The Importance of a Growing U.S. Population

A Wall Street Journal columnist, Bret Stephens, has demonstrated the importance of a growing U.S. population and the need for immigration to sustain such growth.[1]

“A decade ago, America’s fertility rate, at 2.12 children for every woman, was just above the replacement rate. That meant there could be modest population growth without immigration. But the fertility rate has since fallen: It’s now below replacement and at an all-time low.”

“Without immigration, our demographic destiny . . . [would leave] us with the worst of both worlds: economic stagnation without social stability. Multiethnic America would tear itself to pieces fighting over redistribution rights to the shrinking national pie.”

However, this “doesn’t have to be our fate. [I]immigrants aren’t a threat to American civilization. They are our civilization—bearers of a forward-looking notion of identity based on what people wish to become, not who they once were. Among those immigrants are 30% of all American Nobel Prize winners and the founders of 90 of our Fortune 500 companies—a figure that more than doubles when you include companies founded by the children of immigrants. If immigration means change, it forces dynamism. America is literally unimaginable without it.”[2]

The importance of immigrants for U.S. vitality was an important conclusion of a recent study of 46 Midwestern metropolitan areas conducted by the Chicago Council on Global Affairs, a nonpartisan organization. In these metropolitan areas immigrants are helping offset population loss and economic strains caused by people moving away and by the retirements and deaths of native-born residents. In at least one of these metropolitan areas (Akron Ohio) immigrants and refugees were filling entry-level jobs for local manufacturing and food-processing companies that have had trouble hiring for those slots. This will become even more important in the future when many of the native-born workers will be retiring.[3]

Another recent study concluded that international immigration is giving a boost to population growth in big urban areas in the U.S. even as local residents flee for places with lower housing costs. The top beneficiaries of international immigration were primarily major coastal cities, led by the Miami metropolitan area.[4]

A more nuanced view of U.S. immigration is taken by Mark Krikorian, the Executive Director of Washington, D.C.’s Center for Immigration Studies, who would “limit immigration to the husbands, wives and young children of U.S. citizens; to skilled workers who rank among the top talents in the world; and to the small number of genuine refugees whose situation is so extraordinary that they cannot be helped where they are.” [5]

He claims that almost all of the arguments for limiting immigration share a common theme: protection. Even those advocating much more liberal immigration policies acknowledge the need to protect Americans from terrorists, foreign criminals and people who pose a threat to public health. Supporters of stricter limits, such as me, seek wider protections: protection for less-skilled workers, protection for the social safety net, and protection for the civic and cultural foundations of American society.”

Krikorian cites a study by the National Academies of Sciences, Engineering and Medicine finding that immigration boosts economic growth in the long term and modestly improves the country’s demographic profile as the native population ages while creating a small net economic benefit. But this net economic benefit involves a redistribution from labor to capital.

In contrast to the U.S., Bret Stephens points out, is Japan. Its birth rate is very low. Its life expectancy is very high. Its immigration is very low. As a result, Japan has an aging, declining population. “Japan’s population shrank by nearly a million between 2010 and 2015, the first absolute decline since census-taking began in the 1920s. On current trend the [current] population [of 127 million] will fall to 97 million by the middle of the century. Barely 10% of Japanese will be children. The rest of the population will divide almost evenly between working-age adults and the elderly.”

Moreover, as “Morgan Stanley’s Ruchir Sharma has noted, lousy demographics mean a lousy economy.. . . In 2016, Japan’s growth rate was 1%—and that was a relatively good year by recent standard. . . . The average rate of GDP growth in countries with shrinking working-age populations is only 1.5%.”

In short, Stephens concludes, “Americans may need reminding that the culture of openness about which conservatives so often complain is our abiding strength. Openness to different ideas, foreign goods and new people. And their babies . . . are also made in God’s image.”[6]

=============================================

[1] Stephens, ‘Other People’s Babies,’ W.S.J. (Mar. 20, 2017).

[2] Another example is New York Times columnist, Nicholas Kristof, whose father, Wladyslaw Krzysztofowicz, was born in Romania (now Ukraine) and who came to the U.S. in 1952 with the sponsorship of a Presbyterian church in Portland, Oregon after he had been arrested by the Gestapo in World War II and imprisoned in a Yugoslav concentration camp after the war. (Kristof, Mr. Trump, Meet My Family, N.Y. Times (Jan. 2, 2017).

