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08/15/2005

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Listed below are links to weblogs that reference The Ten Commandments Cases--Posner:

» The Economics of Religion from AnalPhilosopher

Federal appellate judge Richard A. Posner, the founder of law and economics (sometimes called, as in his book, "Economic Analysis of Law"), weighs in on the recent Ten Commandments cases. See

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» The Economics of Religion from The Conservative Philosopher

See here for federal appellate judge Richard A. Posner's discussion of the recent Ten Commandments cases.

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» The Effects of State Sponsorship of Religion from blog.kennypearce.net
In a series of posts on their blog, Nobel Prize-winning economist Gary Becker and former federal appeals court judge Richard Posner (both now professors at the University of Chicago) discuss the effects of state sponsorship of religion, and the recent ... [Read More]

» The Effects of State Sponsorship of Religion from blog.kennypearce.net
In a series of posts on their blog, Nobel Prize-winning economist Gary Becker and former federal appeals court judge Richard Posner (both now professors at the University of Chicago) discuss the effects of state sponsorship of religion, and the recent ... [Read More]

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Corey

"Obviously the fact that the public schools are "free" to the parents, being supported out of taxes, places religious and other private schools at an arbitrary disadvantage, so there is nothing wrong (remember I am speaking only of the economics of the question) with providing a comparable subsidy so that parental choice will not be distorted."

There is something very wrong "economically" with that statement. I can get near universal agreement with the premise "every child deserves a good education". Vouchers will allow more parents to buy their way out of public schools, which will further impoverish those schools. The public schools most in need of money will be exactly the schools most hurt. Many will close. Not every child will get an education. A betrayed norm of universal access is an economic cost. (Even if unquantifiable.)

Vouchers would have the practical effect of further segregating schools on class lines. (Much the same way "No Child Left Behind" will.) You do not fix impoverished struggling schools by cutting funding or by encouraging the top students to leave for private, religious, or charter schools.

In other words, there is a very specific reason to subsidize public schools over private. It is the only way to guarantee an education to everyone. Universal parental choice is a red herring for many because geography and poverty will bar access to private/religious schools for them even with vouchers. Thus parental choice conflicts with universal access. Markets are cold, and can't employ or educate everyone. It is not competitive to guarantee service to ALL takers, so you need a subsidy to encourage that.

Private and religious schools are selective. They exist because some people are willing to pay for their kids to go to a school that is segregated by class or religion. Selectivity is in obvious tension with the longstanding American norm of equal opportunity. I read Becker and Posner's favorable allusions to vouchers as a rejection of that norm.

I realize I am probably one of the few public school educated people that posts to this blog. I don't need to hear horror stories. Think of how much better those horrible schools would have been with all of the parental involvement and dollars at your private school.

Gabriel Mihalache

We can assess the validity of what you are saying only if we accept the State as an utility maximiser.

If the role of the State is to decide and impose on a distribution of utility, and since in most cases there is no one distribution which is absolutely best for everyone, the State is turned into a "battleground" for interest groups. In this case it's naive to give arguments for one side or another. It's just political cannibalism.

My point is this, that a minimal state would reduce or eliminate these struggles (e.g. the "game" of net winners and net loosers in taxation) As for the 10 commandments... whoever will win will win, obviously, but if the nature of the State would be that I described this would be a non-issue.

Edward Rubin

This post seems to me to a good illustration of the weakness of ecenomic analysis when applied to constitutional law. The economic analyst makes assumptions about how the world works, as Adam Smith did, but the framers made their own assumptions which are deeply embedded in the fabric of the Constitution and the Bill of Rights, and it is frivolous to depart from their assumptions because they don't conform either to the economist's contrary assumptions or to the results of the latest survey (mis?)designed by some Harvard professor.

With respect to freedom of religion, the Framers knew (a) that they wanted a society characterized by the freedom to practice any religion or no religion, and (b) that an established church was inimical to the creation asnd survival of such a society. We could debate endlessly whether the latter was a sound assumption or whether some theoretically appealing counterintuitive proposition is really correct (established churches weaken religion) but the Constitution quite clearly rejects that logic in favor of (b) above.

