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Carter Wood, at The Shop Floor, argues that Cass Sunstein is no “Czar” and deserves to be confirmed in his post. I’m persuaded, but to a large extent it fails to matter.

The running dog gets chased. That’s not one of Ric’s Rulez; perhaps it should be, because it’s something that happens anywhere, any time. Despite attempts to fight back, the Obama Administration is clearly on the run on many subjects, and that means that even people who would prefer to lie on the porch are inspired to chase, yip, and nip at whatever portion of the runner’s anatomy may be exposed.

More importantly, though, Sunstein is the exception that tests the rule — that’s what the verb in the original Latin means; the English descendant of it isn’t prove, it’s probe.

The Senate confirmation process for the Secretaries and other important posts is nowhere to be found in the Constitution. It was developed over the years, by Presidents and Congresses alike, to guard against the possibility that the President, instead of appointing competent, conscientious people to those vital posts, would fill them with ne’er-do-well relatives, incompetent political supporters, and vicious ideologes; Presidents have gone along with the gag, and even encouraged it, because no President has enough close associates to fill all the important posts, and despite “vetting” a backstop is extremely useful.

The Monster points out, in comments, that that’s overstatement — the process isn’t prescribed in the detail it’s taken on over the years, but the requirement for the “Advice and Consent” of the Senate unless otherwise specified by law is definitely Constitutional.

It fails to matter. The point reached below is still valid: The “Czar” system is an attempted end-around on the confirmation process, and should be opposed on that basis.

It’s clear from examining (what little we can see of) his early life and associates that Obama doesn’t know anybody who’s fit to be, say, Secretary of Defense. All of his lifelong associates are either time-serving academics with zero or negative experience in the real world, or ideologues of the Left whose notion of a “centrist” is Leon Trotsky. He has therefore filled most of the posts with Democratic Party-approved and -recommended people, most of whom have no visible qualifications or relevant experience, and then ignored them — note the most prominent example of this: Hilary Clinton, Secretary of State, who isn’t even invited to meetings with foreign leaders.

The real power lies with the “czars”, all of whom (so far) are people from Obama’s academic and “community organizer” life — time-servers and ideologues with a few incompetent (distant) relatives tossed into the mix: Precisely those people the confirmation process was designed and intended to weed out. It may not be fair to damage Cass Sunstein’s prospects, but if we can eliminate some of the other jerks, a*holes, ideologues, and incompetents, we may just have to shrug and call Sunstein acceptable collateral damage.


Whenever a promoter of the notion starts talking about “social justice”, the subject eventually comes around to markets, and the social-justice promoter always considers them evil, cruel, and generally unsatisfactory. They should be replaced, according to that ethic, with a system that allocates things according to need.

It’s helpful, in such situations, to define what is being discussed. In this case, it’s pretty simple: A has something (at this point in the analysis it doesn’t matter who “A” is, or what the “something” actually is) and B wants it. B then needs to find something A wants badly enough to induce A to swap. That’s all there is to a market.

As with anything, there’s a pathological version. Perhaps B has a gun, and asks A if he wants to keep his kneecaps (or his life) in return for handing the thing over. We define that as robbery, but it’s really just a special case of a market — B gets what he wants in return for something A wants.

Now consider the case where distribution is made on the basis of need. Somebody has to determine that the need exists — in the example, that B needs whatever it is. From B’s point of view, there isn’t much difference. The allocator has the something, B wants it, and must do what the allocator wants in order to get it. But that’s a new market!

Now, it may be (and often is, for the promoters of “social justice”) that what the allocator wants isn’t anything material. The warm feeling of having done good for B may be sufficient. In ‘way too many cases, though, what the allocator wants is one or another form of truckling — B must beg prettily and tug his forelock in order to get what he wants. That doesn’t change the fact that it’s a market, though.

What it does do is render the market illiquid, because there’s no currency involved. What the allocator wants is non-material and poorly defined, and it isn’t available for trading with the next participant. That makes the market hard to manage — impossible, in fact — and the dream of fair allocation goes out the window. There’s no way of making the market “fair” if all the participants have to come up with something different.