[3] Paral, Immigration a Demographic Lifeline in Midwestern Metros, Chicago Council on Global Affairs (Mar. 23, 2017); Connors, In the Midwest, Immigrants Are Stemming Population Decline, W.S.J. (Mar. 23, 2017).

[4] Kosisto, International Immigration Gives Boost to Big U.S. Cities, Study Says, W.S.J. (Mar. 23, 2017)

[5] Krikorian, The Real Immigration Debate: Who to Let In and Why, W.S.J. (Mar. 24, 2017) The Center for Immigration Studies asserts that it is “an independent, non-partisan, non-profit, research organization. Since our founding in 1985, we have pursued a single mission – providing immigration policymakers, the academic community, news media, and concerned citizens with reliable information about the social, economic, environmental, security, and fiscal consequences of legal and illegal immigration into the United States.”

[6] Therefore, Bret Stephens asserts that Iowa’s Congressman Stephen King was misguided and mistaken in his tweet about Dutch anti-Muslim politician Geert Wilders who called his country’s Moroccan population as “scum.” King said: “Wilders understands that culture and demographics are our destiny, We can’t restore our civilization with somebody else’s babies.”

 

Economic Problems Bedevil Cuban Government and President Raúl Castro

A prior post reported that Cubans want greater economic growth and opportunity while also expressing pessimism about that happening. The grounds for that pessimism are highlighted in a Miami-Herald article about the many economic challenges facing President Raúl Castro In the last year of his presidency.[1]

This is the article’s big picture. “Many state enterprises are barely limping along, there are jitters as the economy of Cuba’s Venezuelan benefactor spirals downward, the rules of the road are murky for private businesses, salaries are low, a messy dual currency system still needs to be unified and Cuba is in dire need of much more foreign investment.”

These problems will not be easy to solve. “Many of Cuba’s economic problems are interrelated and the timing may not be good for any drastic moves — especially with Cuba’s relationship with the United States still up in the air.”

Yes, it is true that “Cuban officials are estimating economic growth of around 2 percent this year, but that figure is based on the assumption that oil prices will go up and tourism will keep growing.” According to Cuban economist Omar Everleny Pérez Villanueva, the 2 percent growth objective is “very ambitious.” He could have said “unrealistic” as His model puts the Cuban economy in negative territory with a decline of between .3 percent and 1.4 percent in 2017.”

Here are specifics on some of the economic challenges facing the island:

Maintaining Exports of professional services. Medical services by Cuban health care professionals on foreign medical missions in recent years have provided the Cuban government with a major source of foreign currency. In recent years, however, this source of foreign currency has declined with the implosion of the Venezuelan economy being a major factor.

Coping with Venezuela’s Economic Implosion. Venezuela’s problems for Cuba go beyond the decline in foreign medical mission income for Cuba. Since last July, oil deliveries from Venezuela have dropped as much as 60 percent. Venezuela used to send crude oil to Cuba for blending at the latter’s Cienfuegos refinery, but production at the Cuban refinery has fallen by half with the reduction in shipments from Venezuela.

Eliminating Cuba’s dual currency system. Cuba has two currencies: the Cuban peso (CP), which is generally used by the Cuban population and the Cuban convertible peso (CUC), which used by tourists and foreign companies, and the Cuban government for years has had a goal of eliminating this system. According to Carmelo Mesa-Largo, a Cuban economist and professor emeritus at the University of Pittsburgh, “In 2016, the budget deficit was 7.3 percent of GDP, and because of the already difficult economic situation, they have had to print money. The budget deficit may be even higher this year — perhaps 12 percent — generating even more inflation.”

Increasing public salaries. “There are constant complaints about low public salaries. A private cab driver, for example, can earn more than a physician or other professionals. According to Mesa-Lago, even though salaries went up in 2015, buying power was just 62 percent of what it was in 1989. Nominal salaries could be increased by printing more CP, ”but with inflation, they would have to raise salaries even more to have real wage growth.” And that could set off a further inflationary spiral.