The desire to permit the free exercise of religion and the rejection of an established church reflect values independent of economic assumptions. I still remember the Menora decision applying this mode of analysis to whether an Illinois high-school association's rule prohiting Jewish players from wearing yarmulkes affixed by bobby pins due to the dangers allegedly posed by the alleged insecurity of the fixture could pass constitutional muster. I don't even really disagree with the outcome of that case, but I do find the economic reductionism of the analysis a troubling constant from that early decision more than 20 years ago to the present post.

It seems silly not to acknowledge that the Framers largely built the Constsitution on non-economic values and models and behavior, and that they were prepared to tolerate inefficiencies (gasp) to implement their values. They evn clung to the stubborn belief that not all human behavior can be reduced to economics. Hadn't the fools even read Marx?

A survey of history does not tend to confirm the proposition that utilitarian analysis of religious issues as a basis for social policy will yield the type of society any rational person would really want to live in. The Constitution rejects that proposition and so should we.

David

There is much to say here, but one brief cliche sums it up: those who do not learn from history are doomed to repeat it.

State establishment of religion has been responsible for much strife, repression, killing, torture, and warring -- among and within nations -- over the course of human history. The insatiable human desire to legislate one's religious preference has left a trail of graves, hatred, and inhumanity that persists even in this "enlightened" age. In fact, much of the strife in the world today stems from groups attempting to impose their religious dogma on society at large. The founders of this country looked at that history (and immediately at their own history of persecution for rejecting the Anglican church) and drafted the establishment clause. If every country in the world had such a clause, the human tendency toward war and repression would be much diminished.

That said, there are silly questions at the margins of establishment clause jurisprudence, such as whether surrouning a creche with three plastic animals makes a holiday display secular rather than religious. We can debate both sides of those silly questions, and it is probably one of them whether surrounding the Ten Commandments with exhibits about Texas sports teams renders the display secular, even as it proclaims, "I am the Lord thy God."

No doubt the Supreme Court's jurisprudence on this issue can be cleaned up a bit so that it represents a coherent theory rather than a fact-based mess. Still, it's better that we debate these silly, marginal questions than questions like whether Alabama can establish the Southern Baptist church. In the end, the framers' somewhat permeable wall between church and state makes us more civilized and tolerant as a nation. And it teaches us that religion is a private virtue, not a question to be debated in the halls of Congress.

Palooka

Ed Rubin:

Remember Posner is speaking to a system designed from the ground up, setting ASIDE any legal questions.

And you're quite mistaken on what they intended. Even Jefferson and his "wall of separation" is quite different than what liberals believe. He had no problem with established churches at the state level. You might notice, or maybe not, that the textual command of the Establishment Clause literally forbids the federal government from DISESTABSLISHING religion established in the several states. Notice also the neurality of the language. The clause commands that Congress make "no law respecting an establishment of religion." Notice that the clause does not only limit Congress in establishing religion but ALSO from disestablishing religions established in the several states. That isn't a result of poor construction, it was contructed that way on purpose.

Even if one accepts the validity of incoporation, Posner calls it "questionable," how does one incorporate a clause against the states which was more of a structural guarantee of division of powers than a liberty guarantee?

michael persoon

My comment is similar to Edward Rubin's--

"A public display of the Ten Commandments is a far cry from a state-salaried minister, so far as the impact of public support of religion on proselytizing is concerned."

I think Becker and Posner pretty much nailed an economic analysis of state activity in religious markets and agree with it. The above quote also addresses interpretation of the establishment clause, which is a bit trickier to analyze either using your preferred jurisprudence, or an economic analysis.

The role, as Edward Rubin rightly pointed out, of economic analysis is limited towards in Constitutional Jurisprudence because the Constitution created an inviolate system of axioms that cannot be circumvented no matter how inefficient. Under the system created by the Constitution, no marginal social gain can ever outweigh the marginal social cost of violating one of the principles laid out in the Constitution.

