Monthly Archives: December 2005

an aesthetic question

Why does a distant mountain often look beautiful? It is a simple shape, maybe an inch high if you look at it next to your hand–not unlike a mound of grass-covered earth that’s a few feet away, or even a pile of laundry. Yet a mountain is much more likely than those things to be beautiful.

One answer: Human vision is not the perception of a flat field of shape and color, composed of little reflections on our retinas. It is a thoroughly interpretive act. We see the mountain differently from a pile of clothes because we know that the mountain is far away. The space between the viewer and the object is part of what we see. But why should we appreciate a large volume of empty space? Perhaps because we interact with it in our imaginations. We feel a potential to move freely through the space or to “conquer” the mountain by climbing it.

Another answer: Human perception is thoroughly interpretive, and we have learned to value mountains. They are God’s work; they are humbling creations of Nature; they are sublime. Supposedly, Petrarch was the first European since antiquity to appreciate outdoor views. Five hundred years later, we have absorbed positive evaluations of landscape. But that appreciation was absent in 12th-century Europe and might not exist in some current cultures. It might be possible for a culture to learn to love the sight of small mounds of earth.

What about pictures of mountains? They are just flat fields of color. Perhaps we enjoy them because we are able to derive the same experiences from them that we take from real mountains.

Also, we appreciate representation itself. A picture of some objects on a table can be as beautiful as a landscape painting of a huge mountain; but the mountain itself will be more beautiful than any set of plates and food. A picture of a mountain may be beautiful even if it is so stylized or abstract that we cannot imagine ourselves entering the space depicted in it. These examples show that it is often the feat of representation, rather than what is represented, that matters in art. In that way, the aesthetics of art and of nature seem fundamentally different.


For every law passed by Congress, executive branch agencies write some 25 regulations. All proposed regulations are now being presented on one site––built under a very handome contract from OMB. The potential advantages of bringing the regulatory process online cannot be overstated (and I’m the opposite of a technological optimist). There may be no worse flaw in our democracy than the current system. The existing rulemaking process creates the following problems:

1. It favors organized lobbying groups that can hire experts. Those experts become part of the same “community of practice” or the same “stakeholder group” as the regulators. They have similar training and networks; they know the ropes; and over the course of their careers, they work for the same employers. As a result, they get very cozy. Some “public interest” groups, such as the major environmental organizations, have fought their way into the circle. But other interests, such as the homeless and even average taxpayers, are not effectively organized to lobby scores of separate rulemaking bodies.

2. A system of administrative rulemaking encourages Congress to pass vague laws that fail to resolve tensions and tradeoffs. Congress kicks those hard issues to rulemakers, who have relatively low profiles and are insulated from public accountability. For instance, various statutes since the Federal Communications Act of 1934 have directed the Federal Communications Commission to issue broadcast licenses in such a way as to serve the “public interest, convenience, and necessity.” Likewise, Congress has delegated the right to “determine just and reasonable rates” to the Federal Power Commission; and the authority to “prevent an unfair or inequitable distribution of voting power among security holders” to the Securities and Exchange Commission. Congress has not even attempted to define “just rates,” the “public interest,” or “unfair voting power.” When regulators make costly or unpleasant decisions in the course of implementing vague statutes, legislators win political points by blaming them.

3. Rulemakers obtain no legitimacy from being elected, but they do have expertise in science, law, or economics. Thus they have a natural tendency to make moral decisions appear to be technical ones. If appointed administrators ever presumed to set “reasonable rates” for power, or picked broadcast companies because of the quality of their programming, their decisions would appear overly “political.” Therefore, rulemakers typically address such questions as if they were technical matters of efficiency, even though these issues are fundamentally moral.

4. As a result of a system in which multiple agencies make separate decisions on supposedly technical grounds, federal policy is unnecessarily complex. The great and increasing complexity of policy is a barrier to democratic participation.

5. Whereas Congress can only consider a major area of policy once every few years, administrative agencies can reconsider them constantly. The result is a mass of always shifting rules. But, as Madison wrote (Federalist 62), “mutable policy … poisons the blessings of liberty itself.” Government by the people can hardly be said to exist, he said, “if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”

6. Administrative rulemaking leads to piecemeal, incoherent policy, as multiple agencies make decisions basically in isolation.

7. Administrative rulemaking undermines the Constitutional order itself. Locke proposed that “the legislative cannot transfer the power of making laws to any other hands. For it being but a delegated power from the people, they, who have it, cannot pass it over to others.” (Second Treatise of Civil Government, chapter 11, ?141.) This precept was made explicit in the Constitution, which assigns “all legislative powers” to Congress. In reality, however, most binding rules are made by administrative agencies.

