The Federalist Papers #43: The United States Constitution as a Commitment to Democracy at the State Level—James Madison

In the The Federalist Papers #43, James Madison defends a continuity-of-debt-obligations principle and gives a justification for miscellaneous powers of the federal government in the proposed constitution, such as establishing a federal district (which became Washington D.C.), owning property within states, patent law, establishing new states (but only with the permission of states whose territory is involved, if any) and establishing treason law within limits. And he addresses four very interesting provisions of the proposed constitution:

  1. It is ratified by the people, not by state legislatures. James Madison writes that that is important because otherwise:

    • It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification.

    • A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties.

    • … a breach of any one article is a breach of the whole treaty ..

  2. The constitution can be amended. Here James Madison may underestimate how difficult it will be to amend the constitution:

    • It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.

  3. The amendment process cannot touch the non-population-based, two senators per state rule. This untouchable rule has been criticized lately as counter to democracy.

  4. States would be committing through the proposed constitution to democratic government at the state level, with the federal government empowered to intervene if democratic state government should ever be in peril in a state. James Madison argues:

    • In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be SUBSTANTIALLY maintained.

    • In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame?

    • Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, "that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound."

    • Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it.

    • Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword?

Awkwardly or worse from a modern point of view, James Madison also argues that the federal government might need to defend a minority with voting rights against a disenfranchised majority:

  • May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves.

Thus, in James Madison’s interpretation, the preservation of a “republican form of government” can include the preservation of an aristocracy of a minority who have voting rights.

James Madison underestimated the likelihood of a civil war pervading a large chunk of the United States:

  • … it is fortunately not within the compass of human probability …

But he had it right that, as John Locke would say, such things must be given over to the determination of military arms and to heaven:

  • Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies … it is a sufficient recommendation of the federal Constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure.

In some sense, the US Civil War—and more fundamentally its internal contradiction of slavery—broke the Constitution; then it was put back together in a new form. The key 13th, 14th and 15th amendments would never have been ratified without the formerly Confederate states being conquered and required to ratify as a condition of coming back into good standing. Even then, the internal contradiction between a belief in equality and racism continued to infect the body politic—for a long time in the very obvious blot of Jim Crow.

Nevertheless, it was quite an accomplishment to get the original, quite flawed, Constitution adopted at all. It isn’t good to let the perfect be the enemy of the better. The Constitution was better than the Articles of Confederation. And it set the stage for the yet better Constitution we have today. The Constitution only became minimally consistent with justice after the 13th, 14th and 15th amendments. Even then, that basic level of justice was only on paper; it required most of a century for those amendments to take on anything approaching the full force they should have.

Below is the full text of the Federalist Papers #43.

FEDERALIST NO. 43

The Same Subject Continued: The Powers Conferred by the Constitution Further Considered

For the Independent Journal.

Author: James Madison

To the People of the State of New York:

THE FOURTH class comprises the following miscellaneous powers:1. A power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries. "The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.

The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress. 2. "To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislatures of the States in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. "The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated. The necessity of a like authority over forts, magazines, etc. , established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated, by requiring the concurrence of the States concerned, in every such establishment. 3. "To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained. "As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author. 4. "To admit new States into the Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress. "In the articles of Confederation, no provision is found on this important subject. Canada was to be admitted of right, on her joining in the measures of the United States; and the other COLONIES, by which were evidently meant the other British colonies, at the discretion of nine States. The eventual establishment of NEW STATES seems to have been overlooked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which Congress have been led by it. With great propriety, therefore, has the new system supplied the defect. The general precaution, that no new States shall be formed, without the concurrence of the federal authority, and that of the States concerned, is consonant to the principles which ought to govern such transactions. The particular precaution against the erection of new States, by the partition of a State without its consent, quiets the jealousy of the larger States; as that of the smaller is quieted by a like precaution, against a junction of States without their consent. 5. "To dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with a proviso, that nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. "This is a power of very great importance, and required by considerations similar to those which show the propriety of the former. The proviso annexed is proper in itself, and was probably rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public. 6. "To guarantee to every State in the Union a republican form of government; to protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence. "In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be SUBSTANTIALLY maintained. But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution? Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. "As the confederate republic of Germany," says Montesquieu, "consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland. " "Greece was undone," he adds, "as soon as the king of Macedon obtained a seat among the Amphictyons. " In the latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence on the events. It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. But the authority extends no further than to a GUARANTY of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance.

A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature. At first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government; and consequently, that the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other.

Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it. Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election!

May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves. In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal Constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure. Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, "that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. "7. "To consider all debts contracted, and engagements entered into, before the adoption of this Constitution, as being no less valid against the United States, under this Constitution, than under the Confederation. "This can only be considered as a declaratory proposition; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its moral obligations. Among the lesser criticisms which have been exercised on the Constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the United States, as well as against them; and in the spirit which usually characterizes little critics, the omission has been transformed and magnified into a plot against the national rights. The authors of this discovery may be told, what few others need to be informed of, that as engagements are in their nature reciprocal, an assertion of their validity on one side, necessarily involves a validity on the other side; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. They may be further told, that every constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger can exist that the government would DARE, with, or even without, this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned. 8. "To provide for amendments to be ratified by three fourths of the States under two exceptions only. "That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. The exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it. 9. "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same. "This article speaks for itself.

The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable. Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it? The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. PERHAPS, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other.

PUBLIUS.

Links to my other posts on The Federalist Papers so far:

Encouraging Cost-Saving Innovations in Health Care by Redistributive Health Savings Accounts

Link to the article shown above

The progress of medical understanding means that more and more diagnoses and treatments are routine. With supportive government policy, everything that is routine in health care can be hived off from hospitals and regular doctors offices to specialized health care providers who only do those routine things. And that specialization allows productivity improvements that bring down costs. This is already happening: the number of health treatments you can get at your local pharmacy has been increasing. For example, many people have gotten some of their Covid vaccinations at the drug store rather than in a doctor’s office. These pharmacy-based health treatments are generally quite inexpensive.

