January 5, 2009

"Why do you need a Department of Commerce?"

"The Department of Commerce... has no legitimate Cabinet-level function."

***

The link goes to a Reason magazine column by Matt Welch. The first quote comes from Clarence Thomas, and the second quote from Bob Barr. The Thomas quote goes back to a 1987 interview with Reason I hadn't seen before. 1987 was 5 years before Thomas became a Supreme Court Justice. Here's the relevant passage (with some typos from the obviously scanned text fixed):
Reason: I suspect that [Thomas Sowell] might think that the EEOC ought not to exist. Why do you think that this agency should exist in a free society?

Thomas: Well, in a free society I don't think there would be a need for it to exist. Had we lived up to our Constitution, had we lived up to the principles that we espoused, there would certainly be no need. There would have been no need for manumission either. Unfortunately, the reality was that, for political reasons or whatever, there was a need to enforce antidiscrimination laws, or at least there was a perceived need to do that. Why do you need a Department of Labor, why do you need a Department of Agriculture, why do you need a Department of Commerce? You can go down the whole list--you don't need any of them, really.

I think, though, if I had to look at the role of government and what it does in people's lives, I see the EEOC as having much more legitimacy than the others, if properly run.
Not really that strong of a statement against the Department of Commerce, is it?

Skipping ahead, I see Reason asks the very question that sets off my anti-libertarian feelings. From the interview:
Reason: Say I'm a private employer and I'm a racist, and no matter how qualified a black candidate is I don't look at him. Isn't it my right to hire whom I choose? Should the state force me to hire somebody?

Thomas: I guess theoretically, you're right. You say, it's my property and I can do as I damn well please. I'm able to choose my wife, I can choose my employees. I can choose where I live, I can choose where I want to locate my business, the whole bit. I think, though, that we've embodied the principle of nondiscrimination because we don't have a homogeneous society. And the problem is that we had state-imposed racism in our society. We had segregation and slavery that was state-protected, state-imposed, state-inflicted. The state can't undo the harm that was done, but I feel very strongly that if there is any role for the state, it is to protect us from others.

Let's look at it from the other side. When you prevent somebody from participating in our free society and the economics of our free society, I have some real problems. That's a right to me.

Reason: Well it's clearly immoral to do that, but should it be illegal?

Thomas: I'm torn. If I were to look at it theoretically, as you say. I would have to say I'd like the state out of my business. Putting it back in the context of reality, I can't say that. I have seen the devastating impact of the denial of economic opportunities to certain groups, including my race.
Putting it back in the context of reality.... I like seeing how quickly Clarence Thomas said that, and I will continue to be wary of the kind of people who seem to continually need to have that said to them.

40 comments:

Simon said...

So a department that handles one of the few and defined powers delegated by the Constitution to the federal government, The Federalist No. 45, has no legitimate, cabinet-level function? When is the libertarian party - and its ganglion cyst into the GOP, Ron Paul - going to kick the habit of loudmouthed constitutional illiteracy?

(The context does not ennoble the remark: "The Department of Commerce, to my mind, has no legitimate Cabinet-level function. If there are legitimate functions of the federal government in the commerce area to assure free interstate commerce under the Commerce Clause, that could be handled either through the Department of Justice, assuring that the laws against infringing interstate commerce are appropriately enforced, or maybe by having a very much smaller Commerce Office.")

MadisonMan said...

The Department of Commerce provides a service that almost everyone uses: the National Weather Service, which is part of NOAA, which is part of DOC.

I'm not sure why the levels of bureacracy are needed above the NWS/NOAA, but some parts of the DOC are useful. Cabinet-level useful? That depends on the weather.

Simon said...

Althouse said...
"Putting it back in the context of reality.... I like seeing how quickly Clarence Thomas said that, and I will continue to be wary of the kind of people who seem to continually need to have that said to them."

You put the point well 18 years ago: "[b]y professing unconcern for practical reality and a pure, unalloyed love for an idea, one loses control over outcomes and argues unwittingly for bad results ... [T]here is something unprincipled about embracing an abstraction and taking it to its logical limit, without the stabilizing effect of considering policy implications." The Humble and the Treasonous: Judge-Made Jurisdiction Law, 40 Case W. Res. L. Rev. 1035, 1039-40 (1990).

rcocean said...

Do Madoff and Greenspan still subscribe to "Reason" magazine?

Fred4Pres said...

Obama owed Richardson for sticking the shiv in Hillary. That is why he let him have this nod, at least until it was time to toss him aside too.

As Capt. Ed said so well, the wheels of Obama's bus go thump, thump, thump.

