Ron Rosenbaum, Writer

March 8, 2009

Clarence Thomas Agrees with Liberals on Regulation

Filed under: Uncategorized — ronrosenbaumwriter @ 5:02 pm

I note that one of the commenters on my previous peanut butter post took issue with my shot against de-regulation. Opponents of regulations he said are not against all regulation, but only feel it should be used “as a last resort.” Too bad for the people who died from salmonella poisoning from lax inspection of peanut butter: last resort was too late for them. Last rites, more like it. Regulations only kicked in after they’d kicked the bucket.

My point was that regulation shouldn’t be demonized but that it protects an individual’s right to life, liberty and freedom from death by bad peanuts. That depending on “market forces”–“oh, lets not buy from the peanut company that killed six people with sewage infested nuts”–to self-regulate greedy private enterprises after their depredations have killed and maimed, doesn’t help the dead, and that a rational system of regulation is good for capitalism.

Well guess who weighed in with a pro-regulatory Supreme Court decision just last week: conservative icon Clarence Thomas.

Thomas, in opposition to pro-business conservative Justices Roberts, Scalia and Alito, took a longer, wiser pro-federalist, rational pro-capitalist view that the federal government shouldn’t have the right to interfere with states’ consumer protection regulatory laws. Such laws were not violations of Constitutional liberty but protectors of life.

Okay, pro-deregulation conservatives: what ya got to say to that? De-regulation did its part in destroying the economy by allowing banks to become “investment supermarkets”. De-regulation killed the salmonella victims. Do you want conservatism to be known as the pro-food poisoning philosophy? Although I consider myself a liberal, I have a lot of problems with conventional liberalism, particularly its naivete in foreign affairs, its tendency toward cultural relativism (it’s what I have in common with Roger L. Simon), but when even Clarence Thomas recognizes the value of preserving regulatory law, I think it’s time to throw in the towel and admit liberals are right on this issue.

Advertisements

28 Comments »

  1. “Too bad for the people who died from salmonella poisoning from lax inspection of peanut butter: last resort was too late for them.”

    I do not feel qualified to speak authoritatively on the peanut butter fiasco. But this might be a situation where reasonable regulations may not have made any difference. There are times in this cruel world when only after the fact punishment can be exacted.

    “De-regulation did its part in destroying the economy by allowing banks to become “investment supermarkets”.

    That is not accurate. We are in this mess primarily because left-wing legislators forced lending institutions to provide mortgages to minorities possessing poor credit histories. Eventually the majority whites jumped aboard the bandwagon and all hell broke loose. This You-Tube video posted by “The Moderate Voice” should be seen by all:

    http://tinyurl.com/csxdb2

    Were the people who pushed this madness well meaning? Whatever, they caused enormous damage.

    Comment by David Thomson — March 8, 2009 @ 5:37 pm | Reply

  2. RE: Clarence Thomas. If you read his very excellent memoirs, you will learn that he has long been passionate about food, drug, and workplace safety as a result of his years spent as a corporate lawyer for Monsanto. If you read his very excellent Supreme Court opinions (dissents and majorities) on federal preemption of state law, you will discover that Thomas is probably the only sitting Justice willing to make an effort to demarcate a line between the exercise of state regulation versus federal regulation. He dissented on those grounds in the Raich “medical marijuana” case a few years ago, which caused some snickering among the hip set. Thomas is probably the most philosophically consistent of all the sitting justices, which causes him to surprise people once in a while since he rules from the law as he interprets it, rather than the results he would like.

    RE: “deregulation.” Please spare us “conservatives” the sermons. The Wall Street Journal recently ran an op-ed by Phil Gramm, which was illustrated by a picture of the signing ceremony for the law that repealed Glass-Stegall. Among those crowding eagerly into the frame are Larry Summers, Robert Rubin, Chris Dodd, John Edwards, and Bill Clinton. Robert Rubin by himself is the poster boy for reckless “banking supermarkets” through his 10 year association with Citibank.

    No one likes lawbreaking, no matter how strict or loose the regulations may be. Specific to the regulations in the banking and securities world, much of what we think of as the regulatory framework for those industries was set out in the Thirties and hasn’t changed all that much since then, Glass-Stegall repeals notwithstanding. But the securities and banking industries certainly changed (along with insurance, which got fatally mixed up in all this)! Many market participants simply learned to work around, or accommodate the regulators. Over the years, as finance became more international and more decentralized, a lot of financial activity went unregulated, and became part of the so-called “shadow banking system.” It’s questionable whether either party, the Evil GOP or the supposedly with-it Dems, could have thoroughly regulated a system that seemed to be making so much money so fast. As I recall, Ralph Nader based a lot of his 2000 campaign on Democrat/Wall Street shenanigans and was pilloried for his
    troubles.

