian relegates himself — and all his confreres — to the (supposedly noble) role of court jester:

So maybe the moral question isn't, what use can libertarians be to liberals, but what use can libertarians be to anybody? We are not going to bring about either a minarchist or anarcho-capitalist society anytime soon, where "soon" can be translated as ever. Truth be told, I'm not convinced that a purely minarchist society would be all that great to live in. As for anarcho-capitalism, I think even a lot of an-caps agree that it requires a long-term project of learning how to live that way as society. I think libertarians are, rather, the court jesters of politics. I mean that in a good way. We whisper to Caesar that that he is mortal. We caper about, turning ourselves blue if necessary, reminding everyone that government power is inescapably violent and inescapably self-interested. You're probably not going to care, but we're going to make you actively decide not to care. And sometimes, maybe you'll care after all. As a class, we can be stupendously silly people, believing and saying the most absurd things. But our rulers are silly people too, in different and more malignant ways. And as fools, we have the freedom to say so.

I would have preferred "Don Quixote" to "court jester." Just as inaccurate, but less insulting.

As I commented at the blog that brought this "stupendously silly" post to my attention:

This is the classic anti-libertarian straw man argument. How sad to see it come from a self-professed "libertarian."

Not all policies are binary; indeed almost none are.

Libertarians can argue for, work for, and achieve incremental change, not just asymptotic (i.e., never-achievable) "ideal states."

Maybe we can't ever bring about "separation of economy and state" — but we can bring about deregulation of this industry or that.

Maybe we can't ever bring about a taxless society — but we can bring about lower tax rates based solely on funding legitimate public goods rather than on controlling behavior or bringing about somebody else's subjective notions of "social justice."

Maybe we can't ever bring about perfect individual autonomy — but we can show why the war on drugs is a disaster and work towards its curtailment.

Maybe we can't ever bring about the abolition of the public square (or public schools), but we can keep the theocrats from turning them into their auxiliary pulpits.

One final thought: Libertarians don't need, either morally or pragmatically, to win over a single voter or politician — just judges (compare Lawrence v. Texas to Kelo v. New London). And, net-net, we're pretty good at that (not infallible, but pretty good).

This (utterly libertarian) framework is both legal and just — and why, in the very long run at least, libertarians tend to win.

It's quite simple really: Ignoring futility is not a virtue. But libertarianism is not futile.

Homeowners insurance is a truly private market. Anyone screeching about a "homeowners insurance crisis"?

Auto insurance is not quite a truly private market, but it's light-years beyond health insurance. People may grumble about their car insurance, but at least it's a competitive industry (just ask Dennis Haysbert, or the gecko) where people can switch carriers with relative ease and choose from a variety of options that best suits their individual needs.*

The only people who have anything remotely similar to "private health insurance," meanwhile, are the self-employed. They too are affected by the tax code (which is why they are not part of the "5%" the Urban Institute mentions), but at least they enjoy the flexibility to make their own insurance decisions and comparison shop for coverage that they most prefer.

Medicare, on the other hand, is a financial disaster in which the working poor pay the health care costs of the retired rich — this incidentally somehow constitutes being "progressive." The truly enlightened approach — taxpayers providing basic health care to the incompetent and indigent as part of a humane social safety net — is already in place via Medicaid (assisted by not-for-profit institutions and private charity). To the extent that Medicaid is not covering everyone and everything it should, then let's expand it (unlike the Democrats' recent despicable SCHIP fraud, expanding Medicaid would not send most libertarians to the barricades). If most libertarians, provided with persuasive evidence of its propriety, would be okay with simply expanding Medicaid, then why is it such an abominable concept for the "socially concerned" radical left (whom, recall, universally insist that "compassionate libertarianism" is an oxymoron)?

One way or the other, let's not pretend that there is a universal "right to suck at the taxpayer teat" cloaked as a "right to health care." And let's certainly not pretend that the current system is a "private market" or that its shortcomings are a "market failure."

---

*Note, however, the insolent lie that health care socialists use about how "we mandate that people have auto insurance." What "we" mandate in most states is that people have liability coverage, to prevent innocent third parties from incurring the costs of a motorist's negligence. But private health insurance is not analogous to liability coverage — it's analogous to collision coverage: insulating you from your own costs, not someone else's. I am not aware of any jurisdiction that requires motorists to carry collision coverage. In that sense — the only sense that matters — auto insurance is indeed a "truly private market." (As for the follow-up lie that health insurance is indeed analogous to liability coverage, because "we all pay for the uninsured" — see this post.)

