"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.

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.

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.

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.

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?

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.

What are your thoughts on Song of Solomon?

"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.

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

"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

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

"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.

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.

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?

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)

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.

"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

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.

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

"Sunday 10 August 1662 (Lord�s day). Being to dine at my brother�s, I walked to St. Dunstan�s, 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 Tom�s, 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 Kite�s 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. Sepulchre�s 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. Bride�s, did read the psalm to the people while they sung at Dr. Bates�s, which methought is a strange turn. After dinner to St. Bride�s, 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 King�s 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!

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.

"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?

"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.

> 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?

"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.

"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?)

I'd emphasize Posner's implicit view that U.S. science education, particulary in evolutionary biology, suffers from lots of things besides (though, I would add, perhaps related too) the well-known religious controversies. And, while REQUIRING teaching intelligent design as science is obviously a bad idea, the question of how schools will teach the relation between science and religion is at least as hard a question as (though very different from) deciding how they will accommodate the varying prediclictions of their students/their students' parents regarding religions. Debates about funding have to handle the former question to. Unhappily, we could easily wind up with poorer science education as a result of equally funded religious education.

These are two of the most insightful posts I've seen on this blog and I say that as someone who's profited from about everything I've read on it.

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

Can you be more specific?
----------------------------------------------

Perhaps another time-

in Internet Explorer, it is "Help" ... "About Internet Explorer" (not "Help" ... "Properties")
'

Nate

I had classroom delivery of education in mind. You are right that blogging is non-exclusive.

I don't understand the rest of your post.

"and that creates a serious problem when incorporation would nullify that language by disestablishing religion established in the several states."

Its only a problem if you are a textualist who happens to belong to the Federalist Society. I find myself strangely untroubled by the incorporation of my basic rights against more possible oppressors.

States with established religions don't have a very good historical record of being nice to people. Why would we want that back? Is it unreasonable to ask for some sort of proposed good that would be served other than fidelity to the wishes of some dead white man? Is there a state that could even democratically establish a religion now that everyone gets to vote? I don't even think Utah could get 51% for that. There is more than one brand of Mormon too.

http://www.cato.org/pubs/journal/cj14n3-9.html

For some reason, cognitive dissonance also comes to mind. If you just pay tons for a private education, when you could have gone to state university or public schools and had a similar experience, you have to rationalize all the spending somehow.

excerpt from http://www.learningandteaching.info/learning/dissonance.htm :

"and�counter-intuitively, perhaps�if learning something has been difficult, uncomfortable, or even humiliating enough, people are less likely to concede that the content of what has been learned is useless, pointless or valueless. To do so would be to admit that one has been "had", or "conned". "

Disclaimer: I am not a psychology or sociology or education major and may be totally wrong.

Posner's argument that nonsectarian establishments of religion might be permissible as a subsidy to offset government subsidies for secularism is interesting. But I think the argument by some evangelicals for government establishment is different and more forceful. They seem to hold that government secularism produces a kind of market failure in religiosity and good conduct. Government "establishments" are thus a way of creating a public good in the form of God's blessings for this country from which no one can be excluded.

The argument goes like this. When government banishes religious expression from public spaces, it implies that religion is purely private and that God does not care whether we pray or publicly acknowledge His supremacy. Government sets the tone, and as a result many will not pray or believe (even if they tell the pollsters that they do). A purely private market in religiosity does not produce sufficient homage to God to earn His blessings for this country. Some evangelicals say this is why the country has gone downhill ever since prayer was banned from public schools. Vice (abortion, promiscuity, crime, hedonism) and disbelief (the media, Hollywood) spread when religious expression is privatized. We experience a market failure for this good.

Like national defense, God's blessing is a public good. Government helps to generate this good when it establishes religious expression in public places. God gets the homage to which He is entitled and government sends the signal to citizens that they should be faithful in order to earn God's blessing. Citizens are admonished to avoid a counterproductive, free-riding secularism.

If so, government establishment of religion does more than offset the subsidy for government secularism. It creates a valuable public good.

But if the case for government establishment is really a "public goods" argument, those who employ a "law and economics" approach might rethink their willingness to endorse government establishment of religion in any form. The argument illustrates the dangers of an expansive view of public goods.

No one points out that it's the Dallas Cowboys not the Texas Cowboys? For shame, dear readers.

I respectfully disagree with the line of argument that sets up a dualism between religious and non-religious activities. Rather, the issue should be understood to have three parts: religious, a-religious, and anti-religious.

Not allowing religious monuments on public space is not akin to promoting anti-religious sentiments. To be anti-religious, one would have to place the "athiest ten commandments" on a public space.

Thus, Posner's idea of religious v. secular subsidies is a little off, at least legally speaking. Unless Santa Claus was an athiest, which I believe he wasn't, his appearence is not anti-religious - it is a-religious. If anything, Santa Claus is more of a religious figure than not, and aethiests are being denied their free opportunity to enjoy their version of the month of December.

Becker seems to acknowledge the above argument and even expand it beyond three parts: for him it is more about a monopoly of any idea, rather than religion vs. a-religion vs. anti-religion. Perhaps this is the best way to look at it.

Eitherway, the religion vs. a-religion dynamic seems to be a poor way of understanding the issue.

cheers,

Neerav

palooka is making a very good point about the 'neutral language' of the establishment clause. Madison's first draft of the 1st Amendment simply stated that no national church should be established. It seems that the actual language we got meant that not only couldn't congress create an official religion it couldn't interfere with the states (four, iirc) that had established, tax-supported churches.

And, thus, the 14th Amendment 'incorporation doctrine' is shown to be bizarre in its logic. Not to mention that the Amendment could have simply said that its passage would incorporate all (or specific) 'rights' found elsewhere in the Constitution. Since it didn't, the most logical conclusion is that that was not its intention.

"The argument goes like this. When government banishes religious expression from public spaces, it implies that religion is purely private and that God does not care whether we pray or publicly acknowledge His supremacy."

And, since atheism or agnosticism isn't neutrality toward religion, favoring those beliefs would be exactly the kind of establishment of religion that the strict separationists profess to be alarmed about over 10 Commandments and creches on public property.

jake:

i've never read a "public goods" argument for establishment of govt religion.

interesting to talk about dangers of an "expansive" view of public goods. what are the definitions\guidelines for a public good?

"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."

Mr. Posner,

I respectfully disagree with this oppinion for the following reason. Assume we are providing basic education as it contributes some pubic good, ie there are benefits to all for living in a society of educated people. This is the specific benefit to which we are willing to contribute. If religious education per se falls outside of this criteria (which I belive it does), then parents should be forced to provide for this education themselves. Enroll your children in a Sunday school or other religion class and send them to public school. If it is looked upon by these people that general education in a secular public school is so distinct from a similar education at a parochial school, then we a clearly subsidizing some portion of the education that is religious in nature. In other words, there must be some reason why these parents feel there child must be taught calculus by nuns. The simplest solution is to provide a free basic education and allow people to seek religious instruction on their own in any discreet packet that is available.

"since atheism or agnosticism isn't neutrality toward religion, favoring those beliefs would be [an] establishment of religion"

this may or may not be true, but is typical of the confusion caused by the false "dualism" criticized by neerav above; as he notes, there is (at least) a tri-partite division. based on a personal poll of friends plus the experiences of a relatively long life, I'd bet the typically ignored "areligious" group, is much larger than the routinely maligned "atheist/agnostic" group, the latter labels suggesting as they do, high level attention to the concept of god. many of us really are "neutral" (more accurately, indifferent) toward religion and god per se. to parrot judge posner in his introduction as a guest blogger for brian leiter, they simply aren't a part of our lives.

until, that is, the zealots start trying to push them down our throats. then, contrary to judge posner's (and other's) interpretation, we don't get "offended", we get scared and defensive. having "christmas" parties, setting up creches on the town common, putting up a monument in the corner of the capitol grounds, etc, aren't a big deal - they're easy to ignore. prayer in public schools is a bigger deal - you can't escape (I know - been there). even bigger is degrading science education with pseudo-science drivel. and biggest of all is the threat (reality?) of government policy driven by religious dogma. "offended" doesn't begin to capture the consequent emotions.

Judge Posner,

While as you say, we currently live in a country where religious pluralism predominates in every state except Utah, I'd like to speculate that this pluralism may in fact be a result of the current interpretation regarding the establishment clause to de-establish religion. (Although, I'm not certain about the historical demographic trends regarding religious pluralism...sounds like an idea for my thesis)

Nevertheless, perhaps there would be some migratory consequences of allowing marjorities in every state to pick the kind of religious billboard they prefer. David Brooks recent op/ed in the NYtimes "All Cultures are not Created Equal" makes some insights in this regard.

To sum it up, he says we are seeing greater social fragmentation nowadays then in the past, as conservatives flock to where more conservatives live, and liberals flock to where liberals live. I think the same effects could occur within religious populations.

I'm a bit worried about increasing internal isolation within the United States as it is, and I wonder about the migratory effects a relaxed criteria for public religious symbols might have.

I imagine a community where there occurs a slow narrowing of religious scope that begins from broadly endorsing monotheism (intended or not), to one that endorses christianity, and then Protestant sects...so on.

As a result, we see a ghettoization of American society where a reduced melting pot effect causes an increase in transaction costs and nepotism, while also undermining the uniform cultural structural support that holds a large union together.

From such a perspective, I think it might be appropriate to view 'secular' exclusive billboarding rights as more of a nuisance we have to tolerate in the status quo, yet, their monopoly would be preferable to opening floodgates to all religious symbols.

(At the same time, as a speculative benefit of ghettoization might we see a a reversal of declining civic engagement trends Robert Putnam discussed in 'Bowling Alone?' Maybe a country this big and frictionless isn't natural, thus explaining some of our discontents?)

Also just as an aside regarding Hume, I wonder if a state established religion would work (in contrast with Euro-style established religion) if paired with a strong federalist style system.

Maybe I'm wrong but I think the number of religions has reached equilibrium (maybe except for Tom Cruises' Scientology), and in such a situation it would be feasible to implement a mechanism for a small township based upon an electoral process that could efficiently replace a market alternative. This may especially hold true for smaller communities as it would offset to a degree the centralization disadvantage.

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.

Only a fraction of the difference probably goes to salaries. Since the additional overhead per student in public schools is about $3000, a class size of 20 costs $60,000 more year at a public school. I believe the average public school salary is in the order of $45,000. So unless the public/private salary gap is huge, differences in salaries cannot explain the cost gap.

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.

No. The comparisons control for differences in ability and background. I must say, however, some studies find a public/private performance gap after controlling for ability etc, but others do not. None that I am aware of report a negative private effect. Still, not bad in view of the significant cost gap.

>>"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.

Your segregation theory could be true, but why not reduce segregation by putting more disadvantaged kids into private schools? This has the twin benefits of sending kids to where results are better (or no worse) and costs are lower. Going your way rests on the precarious hope that public school systems will improve.

Levitt (2002) “Understanding the Black-White Test Score Gap in the First Two Years of School” (available at nber.org) argues that there are bad schools (bad in terms of gang problems and non-student loitering, not class size or funding). All students at these schools are disadvantaged but black students are more likely to attend a bad school and this, he suggests, may be the cause of the black-white gap, at least in early years. Your proposal Corey would see those bad schools expanded (ie. rewarded). Mine would see them replaced.

>>"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.

No. The suggestion was to provide the poorest with the means to choose other schools.

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.

Classic straw man. Imagine a scenario, pretend it is plausible and knock it over. Universal access can be preserved with vouchers. And in case you hadn’t noticed the current system has dreadful inequalities. Vouchers provide a way for the poorest to have the choice wealthier parents enjoy.

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.

There’s about $3000 of overhead per student in the public system. That leaves plenty of headroom for some combination of improving education and saving money. There is no reason private provision will not be dominated by not-for-profit institutions.

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.

It’s funny you say that. I understand Catholic private schooling has particularly low cost per student. At least they did in 1994 according to Becker (http://www.worldbank.org/html/extdr/hnp/hddflash/workp/wp_00052.html) Perhaps your observation is only relevant for other Christian sects. Anyway, since Marx is wrong on this point for much or all the rest of the economy, what makes education the exception?

"No. The suggestion was to provide the poorest with the means to choose other schools."

is it possible it is something other than cost prohibits choice?

if private education is sufficiently better (as measured by a higher NPV of future earnings), and it is easy to borrow money, then people would be choosing schools regardless of "vouchers"?

Nate

Borrowing for education has two roadblocks. One, the borrower, being at the start of his/her education, usually has no collateral, particularly when from a poor family. Two, the asset produced by education is intangible and cannot be re-possessed.

interesting... we could have a long thread\discussion\background overview on cash flow lending vs. collateral-based lending -- in the context of education or other.

true, education can not be repossessed. however, it also can not be absolved through bankruptcy? (even prior to the recent bankruptcy changes)

ben: it is not completely inconceivable that some of your concerns could be addressed through financial innovation. one has to wonder why this innovation has not occurred if there appears to be a market-based reason for it to occur. If one believes in privatizing in general, then why not privatize the funding for private education? A lot of "poor" people may not own property and may not pay property taxes. Is it possible that a lot of the "poor" may have many dependents, low and unstable incomes, and no property ownership and may not pay much enough in taxes to cover a voucher?

Brief comment in response to the supposed dubiousness of the incorporation doctrine:

Akhil Amar's 1998 book the Bill of Rights offers powerful textual and historical reasons why the 14th Amendment, sec. 1 was written to incorporate the Bill of Rights and specifically to overrule not just Dred Scott but also Barron v. Baltimore. He casts serious doubt on the credibility of the anti-incorporation scholars such as Raoul Berger and Charles Fairman. He might be wrong, but the onus ought now to be on those who disagree with him to refute the wealth of evidence in his book.

Incorporating the establishment clause to protect against state established religion is intellectually more of a stretch than with other parts of the Bill, for the structural reasons Palooka mentions. Again, Amar offers good reasons why free exercise, equal protection, and other constitutional guarantees applicable to the states probably achieve the same result of disestablishment.

Also, Palooka is factually wrong about Jefferson's views on state's established churches, at least according to his contribution to Virginia's public policy:

http://www.worldpolicy.org/globalrights/religion/va-religiousfreedom.html

"Its only a problem if you are a textualist who happens to belong to the Federalist Society. I find myself strangely untroubled by the incorporation of my basic rights against more possible oppressors.

States with established religions don't have a very good historical record of being nice to people. Why would we want that back? Is it unreasonable to ask for some sort of proposed good that would be served other than fidelity to the wishes of some dead white man? Is there a state that could even democratically establish a religion now that everyone gets to vote? I don't even think Utah could get 51% for that. There is more than one brand of Mormon too."

Spain, Italy, Sweden, and Britain are some of the modern countries which have "established" churches. Don't hold your breath for the Court to cite that international "consensus."

At least you're honest in your approach and your distain for the Constitution. What I particularly dislike is those who feign respect and fidelity to that document but systematically erode its significance and purpose. One reason why I have great respect for Posner is because he's intellectually honest enough to admit where his jurisprudence comes from. Its not exactly my flavor, but he's not trying to dress it up as something it's not and pull a fast one on the American public.