This is path of hope for lower health care costs mapped out by Clay Christensen and his coauthors in an excellent books The Innovator’s Prescription. I wrote a series of posts a while back inspired by that book. See:

As it is, pharmacies have to negotiate with insurance companies. One way to encourage even more hiving off of routine health diagnoses and treatments to pharmacies (beyond regulations that allow it) is give people money for health care that is otherwise unrestricted.

Currently, there is a lot of activism in favor of a bit of basic income. For example, child allowances may become standard policy in the US. If some of that reasonable urge toward redistribution could give people money in health savings accounts, it could encourage the development of more low-cost medical care because people would do some comparison shopping across different pharmacies to conserve their health-savings account dollars.

As things stand, health-savings accounts mainly benefit those who are quite savvy about getting legal tax breaks. Health savings accounts could become something that benefitted the poor greatly if they had government transfers directly into those accounts. Inexpensive treatments could be dropped from Medicaid and the poor would still be better off because of the better choices they would have.

Some of the extra choices people would get from having health savings account funds from the government would come from a political dynamic of lobbying for more types of health treatments to be payable from those health savings accounts. The argument that it is people’s own money would likely lead by this political gravitation to more choices for use of the health savings accounts than the choices available through Medicaid. For example, Medicaid doesn’t always cover nutritional counseling (it depends on the state and on the particular health maintenance organization), despite how many chronic diseases are caused by bad eating habits. I would be surprised if people weren’t ultimately allowed to use funds from health savings accounts to pay for nutritional counseling. And Medicaid does not cover chiropractic care as freely as I think is optimal as a policy matter. With government transfers into health savings accounts of a fixed size, people could be given that freedom with the government having to worry about out-of-control explosion of extra spending from people getting valuable chiropractic care.

Many people have an almost inborn urge to want to control other people. We should always be on the lookout for this urge in the public policy arena. Freedom is good. We policy wonks should act like it. The blessings of freedom don’t always override other concerns, but they should weigh a lot in the balance.

Geriatrics: The Grim Good Magic of Setting Priorities in Old Age

Economics is about tradeoffs. People want many things and care about many things. Indeed, we want so many things and care about so many things that it is extremely unlikely we will ever get them all. We have to choose.

Professionals in any area become enamored of the particular outcomes they focus on improving. This is as true of medicine as any other professional area. Because death, despite its inevitable, seems like the ultimate defeat to doctors, they face the temptation of pushing people toward prolonging life at the expense of other things people value. This can steer doctors wrong toward the end of patients lives, when patients often value the freedom to do some things they want to do in their remaining time more than a few extra months.

Atul Gawande’s wonderful book Being Mortal is on this theme: people rightly rebel at being told they must always play it safe and always put medical concerns first in their final years. (All the quotations in this post are from that book.)

There are other issues with medical judgment for older patients. Even within strictly medical outcomes, doctors not trained in geriatrics (old-age medicine) often have trouble setting clear priorities. For example, avoiding falls is crucial. Atul Gawande writes:

Each year, about 350,000 Americans fall and break a hip. Of those, 40 percent end up in a nursing home, and 20 percent are never able to walk again. The three primary risk factors for falling are poor balance, taking more than four prescription medications, and muscle weakness. Elderly people without these risk factors have a 12 percent chance of falling in a year. Those with all three risk factors have almost a 100 percent chance.

I think often about the danger of falls in my future; I regularly do balance exercises. (See “Learning to Do Deep Knee Bends Balanced on One Foot.”)

Specialized training in geriatrics helps doctors do a much better job in making the lives of older patients better:

Several years ago, researchers at the University of Minnesota identified 568 men and women over the age of seventy who were living independently but were at high risk of becoming disabled because of chronic health problems, recent illness, or cognitive changes. With their permission, the researchers randomly assigned half of them to see a team of geriatric nurses and doctors—a team dedicated to the art and science of managing old age. The others were asked to see their usual physician, who was notified of their high-risk status. Within eighteen months, 10 percent of the patients in both groups had died. But the patients who had seen a geriatrics team were a quarter less likely to become disabled and half as likely to develop depression. They were 40 percent less likely to require home health services.

These were stunning results. If scientists came up with a device—call it an automatic defrailer—that wouldn’t extend your life but would slash the likelihood you’d end up in a nursing home or miserable with depression, we’d be clamoring for it. We wouldn’t care if doctors had to open up your chest and plug the thing into your heart. We’d have pink-ribbon campaigns to get one for every person over seventy-five. Congress would be holding hearings demanding to know why forty-year-olds couldn’t get them installed. Medical students would be jockeying to become defrailulation specialists, and Wall Street would be bidding up company stock prices.

Instead, it was just geriatrics. The geriatric teams weren’t doing lung biopsies or back surgery or insertion of automatic defrailers. What they did was to simplify medications. They saw that arthritis was controlled. They made sure toenails were trimmed and meals were square. They looked for worrisome signs of isolation and had a social worker check that the patient’s home was safe.

Unfortunately, geriatrics gets low reimbursement, low pay and little respect. The government has mismanaged its price. This puts us in a crisis as the population continues to age. Here is the situation and remaining hope:

I asked Chad Boult, the geriatrics professor, what could be done to ensure that there are enough geriatricians for the surging elderly population. “Nothing,” he said. “It’s too late.” Creating geriatric specialists takes time, and we already have far too few. In a year, fewer than three hundred doctors will complete geriatrics training in the United States, not nearly enough to replace the geriatricians going into retirement, let alone meet the needs of the next decade. Geriatric psychiatrists, nurses, and social workers are equally needed, and in no better supply. The situation in countries outside the United States appears to be little different. In many, it is worse.

Yet Boult believes that we still have time for another strategy: he would direct geriatricians toward training all primary care doctors and nurses in caring for the very old, instead of providing the care themselves.