And what about A? From A’s point of view, he started with something and ended with nothing — the allocator got it, and gave nothing (that A wanted) back. If A agreed with that at all, it has to be something similar to the perverse version. The allocator had to threaten A with loss of something else in order to achieve A’s disgorgement of what B wants, and what the allocator thinks B should have. In the worst and most perverse case, that’s part of what the allocator wanted in order to do the deal in the first place.

So in their zeal to eliminate the market, the “social justice” promoters have done no such thing. What they have done is create two markets, one illiquid and impossible to manage under any terms, the other perverse and damaging to at least one of the participants’ interests. It’s hard to see how that’s an increase in “social justice”.

What if B doesn’t want to do what the Bureau of Socially Just Distribution wants? Well, he can always go back to A, who has what he wants, and offer something in trade; or A can seek out B, and specify something A wants that B might have. That’s the original market, isn’t it? The BSJD will call it a “black market”, but really it’s just the haves and have-nots trying to get together without interference from the bureaucrats — which is what “black market” means.

So now, instead of a market, we have three of them. From A’s point of view, the BSJD is just another B, although one that wants to engage in perversity; that’s one. From B’s point of view, the Bureau is just another A, wanting something in exchange. And the two can always get together, which is the third market. Dayum, Joe Bob! Them markets is multiplyin’ like cockroaches!

Real markets in the real world are more complex than that, of course: Rule #1 is It ain’t that simple! But the fundamentals continue to apply, they just get more subtle and obfuscated. When you try to stamp them out, Markets Happen Anyway.

We, the People of the United States, having discovered that many of the concepts of the Founders have been lost or deprecated in the years since this Constitution was first conceived and adopted, hereby provide, for the guidance of those charged with interpreting the Law, the following clarifications and definitions of terms.