On another thread you were rabidly pro-democracy, so much that you were willing to concede the elitist control of the judiciary is a bad thing. I'm not sure how your position with respect to establishment harmonizes with that position.

Your last sentence is the most puzzling. If Utah, one of the most religious and monolithic states, could not conceivably get the 51% required to establish a particular religion, then what is the particular problem with over-ruling the incorporation of the Establishment Clause?

"Also, Palooka is factually wrong about Jefferson's views on state's established churches, at least according to his contribution to Virginia's public policy."

I thought I had read some evidence to the contrary (though I thought the evidence was a mixed bag), but after a few google searches, I found nothing. I'll concede the point =)

http://www.weeklystandard.com/Content/Public/Articles/000/000/005/950kacks.asp

same URL, only put on two lines just in case the end of the URL in the previous post got lopped off in your web browser

http://www.weeklystandard.com/Content/
Public/Articles/000/000/005/950kacks.asp

Corey

Vouchers will allow more parents to buy their way out of public schools, which will further impoverish those schools.

I have just noticed the leap in reasoning here that seems to underpin your view. I do not think can be justified, at least not without some evidence.

Moving students from high-cost schools to low-cost schools must eventually leave spare money in the government's pocket. That money can be allocated anywhere, including, presumably, public schools.

Whether vouchers will cause higher or lower public school funding per student depends on the details funding mechanism. But if vouchers leave the government with spare money then it is hard to see how vouchers will cause a reduction in public school funding per student.

Of course total funding of public schools will be reduced by vouchers but surely you do not dispute the relevant funding statistic is expressed per student?

"Akhil Amar's 1998 book the Bill of Rights offers powerful textual and historical reasons why the 14th Amendment, sec. 1 was written to incorporate the Bill of Rights..."

How does he explain away that, after passing the 14th Amendment 7 years earlier, many of the same people who did, took up the Blaine Amendment which proposed:

"No state shall make any law respecting religion..."

That would be redundant if the 14th Amendment had been intended to incorporate the 1st Amendment.

"Akhil Amar's 1998 book the Bill of Rights offers powerful textual and historical reasons why the 14th Amendment, sec. 1 was written to incorporate the Bill of Rights..."

How does he explain away the fact that many of the same people who passed the 14th Amendment, seven years later took up the Blaine Amendment, which proposed that, no state shall establish a religion. Isn't that redundant if the 14th Amendment had already incorporated the 1st Amendment?

ben:

in your cost analysis, do you take into account that fixed vs. variable costs? Also, do you consider that education cost per student is probably not linear?

Would you be up for means-testing vouchers? (wealthy people do not need a voucher)

Why haven't more market-based means sprouted up for access to private education for lower-income people?

education cost per student may also be a function of interactive variables. not sure.

in your cost analysis, do you take into account that fixed vs. variable costs? Also, do you consider that education cost per student is probably not linear?

I tried to take account of fixed vs. variable by using the term "eventually". In the short term, the government will almost certainly not avoid the full average cost of a student that goes private, although it will incur the full cost of the voucher. However, in the long term, I expect the public school system will adjust its size to demand. Because of this, I believe costs will be roughly linear in student numbers and money will be saved overall when students go private.

In the short run, it is possible total education costs will spike. However, I do not believe short run costs usefully inform government policy and regulation.

Would you be up for means-testing vouchers? (wealthy people do not need a voucher)

Yes, because the poor suffer disproportionately from shortcomings in public education and vouchers overcome an important barrier to accessing better schools.

Why haven't more market-based means sprouted up for access to private education for lower-income people?

I can think of four reasons. One, a lack of tangible collateral. Two, crowding out by government subsidy: because only public education is free at elementary and secondary schools, the incremental cost of going private is made far higher than the incremental benefit. Three is that incremental income benefits of going private are very distant: a minimum of 15 years if starting from elementary. This sharply reduces private investment returns. And four, spillovers. Not all the benefit of education is captured by the individual, which is a justification for government funding.

"Vouchers will allow more parents to buy their way out of public schools, which will further impoverish those schools."

As usual, Corey has volunteered an incoherent argument. The purchasing power of a school voucher typically corresponds to the per capita spending a given child would receive within the public school system. In a public school system with 2 students, A and B, and a budget of $10,000, permitting vouchers would let A take $5,000 and apply it to tuition in a private school of his choice. While it is true that the public school system would be "impoverished" because its budget would shrink from $10,000 to $5,000, because the public school system would not have spent more than $5,000 on B even if A had remained within the system, B is receiving the same amount of resources allocated to his education. B is not being deprived of anything. Saying that the public system is being "impoverished" suggests that B is being short-changed, which is clearly untrue. The only persons being short-changed under a voucher system are bureaucrats, i.e., rent-seekers, who are better off the larger a budget they manage, because a larger budget means more money in raw dollar terms for "administrative costs". Of course Corey supports bureucratic rent-seekers: he is a Marxist right out of central-casting. Rather, central-planning-casting.

"Is it unreasonable to ask for some sort of proposed good that would be served other than fidelity to the wishes of some dead white man?"

As usual, Corey relies on fallacies, e.g., complex question, to volunteer his incoherent argument. The argument one might tease out of the gibberish above is this: Slavishly adhering to rules laid down by long-dead rulemakers ignores that relevant facts may have changed over time which render those rules no longer useful. While that may be true, that does not negate that law requires sufficient process for valid enactment. Law cannot simply be made up whole cloth by a single person and imposed on the rest of us in an antidemocratic fashion. That would be tyranny. It is just as tyrannical to bind us all to the wishes of some living tyrant as it is to bind us to the wishes of a dead tyrant. Whether that person is male or white is irrelevant. I must therefore conclude that Corey is a racist and a sexist. Is it so unreasonable to ask for Corey to attempt to make his incoherent jabberwocky of an argument without resorting to sexist and racist comments?

"vouchers overcome an important barrier to accessing better schools."

See, that is exactly what I do not buy. Your hope is that by giving parents in poor neighborhoods vouchers, they will overcome collective action problems and induce a private organization to open a school within bus range. But the private school will still face higher costs and more operational hassles vs. building the same school across town. It won't get built.

Don't believe me? Drive through the 'hood. You see liquor stores, payday loans, and churches. There aren't enough banks, grocery stores, clean parks, movie theatres, or retail shops. Every single one of those shortcomings shows the "market" failing to serve poor neighborhoods.
Why would schools be different?

"I can think of four reasons... This sharply reduces private investment returns."

So you pretty much admit that it will take government subsidies to stick private schools in poor areas. Why then would you prefer a market based "voucher" system rather than straight $ support to existing schools? Is it just the $3000 per student cost savings you expect to realize?

Teachers at public schools make at least $15K more in salary and benefits than at private. Partly because of unionization and state retirement benefits, and partly because of pay incentives to attract talent. Catholic schools pay the least relative to public. So given a class size of 25, at least $600 of the $3000 savings you expect to realize comes straight out of teacher's pockets and off their kid's dinner plates.

Public schools also have a much higher enrollment of special needs students. Those students cost more to educate. I believe this is the single biggest reason for the cost difference between public and private. Private schools would NOT see a cost savings if they took on special ed.

Public schools also spend more on athletics, lunch, music, and after-school programs. Private schools also manage to hide some of their expense in these areas by extracting it direct from parents rather than through a tax bond.

So I think your expected cost savings are a myth, and would never be realized if private schools served the same market that public schools do now.

"There is no reason private provision will not be dominated by not-for-profit institutions."

So far, the dominant players in the privatization market (for curriculum and school operation) have been for-profit and traded on the NASDAQ. Opportunity for profit routinely trumps charitable intent, which is why you have to tax for charity.

"Your proposal Corey would see those bad schools expanded (ie. rewarded). Mine would see them replaced."

If the things which are making the schools bad are environmental or geographic (gang violence, loitering, drugs, parents working 3 jobs) then it makes no sense to REPLACE the school. The new school will inherit the exact same problems and be just as bad or worse for the same money! You can't find more than a few schools where the key problem is mis-management, and even there, the prudent approach would be to replace administrators, not the whole school.

The key paradox that confuses this issue is that it is precisely the worst schools that need the most money. Great teachers and administrators work in poor schools, they need support to fight the gangs or meth-addicted parents or mal-nourished kids. At the school where my girlfriend works, they have to feed dozens of kids breakfast every day or else they are too hungry to learn. There are so many special needs kids that every classroom teacher has to have an aide to keep the disruptions down.

So yeah, public schools cost more, and I want to give schools in bad neighborhoods more money. I don't know how to convince corporate management in Manhattan that a rural Indiana school needs extra funds for breakfast. I do know how to convince the local school board and townspeople.
We haven't even talked about governance and accountability to parents, which is also a concern as privatization inevitably leads to consolidation.

That's all I have to say on the subject.

"On another thread you were rabidly pro-democracy, so much that you were willing to concede the elitist control of the judiciary is a bad thing. I'm not sure how your position with respect to establishment harmonizes with that position."

My position with respect to establishment is that I believe a democratic majority would oppose it in all 50 of the states. Therefore I do not care about Madison's or Jefferson's vote either way because they are dead. (Although you are welcome to use their public domain rhetoric to try and persuade voters)

I could be wrong, Utah could vote to establish the LDS church. I would respect that result.

The constitution is good and valuable to the extent that it is allowed to represent the common norms and values of a democratic and plural whole. It can just as easily be made to serve "tradition" against a majority consensus for change, or to oppress a minority that dissents. The constitution is not a Aristotelean good-in-itself.

I would like to point out that in the course of one evening, I have been refered to here as "rabidly pro-democratic", as a "marxist", "sexist", and "racist". I'm positive that no one person can be all of those things. I am also positive that I am NOT three of them.

Thank you for the negative attention. Infamous is a type of famous. :)

"The only persons being short-changed under a voucher system are bureaucrats"

That's patently false. IF administrative functions are shortchanged, then so is every single school-wide function that takes a % from each student. That includes Band, Choir, Athletics, janitorial services, utilities, the cafeteria, groundskeeping, security, the library, the computer lab, special needs programs, afterschool programs...

Every single one of these things is technically "overhead" and has a cost that does not linearly decrease as students leave.

Its nice that you learned how to say "rent-seeking" in school, what year do they teach pro-capitalist attack speech in private schools anyway?

Just as an aside, here's an excerpt of conversation overheard in saloon on the south side of the City:

Mr. Hennessey: "An wat yer tink of dat Supeme Kort rulin dat say da tem komandents don belong on de wall a de Kort?

Mr. Dooley: Well- de Constitutin sez wat it sez. An if dem hi-flootin tips kaint figger it out, GAWD hep us.

Mr. Hennessey: Karful Mr. Dooley deys mite be some a dem types in here dat take ceptin to dat word- an ye kno wat dat kin led to...

Perhaps Sarte was right, the world and life really is absurd. ;)

Corey

The content of argument that our kids be put through a system that costs more and performs worse amounts to a series of red herrings, straw men and unsubstantiated assertions, most of which fall over under the vaguest inspection. I can go chapter and verse through what you have said, but instead I will try to point out the key problems in your argument.

First, if you are right and a voucher system saves nothing and private schools turn out not to be viable under the system, or choice isn't valued, then nothing is lost. The status quo is prevails and vouchers are not cashed outside the public school system.

Second, you lack imagination as to how private schools could work. It may not be necessary to build a school from the start. How about a retired teacher who gets certified and decides to teach 5 kids in a dis-used classroom at the neighborhood school for some extra income? His 20 year old grandson takes sports after school. Subject to regulations, any number of delivery permutations exist.

Third, the collective action problem is demonstrably solved by private schools who already teach 11% of our elementary and secondary school kids. Even if the collective action problem rears its head in poor neighborhoods (and why would it? Liquor stores and churches don't tell me much), the status quo will prevail, public schools keep their funding and nothing is lost.

Fourth, private schools do accept special needs children. I have taught at a private school and in fact had three special needs children under my instruction (out of 24). I can't find data on this but I strongly suspect special education at best accounts for only a limited fraction of the cost gap. But, again, if private schools have no cost advantage, vouchers need produce no change from status quo. (BTW, if private schools are unwilling to accept special needs children for financial reasons, the value of vouchers can be tailored to account for the child's needs, which are observable.)

Fifth, it is not clear private schools will simply inherit the problems of gang-ridden public schools. Private schools do not face the same political constraints in dealing with gang and drug problems. But, again, if private schools turn out to be no better in this respect, what has been lost?

Sixth, governance and accountability to parents are a problem of the public school system, not private. Decision making at public schools has become highly centralized and politicized at state and federal government level. Furthermore, existing private schools are not run like corporations, so the 'Manhattan' example is a complete red herring.

Teachers at public schools make at least $15K more in salary and benefits ...at least $600 of the $3000 savings you expect to realize comes straight out of teacher's pockets and off their kid's dinner plates.
I had to respond to this: your argument amounts to saying private school teachers don't feed their children.

When it comes to education in the U.S. "public" schools are open to the public at large whereas 'private" schools are open to those who can come up with the tuition or comes from the appropriate class. In the UK a "private" school is open to the public whereas a "public" school is open to whom ever can come up with tuition or comes from the appropriate class. So which system is better, public or private? Confusin ain't it?

As for the grounds of education, simply ask the question, "Why can't Dick and Jane read and write?" The answer is simple, they don't want to; and the reason, motivation or the lack of it. The issues of public or private institutions to education is meangingless.

"Private schools do not face the same political constraints in dealing with gang and drug problems."

Which constraints are those? Being forced to admit students with gang or drug problems? This has been my argument all along, nothing prevents private schools from solving problems through exclusion and externalization of costs.

"or choice isn't valued, then nothing is lost."

Yes it is, because as I said from the start, many parents value exclusion and those with the means will use the vouchers to take their kids across town. That further impoverishes existing schools, see my post above re: expenses shared by all students. Vouchers enable persons with sufficient means to betray the collective public school effort. Not everyone has sufficient means.
You can disbelieve it but the argument is simple.

"Even if the collective action problem rears its head in poor neighborhoods (and why would it? Liquor stores and churches don't tell me much)"

Then maybe you should educate yourself about poor neighborhoods. Go drive around, count full service grocery stores, now do the same in your neighborhood. Now imagine living in the poor neighborhood WITHOUT a SUV, carring your groceries home 4 miles on the bus.

"How about a retired teacher who gets certified and decides to teach 5 kids in a dis-used classroom at the neighborhood school for some extra income?"

Who will be accountable when it turns out that the retired teacher is incompetent? At best all your example does is disengage oversight and duplicate functions currently being performed. If the lone rugged individualist teacher takes a higher profit, then you've made education less efficient. If he/she does not, then only accountability has changed.

You would do well to just admit that you are concerned with accountability and that you trust market forces to bring it more than you trust democratically elected school boards. That's the question this argument boils down to, democratic planning vs. market planning.

By the way, I also decry centralization in public schools. You don't fight it by adopting an economic model that rewards consolidation in every other industry where it has been tried.