In dealing with older folks, what doctors with no geriatrics sensibility is to try to fix everything. But every fix has potential side effects. Tradeoffs mean that patient preferences have to be consulted. But, interestingly, experience Atul recounts in Being Mortal by those who are especially good at working through decisions with patients makes it clear it is better to ask people about their preferences in general terms (“What is important to you?”) before talking in detail about the particular decision a patient faces. Indeed, the recommended type of interaction with patients sounds for all the world like what I do (totally non-medical contexts) as a part-time Co-Active Coach. (See “Co-Active Coaching as a Tool for Maximizing Utility—Getting Where You Want in Life” and the other links at the bottom of “Zen Koan Practice with Miles Kimball: 'I Don't Know What All This Is')

Optimizing-subject-to-constraint needs the right objective function, which for most people is much more complex than simply maximizing lifespan. Optimizing-subject-to-constraint also needs a clear recognition and understanding of the constraints. Admitting to ourselves the doom of mortality that hangs over our flesh-and-blood bodies—and the bodily breakdown likely to presage that end—is an important part of seeing the constraints clearly.

For organized links to other posts on diet and health, see:

Zen Koan Practice with Miles Kimball: 'I Don't Know What All This Is'

I have heard that instruction in Zen is often hardcore. Some Zen instructors may well be like drill sergeants, but Henry Shukman’s course within Sam Harris’s “Waking Up” app is wonderful. I highly recommend it. Henry Shukman does give some instruction on proper Zen posture, but I simply ignore that, and pay attention to everything else.

A Zen koan is a word, a phrase, a sentence or a little story designed to have a revelatory effect on the mind, without necessarily making any literal sense. Paradox is a way to knock the mind out of its accustomed ruts without ever needing to find a solution to the paradox.

Henry Shukman is great at explaining some of the principles of Zen that are reasonably easy to explain. For example, Zen encourages you to identify with your entire sensorium—everything they see, hear, taste, smell or feel at any given moment—rather than the human-shaped object within your sensorium. (“Who Am I?” is a koan that gets at that fairly directly.) That is only a fraction of what Zen reveals; that much all by it self is a great liberation. What seems to be “out there” is really inside your mind—not because there are no “things-in-themselves,” but because what you actually perceive are highly processed in-your-mind representations of those things. “Mind is nothing but the rivers, the mountains, and the whole wide earth; the sun, the moon and the stars.” Rather than being isolated Cartesian minds, our minds naturally connect us to all of the things around us that matter to us, where what matters to us (both animate and inaminate) has a long evolutionary history going back through millions of years of interaction.

Another key principle of Zen is “ordinary mind” and its emphasis on the transcendent beauty of ordinary objects. As such, Zen can easily fit within one’s regular life: whatever your days are like already, in any outward sense, there is transcendent beauty to be seen within that day.

Closely related to the principle of “ordinary mind” is the principle of “beginner’s mind.” I used to think “beginner’s mind” referred to the kind of openness I discuss in “Open Skepticism and Closed Skepticism.” It is something else. It is experiencing each moment as if it were the first time you had ever experienced anything like it. Instead of anticipating what is coming a second ahead of it’s happening and overlaying that expectation on what is happening, just see what is there. It may be much different, much more intricate and hence much more beautiful than anything you had imagined. (This might be hard to do without listening to some instruction in Zen from someone like Henry Shukman.)

“Beginner’s mind” reminds me of a principle I learned in a Landmark Education Communication Course of listening to someone like you don’t know what they are going to say. That simple practice can be surprisingly powerful.

In addition to listening to Henry Shukman’s course in the “Waking Up” app for the 3d time now, and buying one of the many collections of koans out there (I bought Entangling Vines), Henry is so clear in explaining how koans work that I feel I can invent koans of my own. Fortunately, as far as I know, Colorado has no occupational licensing laws for an upstart internet Zen master :)

The koan I have in mind today is one that works great when you are out and about doing whatever you normally do in your life. I have been using it on my daily walks, but you could use it during many other activities as well. It is an encouragement to beginner’s mind. I say to myself repeatedly:

I don’t know what all this is.

A variation on the theme of trying to see everything new that I also say to myself is:

I know what my feet should do, but I don’t know where I am.

With Zen koans, you don’t have to try to think or feel any particular way, just say the koan to yourself repeatedly and see what happens. These particular koans are intended to go along with other activities rather than to be used in any kind of sitting meditation. They are working for me, but I don’t know whether or not they will work as entry-level koans, without other koan practice first. Try them and see!

Posts on Positive Mental Health and Maintaining One’s Moral Compass:

An Altruism Paradox in Our Attitudes toward Foreigners

As I discuss in “What is a Supply-Side Liberal?” and “Inequality Aversion Utility Functions: Would $1000 Mean More to a Poorer Family than $4000 to One Twice as Rich?” Most Americans have an inequality aversion above two. That means that they assess a dollar to a family twice as rich as making only a quarter the difference to the lives of those in the richer family. Conversely, to a family living on a tenth the income, a dollar would make one hundred times the difference to their lives that it would mean to a family ten times richer than they are. Even if we decided that foreigners should have a welfare weight only one hundredth as big as an American citizen (something I call “The Aluminum Rule” because it is a far cry from the Golden Rule of loving one’s neighbor as oneself), there are many foreigners so poor that they would matter a lot in welfare calculations. As far as I can tell, our policies don’t follow the Aluminum Rule. They seem to follow something more like the “Dirt Rule” of treating poor foreigners like dirt when they show up at our borders, with a welfare weight far below .01 times the welfare weight of an American citizen.