  1. The Sovereignty of the United States of America is embodied in the People, and only in the People; and the People of the United States of America do not yield up that Sovereignty under color of any interpretation of Law; save that we, the People, abjure the keeping of persons in involuntary servitude, except for a defined period of years as punishment for crimes committed.
  2. This Constitution does not define or enumerate the Rights of the People, which are the Rights, Privileges, and Perquisites of the Sovereign; the enumeration of certain Rights in this Constitution, and in the articles added by Amendment, represents the judgement of the Founders, since amply validated, that those Rights are the Rights most likely to be encroached upon by untrammeled Government, and deserve special mention to forbid such encroachment; and arguing that the Rights thus enumerated are the entire and exclusive Rights of the People, with others not deserving of protection, precisely inverts the original intent.
  3. This Constitution defines and enumerates the Powers and Privileges of the Government of the United States, completely and without exception; any argument that some Power not herein enumerated is implied by, or exists as a consequence of, a Power that is enumerated should be regarded with the greatest suspicion and doubt, and any conclusion reached as a result must be construed as narrowly as possible; and, the Founders having intended a new approach to Government, any argument that a Power necessarily exists because it is a normal and customary Power of Government in History or the World is inapplicable to the United States upon its face.
  4. The Officers, Officials, and Functionaries of Government, together with the Employees and Agents they find necessary to the performance of their duties, are hirelings, tasked with discharging those Obligations and performing those Duties of Sovereignty which the People find onerous or inconvenient, and hold in abeyance pending the performance of their hirelings; and the Powers, Rights, Privileges, Perquisites, Responsibilities, Obligations, and Duties of such a Functionary or Official are those of the Sovereign People, which they hold in their own right as one of the People; no person gains, by virtue of Office or any other circumstance, any power, right, privilege, or perquisite of Sovereignty not fully possessed by each and all of the People.
  5. Nothing in this Constitution shall be interpreted or construed to grant any Person the Right to the produce of another, or of the People, save minor children entitled to the support of their parents, without full and informed consent and agreement among all parties.
  6. Every declaration, order, rule, or proclamation, however styled or construed, for violation or nonperformance of which any Person may be deprived of life, liberty, or property in any degree, is a Law, and every Law of the United States shall be placed before, and debated and passed by, the Congress; Regulations drawn up by unelected functionaries, and having the force of Law upon their face, are null and void in every respect.
  7. A Crime is the act or acts of a Person or Persons, which results in loss of life, liberty, or property in any degree, or of the ability to pursue Happiness in any material degree, of another Person, without the informed consent of the Person or Persons suffering such loss; but no act which does not result in such loss is a Crime, and in particular the Congress shall make no law, and no law made shall stand, forbidding an act which is not itself a Crime, on the ground that it is held to be a precursor to Crime.
  8. Every act which is a Crime under the laws of the United States, or of the State in which it was committed, when done by any Person, is equally a Crime, of the same severity, when done by an official or other hireling of Government; and, in addition, constitutes in the latter case the high crime of Betrayal of the Public Trust, which is of a severity equal to that of the basest Felony, and the punishment for which is, at minimum, removal from Office or employment, with prejudice against the violator’s holding further Office or employment.
  9. The Quality which distinguishes a Jury from all other assemblages of Persons is the power to declare a person accused before the Law innocent of Wrongdoing, whether or not in violation of Law or Statute; and, this Power being held as of greater moment, as a check upon arbitrary or capricious prosecution or Law, than the occasional abuses to which it may be put, no assembly of Persons lacking that power constitutes a Jury under this Constitution.
  10. Persons who are Citizens of the United States of full majority, as specified by the Laws of the United States, are Electors, directly of the Representative and Senators in whose district and State they reside, and indirectly of the President through the Electoral College; Persons who are not Citizens of full majority under the Law are not Electors; but this Constitution does not otherwise distinguish between those Persons who are Citizens and those who are not.
  11. Representatives shall be selected by Districts of defined geographic extent, and such Districts shall be drawn for the convenience of the Electors, and for no other purpose; if one-tenth of the Electors of any State shall petition the Supreme Court to declare that the Districts of that State are wrongly drawn, the Court shall hear arguments and rule on the matter before any other Business; and, if the Court decides that the Districts were drawn for any purpose other than the convenience of the Electors, including but not limited to the race, creed, color, ethnicity, origin, or Party allegiance of the Electors therein, the Districts are declared invalid and must be redrawn before the convening of the next Congress; and no Representative of that State is elegible for re-election, or for election or appointment to any Office of trust or profit of the United States, until another Congress shall be elected, convened, and adjourned sine die pending convening of the next.
  12. The number of Representatives shall be calculated as follows: Multiply the number of Citizens who are Electors in the United States by three, divide by the number of Citizens who are Electors in the least populous State, add one-half, and truncate to a whole number. Arguments that the resulting Body is cumbersome, or overstretches the facilities provided for its use, will not be heard.
  13. Interstate commerce is the actual movement of goods, services, or information, in any combination, among the several States; the Regulation thereof consists of specifying the kind and quality of the goods, services, or information which may so move, the conditions and circumstances under which movement is or is not permitted, and the duties, imposts, and fees attendant upon such movement; but neither surmise nor full knowledge that a similar or identical good, service, or datum has crossed or may cross a State border in the past or the future renders transactions occurring entirely within a State subject to regulation by the Congress of the United States.
  14. Having determined, by experiment, that limiting the Terms of the President produces on the whole a good result, the principle is hereby extended to the Senators, Representatives, and those persons holding Office by appointment with the advice and consent of the Senate; accordingly, no person shall hold such Office for more than twelve years, nor shall any person hold any combination of such Offices, including the Presidency, for more than twenty years, during life; except Judges serving during good behavior.
  15. In the Law, verbosity, complexity, ambiguity, length, and failure of accordance with other Laws, are sources of inequity, lending themselves to arbitrary and capricious prosecution; and complaint of such qualities in the Law, if found validly applicable, is a sufficient defense.

UPDATE 28 Sept 2009: The always interesting Beldar has a few thoughts on the subject. Some of his commenters agree with me 🙂