Fred4Pres said...

And a Department of Commerce really does not mean a lot anyway.

ricpic said...

Given that blacks are privileged in every imaginable way by the gummint, couldn't their benefactor, the gummint, leave the rest of us our freedom of association?

EDH said...

In fairness to libertarians, the "reality" one must return to is typically the status quo, which is itself usually the product of decades of the kind of government intervention that is being debated.

You don't have to be a libertarian opposed to any government initiative in theory to recognize that the downside of such intervention in reality is a "remedy" that tends to enhance the role of government (or rent seekers) in perpetuity, rather than working to limit the need for that role at the earliest opportunity.

Justin said...

ricpic said...
Given that blacks are privileged in every imaginable way by the gummint, couldn't their benefactor, the gummint, leave the rest of us our freedom of association?


Wow. Are you from the South? I grew up there, and have an uncle who's obsessed with that ridiculous idea, too.

EDH said...
In fairness to libertarians, the "reality" one must return to is typically the status quo, which is itself usually the product of decades of the kind of government intervention that is being debated.


I think that's spot-on. But the real problem with libertarians is that most of them reject the status quo so completely that they are blind to the idea of incremental change, keeping in line with their close-the-government-now ringleader, Ron Paul. I suppose that's a product of, like Ann suggests, being overly idea-obsessed. They shouldn't be taken seriously until they get over it.

ricpic said...

You didn't answer me, Justin, you just attempted a smear, you lefty freak.

Justin said...

ricpic said...
You didn't answer me, Justin, you just attempted a smear, you lefty freak.


Says the pot to the kettle. What basis do you have for calling me a "lefty freak"? Just fyi, I think there's more than one Justin who occasionally comments on this blog.

I didn't answer you because your comment doesn't deserve an answer. It's baseless vitriol, and it makes you sound like an ass. And your use of "gummint" makes you sound a little bit racist, too.

chickenlittle said...

The Department of Commerce comprises the US Patent and Trademark Office, an agency which actually makes money.

Pogo said...

"Gummint" is southern, not racist.

All of the goodly Pogo carachters spoke of 'gummint', and Walt kelly was no racist, mocking the "Kluk Klams" in one story.

Pogo said...

"characters"
oops.

Justin said...

Pogo said...
"Gummint" is southern, not racist.


I stand corrected :)

Being from the south, though, I still think there's a tinge of racism in that comment about "privileged blacks." It's hard to pinpoint, but it's there.

Paul Snively said...

Justin: "But the real problem with libertarians is that most of them reject the status quo so completely that they are blind to the idea of incremental change, keeping in line with their close-the-government-now ringleader, Ron Paul. I suppose that's a product of, like Ann suggests, being overly idea-obsessed. They shouldn't be taken seriously until they get over it."

The problem (being a registered Libertarian) that I see with this is that without a set of principles to shoot for, your odds of getting anywhere near them are essentially nil. So while there's a discomfiting amount of truth to Dr. Althouse's observation (particularly when, as with the conference to which she was invited and attended some while back, it's the Libertarians themselves who bring up a specific guiding figure, by name, and then refuse to discuss the actual consequences of the implementation of that person's ideas!), the most common alternative, it seems to me, is to meander about aimlessly in a conceptual vacuum—assuming, that is, that the vacuum, abhorred by nature, isn't quickly filled with the usual sort of Statist nonsense that seems to exert such an inexorable hold on the human imagination, particularly under trying political or economic (but I repeat myself) conditions.

I see a real challenge in addressing Dr. Althouse's concern while at the same time upholding the principle that is the foundation of the socially undesirable "logical conclusion" of the application of the principle. I suppose it's inevitable, since we're discussing the balance between self-determination, which can include discriminatory behavior, and a desire to discourage discrimination on the basis of accidents of birth.

Dust Bunny Queen said...

I suppose it's inevitable, since we're discussing the balance between self-determination, which can include discriminatory behavior, and a desire to discourage discrimination on the basis of accidents of birth.

It is a quandary and a balancing act. How do we infringe on people's freedom when that freedom to act might infringe on other people's freedom?

I don't like the government's intrusion into businesses and our day to day living. People should be free to decide how they want to run their businesses, who to hire, where to live, who to rent to etc.

On the other hand, if we are so "hands off" with no rules, how can we prevent discrimination against minorities, women and the elderly in the job and housing market?

It is a fine line. Having no rules and dealing with the consequences? Or have so many rules that we are paralyzed?

Justin said...