So it comes as a surprise that as a nation we slow-walked booster shots for Americans in order to free up more vaccination shots for folks abroad. (I talk about this more in “Lying is Bad.”) Unlike dollars, that are worth more to people who have fewer of them, life versus death counts about the same for a rich person as a poor person. So if we had that attitude for citizens and then followed the intermediate Aluminum Rule of a .01 welfare weight on non-citizens, we wouldn’t be shipping vaccine doses abroad when there are supply shortages. However, it seems that rather than following this logic, people have much more sympathy for folks abroad who might die from Covid-19 than folks abroad who face an elevated risk of dying from abject poverty and a lot of poverty misery along the way who just want a chance to work in a decent country like ours. We are getting closer to the Golden Rule than to the Aluminum rule for getting vaccines to poor folks in other countries, but follow the Dirt Rule when poor folks in other countries want to immigrate to the US. What is going on?

For more on the moral dimensions of immigration policy, see:

Processed Food is Our Evil Overlord

Most of what we as a nation eat is processed food—or technically “ultra-processed food”—to use the nutritionists’ term that allows for the fact that, for example, even triple-washed spinach is technically “processed.” This is pretty much anything that is in a package or can and has a nutritional label on it. Matthew Rees’s November 3, 2021 review of The End of Craving by Mark Schatzker summarizes it this way:

58% of calories in the American adult diet come from ultra-processed foods, 67% among children and adolescents. Such foods—prepared meats, potato chips and other snacks, really almost anything in a package—are high in sugar, salt or fat. Many also contain a witch’s brew of ingredients that make nutrition labels unintelligible: sucralose, methylcelluloses, saccharin, microparticulated protein, Solka-Floc, maltodextrins, carrageenan.

Other than transfats which are very unhealthy, I tend to think dietary fat isn’t as bad as all that, and that even salt has been overly demonized. But sugar is a slow poison. I have often pointed out that, as things stand, it isn’t easy to distinguish between going off of sugar and going off of processed foods because such a high fraction of processed food has sugar as a major ingredient. (And the most common nonsugar sweeteners in processed foods are pretty bad, too. See “Which Nonsugar Sweeteners are OK? An Insulin-Index Perspective.”) And many of the other ingredients in processed food are suspect, if only because they haven’t had a chance to be tested by time in the way things humans have eaten for centuries have been tested by time. The objective function of trying to hook people on the particular processed foods a given company is making is also likely to push processed food toward extremes one should worry about.

The End of Craving has an additional hypothesis about how processed food could mess us up. As Matthew Rees summarizes it:

Consuming foods and beverages that have been designed to fool the brain into believing that it has received nutrition when it hasn’t, says Mr. Schatzker, stimulates a desire to consume more of them. Cravings follow, and they’re satisfied with the supersize concoctions that have become a defining—and depressing—feature of America’s food landscape…. The portion size of entrées at U.S. fast-food outlets, in roughly the past three decades, has grown 24%.

Could it be that fake food—a.k.a. processed food—often isn’t very satisfying? Mark Schatzker goes there:

For inspiration, he travels to Italy to determine why people there have a healthier relation to food—and a lower obesity rate (under 8% in the north). There’s no simple explanation, but he approvingly quotes a chef in Bologna who says: “It comes down to the difference between feeding and eating. . . . Italians don’t want just to feed themselves, they want to eat. . . . They want an experience.”

Mark Schatzker also has a more out-there theory:

In Mr. Schatzker’s telling, dietary deceptions are not the only reason for Americans’ girth. In the 1940s, he notes, the U.S. government began mandating that enriched flour be fortified with B vitamins. The policy continues today, resulting in Americans ingesting niacin and thiamin at levels that are well beyond what’s needed. Mr. Schatzker describes these vitamins as essential to calories being transformed into fuel, but he cautions that their excessive consumption results in the body metabolizing a higher share of calories. “With great obesity,” writes Mr. Schatzker, “comes great B vitamin intake.”

This sounds as if it assumes a simple calories-in/calories-out model. If more B vitamin intake means more calories are absorbed, that might be more satiating and then people would adjust the amount they ate. On the other hand, enriched flour is high in easily-digested starches that are quickly broken down by the body into sugar, and many baked products have sugar added to boot. Sugar causes an insulin spike that can mess up the appetite. So enriched flour could easily mess us up, but I’m doubtful that it is the vitamin enrichment that is messing us up.

I have inveighed against processed food before. See:

I attack sugar in these posts among many others:

For organized links to other posts on diet and health, see:

The Federalist Papers #42: Every Power of the Federal Government Must Be Justified—James Madison

The most important message of the Federalist Papers #42 is subtext: James Madison shows he believes that each individual power of the federal government in the proposed constitution needs to be justified. Not only is the federal government limited to a small, finite list of powers, the rationale for each power needs to be carefully examined.

Actually, that is a bit of an overstatement: James Madison felt certain powers for the federal government were uncontroversial. Separating quotations from the Federalist Papers #42 with added bullets, here are what James Madison thought were uncontroversial powers:

  • The powers to make treaties and to send and receive ambassadors, speak their own propriety.

  • … The power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government

  • The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration.

  • All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the Constitution has supplied a material omission in the articles of Confederation.

  • The punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both.

  • The regulation of weights and measures is transferred from the articles of Confederation, and is founded on like considerations with the preceding power of regulating coin.

  • The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question.

  • The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation.

  • The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency.

    Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.

James Madison considered some of these so uncontroversial that he had to make the case that they were still important:

… the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. A list of the cases in which Congress have been betrayed, or forced by the defects of the Confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new Constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old.

By contrast, James Madison felt certain other power were quite controversial:

  • It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed…. [James Madison then goes on to make a “Half a loaf is better than none” argument.] …

    Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America.

  • The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. [James Madison follows this with an extensive and detailed argument.]

  • [There is also a long argument supporting this claim:] The new Constitution has accordingly, with great propriety, made provision … authorizing the general government to establish a uniform rule of naturalization throughout the United States.