Attracting foreign investment. The Cuban government has made it clear that foreign investment is a cornerstone of Cuban economic development going forward, but so far investment is lagging. “Diplomats, business executives and members of the U.S. Congress who favor lifting the embargo all concur that Cuba needs to reform its legal system to offer foreign investors better legal guarantees, make it easier to sign contracts and allow them to directly hire their Cuban employees.” The Cuban government, however, does not want to do anything that potentially could be destabilizing and cause a weakening of political control.

=============================================

 

[1] Whitefield & Torres, The next year will determine Raúl Castro’s economic legacy, Miami Herald (Mar. 23, 2017)   Previous posts in this blog have discussed many aspects of the Cuban economy as listed in the “Cuban Economy” section of List of Posts to dwkcommentaries—Topical: CUBA.

Cubans Want Economic Growth and Opportunity

A rare and limited public opinion poll of Cubans showed strong support for increased economic opportunity and growth. The poll in Cuba was a national random route-sample of 840 Cubans who were 18 years and older that was conducted between October 3 and November 26, 2016 by NORC, a respected public-opinion organization, at the University of Chicago.[1]

Cuban Economic Issues[2]

Many Cubans feel stuck in the current economic climate. Overall, 46 percent say the current condition of the Cuban economy is poor or very poor while 35 percent say it is fair. Only 13 percent of Cubans describe the condition of the Cuban economy today as good or excellent. Moreover, few Cubans think the economy is going to improve anytime soon: 47 percent say the economy will stay about the same and 8 percent say it is going to get worse while 33% say the condition of the economy is going to get better over the next three years,

Cubans have a slightly more positive view of the state of their family’s finances, though few anticipate improvement in the coming years: 24% rate their finances as poor or very poor while 18% rate the current condition of their family’s finances as good or excellent. Nearly 6 in 10 expect their finances will stay the same in the future.

Looking ahead, Cubans would like to see the government focus on economic growth and maintaining stability over the next 10 years. Fully 95 percent of Cubans say having a high level of economic growth is an extremely or very important goal. Nearly as many (87 percent) say it is very or extremely important that Cuba prioritize maintaining stability over the next 10 years.

Roughly two-thirds of Cubans (65 percent) say there should be more private ownership of business and industry, while 29 percent say there should be more government ownership. Many Cubans have entrepreneurial goals; more than half (56 percent) say they would like to start their own business over the next five years. Sixty-eight percent see competition within the marketplace as positive because it stimulates people to work hard and develop new ideas. One-quarter say competition is harmful and brings out the worst in people.

Over half of Cubans say they would like to move away from Cuba if given the chance. Of those who would leave, nearly 7 in 10 say they would want to go to the United States.

Other Cuban Problems

Crime is seen as the most serious issue facing Cuba today, with 51 percent of Cubans reporting that it is an extremely or very serious problem. Another 4 in 10 say that poverty (41 percent), lack of internet access (41 percent), and corruption (38 percent) are each serious issues in Cuba.

In day-to-day life, many Cubans proceed with caution in placing trust in others and in expressing themselves publicly. Just 21% say they can always express themselves freely, while 76% say they must be careful in what they say sometimes.

Most Cubans get their news from state-owned television stations and newspapers, Cuban radio, and family or friends. Just 1 in 4 use foreign media sources. But, even controlling for other demographic and socioeconomic factors, those Cubans who access foreign media are more positive about the national economy and their personal financial situations, more likely to be critical of some aspects of Cuban society, and more likely to set aspirational goals such as traveling abroad, starting their own business, and buying a car or home.

Cuba-U.S. Relations

Fifty-five percent of Cubans overall say that Cuba-U.S. normalization of relations will be mostly good for Cuba, while 3 percent say it will be mostly bad. Another 26 percent say it will have no impact. Thirteen percent aren’t sure what the impact will be.

================================================

[1] NORC, A Rare Look Inside Cuban Society: A New Survey of Cuban Public Opinion (Mar. 21, 2017); Ahmed, In a Rare Survey, Cubans Express a Hunger for ‘Economic Growth, N.Y. Times (Mar. 21, 2017); Assoc. Press, Rare Poll Finds Cuban Citizens Favor Better US Relations, N.Y. Times (Mar. 21, 2017); A poll concludes Cubans want better relations between Washington and Havana, Diario de Cuba (Mar. 21, 2017).

