The Supreme Court will be voting today in the Obamacare case (though we won't hear the results until June or so). One possible outcome is that they'll buy into the argument of the critics that Congress can regulate activity but not inactivity (i.e., it can't penalize you for failing to buy health insurance), and therefore strike down some or all of the law as unconstitutional. This distinction between activity and inactivity would be an example of a "limiting principle" — that is, some rule that explains what Congress is allowed to do and what it's not. Conservatives have long said that this is something the court will demand, since they aren't willing to give Congress unfettered power to do anything it wants based solely on the interstate commerce clause of the Constitution. In oral arguments, the government never really articulated an alternative principle, but a few days ago I asked why that should be the government's job in the first place. Isn't that the court's job?

And this, I think, is where there's cause for hope. Overturning Obamacare would be a very, very big deal for the court. There's good reason to think that Roberts and Kennedy in particular would be reluctant to overturn a major domestic program in an area that's indisputably political and legislative in nature, and they'd be especially reluctant to do that based on a logic-chopping decision that amounts to a technicality. They know perfectly well that Congress could have quite easily implemented the individual mandate in a way that's unquestionably constitutional, and the only reason they didn't was because no one had the slightest fear that the court would overturn the existing version. It just wasn't an issue.

So what will the court do? If they don't want a rerun of the 1930s, which did a lot of damage to the court's prestige, but they do want to put firmer limits on Congress's interstate commerce power, the answer is: find a limiting principle of their own. But find one that puts Obamacare just barely on the constitutional side of their new principle. This would avoid a firestorm of criticism about the court's legitimacy — that they're acting as legislators instead of judges — but it would satisfy their urge to hand down a landmark decision that puts firm limits on further expansion of congressional power. Liberals would be so relieved that Obamacare survived that they'd probably accept the new rules without too much fuss, and conservatives, though disappointed, would be thrilled at the idea that the court had finally set down clear limits on Congress's interstate commerce power.

I have no idea what the justices are actually thinking, of course. Hell, maybe the court's conservatives are ready for a revolution and don't care what the mob thinks of them anymore. But a new rule that reined in Congress without overturning Obamacare just might be a compromise that the liberal wing of the court could push through, especially if they made it clear they were willing to sign on themselves in order to give it bipartisan legitimacy. I guess we'll know in a few months.

People Like Free Books

Via Tyler Cowen, we have the chart on the right from Eric Crampton. It shows book shipments [see update below] from Amazon by decade of publication, with a sharp dropoff in 1922 because books published before then are in the public domain while books published after that are still in copyright. (And probably will be forever since Congress keeps extending copyright protection whenever the current term is close to running out.) Presumably, people are buying lots of pre-1922 books because they're cheap. In fact, lots of classic books are free in their e-editions.

But there's something about this chart that doesn't feel right. If I believe it, people have bought as many books published in the 1910s as in the 2000s. Cheap or not, that just doesn't seem plausible. That's a helluva lot of copies of Ethan Frome and In Flanders Fields to compete with The Da Vinci Code and Harry Potter. There must be an explanation for this, but I can't quite figure out one that sounds right. Any ideas?

UPDATE: Sorry, I screwed this up because I hate videos and didn't watch the embedded video that explains the chart. This doesn't show shipment data, it just shows number of titles in the Amazon warehouse, taken from a random sample of 2,500 fiction titles. Out of those 2,500 titles, about 340 of them were published in the 1910s.

So this doesn't mean that Amazon is actually selling lots of books from the 1910s, which was a fairly dismal decade for classic fiction. It just means that Amazon stocks a lot of titles from the 1910s. This is still sort of surprising, but surprising in a different way. It also has a more obvious explanation: old titles that are out of copyright are very profitable for Amazon, so it's eager to stock them even if they don't sell in huge quantities. That says something about copyright, but perhaps not quite what we initially thought.

