Judge Ketanji Brown Jackson may not be an originalist, but she sounded like one in her confirmation hearings this week. “I believe that the Constitution is fixed in its meaning,” she said on Tuesday. “I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.”
Even a nominee chosen by a Democratic president and facing a Democratic Senate felt it was necessary to say that she would adhere to the original public meaning of the text. To appreciate the significance of this development requires a bit of history.
Robert Bork described himself explicitly as an “originalist” when President Reagan nominated him to the high court in 1987. Democratic senators characterized originalism as a dangerously reactionary philosophy that would “turn back the clock” on civil rights and liberties. After the Senate rejected Bork, no Republican nominee adopted the label “originalist” until Neil Gorsuch, 30 years later. Since 2017, however, Brett Kavanaugh and Amy Coney Barrett also explicitly identified as originalists.
Capitalism: This word is the magic eraser of arguments. It wipes away any opposing argument by evoking images of bankers wearing top hats and monocles, all the better to see their filthy lucre. If your teachers’ union wants a raise, just yell, “Our fight is against capitalism.” No one will realize that you’re the one after money.
Justice: This word is the butter of arguments. It makes any demand palatable because it is accompanied by something everyone knows is pleasing. When an educator uses the term “grading justice,” we know it’s fabulous. Why assess learning with uniform standards when you can achieve political goals using children?
One of the first principles I taught my students in my economics courses was the power of “thinking on the margin.” Appropriately, Rhoads has a chapter titled “Marginalism.” He points out that many people think of medical care as something that everyone needs and they fail to think about the components of health care. Few would deny that a person with acute appendicitis needs an appendectomy, but many other forms of health care are not so clear‐cut. Do I “need” to have two checkups every year or would one do? People’s answers to such questions, notes Rhoads, depend on how much of the cost they bear. He describes one experiment in which a group of beneficiaries of Medi‐Cal (California’s Medicaid program) had to pay $1 for their first two office visits each month. Another group did not have to make this small co‐pay. The result? Office visits for the first group were 8% lower than for the second group. Time costs matter, too, because those are borne totally by beneficiaries. Rhoads notes that when one college’s health facility was moved so that it took students 20 minutes to get there rather than the previous 5–10 minutes, student visits fell by almost 40%! What Rhoads doesn’t say but clearly must be thinking is that when people cut back on their health office visits, they are cutting back on the least important visits — that is, the marginal ones.
He ends the chapter by noting Nobel economics laureate James Buchanan’s claim that you can distinguish between economists and non‐economists by their reaction to the statement, “Anything that’s worth doing is worth doing well.” Economists point out that we don’t need to do everything well. So‐so works in many instances. I don’t completely sweep around our two kitty litter boxes every morning, for example. Sometimes I wait a day, and that’s good enough.
(DBx: I believe that the economist who most famously disputed the wisdom of the ‘Anything that’s worth doing is worth doing well’ aphorism is Gordon Tullock, not Jim Buchanan – although Buchanan certainly agreed.)
Arnold Kling’s understanding of human rationality and decision-making is deep. Here’s his rational – and wise – conclusion:
But when economy-wide inflation breaks out, there is disagreement even among credentialed economists over its causes and treatments. I believe that the inflationary course was set by President Trump’s policies. But that does not mean that those who voted for Mr. Trump in 2016 will say to themselves “Aha. I was wrong.” Perhaps they would say that, all things considered, they still think that Mr. Trump was the right choice. And even if they were to view their 2016 vote as an error, what correction should they make now? When it comes to inflation, switching to the Democrats, whose policies probably made inflation worse, is hardly the answer.
In short, I believe that collective choice means bad choice. We treat voting as a sacred ritual. Then we elect officials who scare us into handing more decisions over to government. We put unwarranted faith in our right to vote, while letting too many of our other rights get taken away.