"I have taught at a private school and in fact had three special needs children under my instruction (out of 24)."

Try it with 6 or 8. You might actually get more parental involvement at the public school to help you out, or you might get abusive meth-addicts.

COREY: "Its nice that you learned how to say "rent-seeking" in school, what year do they teach pro-capitalist attack speech in private schools anyway?"

Not only is Corey a misologist, but, apparently, he is delusional. I attended public schools. I would also note that I am not pro-capitalist; I am pro-democracy. Since we have yet to elect a Marxist President....

COREY: "Every single one of these things is technically 'overhead' and has a cost that does not linearly decrease as students leave."

As a technical matter, "Band" does not qualify as administrative overhead. Note that I did not need selectively to misquote you to make my point.

I don't think Corey's concern about damaging public schools is without merit. Let me explain my thoughts.

Corey believes that vouchers will result in some students (presumably upper and middle class studetns) leaving the public system for private. The result is that the school in question loses funding because it now has fewer students. Corey hypothesizes an accelerating downward spiral for the public school. As it loses more money, more students leave, and the cycle continues until the public school is financially and academically destitute.

The proponents argue that this is OK, as both the students and the government win out. Students get to attend schools of higher quality, and perhaps a better fit. And the government gets to, perhaps, save a few bucks (if it's more effcient).

I would tend to support vouchers, but I see a problem. If a voucher only is a fraction of the cost the public spends on the child in public school, and is also only a fraction of the cost of a private school, then I see real problems ahead, and a high probability of the regressive potential of such a system, which I believe is Corey's concern.

In a system which only partially subsidizes private education, only those moderately well enough or perhaps highly motivated will take advantage of the situation. The poorest kids with the least involved parents will remain in public school (remember, these are the kids we want to help with vouchers, right?). As the relatively well off students are siphoned off into a superior system, the public schools are left with less money, with fewer highly qualified teachers, and with a higher proportion of the at risk student population. That is a troubling scenario.

To partially address this problem one could support increasing voucher amounts, or means testing them. The richest of the rich can pay for their education, the middle class a sizable subsidy, and the poor even greater subsidization. I am not familiar enough with voucher programs, but I would imagine some of the programs resemble the above. Any one know for sure?

I don't belive in vouchers and have no children. Does that mean I can opt out of paying taxes that will be used for vouchers and since I have no kids does that mean I will no longer have to pay the portion of tax that goes to support education? How many billions would that pull out of the system if all the DINKS jumped on the band wagon? ;)

"How many billions would that pull out of the system if all the DINKS jumped on the band wagon?"

Don't know, but it would be less than if all the pacifists like me opted out of the portion of our taxes that goes to fund the military/defense industry.

As far as subsidized industries go, I think war stands more to lose from your course of action than school. Are you for privatization of the military?

"I am not familiar enough with voucher programs, but I would imagine some of the programs resemble the above."

Even if they do, there is a more basic question. If you are willing to subsidize poor children moving to private schools, why not be willing to directly subsidize existing schools that serve poor children? Why isn't it the same thing?

How do you guarantee that a private school that stays in the same location and serves the same kids will do the job better? The governance model has changed, but the challenges are the same. Crime, drugs, poverty, overworked parents...

To be for vouchers, you have to believe that a market approach is superior to a socio-democratic "school board" approach. One vote per dollar rather than one vote per parent. It does not suprise me that people here would think that, but it isn't self-evident. If you means-test vouchers, you are just mitigating the worst effects of the free-market model and making it look more like what we have now, where all parents who choose to vote equally on school governance.

I am confused with your last paragraph and the "one vote per dollar" thing. I proposed, as a partial remedy, actually giving the poor MORE than the rich. In a way this does more than the current system for equalizing access and quality.

Your first question is fair, but I think that is a source of why you're opposed, you don't believe they are necessarily better. Private schools are better on discipline, often have better teachers, and are generally more flexible with curriculum. State schools have a harder time firing incompetent or burnt out teachers, for example. Obviously, the role of competition plays a part in promoting quality. Do I need to elaborate?

There are problems, of course. Many complications could arise as this becomes more popular. Private schools do not have to serve the disabled, is one example. Are the disabled kids going to be left out on this one? I hope not, that's a real valid concern. But that is not without a legislative remedy.

This is a very complex problem, which will require a lot of tinkernig in years to come if these programs expand. But I hope we can agree on some level. Do you believe parents and students having a choice is a good thing (setting a side all the other factors)? If I could write a check for whatever one's education cost, would you be confident in the private sector delivering? And if not, why not?

>> "or choice isn't valued, then nothing is lost."

Yes it is...many parents value exclusion and those with the means will use the vouchers to take their kids across town. That further impoverishes existing schools

My full quote is: "if you are right and a voucher system saves nothing and private schools turn out not to be viable under the system, or choice isn't valued, then nothing is lost." I am saying that if nothing changes i.e. nobody moves from public schools, then nothing is lost. Read the response.

It is simply wrong to assert schools are automatically made poorer by vouchers. That depends on funding rules and the nature of costs. A school loses half its students but only 20% of its funding students may well be better off. I have already set out why this is a plausible outcome.

>>"Even if the collective action problem rears its head in poor neighborhoods (and why would it? Liquor stores and churches don't tell me much)"

Then maybe you should educate yourself about poor neighborhoods. Go drive around, count full service grocery stores, now do the same in your neighborhood. Now imagine living in the poor neighborhood WITHOUT a SUV, carring your groceries home 4 miles on the bus.

This is non-sequitur. Any of a number of reasons could explain lower density of full service grocery stores in poor areas, like cost or the nature of demand. Nothing you say here addresses the question of why a collective action problem is occurring in poor areas.

>>"How about a retired teacher who gets certified and decides to teach 5 kids in a dis-used classroom at the neighborhood school for some extra income?"

Who will be accountable when it turns out that the retired teacher is incompetent?

I did say "who gets certified". For goodness sake, read the response.

If the lone rugged individualist teacher takes a higher profit, then you've made education less efficient.

No Corey. Not if s/he produces equivalent results at lower overall cost after profit. Not if s/he produces better results for the same cost after profit. Not necessarily if s/he produces better results at a higher cost after profit.

Why is it, Corey, that when the extra money for public school teachers puts food on their kids' plates, but when it's a private teacher it's just profit? You are making up the rules to suit.

You would do well to just admit that you are concerned with accountability and that you trust market forces to bring it more than you trust democratically elected school boards.

I'll happily admit both. You use the pejorative term "market forces" to describe what is really giving poor parents the opportunity that wealthier parents have to move their kids away from under-performing schools and their boards. I trust parents' judgment.

That's the question this argument boils down to, democratic planning vs. market planning.

This is not an ideological question, but you are making it one. What is optimal can be largely decided by evidence and reason. You are ignoring this in favor of an unconditional preference for central planning. The evidence presented so far suggests that, in this particular case, central planning is not optimal.

By the way, I also decry centralization in public schools. You don't fight it by adopting an economic model that rewards consolidation

Vouchers clearly de-centralize decision-making by giving decision making rights to parents. Giving parents choice and the right to exit, in addition to voting rights, forces school boards to compete for the right to make decisions. This, by definition I believe, is de-centralization.

There are legitimate arguments with, and concerns about, vouchers - see Palooka's comment - but you, Corey, seem unwilling or unable to muster an argument, instead persisting with selective quoting and rhetorical devices.

...If you are willing to subsidize poor children moving to private schools, why not be willing to directly subsidize existing schools that serve poor children? Why isn't it the same thing?

It is the same thing. Existing schools get the subsidy should parents decide to put their kids there. Under the current system, choice for poor parents is limited to public schools. Under vouchers, choice can be extended to include private schools as well.

How do you guarantee that a private school that stays in the same location and serves the same kids will do the job better? The governance model has changed, but the challenges are the same. Crime, drugs, poverty, overworked parents...

Indeed. You guarantee it by giving parents - who, I assume, care more for their kids than anyone - the freedom to move elsewhere should the job be done better in other schools.

To be for vouchers, you have to believe that a market approach is superior to a socio-democratic "school board" approach.

School boards will continue to exist with vouchers. Democracy is enhanced by giving parents the right to vote as well as the opportunity to walk away.

One vote per dollar rather than one vote per parent. It does not suprise me that people here would think that, but it isn't self-evident. If you means-test vouchers, you are just mitigating the worst effects of the free-market model and making it look more like what we have now, where all parents who choose to vote equally on school governance.

Ideological clap trap. The existing system demonstrably works against the poor. It is disadvantaged kids who overwhelmingly end up in bad schools. The children of the wealthy end up in good schools because under the existing system a) only the wealthy have the opportunity to move, and b) despite receiving more expenditure per head than any other education system in the world, the public elementary and secondary education system is unable to provide anything like uniform quality.

The following passage, taken from "Say Anything" by Jim Holt in this week's New Yorker, is apt in view of Corey's extended commentary.

"The essence of bullshit, Frankfurt decides, is that it is produced without any concern for the truth. Bullshit needn't be false: "The bullshitter is faking things. But this does not mean that he necessarily gets them wrong." The bullshitter's fakery consists not in misrepresenting a state of affairs but in concealing his own indifference to the truth of what he says. The liar, by contrast, is concerned with the truth, in a perverse sort of fashion: he wants to lead us away from it. As Frankfurt sees it, the liar and the truthteller are playing on opposite sides of the same game, a game defined by the authority of truth. The bullshitter opts out of this game altogether. Unlike the liar and the truthteller, he is not guided in what he says by his beliefs about the way things are. And that, Frankfurt says, is what makes bullshit so dangerous: it unfits a person for telling the truth."

It's almost as if Frankfurt has our learned contributor in mind. :-)

"I did say "who gets certified". For goodness sake, read the response."

Certification exists now, and as you are quick to point out, schools end up with bad teachers anyway. Your bare assertion that private schools have an easier time identifying or firing bad teachers is nothing more than a bare assertion.
One might even call it a rhetorical device. :)

And as for reading the argument, what about the fact that I have been arguing since the first comment on this thread that vouchers can fail to provide choice to poor parents in economically unattractive areas. And you come back with:

"You guarantee it by giving parents - who, I assume, care more for their kids than anyone - the freedom to move elsewhere should the job be done better in other schools."

Two problems. Some parents don't care. Some parents can't move elsewhere even with a big voucher to use once they got there. Freedom is not freedom without a realistic possibility of acting on it.

"...central planning is not optimal."

I didn't say "central planning", I said "democratic planning" hoping to point out the democratic All-American nature of the local town school board. What was that about selective quoting and keeping the debate non-ideological?
What have you got against parents delegating responsibility for education to well-funded democratically elected school boards?

"but you, Corey, seem unwilling or unable to muster an argument, instead persisting with selective quoting and rhetorical devices."

Whatever ben, you are putting a lot of energy into debunking a supposed "non-argument" then. Everyone can scroll up and see what the person wrote, if you feel I misinterpreted your statement then by all means clarify, but don't accuse me of fraud and BS. You don't know me at all, and it is presumptuous and malicious to publically speculate that I do not care about the issues I advocate for. I assume that you are arguing from deeply held belief and understanding, please do me the same courtesy if you can.

I assume from the dearth of third party input into this "debate" that it has exceeded the mandate of the forum. I wish you well in your endeavors.

"I am confused with your last paragraph and the "one vote per dollar" thing. I proposed, as a partial remedy, actually giving the poor MORE than the rich. In a way this does more than the current system for equalizing access and quality."

To clarify... I would agree with you, except that I pessimistically do not believe that giving dollars to parents in poor areas will work to equalize access or quality. In the same way that giving out WIC vouchers in Watts does not make a Ralph's Supercenter appear to provide quality organic produce. Perhaps you could hand out enough WIC vouchers to do that, though I still wonder how the actual inducement would occur. When I lived in central LA it wasn't happening, there were 25,000 college students but we had to drive 30 minutes to get good meat or produce, that is once my friend got a car, before that I ate hot-pockets and ramen.

My experience does not match up to your (or ben's) optimism about choice. I cannot provide data to prove that those markets won't get served, any more than you can provide proof that they will. Consequently, I would prefer to direct subsidies to existing public schools in the area, and find a less radical solution to the accountability issue.

Response to Blaine Amendment /incorporation of establishment clause/Akhil Amar question:

I looked, and Amar's argument is essentially this: 1) people propose redundant legislation all the time, 2) some of the Blaine amendment's proponents conceded that the 14th Am. already worked by incorporation to disestablish state churches, 3) the Blaine amendment was proposed (and failed to pass) after the 14th was ratified, so the views of that later Congress are not terribly relevant (also Blaine was a package deal, including more than the redundant clause), and 4) the anti-Reconstructionist packed Supreme Court had already set back the incorporation of the bill of rights by gutting the privileges & immunities clause in the Slaughterhouse Cases before the proposal of the Blaine amendment.

Amar goes into some detail about the views of John Bingham, 14th Am. sec. 1's principal drafter, who openly stated numerous times, with a chorus of support from other Congressmen, that he was proposing his amendment to overrule Barron v. Baltimore. As I said, Amar's book may be wrong, but it should be enough to shift the burden of proof to the anti-incorporationists.

None of this is to dispute that there are good reasons independent of history and original intent to use the 14th Amendment to incorporate the Bill of Rights.

PALOOKA: "If a voucher only is a fraction of the cost the public spends on the child in public school, and is also only a fraction of the cost of a private school, then I see real problems ahead, and a high probability of the regressive potential of such a system, which I believe is Corey's concern."

The important phrase clause here is "which I believe is Corey's concern." Note that Corey did not make the argument made above so effortlessly by Palooka. Instead, Corey made a number of other arguments that have been rightly pointed out as founded on fallacies and decorated with childish rhetorical flourishes. He also impugned the motives and backgrounds of his opponents and refused to engage them once they repudiated his ad hominems and pressed onward to reveal the incohorence of his claims. At no point in time did he write "Where a voucher is a fraction of the cost of what the public system spends on a student and the voucher is also only a fraction of the cost of a private school's tuition..." Moreover, Palooka, while I think the distinction you made is correct, Corey did not make such a distinction when he had the opportunity to do so. The perfect time to make such a distinction would have been in reply to my claim that "The purchasing power of a school voucher typically corresponds to the per capita spending a given child would receive within the public school system." Instead of doing so, Corey made a silly and juvenile go at misquoting me. It is more likely that he did not make the distinction because his argument is not the one that Palooka has just made. Palooka made a sound argument; Corey would not recognize a sound argument if it screamed in his ear. Thus, I must disagree with Palooka: Corey's argument (in contrast to Palooka's reconstruction of it) is without merit.

"Thus, I must disagree with Palooka: Corey's argument (in contrast to Palooka's reconstruction of it) is without merit."

That's a long long way to go to discredit me! Its kind of silly really. I am a law student posting populist commentary to a blog full of people who violently disagree with me. You've got a nobel prize winner and an appeals court judge you could be addressing here instead of me.

I believe earlier in this thread you "concluded" out of spite that I was a racist sexist marxist? Am I wrong in feeling that you are the same person that has been making similar attacks for several weeks?