Note also that "auto insurance" does not cover routine maintenance, and certainly not gas & tolls. Yet what we call "health care insurance" — which as Arnold Kling has noted is really "health cost insulation" — does include routine (and perhaps not so routine) "maintenance" expenses such as annual physicals, flu shots and disease tests. This removal of direct payment for direct service is yet another reason why health care expenses are rising disproportionately and why the current system is hardly a "truly private market."

Possibly not much:

A source with close ties to the administration says the mayor wants to remain in public office after his tenure ends on Dec. 31, 2009, and is discussing running for a third term.
...
One tantalizing scenario that has been discussed, according to the source, has Bloomberg asking a new Charter Revision Commission to put a referendum on the ballot amending term limits so that he could serve a third term.
...
Bloomberg said during his January State of the City address that he planned to appoint the new Charter Revision Commission and have it conduct a top-to-bottom review of government. He would appoint all members of the commission and could request the body put the term-limit issue on the November ballot.

Another "source" says the report is nonsense. Let's hope so.

Even if the report is bunk, what is undeniably true is that Bloomberg is as megalomaniacal a moral defective as anyone in current American politics. If he does not seek a third term, or the White House, or the governor's mansion, it would not be due to a lack of appetite for power on his part.

From his first day in office, Bloomberg has proceeded from the dual premises (to him, they're axioms) that: (1) every idea he has is, by definition, brilliant; and (2) everyone who disagrees with him is, by definition, a moron. He has, more brazenly than any currently serving politician I can name, simultaneously climbed the twin summits of "worst activist legislator" and "worst nanny-stater." He has set entirely new standards of hubris, by which every future moral defective New York politician will be measured.

As joyous a day as January 20, 2009, will be, I am at least as excited about January 1, 2010, when Bloomberg will (hopefully) morph from "dedicated public servant" to "dedicated public gadfly."

Robert J. Samuelson proffers one typically collectivist answer:

Except for oil executives, no group of business leaders is now more resented than the titans of finance — bankers, traders, hedge fund managers. They are blamed for the housing crisis, global financial turmoil and a possible recession. But this broad indictment, though true, is only half the story. The job of modern finance is to allocate Americans' nearly $2 trillion in annual savings to its most productive uses; the paradox of finance is that its virtues and vices come tightly packaged together.

This is, of course, utter nonsense.

The "job" of modern finance is the same as any other industry's "job" — to provide a good or service that customers want. Whether that good or service (i.e., the supply) or customers' desire for it (i.e., the demand) are more or less (or not at all) "productive" is completely beside the point.

The "job" of a food company (or especially a restaurant) is not necessarily "to allocate food to its most productive uses." The "job" of a food company (or very especially a restaurant) is to satisfy customers. "Productivity" (defined however you like) is secondary at best.

So too with "modern finance" — and every other sector in a capitalist (i.e., free) economy: Who wants what, who is willing to provide it, and can they be brought together in voluntary exchange? All else is economic detritus.

If competent consenting adults wanted to take on risky levels of mortgage debt, and if banks and other institutions wanted to loan them the funds to do so, and if other companies wanted to buy up those risky mortgages and package them into complicated (and risky) securities, and if institutional investors wanted to buy those complicated (and risky) securities — then "modern finance" did exactly what it was supposed to do. The fact that so many of these voluntary transactions turned out to be unwise, unprofitable and even calamitous — i.e., if they turned out not to be the "most productive uses" — is not the point. People sought, as is their right in a free society, to take big gambles. The fact that they lost does not constitute a "market failure." Indeed, the exact opposite is true.

There are footnotes, to be sure. Where there was fraud (e.g., predatory borrowers who lied on their mortgage applications in order to exploit lenders), then free markets can indeed be impeded. Such anti-capitalist endeavors were, one could say, an "unproductive allocation of resources." Point conceded.

But that kind of risk is also nothing unique to "modern finance." Unscrupulous sellers — and buyers — try to exploit each other all the time. And in response, we have developed a combination of tort, contract and criminal law to constrain them — glued together by the (capitalist) concept of "due diligence" (i.e., the self-imposed vigilance expected of competent consenting adults in a free society). This system provides all the protection one ought to need.

For the government or its central planner / nanny state apologists to attempt more (bailouts, recisions of contracts, tax breaks, etc.) confuses the orthogonal notions of "market failure" and "market participant failure." The subprime fiasco is strictly a case of the latter; to treat it as the former will only result in the wrong cures being applied to the wrong illness.