Paul Snively said...
The problem (being a registered Libertarian) that I see with this is that without a set of principles to shoot for, your odds of getting anywhere near them are essentially nil. ... the most common alternative, it seems to me, is to meander about aimlessly in a conceptual vacuum—assuming, that is, that the vacuum, abhorred by nature, isn't quickly filled with the usual sort of Statist nonsense that seems to exert such an inexorable hold on the human imagination, particularly under trying political or economic (but I repeat myself) conditions.


I agree with you, and in the interest of full disclosure, my political views, at least at a fundamental level, align more closely with libertarians than with any other party.

But I part ways with libertarians when they make suggestions like doing away with the IRS, or doing away with drug control. It just isn't realistic. There's a balance that needs to be struck, and I think libertarian principles by and large point in the right direction, but the party's rhetoric needs to be softened a bit: i.e., instead of arguing that we should axe the IRS, argue for a downsizing of the IRS, and point to specific areas where downsizing makes sense now. (How about this: eliminate the estate tax permanently, and get rid of the estate tax auditing department.) Then maybe we can gradually break the hold of Statist nonsense.

Also, get a new figurehead. Ron Paul's a nut. And Bob Barr is to libertarians as Ron Paul is to the GOP.

Justin said...

Dust Bunny Queen said...
It is a quandary and a balancing act.


Looks like you beat me to the punch :)

rhhardin said...

and I will continue to be wary of the kind of people who seem to continually need to have that said to them.

That's a guy's move, abstracting from details to get to the essence.

Women move the other direction.

Guys constantly have to be reminded to be women.

Thomas is alluding to another essence entirely, so far not defined.

ricpic said...

Justin says that it's "baseless vitriol" to state that the gummint privileges blacks. Whereya been on this issue for the last 40 years Justin, walking around blindfolded in order to not see the obvious and terrifying for you - because it would make you a" racist" to see it - fact that most of the black middle class consists of AA gummint workers?

ricpic said...

To find a middle ground twixt the particular and the general
Is what makes a gripping work of art: ethereal and visceral.

Justin said...

ricpic said...
Justin says that it's "baseless vitriol" to state that the gummint privileges blacks. Whereya been on this issue for the last 40 years Justin, walking around blindfolded in order to not see the obvious and terrifying for you - because it would make you a" racist" to see it - fact that most of the black middle class consists of AA gummint workers?


Terrifying for me? I think you're projecting. I work for the federal government, and I recognize that there is some (limited) truth to the point you're trying to make. And it doesn't bother me one bit.

It's no secret that the "gummint" has engaged in affirmative action hiring - to remedy past discrimination. There's a difference between a remedy and a privilege.

Also, this is a discussion about libertarianism and, more specifically, the Department of Commerce. Try to restrain your venting.

cokaygne said...

On the topic of the thread I agree with Althouse and Justice Thomas. Libertarian ideals should guide our politics. Widespread baseless private discrimination against a large social group excludes that group from commerce and limits that group's ability to apply its talents to furthering the general welfare. Surely practical libertarianism can abide overcoming widespread private discrimination that limits efficient commerce.

On the original topic, the original cabinet offices had the purpose of carrying out specific functions necessary for good government. Since then cabinet offices have been created as sops to interest groups with the function of handing out public funds to those groups and advocating for more such funding. DHS might be an exception when one considers that most of its functions were taken from State, Defense, and Justice and are essential for sovereignty. Another DHS function of keen interest to Congress is handing out money to local police departments and advocating for more.

rdkraus said...

practical libertarianism

This is where the libertarian jettisons his principles so that people won't call him a racist because he believes that private citizens and businesses should be allowed the freedom to associate with whomever they please.

We've come a long way from the day this was really a free country.

Freedom means allowing people to think things, say things, and even do things that you would not do.

We've got less freedom every day, and it's not going to get better any time soon.

paul a'barge said...

Good for Thomas and good for you and bad for Reason.

If ever anyone needed an example of why Libetarians are Libertards, this is it.

Dust Bunny Queen said...

There's a difference between a remedy and a privilege.

Yes there is. A remedy actually works to fix something. A priviledge is when we continue to give preferential treatment even when it doesn't fix anything or doesn't even make things better.

Justin said...

Dust Bunny Queen said...
Yes there is. A remedy actually works to fix something. A priviledge is when we continue to give preferential treatment even when it doesn't fix anything or doesn't even make things better.


But it makes things better for some people. A remedy doesn't necessarily fix something; sometimes it just rights a wrong, which is different. With the older generation of affirmative action hires, it's hard to argue that they didn't suffer wrongs that should have been (and in some cases were) made right.