What course of action would you suggest for me? Should I bow before your relentless ability to deconstruct form rather than understand meaning?
What is it that you want?

"Corey did not make such a distinction when he had the opportunity to do so."

Do you want me to write more? I feel like I am repeating myself and I have already put in 18KB of text this week on an aside in Posner's original post. I feel like I have written too much already. I'll tell you what, I'll give you the last word... :)

Corey

you are putting a lot of energy into debunking a supposed "non-argument"...don't accuse me of fraud and BS. You don't know me at all, and it is presumptuous and malicious to publically speculate that I do not care about the issues I advocate for.

I do not claim you do not care about what you advocate. I claim you do not care about the truth. That is because of your persistent use of rhetorical devices and failure to seriously and carefully address the issues before you.

I am taking the trouble to rebut you because your posting style is inimical to what I perceive is the purpose of participating in this forum, which is to learn. This is not, in my view, the place to push an agenda. That is what you are doing. I am not saying this because I disagree with you.

I assume that you are arguing from deeply held belief and understanding

No, I am not. This is an important misunderstanding. True, I have beliefs about many things including, for example, the circumstances in which markets do and don't work. Not all these beliefs are informed by evidence. I like to think, however, that if and when my belief in something is contradicted by evidence that I will modify my view accordingly. In practice I will do so imperfectly, but that is the aim. Your approach, in contrast, is to start with a belief and, where contradicted by evidence or reason, resort to tricks. This does nothing to improve understanding, and may actually harm it.

You ask for a course of action. I submit the following: take care to understand what your opponent is trying to say; respond reasonably; say why you believe something; organize your reasoning carefully, because reason alone gives your view weight in this forum.

This thread is off-topic and has gone on long enough. Jack, well put.

No, attack-dog Jack gets the last word! I declare that to be the purpose of this forum. :)

"because reason alone gives your view weight in this forum."

Oh, if only someone was able to define for us all what is reasonable. Then they could win every argument simply by impuning the reasonableness of others! All that would be required is to declare the other person's view to be one of the disapproved forms. Ad Hominem! Rhetoric! Anecdotal! Marxist! Non responsive to evidence I believe exists somewhere!

I think I did learn something this week ben, something that will help me be a better shark lawyer. Thank you for the refresher course in pots calling kettles black.

Remember: "A formal consistency that has hardened is the hobgoblin of little minds: ;)

In the gay marriage discussion, Judge Posner mentioned that sometimes it�s necessary for a judge to engage in realpolitik and address the reality of the situation regardless of what the law may have to say about it. Reading the brief description of the Van Orden case from Judge Posner�s comments (because I�m too lazy to actually read the entire case), �the Ten Commandments were inscribed on a monument on the grounds of the Texas State Capitol,� it sounds like the Court engaged in a bit of realpolitik. It sounds like this was a large monument that would have taken some effort and expense to remove, and possibly have resulted in some property damage. Given this reality, it�s almost as if the Court said, �Ahh, just leave it there.� On the one hand, it�s good when courts look at the realities of the situation. On the other hand, this can result in a hodge podge of case law such that no one knows what the law is. The Van Orden case seems to stand for the principle that if you build it big enough, they�ll let you keep it.

In keeping with the realpolitik theme, I often try to come up with possible real life scenarios when thinking about legal issues. I�ve heard the argument that the Establishment Clause means just that, and putting up displays of the Ten Commandments is not �establishing� a religion. I tend to agree. However, the question I then ask is, �What would happen if everyone decided to place religious displays on public property?� Even Christians disagree on what the Christian religion should be. A good example is the intelligent design debate. While many Christian groups are pushing for the teaching of ID in public schools, some Christians do not accept ID and believe in the strict creationist view stated in Genesis to the point of believing that the earth is only 7,000 or so years old. If we start seeing a proliferation of religious displays on public property, you can bet that some group will put up a display that will offend another group. And I�m talking just among Christians � I won�t even try to imagine what would happen if non-Christian groups jumped into the fray. At some point, someone, most likely a government official, would need to put a stop to this to prevent sheer overcrowding. Would this official decide to remove all displays or just some? If the official decided to remove some displays but not others, that would require a judgment call about what displays were appropriate and which ones were not. This sounds an awful lot like the official would be called upon to �establish� a religion.

Just as the correct scientific answer to "Is there other life in the universe?" is "We don't know.", the correct scientific answer to "What is the purpose of life?" is also "We don't know." Based on observable facts that can be agreed upon, it is not possible to determine whether or not life has a purpose.

Frost on a window pane forms complex patterns because it is a physical property of water molecules that under certain circumstances water molecules arrange themselves into complex patterns. There is no purpose to the patterns - the patterns are simply a consequence of the physical behavior of large numbers of water molecules.

Similarly, the complex patterns of life may simply be a physical property of large numbers of atoms without any fundamental purpose. It may simply be a physical property of large numbers of atoms that given enough time and the right physical conditions they arrange themselves into self-replicating structures.

Without knowing what the purpose of life is, it is not possible to say what is good or bad in any morally absolute sense. The most that can be done is to recognize that there are certain things that people want and to adopt the pragmatic definition of morality that it is "good" when people get what they want and that it is "bad" when they don't.

Eventually, it may be possible to scientifically determine, based on observable agreed upon facts, the purpose of life. Then again, it may turn out that life has no purpose in which case, after thousands of years of suffering and striving and backbreaking work, humanity may collectively decide to end its existence. While life may not have an ultimate purpose, at least it may have an ultimate destiny (oblivion).

Back to the topic at hand, since only the observable fact relevant to morality that can be agreed upon is that people want things, how does society structure itself to maximize people getting what they want?

The first principle to achieve this is individual freedom: let people decide how to behave based on what they want. If everyone lived completely independently, that principle would be enough. Because people are affected by the behavior of others a second principle, the impartial rule of law, is also needed to resolve situations where people are affected by each other's behavior. Finally, because people can get more of what they want by working together, the impartial rule of law can be used to establish a third principle: informed democracy.

Now, in theory, the principle of informed democracy could be used to justify a government's use of collective resources for religious purposes. The problem, however, is that when governments are asked to dabble in religion it is almost always because certain people want the government to endorse the moral beliefs of a particular religion.

The most fundamental principle of government - a principle more fundamental than informed democracy, the rule of law and individual freedom - is the principle of moral uncertainty. There is no way to scientifically determine, based on observable agreed upon facts, fundamentally what is right and wrong. The endorsement by a government of a particular set of moral beliefs violates the most fundamental principle of government - the principle of moral uncertainty.

In those situations where it is totally clear that the government is not being asked to endorse particular religious beliefs then (as long as it is consistent with the principles of individual freedom, the impartial rule of law, and informed democracy) a government may dabble in religion. The proponents of government dabbling in religion are, however, almost always fundamentally seeking government endorsement of (their) religion so this condition is almost never met in practice.

Not to get off-topic but, incidentally, that is why the death penalty is objectionable. When it comes right down to it, human life really isn't all that precious but, in actual practice, proponents of the death penalty are most fundamentally seeking an endorsement of their particular morality rather than added efficiency or added deterrence.

If, however, the death penalty was really used for deterrence then it would be totally OK. For example, it would be totally OK to execute government leaders who violated the principle of informed democracy and misled their constituents in the pursuit of a personal agenda (eg. misleading the public about reasons for going to war).

Wes, a religious person might point to your insistence on scientific proof in order to have moral absolutes and say it resembles a religious statement. The deeply religious place "faith" in the same position you place science when looking at the great questions.

When science can't answer a question, it opens up the floor to questioning the primacy of science. Whether or not the answer to the meaning of life is "scientifically absolute", experience with nihlism shows us that people have to have some practical answer to purpose question in order to survive.

Additionally, without a scientific answer to the purpose question and without a leap of faith, how do you justify the primacy of individual freedom, the impartial rule of law, and the greatest hits of John Locke in your worldview?
Those seem like things in need of absolute moral justification if we are going to put them on our marching banners.

Certainly people often look individualistic, but they also appear to crave social relationships that go beyond mere utility maximization. One could just as easily start there and talk about the connectedness of all things rather than the rule of law.

The commentary stated: "The Ten Commandments monument had been given to the state 40 years earlier by the Fraternal Order of Eagles, at the suggestion of Cecil B. DeMille, who was promoting his movie The Ten Commandments; and during this long interval, no one had complained about the monument until Van Orden."

This is either deliberate ignorance or patheticaly sloppy research. I refer to the following which indicates there WERE complaints.

http://www.ffrf.org/news/2005/10commed.php
"Most offensively, Breyer echoed Rehnquist's dismissal of the rights of plaintiff Thomas Van Orden, by jeering that no one had ever complained before in the 40 years that the marker had been up.

Untrue! The Freedom From Religion Foundation wrote its first letter of complaint to a Texas governor over the marker (on behalf of state complainants) in the late 1970s, followed by subsequent letters by us and Texas members as recently as the late 1990s."

Sounds like judicial malpractice to me.

do you know anyone who converted to Christianity due to the 10 commandments posted at U.S. courts?

The deeply religious place "faith" in the same position you place science when looking at the great questions.

While science can't provide definitive answers to the great questions yet, "faith" will never provide definitive answers to the great questions.

"Faith" is basically "I'm going to believe something because I want to." while science is basically "I'm going to believe something because it is consistent with agreed upon factual observations."

Additionally, without a scientific answer to the purpose question and without a leap of faith, how do you justify the primacy of individual freedom, the impartial rule of law, and the greatest hits
of John Locke in your worldview?

At least with science it's possible to establish (the agreed upon factual observation) that people want things. If "faith" is the arbiter of truth then it's not even possible to establish that.

A government that is not even able to establish that people want things won't have much of a rational basis for its policies. In practice, proponents of religion in government take the inconsistent (and often opportunistic) point of view of accepting certain agreed upon factual observations as a basis for government but not others.

Hmmm... Curiouser and Curiouser. I'm suprised no one caught it. Actually the paraphrased quote above ought to read, "A foolish consistency" perhaps that's what the Court had in mind when it handed down it's seemingly contradictory decisions. It could have set up a hard and fast rule or a multi-pronged test, but then it probably would have ended up just like the hardened formal consistencies in the quote above. Making the Court look the fool by converting the flexibility inherent in the Constitution to an essentially inflexible rule document. Clever on their part.

If there is an official religion in US, could people of such religion abuse the power with it, or discriminate others who have different beliefs? If you look at Europe, especially England, the answer may be no, although it is after hundreds of years revolution and many wars later. And if you look at mid-east, the answer is still yes. Maybe the founding fathers did not want an official religion, because they are afraid of such abuse or discrimination.

Restricting the association of government, politics and officials with religion can merely be symbolic or small inconvenience to those who have belief. To minorities who don't have belief, however, such restriction will be the first defense to any discrimination or power abuse. After all, one of the most important principals of democracy is to ensure minorities' interest doesn't get sacrifised by majorities' power. A little inconvenience to the majority should not be too much price to pay for democracy. Maybe founding fathers will agree too?

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.

I'm glad you used the adjective "quirkier" because the phrase "quirky Posner opinion" would just be redundant. I mean that as a compliment.

Have you ever wondered what water skiing in Hawaii had to do with the establishment clause?

I don't know about water skiing, but I personally consider snow skiing a sacred ritual that must be performed at least once a week during ski season.

A word of warning: the views expressed by Posner in this opinion might seem to conflict with his current post.

I don't know about that. There was a good quote from that case: "Modern cases dealing with the establishment clause are largely about symbols, rather than about the practical reality of American religious practices." I think that's true to a large extent.

I stopped short when Posner made a side remark about intelligent design being nothing more than thinly veiled biblical inerrancy.

That's an uninformed perspective and I'm surprised to see it from a never lazy thinking machine like Posner. I can only conclude he has failed to investigate ID for himself and trusts the characterizations of it set out by opponents rather than referencing any primary source.

Intelligent design is primarily a critique of the neo-Darwinian synthesis. It looks at things like statistical probabilities and irreducible complexity to sharply question whether Darwinian evolution could have occurred as postulated. There is NOTHING. Read NOTHING in ID theory to harmonize with the content of the Bible with the exception of an agreement about likely creation of the complicated life on the planet by some intelligent agent. ID does not reference Genesis or any other book of the Bible to make its case. It does not refer to floods, Adam and Eve, the composition of earth's early atmosphere or "firmament," etc. It has a real intellectual content to it that can be debated without reference to revelation of any kind. In short, it is absurd to describe intelligent design as "thinly veiled biblical inerrancy."

Now, I have no idea whether ID theorists are ultimately correct. I have read some of the books and articles and certainly do know that Posner's characterization is ridiculous, irresponsible, and unusually slothful in his case.

I stopped short when Posner made a side remark about intelligent design being nothing more than thinly veiled biblical inerrancy.

That's an uninformed perspective and I'm surprised to see it from a never lazy thinking machine like Posner. I can only conclude he has failed to investigate ID for himself and trusts the characterizations of it set out by opponents rather than referencing any primary source.

Intelligent design is primarily a critique of the neo-Darwinian synthesis. It looks at things like statistical probabilities and irreducible complexity to sharply question whether Darwinian evolution could have occurred as postulated. There is NOTHING. Read NOTHING in ID theory to harmonize with the content of the Bible with the exception of an agreement about likely creation of the complicated life on the planet by some intelligent agent. ID does not reference Genesis or any other book of the Bible to make its case. It does not refer to floods, Adam and Eve, the composition of earth's early atmosphere or "firmament," etc. It has a real intellectual content to it that can be debated without reference to revelation of any kind. In short, it is absurd to describe intelligent design as "thinly veiled biblical inerrancy."

Now, I have no idea whether ID theorists are ultimately correct. I have read some of the books and articles and certainly do know that Posner's characterization is ridiculous, irresponsible, and unusually slothful in his case.

Note the incoherence of Corey's own statements:
1."I am a law student posting populist commentary"
2. "I believe earlier in this thread you "concluded" out of spite that I was a racist sexist marxist?"

One need not conclude out of "spite" that someone is a Marxist if he consistently takes a populist stance and ridicules those who believe capitalism or free-market solutions can promote democratic values. But thanks, again, for attacking my motives instead of addressing my argument. Another cheap tactic is to pose an irrelevant question that dodges the relevant issue. e.g.,

a. "Do you want me to write more?" No, I'd like you to make a coherent argument.
b. "Should I bow before your relentless ability to deconstruct form rather than understand meaning?" No, instead of hurling ad hominems, you could make a coherent argument.
c. "You've got a nobel prize winner and an appeals court judge you could be addressing here instead of me." I did address them, and you, and the forum in general. You replied with a nonsensical argument. I then addressed that.
d. "Am I wrong in feeling that you are the same person that has been making similar attacks for several weeks?" Yes. By your own admission "[This] blog [is] full of people who violently disagree with me." Perhaps it has something to do with your incoherent arguments, childish tactics, cheap rhetoric, surly ad hominems, and unreflective, uncritical, unsophisticated populist bias.