However, the sort of analysis used to interpret what is barred and what is allowed by the Establishment clause, does allow for an economic analysis. In fleshing out the necessarily vague Establishment Clause, it is useful to see what the consequences of a particular action would be.

Does allowing state displays of religious artifacts empirically amount to an establishment of religion or not? Do state displays of religious artifacts create an unfair market advantage for a given religion, and if so, does this violate the Establishment Clause?

As I understand it, if an economic perspective abhors anything it is a monopoly. In this sense, the correlations between economic thought and the Carolene Products footnote four fascinate me. While the Constitution is sacrosanct against economic analysis, there is this backdoor through which economic thought enters into fleshing out the broad Constitutional provisions and in that sense there is an economic jurisprudence--think of all subjet areas in terms of markets and monopolies.

nate

What are your thoughts on Song of Solomon?

Palooka

"The role, as Edward Rubin rightly pointed out, of economic analysis is limited towards in Constitutional Jurisprudence because the Constitution created an inviolate system of axioms that cannot be circumvented no matter how inefficient. Under the system created by the Constitution, no marginal social gain can ever outweigh the marginal social cost of violating one of the principles laid out in the Constitution."

OK, step into the real world now. You really believe the Constitution is an "inviolate system of axioms?" Maybe you believe it SHOULD be, but I can't think of a single scholar who thinks it is one, as interpreted by the judiciary.

David

p.s. On the subject of "silly" cases at the margins of the establishment clause, here is one of the quirkier Posner opinions of all time. Have you ever wondered what water skiing in Hawaii had to do with the establishment clause? Read on! A word of warning: the views expressed by Posner in this opinion might seem to conflict with his current post. But maybe that's the difference between applying the law and theorizing about how to rewrite it:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=case&no=942563

nate


"Obviously the fact that the public schools are "free" to the parents, being supported out of taxes, places religious and other private schools at an arbitrary disadvantage"

My rhetoric and writing professors at a public university taught me to use the word "obviously" very sparingly...

It may help to expand on this thinking a little more and think in "net" terms. Religious and other private schools (the schools, the students, the alumni and other stakeholders) benefit from large portions of the population able to read, write, make change, know about civics and govt, and other education skills(interactive effects).

"other private schools" (Harvard,Princeton, Yale, Stanford, Univ of chicago, etc) are not necessarily (or "obviously") at an arbitrary "disadvantage".

Private schools today (vs 30 years ago) may be in a position to compete. Marginal income tax rates today are much lower than they were prior to Reagan (35% today vs. 70% in 1980 *). Wealthy people get to keep more of their money today and arguably should be able to create very competitive schools, which has happened. Coffers at private schools appear to be doing okay despite being arbitrarily disdvantaged. If private school people are concerned about "advantage and disadvantage", perhaps they should fund more scholarships for their own schools?

The tax rate system may be "flatter" today than people think - the "all-in" effective tax rate on people of moderate means (all in meaning payroll taxes - employer and employee, federal and state income taxes, property taxes, sales taxes, fees and other) may (not sure) be close to 35% or higher.

* tax rates from http://www.taxfoundation.org/publications/show/151.html

Patrick R. Sullivan

First Amendment jurisprudence is about as intellectually confused as possible. Why are displays of creches illegal, but Christmas Day a national holiday?

David

"Why are displays of creches illegal, but Christmas Day a national holiday?"

Because Christmas has become secularized (sort of like Frosty the Snowman), and creches -- at least without three plastic animals around them -- are a purely religious display.

Don't blame me; I'm just the messenger. That is the law of the land according to the Supreme Court. And it's why we need to rethink -- but not trash, as Posner did -- what it means to have "separation" of church and state.

Patrick R. Sullivan

The Easter-Bunny-Santa Claus argument has this little constitutional flaw; if recognizing religious holidays was once acceptable on religious accommodation grounds, where's the constitutional amendment that changed that?

I've read the 'water skiing in Hawaii' case decision, and it seems to me that the dissent was far more coherent.

