Monthly Archives: July, 2009

The California state constitution needs a rewrite, and the federal constitution drafted by the framers should be the model, writes Tom Karako in the Los Angeles Times here.

The contrast between what is possible in modern medicine and what is affordable grows sharper by the year, and has uselessly stressed the question of health care into a problem of redistributive equity. Whether by the cruelty of fact in a market economy or the cruelty of fiat in a socialist system, medical care will be rationed one way or another. The poor and the aged already have socialized medicine. Changing the method of payment for the rest of the population will have little substantive effect other than to introduce economies of scale offset by bureaucratic gigantisms. The best response to the crisis lies in reducing costs.

The most obvious means of lowering the prices of medical "goods"—doctors, hospitals, auxiliary personnel, machines, drugs, etc.—is to increase their supply. Some hold that in medicine this fundamental law of economics is inoperative, or that, mysteriously, supply simply cannot be increased. They are wrong.

In comparison with the United States, Japan and the major countries of Western Europe other than Britain have on average 150% more physicians and 200% more hospital beds per capita. Care and outcomes in these physician-hospitalization-intense environments are roughly similar to our own. In fact, the average life expectancy of 12 such representative countries is 80.2 years as opposed to America’s 78.5. And yet we spend 16% of GDP on health, 63% more than their 9.4%.

Britain and Canada, like us apparently following an Anglo-Saxon model, have similar physician and hospital-bed ratios, and yet spend far less, 10% of GDP, than we do. Canada’s cost efficiencies and somewhat greater life expectancy are due to the absence of a Lumpenproletariat and to the suppression of individual choice: i.e., sorry, Grandma’s got to die now. When it comes to such decisions we must be absolutely sure that in the reform of our own systems bureaucracy is excluded.

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Independent of the austerity of decree in socialized medicine and the austerity of unaffordability in our half-socialized system is a model of cost efficiency based on the richer presence of things that are correlated with healing and yet have foolishly been made scarce. In the period 1970-1990, the granting of American medical degrees increased by 81%. In 1990-2004, as the population grew by 18%, the granting of medical degrees declined by 5%. Though looting physicians from third-world countries that desperately need them has slightly increased the ratio of physicians per capita, it is still much lower than in most advanced countries.

To increase the supply of medical "goods,"—for example, doubling in ten years the number of medical graduates and hospital beds—the government, which spends almost $1 trillion annually on the socialized portion of the American health care system and is projected to spend more than twice that by 2016, can reschedule a portion of its payments so as over time to double the enrollments of medical and nursing schools, educate medical professionals without debt, build and expand hospitals and research institutions, and increase expenditures on public health and prevention (which, especially for chronically unhealthy segments of the population, are more valuable and cost-effective than just picking up the pieces).

The resources for this can be drawn from spending in areas that do not pertain to matters of life or death; from targeted tax increases in times of economic expansion (so you won’t have to lie on a gurney in the hall as you expire from cirrhosis, you might have to pay more for your gin); from the issuance of federal and state health bonds; and by wringing out criminal and institutionalized fraud, lunatic inefficiencies, and excessive bureaucratization. My mother’s flimsy, hospital-style bed, which she used at home before she died, and which could not have cost more than $300 to manufacture, was for years billed to Medicare at $2,160 per annum. With appropriate resolution, this kind of shameful gouging, which leads to medical and hospitalization charges that make you think you’re on LSD, can easily be crushed. No senator would be as popular as the one who threw the lobbyists from the temple and focused the ire of his investigative committee upon the ten thousand varieties of this continuing outrage.

Further to promote the abundance that can drive down costs (or at least keep them stable as care intensifies), favored tax treatment can lure private capital into the health sector on a massive scale and channel it to remedy deficiencies: for example, by yoking tax abatements to high-quality hospitals in under-served areas or for under-served populations or illnesses. This, and increasing the tax advantage of directing philanthropy to medical institutions and facilities, are the best and least compulsory means of moving the necessary proportion of our unprecedented national wealth away from non-essentials to the preservation and protection of lives and health.