Over at NRO, Benjamin Zycher offers up some speculation:

One trivial thought that I have not seen elsewhere: I wonder if the Left/Obama/Kathleen Sebelius didn’t shoot themselves in the backside when they decided to apply a chainsaw to the religious liberty of the Catholic hospitals, etc. That episode, I think, brought out in sharp relief the unprecedented degree of coercion inexorably inherent in Obamacare, the eagerness with which the Left employs it, and the thoughtlessness with which the Left is willing to destroy the institutions of civil society as they pursue their political goals. They really believe that people of religious faith are simpletons standing in the way of ever-greater individual dependence upon Leviathan.

And so I have a sense — but no direct evidence — that Kennedy and perhaps Roberts may have recoiled in horror from the prospect of Obamacare more deeply than otherwise might have been the case, as they were confronted with the prospective wholesale descent into economic fascism that is the very essence of Obamacare.

Putting aside the overwrought language, which is practically obligatory on the right these days, I wonder if there's anything to this? Roberts and Kennedy are both Catholic, and it's hardly a stretch to suppose that even if neither of them literally recoiled in horror, they certainly might have felt personally affronted by the whole contraception squabble. It's at least conceivable that it may have turned one or two wavering votes to uphold into likely votes to overturn.

A new study by Gordon Gauchat takes a look at public trust in science and finds that it's unchanged over the past few decades for most groups. The one exception is conservatives, whose trust in science has plummeted:

This is not because conservatives are a bunch of undereducated yahoos. In fact, quite the opposite:

Conservatives with high school degrees, bachelor’s degrees, and graduate degrees all experienced greater distrust in science over time....In addition...conservatives with college degrees decline more quickly than those with only a high school degree []. These results are quite profound, because they imply that conservative discontent with science was not attributable to the uneducated but to rising distrust among educated conservatives.

In other words, this decline in trust in science has been led by the most educated, most engaged segment of conservatism. Conservative elites have led the anti-science charge and the rank-and-file has followed.

This is presumably part of the wider conservative turn against knowledge-disseminating institutions whose output is perceived as too liberal (academia, the mainstream media, Hollywood) in favor of institutions that produce more reliably conservative narratives (churches, business-oriented think tanks, Fox News). More and more, liberals and conservatives are almost literally living in different worlds with different versions of consensus reality.

An interesting side note to this is the startling lack of trust in science among moderates. After a drop in the 70s, it's stayed pretty steady for the past 30 years, but it's stayed steady at a very low level. Until recently, moderates trusted science significantly less than either liberals or conservatives. Is this because moderates have always viewed science as a politicized enterprise, something they're especially sensitive about? Or because moderates are just generally less engaged with elite institutions? Or because moderates have a higher overall degree of skepticism about everything than either liberals or conservatives? It's a mystery.

More here from Chris Mooney, whose hypothesis Gauchat was testing.

Paul Ryan is a budget hawk's budget hawk, never one to believe a government bureaucrat who self-servingly claims that a spending cut will cause real damage to his program and the people it benefits. But there are exceptions:

House Budget Committee Chairman Paul Ryan (R-Wis.) expressed skepticism Thursday that U.S. military leaders were being honest in their budget requests to Congress. “We don’t think the generals are giving us their true advice,” Ryan said during a forum on the budget sponsored by the National Journal. "We don't think the generals believe their budget is really the right budget."

"You don't believe the generals?" [managing editor Kristin] Roberts asked.

"What I believe is this budget does hollow out defense," Ryan responded...."I think there’s a lot of budget smoke and mirrors in the Pentagon’s budget," Ryan added, saying his proposal was an "honest Pentagon budget."

Just to be absolutely clear here: if we're talking about a program that helps the poor or the elderly or the sick, Ryan is eager to cut spending. In fact, he's usually eager to be the biggest budget cutter in the room. But if it's a program for the military, he won't accept spending cuts even if the military brass supports them. In fact, he insists on raising their budget.

For some reason, this is known in mainstream circles as being a "deficit hawk."

Binyamin Applebaum says the economy may be growing faster than we think:

Buried deep inside the government’s revised estimate of fourth-quarter growth (revised but unchanged at 3 percent annualized) is an alternate measure of economic activity that is winning increased attention. And by that alternate measure, gross domestic income, the annualized pace of growth in the final three months of 2011 actually climbed to 4.4 percent.

