Saturday, March 19, 2011


Not always, but often.

Hurricanes, earthquakes, tsunamis, volcanic eruptions, floods—many big, bad things happen. To some, when they happen at the wrong place, always at the wrong time, the message is that natural forces, inevitably and invincibly, can overcome man-made cities or facilities, and that we are powerless to stop them. The message is one of fatalistic despair. Only one phenomenon is worse because it exists on a global scale: a falling sky.

The earthquake registering 8.9 on the Richter Scale and the 30-foot tsunami which it created caused thousands of deaths, devastated the east-central coast of Japan’s main island, and damaged a nuclear power site with six reactors. They recovery will take years and years. Some have concluded that the threat of severe accidents or disasters, with resulting radioactive releases, makes reliance on nuclear power as an alternative to fossil fuels problematic.

The arguments for and against nuclear power are another topic for another day. The simple facts are that the current nuclear power regime, now half a century old, provides a substantial amount of electrical power to the grids of many countries. This first regime reflects the false starts of a complex, nascent technology and an overconfident, emerging industry: many poor siting decisions, poor plant designs, poor reactor designs, poor accident-prevention or -mitigation strategies, and more.

Whether the second regime, now waiting for the right technological developments, economic conditions, and regulatory approval, can do better remains to be seen. My hope is qualified by an understanding that the problems with nuclear power have less to do with technology and more to do with management. Perhaps, a better way to put it is to say that the problems with nuclear power are the desire, here as elsewhere, for low-cost, short-cut, politically convenient solutions.

Consider the dikes built centuries ago to protect New Orleans. Modest upgrades over the years to protect the city against a Category III hurricane were far from perfect mainly because of poor design, poor materials, and poor equipment. But the major problem was the decision not to protect the city against a larger hurricane. The decision seemed like a good idea at the time because no larger hurricane had struck the area in centuries and because no one wanted to pay the costs of prevention or mitigation, which increase proportionately to estimates of the severity of the threat. Worse, it ignored the size and scope of the consequences to a growing population in a growing city, with an expanding, expensive residential, commercial, and industrial base. Unlike homeowners who increase their insurance coverage as their houses appreciate in value, government at all levels did not proportionately increase their protection and preparation as the city grew.

Or consider the Japanese government decision to site six nuclear power plants in an earthquake- and tsunami-prone area—most in Japan would be prone to one or the other, if not both. Given the risks, it might have stipulated earthquake-resistant designs capable of tolerating quakes one or more orders of magnitude greater than the greatest earthquake registered in the country, tsunami-resistant structures and above-crest support facilities, separate power sources for each plant, and separate, on-site water stored to flood each containment vessel. These and other stipulated features would have cost much more than current features did, but they would have spared the far greater costs of what can be recovered and, in the lives of thousands, what cannot be recovered.

Since we already have an old, large nuclear power regime, we will need a new, larger regime to meet future electrical energy demand, including displacement of fossil-fuel energy. This second regime must avoid the past’s cheaper and easier approach which ultimately jeopardizes safety, health, and the environment, not to mention the economy.

The biggest problem-avoiding strategy is to develop the second regime in a mixed-free-market manner. On the one hand, the industry pays its way, without guaranteed loans, subsidies, or liability caps. On the other hand, the government simultaneously does two things. One, it establishes and enforces regulations and standards reducing the probability or the consequences of natural disaster and human error. Two, it eliminates all energy taxes and all support of other energy industries so that the public faces the full, real costs of energy in any form. Let energy competition begin.

These points are the start of a national energy policy. A mixed-free-market in energy means that all forms of energy compete on a market-price-clearing basis. Thus: Energy industries pay their way—including all costs posed by the consequences of operations, disasters, or accidents—by setting prices to cover costs and make profits. Government regulates the energy industries to require that they build into their operations, facilities, and equipment whatever it takes to reduce risks to safety, health, and the environment from operations, disaster, or accident. It regulates the infrastructure for energy or fuel distribution to maintain reliability and efficiency. Finally, it conducts basic research to support industries’ applied research and development.

No one can prevent natural phenomena from occurring or accidents from happening. But we can prepare and act sensibly and safely. We can start by addressing fossil-fuel-energy industry conduct, its influence on government, and government efforts to encourage fossil-fuel-energy industries, all of which lead to realized threats to, and harmful effects on, the public. We have to encourage government officials to do the right thing, make energy industries pay their way, and make us pay taxes for the government to fully discharge its energy-related responsibilities.

Saturday, March 5, 2011


Motivated by anger at or hatred of the federal government, many on the far right invoke the Constitution to advance their political agenda. Contrary to long-established understandings, their interpretations derive from wishes in their head, not words on paper. Ironically, their interpretations, if implemented, would change America from a democratic republic to a corporate oligarchy.

Instead of accepting the ratified Constitution, with 27 ratified amendments, these partisans advocate one from several so-called Constitutions: the original Constitution, without amendments; the early Constitution, with 10 “Bill of Rights” amendments; or various “Constitutions” picking and choosing among later amendments. All reflect nostalgic sentiment or “originalist” philosophy.

Those familiar with legal phantasms understand originalism as a specious doctrine which holds that judicial interpretations of the Constitution must follow the meanings intended by its original architects and that what the Constitution does not mention does not exist. We can only imperfectly ascertain original meanings from historical records. Even so, original meanings do not preclude evolving meanings as circumstances change. Paradoxically, the Constitution’s original architects were not originalists; they specifically provided for adjudication of its meaning (ambiguous, vague, or novel situations) by a Supreme Court (Article III) and by Constitutional amendment (Article V).

Originalism suffers not only from Constitutional provisions for evolution, but also from deficiencies of rigid literalism.

Instance: Article I, Section 9, provides that the government shall neither prefer one port over another nor direct vessels to one port instead of another. Since the term “vessel” applies only to boats or ships, and the term “port” only to harbors, originalism leaves the government free to do as it pleases with trains, buses, and planes, and their facilities.

Instance: Article II, Section 2, declares the President to be the “Commander in Chief of the Army and Navy” (and “the Militia of the several states”). Originalists would argue from the fact of omission that he is not commander in chief of the Air Force. Someone else could command it, and, if he disagreed with the president, put this service at odds, if not at war, with the others or with the government itself.

Originalists distort and misrepresent the Constitution to serve their politics.

Instance: They ignore the unamended Constitution when they interpret the Second Amendment. Article I, Section 8, gives Congress power for calling up “Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” and for “organizing, arming, and disciplining, the Militia”; and allows states only to appoint officers and train the militia “according to the discipline prescribed by Congress.” Thus, the Constitution gives the federal government authority over state militias to enforce laws and to protect federal and state governments and the country as a whole. The Second Amendment allows people to own arms and not rely on the federal government to provide them. Tea Partiers have something hallucinogenic in their brew if they imagine, as Sharron Angle does, that the Founding Fathers intended it to protect the people from a “tyrannical government.”

Instance: They wrench the Constitution out of historical context to fit it to their political philosophy of low taxes, small government, and states’ rights. The Articles of Confederation (1783), a weak-federal-government predecessor, failed from the start mainly because it lacked authority to tax, resolve differences among states, and amend itself without unanimous consent by the states. Its soon-apparent failures prompted the Convention to draft in 1787, and enough states to ratify by 1789, a Constitution creating a federal government strong enough to tax and borrow funds, take precedence over state interests in the national interest, and adapt to change by judicial interpretation or national amendment.

Unlike us, the Founding Fathers did not expect a poor, small, or weak federal government to do big things on small budgets.

Because the Preamble challenges their political philosophy, originalists ignore this primer for a strong federal government committed to benevolent purposes. It states a platform transcending the factionalism of state or party interests: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessing of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.”

I especially like the silence about states and the phrases “more perfect Union,” “common defence,” and “general Welfare” (the latter two phrases also appear in Article I, Section 8). Ben Franklin said it best: “There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them.... I doubt too whether any other Convention we can obtain, may be able to make a better Constitution.... It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies.”

Astonish them we have—and sometimes ourselves—which explains why we should celebrate independence not only on the Fourth, but also everyday.

Wednesday, March 2, 2011


Mike Huckabee has again demonstrated his fitness to be a Fox commentator.

In an interview with Steve Malzberg, reported in yesterday’s The Washington Post, Huckabee made two statements about Obama’s upbringing. First he said,

I would love to know more. What I know is troubling enough. And one thing that I do know is his having grown up in Kenya, his view of the Brits, for example, [is] very different than the average American.

Then he said,

...if you think about it, his perspective as growing up in Kenya with a Kenyan father and grandfather, their view of the Mau Mau Revolution in Kenya is very different than ours because he probably grew up hearing that the British were a bunch of imperialists who persecuted his grandfather.

Later, a Huckabee adviser had no explanation for these remarks. Later still, Huckabee’s spokesman, Hogan Gidley explained:

Governor Huckabee simply misspoke when he alluded to President Obama growing up in 'Kenya.' The Governor meant to say the President grew up in Indonesia.

When the Governor mentioned he wanted to know more about the President, he wasn't talking about the President's place of birth - the Governor believes the President was born in Hawaii. The Governor would however like to know more about where President Obama's liberal policies come from and what else the President plans to do to this country - as do most Americans.

“Simply misspoke”? Simply a lie, and one Huckabee had to have authorized. We do not have a campaign-weary Obama making a slip of the tongue when he referred to America’s 57 states. We have deliberate statements in a scheduled interview with four references to Kenya, two references to the British, and one historically accurate reference to the Mau-Mau, a tribe which rebelled against British rule in Kenya. So the idea that Huckabee meant Indonesia is a lie, and the rest of his spokesman’s comment is persiflage intended to distract attention from the lie.

Huckabee has revealed himself to be, not the honest and thus honorable man whom he presents himself to be, but just another hack who will lie about little things and not admit mistakes. The odds are good that he will lie about the big ones and never admit mistakes. Not my guy for anything but Fox News.