BB

Posner: "That is a good economic argument: if you are paid a salary that is independent of your output, you will not be motivated to work beyond the minimum requirements of the job."

I can see how this relates to priests, but how about judges?

ben

Corey

Think of how much better those horrible schools would have been with all of the parental involvement and dollars at your private school.

Elementary and secondary public schools already expend 60% more money per student than private schools (see http://www.census.gov/prod/2003pubs/02statab/educ.pdf) yet public schools produce inferior results overall.

Furthermore, students who move to private schools do better, particularly disadvantaged students, after controlling for other factors (e.g. IQ).

These facts suggest private schools are onto something. Don't you think an expansion of private sector schooling would improve education, particularly if targeted at the poor (e.g. Becker?s idea of a voucher system for the poorest quarter) and provided everyone still had the option to go public? (there is no reason this could not happen. Anyway, in view of its cost advantages it is arguably the suppression of the private sector that is reducing access to education)

Sterling L. DeRamus

Just a point about the issue of whether government sponsored religiosity "offends" the non-religious. While I realize that this seems to be a concern of the Courts at various times, I find it particularly unhelpful way of looking at things. I am not a Christian, but I am certainly not offended by it. (It's a weird belief, but so are a lot of others.) It's not that I am offended by state sponsored religion that's an issue. Frankly, I am offended by far worse things that this administration does than promote religiosity. But I do not find in the Constitution the right not to be offended by actions of the government.

What I find objectionable about state sponsored religious events (or memorials) to me is far more insidious. It is the implication that there are favored religious groups in this country; that those who do not bow down to the state sponsored view of the correct religion are thus second class citizens - tolerated but not full members of the body politic (thank Roy Moore and kiss his ring for his tolerance but don't ask for justice!). I can think of no better way to coerce people to join the dominant religion than to display the creed at the Courthouse where justice is supposed to be blind to such differences. The message is painfully obvious: join or get second class justice.

In Madison's time, the concern was over taxes used to support religion. In all of Madison's writings there is the concern that citizens will be forced to contribute money to a religion that they do not agree with. Some now argue that argument is not applicable to such things as Ten Commandment Monuments or school prayer, issues never specifically addressed by Madison in any of his writings. But that is not really true. All government actions cost money -however minimal. Taking 1 minute to have a religious service at school does cost taxpayers money - we are paying teachers for that time to proselytize. Madison recognized the dangers of even such small taxation - that it was the Camel's nose under the tent (to use another cliche) - and once we accepted such a thing in principle that there was nothing to stop us from going down a slippery slope to full church recognition and taxpayer support.

The idea that separation of church and state is only a structural guarantee of a division of powers is ludicrous! The Establishment Clause is a liberty interest that we all have. Madison certainly recognized it as such, and while in its original form it did not apply to the states, I think it is pretty clear from the comments of the framers of the 14th Amendment that they meant to incorporate all of national freedoms in the Amendment and apply them to the states. There is no religious freedom without the complete separation of church and state.

nate

"Elementary and secondary public schools already expend 60% more money per student than private schools (see http://www.census.gov/prod/2003pubs/02statab/educ.pdf) yet public schools produce inferior results overall."

Thank you for the URL to more data. I would have to spend more time calculating some ratios in a spreadsheet...

Tentatively, based on cursory review: it looks like there are differences between k-12 and college\university.

And some questions:
...If there were no public schools, would private schools take everyone?
...What would this do to a private school's "selectivity", "exclusivity" and "prestige"?
...Should we have less education?
...Is education a public good?
...Are ideas in "tragedy of the commons" at all applicable to education?
http://en.wikipedia.org/wiki/Tragedy_of_the_commons

Jonathan Schwartz

Doesn't the constitution have something to do with the laws protecting the rights of minorities? I know that the constitituion and discriminatory laws coexisted for a long time but it was supreme court cases rulings that "separate but equal" was unconstitiutional etc. that opened the doors to these laws. Therefore, I really don't think you can use minority rights laws as evidence that a law mandating a particular religion would be unlikely to pass.

Cogliostro Demon

Not too long ago, a diarist wrote about the effects of disestablishing state religon.

"Sunday 10 August 1662 (Lordís day). Being to dine at my brotherís, I walked to St. Dunstanís, the church being now finished; and here I heard Dr. Bates, who made a most eloquent sermon; and I am sorry I have hitherto had so low an opinion of the man, for I have not heard a neater sermon a great while, and more to my content. So to Tomís, where Dr. Fairebrother, newly come from Cambridge, met me, and Dr. Thomas Pepys. I framed myself as pleasant as I could, but my mind was another way. Hither came my uncle Fenner, hearing that I was here, and spoke to me about Pegg Kiteís business of her portion, which her husband demands, but I will have nothing to do with it. I believe he has no mind to part with the money out of his hands, but let him do what he will with it. He told me the new service-book1 (which is now lately come forth) was laid upon their deske at St. Sepulchreís for Mr. Gouge to read; but he laid it aside, and would not meddle with it: and I perceive the Presbyters do all prepare to give over all against Bartholomew-tide. Mr. Herring, being lately turned out at St. Brideís, did read the psalm to the people while they sung at Dr. Batesís, which methought is a strange turn. After dinner to St. Brideís, and there heard one Carpenter, an old man, who, they say, hath been a Jesuit priest, and is come over to us; but he preaches very well. So home with Mrs. Turner, and there hear that Mr. Calamy hath taken his farewell this day of his people, and that others will do so the next Sunday. Mr. Turner, the draper, I hear, is knighted, made Alderman, and pricked for Sheriffe, with Sir Thomas Bluddel, for the next year, by the King, and so are called with great honour the Kingís Sheriffes. Thence walked home, meeting Mr. Moore by the way, and he home with me and walked till it was dark in the garden, and so good night, and I to my closet in my office to perfect my Journall and to read my solemn vows, and so to bed."

If we were talking about establishing the one true Roman Catholic church, then, great!

nate

one more posting and then I'm quiet.

On the "majority": sometimes the majority is a bunch of lemmings and is wrong - obviously and embarassingly so in retrospect. Have you ever been around an entire group of people (smart people too) that walk around massively deluded to their own detriment?

Please note I am not saying that I think Christian people are deluded or are wrong.

I do think there is such a thing as the tyranny of the majority though, and logic that supports this is worth discussion.

http://www.serendipity.li/jsmill/jsmill.htm

Christianity was arguably spread through persecution and non-mainstream channels. Your reference to Hume seems to pick up on this. A couple thousand years ago, the official courts and govt-controlled public spaces did not "endorse" or "promote" Jesus Christ.

Palooka

"The idea that separation of church and state is only a structural guarantee of a division of powers is ludicrous!"

Then why did they choose the language "no law respecting an establishment" when they could have written "no law establishing religion." How can one incorporate a clause which text precludes incoporation (i.e. incorporating the Establishment Clause against the states WOULD be making a law "respecting an establishment of religion.") Incorporating the Establishment Clause disestablishes religion established in the several states, thus the Courts are violating the command to "make no law respecting an establishment of religion." Why is that ludicrous?

Palooka

"Madison certainly recognized it as such, and while in its original form it did not apply to the states, I think it is pretty clear from the comments of the framers of the 14th Amendment that they meant to incorporate all of national freedoms in the Amendment and apply them to the states."

One more clarification. Yes, even accepting the theory of incorporation there is a problem. Because if one understands the Establishment Clause's neutral language to be a liberty interest for states to choose establishment, then one can't very well contradict that liberty it was intended to protect.

Again, if the language merely prohibited Congress from making a law establishing religion, then there would be no problem. But the command is to make no law either establishing or disestablishing religion, and that creates a serious problem when incorporation would nullify that language by disestablishing religion established in the several states.

ben

> If there were no public schools, would private schools take everyone?

I have no doubt it is possible to design a public funding mechanism that ensures everyone receives a private education. The question is probably hypothetical, however. There is evidence that public schools raise quality in response to competition from private schools (though not from other public schools) (Brasington 2000). This would work against the exit of the public sector. In addition, the political costs of a full public sector exit probably presents a prohibitive exit barrier (as well as a great opportunity for alliteration).

Incidentally, Brasington's findings, if correct, mean greater private provision also benefits students who remain at public schools.

> What would this do to a private school's "selectivity", "exclusivity" and "prestige"?

I don't know.

> Should we have less education?

I don't know.

> Is education a public good?

My answer, if you mean "public good" as economists define the term, is yes and no. Public funding of education is usually justified on externalities, and in this sense education has public good characteristics. However, the delivery of education is a private good because it is both rival and exclusive. This makes it suitable for private sector provision.

> Are ideas in "tragedy of the commons" at all applicable to education?

Can you be more specific?

Corey

"Elementary and secondary public schools already expend 60% more money per student than private schools... yet public schools produce inferior results overall"

You can't just compare public and private schools straight across because they are serving different markets. A good deal of that extra expenditure is in higher teacher salaries at public schools. That is not wasted money, families are eating and buying clothes with it. The "inferior results" are because public schools must take every kid while private schools select on ability. The private schools also drain off top performing students, so its a rigged comparison.

"Furthermore, students who move to private schools do better"

Ok, fine, but they would also do better if we stuck all the private school kids and parents who care back into their public schools. Your argument if true really indicates that putting kids of differing abilities together is more helpful than segregating them on merit.

"These facts suggest private schools are onto something."

Yes, that you can avoid hassle and raise your test scores by shutting out the kids who need the most help. Meritocracy is efficient, but we are not the Borg, there is more than efficiency.

"Don't you think an expansion of private sector schooling would improve education"

No. All of the stupidest people I know came from private schools.

I have an idea, Harvard is rumored to be the best school in the land right? Lets make every school Harvard! What works for them will work for EVERYONE!

Or not. You can't make every school Harvard. Giving every parent in an urban ghetto a voucher won't magically make Eaton appear on their doorstep. The only thing competition will do for every school is make every school competitive above all else. The only thing competition will do for every religion is make every religion a little less tolerant.

It is established "truth" in economist land that a free labor market will have a "natural" unemployment rate. Well, a free education market will have a "natural" un-educated rate. Problem is, we believe in universal access and equal opportunity. Show me a realistic practical way that a voucher system will bring enough dollars into your nearest urban ghetto or rural backwater to run a decent school there. You can't, because it won't. Vouchers inject a massive collective action problem in the name of "parental choice".

And not only will many areas be under-served in a private market, less of every dollar spent on education will actually go to education, because now the schools will have shareholders and dividends and profit-sharing.

On the religion side, one thing I have learned since coming to live in the Bible belt is that Christian churches are constantly splitting off and factionalizing over personal or ideological fights. In order to attract members, new and old churches put large portions of their budgets into bigger and fancier new buildings. The end result is that HALF the church buildings in many towns sit completely empty. That's just waste production, which I belive old Marx said was a common problem with capitalist structures. If churches were more unified, they might instead be able to build homeless shelters or feed the hungry.

Competition and resulting segregation is bad for schools, competition and resulting factionalization is bad for religion.

nate


"However, the delivery of education is a private good because it is both rival and exclusive."

This blog is not exclusive. Is it educational in nature? Why is education "exclusive"? Consider Professor DeLong's blog at Berkeley - he routinely posts academic papers to read for free or for very small amts of money (NBER - $5). You can discuss them with other people around the world. The U.S. has free internet access in public libraries. Is education exclusive?

"There is evidence that public schools raise quality in response to competition from private schools (though not from other public schools) (Brasington 2000)"

Competition for the University of Illinois basketball team is the University of North Carolina.

Are you using Internet Explorer to discuss education with me? In the Menu Bar on Internet Explorer, if you go to "Help" and "Properties", you will see the following:
"Based on NCSA Mosaic. NCSA Mosaic(TM); was developed at the National Center for Supercomputing Applications at the University of Illinois at Urbana-Champaign."

anecdotal, i know. (how many web browsers run IE?)

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