[2] See this blog’s posts listed in “Cuban Economy” in List of Posts to dwkcommentaries–Topical: CUBA.

 

 

Judge Gorsuch Might Be a Liberal Originalist on the Supreme Court

Akhil Reed Amar, a Yale Law School professor and the author of “The Constitution Today: Timeless Lessons for the Issues of Our Era,” argues that not all devotees of “originalism” in interpreting the Constitution and statutes are what are ordinarily called conservatives and that Judge Neil Gorsuch might be a liberal member of this group.[1]

Originalists, the professor says, “believe that faithful constitutional interpreters must build on the solid bedrock of the Constitution’s text, as that text was originally understood when drafted and ratified.” However, he adds, “not all conservatives are originalists, nor are all originalists conservative. Most jurists, most of the time, follow modern judicial precedents rather than pondering first principles of constitutional text and history. Practical considerations also factor into most jurists’ decision making. Originalists are no different in this regard, but they are more apt to dwell on first principles of text and original meaning and to discard precedents violating these first principles.”

A group of “liberal originalist lawyers, the Constitutional Accountability Center, where I serve on the board of directors, has been particularly effective in bringing liberal originalist scholarship to judicial attention. This month, Justice Anthony M. Kennedy and four liberal colleagues [in Pena-Rodriguez v. Colorado.] strengthened rules against racial animus in jury deliberations” in reliance . . . on the Center’s amicus brief and the historical scholarship it showcased” by another Yale Law School professor.

This case demonstrated that “originalists must honor not just the original understanding of words ratified in 1787-88, but also the letter and spirit of language added by later generations of amenders.”

Amar also noted “the extraordinary body of work of Steven G. Calabresi, who co-founded the conservative Federalist Society in the early 1980s and then clerked for Judge Bork and Justice Scalia. As “perhaps America’s pre-eminent conservative originalist,” [he] has shown that the 14th Amendment was plainly intended to apply the Bill of Rights to the states; that women’s equality was a central theme of that amendment, as originally understood; and that originalism in fact supports a right of same-sex marriage.”

Gorsuch, Amar asserts, “is a brainy and principled jurist” and his “embrace of originalism is honorable and admirable” and, if confirmed as seems likely, “may one day [be regarded] . . . as among the best of the century.”

==============================================

[1] Amar, What Gorsuch Has in Common with Liberals, N.Y. Times (Mar. 18, 2017).

 

 

 

 

George Will’s Embrace of Natural Law

Recently concepts of natural law have re-emerged as relevant to interpretations of the U.S. Constitution. George Will, the prominent political and legal commentator, has done so in at least three Washington Post columns and in a speech at the John C. Danforth Center for Religion and Politics. This post will discuss his views on this subject. A subsequent post will explore those of Judge Neil Gorsuch, the current nominee for Associate Justice of the U.S. Supreme Court, whose confirmation hearing starts tomorrow.

Background

Two important instruments of U.S. history are the U.S. Declaration of Independence and the Ninth Amendment to the Constitution. The Declaration states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these, are life, liberty, and the pursuit of happiness.” The Ninth Amendment, which is part of our Bill of Rights, states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[1]

Although I am a retired attorney, I have not attempted to make my own analysis of how the U.S. Supreme Court has interpreted the Ninth Amendment. Instead I rely on my recollection that the Declaration and this Amendment have not been major authorities in the U.S. Supreme Court’s decisions and Wikipedia’s conclusion that the Court has not used them to further limit government power.

Wikipedia also cites this statement by Justice Scalia in Troxel v. Granville, 530 U.S. 57 (2000): “The Declaration of Independence is not a legal prescription conferring powers upon the courts, and [the Ninth Amendment’s] . . . refusal to ‘deny or disparage’ other rights is far removed from affirming any of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”

George Will’s Discussion of Natural Law

In a Washington Post column{2} Will argued that the Ninth Amendment’s protection of other rights “retained by the people” encompasses “natural law” rights, which are affirmed by these words of the Declaration of Independence:

  • “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness—that to secure these rights, Governments are instituted among Men, deriving their just powered front he consent of the governed.”

