[Thorfinn]

You are correct. This is spreading out well beyond the topic. I'll try to limit myself to just responding to the topics you mentioned.

I am well aware of the widespread use of the commerce clause and the elastic clause to justify anything under the sun. Jefferson and Adams both penned essays on the limits of such clauses, though they thought the general welfare clause would be the most abused. In short, their argument was why bother with the rest of the Constitution if the intent was that something peripherally related to general welfare could give the legislature such widespread powers? Why even bother listing out power to spell out bankruptcy rules or weights and measures, which are so intimately related to commerce, if the intent of the commerce clause was broad enough to include it in the first place?

As for the "living Constitution" thing, I assume there is also nothing wrong with having a "living rental lease" or a "living mortgage"? That I may feel free to unilaterally reinterpret them as I see fit? I can't find the quote from O.W. Holmes, but Scalia rather laconically restated Holmes' opposition to the idea of a "living Constitution" as

A Bill of Rights that means what the majority wants it to mean is worthless. -- Justice Antonin Scalia

Market externalities exists anytime the effects of a given transaction are not limited to the transactors. So, for instance, if I do some expensive landscaping to my home, it helps out property values in the neighborhood. This is a market externality, in that my neighbors benefit from my action, yet paid nothing for it. "Public goods" are another type of market externality -- the idea that these goods would be undersupplied without government coersion. Yet considering that volunteer firefighter units and charities exist, and do thir tasks quite well, one should consider carefully the validity of the central premise of the "public good" argument. Pollution is another market externality. Windfalls in general result in market externalities -- if I suddenly come into wealth, I drive up the prices in things I buy, at least locally, and later transactors are forced to pay more or go without. There are several other types of market externalities, but those are the major types I recall off-hand. Anyway, the upshot is that it is unreasonable to single out some externalities and claim that they are unresolvable without government coersion while ignoring the fact that we see hundreds of examples of positive externalities on a daily basis.

And darned right I recommend the lawsuit as a remedy. As I understand it, a large part of the justice system is deterrence -- to make the penalty large enough to keep people from considering harming another or his property. The reason for punitive damages is not simply to redress the wrong, but to prevent one from considering doing it in the future, and to serve as a warning to others who may be considering the same thing. If you know that regardless of how expensive a lawyer you hire, if you pollute my land, you are going to make me whole, you are not going to pollute. It would cost you more to pay for depriving me of the use of my property while you pay for the cleanup and subsequent disposal than it would have to dispose of it in the first place. The fact that fat-cats can hire large attorney firms gives them little fear that they cannot outlast the little guy in court. A large company (or the government, for that matter) can drag a case out forever, until the plaintiff is destitute, and forced to accept some pennies on the dollar settlement. Did you catch that? Lawyers are a source of both postitive and negative market externalities, since the implications of the cases impose costs or grant boons on people outside the transaction.

And as for who decides what is acceptable pollution, each person does. As soon as something leaves his property and enters the property of another, he has infringed upon another's rights to use his own propery as he wants, and if that infringement was unwanted, he will have to make restitution. If a baker goes around to all the neighbors, and they don't mind the smell of bread baking, it is not pollution, since it in no way affects the way the people use their property. If one changes his mind later, the baker may have to change practices to either install scrubbers, run only on days when the complainant is not downwind, put the complainant on the payroll or otherwise compensate him, or even buy him out.

Now, the problem with a waste tax is that you are necessarily going to have some arbitrary determination of the value of any given waste. That is inherently skewed in favor of those fat-cats who can afford to bribe/lobby the most bureaucrats. The simple fact is that a waste tax, while in theory sounding appealing, will be a nightmare to implement and will not have the intended effect. Every April 15, consumers will have to fill out forms revealing how many plastic bags they used that year, how many glass bottles they threw in the trash, with a credit for how much they tossed into the recycling bin. He will have to account for how much junk mail he tossed in the circular file vs. how much he sends out to a recycling facility. And, of course, it will almost certainly still have the exceptions for the wealthy -- emitting megatons of CO2 will get a price break over those emitting mere tons, whether through "buying in bulk" or through fixed costs associated with the paperwork involved in compliance.

You certainly don't advocate an end to the government - and you define its function. If it has any functions at all, it must collect money to perform those functions (however small or large the amount may be - which we can haggle over). Heck, you give my profession so much of the burden to do a lot of what the government does, but that requires courts and judges - which cost money last time I checked.

Let's not be hasty here. I think that 10 men in sheets and carrying guns harassing their non-melanin-challenged neighbors is little different than 10 men in flack-jackets kicking in doors in the dark of night in Miami to drag a frightened 6-year old kid out at gunpoint. I oppose the initiation of force, whether that is purely unilateral, or with the blessing of the voting community. As for why gov't has to provide courts, why? There are private arbitration courts now. They exist even at a significant competitive disadvantage -- government supplied courts are available at well-below cost, i.e., gov't supplied courts are a negative externality, and, as such will be over-utilized, particularly by the wealthy and/or powerful.

Reading the debate surrounding the drafting and adoption of the Constitution, I think there is a reason that the founding fathers did not define the judicial system within the Constitution, with the exception of the Supreme Court. It is clear from the argumentation that many were in favor of non-governmentally-controlled courts, and wanted to leave the decision of exactly how to handle jurisprudence an easy one to change. If the fears of the anti-federalists proved justified, Congress could easily eliminate the whole system, either replacing it, or seeing if the market developed an appropriate system. Congress could change it with a simple majority vote, and not have to go through the hassle of going through the supermajority amendment process.

Sorry. Hope this didn't spread the debate more. I tried hard to keep the same core arguments, expanding the scope only with examples, not new arguments, as far as I can tell.

[EDIT]
Yes, I do agree with your idea of total cost accounting. I just disagree with the implementation.
[/EDIT]

[ 04-17-2003, 01:45 PM: Message edited by: Thorfinn ]