That’s the kind of growth we usually see during an economic recovery, the kind of growth that’s fast enough to create new jobs. Indeed, it suggests that we may have learned the answer to a fretful mystery. Until now, economists have struggled to explain why unemployment was falling so fast when the major measure of growth, gross domestic product, was rising at an exceedingly modest pace.

That's good news. Just a note of caution, though. GDP measures production of goods and services, while GDI measures the income used to buy goods and services. In theory, they should be identical, but noise in the statistics means they don't always come out quite the same. Sometimes GDI is less than GDP and sometimes it's more. Last quarter it was more.

But if you look at 2011 as a whole, total growth comes to 1.7% on a GDP basis and 2.1% on a GDI basis. That's not a huge difference. The higher GDI figure really does suggest that recent growth might have been stronger than we think, but only a little bit stronger.

In the New York Times Magazine this weekend, Matt Bai has yet another gigantic story about what really happened last year to kill the "grand bargain" deficit deal between Barack Obama and John Boehner. When I saw it, I sighed. Do I really want to read another one of these things? Luckily, I can now easily download monster pieces like this to my iPad and then read them in the comfort of my easy chair, so I ended up reading it after all. There was, as near as I can tell, one genuinely significant new item of information in the piece.

First, a nickel summary. Last July, after several weeks of on-again-off-again negotiation, Boehner and Obama reached a kinda-sorta handshake agreement on a deficit deal that would raise $800 billion in revenue (though this part of the deal was shaky) and cut $1.7 trillion in spending. But then the Gang of Six, a bipartisan group of Democratic and Republican senators, announced a deal of their own that included about $2 trillion in extra revenue. A substantial number of Republican senators expressed support for this package, and Obama immediately understood that Democrats in Congress would revolt if he asked them to approve a package with far smaller revenue increases than even a lot of Republicans were willing to concede. So he went back to Boehner and asked for a deal that included both more revenue and deeper spending cuts. At that point the deal fell apart.

So what happened? Boehner's story is that Obama reneged on a handshake deal. Obama's story is that no final deal had ever been agreed to. It's true that he pushed for more revenue concessions all the way to the end, but he was also willing to go back to the original deal if the bigger package turned out to be a nonstarter. In the end, though, the problem was that Boehner couldn't get his own caucus to agree to any deal that included additional revenue.

So who's right? Some of both, of course. Obama did push for extra revenue after the Gang of Six announcement, but it turns out that Boehner wasn't quite as shocked by Obama's proposal as he later pretended:

By the next morning, both men were facing rebellions on the Hill. The Times’s Carl Hulse and Jackie Calmes had written a front-page article disclosing the existence of the new round of talks and asserting that a deal was very near....And yet, even then, as powerful contingents in both parties rose up to oppose a deal that was already tenuous, negotiations were proceeding amiably and apace. At the White House that Thursday morning, July 21, Jackson, Loper, Nabors, Sperling and Lew, among other aides, agreed to set aside the revenue question and focus on hammering out some of the smaller discrepancies in the two offers.

....The speaker’s story about this moment in the negotiations has always been remarkably consistent....The additional revenue that Obama demanded was a “nonstarter,” he says....Boehner had no choice but to walk away from the negotiations....[But] Boehner wanted a deal badly enough to stay at the table for 48 hours after Obama “moved the goal posts,” which casts doubt on his claim that this breach of trust was an obvious dealbreaker.

....As part of a broader proposal, which has remained until now a closely held secret, Boehner was apparently open to meeting the president at the new, higher revenue target — a concession that most likely would have meant abandoning the idea that no taxes would have to be raised. Had that counteroffer ever made it to Obama’s desk, it’s not hard to imagine that the grand bargain would have gotten done within 24 hours, at great political risk to both men....What happened, instead, based on extensive reporting, was this: Boehner raised the possibility of his counteroffer with Cantor on that Thursday afternoon, and Cantor dismissed the suggestion out of hand.