Therefore, Will argues, “the Founders’ philosophy is infused into . . . [the Constitution] by construing . . . [the Constitution] as a charter of government that is, in Lincoln’s formulation, dedicated to [the above proposition in that Declaration].” As a result, says Will, “The drama of American democracy derives from the tension between the natural rights of the individual and the constructed right of the majority to make such laws as the majority desires. Natural rights are affirmed by the Declaration and a properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights.”

“With the Declaration, Americans . . . began asserting rights that are universal because they are natural, meaning necessary for the flourishing of human nature.”

Will in this article does not go on to identify specific natural rights that are so encompassed by the Declaration. Presumably Will would not limit the protections of these words of the Declaration to those who were covered at the time of its proclamation in 1766: white men of property. In any event, his suggestion provides another “originalist” approach to interpreting the Constitution, an approach that is more open-ended than that promulgated by Justice Scalia.

George Will’s Speech at John C. Danforth Center for Religion and Politics

Additional light on George Will’s thoughts about natural law is shed by an adaption of his December 2012 speech at the John C. Danforth Center on Religion and Politics, University of Washington at St. Louis.[3]

He asserts that although he himself is non-religious, he believes that “religion has been, and can still be, supremely important and helpful to the flourishing of our democracy” and that “the idea of natural rights [does not] require a religious foundation, or even that the founders uniformly thought it did. It is, however, indubitably the case that natural rights are especially firmly grounded when they are grounded in religious doctrine.” Moreover, Will believes that the founders, who were not particularly religious themselves, “understood that Christianity, particularly in its post-Reformation ferments, fostered attitudes and aptitudes associated with, and useful to, popular government. Protestantism’s emphasis on the individual’s direct, unmediated relationship with God and the primacy of individual conscience and choice subverted conventions of hierarchical societies in which deference was expected from the many toward the few.”

According to Will, the founders “understood that natural rights could not be asserted, celebrated, and defended unless nature, including human nature, was regarded as a normative rather than a merely contingent fact. This was a view buttressed by the teaching of Biblical religion that nature is not chaos but rather is the replacement of chaos by an order reflecting the mind and will of the Creator. This is the Creator who endows us with natural rights that are inevitable, inalienable, and universal — and hence the foundation of democratic equality. And these rights are the foundation of limited government — government defined by the limited goal of securing those rights so that individuals may flourish in their free and responsible exercise of those rights.”

The U.S. Declaration of Independence asserts that “important political truths are not merely knowable, they are self-evident, meaning they can be known by any mind not clouded by ignorance or superstition. [As it states, “it is self-evidently true that ‘all men are created equal.’ Equal not only in their access to the important political truths, but also in being endowed by their Creator with certain unalienable rights, including life, liberty, and the pursuit of happiness.” [The Declaration goes on to state], ‘[T]o secure these rights, governments are instituted among men.’ Government’s primary purpose is to secure pre-existing rights. Government does not create rights; it does not dispense them.”

“Biblical religion is concerned with asserting and defending the dignity of the individual. Biblical religion teaches that individual dignity is linked to individual responsibility and moral agency. Therefore, Biblical religion should be wary of the consequences of government untethered from the limited (and limiting) purpose of securing natural rights.”

Will’s Obituary for Antonin Scalia

In the obituary Will praised the late Associate Justice Antonin Scalia for his championing the principles of judicial modesty: “textualism and originalism: A justice’s job is to construe the text of the Constitution or of statutes by discerning and accepting the original meaning the words had to those who ratified or wrote them.” Moreover, said Will, Scalia “was a Roman candle of sparkling jurisprudential theories leavened by acerbic witticisms.”[4]

In Will’s opinion, “Democracy’s drama derives from the tension between the natural rights of individuals and the constructed right of the majority to have its way. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution.” Moreover, “as the Goldwater Institute’s Timothy Sandefur argues, the Declaration is logically as well as chronologically prior to the Constitution. The latter enables majority rule. It is, however, the judiciary’s duty to prevent majorities from abridging natural rights. After all, it is for the securing of such rights, the Declaration declares, that ‘governments are instituted among men.’”[5]

Will, however, does not attempt to reconcile his praise for Scalia with the Justice’s rejection of the Declaration as important for constitutional analysis.