A society without the strength or sense to elevate matters of mortality and human suffering above those of material wealth or whim will suffer until its conflicting desires are forcibly reconciled by suffering it can no longer bear. The American health care system long ago jumped the rails, and arguing one theoretical preference or another is useless while what has evolved continues without restraint to grow as a hybrid.

Though they have great potential for improving health care, the steps outlined above would commit us neither to experimenting with the inadequacies of socialized medicine nor to holding fast to the failures of what we now have. Quite apart from its recent unprecedented interventions and expenditures, the government has for a long time wielded a massive and blunt instrument supporting an unsatisfactory state of affairs. Rather than inducing collapse or further atrophy by simply withdrawing or advancing its involvement, it could with its customary weight alone transform the health care system according to rational principles. As for political impediments and the power of special interests, with the proper posing of the question to the public, these could be blown away like the most fragile leaf in the most violent wind.

By almost any standard, Missouri v. Jenkins, the Kansas City, Missouri, school desegregation case, was extraordinary. Between 1985 and 2003 federal judges ordered more than $2 billion in new spending by the school district to encourage desegregation. Not only did they double property taxes to pay this huge bill, but they imposed an income tax surcharge on everyone who lived or worked in the city. The court order turned every high school and middle school (as well as half the elementary schools) into "magnet schools," each with a distinctive theme—including not merely science, performing arts, and computer studies, but also classical Greek, Asian studies, agribusiness, and environmental studies. The newly constructed classical Greek high school housed an Olympic-sized pool with an underwater observation room, an indoor track, a gymnastic center, and racquetball courts. The former coach of the Soviet Olympic fencing team was hired to teach inner-city students how to thrust and parry. The school system spent almost a million dollars a year to recruit white kids from the suburbs, and even hired door-to-door taxi service for them. By 1995 Kansas City was spending over $10,000 per student, more than any comparable school system in the country. Despite this massive effort, litigation failed either to improve the quality of education or to reduce racial isolation. Test scores continued to drop, and the percentage of minority students continued to rise. Eventually, black parents—who had long opposed the court’s heavy emphasis on "magnet schools" designed to draw whites into the school system—insisted upon a return to neighborhood schools.

In Complex Justice Joshua Dunn does a masterly job bringing this complex case to life. An assistant professor of political science at the University of Colorado, he knows the case inside out and writes about it engagingly. Not only does he explain the legal issues in terms non-experts can understand, but he has a firm grasp of the local politics behind the litigation. He has mined the extensive legal record and conducted interviews with almost all the important participants. Most importantly, he refuses to accept stock answers to the central question: who destroyed the Kansas City school system? He insists, counterintuitively, that the man who presided over the case for two decades, District Court Judge Russell Clark, should not bear most of the blame for this educational disaster. Dunn is more inclined to blame the Eighth Circuit Court of Appeals (which, he argues, gave Judge Clark little room to maneuver) and the Supreme Court (which imposed conflicting demands on lower courts in desegregation cases). Dunn’s refusal to finger a convenient scapegoat forces the reader to confront a number of the disconcerting dilemmas of school desegregation.

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One of the oddest features of Missouri v. Jenkins was that it was not initiated by civil rights groups or parents who claimed that the school system discriminated against minority students, but rather by the Kansas City, Missouri, School District (KCMSD) itself. After the Supreme Court decided Brown v. Board of Education in 1954 and declared separate educational facilities inherently unequal, Kansas City desegregated its schools quickly and without recourse to litigation. In subsequent decades the black population expanded rapidly while whites moved to the suburbs. By the late 1970s nearly two-thirds of the students in the system were black. When the federal Department of Health, Education, and Welfare charged the KCMSD with running a segregated system, the KCMSD responded by filing suit against the surrounding suburban school districts and the states of Missouri and Kansas, claiming that they had contributed to the racial isolation of city schools. This was the first time a school board had ever filed a desegregation suit—and the last. The district court judge quickly found the KCMSD’s argument incompatible with the Supreme Court’s 1974 decision in Milliken v. Bradley, which had absolved suburbs of responsibility for the concentration of minority students in urban schools.