To review: Regardless of what one thinks of the propriety of the government blocking strictly private employment contracts between competent consenting adults at the lower end of the work spectrum (i.e., minimum wage laws), the arguments for such incursions upon freedom of contract have exactly zero relevance to the upper end of the work spectrum. Stated differently, malcontents need an alternative rationalization for their disturbed voyeurism regarding "excessive" executive compensation ("Excessive"? To whom? By what standard?)

For some among the hubris class, the the latest fashionable rationalization is the fiction of "rising income inequality." (A fiction, as I explained recently, because income percentiles are not constant over time -- today's "top 1%" are neither yesterday's "top 1%" nor tomorrow's "top 1%," and likewise for the "bottom 20%.")

Others are less creative and just flat out claim the prerogative to subject all transactions to mob veto because -- well, because it's the mob:

Net income at Office Depot fell 23 percent last year compared with 2006; its share price fell 64 percent. Steve Odland, its chief, made nearly $18 million all told -- some 85 percent more than in 2006. With the share price of Toll Brothers, the luxury home builder, plummeting, it seems reasonable that Robert Toll, its chief, got no bonus. Still, the company took steps to ensure that he gets one this year, even if home-building doesn't recover.

It's hard to square the conceit that chief executives are rewarded for improving companies' performance with the fact that chiefs at 10 financial-services firms in the study made $320 million last year, even as their banks reported mortgage-related losses of $55 billion.

Of course, it's only "hard to square the conceit" of what other people make when you try to square it in the first place. And you only try to square it when you suffer from some ignoble mixture of envy and schadenfreude. It's one thing to feel compassion for the less fortunate; it's another thing altogether to loathe the more fortunate.

It's quite simple really: If you are uncomfortable or indignant about what the CEOs of Office Depot and Toll Brothers are paid, then don't invest in Office Depot or Toll Brothers. Don't work there. Don't shop there. But don't project your fiscal sociopathy onto others and pretend that you're not the one with an pathological fixation on something that is, literally, none of your business.

More:

In any case, the combination of inexorable income growth at the very apex of society and stagnation everywhere else can serve no public good.

The Bush administration has focused its economic policies on cutting taxes for the very richest Americans. Taxation needs urgently to become more progressive. If the United States is to continue to embrace globalization, technological innovation and other forces that contribute to economic growth, it has to share the spoils better.

One wonders how to say this any more remedially: Private contracts do not need to serve a "public good." Person A paying, out of his own pocket, Person B a sum that Person C happens thinks is "too high" is not an "externality," and Person C has no right, either alone or ganging up with his neighbors, to block or punish that transaction.

The rest is just flat-out lying: The Bush tax cuts did not benefit "the rich" at the expense of "the poor" and the federal income tax is already obscenely progressive. The data are what they are; wishing they were "oppressive" does not make them so.

(One might also note -- since the Times can't be bothered -- that Internal Revenue Code Section 162(m) already disallows the deduction of salaries above $1 million as a business expense for publicly traded corporations -- a figure which, to the best of my knowledge, has never been adjusted for inflation. Such salaries are therefore double-taxed much as corporate dividends are double-taxed. At some point "punitive" tax policy -- which is abhorrent enough -- becomes downright sadistic tax policy. Except to the Times -- for which too much bloodsucking is never enough.

---

I find it laughably ironic, incidentally, that someone at the Times chose the headline "Corporate Croesus" for this silly editorial. For those not in the know:

Croesus consulted the oracle of Delphi in Greece. The oracle replied: "If Croesus goes to war he will destroy a great empire." So Croesus went out to meet the army of Cyrus and was utterly defeated, he destroyed his own great empire.

Leave it to the Times not to understand the difference between capitalism and warfare, between an entrepreneur and an emperor, between selling and plundering, between the civility of private contracts and the barbarism of mob rule.

More:

The old story goes on to relate that Cyrus ordered Croesus to be burned alive. When Croesus saw the flames creeping upward to consume him, he remembered the words of the wise Solon and cried out, "O Solon! Solon! Solon!" Supposedly Cyrus was so moved by the story of how Solon had warned the proud king that he ordered Croesus to be released. Cyrus asked to Croesus why he shouted Solon's name, and Croesus asked him another question "what your soldiers are doing now?", showing the Persian soldiers taking all the treasures and destroying everything; Cyrus replied "They are plundering your city"; then Croesus said "They are not plundering my city, it's your city now and your soldiers are destroying your city". After that short conversation Cyrus the Great stopped his soldiers.

The worst thing that can ever happen to an advocate of central planning is to actually become a central planner. For when they do, then learn the hard way that there is indeed a difference between building a business and seizing it, between running a firm and controlling it, between making something and stealing something.

