Tag Archives: markets

A Judge’s Ruling on Female Genital Mutilation

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Charges related to female genital mutilation were dismissed last week against Detroit doctor Jumana Nagarwala, who has a history of performing such “surgeries.”  Federal District Judge Bernard Friedman, of the Eastern District of Michigan, ruled that Congress had overstepped its authority in passing a law banning this FGM.

Sadly, the judge was right.  That law, passed in 1996, was done under our Constitution’s Commerce Clause, which authorizes Congress to regulate interstate commerce (along with trade with foreign nations and with the Indian Tribes).

However, Friedman wrote,

That clause permits Congress to regulate activity that is commercial or economic in nature and that substantially affects interstate commerce either directly or as part of an interstate market that has such an effect. … There is nothing commercial or economic about FGM.  As despicable as this practice may be, it is essentially a criminal assault…. Nor has the government shown that FGM itself has any effect on interstate commerce or that a market exists for FGM beyond the mothers of the nine victims alleged….  There is, in short, no rational basis to conclude that FGM has any effect, to say nothing of a substantial effect, on interstate commerce.

The law as passed is plainly unconstitutional.  But why not allow the law to stand, anyway, given its attempt to bar [a]s despicable [a] practice as FGM?  Because, as Chief Justice William Howard Taft wrote 100 years ago in the Child Labor Tax Case,

The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

As Friedman noted, seemingly in consistence with Taft, in his 21st century opinion,

As laudable as the prohibition of a particular type of abuse of girls may be…federalism concerns deprive Congress of the power to enact this statute.

And

FGM is “local criminal activity” which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.

Here, though, Friedman has understated the case.  This is a Federal concern, and it is within the scope of Congressional authority to address FGM.

Congress must repass this law—though why it chose the Commerce Clause as the underpinning is beyond me—and it must address Friedman’s Federalism concerns.  One obvious path is that the protection of all Americans collectively and the liberties of each American individually are the role of the Federal government; some protections cannot be left to the individual States to effect—or to choose not to effect.  This is why free speech and religion, the right to keep and bear arms, protections against excessive searches—indeed, the entirety of our Bill of Rights—are Federal concerns, with only the means of implementing them left to the States.

Certainly, there needs to be a limit on what is considered a Federal crime (or civil prohibition or requirement)—even murder is a State crime and not a Federal one, as it should be.

But surely our inalienable right to the pursuit of Happiness, which John Adams explained so eloquently carries within it the rights of personal property and of personal security, is a Federal concern, not a matter to be left, federalistically, to the States.  That property right necessarily includes the property every individual has in his own person, and that security right necessarily includes the safety of that property in person (and more generally, the safety of the person himself), especially.  This was acknowledged overtly when we fought—and won—a civil war over slavery.

It must be the case, too, that that property and that security must include control over what is done with any part of an individual’s body and who permits the doing or refuses it, and FGM can and must be as protected against as the evil of enslaving the whole of an individual’s body or mind.

Accordingly, Congress must repass this law, or something very like it, but it ought to be passed under 5th Amendment’s due process clause

nor shall any person…be deprived of life, liberty, or property, without due process of law

and under the 14th Amendment’s due process clause

…nor shall any State deprive any person of life, liberty, or property, without due process of law

And that due process plainly allows a Congressional bar against clitorectomy/female genital mutilation.

That won’t put Nagarwala back on the hook for her past practices of mutilation—criminal laws that are retroactive are anathema to liberty—but it will allow for criminal prosecution and jailing of future such butcheries.

 

Friedman’s ruling can be read here.

There Goes the Neighborhood

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The EU has decided to put a lid on the cost of phone calls.

The European Parliament has approved new telecommunications rules that will cap prices of intra-EU phone calls….

And those Parliamentarians are proud of themselves for this.  MEP Constanze Krehl, who speaks for the German Social Democratic Party on matters related to telecommunications:

It was high time to cap the sometimes outrageous prices for international calls in the EU[.]

Just like rent controls, though, this will serve only to stifle maintenance and improvement.  Quality will lag and eventually go outright downhill as the cost of providing the service eats more and more into the revenue—now maxed out—gained from providing it.

Ultimately profits will shrink to the point that too few providers will exist and more than just price will be capped, so will capacity be capped.  Just like housing in rent-controlled areas.

A Thought on Amazon’s Choices

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Amazon.com has made its selection (-s, plural as it turns out) for its alternate corporate headquarters: Arlington County, VA’s Crystal City and New York’s Long Island City, with a booby consolation prize—or a scrap bone—tossed to Nashville, TN.

I have a couple of thoughts about this.

San Antonio, in Texas, had misgivings and declined to play Amazon’s game.

“Blindly giving away the farm isn’t our style,” wrote San Antonio officials in an open letter to Mr Bezos.

Others openly groveled and kissed the ground on which Amazon officials walked when those worthies deigned visit.

In Los Angeles, Amazon executives notified officials on a Tuesday they would be visiting the following Monday. Local officials had to juggle a major clean-technology conference scheduled for that day because Amazon executives insisted they couldn’t change their plans. The message was clear: Amazon had to take priority.

That should have been a crystalline hint, and Los Angeles’ pseudo-leadership should have told Amazon to take a hike.  Instead, they bent over their desks and….

Crystal City and Long Island City—and Virginia and New York at large—will pay a heavy price for their kowtowing.  Nashville may get off more lightly, but I’m not holding my breath.

San Antonio made out like a bandit (so did Dallas, TX, one of the non-selected finalists; although they will take a while to realize it).

Right Answer, Wrong Dissent

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The Washington State Supreme Court issued a ruling favorable to the State’s charter schools last Thursday.  The question before the court was whether those charter schools were violating the State’s constitution by receiving funding from the State’s lottery facilities.  Writing for the court, Justice Mary Yu wrote in plain words,

Charter schools are not rendered unconstitutional just because they do not operate identically to common school[.]

She expanded on that in addressing the plaintiffs’ argument that the charter schools lacked voter control, holding that, as The Seattle Times paraphrased her,

…”it makes sense” for charter schools not have local voter control because their funding source, unlike traditional schools, does not include local property tax levies.

Justice Barbara Madsen in dissent, wrote

They [charter schools] are not subject to local voter control and lack any direct accountability to the communities they purport to serve….

This is mistaken.  Charter schools are especially accountable to the communities “they purport to serve” because, unlike the case with public schools, those parents, those members of the served communities, those voters, easily can remove their children from a charter school and enroll them elsewhere.

Trade and the People’s Republic of China

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The Wall Street Journal wrote in its Thursday edition that the US was “refusing” to resume trade negotiations with the PRC until the latter made a formal offer to us.  That’s a bit of a misnomer, though, since there’s nothing about which to negotiate until the PRC makes an offer.  Absent that, any discussion about trade would be just idle musings over an afternoon tea, a whiling away of some time between more important things.

A couple of other things jumped out at me in that article, too.

For Beijing, making a formal offer presents a number of risks, according to individuals briefed by the Chinese. First, it would reveal their negotiating position. Second, Beijing fears that Mr Trump could make any offer public in a tweet or statement as a way to lock in any concessions by China.

First, honest negotiating requires positions being known to both participants.  If the PRC wants to keep its position hidden, it could only be to keep moving its demands, keep adjusting its goals as we make offers more and more in its direction.

Second, if the PRC doesn’t want to commit to this or that concession—or to any other aspect of its negotiating position—it doesn’t matter whether any of that is public.  The nation wants to be able to walk away from any of its negotiating commitments at its convenience, and that makes the PRC untrustworthy.

As the WSJ noted,

There is history behind Beijing’s concerns. During negotiations over China’s entry to the World Trade Organization in 1999, President Clinton turned down an offer by China’s premier at the time, Zhu Rongji, that included deep concessions and a reorganization of the Chinese economy. The Clinton administration made Mr Zhu’s offer public, hoping to prevent the Chinese from backsliding. Instead, Mr Zhu was pilloried at home by hard-liners, and it took months of negotiations to finally convince China to accept a deal similar to the one it initially offered.

There are two lessons from this bit of history that we still need to learn.  The first is that the PRC’s intent of walking away from its commitments even as they’re made—that hardliner pillorying—is a long-standing policy of dishonesty.  The second lesson is that, in the realization, the PRC walked away from that “similar deal;” it has no concessions from the deal extant and no serious reorganization of its economy even tried.

The Trump administration is wise to waste no time on empty negotiations over a chimera.  It’s chancy enough to negotiate a hard proposal with them, but that’s still infinitely preferable to negotiating PRC fog.