"When science can't answer a question, it opens up the floor to questioning the primacy of science."

This is plainly wrong. When science cannot answer a question, it results in more research that attempts to answer the question or a paradigm shift that redefines the limits of scientific knowledge, or both. But it never leads to droves of scientists renouncing their profession to take up room and board in the countryside's abbeys and cloisters.

"A government that is not even able to establish that people want things won't have much of a rational basis for its policies."

Nor is this true. A government can wholly ignore the individualistic wants and desires of its people and exclusively legislate on the behalf of the public, or collective, good. Examples are public safety, public health, public morals, education, national security, mass transit, and environmental protection. Whether or not a given individual wants to be insulated from risk, disease, corruption, ignorance, invasion, being stranded in a remote location, or pollution, the government might protect all individuals from such forces because the nation as a whole operates more efficiently on the global scene when it does so. The government could justify educating kids by saying "We want to beat Japan on the international tests next year," and that would be a rational-basis for legislation, but it totally ignores that individuals seek to educate themselves because acquiring knowledge is a per se good.

"Maybe the founding fathers did not want an official religion, because they are afraid of such abuse or discrimination."

The Founding Fathers did not want a federal religion, i.e., a national religion. However, the actual text of the First Amendment prohbits the federal government making any laws respecting an establishment of religion, which includes banning those state religions already in effect at the time the First Amendment was passed. In fact, Massachusetts had an official state religion until 1830. It is entirely foreign to any honest interpretation of constitutional history to insist that the Founders did not wish for any state to have an official religion. In truth, they did not want the State (meaning the federal government) to have an official religion.

"I have read some of the books and articles and certainly do know that Posner's characterization is ridiculous, irresponsible, and unusually slothful in his case."

I wonder which ID books you have read, because a number of the most prominent ID proponets have retracted their original statements and replaced them with more modest and less controversial (read: not yet disproven) ones.

"Modern cases dealing with the establishment clause are largely about symbols, rather than about the practical reality of American religious practices."

I think the practical reality is that American religious practices are symbolic, so I think the modern cases dealing with the Establishment Clause are right on point.

"atheism or agnosticism isn't neutrality toward religion"

I disagree. Atheism is neutrality toward religion; that is why only atheists should hold public office; it is rather clear that the Catholic bloc on the Supreme Court is the reason so many of these Establishment Cases are screwed up.

"After all, one of the most important principals of democracy is to ensure minorities' interest doesn't get sacrifised by majorities' power."

This is completely wrong. Democracy has nothing to do with majority rights. Democracy means majority rule. The will of the people can be oppressive if it so chooses. On the other hand, if the will of the people is to constrain itself with limits on the reach of majority power, then so be it. But majority rule is always the key.

"In the same way that giving out WIC vouchers in Watts does not make a Ralph's Supercenter appear to provide quality organic produce. Perhaps you could hand out enough WIC vouchers to do that, though I still wonder how the actual inducement would occur."

Perhaps if you weren't such a pathological hater of innovative capitalism, you might note that some business competition might solve the problem. Ahem, Fresh Direct?

POSNER: "[I]f 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. A less obvious point is that a public subsidy of a particular church will make it harder for other churches to compete. The result will be less religious variety than if the competitive playing field were equal."

First, assuming that horizontal agreements amongst churches are not a violation of antitrust law, I do not see why churches would not band together against their common foe in areas where they are discriminated against (not given subsidies over the subsidy monopolizer). This could easily be done by specialization and loosening moral standards. The best sermonizing church could exclusively do sermons; the best church for weddings could exclusively do weddings, etc. Consequently, the established church would be an all-purpose church that was worse than any of its competitors in the relevant category.

Second, churches, even established ones, are probably not run like GOSPLAN ran the Soviet Union. Members of the preisthood may have other motives than efficiency or receiving a paycheck for being in their jobs, such as aggrandizing power, controlling the life-choices of weak-willed, and exploiting the vulnerable. (Or, on the other hand, spreading Christ's message of love and helping the poor.) A paycheck, whether connected to output or not, will not alter this internal drive to do as much bad or good as possible. Some people are just driven.

Third, dysfunction already exists in the priesthood because of state subsidies. Churches are immune from vicarious liability in tort actions to some extent, and churches receive tax exempt status. Yet they do compete in providing services that are also provided by private corporations which are subject to respondeat superior. Perhaps the child abuse scandals and so on are a result of their tax-exempt status and tort immunity.

"Oh, if only someone was able to define for us all what is reasonable. Then they could win every argument simply by impuning the reasonableness of others! All that would be required is to declare the other person's view to be one of the disapproved forms. Ad Hominem! Rhetoric! Anecdotal! Marxist! Non responsive to evidence I believe exists somewhere!"

So: Using fallacies in argument is okay so long as the speaker rejects logic...?

maybe judges need reminders and guidelines posted in the court room.

In general I would tend to agree, Nate, that there should be safeguards in place to ensure our judges can reason well, but I have a hunch that Corey would complain how using logic in adjudication is proof of capitalist oppression.

How does he explain away the fact that many of the same people who passed the 14th Amendment, seven years later took up the Blaine Amendment, which proposed that, no state shall establish a religion. Isn't that redundant if the 14th Amendment had already incorporated the 1st Amendment?

From a practical standpoint, whether the Founders intended the Establishment Clause to apply to the States or whether the 14th amend. really meant to make the Bill of Rights apply to the States is irrelevant. Most state constitutions have their own provisions on religious freedom. Here is Colorado's. Interestingly, it does not specifically prohibit a state church. However, the sentence "No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent" seems to address the establishment issue. Using taxpayer funds to support a state church if even one person objected would be forcing that person to "support" the church "against his consent" in violation of the provision.

Colo. Const. Art. II, Section 4 (2004)

Section 4. Religious freedom

The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness or justify practices inconsistent with the good order, peace or safety of the state. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship.

"When science cannot answer a question, it results in more research that attempts to answer the question or a paradigm shift that redefines the limits of scientific knowledge, or both. But it never leads to droves of scientists renouncing their profession to take up room and board in the countryside's abbeys and cloisters."

That comes off pretty dismissive of people who opt for faith. People can and do renounce logic as a primary guiding principle all the time, including some cosmologists. They don't necessarily deserve your contempt. Some people who cherish faith or embrace absurdity are deeply commited humanists that do great things. (i.e. Mother Theresa, Kafka, Dostoevsky)

"Perhaps if you weren't such a pathological hater of innovative capitalism, you might note that some business competition might solve the problem. Ahem, Fresh Direct?"

I'm sorry, but some pizza companies won't even deliver a pizza into some of those neighborhoods. It isn't pathological to hate something that has done so little for certain populations. If one gets stepped on enough times, it is pathological to still believe in it.

Certainly it is POSSIBLE that competition might innovate a solution for urban blight, its been a hundred years since Lochner, with some notable breaks the free market has ruled the roost that whole time. Some people are still waiting for their fix. How much longer should they wait before my dissent on their behalf becomes reasonable?

"but I have a hunch that Corey would complain how using logic in adjudication is proof of capitalist oppression."

I thought that you were opposed to ad hominems Jack? Are you excluded from your self-imposed prohibition on ridicule? :) I've never denied that I occasionally throw in jibes at someone saying things I don't respect, but at least I don't harp on other people doing the same thing.

Incidentally, I do believe that use of logic to the exclusion of all other modes of understanding is a warning sign that the end result of an adjudication might be oppressive, (a lot of facism was rationalized that way) but thats not what you said now is it.

Corey

Jack did not express contempt. He was not dismissive. His comment was not an ad hominem.

Your pizza example, and indeed your full service grocery example earleir, is almost certainly not a failure of competition or capitalism. Pizza delivery is competitive, so profits cannot be raised by withholding supply. There must, therefore, be an alternative reason for non-delivery. Reasons might include risk, cost, or (lack of) demand for delivered pizza. None is a failure of competition. This simply means there are alternative methods of distributing food in those neighborhoods that are more efficient, after risk, cost and demand is accounted for. People are presumably obtaining food in these neighborhoods. For those that are not, lack of pizza delivery is probably not the problem.

If you do not accept this and continue to believe competition has failed, you need to explain either a) why pizza companies are failing to deliver when there is money to be made, or b) if delivery is in fact unprofitable, how competitive pizza companies can operate at a loss indefinitely by delivering. My argument is predicated on pizza delivery being competitive. If you do not believe this, you should explain what the obstructions to competition are in this market.

What do you think of posting Deuteronomy 15:1-2 in the bankruptcy court?

http://www.godrules.net/library/kjv/kjvdeu15.htm

In reponse to Robert Schwartz:

That's an interesting point that the 14th amend. did not explicitly make the Bill of Rights applicable to the States. However, I don't buy the argument that under the expressio unius rule all other provisions of the Bill were excluded. The argument conveniently leaves out the last portion of the Amendment: "nor deny to any person within its jurisdiction the equal protection of the laws." (On a side note, I dare you to go to the NRA and tell them that the 2nd amend. doesn't apply to the states and that a state may completely ban the ownership of firearms.) Without going into any case law and focusing solely on the language of the 14th, what do we make of the Equal Protection clause? To what "laws" does it refer? I also think that dismissing the "privileges or immunities" is intellectually dishonest. Your argument puts great weight on the "due process" language and leaps to the conclusion that this referred to only the 5th amend., makes a passing reference to the "privileges or immunities" language, and makes no reference at all to the "equal protection" language. At the very least, you should acknowledge that the privileges or immunities and equal protection clauses create some ambiguity as to what the 14th amend. was truly intended to accomplish. In the face of an ambiguity, courts can, and should, refer to legislative to determined the intent of a provision. That, too, is part of the rules of statutory interpretation.

The other thing that advocates of States' rights like to do is cite the 10th amend. but conveniently ignore the 9th amend., which provides:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The 9th amend. is a libertarian's best friend. Whenever anyone argues that the Constitution does not enumerate a right to privacy for example, I always point them to the 9th amend. (I also mention that I'll be coming by later to camp on their front lawn with my binoculars to spy on them; since there's no right to privacy, they shouldn't mind). The bottom line is that I don't have a problem with courts "inventing" rights. More rights for the people means less power for the government at any level -- federal, state, or local. This is a good thing, both from an economic standpoint and a personal liberty standpoint.

I think that would be an excellent idea Nate. I would support it.

I also like:

15:11 For the poor shall never cease out of the land: therefore I command thee, saying, Thou shalt open thine hand wide unto thy brother, to thy poor, and to thy needy, in thy land.

Silly God, commanding us to help the poor when everyone knows competition will guarantee that someone else does it! :)

Sorry ben, I'm not going to further work out a "why the market fails the ghetto" primer here. I suspect that if you have not admitted that reality by this stage in your life, you are unlikely to accept my reasoning. It would waste both of our time don't you agree?

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

RETAINED BY THE PEOPLE, not our betters in the judiciary.

To be more exact, if Posner thinks ID is biblical literalism, then he must believe Aristotle is a biblical literalist.

Three comments: 9th Amendment, Religion, School

9th Amendment: I think one issue that has arisen between the posts is the extension of "the people" and the effects of dual sovereignity. Does "the people" refer to the people collectively in the states and thus the 9th Amendment reasserts Federalism, OR does "the people" refer to all persons as individuals and give basic protection to persons in the incorporated states even under dual sovereignity. Other areas of law would suggest the former interpretation is more likely to be used, although I much prefer the latter. Practically a moot point, however, as 9th Amendment jurisprudence is about as developed as 2d Amendment jurisprudence.

Religion: Three points, first is a question: (1) Many posters have argued that a ban on establishment is also a ban on dis-establishment. I do not understand that deduction, i.e. "(not)establish" is distinct from "(not)[(not)establish]". Please explain to me. (2) In England, the Puritans were often distinguishing "gathered churches" against "established" churches, both the Church of England and of Rome. This is one of the reasons that the First Amendment collectively refers to freedom of religion, expression, and association. I think that freedom of religion, and the establishment clause, needs to be treated in this context. (3) A useful legal analogy for Establishment issues may be the statutes on judicial recusal, where, in order to instill confidence in the impartiality of the judge, a recusal is required where a reasonable person would find an appearance of impartiality (28 USC 455). I think that this is a reasonable and permissible rule to apply analogically to establishment. If a reasonable person would find an appearance of establishment in an act, it should be banned. This does not answer the more pertinent question of whether or not an appearance of preference is an appearance of establishment.

School: I think that Corey did raise an interesting issue with the pizza delivery issue (the response to it was excellent as well). As the response pointed out, due to an analysis of all the costs of delivery to certain areas, including risk of robbery, etc., many service providers have made a wise economic decision not to serve certain areas. However, as a society we feel that the costs of non-education of segments of society are so great that inefficiencies must be tolerated (I understand that some may disagree with this, but I wanted to get this point out). Therefore, while non-delivery of pizza due to economic considerations is proper, non-delivery of education due to economic considerations is improper (or, the marginal social cost of uneducated segments of population is so high as to almost never be equalled by a potential marginal social gain in non-delivery of education). The issue for vouchers, which I think represent more of a Third-way policy than a privatization, is whether all markets will still be served. As an aside, it is fun to note Adam Smith's views on public education (proof left to the reader!).

Sorry for the length, I really meant this to be short!

Corey

This, I hope, properly addresses your claim that the "market is failing the ghetto".

I believe your earlier argument is encapsulated by your claim: "There aren't enough banks, grocery stores, clean parks, movie theatres, or retail shops. Every single one of those shortcomings shows the "market" failing to serve poor neighborhoods." Your position, I believe, is that this failing harms community welfare.

To establish if this is true, it is necessary to understand why such establishments are more sparse in poor communities. This is because some reasons for sparseness imply the community is actually better off without more establishments. The test I adopt for whether there are "enough" establishments is whether community demand for them is fulfilled by the existing stock. If there is unfulfilled demand, then there is not enough. Sparseness can be caused by low demand, high cost, or a market failure such as a collective action problem. I'll address each of these using grocery stores as an example.

If sparseness reflects a lack of demand for a service then sparseness is good for community welfare. Building outlets to serve demand that does not exist harms community welfare in that there is oversupply of what people do not want and (probably) an undersupply of what they do want. Sparseness may also reflect the nature of demand: there may, for example, be a higher community willingness to travel in exchange for lower prices in store. If sparseness reflects low demand, then the existing stock fulfills demand and there are enough stores already.

Sparseness might reflect relatively higher costs for these outlets to do business. Again, it is good that higher costs translate to sparseness, other things being equal. Remember, given the constraint that the population has to get three meals a day from somewhere, the sparseness of one type of food outlet may well be offset by higher density of others. Cost as a cause of sparseness implies no unfulfilled demand sufficient to justify the cost of new outlets. There are enough already.

You will argue, perhaps, that this does nothing for the person riding the bus for 4 miles with groceries. This is true. But consider that the person on the bus may have foregone a number of nearer food outlets to go grocery shopping and her preferences for groceries might be relatively unusual in the community. The inconvenience of being so far from shopping may be compensated through lower rent: other things being equal, demand for accommodation and therefore rent will tend to decline the further it is from conveniences. The trade-off for this individual may well be worth it.