Of course, the design of limited enumerated powers that helped the framers of the US Constitution get that constitution ratified has not survived the centuries that have passed since then. The power to regulate interstate commerce, for example, has become close to an unlimited power. Very occasionally, the Supreme Court has put some limit on this power, but almost anything the federal government wants to do domestically is considered a legitimate regulation of interstate commerce. The now eliminated requirement for everyone to get health insurance in the original Obamacare legislation was one exception. Nonpurchase of insurance was deemed not “commerce” by the Supreme Court. The penalty for nonpurchase of insurance was, however, justified as an exercise of the power to levy a wide variety of taxes ever since the 16th Amendment was ratified.

The currently ascendant “Public Meaning Originalism” in constitutional interpretation maintains that the words of the US Constitution should be interpreted according to what those words would have meant to the people who ratified the Constitution, and the words of each amendment should be interpreted according to what those words would have meant to the people who ratified that amendment. Because it is the meaning of the words to those who read them and ratified them, not the meaning of the words to those who wrote them, it doesn’t require any psychologizing of those who wrote them.

I have a lot of sympathy for Public Meaning Originalism. It is important that we have a Constitution that is treated as constraining government actions rather than having a meaning so flexible that the government is allowed to do anything it decides to do. Without some fidelity to the original public meaning, it seems unlikely that that Constitution can keep constraining government actions.

Of course, there is the difficulty of knowing what the words in the Constitution and its amendments would mean to those ratifiers in relation to new things that have arisen since then if a representative sample of ratifiers were transported hundreds of years into their future, to the year 2021. For example, how would they want to apply those words to computer activities?

And what about cases in which the ratifiers would think they understood something that arose long after their deaths, but in fact wouldn’t understand it very well? I am thinking here of the Fed as the US central bank. Folks transported from the past might think of it as a version of the Bank of the United States. But the Fed is a dramatically different creature.

One more big issue in constitutional interpretation is that whenever the Supreme Court has gone against original public meaning in the past, it creates a conflict in the present between the original public meaning and the desire for continuity embodied in the principle of following precedents. Do we really want to make ourselves worse off by destroying key institutions we have been used to for a long time through declaring them unconstitutional? Yet there is a lot of wisdom in the original constitutional design that should presumably have some gradually-applied influence even as against precedent.

All of these issues of constitutional interpretation come up when thinking of enumerated powers since that is an area where, arguably, what we do now has strayed the furthest from what people thought they were ratifying when they ratified the US Constitution and what people thought they were ratifying when they ratified relevant amendments to the US Constitution.

Below is the full text of the Federalist Papers #42:

FEDERALIST NO. 42

The Powers Conferred by the Constitution Further Considered

From the New York Packet
Tuesday, January 22, 1788.

Author: James Madison

To the People of the State of New York:

THE SECOND class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations. This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations. The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of Confederation, with this difference only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the States; and that a power of appointing and receiving "other public ministers and consuls," is expressly and very properly added to the former provision concerning ambassadors. The term ambassador, if taken strictly, as seems to be required by the second of the articles of Confederation, comprehends the highest grade only of public ministers, and excludes the grades which the United States will be most likely to prefer, where foreign embassies may be necessary. And under no latitude of construction will the term comprehend consuls. Yet it has been found expedient, and has been the practice of Congress, to employ the inferior grades of public ministers, and to send and receive consuls. It is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of American consuls into foreign countries may PERHAPS be covered under the authority, given by the ninth article of the Confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the United States. But the admission of consuls into the United States, where no previous treaty has stipulated it, seems to have been nowhere provided for. A supply of the omission is one of the lesser instances in which the convention have improved on the model before them. But the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. A list of the cases in which Congress have been betrayed, or forced by the defects of the Confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new Constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. The power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes.

A definition of felonies on the high seas is evidently requisite. Felony is a term of loose signification, even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper.

The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration. It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren!

Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government. The powers included in the THIRD class are those which provide for the harmony and proper intercourse among the States. Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and secureties of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads. The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the Constitution has supplied a material omission in the articles of Confederation. The authority of the existing Congress is restrained to the regulation of coin STRUCK by their own authority, or that of the respective States. It must be seen at once that the proposed uniformity in the VALUE of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States. The punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. The regulation of weights and measures is transferred from the articles of Confederation, and is founded on like considerations with the preceding power of regulating coin.

The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is declared "that the FREE INHABITANTS of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of FREE CITIZENS in the several States; and THE PEOPLE of each State shall, in every other, enjoy all the privileges of trade and commerce," etc. There is a confusion of language here, which is remarkable. Why the terms FREE INHABITANTS are used in one part of the article, FREE CITIZENS in another, and PEOPLE in another; or what was meant by superadding to "all privileges and immunities of free citizens," "all the privileges of trade and commerce," cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of FREE INHABITANTS of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of FREE CITIZENS of the latter; that is, to greater privileges than they may be entitled to in their own State: so that it may be in the power of a particular State, or rather every State is laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term "inhabitants" to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every other State. In one State, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States. The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question. The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction. The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency.

Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.

PUBLIUS.

Links to my other posts on The Federalist Papers so far:

Why I Am a Capitalist Roader

There are many things that are messed up in our economy and in our society. These things often get blamed on “Capitalism.” But it is the fundamental principles of Capitalism that are keeping things from being worse—much worse—than they are. Let me give you my version of the fundamental principles of fostering prosperity, among which the principles of Capitalism are an important part.

Making Benefitting Society the Only Way to Get Rich. The most fundamental principle for fostering prosperity is to develop institutions that make benefitting society the only way to get rich:

  • Property rights are an obvious part of this: if you are allowed to steal, then you have an obvious path to trying to get rich that doesn’t benefit society.

  • The same goes for prohibitions on extortion: if you can get paid by saying “I’ll torch your store if you don’t pay me protection money,” there is again an obvious path to trying to get rich that doesn’t benefit society. (Muggings are a simpler version of the same thing.)

  • Prohibiting lying is also important. Lying can be a way of getting rich at someone else’s expense instead of getting rich by benefitting society.