Will’s Questions for Judge Gorsuch

In another Washington Post column, Will suggested questions to be asked Judge Gorsuch at his confirmation hearings.[6] Here are some of those questions:

  • Is popular sovereignty (majorities rights) or liberty the essence of the American project?
  • Was the purpose of the 14th Amendment’s “privilege and immunities” clause to place certain subjects beyond the reach of majorities?
  • Was the 14th Amendment’s “privilege and immunities” clause’s purpose to ensure that the natural rights of all citizens would be protected from abridgment by their states?
  • Was the Supreme Court wrong in the 1873 Slaughter-House Cases that essentially erased the privileges and immunities clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living)? If so, should it be overruled?
  • Do you agree with Chief Justice John G. Roberts Jr. who has said the doctrine ofstare decisis — previous court decisions are owed respect — is not an “inexorable command”?
  • Do you agree with the Supreme Court’s division of liberties between those deemed to be fundamental and thus subjecting any restrictions on them to strict scrutiny and all others whose restrictions are subjected only to “rational basis” scrutiny?
  • What, in your opinion, is the role of the Ninth Amendment in constitutional law?
  • Are there limits to Congress’ power over interstate commerce other than those enumerated in the Bill of Rights (the first 10 amendments to the Constitution)?
  • Was the Supreme Court correct in the 2005 Kelo v. City of New London case upholding a city’s seizure of private property not to facilitate construction of a public structure or to cure blight, but for the “public use” of transferring it to a wealthier private interest that would pay more taxes?
  • What limits, if any, are imposed upon Congress’ delegation of powers to administrative agencies by Article I of the Constitution’s provision: “All legislative powers herein granted shall be vested in a Congress”?
  • Was the Supreme Court correct in Citizens United that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?
  • Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?
  • Would you feel bound to follow a previous Supreme Court decision that did not evaluate evidence of the original meaning of the Constitution and was, in your view, in conflict with it?

Conclusion

Although I do not generally agree with many of George Will’s political opinions, I think that the linkage of the Ninth Amendment and the Declaration of Independence makes sense and should be explored more fully in future constitutional litigation. However, it is not so easy to make the next step of identifying additional principles of natural law that could impose limits on the federal and state governments.

The Declaration’s statement that human beings are endowed by their Creator with certain inalienable rights is part of that difficulty. First the First Amendment to the Constitution bans the federal government’s establishment of a religion. Second, there are now so many different religions in the world and in the U.S. Although as a Christian I believe that at least all of the major world religions honor peace and hospitality and that they all agree on the Golden Rule: do unto others as you would have them do unto you, I find it difficult see how that leads to principles of natural law that are useful. For example, I find it difficult to see how this linkage leads to the conclusion that the Citizens United case was correctly decided, as Will suggests.

In addition, although I have not studied the underlying sources, I am intrigued by the notion that the privileges and immunities clause of the Fourteenth Amendment was intended to encompass all natural law rights of U.S. citizens and that the Slaughter-House Cases were wrongly decided.

In any event, we all should thank George Will for proposing interesting questions for Judge Gorsuch in his confirmation hearing. I am reasonably confident that most, if not all, of them will be asked and answered.

========================================

[1] United States Declaration of Independence, Wikipedia;  Ninth Amendment to the United States Constitution, Wikipedia. A prior post discussed the First Congress’ adoption of the Bill of Rights after ratification by the requisite number of states.

[2] Will, Maybe Gorsuch will fill in blanks left by Scalia, Wash. Post (Feb. 1, 2017).

[3] Will, Religion and the American Republic, Nat’l Affairs (Summer 2013). John C. Danforth, an ordained Episcopal priest, was Attorney General of Missouri, 1969-1976, and U.S. Senator for that state, 1976-1995.

[4] Will, In Memoriam: Supreme Court Justice Antonin Scalia 1936-2016, Wash. Post (Feb. 14, 2016).

[5]  Timothy Sandefur  is Vice President for Litigation at the Goldwater Institute and Adjunct Scholar with the Cato Institute. He also is the author of The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty (2013),  which is a more extensive exposition of Will’s argument that the Declaration and the Ninth Amendment need to be important markers in constitutional analysis and litigation. Moreover, Sandefur argues that the privileges and immunities clause of the Fourteenth Amendment of 1868 recommitted the U.S. to the primacy of liberty and defined the terms of U.S. citizenship that unfortunately was demolished by the U.S. Supreme Court’s 1873 decision in the Slaughter-House Cases, 83 U.S. 36 (1873).