Just a quick pass-long so Tony doesn't get upset with me:

A federal magistrate has overturned Virginia's decades-old ban on alcohol-related advertising in college newspapers, saying that the law violates the student publications' constitutional right to free speech.

U.S. Magistrate Judge M. Hannah Lauck sided with the student newspapers at the University of Virginia and Virginia Tech, which said the restrictions on alcohol references -- including phrases such as "happy hour" -- in print and online media hampered their ability to make money because they've had to turn down potential advertisers.

My long-standing view is unchanged: Truthful commercial advertising should enjoy full First Amendment protection on a par with political speech. The fact that these are college media outlets is utterly irrelevant.

Also irrelevant is the notion that bars or breweries have no "need" to advertise (e.g., via college publications or websites). Such arrogant micromanaging conveniently blanks out the fact that there are students (or graduate students or employees or whoever) who are over 21, not to mention the lack of any evidence whatsoever to suggest that advertising a happy hour "worsens" alcohol abuse, intoxication-catalyzed crime or injury, or any other purported "social harm." (And even if it did, so what? The First Amendment ought not yield so impotently to dubious alcohol-related "externalities" any more than it ought yield to dubious pornography-related "externalities.")

The case is Educational Media Company v. Swecker, No. 3:06CV396 (E.D. Va., March 31, 2008) (PDF - 36 pages)

"Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority."
--McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)

Yet another politician confuses the U.S. with China or North Korea:

Kentucky Representative Tim Couch filed a bill this week to make anonymous posting online illegal.

The bill would require anyone who contributes to a website to register their real name, address and e-mail address with that site. Their full name would be used anytime a comment is posted.

If the bill becomes law, the website operator would have to pay if someone was allowed to post anonymously on their site. The fine would be five-hundred dollars for a first offense and one-thousand dollars for each offense after that.

One wonders what goes through the minds of hillbilly legislators when they proclaim their idiocy to the world in this manner. One wonders how such people figure out which shoe goes on which foot. (Do they even wear shoes in Kentucky?)

One can I suppose forgive Mr. Couch for not being an attorney, but can one really forgive him for not asking an attorney whether anonymous speech (such as, e.g., The Federalist Papers) is protected by the First Amendment? Or whether the question of anonymous Internet posting has been previously addressed? Or can one really forgive him for not taking all of ten seconds, four words and Google to find his own answer?

And, most importantly, can one forgive him for not giving a damn one way or the other? He had a jackass proposal tailored to his jackass constituents. What does the Constitution have to have do with it, right?

Just another hard-working day for another hard-working politician. Unfortunately.

(Via Slashdot.)

As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
--Pierce v. Society of Sisters, 268 U.S. 510 (1925)

Some commentators, not unreasonably, are pointing out that the decision by a California intermediate appeals court finding that there is no "right to uncredentialed homeschooling" is actually based on long-standing precedent, including Pierce v. Society of Sisters, quoted and hyperlinked above.

One succinct example from QandO:

So, I'm not sure what all the uproar is about, at least in terms of the legal issues. The Supreme Court made this determination in 1925.

The "uproar," as I explained in a comment at that blog, is as follows:

Are you suggesting that Supreme Court decisions are never wrong or outrageous?

And, incidentally, your reading of Pierce is itself wrong. It did not explicitly hold there is "no right to homeschool." It held that a state may "require that all children of proper age attend some school." The notion that (acceptable) homeschooling is not "some school" is a novel and controversial interpretation.

Given that Pierce is widely considered to be one of the first "substantive due process" cases, it is hardly surprising that libertarians are aghast at seeing it now used as a sword against parental autonomy. It would be akin to suggesting that Roe v. Wade authorized state laws requiring compulsory abortions.

Again, the question, properly framed, is not whether states should have the power to ban homeschooling, but instead what authority states should have to prevent bad homeschooling, with "bad" determined on a case-by-case basis in the same way that the state intervenes in matters of child abuse or neglect.

As someone who has been warning my fellow libertarians for some time now about not being too absolutist in insisting that there is an unlimited right of parents to homeschool their children, I felt an especial sense of Whoa! upon hearing that an intermediate appeals court in California held that there is no right whatsoever to home school and that non-credentialed homeschooling can even be prosecuted as a criminal act:

The Second District Court of Appeal ruled that California law requires parents to send their children to full-time public or private schools or have them taught by credentialed tutors at home.
...
"California courts have held that ... parents do not have a constitutional right to homeschool their children," Justice H. Walter Croskey said in the 3-0 ruling issued on Feb. 28. "Parents have a legal duty to see to their children's schooling under the provisions of these laws." Parents can be criminally prosecuted for failing to comply, Croskey said.
...
The ruling was applauded by a director for the state's largest teachers union.