  • Note also that it is hard to have secrecy without being driven or tempted to lie to protect that secrecy. To the extent secrecy is allowed, it should be closely regulated in order to avoid bad consequences from deceptive secrecy that exceed benefits of secrecy. My own personal opinion is that our society is a bit too pro-secrecy. We act as if people have an inherent right to keep secrets without asking them to make the case that the right to keep secrets in a particular context is going to make the world a better place. A right to keep secrets in some contexts makes the world a better place. A right to keep secrets in other contexts makes the world worse—sometimes much worse.

  • In a complex economy such as ours, there are many other highly technical things we need to get right to make benefitting society the only way to get rich. As a society, we have been neglectful of this design problem in the last 50 years. An important chunk of criticisms of “Capitalism” are criticisms of this neglect. I give some examples in “Odious Wealth: The Outrage is Not So Much Over Inequality but All the Dubious Ways the Rich Got Richer.”

(Note that an indirect way to benefit society to enhance the rewards for people who directly benefit society. For example, family members play an important role here; many people have worked a lot harder because they had a family to support.)

The Free-Market Principle. The next principle for fostering prosperity is the free-market principle of staying close to allowing any two people who want to make a trade (often of money for work, a good or a service) to make a trade. The reasoning behind this is that if both people want to make the trade, it suggests they think that trade will make each of them better off. Why not let them both become better off?

Any departure from this free-market principle should bear a heavy burden of proof that it does enough good to warrant the harm of preventing pairs of people who want to trade from both becoming better off. The need for tax revenue to provide public goods combined with concerns about poverty can provide an adequate justification for some departure from this free-market principle (I discuss those concerns in my inaugural post “What is a Supply-Side Liberal?”) In practice, many departures from the free-market principle that people advocate and many that get enacted are quite ham-handed. (For example, I think there are better approaches than the minimum wage. See “Inequality Is About the Poor, Not About the Rich” and “Oren Cass on the Value of Work.”)

Interestingly, anti-trust and anti-monopoly policies are part of this free-market principle. The government often discourages mutually beneficial trades by policies such as anti-construction policies that keep house prices high and occupational licensing rules that ‘Keep the Riffraff Out!’ Private companies also often discourage mutually beneficial trades by making it costly for people to switch to buying from a competitor. This should be (and to some extent is) discouraged by law. A good example is that tech companies acting to make interoperability and portability difficult violates the free-market principle. Another example is noncompete agreements that try to prevent an employee from going to a competitor. (It is often claimed this is necessary to protect trade secrets. But noncompete agreements have been proliferating far beyond what is needed to protect trade secrets. And letting companies protect trade secrets has to be justified, as I mentioned above. Letting companies protect trade secrets is in the same category as letting companies get patents, copyrights and trademarks, which all raise non-trivial policy questions.)

Even immigration restrictions are a way of blocking mutually beneficial trades; excessive immigration restrictions badly violate the free-market principle. For example, one has to put a very low weight on the benefits immigrants get from coming to the United States to oppose a big increase in legal immigration that includes appropriate provisions for encouraging assimilation. (Note that this is about economic participation of immigrants. Rules for political assimilation of immigrants are a different question. On that question, experience suggests it is unwise to have a group permanently have second-class political status as is true for immigrants in many countries. I think, however, it is possible to have up to an 18-year delay in getting voting rights without having the harms that come from a group permanently having a second-class political status.)

The Magic of the Price System. In practice, even a quite imperfect application of the free-market principle leads to a price system emerging. Any trade of money for work, a good or a service has an obvious price. If there is any freedom in choosing the price at which trades happen, those prices will carry a lot of useful information. (This is true even when prices are legally set but people make blackmarket transactions ignoring those laws. The legally fixed price doesn’t carry much useful information, but the blackmarket price does.)

Justin Lahart’s October 15, 2021 Wall Street Journal article “At Times Like These, Inflation Isn’t All Bad” confuses relative price changes—some prices going up more than others—with inflation, which is all prices and wages going up in lockstep. But change “inflation” to “the price system giving smart signals to the economy through relative price changes” and his article becomes a wonderful paean to the price system. Relative price changes tell the economy which way we want it to adjust. Let me quote a few examples from his article, with different passages separated by added bullets:

  • The pandemic has brought about changes in what we want to spend our money on and where we want to live and work that could prove persistent. Appliance prices aren’t up just because of supply snarls, for example, but because the Covid crisis increased the appeal of suburban living. So even if supply chains get fixed, demand could still be hard to meet, with prices continuing to rise as a result.

  • … the pandemic brought on was a massive increase in demand for goods, versus services. At first, this seemed entirely temporary: People were buying more stuff like videogame consoles and groceries because they were hunkered down at home. But even though the vaccine rollout and the easing of Covid restrictions has increased demand for services such as restaurant meals, demand for goods has shown staying power.

    … That change in preferences is helping drive a divergence in inflation as well. Wednesday’s inflation report showed prices for consumer goods were up 9.1% from a year earlier, while services prices were up 3.2%. [That is, on average the prices of goods went up 5.9% relative to the prices of services.]

  • If more people keep working from home some of the time, for example, they will spend less money at lunch joints near their offices, and more on groceries.

    Similarly, if businesses continue to hold many client meetings virtually, they will spend less on travel, and more on tech equipment. Personal-computer makers are betting that a higher number of workers will need more than one computer as a result of remote-work arrangements, translating into higher PC demand post-pandemic.

  • More people moving to the suburbs or smaller cities, and people who live in the suburbs working from home more often, could equate to more demand that suburban and smaller-city businesses need to meet. There does appear to be a divergence in what is happening with prices depending on population size: Overall consumer prices in areas with over 2.5 million people were up 4.8% from a year earlier in September, while prices in areas with 2.5 million or fewer people were up 5.9%. [That is, on average prices in suburbs and smaller cities have gone up 1.1% relative to prices in large cities.]