When might sparseness harm community welfare i.e. when aren't there enough grocery stores? When there is a market failure i.e. demand for groceries sufficient to build more stores is going unfulfilled. You earlier postulated collective action problems as a cause for market failure. I'm not certain what this means, but I nevertheless find it implausible. According to you, liquor stores and churches are abundant so have presumably solved the collective action problem. It's not clear why grocery stores have not.

I put forward another reason for market failure: crime. Crime raises the cost of investment, producing sparseness that leaves demand unfulfilled and community welfare harmed. But competition itself is harmed by crime. Sparseness is not the failure of competition to serve the community but a downstream effect of crime. To blame competition would be to confuse cause with effect.

Sparseness that harms community welfare by leaving demand unfulfilled may also be an unintended outcome of regulations. The lack of clean parks you cite is a government problem. Neither is the fault of competition.

michael persoon reminds me why the question of whether competition is failing the ghetto was raised in the first place.

If crime (or collective action problems) is responsible for a shortage of grocery stores etc. then it may well produce a shortage of investment in private schools. Does this count as a reason not to bring in a voucher system i.e. to continue discriminating in favour of public schools?

No. For four reasons.

One, if vouchers are unable to stimulate private investment in poor areas and poor communities find it prohibitive to access private schools outside the area, then nothing has been lost. Public schools still get the funding they had and students stay at their public school. Even if, say, only half the community find it economic to access distant private schools, there is reason to believe those remaining at public schools will receive higher quality education due to private schools competition (Brasington 2000) and quite possibly higher funding per student, though this depends on political decisions and the nature of costs (see earlier posts).

Two, the costs crime or collective action imposes is finite and in principle the value of vouchers can be adjusted to account for these costs so that private schools get built in crime-ridden areas. So even if crime or collective action deters grocery stores, private provision of education need not be deterred.

Three, even if private schools do not appear in poor areas, public schooling can benefit from enhanced funding using the savings from private schooling where it does appear elsewhere.

Four, even if disadvantaged students do not gain access to private schools, they still receive a benefit from vouchers if vouchers increase opportunities to attend higher quality public schools. Good public schools expand and bad schools shrink. This is good for students.

Of course, vouchers may provide none of these benefits and the system is a failure. But in that case, we keep the status quo and little or nothing is lost.

As for the "sparseness" reality, take into account the response of a small business man when asked by the Small Business Administration agent (who floated his loan) why he closed his store in the Projects and moved Uptown, "The pilferage was gettin so bad I couldn't realize a profit and my creditors we're breathing down my neck and bankruptcy was staring me in the face. And you ask me why I moved!"

The economics of poverty just don't fit the text book models. And so nothing works.

"Three points, first is a question: (1) Many posters have argued that a ban on establishment is also a ban on dis-establishment."

Read the First Amendment. It does NOT say that Congress may not establish religion, it says that, "Congress shall make no respecting an establishment of religion." This means Congress cannot disestablish religion established in the several states AS MUCH as it means Congress cannot establish a national church. Of course you are right that the striking down establishment (at least an establishment done by Congress) does not violate the establishment clause, however. With respect to states, it's a different ball game.

I don't think one can describe the flight of businesses from poor and crime ridden area as a "market failure." That's probably first and foremost a social/government failure. Is it the market which caused crime to sky rocket?

It is, however, a relevant question: will a private education system subsidized by the government provide adequate opportunities in areas which Corey describes? Clearly these communities would be at a disadvantage. They would either attract less qualified teachers, or would have to pay significant premiums (setting aside the few noble teachers who choose to work in low socio-economic schools). I hope Corey realizes, however, that the picture I paint above is no different than the current situation. Urban areas typically have newer and less qualified teachers. The same would probably be true, more or less, under a voucher system. One key factor limiting the quality of teachers in urban areas is the crime and discipline problems. Private schools supported by vouchers are likely to have more success managing these problems than public schools, in my opinion. With discipline improved, teachers of higher caliber may be willing to enter these improvished areas, improving the core problem facing these schools--quality of instruction and learning environment.

Though it is clear that teachers and adminstrators would be willing to work in either a public or private system in these areas (I see no reason to believe they would work in public but not private), I do believe there may be a problem in attracing the entrepreneur to such areas. Government is forced to provide these services, even if somewhat incompetently. How would a voucher system bring educational entrepreneurs into these areas when there are clearly more lucrative and easier communities to service? I do think this could be a problem, however, it is not without potential remedies. Where this is a problem, the government could provide all sorts of incentives and subsidies to lure education providers into the troubled communities. Just some thoughts.

Read the First Amendment. It does NOT say that Congress may not establish religion, it says that, "Congress shall make no respecting an establishment of religion." This means Congress cannot disestablish religion established in the several states AS MUCH as it means Congress cannot establish a national church. Of course you are right that the striking down establishment (at least an establishment done by Congress) does not violate the establishment clause, however. With respect to states, it's a different ball game.

Let's assume your argument is correct. How would a church established by a state government be any different than a national church? From an economic perspective, each state having its own church could create greater inefficiencies.

"People can and do renounce logic as a primary guiding principle all the time, including some cosmologists. They don't necessarily deserve your contempt."

This is fallacious for a number of reasons.
1. I was not talking about people of faith in general, but scientists, specifically.
2. I have no contempt for people of faith.
3. I have no contempt for scientists.
4. I merely pointed out that your understanding of how the scientific community responds to its inability to answer a question was wrong.

Apparently, Corey, you have taken to outright lying as an argumentation tactic.

Corey:

First you quoted me say that "I have a hunch that Corey would complain how using logic in adjudication is proof of capitalist oppression." Second, you responded by saying "I thought that you were opposed to ad hominems Jack?"

I will note here that my statement is not an ad hominem. I didn't make an irrelevant personal attack, I noted that you would probably respond to a particular argument in a certain way, based on your prior statements and behavior (including one that rejected logic in favor of advocating for outcomes concistent with your, as you put it, anti-capitalist and populist political stance).

It turns out I was right. You did say: " I do believe that use of logic to the exclusion of all other modes of understanding is a warning sign that the end result of an adjudication might be oppressive, (a lot of facism was rationalized that way)...". You did immediately leap to decrying fascist oppression, and I might add illogically so. The fact that science uses logic to justify its outcomes and fascist regimes use logic to justify their outcomes does not make science a fascist regime. I have hair and Hitler had hair, but having hair does not make me Hitler. Then again, you reject logic, so why even bother.

This was my point in the first place. It's not a fallacy of irrelevance; it is obviously relevant to anyone who must read your tiresome posts.

PALOOKA: "Where this is a problem, the government could provide all sorts of incentives and subsidies to lure education providers into the troubled communities."

First, I must commend Palooka and Ben for their insistence on fostering constructive debate.

Second, I must take issue with Palooka's (admittedly thin) solution, which could be tarred and feathered as a "just throw money at the problem" approach. It might work, and has worked in impoverished communities in India. But India also lacks strong unions, so there is much more play in the joints for someone intent on reconstructing or gut-renovating an entire public education system. The teachers' unions here are quite strong, and can block almost any plan that moves teachers around, rewards some teachers over others, or, plainly put, maximizes the total number of teachers actually in classrooms teaching. This is pretty much the problem in New York City, where Bloomberg has been trying to break the back of the teachers' union for some time so that he can actually reform the system as Palooka's post would suggest is necessary to truly deal with the problem, instead of simply blaming private schools and vouchers for destroying a public system that is already moribund.

ME: "[S]ome business competition might solve the problem. Ahem, Fresh Direct?"

COREY: "Certainly it is POSSIBLE that competition might innovate a solution for urban blight,..."

ME: Good, we agree that I am right. Stop blathering.

As long as people are still talking about school vouchers, I thought I would raise one more point.

While the states are generally in charge of their educational school systems (and at times federally subsidized), a large portion of the costs of running a school are met by the local school districts, primarily from property taxes.

Example: In Illinois, the state only covers 36% of the cost of schooling its students (national average of 50%). Local taxpayers cover 53% of the costs. As a result of local control, some communities spend more than $15K/student while others spend less than $5K/student. I got my numbers from the People for the American Way site.

My Question: What is the effect on the incentives of communities to continue to fund 53% of the cost of education under a school voucher system. I think that one of the effects is a dis-incentive to pay for quality schools for two reasons: (1) an ability to export your child to another district and freeload off of its commitment to higher taxes and quality education, and (2) a dis-incentive to have those higher taxes and pay for a quality education because it will benefit freeloaders and its value to children whose parents pay those higher taxes will be diluted.

There are obvious policies that could remedy this, but most involve the state picking up the bill, e.g. a state property tax to fund state education which is allocated on a per-student basis by school enrollment. I think this type of scheme is great, but I do not think taking control away from local districts and giving it to a larger bureaucracy (with greater powers to tax and redistribute wealth) is what voucher proponents have in mind--I do think it would be a more efficient AND equitable way to manage our education system, though.

COREY: It isn't pathological to hate something that has done so little for certain populations.

It certainly is if you pour your populist ideology into the definition of "done so little" and "certain populations". I see now that you do accept reasoning: circular reasoning.

'Amar's argument is essentially this: 1) people propose redundant legislation all the time, 2) some of the Blaine amendment's proponents conceded that the 14th Am. already worked by incorporation to disestablish state churches....'

Not according to Steven K Green's, 'The Blaine Amendment Reconsidered' in 'The American Journal of Legal History (January 1992, p 38-69):

'As is indicated by the Congressional debates some seven years after the passage of the fourteenth amendment, several lawmakers believed the Blaine Amendment would apply the protections and proscriptions of the religion clauses to the states "for the first time". Apparently, this was the general understanding during the debates; no one rose to refute these assertions, and no one suggested that he protections of the federal first amendment already applied to the states.'

And Blaine himself wrote a letter that says the very same thing. So, I would suggest the burden of proof is logically on the 'incorporationists'.

Also, the Blaine Amendment is doubly bad news for today's 'strict separationists'. Because, Blaine was nothing like what the courts are ruling now. The last line in it was: 'This article shall not be construed to prohibit the reading of the Bible in any school....'

Blaine was strictly anti-Catholic. It sought to reserve the public schools for vanilla Protestantism. Which is what the 1st Amendment historically allows too.

"There are obvious policies that could remedy this, but most involve the state picking up the bill, e.g. a state property tax to fund state education which is allocated on a per-student basis by school enrollment."

First, I would note that "the State picking up the bill" is not necessary for fair apportionment. Local property taxes can be pooled by the State and sent back to localities in proportion to whatever scheme the State has concocted (e.g.,3 is collected in County A and 5 in County B, but 3 is sent back to County B and 5 back to County A). Usually the fight is not over whose property taxes are higher, because rich mobile people always move once the property taxes get too high (i.e., once there are too many renters in the area [obviously, if there are 4 renters and 1 property owner (XYZ) as opposed to 1 renter and 4 property owners (including XYZ), the share of property tax burden on XYZ shifts from 100% to 25%]). Notably, poor people usually rent, and minorities are usually poor, so this phenomenon generally correlates to minorities (including immigrants) increasingly moving into the neighborhood. Anyway, the thrust is that the State need not pick up the bill; it could simply make certain to apportion fairly whatever is collected from all counties, so that it matters not where the rich, mobile people move (so long as the tax burden is not so high that they move to a contiguous state accessible by commute). In other words, collect 3 from County A and 5 from B, but allocate 4 to each. This, of course, would be characterized as an income transfer by the more affluent taxpayers, and they would get upset, stack the relevant government boards that administer the apportionment of the funds, and resdistribute wealth according to property taxes paid in (because it means super-dooper schools for their children and no income transfer). The Supreme Court has held that doing this is not illegal; it is up to States to decide how to apportion per capita spending. Thus, there is little that the pitiable poor Corey is so intent on condescendingly and paternalistically delivering into salavation can politically do.

Second, because States are not obligated to spend an equal amount on each student, usually voucher plan proponents suggest that equivalence between the voucher's puchasing power and what would have been spent per capita in the public system. They also target those families whose children are stuck in the worst schools and note that the per capita expenditure apportionment within the public system is not helping their child. By contrast, a check they can take to the local Catholic school, where all the children know how to read, directly benefits their child, who will actually learn in the parochial school environment. Given that the voucher argument is a libertarian one made to individuals in their rational-self interest, I'm not sure why we are discussing the macro-view of the system as a whole. It seems we have bought into Corey's shoddy analysis of the collective values at stake here. (And, again, it gives primacy to the rent-seeking interests of bureacrats and administrators instead of the people who are actually affected and dehumanized by the indifference of a dysfunctional and impersonal system.) What is at stake here for an individual mother is ensuring that her child receives a good education: that is the micro-view. That is where the argument lies. The question is not whether vouchers are good for the public education system (which, as Palooka pointed out, is moribund); the question is whether a given child can get a better education with a voucher than he can in the defunct public school for which he is zoned.

If the answer is no, please explain why to the mothers of minority children who vehemently disagree.

the notion and role\importance of traditional physical "property" has changed. trying to rely on this for education may be outdated. not sure.

the whole education debate and discussion is somewhat not directly related to the blog topic at hand.

do you think that kids benefit from religious or spiritual instruction at a young age? why or why not?

do you think the courts and society benefit (on a net basis - weighing pros and cons) from having moral, religous guidelines posted in the court room?

do you think the courts and society benefit (on a net basis - weighing pros and cons) from having moral, religous guidelines posted in the court room?

I really don't think it matters. Pointing out to someone charged with murder that one of the Commandments is "Thou shalt not kill" is too little too late. I tend to agree with Judge Posner's comment in the "water skiing" opinion that "[m]odern cases dealing with the establishment clause are largely about symbols, rather than about the practical reality of American religious practices." While people who do not practice a religion or practice one other than Christianity should lighten up a little, I think religious people should do the same. Instead of fighting over a display of symbols, religious people should actually practice their religion, perhaps even go do something good for the community. If you want to pray in school, just do it. When I was in school, I would frequently say a silent prayer before taking a test. I was never arrested. That's because the so-called "ban" on school prayer only applies to an organized prayer session. It does not apply to a student who prays silently. You don't need the government's permission or approval to create your own moment of silence.

Hunter

Posner's characterization is perfectly fair. The essential element of both ID and creationism is a creator. That only one includes a label is basically incidental except, ID's inventors no doubt hope, to the Supreme Court. All of ID's leaders believe the unnamed creator is God. ID was invented following the demise of attempts to get scientific creationism into the classroom. ID's main proponent is the Christian think tank the Discovery Institute. And it is legal constraints on teaching overtly religious creationism, not something more intrinsic, that motivates the removal of explicit religious references.

So the veil could hardly be thinner. Your description of Posner's claim as "ridiculous, irresponsible, and unusually slothful" is therefore over the top.

MikeTheBear

thanks for the input.

"Private schools supported by vouchers are likely to have more success managing these problems than public schools, in my opinion."

Well, see, in my opinion they will not. I have the opposite preference re: public/private.
Ben criticized me for making this debate ideological about 50 posts back but now you all have come to the same point. If the problems besetting the schools are external (crime, drugs) then neither side has an empirical basis for choosing between the systems, public schools aren't fully succeeding now, but aren't funded as much as they want. [Non-Catholic] Private schools haven't tried, but [my] examples suggest private industries underserve poverty/crime/drug-ridden areas, [mostly] because of the cost, but despite our common normative desire that everyone have equal access.

Is that a fair summary of where we are?

I want to credit palooka for expressing the above concerns in a more considered and "approved" tone than my original posts. However from my point of view it is largely what I was saying all along. I think someone who read this discussion impartially all the way through (which of course no one will do because of its length) would agree with that assessment. If they did agree, then all the purely "formal" criticism takes on a stupidly ironic hue.

ID is not the same as Creationism. I say this as someone who believes evolution is the best and really only viable scientific explanation available. It is true that many creationist and Christians latch on to ID theory to justify and enforce their beliefs, but it is distinct from Creationism, which is basically the Genesis myth contained in the Old Testament.

I think the critiques of evolution which ID contains can be separated from the conclusions ID reaches based upon those critiques. It seems to me a lot of the criticism can be viewed without distain, and can be taught in schools to the benefit of our children. From my readings, the central criticism of ID theory is that while evolution can account for a lot of changes (read: microevolution), there is simply not enough time to account for the addition of new DNA (which must have a mutation to create) necessary to explain the diversity of life. While alleles can be recombined to create a large array of phenotypes, there remains the truth that all new genes must spring from mutation. ID posits that though positive mutations can occur, there is simply not enough time (even given billions of years) to create enough DNA to explain the diversity of DNA on earth.

I think this criticism is fair. I'd like to see a lot of ID critics counter with substance, instead of mocking it as a Genesis creation myth.

However, I am not sure the critiques of ID proponents naturally support the conclusion of ID; that there is an intelligent designer. This is a leap which seems to be outside of the tradition of science, which has always sought to find natural explanations, which can be studied and understood. A more conservative approach to their critique, would be to admit evolution theory is flawed, but probably because it's incomplete rather than totally false. Just because there is a hole or flaw, or something is very difficult to understand, does not mean it is not understandable or supernatural or there is a mysterious "intelligent designer." That conclusions seems GREATLY premature, and I wouldn't object to someone believing it wasn't true "science" because of the leap (surrender?) of logic ID theory relies upon for its conclusions.

COREY: Is that a fair summary of where we are?

No, it is not. In point of fact, no one agrees with you, and Palooka made his point as a compromise bewteen your position and the critiques of others, not as a better expression of your position. He has a different point of view than you, and he even critiqued your position quite ably himself. Not one person on here is persuaded by the arguments of Corey but Corey. No one has come full circle to your point of view: that is what the impartial reader would note.

COREY: "neither side has an empirical basis for choosing between the systems,"

That is plainly not true. Mothers who choose vouchers and remove their children from the public system have an empirical basis for their decision-making. Why are you ignoring their observation and analysis of how well the public system works at educating their child in fact (not in theory)?

COREY: "our common normative desire that everyone have equal access."

No one here shares your norms. By preferring the moribund public system, you prefer depriving poor children of access to an equal education in favor of granting bureaucrats their rents.

Call me stupid, if you will, but the impartial reader would note that is an ad hominem, i.e., fallacious.

COREY: "If the problems besetting the schools are external (crime, drugs) then neither side has an empirical basis for choosing between the systems, public schools aren't fully succeeding now, but aren't funded as much as they want. [Non-Catholic] Private schools haven't tried, but [my] examples suggest private industries underserve poverty/crime/drug-ridden areas, [mostly] because of the cost, but despite our common normative desire that everyone have equal access."

This reminds me of that passage from Heidegger where he tries to explain the non-being of nothingness and the result is pure nonsense.

I didn't say that people had agreed with me. I attempted a concise substantive summary. I even incorporated your thought about Catholic schools serving poor neighborhoods, which I agreed with. Earlier you said: "It seems we have bought into Corey's shoddy analysis of the collective values at stake here." Which is what prompted my comment on substantive vs. (you say shoddy) formal analysis. As I have expressed before, I would prefer you attack substance.

As you did effectively near the quote:

"I'm not sure why we are discussing the macro-view of the system as a whole."

I think all sides can agree that rational self interests are what is at stake here. But refusing to consider the macro level would have the effect of ruling out "planned" solutions. You would be begging the public commons vs. free market question. I believe that given an adequate funding base, town-hall style school governance (communitarianism if you will) is superior in terms of output quality than voucher based preference summing. But again that is an ideological distinction. The Catholic schools are your best evidence, the failure of non-Catholic private schools to serve the worst areas is mine.

You are very very difficult to talk to Jack. Your confrontational attitude towards me makes it very hard for me to see value in arguing under your "terms". Perhaps the feeling is mutual.

Mike the Bear--

What I was trying to point out is a funding problem in a specific state, IL, that may occur as a result of unforeseen consequences of a voucher system, namely an incentive to freeload.

If local districts currently pay for 53% of all education costs, and a voucher system encourages them to freeload (the point of contention in my post), then if a voucher system (supplying freedom to choose between school districts) is implemented the system as a whole will be underfunded. Q.E.D.

There are places where limited voucher type systems work, but are used by few. See, e.g. the open-enrollment program in Iowa.

Also, this is not just a macro-view. Think not only of the interest of the poor mother in obtaining quality education for her child, but also the self-interest of the rich mother in not diluting the amount of money spent on obtaining a quality education for her child and how that rational self-interest becomes expressed.

>>I also think that dismissing the "privileges or >>immunities" is intellectually dishonest."

>Au contraire, mon ami. It is well settled law.

Well settled or not, its pretty easy to critique and unmask the motivations of the people who settled P&I in Slaughterhouse. Its pretty common Con Law meat in law schools.

You quoted a latin maxim of interpretation, but what about the one that says basically "don't read a clause so as to be practically meaningless"?

Palooka

"ID posits ...there is simply not enough time (even given billions of years) to create enough DNA to explain the diversity of DNA on earth...I'd like to see a lot of ID critics counter with substance, instead of mocking it as a Genesis creation myth."

In The Ancestor's Tale, Dawkins writes (p.257):

[Darwin's critics] have complained of insufficient time for natural selection to wreak the changes the theory requires of it. We now realise the problem is, if anything, opposite. There has been too much time! If we measure evolutionary rates over a short time, and then extrapolate, say, to a million years, the potential amount of evolutionary change turns out to be hugely greater than the actual amount...Evidence of various kinds, and theoretical calculations, all point towards this conclusion.

Dawkins goes on to cite some of this evidence over the next three pages.

I trust this is substantive enough for you Palooka. Let the mocking begin!

If the problems besetting the schools are external (crime, drugs) then neither side has an empirical basis for choosing between the systems

This is plainly wrong. Just because each system is subject to the same problem says nothing about their abilities to deal with it. Indeed, since each system is subject to different political and economic constraints there reason to think their response to the problems will be quite different.

Private schools haven't tried, but [my] examples suggest private industries underserve poverty/crime/drug-ridden areas, [mostly] because of the cost, but despite our common normative desire that everyone have equal access.

Your point has nothing to do with the original claim that "[p]rivate schools supported by vouchers are likely to have more success managing these problems". The point has been addressed at length earlier: there are clearly ways to stimulate private investment in poor areas. And you have changed positions again. Now you are saying undersupply is caused by cost, not collection action. You are all over the place.

You are right to mock formal criticism. Not a single one of your arguments has survived it. Jack is right, you are talking nonsense at every turn.

I think all sides can agree that rational self interests are what is at stake here. But refusing to consider the macro level would have the effect of ruling out "planned" solutions. You would be begging the public commons vs. free market question. I believe that given an adequate funding base, town-hall style school governance (communitarianism if you will) is superior in terms of output quality than voucher based preference summing. But again that is an ideological distinction. The Catholic schools are your best evidence, the failure of non-Catholic private schools to serve the worst areas is mine.

I have read this paragraph three times. It is incomprehensible. This, apparently, is what happens when Corey tries to play intelligent peacemaker. Or something.

Where do you start with this rubbish? "I think all sides can agree that rational self interests are what is at stake here." Where did this come from? And what does the next sentence "But refusing to consider the macro level would have the effect of ruling out "planned" solutions." have to do with it? And just what does the "public commons vs. free market question" have to do with that? And what is the public commons vs. free market question?

Then we get "I believe that given ...etc... But again that is an ideological distinction." Indeed it is. And not a helpful one when evidence can be brought to bear on it. Yet you mindlessly persist with the ideology, refusing to address the reason and evidence put before you, unable or unwilling to put evidence - actual data or reason - up in support of your position. Just the mindless ideology. As if that's all we've ever been debating. As if none of us have actual reasons for our positions. As if ideology solves anything.

And we finally get this gem. "...the failure of non-Catholic private schools to serve the worst areas is mine". A failure which has occurred without vouchers. So not a test of, well, anything really.

Sokal would have been proud.

COREY: "I believe that given an adequate funding base, town-hall style school governance (communitarianism if you will) is superior in terms of output quality than voucher based preference summing. But again that is an ideological distinction."

Then you are begging the question. Not only are you begging an empirical question, but you are flat wrong. I quote Gary Becker:
BECKER: "This is a bit off the topic, but I cannot let pass the claim that vouchers would drain the good students from public schools, and would leave the students who remain there much worse off. The true situation illustrates how competition works. Schools that lose students to better schools would be under great pressure from parents and others to improve themselves. They would tend to get new principals, change their teaching, etc. This is not just theory, for it is backed up in the studies by Carolyn Hoxby of Harvard and others."

COREY: "Which is what prompted my comment on substantive vs. (you say shoddy) formal analysis."

I never said your formal analysis was shoddy. I said your analysis sum-total was shoddy. I didn't make a formal/substantive distinction, which is hypocritically formal, and something you made up to salvage your incomprehensible and nonsensical polemics.

I also did not rule out any central planning solutions. I noted merely that we have a centrally planned system that does not work, and you are arguing in favor of retaining a dysfunctional system. In doing so, you are trumpeting the system values of the dysfunctional system. I pointed out that libertarians who are appealing to minority families with vouchers are using that kind of bias against people like you. Instead of buying into your trumpeting of system values, mothers of poor kids are considering their own interests as individuals. My point was that to make a relevant argument in the real debate going on in America you must talk to them as individuals, not continue to trumpet the same old system values that everyone knows led to the dysfunction in the first place.

Note that a full and unedited quote of qhat I said is: "Given that the voucher argument is a libertarian one made to individuals in their rational-self interest, I'm not sure why we are discussing the macro-view of the system as a whole."

GIVEN THAT.

GIVEN THAT.

Learn to read, Corey. If only your mother had had a voucher.

COREY: "Your confrontational attitude towards me makes it very hard for me to see value in arguing under your 'terms'."

You'll make a great lawyer by crying before all the meanie judges. I take it you weren't on Moot Court.

I posted a comment today and do not see it. It is possible I thought I posted something, yet did not post it.

Did you post all comments by me today?

"Did you post all comments by me today?"

There is no censorship on the blog, but sometimes people encounter problems posting. It must be just a quirk in the software.

"There has been too much time! If we measure evolutionary rates over a short time, and then extrapolate, say, to a million years, the potential amount of evolutionary change turns out to be hugely greater than the actual amount."

I, of course, am not as credentialed as Dawkins, and I have not read the several pages of follow up, but this seems to me a great error. One cannot extrapolate microevolution into macroevolution (which requires the creation of NEW genes, not just rearranging existing gene frequency).

The number of known new genes created by random mutation is quite small. Maybe you (or Dawkins) can provide a list of the known random genetic mutations which created a new, viable gene. When you get that list, then be my quest and "extrapolate" on it. This is not to say that is not precisely how evolution works. Maybe that is the only mechanism necessary. I just have not seen too many examples of random mutations creating a new, beneficial gene!

"there are two assumptions here: first, that the ID position is credible; second, that assuming it is, it could be beneficially taught to children."

Well, I don't know if the entire "position" is credible. Remember, I did criticize the conclusiosn of ID proponents. I said the critiques of evolutionary theory could be taught.

Here is a hypothetical: A biology teacher does a lesson on ID theory. He explains the various criticisms (which to him have at least some merit), and then counters it with what the best in the field (Dawkins, et al) have to say to those reponses. He asks why might the conclusions of ID be subject to criticism that it's not true science--that is, it seeks a supernatural explanation via an "intelligent designer." Would a lesson like this be beneficial or not?

It's my understanding that the Scopes trial was fought by the ACLU on the basis of academic freedom, not establishment issues. Yet today the ACLU would rob our teachers and our children of exactly that, the academic freedom to explore alternatives to orthodoxy.

maybe it is providence that kept it from posting

we may need a 10 commandments (guidelines) for blogging

One more: thank you for pointing me to Hume. I never heard of his work prior to this blog.

Corey wrote: "Well settled or not, its pretty easy to critique and unmask the motivations of the people who settled P&I in Slaughterhouse. Its pretty common Con Law meat in law schools."


The motivations and political leanings of one or more Justices are not grounds for criticizing a judgment of the court. If a professor lets his law students make that type of argument in class, he doing them a severe disservice, because that type of argument presented to a court will get the proponent nothing but a tongue lashing from the judges.


The problem with the rejection of SCOTUS' interpretation of P&I, is that it was a well reasoned reading of the words of the 14th Am. This is probably why SCOTUS has let it stand for the last 120 years, and when they have wanted to find a way around it they have relied on other interpretive techniques such as substantive due process.


"You quoted a latin maxim of interpretation, but what about the one that says basically "don't read a clause so as to be practically meaningless"?"



Practically meaningless" Not having the meaning you want and meaningless are different things entirely. Perhaps you should wish to review the list of rights that Justice Peckham set forth above:

"I don't know if the entire "position" is credible ... I did criticize the conclusiosn ..."

the issue under discussion (at least I thought) is the credibility of the scientific content of ID; its conclusion is theological and thus clearly inappropriate to a science class.

your hypothetical not only ignores my conditional (on the assumed scientific credibility of ID) concern, viz, the feasibility of presenting the science at the prescribed educational level, but exaccerbates the problem by postulating yet a third phase, the rebuttal ("dawkins et al") to the ID rebuttal (to repeat, using non-existent materials) of the evolutionary theory, which, I assume, must be presented since ID - being largely a counter to evolution - can't exist independently of its target. if my concern is well founded, then the answer is "no, it won't be beneficial". it will be even more a waste of time and might actually discourage confused students from pursuing anything so hopelessly convoluted. and as suggested above, presentation of theological aspects in a science class would be inappropriate.