....Boehner talked to Obama a short while later. The president laid out the options as he would later relay them to Reid and Pelosi: more revenue and a bigger package, or the $800 billion and a smaller one. Boehner heard him out, but by then he must have known, from his discussions with Cantor and others, that neither option was going anywhere in his own caucus. It was one thing to risk your speakership on a grand bargain, which Boehner had without question been willing and even eager to do. It was another thing to throw that speakership away with little chance of success, which is what Obama was now asking of him.

Bai makes it pretty clear that although the Gang of Six really did throw a monkey wrench into the negotiations, it was Eric Cantor who definitively killed the deal, making it clear to Boehner that the Republican caucus would flatly not be willing to support any deal that had even a hint of additional revenue. Toward the end, when Obama famously put a call into Boehner that went unanswered for an entire day, it wasn't because Boehner had "run out of time" and felt that Obama was unlikely to budge, as he now says:

Boehner didn’t want to talk with Obama because he feared exactly the opposite — that Obama would respond by offering him the original terms from the previous Sunday, and that Boehner would then find himself trapped. He had to now know that, despite his sense of himself as a persuasive statesman who could get his caucus to follow his lead, he couldn’t get any deal past even his own leadership. It was safer for Boehner to walk away and accuse Obama of having sabotaged the deal than to risk that Obama would retreat to the earlier terms on which they had agreed, forcing the speaker to backtrack himself.

So there you have it. There are enough moving parts to give both sides a decent story to tell, but the real story is the one that's been obvious all along: the current Republican caucus in the House flatly won't support any budget deal that includes even a cent in new taxes. Boehner kept hoping maybe he could fudge that, but eventually Eric Cantor put the hammer down and told him in no uncertain terms that he was living in a dreamworld. That's what killed the debt deal.

Andrew Sullivan links today to a Julian Sanchez post from a few days ago that I had kinda sorta meant to comment on but never did. It's about religion and atheism generally, but also touches on the contemporary and widespread feeling of persecution among conservative Christians in America. Why do they feel this way when there are so many of them and atheists are a tiny minority?

Previously faith could more or less be taken for granted—maybe the candidate makes a passing reference to the church they regularly attend—and that’s all there is to it, really, because of course everyone’s a believer of one stripe or another. Increasingly, isn’t so—that there are actually quite a lot of unbelievers, many of them effectively operating in stealth mode. This was probably always the case, but outside the academy and a few urban enclaves, nobody was terribly vocal about it—you certainly didn’t have anything like a visible public “movement.” Suddenly, if you’re someone who thinks of faith as a minimal prerequisite for decency, what was previously tacitly understood has to be signaled with extra vigor.

There's probably something to this, but I really think that people pay too little attention to basic demographics when the topic of conservative Christianity comes up. A couple of points:

  • Membership in religious organizations had gone steadily up over the past century, from roughly 40% of the population in 1900 to 70% today. Lack of belief was more common and more public in 1900 than it is today, even if it was called "freethinking" or "skepticism" or some related term.
  • Conservative Protestant denominations have also been growing very steadily over the past century. It wasn't a sudden boom that burst onto the public scene when Jerry Falwell became famous. The Pentecostal movement started up in 1906 and it's been growing ever since. Ditto for evangelical sects, which have grown steadily from perhaps a third of all Protestant denominations in 1900 to something like 60% of them today.

If you put these two things together, here's what pops out: A century ago, something like 10% of the country belonged to a conservative Protestant denomination. That's grown steadily ever since, and today it's around 30%. So there's really no mystery to explain here. Conservative Christians have become more outspoken and more politically powerful simply because they've grown more numerous. Sometime in the 70s, their numbers finally passed a threshold where they became a serious voting bloc, and they've been growing more powerful every year since then.

What's more, at the same time this has happened, America really has become more secularized. No, religion isn't under assault, and a lot of the rhetoric from the Christian right is grotesquely over the top. Still, it's simply a fact that liberals have engineered a growing separation of church and state over the past few decades. Classroom prayers led by teachers have been outlawed. Your local city hall can't put up its traditional Nativity scene. Christmas assemblies focus on generic songs without any religious content. Judges can't festoon their courtrooms with copies of the Ten Commandments. Religious schools are denied federal funding. Etc.

