Scalia Is A Double-Edged Sword

I recently praised Justice Scalia for his vigorous defense of free speech, but now I must criticize him for his less-than-consistent interpretation of the 14th Amendment. Via tristero comes the revelation that Scalia believes that it provides no protection against discrimination on the basis of gender or sexual orientation.

Scalia, the father of "original public meaning" originalism, has somehow convinced himself that the following doesn't cover women:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

His rationale?

You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that

Which seems to be a pretty clear example of intentionalism, a doctrine which Scalia allegedly rejects... except when its inconvenient. Boo hiss.

I Do Not Think That Word Means What You Think It Means

Seems like its Economics Tuesday here at Shiny Ideas. Next up is this statement from Amanda Marcotte:

I would also like to take this time to point out that the libertarian argument that markets correct themselves without interference from the government is neatly disproved by the very existence of Power Balance bands, and alternative medicine in general. The notion that consumers are generally rational and that bad products will be shoved off the market without assistance from regulation is farcical to begin with, but these wristbands were selling like hotcakes.

Eh... no. Amanda is making a (common) mistake regarding the meaning of the word "rational" as it applies to economic decisions. Per Wikipedia:

The "rationality" described by rational choice theory is different from the colloquial and most philosophical uses of the word. For most people, "rationality" means "sane," "in a thoughtful clear-headed manner," or knowing and doing what's healthy in the long term. Rational choice theory uses a specific and narrower definition of "rationality" simply to mean that an individual acts as if balancing costs against benefits to arrive at action that maximizes personal advantage.[4] For example, this may involve kissing someone, cheating on a test, using cocaine, or murdering someone. In rational choice theory, all decisions, crazy or sane, are postulated as mimicking such a "rational" process.

Rational choice theory has little or nothing to do with whether people are behaving "rationally" in the colloquial sense of the word. And, honestly, libertarianism doesn't say much of anything directly about either rational choice theory or the efficient markets hypothesis (which Amanda also seems to be implicating via her use of the phrase "markets correct themselves"). What libertarianism does do, however, is recognize that people have different conceptions of "the good" which, of necessity, means it is broadly tolerant of people doing things which may appear foolish/irrational provided that they don't impinge on the liberties of other. This includes spending money on quack remedies.

The alternative view, which Amanda is implicitly endorsing, is that people are too dumb to be allowed to spend their money freely¹. Instead government must become the gatekeeper and arbiter of what we can and cannot do, can and cannot buy. Which is a horrendously bad idea for the following reasons:

1. It denies the fundamental autonomy of our fellow human beings. People must be given the liberty to make choices, even ones which we (subjectively) judge to be ill-advised.
2. Giving such arbitrary license to the government leads, in its worst extremes, to stupid, pointless shit like the War on Drugs.
3. Increased regulation of advertising, in this case at least, is a band-aid. The inability of the general public to evaluate dubious medical claims is ultimately a failure of science education, so the most effective solution is to improve science education.

Finally, I want to address the following:

Of course, the next gambit in the argument is that people who make stupid choices Have It Coming. Of course, this presumes---irrationally---that there’s an objective standard of justice in the universe and that bad things only happen to people who are stupid or mean.

I call bullshit; that's a strawman. Libertarians recognize that bad shit often happens to people for no reason at all. Our contention is that, for reasons such as those given above, trying to protect people from all the bad shit that might befall them is worse, in the long run, than allowing people to fend for themselves. The idea that libertarianism is the refuge of scoundrels and charlatans is demonstrably false.

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1 I'm actually inclined to agree with her as a matter of personal opinion, but that doesn't mean that my opinion makes good public policy.

Out With The Old, In With The New! Or Not...

James Galbraith (and Digby and ql) thinks that we should lower the retirement age so that the youngsters can find jobs:

In the United States, the financial crisis has left the country with 11 million fewer jobs than Americans need now. No matter how aggressive the policy, we are not going to find 11 million new jobs soon. So common sense suggests we should make some decisions about who should have the first crack: older people, who have already worked three or four decades at hard jobs? Or younger people, many just out of school, with fresh skills and ambitions?

Urg, this seems to be one of those zombie concepts that just refuses to die. Galbraith's analysis is based on the assumption that there's a fixed amount of work to be done and that if the old folk just step aside those positions will suddenly be available to the new generation. Allow me to quote Mr. Krugman:

Economists call it the "lump of labor fallacy." It's the idea that there is a fixed amount of work to be done in the world, so any increase in the amount each worker can produce reduces the number of available jobs. (A famous example: those dire warnings in the 1950's that automation would lead to mass unemployment.) As the derisive name suggests, it's an idea economists view with contempt, yet the fallacy makes a comeback whenever the economy is sluggish.

Clearly, reality is more complicated. The young people have to be in the right place and have the right skill set, there are all sorts of knock-on effects to changing the retirement age, and so on. I'm really surprised that Digby is falling for that; she's usually such a sharp thinker.