Instead of dismissing the case, though, the judge transformed the plaintiff school district into a defendant, and then searched for a substitute plaintiff. After the NAACP and the ACLU refused to take the case, Judge Clark appointed Arthur Benson, a wealthy, white, liberal attorney, to present the plaintiff’s case. But first Benson had to round up a few African-American children to "represent." This left Benson free to define the interests of the minority children who had allegedly suffered from unconstitutional segregation. Not only had the federal judge "defined the structure of the suit by picking the plaintiffs and defendants," but as litigation progressed, "Benson rarely failed in any legal appeal he made to Clark. This superficially cozy relationship eventually led black community leaders to accuse Clark and Benson of ignoring the true interests of black children." And with good reason.

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Given Judge Clark’s unusual role in creating this lawsuit, why shouldn’t he be blamed for the tragedy that followed? Dunn convincingly argues that Clark was not an activist judge in the tradition of Frank Johnson (who initiated judicial efforts to restructure state mental hospitals and schools for the developmentally disabled) or Jack Weinstein (who slyly orchestrated the huge Agent Orange settlement). In his initial ruling "Clark, at times, seemed contemptuous of Benson’s claims. One by one, he refuted Benson’s arguments but in the end found a rationale for the verdict." So why did this rather cautious judge undertake such an enormous task on the basis of such an unconvincing legal argument? Dunn’s reasoning is straightforward: "the Eighth Circuit would obviously have overturned him if he had ruled differently." Not only had that appeals court found St. Louis guilty of unconstitutional segregation in similar circumstances, but when the Eighth Circuit met en banc to review the Kansas City case, it came within a single vote of reversing Judge Clark for being too lenient with the school system. Sixteen years later, long after it had become clear that the desegregation order had been a miserable failure, the Eighth Circuit refused to allow Clark’s successor to terminate the case. Although the Supreme Court was by then urging lower court judges to be more cautious, it gave them little clear guidance on how to proceed in these troublesome cases. In short, the Supreme Court remained aloof while the Eighth Circuit remained pigheaded. Under the circumstances, Judge Clark became increasingly attached to the desegregation plan he had spent a large part of his career developing.

What was distinctive about Clark’s approach was that he refused to take the simple but futile step of using busing to spread around the city’s few remaining white students. He recognized that this would only accelerate white flight. Since the Supreme Court had prevented federal judges from ordering busing between cities and suburbs, he decided to take measures to dramatically improve the quality of education in Kansas City schools. This, he expected, would pull white students back into city schools—or, as the court put it, increase their "desegregative attractiveness." Even if this effort at integration failed (as it quickly and obviously did), then the minority students left in city schools would at least be more likely to receive the "equal educational opportunity" promised in Brown. In the abstract, this was not a bad idea. But it never came close to working.

Why, despite all the money poured into the Kansas City school system, did the court do such a lousy job improving urban education? One can cull at least four reasons from Dunn’s detailed examination of the court order’s implementation. First, Judge Clark relied much too heavily on two educational "experts" who had quickly thrown together an ambitious magnet school plan. These education school professors made extravagant claims about the prospect for rapid improvement: instituting their plans, they claimed, would raise Kansas City students’ test scores to the national average within four or five years and would draw in enough white students from the suburbs to make the school system 40% non-minority. Even Benson, the lawyer for the plaintiffs, found these claims preposterous. But who could argue with such educational "experts" with their reams of reports on "best practices"?

Second, the judge repeatedly ignored the preferences and complaints of black parents whose children were the subject of his experiment. Many black parents objected not only to their children being bused long distances, but also to the fact that most of the new schools emphasized exotic themes rather than the basic skills so many students lacked. When the black school superintendent, the black members of the school board, several dozen black pastors, and the local chapter of the NAACP asked the court to institute a more modest magnet plan, they were rebuffed. The longer the case went on, the deeper grew the schism between black leaders and parents and the white judges, lawyers, and experts claiming to represent black interests.