I have no doubt of that last sentence.

It is a fine line (or a massive chasm, depending on your point of view) between insisting, as I do, that there is no right to badly homeschool your child and this court's ruling that there is no right to homeschool whatsoever. Regardless, I do not think it is a line that can be crossed.

The authority to regulate homeschooling derives from the obligation of the government to protect the incompetent -- in this case minor children. To homeschool poorly is simply a variation of child neglect -- malnutrition of the mind, if you will. Indeed, this particular court case began not as a homeschooling charge but as a physical abuse complaint.

But child neglect, like any other offense against another person, should have to be proven on a case-by-case basis. To adopt a bright-line rule that any homeschooling is "bad" homeschooling is arbitrary, irrational -- and likely an unconstitutional violation of due process. Even in the knowledge that some homeschooling will be bad homeschooling, the state should be required to demonstrate that a particular parent is failing to properly homeschool a particular child, just as it should be required to demonstrate that a particular parent is neglecting or abusing a particular child.*

(Indeed, the court addressed this question and preposterously dismissed it: "It is unreasonably difficult and expensive for a state to supervise parents who instruct children in their homes." Facts to support that outlandish, sweeping and conclusory assertion: none.)

The only three explanations for a bright-line rule criminalizing all non-credentialed homeschooling are: (a) intellectual laziness by legislators and judges; (b) budgetary stinginess by the government, or (c) pandering to teacher unions. But not "the best interests of the child." That is the one factor that ought to trump all else and demand a (rebuttable) presumption of propriety regarding homeschooling.

How sad that it does not.

The case is In re Rachel L., No. JD00773 (Ct.App.Cal., 28 February 2008) (PDF - 18 pages) More thoughts at Cato@Liberty South Puget Sound, QandO.

---

*Regarding this "particular parent failing to properly homeschool this particular child," the record should reflect that it was indeed a case of radical fundamentalist Christians trying to provide a typical (i.e., redacted, inadequate and incorrect) "Bible-based" pseudo-education of the kind I have warned about. Indeed, it was the children themselves who sued to be removed from their abusive (but "Christian") parents and thereby receive a bona fide education (with fewer beatings in the process).

You all know the primary Tragedy of the Commons. When property is owned publicly, or its use is subsidized such that the price to use it is artificially low or even zero, it will be overused. If no one owns the meadow and if everyone may freely graze their cows on it, then the meadow will be overgrazed to everyone's detriment.

But there is another Tragedy of the Commons: When property is managed publicly, it will often be underused. The politician or bureaucrat responsible for managing the commons may decide, rationally or irrationally, that sheep should be kept off the commons, or that a new and improved variety of grass should not be planted on it, or that the meadow should be off limits on Sundays, or that gay weddings can't be performed on it, etc.

Exhibit B:

Want to browse Vanity Fair magazine on the Denver airport's free Wi-Fi system? Sorry. You'll have to buy it at the newsstand, because DIA's Internet filter blocks Vanity Fair as "provocative."

You can't get to the popular gossip column perezhilton.com on DIA's Wi-Fi signal, either. Or the hipster-geek favorite boingboing.net. Or the Sports Illustrated swimsuit photos, even though the magazine's bare-breasted cover shot is on prominent display at airport stores, right next to Penthouse and Hustler.
...
[Airport bureaucrats] say they're using prudent judgment in a public, family-friendly atmosphere.

Of course, one bureaucrat's "prudent judgment" is another bureaucrat's "too prudent" and yet another's "not prudent enough." Such is always the case with hopelessly vague and subjective terms such as "prudent" (or, worse, "provocative").

So, in this instance of the "secondary" Tragedy of the Commons, "not free, but unlimited" has been replaced, not with "free and unlimited" but rather with "free, but limited." And arbitrarily limited at that. That's not a per se improvement; it's merely exchanging one constraint for another -- at the whim of a low-level bureaucrat.

An airport may well be a natural monopoly that is best owned publicly. The same cannot be said for wi-fi (which, since it is perfectly excludable, is never a public good). Even wi-fi at a public airport is not a public good. To avoid the secondary Tragedy of the Commons, the Denver airport should stick to its knitting and leave the wi-fi business to bona fide businesses.

---

Incidentally, here is Exhibit A, back from 2006.