    Like it or not, this was a team fault, if your team includes those who want to protect the banks and AIG with endless bailouts. I am not part of this group, and I would hope that you aren’t either. I think those of us who are opposed to the present state of endless bailouts – progressives, libertarians, and conservatives – have more in common than we realize. Simply asking conservatives what we think of “deregulation” does not advance the conversation. We really should be uniting for the simple task of ending the bailouts, taking back our country’s finances, and rebuilding an honest financial system.

    Comment by psota — March 8, 2009 @ 11:00 pm | Reply

  3. How do you feel about pre-1985 used children’s books being destroyed because of the grave danger from lead in the ink? Yes, we need some regulations. Yes, some regulations do more harm than good. And one more thing, crooks are crooks because they don’t follow regulations. How to balance the first two and inhibit the latter should be part of a vibrant discussion, with common sense winning in the end.

    Comment by vb — March 9, 2009 @ 7:21 am | Reply

  4. As lifelong writer and a bohemian, when I read, say, my mortgage or my divorce papers, I look up and ask, “Who are the people who sit around and write this gobbledygook? Do I know any of them? And what does it say about the minority of me that I cannot fathom their minds?” “What’s the ugliest part of your body? Some say your nose, some say your clothes. I think it’s your mind.” – Frank Zappa

    Comment by charlie finch — March 9, 2009 @ 10:38 am | Reply

  5. I basically agree with Ron here (who apparently basically agrees with me on other issues). But it all may come down to this: Some regulations are good. Some not so good. And it may not always be easy to tell which is which. That’s life, alas.

    Comment by Roger L Simon — March 9, 2009 @ 3:52 pm | Reply

  6. […] Read the entire piece here. […]

    Pingback by Pajamas Media » Clarence Thomas and Liberals Agree on Regulation — March 9, 2009 @ 11:30 pm | Reply

  7. I think it should be pointed out that Thomas’ opinion is NOT a column or a blog post or an editorial written in favor of regulation. His was a thoughtful (and in my judgment correct) legal opinion about federalism and statutory interpretation. To suggest that Thomas is arguing for or supporting your side, or the liberal side, or anyone else’s side in the debate over regulation vs. deregulation is to either misunderstand the role of a Supreme Court Justice and/or to misunderstand Thomas’ brilliant opinion. As even the writer for the LA Times makes clear in the article you link to Thomas’ opinion was not “pro-regulatory”. It was pro-federalism.

    Putting aside your misrepresentation of the Justice’s opinion I would say that with regard to your larger point Mr. Simon sums things up rather well when he says “Some regulations are good. Some not so good. And it may not always be easy to tell which is which.”

    Comment by L. L. Brown — March 10, 2009 @ 12:33 am | Reply

  8. “regulation” doesn’t fix much unless its enforced and proper… the whole reason why their was a sub-prime market crash was because of “regulation”… IE the government required banks to loan money to ppl who should have gotten the loans… and then required groups like freddy and franne to pick up the tag. The simple fact is that most “regulations” created by the government nowadays mandate insanely bad things. This happened in CA when they “de-regulated” the power companies… expect they didn’t really de-regulated them they shifted the regulations to a different level of government and added more regulations…what happened? Rolling black and brown outs… so what did they do? They de-regulated the de-regulation and returned it to the only semi-bad regulation that they had before…

    Most ppl who oppose regulation have a reasonable position to support it… ie regulating something doesn’t equal fixing it. History has show this to be the case. Regulating something however gives the government more power and control…

    Most ppl who support de-regulation don’t have a problem with common sense and realistic regulation… most ppl who support regulation somehow think that passing laws, paperwork and granting the government insane control over thing(which they really use to do their job with)will fix the problem… that is simply not turn.Plus the fact that pretty much any form of regulation good or bad costs money… and the bad kind can cost alot of money…

    I’m all for good regulation… however I’m failing to find much in that vain thats been done recently… however I can find lots and lots of bad regulations that have passed and are being put on the table.

    Comment by robotech master — March 10, 2009 @ 12:58 am | Reply

  9. Most ppl who support de-regulation don’t have a problem with common sense and realistic regulation… most ppl who support regulation somehow think that passing laws, creating paperwork and granting the government insane control over things(which they rarely use to do their job with)will fix the problem… that is simply not true.Plus the fact that pretty much any form of regulation good or bad costs money… and the bad kind can cost alot of money…

    edit to fix spelling and put the correct words in… its 3 am heh.

    Comment by robotech master — March 10, 2009 @ 1:01 am | Reply

  10. Sorry. You post is problematic on two key points.

    The first one: “….Too bad for the people who died from salmonella poisoning from lax inspection of peanut butter…” The problem, you see, is not lack of regulation, but the ENFORCEMENT of relevant regulations. Poor enforcement is usually due to the high cost of enforcement. It is easy (comparatively) to pass a law, or write a code. But unless it is enforceable at a reasonable cost (one that society will bear), the law or code has no positive value. In our society, human life is valued greatly. As such, possible loss of life is to some people justification enough to for the government to pass more and more laws day after day (which take freedom away from individuals). I don’t agree with this view. A loss of life is fatal to the individual and tragic for his kin, but it is sometimes a price society is willing to pay for the freedom the society enjoys. We can, for example, reduce highway fatality to close to zero if we pass a law to lower all speed limits to 10 mph. Would we agree to do that? I know of no one who argues that we do not need regulations. The argument is usually if the regulation is sensible and enforceable.

    The second point I take issue with is your view of the position of Justice Thomas. I have not read his opinion. But just from what you say, it seems that he was commenting on the constitutionality of federal intervention on a state matter. He was neither agreeing nor disagreeing with the state laws in question. Conservative justices, like Thomas and Scalia, do not view their role as super judges who vote their own policy views.

    Comment by redmund sum — March 10, 2009 @ 1:07 am | Reply

  11. Conservatives are not against regulation. We are law and order people. We do view all laws and regulations with skepticism, as we are aware of the Law of Unintended Consequences. Laws and regulations can, and often do, make the situation worse.

    Glass-Steagall was a fine regulation that had been effective for decades. Why was it repealed in 1998?

    Mark-to-Market was a very bad regulation, passed as a response to the Enron mess. It and the CRA directly enabled the huge housing bubble.

    The writer is self-described as a liberal, and as such, has the usual misunderstanding of what a conservative actually believes. The truth is, anytime you delve into conservatism in all its simultaneous simplicity and complexity, you cannot find fault with any of its premises.

    Actually, one can, when one doesn’t realize the role of Judeo-Christian values in making it all work. A purely secular approach to conservatism fails. The moral restraint engendered by God’s values ties it all together nicely. The problem with Libs is, they are no longer men of God. Without the Higher Moral Authority, anything goes. Take out God, and Libs make sense. Put God back in, and they don’t. The opposite is true of Cons. With God, they make sense. Without, they do not. God is the paradigm.

    Comment by Marc Malone — March 10, 2009 @ 1:09 am | Reply

  12. Wait a minute! You mean to tell me that there were no food safety regulations in place at the time that the peanut butter company decided to use salmonella infected peanuts!

    The point is that our political system tends to overreact to regulatory failures by insisting on more regulations. As a result the vast majority of businesses who do not put peoples lives in jeapordy are forced to comply with even more government imposed cost for marginally incremental improvements (think SOX as an example). Ultimately these cost play out in either higher prices or lost opportunities for new products simply because the cost are to great for the potential benefit.

    Comment by Historical perspective — March 10, 2009 @ 3:26 am | Reply

  13. Why have an FDA if the drug companies are still liable to be sued under 50 different state laws? Is your next column going to be whining about how expensive drugs are? Maybe massive government intervention will solve the problem. That way my taxpayer money can be more efficiently transferred to lawyers.

    I have survived Sarbanes Oxley audits. I can assure you that the problem with U.S. corporations is not a lack of regulation. SOX and other onerous regulations are driving business overseas and suppressing entrepreneurship.

    What financial institutions are not regulated? Hmm. I know – Fannie Mae and Freddie Mac! Gee wiz I wonder why they aren’t regulated?

    Comment by Old Soldier — March 10, 2009 @ 4:22 am | Reply

  14. To further Mr. Thomson’s point, it was the conservative lawmakers who were clamoring for stronger regulation of Fannie Mae and Freddie Mac. The Bush Administration started calling for more regulation in 2001 and repeatedly echoed that call over the entire two terms but it fell on purposefully deaf democrat ears. John McCain had even predicted that, years before it happened, without enacting stronger regulations these entities would fail.

    How ironic that the lying liberal media would be able to pin the demise on one of the few persons who sounded the alarm and thus reward one of those most responsible for the current crisis. It is with great pleasure that I now observe the demise of that very same media.

    Comment by NY Andy — March 10, 2009 @ 4:23 am | Reply

  15. “I think it’s time to throw in the towel and admit liberals are right on this issue.”

    Meeting somewhere in the middle of this issue, doesn’t make ‘liberals right on this issue’. You can’t be a ‘little pregnant’- but you can have a little regulation.

    Comment by Craig — March 10, 2009 @ 4:33 am | Reply

  16. The problem is that some unfortunate events happen because of a lapse in enforcement of regulation. However, congress critters think “there oughtta be a law” and they want to feel relevant. Take for example the lead issue from China. Lead was discovered in some toys imported from China. The toys were pulled off the shelves voluntarily from the manufacturer and no one was harmed. But “for the children” want a draconian crusade against lead and want to destroy the collector and resale market. No product bought or sold should contain lead according to them. I wouldn’t be surprised if congress critters will want to get rid of the lead apon at the dentist’s office.

    Comment by mishu — March 10, 2009 @ 5:01 am | Reply

  17. Well, regulations MUST be enforced. Significant parts of this financial crisis is a result of regulators not doing their jobs.

    There is no excuse for regulators not catching the Madoff Ponzi scheme earlier. They had his ledgers, all they had to do was look at them to tell that they didn’t check out. Those regulators should be charged with criminal negligence for not doing their job.

    Comment by e — March 10, 2009 @ 5:03 am | Reply

  18. The right is not against regulation just dumb regulation and too much regulation. I always think the right’s push for morality that the left laughs at so much is the best kind of regulation, without the government getting bigger it is a breakdown of old school morality like not buying things you cannot afford that has lead to the problems we have had.

    also Please read my blog its new and I have no readers and I can used your guys help to get it off the ground

    Comment by Right Hit — March 10, 2009 @ 5:55 am | Reply

  19. “De-regulation did its part in destroying the economy by allowing banks to become “investment supermarkets”.”

    Well seeing as you lied on this one, it throws the rest of your story and claims into doubt. Rendering you no more than a demagogue.

    Anybody wonder why it is spelt “DEM- agogue” and not “REPUB-agogue”? Hmmnn.

    Comment by Fantom — March 10, 2009 @ 5:57 am | Reply

  20. If the Glass-Steagall act had not been repealed, Bank of America would not have been able to take over Lehman Brothers when it failed, and the financial meltdown would have been much worse. One of the things missing in this discussion is the distinction between laws to protect the public health and safety, and laws that try to tell business how to operate; i.e., laws that attempt to “manage” the economy, which is what is usually meant by the term regulation. The two should not be lumped together. Economic freedom does not mean the freedom to poison your neighbor or to use the earth as a sewer, it means, among many other things, the freedom to start a business and hire people according to your standards not the state’s, to price your products using your judgment not that of a government official. If the major political and economic lesson of the 20th century has not been the total abject failure of the idea of a regulated state, what has it been?

    Comment by Jim M — March 10, 2009 @ 6:44 am | Reply

  21. A note: Conservatives don’t think regulation per se is bad; we think that excessive regulation that destroys economic and organizational inertia, reduces individual initiative, and otherwise erects high barriers of entry to ordinary commercial activities is bad. Well, maybe not all conservatives, but I think it’s a sensitive approach.

    Regulation needs to be applied with an eye towards overall economic first-, second-, and third-order effects. A “feel-good” law does not necessarily make things right. For example, look at gun regulation. Does it typically make people safer? No. Please observe Mexico for what happens when a gov’t limits the rights of citizens to bear arms. Does the average Joe Q. Public need a 25mm Vulcan Cannon? No. That is a sensible restriction. But, for instance, the recent law passed re: lead limits in toys and other goods is a great idea– limit lead– that will have vast and unanticipated negative side effects because it was poorly written and hastily delivered. Sarbanes-oxley: Good or bad? The act which encouraged/forced banks to issue sub-prime loans– good or bad? Statutes against embezzlement– good or bad? It goes both ways.

    Regulation, like water, salt, and many other things, can have positive effects and negative effects. Conservatives are against it when it stifles innovation and economic and personal freedom.

    Comment by retrophoebia — March 10, 2009 @ 6:46 am | Reply

  22. Regulation didn’t cause the financial crisis:

    http://www.cato.org/pub_display.php?pub_id=9788

    And if contaminated peanut butter kills some people then the police should investigate, find out if anyone could have reasonably been expected to prevent those deaths and if so what charges can be pressed against them, e.g. – manslaughter.

    Comment by Alan Forrester — March 10, 2009 @ 7:05 am | Reply

  23. Thomas, in opposition to pro-business conservative Justices Roberts, Scalia and Alito, took a longer, wiser pro-federalist, rational pro-capitalist view that the federal government shouldn’t have the right to interfere with states’ consumer protection regulatory laws

    In other words, he defended the Constitution, which grants the federal government virtually no authority to regulate what goes on inside a state. The only reason that the federal government is able to do so is because of tortured reasoning on the part of ideologues on the Supreme Court in the past.