In my experience, most of the affirmative action hires are older. They went to segregated elementary schools. They work hard. Government jobs have enabled many of them to send their children to college. The younger crop of government workers is more diverse, at least where I live, and includes people from all walks of life.

Pogo said...

" The younger crop of government workers is more diverse, at least where I live"

So much better than doing useful work, too. And since it is protected from harsh reality, it engenders the illusion amongst gummint employees that it is their birthright to have continued improvement in their salary and benefits no matter what happens in the rest of the world.

A most horrible restraint on the human capacity for betterment, statism.

Justin said...

Pogo said...
So much better than doing useful work, too.


That's a little bit unfair. Some government employees are useless; some aren't. That's true of every workplace, though. I work in a federal district court, and I think we do useful work. And we're pretty efficient, especially compared with our counterparts in the state system.

And since it is protected from harsh reality, it engenders the illusion amongst gummint employees that it is their birthright to have continued improvement in their salary and benefits no matter what happens in the rest of the world.

Hey man, I don't disagree with you. In fact, President Bush just approved a pay adjustment, which took effect today, that results in a 4.2% raise for everyone in my courthouse. It does seems ridiculous for anyone to be getting a raise right now. Maybe we need to beef up the 27th Amendment, put some more restraints on government pay raises.

Pogo said...

Maybe we need to beef up the 27th Amendment, put some more restraints on government pay raises.

Won't happen, now or ever.
Am I harsh? Yeah. In the private sector, bloat eventually gets culled or the company dies. Not in government.

Bloat adds bloat. It never ever recedes, until the government itself dies. The founders warned of this, and it will kill the country, a slow strangulation.

I have family members on the federal payroll who think like state workers everywhere. All their work is needed, all of them are necessary. Every one. So they say. And more are added every day.

And when more than half of the GDP is controlled by the state?

You thought the mortgage bubble was bad. Governments die, and this is how.

Pogo said...

"Some government employees are useless; some aren't."

One question: how exactly can you tell the difference?

In our schools and local government, whenever their budget is tightened they "close the Washington Monument": they fire teachers and cops and firemen (never administrators or managers).

They stop basketball and football, but the superintendent still gets a raise. Housing prices fall dramatically, but magically property taxes increased.

It's unsustainable, but they keep pushing the same stupid levers, just like rats in a Skinner box.

knox said...

Some government employees are useless; some aren't.

That's a pretty sad defense. And a person with supposed libertarian leanings would hardly have such a viewpoint. We have a glut of unnecessary, unproductive government employees, however many useful ones we have. And a hell of a lot of them have ridiculous pension/retirement packages that those of us in the private sector could only dream of. It's a real problem. One of our biggest, and growing problems.

Libertarians are not without their faults. I don't consider myself a "Capital-L" libertarian, but republicans have fully and foolishly embraced Big Government; the free market is what keeps this country going and the libertarians are the ONLY ones defending it now. And for those of us who are uninterested in social conservatism, it's the only game in town. It's not perfect, but what ideology is?

Simon said...

Justin said...
"That's a little bit unfair. Some government employees are useless; some aren't. That's true of every workplace, though."

True, but in non-unionized contexts, useless employees are ordinary removed as a matter of course. Only in unionized or monopoly contexts is this severely distorted, and government, of course, generally operates as a monopoly. I suppose one could think of the state court system as being in competition with the federal court system, insofar as a litigant would, all else being equal, prefer the forum that is more efficient - but all else is rarely equal in that "market." (Our hostess has done some terrific work on other aspects of allocation of cases between state and federal court, much of which I agree with).

"I work in a federal district court, and I think we do useful work."

I agree that you do. Still, you will know better than most that a certain amount of what's on your docket is stuff that is - through no fault of your own, of course - useless. See, e.g., Thorogood v. Sears, Roebuck & Co., 547 F.3d 742 (7th Cir. 2008), or indeed, Stark Trading v. Falconbridge, decided by the same court today, a suit that "is more than three years old, yet [] has not progressed beyond the motion to dismiss stage." (Granted, the initial impression is that the district court's time investment in the case is not immense, but "[e]very paper filed with the Clerk of [a federal court] Court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources,"
In re McDonald, 489 U.S. 180, 184 (1989) (per curiam)). Some of these cases could be dealt with, I suppose, by legislative action - for example, raising the amount in controversy for diversity cases, eliminating diversity jurisdiction entirely, pulling immigration or habeas cases into their own parallel system(s).

blake said...

This discussion feels old to me.

That is to say, I don't see racism creating the circumstances both Thomas and Althouse fear.

But surely they used to.