  • Demand-driven price increases carry an important message to businesses that are benefiting from them: You can make even more money if you can supply more. That entails buying new equipment, opening new locations and, most important, hiring additional workers. Meanwhile, businesses that experience weaker demand often can’t lower prices, in part because cutting worker wages isn’t feasible.

  • … [relative price changes] can help facilitate the economy’s response to shifts like the current one because it encourages expansion where demand is rising. It also helps draw workers away from moribund businesses where wages aren’t rising because inflation is cutting into how much those workers’ paychecks can buy.

Capitalism: The Price System Operating Over Time and Across Projects. Capitalism proper is an extension of the price system across time. “Capital” means the things needed in advance for production and sales that will only be completed later. “Capital” can also mean the funds used to buy those things needed in advance for production and sales that will only be completed later. Occasionally, an entrepreneur will be able to provide those funds themself. But entrepreneurial talent and already having a pile of ready funds do not always go together. So typically an entrepreneur looks for investors to help fund a project. Some investors simply loan money (which might not get paid back if the borrowing company or individual goes bankrupt). Others buy stock so that they have an equity stake that is worth more the better the project does and worth less the worse the project does.

The great thing about capitalism is that investors will work hard to figure out which are the best projects to invest in. Projects that are likely to succeed financially and therefore provide investors the best return are more likely to be of substantial value to society than projects that are likely to fail financially.

So far, I have talked about new projects. Capitalism is also crucial for directing funds to things that should be scaled up and denying funds to things that should be allowed to gradually scale down.

Finally, a form of Capitalism I call “Vulture Capitalism” is extremely useful in helping to wind down outmoded activities that should be wound down more quickly. As I say in “Odious Wealth: The Outrage is Not So Much Over Inequality but All the Dubious Ways the Rich Got Richer,” being a vulture capitalist and firing a lot of people is so painful to most emotionally normal people that you might not want hang out with someone who finds this an attractive career, but vulture capitalists serve a very important social function of sending workers looking for jobs that are more valuable for society than the outmoded job they were in.

Vulture capitalism is something we do relatively effectively in the United States. Many other countries impede this winding down of outmoded activities by government regulation and their economies suffer for it. One of the key examples of this was the transformation of retail led by Walmart. The US economy grew a lot because of that transformation of retail. Other countries didn’t see the same growth and productivity improvements because they had policies that tried to prevent existing retailers from going under.

Getting Interest Rates Right. In addition to getting the right projects funded, a Capitalist economy needs to make sure that the total volume of funds demanded for projects equals to total volume of funds supplied at the relatively full level of employment called the “natural rate of employment.” The relevant set of prices are interest rates, including the extra “premia” that are added to safe short-term rate to compensate for risk and for funds being committed for a long term. (The interest rate implicit in stocks is sometimes called “the required return.” It includes a risk premium and a premium for a stock representing a long-term investment.)

In theory, getting interest rates right takes care of itself in the long run, but in the short run, getting the overall level of the whole panoply of interest rates right is the job of the central bank: the Fed in the US, the European Central Bank in the euro-zone, the Bank of England in the UK, the Bank of Japan in Japan, etc. Thus, as things have evolved and improved, central banks have become a crucial part of the workings of a Capitalist economy.

Even Partial Capitalism is Valuable. Nothing here is directly about politics. China is not a democracy. But China benefits from deploying many of these principles for fostering prosperity. It usually protects property rights. It allows people to get rich by benefitting Chinese society. It allows a lot of economic exchanges to take place quite freely. It benefits from the magic of the price system. Even though China does a lot of politically directing funds run through state-owned banks to state-owned firms, it does allows private firms to raise funds. So China doesn’t allow as much scope for Capitalism, but it gets a lot of mileage from the Capitalism that it does allow. China does have a central bank, the People’s Bank of China, but it also tries to get the total amount of funds demanded to equal the total amount of funds supplied at relatively full employment by ordering more or fewer loans by state-owned banks. Capitalism is so powerful that a little bit can go a long way. And the US benefits from having even more Capitalism. Although China’s population is enough bigger than that of the US that the total size of its economy might exceed the total size of the US economy sometime in the next few decades. (See the graphs in “Benjamin Franklin's Strategy to Make the US a Superpower Worked Once, Why Not Try It Again?) However, China is unlikely to match US GDP per person any time in my lifetime or yours.

Evaluating the Idea that Estrogen Replacement Therapy Causes Breast Cancer against the Bradford Hill Criteria

One false thing in the world is that the conventional wisdom says estrogen replacement therapy and the closely related hormone replacement therapy cause breast cancer on the basis of quite dicey evidence. It matters for women’s lives, especially because estrogen replacement therapy and hormone replacement therapy (which also has estrogen as a key ingredient) have many health benefits, as well as quality-of-life benefits. I have two previous posts on this:

These previous posts explain why the experimental evidence doesn’t say what the conventional wisdom seems to think it does.

As for non-experimental evidence, the Bradford Hill criteria are often used in medicine and other areas as a way to think about evidence for causality. The excellent book Estrogen Matters by Avrum Bluming and Carol Tavris (shown at the bottom of this post) contrasts how strong the Bradford Hill criteria look for the idea that smoking causes lung cancer and how weak they are for the idea that estrogen causes breast cancer. You can see a list of the 8 Bradford Hill criteria at the top of this post; Avrum Bluming and Carol Tavris use a somewhat different version of the Bradford Hill criteria, which also adds the ruling out of alternative explanations as a 9th criterion (about which they don’t have much to say). I’ll intersperse indented quotes from Estrogen Matters with my own commentary after each of the other eight points:

… Using Hill’s framework, is the link between estrogen and breast cancer supported?

Strength: The link is unsupported. Most of the correlations published by the WHI and other investigators were neither strong nor statistically significant by conventional standards.

Let me say here that there is also a lot of p-hacking going on to try to get to bare statistical significance or close.