[6] Will, Questions for Judge Gorsuch, Wash. Post (Mar. 17, 2017).

Granma’s Positive Views on Cuban Free Enterprise 

Granma, the official newspaper of the Communist Party of Cuba, recently praised the achievements of Cuban “small business” or free enterprise that have emerged over the five years since the 6th Congress of the Communist Party of Cuba permitted “economic activity by foreign investors, cooperatives, small farmers, those working land granted in usufruct, renters of state property, and the self-employed.”[1]

In those five years “the non-state sector has grown exponentially. While employment in the state sector constituted 81.2% of the total in 2010, it stood at 70.8% in 2015. Likewise, there were 157,371 registered self-employed in September of 2010, and more than 500,000 at the close of 2016.”

As Raúl Castro, First Secretary of the Party noted at its 7th Congress in April 2016, “The increase in self-employment and the authorization to hire a work force has led, in practice, to the existence of private medium sized, small, and micro-enterprises, which function today without the appropriate legal standing, and are governed by law within a regulatory framework designed for individuals working in small businesses undertaken by the worker and family members,” developing is an atmosphere which does not discriminate against or stigmatize non-state work.

The changes over the last five years include “’pay per performance,’” which means that wages for workers in state and non-state enterprises are increasingly linked to results obtained.” In other words, wages will not be equal, but instead will vary based on performance.

The article also emphasizes that the Cuban “economic system would continue to be based on the entire people’s socialist ownership of the fundamental means of production, governed by the principle that distribution (also socialist) would be based on ‘from each according to their capacity, to each according to their work.’”

These changes over the last five years and into the foreseeable future “are taking place within a reality marked by little population growth, with low birth rates and longer life expectancy, a negative migratory balance, increasing urbanization and aging of the population, which imply great social and economic challenges for the country.”

==========================================================

[1] González, Small business in Cuba, Granma (Mar. 16, 2017).  Earlier blog posts about the Cuban economy are listed in the “Cuban Economy” section of List of Posts to dwkcommentaries—Topical: CUBA.

Proposed U.S. Reparations for Slavery 

Ross Douthat, a self-described conservative columnist for the New York Times, has offered an interesting proposal for U.S. reparations for slavery.[1]

He starts with the assertion that the Democratic Party is “more attuned to racial injustice” while the Republicans have “ridden a white backlash against ethnic patronage” and as a result the two parties have vastly different attitudes toward reparations for slavery and more broadly toward racial policy. Nevertheless, he believes that it is possible to have such a policy that accepts elements of Democratic and Republican attitudes towards race. “It can be simultaneously true,” he says, “that slavery and Jim Crow robbed black Americans on a scale that still requires redress, and that offering redress through a haphazard system of minority preferences in hiring, contracting and higher education creates a new set of reasonable white grievances.”

Douthat, therefore, proposes the following: “Abolish racial preferences in college admissions, phase out preferences in government hiring and contracting, eliminate the disparate-impact standard in the private sector, and allow state-sanctioned discrimination only on the basis of socioeconomic status, if at all. Then at the same time, create a reparations program — the Frederick Douglass Fund, let’s call it — that pays out exclusively, directly and one time only to the proven descendants of American slaves.”

This proposed reparations program, he suggests, would provide “every single African-American [what happened to the proven descendants of American slaves limitation?] $10,000, perhaps in a specially-designed annuity, [that] would cost about $370 billion, modest relative to supply-side tax plans and single-payer schemes alike. The wealth of the median black household in the United States was $11,200 as of 2013; a $10,000 per-person annuity would more than double it.”

Although such a reparations program, he admits, “would hardly eliminate racial disadvantage, . . . [it would be] a meaningful response to an extraordinary injustice.”

Reactions

Ta-Nehisi Coates, the noted author, has published a lengthy case for reparations for slavery in The Atlantic Magazine, but as a prior post has pointed out, he does not propose a specific plan for such reparations. Instead, he merely calls for congressional authorization of a commission to study the reparations issue and to make recommendations.[2]

Douthat, on the other hand, does make a specific proposal for a $10,000 annuity for reparations to “proven descendants of American slaves.”

