That question poppoed into my mind when I read Frank Bruni’s op-ed castigating Tim Ferriss for suggesting that travelers place unloaded starter guns in their checked bags. (Ferriss says this will guarantee close scrutiny, and reduce the risk of your bag being lost.) Bruni says that there’s an epidemic of selfishness in the country:

While I doubt there will be a rush on starter pistols by airline passengers — it’s just too much trouble, and too bizarre — his overarching interest in gaming the system at hand is mirrored in other Americans’ behavior. So is his emphasis on personal advantage over the public good, which would be undermined if every traveler did as he counseled. There’d be bedlam in airport security operations and a ludicrous number of people carrying around what could be mistaken for lethal weapons.

Selfishness run amok is a national disease (and, to judge by Greece, Italy and a few other European countries, an international epidemic). Too many people behave as if they live in a civic vacuum, no broader implications to their individual behavior.

Is a system of simple rules encouraging this? Perhaps if the system weren’t so easy to game, people would do it less? If people didn’t feel like others were taking advantage of loopholes, they wouldn’t try to do the same? If TSA agents could exercise judgment to punish—or make things harder—for folks like Ferriss, perhaps everyone would just follow the rules and everything would go more smoothely?

But consider also this Planet Money episode, where economist Luigi Zingales argues that America is becoming more like Italy: a place where connections and money determine public policy, instead of the general welfare. He argues that we need simpler rules, not more nuanced standards. As he sees it, the more nuanced a rule is, the more likely it is to be read only by the rich (or their employees) seeking to take advantage of the nuanced sub-clauses. These nuances are often intentional giveaways to favored groups or businesses. And this looks a lot like Italy, in Zingales’ telling.

In Italy, post-World War II communist governments needed to convince businesses that they weren’t about to have their property and money confiscated by the government. So the government offered sweetheart deals and guarantees to businesses. But when bribes (or sweet contracts) first start being used, they become necessary. This raises prices for everyone, from infrastructure projects to produce. And it’s not just money: it’s trust. When he arrived here, Zingales was shocked when Americans paid attention to local leaders’ warnings about a severe storm. He thought that the direction to tape up windows meant someone’s brother owned a tape factory. In Italy, as Zingales describes it, it was a good idea to find out what the government wants you to do—then do the opposite. If people can’t trust their leaders, the costs of effectively handling crises and day-to-day government activities become enormous.

But maybe here the issue isn’t that the rules are too simple: it’s that they’re too complex. Getting on a plane is a massive ordeal. And apparently it’s OK to pack an unloaded starter gun in checked luggage. (Are others forbidden?) Perhaps if it were simpler to get on a plane (and to check luggage), everyone wouldn’t feel so shafted, and Bruni’s “selfishness” wouldn’t be such a problem.

There are good reasons for letting states control marriage. Marriage and family law has traditionally been a state issue. They have the expertise in this area.

The federal government does not. Federal laws dealing with gay marriage generally piggyback on state laws. (This is a reason to question the wisdom of DOMA.) When the federal government mucks around in marriage—which affects lots of related interests, like adoption, inheritance, and benefits—unforeseen issues can become incredibly thorny. And while federal courts could be expected to decide the issues reasonably, they’re already overburdened, and adding a host of family law issues will only add to that burden.

Traditional principles in favor of federalism also counsel letting states own marriage. The national government has limited powers, generally related to national welfare, while states are left to run their own internal affairs, so long as they follow the Constitution and don’t intrude on national affairs. This division of sovereignty puts decision making power at the lowest possible level, ensuring that those most affected by government action don’t have to talk to someone far away—by distance, interests, or beliefs—to get heard.

Apart from legal principles, there’s reality. All it takes is looking Roe v. Wade—the Supreme Court decision that legalized abortion—and the effects it had on America. The decision ripped the issue away from the states just as many were beginning to come to a consensus that abortion should be legal in some circumstances. The modern, socially conservative Republican Party can thank Roe for its existence. The formal legalization of abortion also didn’t have much effect on abortion access. In many states, abortion is effectively unavailable or nearly so, thanks to onerous regimes. (Even supporters of Roe, like Justice Ruth Bader Ginsburg, acknowledge that it went to far and poisoned politics.)

Even if you think that marriage is a fundamental right (not something I agree with, even as a gay-marriage supporter), you should ask whether you think immediate, national gay marriage is worth another quarter century of politics divided along social lines. As a gay marriage supporter dismayed by the state constitutional provisions around the country banning gay marriage, I still rest comfortably knowing that in 10 or 20 years, all those provisions will be gone. Young people support gay marriage, and as they get more power and older opponents of gay marriage die or convert, the tide will shift enough for gay marriage to become the law of the land in every state.

Letting that process run naturally will allow our politics to become more sane, more respectful. And you’ll still get what you want.

First, let’s look at the argument that Spitzer thinks that he refutes. Everyone agrees that the Constitution gives Congress certain and limited powers. (“Everyone” includes the Solicitor General, who argued the case in the Supreme Court for Obama.) Among Congress’s powers is the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” ACA’s opponents say this grant of power does not let Congress force us to engage in commerce. Instead, this grant only lets Congress regulate us after we choose to engage in commerce. By forcing us to enter commerce—that is, to pay for health care before we seek it—Congress exceeded its powers.

Spitzer says that early historical evidence shows that the Constitution couldn’t have meant that. Let’s look at his evidence. Spitzer points to three mandates passed by early Congresses and says that they prove that members of the founding generation didn’t think that mandates exceeded Congress’s power. He writes

• In 1790, a Congress including 20 Founders passed a law requiring that ship owners buy medical insurance for their seamen. Washington signed it into law.
• In 1792, another law signed by Washington required that all able-bodied men buy a firearm. (So much for the argument that Congress can’t force us to participate in commerce.)
• And in 1798, a Congress with five framers passed a law requiring that all seamen buy hospital insurance for themselves. Adams signed this legislation.

He thinks that the passage of these laws means that “the Founders and the Congress of the time were willing to force all of us to participate in a particular act of commence and were comfortable requiring both the owner of a business and the individual employee to buy insurance in order to assure that health costs would be covered at a societal level” (emphases added). He takes it too far, though.

His examples show that Congress understood that it had the authority to address the health of individuals engaged in international or interstate commerce, and to regulate the military and the militia. But it’s too strong to argue that laws forcing seamen, ship owners, or even able-bodied men to purchase things in commerce activity mean Congress could force everyone to purchase things in commerce.

Let’s deal with each of his examples.  First, the seamen (shh—stop tittering, silly immature folk). A seaman, by definition, has already chosen to engage in international or inter-state commerce: he’s working on a ship, the very instrument of international or interstate commerce. Congress can regulate his activities so long as its laws are “necessary and proper” to execute the commerce power. But the second the seaman quit the crew, he was free to purchase or refuse insurance however he liked.

Second, the ship owner. That’s the same as the seaman. The ship is an instrument of international or interstate commerce: Congress can regulate it if its laws are “necessary and proper” to executing the commerce power. (It’s another question whether the ship owner would have to purchase insurance if he were only operating in intrastate commerce. I think he wouldn’t have to, but some might disagree, citing a 1942 Supreme Court case called Wickard v. Fillburn.)

Third, the able-bodied men. That looks different from the ship and crew examples. But that’s because that law relies on other congressional powers: the power to “raise and support armies” and the navy, and to “provide for organizing, arming, and disciplining, the militia.” So Congress can require all able-bodied men to buy firearms to be ready to serve in militias or in the military, and it can even force people to join the military in a draft. But that’s for war purposes. Not commercial purposes.

So Spitzer’s examples fall through. He should know better. At least Einer Elhauge, who Spitzer relies on, acknowledges that these examples are open to debate. But Elhauge’s argument is more refined: he acknowledges that the ship and crew laws applied to people who already chose to engage in commerce. He  thinks that the health care market was so far removed from  shipping that the insurance mandates effectively forced ship owners and seamen to participate in new markets. Elhauge also argues that the fact that the gun-purchase law arose under the militia power is immaterial: his point is that purchase mandates were approved by early Congresses.

And you know what, I’ll give him that last point. But these laws either applied to people who were already in commerce, or under an entirely different authority. There are no examples of Congress forcing everyone to purchase something under the commerce power. And the gun purchase requirement is simply too far removed from ACA because it’s under the militia power. I’d like to see the Congress that forced everyone to buy health insurance as part of the war effort.

In another post, I’ll take issue with Spitzer another issue: he argues that the five conservative justices on the Supreme Court are wrong to interpret the Constitution according to some supposed “original intent.” His arguments against original intent are right, but they miss the mark, because today serious originalists swear fidelity to the Constitution’s original meaning, not the founder’s intent. And that, friends, is a distinction with a a lot of difference.

H/t Tyler Cowen.

(H/t Paul Hsieh.)

Then I saw this video:

I am now enlightened:

I love these sorts of ads. Although I don’t foresee needing to buy something from NTT DoCoMo anytime soon. Nor watching vtm soon.

(Really, I just love watching that vtm video. I’ll take any excuse to post it.)

H/t: CJ.

When I look at the budget problems we face, I’m skeptical that Congress is going to live up to its promise to keep its hands off that money.  At the very least, I’d bet that high earners are going to see some sort of surtax on their Roth withdrawals.

Of course, I think this is true of non-Roth retirement savings as well.  Ultimately, Congress is going to be faced with penalizing people who didn’t save adequately for retirement by cutting their benefits, or penalizing people who did save, by raising taxes on their savings.  For a lot of reasons, I expect them to err on the side of penalizing savings.

She’s adjusting her savings accordingly.

I’ve started thinking about saving in ways that Uncle Sam won’t be tempted to touch–like paying off your house early, maybe buying a vacation home (for cash) if you know where you’re likely to want to spend a lot of time, and doing the kind of renovations that save you money in the long run–better insulation, higher-end energy-efficient appliances, etc.  Paying now to lower your monthly costs later may have a better after-tax return than that “tax free” account.

But, of course, Rep. Paul Ryan finally opened the serious debate about our long-term budget, and President Obama is going to follow with a (hopefully) serious response later this. With this debate underway, maybe future Congress won’t feel the need to touch our piggybanks.

MN: Since they are unnecessary and deceptive, I can’t see any reason to do anything to protect their use.
AO: You say that food coloring is “unnecessary and deceptive”. But couldn’t you say the same thing of essentially any garnish or cooking technique designed to make food appear more appealing without physically modifying the flavor?
MN: The issue is artificial. Food garnishes and cooking techniques are usually not.

Megan McArdle argues that the natural versus artificial dichotomy presents a false choice.

Actually “natural” foods would also come with things like toxic fungus and horrible parasites which–I guarantee–are much worse for children and other living things than artificial food coloring. “Natural” is not synonymous with “better for you”. It’s absolutely true that you’re probably less likely to get fat if you eschew highly processed foods in the snack and cereal aisles. But oversimplifying this message to “natural good, artificial bad” quickly turns ridiculous.