Consistency: The link is unsupported. Most published reports find no consistently increased risk of breast cancer associated with ERT. On the contrary, the results could not be more inconsistent: Between 1975 and 2000, forty-five published studies examined the relationship between breast cancer and ERT. Of these, 82 percent found no increased risk; 13 percent found a very small increased risk; and 5 percent found a decreased risk. In that same twenty-five-year period, of twenty published studies of HRT, 80 percent found no increased risk, 10 percent found an increased risk, and 10 percent found a decreased risk.

This point speaks for itself.

Specificity: …

The link is unsupported. The overwhelming majority of breast cancer patients have never taken estrogen, and the vast majority of women who have taken hormones have never developed breast cancer.

The link isn’t specific, but specificity is mainly a test of causality when there is one main cause of something. When something is one cause among many, we should still worry about it even though it is not a “specific cause” in the Bradford Hill sense. So unlike the lack of statistical significance (“strength”) and consistency, I don’t see the lack of specificity as totally damning. However, many women may make decisions about estrogen replacement therapy based on the idea that the link with breast cancer is much stronger than indicated by “The overwhelming majority of breast cancer patients have never taken estrogen, and the vast majority of women who have taken hormones have never developed breast cancer.”

Temporal relationship: The link is unsupported. Taking estrogen does not always, or even frequently, precede the onset of the disease. The risk of breast cancer increases with age—even after menopause, when estrogen declines, and even among women who never took estrogen.

Here we have a natural experiment: estrogen goes down after menopause. The drop is often steep enough to make a regression-discontinuity analysis reasonable. Breast cancer risk shows no quick drop at menopause.

Dose-response relationship: The link is unsupported. Study after study finds no consistent increased risk of breast cancer in women who have taken ERT or HRT for five years, ten years, or fifteen years. If cumulative exposure to estrogen is a risk factor in breast cancer, why did the Nurses’ Health Study and the Million Women Study find that risk only among current users rather than past users? Some investigators assert that early menarche and late menopause, which would provide a woman with more exposure to estrogen in her lifetime, are associated with an increased risk of breast cancer. But they are not. Four separate studies have examined the breast cancer risks to women who started their periods between the ages of twelve and seventeen as compared to the risks for women whose periods started at age eleven or younger. In two of these studies, no differences in risk were found. In the other two, a significant reduction in risk was found only among women who started their periods at age seventeen and older; but they, like those whose menarche began before age eleven, represent a very small outlying percentage of the population. None of the comparisons for any of the other ages resulted in differences that were significant in any of the four studies.

Lifetime exposure to estrogen doesn’t seem to matter, which is strange, given that cancers often develop slowly.

Plausibility: The link is unsupported. Surely, the most disconfirming evidence for the claim that estrogen causes breast cancer is this: the administration of estrogen has been shown to have beneficial effects even in women with advanced breast cancer. For example, in 1944 Sir Alexander Haddow, director of the Institute for Cancer Research at the University of London, reported that 25 percent of his patients with advanced breast cancer improved when given high-dose estrogen,64 and other researchers subsequently have gotten the same or better results. Oncologist Bruno Massidda and his team at the University of Cagliari, Italy, reported remission in 50 percent of advanced breast cancer patients treated with estrogens, and so did Reshma Mahtani and colleagues at the Boca Raton Comprehensive Cancer Center. Gabriel N. Hortobagyi and colleagues at the MD Anderson Cancer Center reported that the most effective therapy for metastatic carcinoma of the breast was combined estrogen-progestin. James Ingle and colleagues at the Mayo Clinic demonstrated better survival among breast cancer patients treated with diethylstilbestrol (DES), a form of estrogen, compared to tamoxifen, as did Per Eystein Lønning and colleagues at Haukeland University Hospital in Norway. And the pioneer cancer researcher V. Craig Jordan and his research team demonstrated that both high and low doses of estrogen can shrink cancerous breast tumors.

Estrogen is actually a treatment for breast cancer!

Coherence: The link is unsupported. Using the mosaic method of knowledge, the more pieces we add, the clearer the overall image should become. That is what happened in confirming the relationship between smoking and lung cancer, and it is precisely what has not happened in the persistent efforts to confirm a relationship between estrogen and breast cancer.

The evidence just isn’t coming together. One can go too far by saying only one type of evidence (however equivocal) is worth paying attention to. Eventually, one should be able to make sense of the great bulk of the evidence—more complex evidence as well as cleaner evidence.

Experiment: The link is unsupported. In 1999, breast cancer rates began to decline. The WHI investigators claimed credit, maintaining that thanks to their 2002 warning that HRT was a cause of breast cancer, the number of women taking hormones plummeted—and thus did not develop breast cancer. However, their claim had several fundamental flaws. First, the decline began three years before the WHI published anything. Second, in Sweden and Norway, women stopped taking HRT at about the same rate that American women did but had no additional drop in rates of breast cancer. And third, because breast cancer usually takes years to become clinically detectable, how could a drop in the rate of breast cancer be related to stopping HRT one year prior? The WHI authors responded by saying that’s because when women went off estrogen, they removed a stimulus to the growth of already present but not yet detectable (subclinical) breast cancer. If that were so, however, the decreased incidence should have been confined to small, early, noninvasive breast cancers; it was not. It occurred almost entirely with invasive breast cancers.

Let me contrast this with a result that really did show something for another cancer. After the discovery that Helicobacter pylori caused stomach ulcers, the incidence of stomach cancer around the world went way down. That was a good piece of evidence that Helicobacter pylori can cause stomach cancer: the new treatment for stomach ulcers by antibiotics to kill Helicobacter pylori had the right timing to have reduced stomach cancer if Helicobacter pylori sometimes causes stomach cancer.

If estrogen causes breast cancer at all, it isn’t at all in the way that most people imagine. The way most people imagine has been clearly disproven.

For organized links to other posts on diet and health, see: