Epidemics of Ideas

Epidemics of Ideas

By George Liebmann

The greatest of American judges, Learned Hand, warned of Americans’ susceptibility to epidemics of ideas. His concerns about media concentration led him to impose public utility standards on the Associated Press in a famous antitrust case in recognition of the non-economic interests at stake. Judge Robert Bork and his acolytes, by emphasizing narrow ‘consumer’ price interests to the exclusion of all else have eroded that decision and undermined resale price maintenance in bookselling, culminating in Judge Denise Cote’s absurd decision in favor of Amazon in a case involving digital books. Net Neutrality has now been destroyed, as has the FCC ‘fairness’ doctrine. Amazon has something close to a book monopoly; publishing is concentrated in five conglomerates, and there are only two newspapers with substantial reportorial staffs outside their home cities. Judge Hand cautioned: “a community accustomed to being played on in this way is not a fertile soil for liberty.”

Let us consider six of these recent epidemics”

1. ‘Medical bankruptcy.” There was a furor over ‘medical bankruptcies’ fostered by Professor Elizabeth Warren and several of her Harvard colleagues, providing a major talking point for proponents of Obamacare. At the time, the present writer responded to the internet publication of her article with a post calling it “A Study with Predetermined Results” since Warren characterized every bankruptcy with more than $1000 in medical debt as a ‘medical bankruptcy’ even when there were thousands of dollars in credit card debt. Now, ten years on, the Washington Post reports a new study showing that there are and were exceedingly few ‘medical bankruptcies, and that the quack cure, Obamacare, has not reduced their number.

2. Police killings of blacks. The number of these is exceedingly small, nationally less than one third the number of black-on-black homicides in a single city, Baltimore. Their man-bites-dog quality however has led to their gross overdramatization, beginning in Ferguson, Missouri, continuing with the Freddie Gray case in Baltimore, and culminating in former Attorney General Holder’s national rabble-rousing tour in the concluding months of a Presidential election year, a new vote-catching tactic following the debunking of earlier claims about massive burnings of black churches. Freddie Gray proved to be the unlikeliest martyr since the late Horst Wessel in Nazi times. His paddy wagon companion was unable to confirm the favored press narrative that Gray had perished in a ‘rough ride.” The first policeman tried obtained a hung jury; the next three were acquitted in separate trials by a black judge who was a former civil rights prosecutor; both the Obama and Trump Justice Departments declined to institute federal civil rights prosecutions; and several departmental trials resulted in acquittals. Nonetheless Baltimore’s monopoly Sun newspaper, adhering to a fixed narrative, was able to stimulate a $5 million payment to Gray’s family predicated on the lost earnings of an unemployed drug dealer with multiple arrests; the Mayor’s indulgence to pro-Gray demonstrations resulted in the looting of most of Baltimore’s large pharmacies; demonstrators were further propitiated by the legally unauthorized removal by a new Mayor of four supposed Confederate monuments, including one to Chief Justice Taney, a Unionist who manumitted his slaves in his youth and remained on the bench throughout the Civil War, the monument being erected by the art collector and philanthropist William Walters almost certainly in tribute to Taney’s courage in the Merryman habeas corpus case. For good measure, the City hired the Washington Wilmer Cutler firm at a cost of nearly a million dollars to prepare a report based on old information documenting the need for a collusive federal consent decree limiting law enforcement in high-crime neighborhoods and denying to the Baltimore police the benefit of the doubt in stop-and-frisk cases given them by two recent Supreme Court decisions. A sum now exceeding ten million dollars has been spent on police body cameras to protect citizens against police, who have retired in droves, and the City has additionally committed $1 million a year toward the costs of monitoring the consent decree. In the meantime, there are 150 additional murders in Baltimore in each of the last three years.

3. A third moral panic, this one of English origins, gave rise to the Individuals With Disabilities Education Act during the first Bush administration. It was alleged that separate schooling disadvantaged retarded and disabled students; discipline of them by local school districts was limited, and it was required that numerous non-teaching bureaucrats be hired to provide individual plans for each student. The result was numerous lawsuits, some lasting for decades, fostered by the Civil Rights Attorneys’ fees act. In the meantime the leading exponent of ‘mainstreaming;, the British social reformer Lady Mary Warnock, has recanted many of her earlier conclusions. This has had little effect in the United States which still limits the discipline and requires the ‘mainstreaming’ of disruptive students, with predictable results when classes move at the pace of the slowest student. Although former Sen. Slade Gorton came within two votes of getting the discipline restrictions repealed by the Senate in 1998, this interference in local school administration metastasied during the Obama administration, which sought to prohibit school districts from imposing discipline having a ‘disparate impact’ on any ethnic group.

4. A fourth fashionable doctrine is that the ills of our large cities are due to the ‘red-lining’ of black neighborhoods by the evil Federal Housing Administration in the 1940s. This is still an article of faith among many, including some state judges in New Jersey and federal judges in Chicago. But redlining was a rational response by an agency charged with conserving public funds to the then fact of a ‘white noose’ of discrimination rendering real estate in geographically-confined black neighborhoods over-crowded and over-valued. When the so-called ‘white noose’ was removed by the Civil Rights Act of 1968, millions of blacks moved to the suburbs without federal or judicial assistance, causing the collapse in inner-city property values foreseen by the FHA. The much vaunted Community Investment Act seeking to improve the neighborhoods from which so many had fled gave thousands of blacks the priceless gift of negative equity, and gave the world a needless recession based on the distribution of ‘toxic waste’ in the form of American sub-prime mortgages.
5. No discussion of this sort would be complete without mention of the new ‘Me Too’ movement. The late poet Philip Larkin once facetiously observed that in the eyes of the young, sexual intercourse was invented in 1964. Today’s feminists seem to think that we confront an unparalleled social crisis, even though it is conceded that rates of violent sexual assault have been falling. Nonviolent ‘harassment’ may be more common, but if it is, this is due to the fact pointed out by the late legal scholar John Hart Ely that Roe v. Wade gave men a hunting license, reducing the likelihood that unwanted advances would be rebuffed. Me Too accusations are often precipitated by buyers’ remorse, pressure from parents, a purpose to engage in political defamation, or even, as with the ‘heart balm’ actions for alienation of affections and the like repealed in the 1930s, by outright blackmail. Yet the Washington Post devotes four articles in one day to a defamation suit brought by a former porn star against the President, as though a porn star had any reputation left to be defamed.

6. Finally, we have the current hysteria over mass shootings, which each year claim almost as many lives as golf cart accidents. The unspoken object of the clamor is the expansion of the federal role in law enforcement, sought to be limited by the framers of the Constitution. What is insufficiently appreciated is that the firearms ‘problem’ is essentially one of the large cities; suburban and rural homicide rates are in line with those in foreign countries with strict gun control, while our household burglary rates are lower. There is a case for re-institution of the assault weapons ban, and the extension of the Second Amendment to limit the powers of state (as distinct from federal) governments was illegitimate, but otherwise, as Attorney General Edward Levi recognized, the focus of firearms regulation should be on large cities. Even strict local or federal laws like the Sullivan Law in New York City in force since 1916 meant nothing until enforced by increased numbers of policemen using stop and frisk powers
While our major newspapers thus divert the population to ‘the blame game’ and what Spiro Agnew, of all people, once called “pop issues,” our high schools rot, our drug and youth unemployment problems grow worse, our over-committed military becomes ever more suicidal, and family dis-integration continues apace.

The writer, a Baltimore lawyer, is the author of various books on history and public policy, most recently America’s Political Inventors: The Lost Art of Legislation (I.B.Tauris).

Posted in: Culture Wars, Judiciary and Legal Issues, State and Local Politics, The Right, Urban Affairs, Welfare and Other Social

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