"the ACLU would rob our teachers and our children of ... the academic freedom to explore alternatives to orthodoxy"

what, pray tell, has the ACLU got to do with this discussion? I can imagine them being involved in the school board debates, but (to repeat) I thought we were addressing the science. in any event, this exemplifies a seemingly widespread confusion between willful disregard for contrary opinion (what I assume you mean by "orthodoxy") and concensus within a community based on current evidence. obviously, not only can such concensus be wrong, any theory will almost certainly be incomplete. but in science, corrections and extensions typically will be accepted if they successfully run the gamut of research, conceptual development, peer review, etc. according to the "experts" (whom I have no reason to doubt, as noted earlier), that has not happened with the ID thesis. its proponents want to go directly from concept to general acceptance without going thru these hurdles. what justifies this free pass?

since you throw in a lot of relevant jargon, I'm curious - was my inference of lay status wrong?

Palooka

..but this seems to me a great error. One cannot extrapolate microevolution into macroevolution (which requires the creation of NEW genes, not just rearranging existing gene frequency).

All of this is incorrect. Macro- and microevolution are consistent with changes in gene frequencies and neither requires new genes per se. Microevolution can be extrapolated to macroevolution because no mechanism has been found to prevent genetic differences within a species from accumulating over time (microevolution) until a new species can be defined (macroevolution).

The number of known new genes created by random mutation is quite small. Maybe you (or Dawkins) can provide a list of the known random genetic mutations which created a new, viable gene. When you get that list, then be my quest and "extrapolate" on it.

Palooka, this is just a request to jump through hoops which bears no obvious relationship to your original objection. What purpose does it serve?

I have interpreted "viable" to mean "beneficial" to its carrier in a given environment. Known examples of random genetic mutations which created a new, viable gene are described at these links:
http://www.talkorigins.org/origins/postmonth/apr04.html
http://www.talkorigins.org/pdf/faq-intro-to-biology.pdf at p. 9
http://sickle.bwh.harvard.edu/malaria_sickle.html
http://www.talkorigins.org/faqs/information/apolipoprotein.html
http://www.talkorigins.org/faqs/information/spetner.html
http://www.talkorigins.org/faqs/mutations.html#append_2

All but one of these links is to talk.origins archive. It is an extraordinary resource which I highly recommend to you. I can almost guarantee your every objection to evolution and every reason for believing ID is addressed in this archive with references to the literature.

Palooka

..but this seems to me a great error. One cannot extrapolate microevolution into macroevolution (which requires the creation of NEW genes, not just rearranging existing gene frequency).

All of this is incorrect. Macro- and microevolution are consistent with changes in gene frequencies and neither requires new genes per se. Microevolution can be extrapolated to macroevolution because no mechanism has been found to prevent genetic differences within a species from accumulating over time (microevolution) until a new species can be defined (macroevolution).

The number of known new genes created by random mutation is quite small. Maybe you (or Dawkins) can provide a list of the known random genetic mutations which created a new, viable gene. When you get that list, then be my quest and "extrapolate" on it.

Palooka, this is just a request to jump through hoops which bears no obvious relationship to your original objection. What purpose does it serve?

I have interpreted "viable" to mean "beneficial" to its carrier. Known examples of random genetic mutations which created a new, viable gene are described at these links:
http://www.talkorigins.org/origins/postmonth/apr04.html
http://www.talkorigins.org/pdf/faq-intro-to-biology.pdf at p. 9
http://sickle.bwh.harvard.edu/malaria_sickle.html
http://www.talkorigins.org/faqs/information/apolipoprotein.html
http://www.talkorigins.org/faqs/information/spetner.html
http://www.talkorigins.org/faqs/mutations.html#append_2

All but one of these links is to talk.origins archive. It is an extraordinary resource which I highly recommend to you. I can almost guarantee your every objection to evolution and every reason for believing ID is addressed in this archive with references to the literature.

"All of this is incorrect. Macro- and microevolution are consistent with changes in gene frequencies and neither requires new genes per se. Microevolution can be extrapolated to macroevolution because no mechanism has been found to prevent genetic differences within a species from accumulating over time (microevolution) until a new species can be defined (macroevolution)."

Microevolution (usually defined as evolution within a population) is quite distinct from Macroevolution (speciation) in what is required to propel it. The former is due to a well understood, well supported fact. The latter is less understood, and because of its reliance on random mutations to produce great changes (the difference between prokaryote and eukaryote or reptile and mammal must require the addition of many, many new genes, created by random mutations), it is a very different picture. Most of the small scale evolution we observe, for example the breeding of dogs and plants, is due to merely manipulating the content of a species' current gene content rather than the creation of new genes. This is what I meant when saying one can't extrapolate microevolution into macroevolution. The former does not require random genetic mutations and the latter does, at least to explain the great changes.

I want to point out I have no "objections" to evolution. And I don't "believe" ID. I made that very clear in the first post. My point is that while the conclusions of ID seem to fall outside of the history and tradition of science, I don't see every one of ID's critiques as totally without merit. The strongest critique is that found in the challenge to evolution to produce evidence that random mutations are a sufficient mechanism to produce the amount of genes necessary, even given billions of years. The easiest way to do demonstrate this plausibility is by listing the thousands (even millions) of known genetic mutations which have created a beneficial gene. Right now, I see evolutionary theory as falling short in this area. Sorry. I am well aware of the handful of examples, but that is kind of the point. They're a handful of them. I didn't check out your links, but I see you have listed sickle cell anemia. It's a very interesting example, yet it's not a very good one. Yes, sickle cell anemia provides resistance to malaria. It is also a death sentence if you're lucky enough to be homozygous. The heterozygous condition is also debilitating, though it is not a death sentence. Relying on that sort of mutation to demonstrate the enormous potential of evolution is, dare I say, pretty weak.

I would like to point out that in other areas, typical creationist/ID theory is very, very weak. In particular I have in mind the ill-informed assault on radioactive dating methods. But not all ID theory relies on a young earth, so it's wrong to paint with a broad brush.

CTW,

Maybe you are right that our teachers and students are just too stupid to digest the debate. Maybe we should keep it simple for them. I do understand where you are coming from. I do NOT think there should be equal time given, or that they should at any time be treated as rivals. But so many speak of ID as some sort of heresy. Really. It's kind of spooky coming from the ACLU and from a scientific community which is supposed to welcome challenges to orthodoxy. I guess I do understand many scientists reluctance to discuss or address ID because they feel it would lend some credibility to it. Maybe it does, but ignoring it seems to me a worse alternative, especially considering its prominence among the population. BTW, your inference of my lay status was not wrong.

Palooka,

Microevolution (usually defined as evolution within a population) is quite distinct from Macroevolution (speciation) in what is required to propel it...one can't extrapolate microevolution into macroevolution

Well a good number of experts in evolution disagree with that. Dawkins is among them (I apologize for the length of the quote, but it goes directly to your concern). Dawkins writes:

I must mention the alleged distinction between macroevolution and microevolution. I say 'alleged' because my own view is that macroevolution (evolution on the grand scale of millions of years) is simply what you get when microevolution (evolution on the scale of individual lifetimes) is allowed to go on for millions of years. The contrary view is that macroevolution is something qualitatively different from microevolution. Neither view is self-evidently silly. Nor are they necessarily contradictory.

...[I]s macrogrowth the sum of lots of small episodes of microgrowth? Yes. But it is also true that the different timescales impose completely different methods of study and habits of thought. Microscopes looking at cells are not appropriate for the study of child development at the wholebody level...I have no quarrel with a working distinction between microevolution and macroevolution. I do have a quarrel with those people who elevate this rather mundane practical distinction into one of almost - or more than almost - mystical import. There are those who think Darwin's theory of evolution by natural selection explains microevolution, but is in principle impotent to explain macroevolution, which consequently needs an extra ingredient - in extreme cases a divine extra ingredient!

...I have discussed the theory of 'punctuated equilibrium' before...so I shall only add that its advocates usually go on to propose a fundamental 'decoupling' between microevolution and macroevolution. This is an unwarranted inference. No extra ingredient needs to be added at the micro level to explain the macro level. Rather, an extra level of explanation emerges at the macro level as a consequence of events at the micro level, extrapolated over unimaginable timespans...I have never seen any good reason to doubt the following proposition: macroevolution is lots of little bits of microevolution joined end to end over geological time, and detected by fossils instead of by genetic sampling. - Ancestor's Tale, pp. 603-5. [emphasis his]

Palooka: I see you have listed sickle cell anemia. It's a very interesting example, yet it's not a very good one. Yes, sickle cell anemia provides resistance to malaria. It is also a death sentence if you're lucky enough to be homozygous.

Yes, but that's the point. Whether a mutation confers advantage depends on the environment its carrier is in, not according to some external yardstick. The persistence of sickle cell anaemia in malaria-infested regions beautifully illustrates this.

I have a hard time with the idea that public schools spend 60% more per child than private schools. In my county, the FY2006 budget calls for $8,423 per pupil. Area private schools generally charge between $10,000 and $15,000. I suspect the fundraising might be a little more expensive on the private side as well.

As far as the ID controversy, ID offers nothing but critique. It has no theory of its own other than some complex'designer' intervened for the things they deem too complex to have evolved. But what designed the designer, which must have been much more incredibly complex than the eye or the flagellum to which IDists often refer.

I managed to fluff the formatting in my last post. The fourth and fifth paras are Dawkins' words, not mine as implied by the lack of italics.

Matt,

I am well aware of the imprecision of referring to micro and macro evolution, when both describe the same process but to different degrees. Even the concept of speciation is slippery and has changed (and is even a subject of debate among scholars).

But none of this has much to do with my point, which I am quite sure you understand, Matt. Small scale evolution, evolution we often observe, is predominately due to changing allele frequency, and not because randomn mutations are occurring all the time and creating new genes. The lack of examples of beneficial random mutations, then, is a real problem in explaining the major, macro-level evolutionary change posited by evolutionary theory. How did a prokaryote become a eukaryote, etc. A lot of NEW genes must have been created, yet we really don't have many examples of beneficial genes occurring from random mutations. That's an inadequacy whether or not you're willing to admit it.

You wrote regarding my comment on sickle cell:

"Yes, but that's the point. Whether a mutation confers advantage depends on the environment its carrier is in, not according to some external yardstick. The persistence of sickle cell anaemia in malaria-infested regions beautifully illustrates this."

Yes. All true. But sickle cell is a DISEASE which happens to have a benefit. That certainly explains its prevalance among Africans, as they were exposed to malaria. But one would have to be pretty deluded, I think, to conclude the sickle cell gene is powerful evidence of the kind of creative potential evolution is supposed to command. This is the process which created the intricate, highly complex animals (including ourselves). Again, I do not quibble that sickle cell demonstrates the concept of natural selection excellently. That is different than saying it's an excellent example of how random mutations can propel evolution forward to ever-greater and more complex designs. Yes, I understand that evolution can be regressive, too. And I understand the incrementalism involved, but I nevertheless believe sickle cell, especially considering its prevalence in discussion, is a rather weak example of a "beneficial" mutation.

"Maybe you are right that our teachers and students are just too stupid to digest the debate."

a nit - I distinguish ignorant and stupid. my concern is that young students and many HS teachers will be too ignorant (as am I) to properly handle the scientific arguments; that in no way implies that I think these same students and teachers are "stupid" (as I am not).

as in a previous exchange, I don't think we are actually very far apart, but in any event this exchange has helped clarify the issue for me. there seem to be separable issues being subsumed under the catchall "should ID be taught?":

1. should evolution be taught at all
2. should evolution be taught as proven fact
3. should debatable issues about evolution recognized by the relevant scientific community be taught
4. should specific scientific conclusions reached by ID proponents (eg, the complexity argument) be taught
5. should the theological conclusions reached by ID proponents be taught in science classes

there may be legitimate reasons to answer "no" to 1, but objection on religious grounds clearly isn't one. my impression is that the answer to 2 should be "no" for general epistemological reasons as well as due to the status of evolution theory specifically. in principle, the answer to 3 is perhaps "yes", but the final decision should be up to individual teachers, who presumably are best positioned to judge their students' and their own capabilities and the best use of the time available. for reasons stated before, I would answer "no" to 4. and I can't imagine any credible argument for answering other than "no" to 5.

according to the article in today's NYT, some Discovery Institute staff claimed to be leaning towards roughly the same position (at least in the near term), but I'm skeptical since that would seem to be snatching defeat from the jaws of (at least some) victory.

Palooka

Even if small scale evolution, as you put it, is "predominantly" due to changes in allele frequencies, we can agree at least some positive number of beneficial mutations have been observed to have occurred. So your dispute, I think, is that beneficial mutations are not sufficiently frequent to believe new phyla and complex creatures can emerge in only two billion years.

There is in fact a parallel test of whether "small scale evolution" holds at macroevolutionary timescales in the form of the molecular clock. Observed genetic mutation rates are combined with comparisons of so-called junk DNA between species to estimate the date at which the last common ancestors of two modern species lived. This technique has been extraordinarily successful, and in fact used to predict the existence of fossils, a nice independent test of the technique. Because most living organisms on the planet share at least some DNA, the technique can in principle be used to test for the age of the last common ancestor between any pair of species which possess DNA. So, for junk DNA at least, observed "small scale evolution" holds at macroevolutionary time scales.

The question remains as to whether beneficial mutations can account for all diversity in nature. I think junk DNA and the molecular clock establishes it does. My reasoning is this: because the molecular clock works to a good approximation, it independently confirms the hypothesis that a pair of species once had a common ancestor, and since that common ancestor two unbroken sequences of re-production have come down through the ages side-by-side to eventually produce the pair of species we observe today. Given the existence of a common ancestor and unbroken parallel sequences of ancestry leading up to the two species, it must be the case that all differences between the species are the combined result of mutations - whether beneficial, junk or unhelpful. This, I think, establishes that beneficial random mutations can explain major, macro-level evolutionary change, at least in instances for where the molecular clock works (of which there are many).

"Even if small scale evolution, as you put it, is "predominantly" due to changes in allele frequencies, we can agree at least some positive number of beneficial mutations have been observed to have occurred. So your dispute, I think, is that beneficial mutations are not sufficiently frequent to believe new phyla and complex creatures can emerge in only two billion years."

Yes. Again, I am not an ID adherent. I believe evolution is a strong theory supported by a lot of evidence. I have always been fascinated by the subject. But that is not to say there aren't weaknesses with it. I would never advocate ID theory be taught as a peer to evolution, but I just don't believe discussing the theory or various critiques of evolution should be off limits in or out of public school. ID, in my opinion, can't be "taught" in the same way as evolution can be, because there is simply no coherent theory, no scientific consensus. Discussing ID, its weaknesses and even some critiques which may have some merit, seems to me something which can be done in schools.

Brief response to your technical point:
Junk DNA could be used, I think, to estimate the frequency of total random mutations but it doesn't seem to be instructive to the specific question of the quantity of beneficial mutations.

CTW, I think we do pretty much agree.

It's been a good conversation, Matt and CTW. I may check this thread for any further responses, but I think this will be my last post. Ciao.

"So your dispute, I think, is that beneficial mutations are not sufficiently frequent to believe new phyla and complex creatures can emerge in only two billion years."

I wanted to clarify one thing. It is not so much I don't believe beneficial random mutations are not frequent enough to explain the origins of new phyla. I believe evolutionary theory is lacking support for that contention.