Which reminds me of no-smoking laws. Before, every place had, at least, a smoking section, because to rule out smoking was to drive customers away. Nobody could afford to that, or felt they could. Now, however, I think the laws could be lifted, and there'd be smoking places and non-smoking places, and mixes.

I think the same could be done with race laws, but there'd be damn few discriminatory places left. I mean, seriously, who's going to say, publicly, "No, I don't like black people. But please, buy my stuff!"

I'd like to see that, frankly. I'd like all the racists to self-associate so that I could avoid them.

As for libertarians, the achievement of their goals might not be a grand thing--but there ought to be someone in government fighting for them. In fact, they ought to control at least half the government.

The tragic history of the last 60 years has been government "trying to do something about it". There ought to be someone saying, "No, that's not our job."

blake said...

True, but in non-unionized contexts, useless employees are ordinary removed as a matter of course.

As much as I agree with the sentiment, Simon, this is a gross idealization.

Justin said...

blake said...
True, but in non-unionized contexts, useless employees are ordinary removed as a matter of course.

As much as I agree with the sentiment, Simon, this is a gross idealization.


I second that. Useless employees are everywhere, and they don't get removed as a matter of course. There are all sorts of reasons for it: the spectre of discrimination lawsuits, the lack of better alternatives, tenure.

If you're ever in Brooklyn, visit the Kinkos on Court St. You'll see what I'm talking about.

Justin said...

Simon said...
I agree that you do. Still, you will know better than most that a certain amount of what's on your docket is stuff that is - through no fault of your own, of course - useless.


That's true. And while there are all sorts of reasons for delay in deciding cases, it's fair to say that at least some delay is caused by overloaded dockets. But I think that would support hiring more employees, at least in our branch of the government.

Executive agencies, on the other hand...we could stand to trim some fat.

Some of these cases could be dealt with, I suppose, by legislative action - for example, raising the amount in controversy for diversity cases, eliminating diversity jurisdiction entirely, pulling immigration or habeas cases into their own parallel system(s).

Yes! I wish that more people outside the legal profession were interested in this issue. It's important.

I think we should keep diversity jurisdiction, but raise the amount in controversy to $500,000. (That would get rid of all of the car accident cases we deal with, in which people from New Jersey get run over by New Yorkers.) Then we could shift the resources to immigration court, which is a lot like state court in terms of overcrowding.

Thankfully, after AEDPA, the number of habeas cases has decreased. Plus, given the standard(s) of review under AEDPA, they're a lot easier to dispose of. I'm hoping (*fingers crossed*) that some of the Court's recent moves in the employment discrimination context will decrease the number of those cases, too.

Simon said...

blake said...
"As much as I agree with the sentiment, Simon, this is a gross idealization."

To paraphrase Richard Posner, Newton's theory of objects falling in a vacuum is a gross idealization, but it's still a useful theory because it predicts with significant if imperfect accuracy ordinary behavior. Still, the point is taken. What I should say, I suppose, is that monopoly tends to reduce an entity's concern for efficiency, while unions tend to reduce its capacity to become more efficient. (The Detroit mess is a morality play on the latter point.) Mostly everyone else, however, has both incentive and capability to "trim the fact" when it can be identified.

Justin said...
"Executive agencies, on the other hand...we could stand to trim some fat."

Ah, but then you get into secondary effects. Circuits whose jurisdiction includes a federal office where an immigration judge sits get the appeals from the IJ and BIA's decision under 8 USC § 1252. As I understand it from Prof. Magliocca, fat trimming in the executive branch has given rise to removal procedings that are rushed and records that are thin, which in turn increases the resources that courts have to expend reviewing those cases.

I suppose the policy question that would need to be answered before diversity reforms is, are we basically interested in judicial economy and the efficient allocation of cases between federal and state court (or arbitration, for that matter), or is there going to be a general policy that frowns on diversity cases for reasons other than their propensity to soak up a federal court's limited resources? If the answer is the former, you're envisioning quite a jump; I'm not opposed to it, but I would think it's the sort of question that practically invites empirical studies (indeed, they may already exist) to find strata boundaries. If studies showed that you'd cut out 50% of diversity cases by raising the amount in controversy to, say, $150,000, and beyond that you'd have to go up to $300,000 to get the next 10%, it would seem to make more sense - from a conservative perspective - to go up to $150,000 and see what happens. There's a maddening "last plane out" mindset that seems to grip legislators when they resolve to address a given issue, and I'm skeptical of it.

knox said...

Useless employees are everywhere, and they don't get removed as a matter of course.

If I go to a "Kinkos" and the employees suck, I don't go back. With government workers, we suffer their inadequacies AND pay their checks.

Why am I arguing this with a government employee?