I actually favor a rather radical solution: treating vague laws as unconstitutional. However, this isn’t going to happen. Surely a partial remedy would be to turn the process by which people file “comments” on proposed regulations into something approaching public deliberation. Why not make all pending regulations easily searchable on a single web page, allow people to comment and read one another’s comments, and thereby promote an equitable public dialogue?

Indeed, that is the purpose of However, in a comment filed more than one year ago (pdf), the great people at Information Renaissance criticized the emerging website on numerous crucial grounds. A few complaints stood out for me: There was no opportunity to create conversational “threads”–each comment just stood alone. There were no links to important background materials. The page didn’t use open standards so that others could build software compatible with it. The search engines weren’t effective. The process for designing the site was itself closed–it wasn’t even easy to find out what contractor was responsible for it. And there was no easy means to get automatic updates of new regulations.

As far as I can tell, none of these problems have been solved. I don’t believe that the current site will change much. It will make it somewhat easier to find regulations–but only people with salaries and training for the purpose will look regularly. It will allow people to comment with a single click–but most people cannot do so effectively.

The great advantage of an online forum is the potential for citizens to benefit from other citizens’ work. For example, someone should be able to summarize a complicated regulation in a way that brings out its bad consequences, and then others should be able to refine, criticize, endorse, or disseminate that summary. The current structure does not support such work at all.

[Note: some of the above is auto-plagiarized from my book The New Progressive Era.]

Schelling’s Nobel speech

Our colleague Tom Schelling received the Nobel Prize on Saturday, so many of us in the Maryland School of Public Policy gathered in our common space this morning to watch the ceremony.

Schelling’s speech was a forcefully ex temporized expansion of this essay. He begins, “The most spectacular event of the past half century is one that did not occur. We have enjoyed fifty-eight years without any use of nuclear weapons.” That streak would have seemed unimaginably lucky to people in 1945 or 1950. In 1960, C.P. Snow declared it a “mathematical certainty” that thermonuclear war would erupt within a decade unless the superpowers disarmed completely and immediately.

And yet the nuclear powers have passed up opportunities to use nuclear weapons. The U.S. famously avoided using the A-bomb in Korea, although Schelling believes that we would have used nuclear artillery had the Chinese invaded the little island of Matsu. Israel refrained from using nuclear weapons against two advancing Egyptian armies that were massed in the desert (away from civilian populations) in 1973. The Soviet Union avoided using nuclear arms in Afghanistan, even though the alternative–bombing from low altitudes for accuracy–cost them so many aircraft that they lost the war. The Soviets also (in a sense) refrained from using nuclear weapons in WWIII. That is, even though their official military doctrine held that war in Europe would automatically turn nuclear, they nevertheless built up a huge conventional military that would have been a complete waste if the doctrine were true. This is evidence that they expected both sides to fight with conventional weapons and to sit on their nuclear stockpiles.

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a political strategy

At a meeting earlier this week, a colleague proposed a political strategy that I will summarize here, even though I find the implications at least somewhat disturbing. He said that if you want to change educational policies, you must change public opinions about schools. (By the way, a parallel analysis would apply to welfare or crime.) Most Americans live in major metropolitan areas whose news media emphasize what happens in the central cities. Therefore, coverage of–and debate about–the 50 biggest urban schools systems is the basis on which Americans form their opinions about education, writ large. Most people’s own kids are not in those urban schools, but they are satisfied with their own childrens’ education. To the extent that they care about education as a public issue, they are thinking about the 50 biggest urban school systems.

Thus, to change their opinions, you have to change news coverage and editorial commentary related to the top 50 school systems. One approach might be to influence the news media itself. I recently heard that the Student Voices program measurably changed Philadelphians’ attitudes toward urban youth by putting young citizens on TV in highly responsible roles. However, in the long run, there is probably no substitute for changing the actual policies, priorities, and outcomes of schools.

Which brings us to the final step of my colleague’s argument … Who has power over the large public schools systems and other public institutions? Not elected officials, and not professionals. (Teachers and other education professions have largely fought standards-and-accountability reforms for 20 years and consistently lost.) The people who decide what happens in urban public schools and other urban institutions are a finite group in each city that consists of major developers, a few elected officials, major employers, union leaders, sometimes the heads of local colleges and universities, and sometimes some local civil rights leaders who have fought their way to the table. They all know one another. Apparently, except in San Francisco and Washington, DC, there is literally a room or building where they meet and the key decisions are made.

The conclusion, which I certainly want to resist, is that changing national policies and priorities in education really comes down to changing the opinions of about 25 people (mostly business leaders) in each of about 50 major American metropolitan areas.

what’s wrong with torture?

For anyone who wonders why torture is wrong, an excellent argument can be found in David Luban’s “Liberalism, Torture, and the Ticking Bomb,” Virginia Law Review, vol. 91 (Oct. 2005), pp. 1425ff. Here I’ll paraphrase a central part of the argument.

While there are no major ancient or medieval critiques of cruelty, the classical liberals (who were the intellectual ancestors of today’s conservatives and progressives alike) focused on cruelty as a special evil because it represented what they feared most: state tyranny. Killing someone can cause more harm than torturing him. Throwing someone in jail for the rest of his life can be worse than inflicting a medium amount of pain. Nevertheless, the torturer is a perfect representative of a tyrannical state–more so than the executioner or the jailor. Luban p. 1430:

the self-conscious aim of torture is to turn its victim into someone who is isolated, overwhelmed, terrorized, and humiliated. Torture aims to strip away from its victim all the qualities of human dignity that liberalism prizes. The torturer inflicts pain one-on-one, deliberately, up close and personal, in order to break the spirit of the victim–in other words, to tyrannize and dominate the victim. The relationship between them becomes a perverse parody of friendship and intimacy: intimacy transformed into its inverse image, where the torturer focuses on the victim’s body with the intensity of a lover, except that every bit of that focus is bent to causing pain and tyrannizing the victim’s spirit.

Some people argue that torture is nevertheless necessary in a society threatened by people who are willing to detonate nuclear bombs in crowded cities. What about the “ticking time bomb”–the terrorist who must be forced to divulge his secrets before there’s a big explosion? Shouldn’t he be tortured to save innocent lives, much as Dirty Harry forced Scorpio to reveal where he’d hidden the kidnapped child in the eponymous 1971 movie?

There are two major responses. First, real life doesn’t present ticking-time bomb situations, and even if it did, torture wouldn’t work to divulge the necessary information, because terrorists can lie. In real-life situations, torturers try to extract whatever information they can from suspected enemies, hoping to gather data that strengthens their overall understanding of enemy networks. No single suspect holds secrets that can by themselves save lives. It follows that a strategy of torture will require lots of it.

In any case, you cannot torture just once in a while. Torture that has any chance of working must be professionalized. The state needs experienced (desensetized) torturers, torture manuals, torture training, torture equipment, and lawyers’ memos rationalizing torture. The effect of all this “infrastructure” is not only to generate a new part of the government that will fight for its own survival. Worse, it tends to “normalize” torture. Normalization is a powerful and dangerous pyschological phenomenon. As Luban writes (pp. 1451-2):

we judge right and wrong against the baseline of whatever we have come to consider “normal” behavior, and if the norm shifts in the direction of violence, we will come to tolerate and accept violence as a normal response. The psychological mechanisms for this re-normalization have been studied for more than half a century, and by now they are reasonably well understood. Rather than detour into psychological theory, however, I will illustrate the point with the most salient example …. This is the famous Stanford Prison Experiment. Male volunteers were divided randomly into two groups who would simulate the guards and inmates in a mock prison. Within a matter of days, the inmates began acting like actual prison inmates–depressed, enraged, and anxious. And the guards began to abuse the inmates to such an alarming degree that the researchers had to halt the two-week experiment after just seven days. In the words of the experimenters:

The use of power was self-aggrandising and self-perpetuating. The guard power, derived initially from an arbitrary label, was intensified whenever there was any perceived threat by the prisoners and this new level subsequently became the baseline from which further hostility and harassment would begin… . The absolute level of aggression as well as the more subtle and “creative” forms of aggression manifested, increased in a spiralling function.

It took only five days before a guard, who prior to the experiment described himself as a pacifist, was forcing greasy sausages down the throat of a prisoner who refused to eat; and in less than a week, the guards were placing bags over prisoners’ heads, making them strip, and sexually humiliating them in ways reminiscent of Abu Ghraib.

I think we should be very careful about any behavior that is not unjust in itself but that can escalate quickly and without natural limits. That is why imprisonment is better than corporal punishment. Ten years in jail is a worse punishment than a dozen lashes. However, an excessive prison term can be reconsidered before it is served, and there is a natural limit to imprisonment (a life sentence). There is no limit to the number of lashes inflicted inside of an hour. That is why the state should never be allowed to inflict deliberate pain, even if we believe that it may deprive people of life and liberty.