    Comment by Mike T — March 10, 2009 @ 8:00 am | Reply

  24. Alan Forrester @ 22, I think you mean “deregulation” didn’t cause the financial crises. Which is the crux of the point your CATO link puts forth.

    Good read BTW, I read it a while back, I think IBD posted an article on it.

    Comment by Fantom — March 10, 2009 @ 9:13 am | Reply

  25. I am usually the first to cast scorn on Thomas’ opinions, but in this case, I am glad to see that he defends the right of the people to protect their interests at the state level without interference from the feds. If only this opinion extended to a few other areas where the feds have over-reached…

    Peace.

    DS

    Comment by David S — March 10, 2009 @ 11:30 am | Reply

  26. I think it’s time to throw in the towel and admit liberals are right on this issue.

    Rosenbaum – 1, Strawman – 0

    Geez, I hope you didn’t get paid for this silly drivel.

    Comment by submandave — March 10, 2009 @ 12:13 pm | Reply

  27. I’ve been thinking about this a lot and cogitating, and I’ve come to a conclusion. Conservatives tend to be *reactive*, while liberals tend to be *proactive*. To my mind, this doesn’t make liberals, or for that matter conservatives, better or worse, it’s just the difference.

    To elaborate on this distinction, consider these examples. You’ll never hear a conservative support a tax increase because “the voters can afford it” but you’ll often hear liberals support them on such grounds. Conservatives think that the liberal does this because he hates wealthy people, but forgets that a lot of liberals *are* wealthy. You should have seen all the Obama signs in the rich neighborhoods near my house in California. A lot of people voted to increase their own taxes. The point is that a liberal wants taxes raised because it’s possible; while the conservative wants an actual need for the tax dollars first.

    Regulations are the same thing. Set up any sort of innovative enterprise, and somewhere a Democrat will see an opportunity. A new bureaucracy, a new agency, new regulators, new regulations, a new supervisor or fifty, a new cabinet position, so many new things are *needed*, because something has been set up that we need to regulate. All the people employed in these departments will be members of public service employee unions, of course, and contribute money to the Democratic party in perpetuity.

    The biggest problems with the Democrats and their ideas on this subject are unintended consequences and the invulnerability of government bureaucracies. Ronald Reagan appointed a head of the Rural Electrification Administration whose brief was to shut it down, because its mission had been fulfilled. They gave up at the end of Reagan’s first term, because the opposition from Congress was just too strong. Ariana Huffington was on the Tonight Show last week talking about the government “temporarily” taking over banks. Leno actually scoffed at her, retorting that “the Government never takes anything over *temporarily*”. Nevertheless, she and others on the left feel that this is a workable solution, and I fear Leno’s pronouncement is true, also.

    In sum, a liberal thinks that the government should do something, because it can, and it might help. A conservative thinks the government shouldn’t do something, until he can see a clear need.

    Comment by DavidN — March 12, 2009 @ 1:40 pm | Reply

  28. @27. DavidN:

    I’ve been thinking about this a lot and cogitating, and I’ve come to a conclusion. Conservatives tend to be *reactive*, while liberals tend to be *proactive*. To my mind, this doesn’t make liberals, or for that matter conservatives, better or worse, it’s just the difference.

    Actually, it seems to me that if this is the fundamental difference between liberals and conservatives, conservatives are always doomed to failure. Without being proactive, all you can do is wait for a crisis and throw up your hands.

    A liberal thinks it is better to prevent a crisis than to willfully ignore the signs of impending disaster. That is inherently a more intelligent position, and guaranteed to be more successful in practice. It’s not about excessive government control of anything – it’s about intelligent governance that considers all the ramifications before acting, and works to correct mistakes in a timely fashion.

    Liberals believe in the scientific method, and are willing to look at the evidence, construct a hypothesis, and perform the experiment. Conservatives believe in dogma, and are willing to ignore any evidence that contradicts their belief, including the complete failure of their policies.

    Liberals are proactive, in that they explain this distinction before the damage is done. Conservatives are reactive, in that they react as if they had nothing to do with the damage their policies caused, and cast blame for the damage on anyone but themselves.

    It’s pretty easy to tell the difference.

    Peace.

    DS

    Comment by David S — March 15, 2009 @ 10:16 pm | Reply


RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Create a free website or blog at WordPress.com.

%d bloggers like this: