When the US Supreme Court makes important rulings, discussion ensues on the intent of the constitution’s draughtsmen and how far their purposes should guide the court more than 200 years later. The designers of this miraculously durable constitution would have wished there to be such debate. But I do not think they would be impressed by much else they see. In fact I am sure they would be dismayed and even disgusted by what the court has become.

Its handling of Bush v Gore in 2000 marked a dangerous low, whether you see that as reckless bungling (as I do) or an outright power-grab. But it was no isolated instance. Despite learned claims to the contrary from all its members, the Supreme Court has become an intensely political body. It is a squabbling panel of legislators in robes – partisan and unelected, selected for their politics and appointed for life.

The court is as polarised as the branches of government it oversees. Far from standing above day-to-day politics and defending the system’s integrity, the justices are down in the dirt throwing punches with the rest, pausing now and then to wipe themselves down, write an opinion and reflect on their dignity.

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It was unsurprising, and in practical terms maybe not very important, that the Supreme Court struck down the District of Columbia’s blanket ban on handguns. In yet another 5-4 decision (the four conservatives plus Justice Kennedy against the four liberals), it ruled that the Second Amendment enshrines the right of individuals–as opposed to individuals serving as part of a militia–to keep and bear arms. It also affirmed that this right is qualified, and that all manner of (unspecified) restrictions on gun ownership and use are constitutional. There will have to be further litigation to test the limits, but in most of the country the ruling will make no difference. The DC law failed because it was an outright ban on handguns, including weapons kept in the home for self-defence, and (the majority said) upholding this law would have meant rendering the Second Amendment defunct.

This is how Justice Scalia, writing for the majority, summed it up:

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Actually I have no objection to my neighbours in DC defending their homes with handguns. I’m all for making burglars anxious. But is this ruling as ruthlessly logical as it purports to be?

The Second Amendment has already been substantially hollowed out–and the Court says it has no problem with that, only with taking it to DC’s extreme of outright prohibition. For the sake of argument, then, let us suppose–as Scalia invites us to–that the Second Amendment is indeed outmoded, for the somewhat plausible reasons he mentions. Let us suppose, again for the sake of argument, that hollowing out the Second Amendment all the way to nothing would save hundreds of lives a year. And further suppose that public opinion in DC was solidly behind DC’s law. Even if all that were true, the majority says it would not be the Court’s job to pronounce the Second Amendment extinct–to do that, Congress and the states would have to climb the mountain of repealing it.

The baffling implication is that the Court can properly take the law all the way from “shall not be infringed” to the tight (and apparently constitutional) controls now exercised in many jurisdictions, but that the last small step to prohibition, however beneficial to the locality concerned, is beyond its competence and demands extraordinary if not impossible political exertions. What am I missing?

An excellent column by George Will, on a subject close to my heart:

Two-thirds of doctoral candidates in science and engineering in U.S. universities are foreign-born. But only 140,000 employment-based green cards are available annually, and 1 million educated professionals are waiting — often five or more years — for cards. Congress could quickly add a zero to the number available, thereby boosting the U.S. economy and complicating matters for America’s competitors.

Suppose a foreign government had a policy of sending workers to America to be trained in a sophisticated and highly remunerative skill at American taxpayers’ expense, and then forced these workers to go home and compete against American companies. That is what we are doing because we are too generic in defining the immigrant pool.

Barack Obama and other Democrats are theatrically indignant about U.S. companies that locate operations outside the country. But one reason Microsoft opened a software development center in Vancouver is that Canadian immigration laws allow Microsoft to recruit skilled persons it could not retain under U.S. immigration restrictions. Mr. Change We Can Believe In is not advocating the simple change — that added zero — and neither is Mr. Straight Talk.

John McCain’s campaign Web site has a spare statement on “immigration reform” that says nothing about increasing America’s intake of highly qualified immigrants. Obama’s site says only: “Where we can bring in more foreign-born workers with the skills our economy needs, we should.” “Where we can”? We can now.

While browsing Greg’s blog (see previous post) I also noted his item on “starve the beast”–the idea, popular with conservatives, that cutting taxes forces public spending lower. He says that a recent column by Paul Krugman implicitly endorses the theory, much as Paul may deplore its application, since it argues that the Bush tax cuts will tie the hands of the next administration. (Yes! That is what they were supposed to do, the White House would say.)

Perhaps I am misunderstanding, but Greg’s point seems to be that Paul has somehow contradicted himself by endorsing “starve the beast”. How so? One can perfectly well believe that the “starve the beast”/”poison pill” theory is true, and still deplore big tax cuts, so long as you also think that big increases in public spending are warranted (as Paul does). Indeed, the theory, if true, is the best reason for liberals to oppose tax cuts, just as for conservatives it is the best reason (or maybe second-best) to advocate them.

Question: Is the “starve the beast”/”poison pill” theory in fact correct? There is evidence pointing both ways–including the fact that Obama is promising to extend almost all of the Bush tax cuts, which would tend to support the idea. Still, on the whole I don’t buy it. Here is a piece [pdf] on the subject I did for National Journal last year, which says why. It references a study by Christina and David Romer, which although certainly not the last word on the subject is for now, I think, the most authoritative word. The abstract of the Romers’ study says this:

The hypothesis that decreases in taxes reduce future government spending is often cited as a reason for cutting taxes. However, because taxes change for many reasons, examinations of the relationship between overall measures of taxation and subsequent spending are plagued by problems of reverse causation and omitted variable bias. To deal with these problems, this paper examines the behavior of government expenditures following legislated tax changes that narrative sources suggest are largely uncorrelated with other factors affecting spending. The results provide no support for the hypothesis that tax cuts restrain government spending; indeed, they suggest that tax cuts may actually increase spending. The results also indicate that the main effect of tax cuts on the government budget is to induce subsequent legislated tax increases. Examination of four episodes of major tax cuts reinforces these conclusions.

I hope the Romers are right, as my NJ column explains:

The worst thing about “starve the beast” is the idea that a straightforward argument for low taxes and spending cannot be pressed successfully. You have to cut taxes, which the voters will like, and let them think they can have high spending, too. Later, if all goes according to plan, they will see they were mistaken. It is a strategy based not only on outwitting the Democrats, but on outwitting the electorate as well. It would be a pity if it worked.

Greg Mankiw links to this recent column by Larry Lindsey on what Obama’s tax proposals would imply for taxes on the highest earners.

Larry points out: “A high-income entrepreneur would see his or her federal marginal tax rate rise to 53% from 37.7% under Sen. Obama’s tax plan.”I believe this would be the highest tax rate on earned income since 1971.  

As I mentioned in this recent piece, that is putting it mildly–since many states also levy an income tax of their own. Top marginal income-tax rates in the country would rise not to 53%, but to more than 60%.This is assuming that Obama applied the full payroll-tax rate to very high incomes. (In Britain, when then-finance-minister Gordon Brown abolished the earnings cap on “national insurance contributions”, the UK equivalent of the payroll tax, he extended the tax above the old ceiling at a rate of just 1%.) Obama has not yet been explicit about the rate at which his extended payroll tax would apply, leaving people to think that it would be at the full rate, once it kicks in at $250,000-plus. His campaign says that nothing has been decided. I’m surprised he is not being pressed harder on this.

Week in and week out, Washington gives master classes in making simple questions complicated. It is a bipartisan effort of mutually assured irrelevance. Perfected over years, a combination of tribal ideology, empty posturing and feverish displacement activity generally does the trick. You see it everywhere, but nowhere more than in energy policy.

The US constitution makes it difficult for politicians to do much (except fight wars) and this avoids a lot of damage that would otherwise result. But now and then some intelligent policymaking is needed, and energy is again a case in point.

Nowadays most Americans want to see action on global warming. Sensing the mood, both presidential candidates advocate a cap-and-trade approach to reducing carbon emissions. However, even more than they want to see global warming addressed, Americans demand cheap fuel for their urban assault vehicles. So the candidates must cater to that appetite as well – with petrol tax holidays and new plans for offshore drilling (John McCain) or windfall taxes to punish oil company gouging and “help families to pay for their skyrocketing energy costs” (Barack Obama).

The remainder of this column can be read here. Please post comments below.

I thought Obama’s new general-election ad was interesting. To make it more conservative, he would have had to attack gay marriage and call for nuclear waste to be stored in Yosemite. He stands for “values straight from the Kansas heartland where I grew up…” My theory is that he might be courting independents.

And this trailer from Fortune for a soon-to-be-published interview with Obama (”Nafta not so bad after all”) would seem to support that theory.

The general campaign is on, independent voters are up for grabs, and Barack Obama is toning down his populist rhetoric - at least when it comes to free trade.

In an interview with Fortune to be featured in the magazine’s upcoming issue, the presumptive Democratic nominee backed off his harshest attacks on the free trade agreement and indicated he didn’t want to unilaterally reopen negotiations on NAFTA.

“Sometimes during campaigns the rhetoric gets overheated and amplified,” he conceded, after I reminded him that he had called NAFTA “devastating” and “a big mistake,” despite nonpartisan studies concluding that the trade zone has had a mild, positive effect on the U.S. economy.

Does that mean his rhetoric was overheated and amplified? “Politicians are always guilty of that, and I don’t exempt myself,” he answered.

All this and Jason Furman too. I thought that a fine appointment, by the way, but never dreamed how significant until I read Naomi Klein.

Barack Obama waited just three days after Hillary Clinton pulled out of the race to declare, on CNBC, “Look. I am a pro-growth, free-market guy. I love the market.”

Demonstrating that this is no mere spring fling, he has appointed 37-year-old Jason Furman to head his economic policy team. Furman is one of Wal-Mart’s most prominent defenders, anointing the company a “progressive success story.” On the campaign trail, Obama blasted Clinton for sitting on the Wal-Mart board and pledged, “I won’t shop there.” For Furman, however, it’s Wal-Mart’s critics who are the real threat: the “efforts to get Wal-Mart to raise its wages and benefits” are creating “collateral damage” that is “way too enormous and damaging to working people and the economy more broadly for me to sit by idly and sing ‘Kum-Ba-Ya’ in the interests of progressive harmony.”

Obama’s love of markets and his desire for “change” are not inherently incompatible. “The market has gotten out of balance,” he says, and it most certainly has. Many trace this profound imbalance back to the ideas of Milton Friedman, who launched a counterrevolution against the New Deal from his perch at the University of Chicago economics department. And here there are more problems, because Obama–who taught law at the University of Chicago for a decade–is thoroughly embedded in the mind-set known as the Chicago School.

Ms Klein rightly draws attention to the irony–I mean, the irony–of Obama’s lurch to the right:

The irony is that there is absolutely no reason for this backsliding. The movement launched by Friedman, introduced by Ronald Reagan and entrenched under Clinton, faces a profound legitimacy crisis around the world. Nowhere is this more evident than at the University of Chicago itself. In mid-May, when university president Robert Zimmer announced the creation of a $200 million Milton Friedman Institute, an economic research center devoted to continuing and augmenting the Friedman legacy, a controversy erupted. More than 100 faculty members signed a letter of protest. “The effects of the neoliberal global order that has been put in place in recent decades, strongly buttressed by the Chicago School of Economics, have by no means been unequivocally positive,” the letter states. “Many would argue that they have been negative for much of the world’s population.”

When Friedman died in 2006, such bold critiques of his legacy were largely absent. The adoring memorials spoke only of grand achievement, with one of the more prominent appreciations appearing in the New York Times–written by Austan Goolsbee. Yet now, just two years later, Friedman’s name is seen as a liability even at his own alma mater. So why has Obama chosen this moment, when all illusions of a consensus have dropped away, to go Chicago retro?

Why indeed? Why oh why? More than 100 faculty members have signed a letter of protest! The rest of Ms Klein’s richly nuanced analysis is here.

Kansas values, Chicago retro. Whatever next?

I thought most of this week’s reporting and analysis on why the new bill to curb greenhouse gas emissions failed in the Senate was a bit thin. It’s true that nobody expected it to become law (it was heading for a veto in any any case), but it mustered surprisingly little enthusiasm even so–raising doubts about its prospects next year, despite the fact that a well-disposed president will be in the White House. This is another plug for National Journal, if you’ll allow me, but the column by Ron Brownstein clearly explains what went wrong.

The bill would have established enough boards and regulations that the chamber was able to distribute a devastating chart, modeled on those used against Hillary Rodham Clinton’s health care plan in 1993, that portrayed the proposal as an impossibly tangled hedge of new bureaucracies…

[It] provoked unexpectedly stiff opposition on a related front. Under the measure, Washington would distribute about half the credits to emit greenhouse gases for free and would auction the rest–yielding an estimated $3.4 trillion in federal revenue over the next 40 years. Republicans such as Sen. Lamar Alexander of Tennessee derided that money as a “slush fund” that would enable massive spending on causes far beyond clean-energy research… To pass, the reworked bill will need to focus more tightly on subsidizing new technology and providing tax cuts to moderate-income taxpayers to offset the higher energy costs it will trigger.

That raises the final problem. Amid soaring oil prices, proponents faltered before critics’ charges that the measure would inflate energy bills.

I’ve just finished writing a column of my own on energy policy that will be in Monday’s FT. (You’ll be able to read it here too, of course, once it goes live.) It develops and endorses Ron’s concluding thought:

U.S. environmentalists won’t recover from their Senate debacle unless they candidly ask Americans to bear somewhat higher energy prices now, as the cost of building a more economically and environmentally sustainable future for their children.

In this new column for National Journal, I reflect on Ireland’s rejection of the EU’s new constitutional treaty.

The European Union’s latest pratfall–occasioned by Ireland’s rejection last week of a new constitutional treaty–is worth noting for several reasons. To begin with, the outcome has practical implications for the United States. The next president will wish to refresh the alliance with Europe. Ireland’s vote, however, throws the E.U. into disarray–or let us say that it perpetuates the disarray already in progress. Anyway, the president will be talking to himself: Europe will be too busy gazing at its own innards to look elsewhere.

Beyond this, the E.U.’s inner writhings are an object lesson for romantic internationalists who worry about global governance and see “multilateralism” and the pooling of sovereignty as the way forward. Never forget that the pantomime in Europe is multilateralism writ large.

You can read the rest of the article here (the link expires in a fortnight).

Barack Obama and John McCain both expect the ailing US economy to work to their advantage in November. Mr Obama promises to make things better. Mr McCain says they will get better by themselves and he will not make them worse in the meantime. These are the customary postures of the two parties. For a fight between an insurgent Democrat and a maverick Republican, the economics in this election is sadly orthodox.

Mr Obama offers the usual Democratic remedies for middle-class anxieties and grievances: new tax breaks and spending programmes, higher taxes for the rich, sabre-rattling on trade, calls for stricter regulation of finance and so forth. Mr McCain, likewise sticking to his party’s script, says that with the economy in a hole, this is no time to be raising anybody’s taxes, restricting trade or doing anything else to get in the way of American enterprise.

The remainder of this column can be read here. Please post comments below.