Such a proposal obviously is a starting point and raises many questions for more specifics. How does someone prove he or she is such a descendant? Would there be a statute of limitations bar on claims after a certain date? How would the program be financed? Would the annuity be limited to the lifetime of the original recipient? Or could it be inherited by the recipient’s descendants?

The annuity concept and Douthat’s discussion of median wealth of U.S. black households suggests that the $10,000 would not be accessible by the recipients, but instead would provide supplemental annual incomes. But in today’s low-interest rate environment, such as 1 APR available on savings accounts from some online banks,  only $100 of annual income would be produced. Thus, what would be the appropriate amount for such an annuity?

Moreover, any such reparations program, in this blogger’s opinion, would need to be accompanied by a national apology for slavery and a plea for forgiveness for this injustice along with, at a minimum, reforms of the criminal justice system, the voting system, racial gerrymandering of legislative districts and the public schools.

There also is work to be done by descendants of slave owners.

An excellent example of such an effort is Washington, D.C.’s Georgetown University, which owned slaves and in 1838 sold 272 men, women and children slaves to plantations in the South with the sales proceeds being used to help the struggling University pay its bills.[3] In response to the recent revelation of this history, the University in the Fall of 2015 convened its Working Group on Slavery, Memory, and Reconciliation to explore its historical involvement in slavery, to engage the community in dialogue and to prepare recommendations for future efforts.[4] In the Summer of 2016 this Group made the following recommendations:[5]

  • “The University should offer a formal apology for the ways it participated in and benefited from slavery, especially through the sale of enslaved people in the 1830’s.”
  • “The University should engage the descendants of the enslaved whose labor and value benefited the University,” including meeting with descendant communities, fostering genealogical research to help descendants explore their family histories, commissioning an oral history project with descendant communities, exploring the feasibility of admission and financial initiatives for the descendant community and holding public events to explore this history.
  • The University should end anonymity and neglect by erecting “a public memorial to the enslaved persons and families,” preserving the names of the enslaved people, guaranteeing the food upkeep of the Holy Road Cemetery, which is “the final resting place of many enslaved and free blacks of Georgetown.”
  • The University should create “an Institute for the Study of Slavery and Its Legacies,” and “foster dialogue . . . to address contemporary issues related to the history of slavery.”
  • The University should “increase the diversity [of its students and] . . . ,expand opportunities . . . for the descendants of the Maryland Jesuit slaves.”

On September 1, 2016, Georgetown’s President, John J. DeGioia, releasing this report, announced that the University would “offer a Mass of Reconciliation in conjunction with the Archdiocese of Washington and the Society of Jesus in the U.S.;” engage the Georgetown community in a “Journey of Reconciliation; . . . engage descendants and members of our community in developing a shared understanding, determining priorities for our work going forward, and creating processes and structures to enable that work . . .; establish a living and evolving memorial to the enslaved people from whom Georgetown benefited; . . . [and] give descendants the same consideration we give members of the Georgetown community in the admissions process.”[6]

As always I invite reasoned commentary on Douthat’s proposal, the Georgetown response to slavery and to the above reactions.

==================================================

[1] Douthat, A Different Bargain on Race, N.Y. Times (Mar. 4, 2017).

[2] Ta-Nehisi Coates’ Unsatisfactory “Case for Reparations,” dwkcommentaries.com (Oct. 18, 2015); Additional Reflections on Ta-Nehisi Coates, dwkcommentaries.com (Feb. 3, 2016).

[3] Swarns, 272 Slaves Were Sold to Save Georgetown. What Does It Owe Their Descendants? N.Y. Times (Apr. 16, 2016); Swarns, A Glimpse Into the Life of a Slave Sold to Save Georgetown, N.Y. Times (Mar. 12, 2017).

[4] Georgetown Univ, Slavery, Memory, and Reconciliation.

[5] Georgetown Univ., Report of Working Group on Slavery, Memory, and Reconciliation (Summer 2016).

[6] DeGioia, Next Steps on Slavery, Memory, and Reconciliation at Georgetown (Sept. 1, 2016).