I make no bones about the fact that I think this is all just fine. I prefer a broadly secular America. But I sometimes think that we liberals pretend to a level of mystification about this stuff that's disingenuous. We've been chipping away at traditional religious expression in the public square for decades. At the same time, conservative Christians denominations have grown steadily. Put the two together and you have a substantial segment of the population that feels like it's under assault. I don't agree with them, but it's not really all that hard to figure out why they might feel the way they do.

UPDATE: I changed the wording slightly on school prayer. Students can pray individually all they want. It's organized, teacher-led prayers that have been banned.

I might as well confess that I've been in something like a state of shock for the past day. Tuesday was bad enough, but Wednesday's arguments in the Supreme Court were nothing short of surreal, as the conservative justices, Kennedy and Scalia in particular, spent their time chatting as if they were in the Senate cloakroom, casually hashing out a deal to figure out how best to keep their campaign promises to the tea party. There was barely even a pretense of being a court, not a legislature.

Randy Barnett is getting lots of kudos these days as the guy who created the conservative case against Obamacare, primarily by inventing and proselytizing the activity vs. inactivity distinction. And I guess he deserves his star turn. But watching yesterday's session (or, rather, reading the transcript) it's pretty obvious that none of it mattered. The conservatives looked like five men who just didn't like Obamacare and were bound and determined to find an excuse to overturn it. The activity vs. inactivity distinction was good enough, so that's what they glommed onto, but anything else even reasonably plausible would have worked too.

It's not over til it's over, of course. Maybe the tone of the questioning has fooled us all, and at least a couple of the conservatives will pause before going fully rogue. But it looks grim right now, and even genial, generous E.J. Dionne is under no illusions about what it will mean if the court overturns Obamacare:

A court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.

I wasn't alive the last time the Supreme Court acted like this, and I never thought I'd live to see the day it would go there again. And maybe it won't. But they sure look like they're all ready to party like it's 1936 again.

One of TPM's readers wrote in today with a comment about the arguments in the Supreme Court healthcare case. It happens to be about something that's been bouncing around in the back of my head for several days, so here it is:

The only problem that Chief Justice Roberts and Justice Kennedy expressed with the mandate is the lack of limiting principle on Congress’s ability to mandate the purchase of privately-made/issued products. If that’s really the concern of each Justice, and it sure seemed that it was, neither man is lacking in the self-regard and intellect necessary to craft such a limiting principle. And that’s where my money remains. The Government didn’t make their jobs easier, but it’s one thing to fault the Government for failing to articulate a limiting principle and quite another to overturn momentous legislation on that basis. Because to do the latter is to say that the Justices can’t craft such a principle either. Here’s betting both can, and Roberts will.

This is related to the "broccoli question." If Congress can force you to buy health insurance, can they force you to buy broccoli too? In fact, if they can force you to buy health insurance, are there any limits at all on what Congress can do? Lots of smart observers think the conservative justices simply won't accept the idea that Congress can essentially do anything, which means that if they're going to uphold the individual mandate they'll need some kind of "limiting principle" that explains why the mandate is OK but, say, broccoli isn't.

But it strikes me that the government's job isn't to craft such a principle. The government's job is to argue that the mandate is already within existing limits on Congress's power. And given how extraordinarily broad Wickard is, that never seemed very hard to me. If Congress can stop you from growing wheat for private consumption, something that has only the most tenuous connection to interstate commerce, mandating the purchase of health insurance seems like a no-brainer.

But even if it's not, it's still not the government's job to articulate a limiting principle. It's the court's job. That's what they do. They write opinions that — in theory, anyway — provide guidance to lower courts about how to apply the law. Supreme Court opinions are chockablock with three-prong tests, significant nexus tests, balancing tests, and a million other kinds of tests. As long as Kennedy or Roberts or Breyer or Kagan or any of the others can come up with something that gets five votes, then we have our limiting principle. There's no reason it has to come from the Obama administration. In fact, all things considered, it's probably best if it doesn't. The justices will all feel a whole lot smarter and a whole lot more decisive if they do it themselves.