Third, the school administrators who were handed this huge pile of money were hopelessly incompetent and corrupt. Between 1969 and 1999 the school system went through 21 superintendents. In 1991, after firing yet another superintendent, the school board hired a white replacement who had recently been fired for running a California school district into bankruptcy. His primary qualification was that he was an avid supporter of magnet schools. After surrounding himself with "highly paid, mostly white assistants," he took a paid medical leave, and moved to Florida, where a local TV news crew caught him doing construction work on his new house. The central staff of the KCMSD grew to 600—one for every 60 students. By 1990 the district was spending less than half its budget on instruction. One high school spent nearly $50,000 on a trophy case despite the fact that it had no trophies to display. Dunn reports that every year "hundreds of thousands of dollars worth of computers, overhead projectors, VCRs, and TVs would disappear." The court substantially increased teacher pay, but did nothing to remove incompetent teachers.

Finally, the court remained wedded to the notion that black children cannot learn unless white children sit in their classrooms. Dunn offers the following description of the judge’s effort to create integrated schools:

Under Clark’s plan each magnet school had a rigid quota system. For every six black students, there had to be four white students. The quota system was based on total enrollment in a school rather than the total number of seats. Hence, if a school had 1,000 total seats but had 240 white students, only 400 black students could attend that school. Because the district could not come close to filling all of the "white" seats in the magnet schools, many black children could not attend the magnet school of their choice, even though space was available in the school. The quota system was so rigid that...the district became concerned about being able to find space for all of its black students. In 1989 there were over 7,000 black students on waiting lists for magnet schools even though there were thousands of available seats. Adding insult to injury was KCMSD’s advertising campaign, which touted the magnet schools as the "best education in Kansas City." ...These quotas and the penalties they imposed on minority children infuriated the black community.

This anger among black parents spawned a political organization that eventually took control of the school board and forced a return to neighborhood schools.

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One can agree with Dunn that the Supreme Court and the Eighth Circuit bear much of the responsibility for what happened in Kansas City and still conclude that he goes a bit easy on Judge Clark. Clark was distressingly slow to change his plan when it became clear that white students would not stream back into urban schools, that magnet schools were doing little to raise student achievement, and that millions of taxpayer dollars were being poured down a rat hole. He blamed his plan’s failure on the ineptness of the school system and its penchant for "lavish" spending without taking any responsibility for his own mistakes. Even more importantly, he made little effort to explain to appellate courts what was happening on the ground. Since district court judges are the only members of the judiciary with the capacity to monitor developments in these complex institutional reform cases, they have a special responsibility to share this assessment—including all the bad news—with their superiors. If the judges on the Eighth Circuit remained woefully ignorant of the realities of urban education, it is in part because no one made an effort to teach them.

Dunn emphasizes that while the judicial effort to improve Kansas City schools was a dismal failure, this case does not prove the oft-repeated claim that courts are weak institutions. As he puts it, "Judge Clark showed an extraordinary capacity to command others and have those commands followed. He ordered the KCMSD and the state of Missouri to build multimillion-dollar school buildings, and they were built; he ordered tax increases on the citizens of Kansas City, and they were imposed." What the judiciary demonstrated in Kansas City was not its lack of power, but its lack of wisdom and prudence. Never did any of the judges involved in this decades-long case—from the district court to the Eighth Circuit to the Supreme Court—speak clearly about what they were trying to accomplish, the trade-offs among their various goals, or the best ways to measure the results of their costly experiment. They remained lost in a fog of legal abstractions. The case of Missouri v. Jenkins shows that courts are in fact capable of bringing about significant social change: they turned a merely failing school system into a much more expensive, totally dysfunctional one. What courts have not demonstrated is the capacity to produce the equal educational opportunity that they so ostentatiously and self-righteously champion.

Thomas Jefferson was a true polymath. As one of his early biographers put it, Jefferson "could calculate an eclipse, survey an estate, tie an artery, plan an edifice, try a case, break a horse, dance a minuet, and play the violin." He knew seven languages, masterminded the expedition of Lewis and Clark, and helped to introduce pasta and ice cream to the American palate. At Monticello, his mountaintop estate, he experimented with the cultivation of grapes, tomatoes, and about 30 varieties of the green pea. As president of the American Philosophical Society, the New World’s premier scientific organization, he promoted the study of archaeology and anthropology. At West Point he established the United States Military Academy and in Charlottesville he founded the University of Virginia. After the British in 1814 torched the Library of Congress, the U.S. government acquired from Jefferson his personal collection of 6,487 volumes, twice as many as had been lost in the blaze and, at the time, the largest assemblage of books in the western hemisphere.

Not long after dispatching to the capitol approximately 20 wagonloads of treatises on everything from Pierre Abélard to zoology, Jefferson began to rebuild his Monticello library. As he informed John Adams, "I cannot live without books." Thus it seems striking that Kevin J. Hayes’s excellent new study, The Road to Monticello, is the very first literary biography of America’s most well-read founding father.

Jefferson’s biographers traditionally base their studies less on what he read and more on what he said and did. This is reasonable enough, and certainly no easy task. His life was long and controversial. In addition, he wrote about 18,000 letters—not to mention dozens of laws and addresses, the beginnings of an autobiography, and his book-length Notes on the State of Virginia. Even so, it is fairly straightforward for scholars to scan the indexes (and now conduct electronic keyword searches) of collections of his writings to find apt quotations that breathe life into familiar episodes, and linger over the wording of selected texts to make original points. This was the technique employed by Dumas Malone, the doyen of Jefferson biographers, whose six-volume Jefferson and His Time (1948-81) won the Pulitzer Prize for providing the fullest, fairest, and most perceptive account to date of the third president’s life. Yet the approach has its limits. Merrill Peterson’s Thomas Jefferson and the New Nation (1970) comprised over 1,000 pages of meticulous research. Even so, Peterson found Jefferson "the least self-revealing" of the founders and "the hardest to sound to the depths of being. It is a mortifying confession but he remains for me, finally, an impenetrable man."

Hayes’s approach is even more challenging but, in certain respects, more rewarding. The difficulty comes from the fact that interpreting all those letters seems downright breezy compared to making sense of thousands of books—encompassing a dizzying array of topics and appearing in several different languages—collected over a lifetime. A professor of English at the University of Central Oklahoma, Hayes tries to reconstruct Jefferson’s earliest library (which burned during a 1770 fire at his boyhood home), pouring over letters and commonplace notebooks to find youthful references to Tom Thumb and The History of Fortunatus, the latter an improbable tale of a man who—not unlike a young and imaginative reader—could travel to any destination and remain invisible all the while. Hayes’s technique might tempt less prudent scholars to engage in flights of fancy. How does one know when a story goes beyond capturing its reader’s imagination and starts to shape his character? Jack McLaughlin’s Jefferson and Monticello (1988), a generally admirable but occasionally far-fetched study, looked at Jefferson’s life not through the lens of his reading but instead through his architectural designs. He suggested that Monticello’s dome and the oculus that crowned it signified for Jefferson his mother’s breast!

Hayes eschews this sort of psychoanalysis, presenting instead commonsense interpretations founded on his seemingly encyclopedic knowledge of the works on Jefferson’s bookshelves. One of The Road to Monticello’s great accomplishments is to demonstrate how Jefferson’s life as a reader shaped his performance as a writer. Hayes points out, for example, that the wording and argument of the Summary View of the Rights of British America (1774) reflected Captain John Smith’s Description of New England and Generall Historie of Virginia. These 17th-century works, which aimed to spur transatlantic migration, imagined a new world in which a man of "small meanes" could rely solely on "his merit to advance his fortunes" as he endeavored to "tread and plant that ground [which] he hath purchased by the hazard of his life." Jefferson, Hayes suggests, echoed Smith’s words when he contended that America was established not by the English government but by English individuals: "Their own blood was spilt in acquiring lands for their settlement, their own fortunes expended in making that settlement effectual. For themselves they fought, for themselves they conquered, and for themselves alone they have right to hold."

Jefferson’s reading influenced his writing in other ways as well. In the months before he sat down to draft the Declaration of Independence, death claimed one of his mentors as well as his mother and second daughter. Hayes acknowledges the important influence on the Declaration of "the hundreds of pages and countless hours Jefferson spent reading about natural law and natural rights." He contends, however, "that grief prompted him to turn to works beyond legal theory and political philosophy. When Jefferson was in mourning, Locke, Kames, and Burlamaqui gave way to "the poetry and moral philosophy of Sherlock, Young, and Ossian." Considering the degree to which Jefferson structured and styled the Declaration to appeal to hearts as well as minds, Hayes seems on firm ground when he argues that "the influence of poets, devotional writers, and other belletrists...cannot be ignored." From such unlikely sources may even have come some of the Declaration’s wording—for example, its praise of the colonial assemblies for opposing "with manly firmness" King George III’s "invasions on the rights of the people." "Manly firmness" is a phrase from British poet James Thomson’s Tancred and Sigismunda, a tragic drama well known to Jefferson in which the words occur in a speech pointing out the difference between wars for conquest and wars for liberty.

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Such interesting revelations aside, The Road to Monticello tells us less about Jefferson as a man of state than it does about him as a man of letters. In many respects it is a reverse image of standard treatments of his life. These hop, skip, and jump past his upbringing, education, and the intervals enjoyed as a private citizen to focus on his public career. Hayes’s biography, by contrast, devotes just over 100 of its 752 pages to Jefferson’s service as America’s first secretary of state, second vice president, and third president. Even within these pages, power politics gets less emphasis than the power of words to shape the political landscape. Jefferson’s epic battle with Alexander Hamilton takes place chiefly in the pages of his Anas, a collection of anecdotes later manhandled by editors. Rather than detailing Jefferson’s presidency, Hayes provides a perceptive reading of the First Inaugural’s carefully-chosen rhetoric.

This, on balance, is all for the good. Certainly Jefferson appeared happier in the bookshops of Paris and Philadelphia than in the halls of government. Undoubtedly he was more at ease in private, unguarded moments, such as when one of his slaves, Isaac, observed him paging through his "abundance of books; sometimes [he] would have twenty of ‘em down on the floor at once" so that he could refer to one and then another. This, Isaac said, was evidence of his master’s "mighty head." Jefferson always seemed reluctant to discuss his career on the national stage. His autobiography ends abruptly when he assumes office as secretary of state, a post that exposed him to a train of high-stakes controversy. Hayes’s biography, then, captures Jefferson not only as he saw himself but also as he wanted to be seen. It stands in marked contrast to recent studies that portray Jefferson as a Machiavellian politico or dwell on his slaveholding—and his possible relationship with Sally Hemings, his deceased wife’s enslaved half-sister.

This is not to imply that there were two Jeffersons. Whether acting as citizen-scholar or officeholder, his aim was the same. A true pillar of the Enlightenment, he believed that "knowledge is power." He could never quench his thirst for either. But as Hayes demonstrates, the road to Monticello was a two-way street. In a 1773 cataloging of his library, Jefferson noted that 42 volumes had been lent out to friends, and his willingness to share his books would continue. So would his practices of providing reading lists to friends and family members, advancing the cause of education, and attacking institutions and political arrangements that he believed bred ignorance. For Jefferson, success constituted more than merely advancing in politics. The campaign that mattered most was the fight for freedom and he never doubted, as he wrote in 1795, that "light and liberty go together."

One of his final literary achievements was his own epitaph:

Here was buried
Thomas Jefferson
Author of the Declaration of American Independence
of the Statute of Virginia for religious freedom
& Father of the University of Virginia.

He directed that this text be inscribed onto an obelisk—a form, his books told him, that for the people of ancient Egypt signified light. He could have listed the many political offices he had held, but these were beside the point. Light and liberty did go together. He wanted to focus on the instances in which he had helped to free from oppression the body, mind, and soul. His real greatness, he wanted posterity to understand, came not from the power that men had given to him but from the power that he had given to men.