Are There Muppets in Galt's Gulch?

The op-ed by soon-to-be-ex Goldman Sachs employee, Greg Smith, is getting plenty of attention on the internets this morning. Called, “Why I Am Leaving Goldman Sachs,” the letter is a fine exemplar of the genre of bridge-burning parting shots by exiting employees. See also here and here. Smith excoriates the firm for what he says is its shift toward viewing clients only as profit centers, with the success of the client’s investments a distinctly, well not even secondary goal. Clients, it turns out, were often called “muppets.” On Twitter, Andy Borowitz went on a tear, tweeting: “BREAKING Goldman Reassures Clients: ‘All the Other Assholes are Staying.’”

I want to draw attention to one paragraph that captures the essence of the problem here.

What are three quick ways to become a leader? a) Execute on the firm’s “axes,” which is Goldman-speak for persuading your clients to invest in the stocks or other products that we are trying to get rid of because they are not seen as having a lot of potential profit. b) “Hunt Elephants.” In English: get your clients — some of whom are sophisticated, and some of whom aren’t — to trade whatever will bring the biggest profit to Goldman. Call me old-fashioned, but I don’t like selling my clients a product that is wrong for them. c) Find yourself sitting in a seat where your job is to trade any illiquid, opaque product with a three-letter acronym.

In simple terms, Goldman seeks to profit by encouraging clients to enter deals on bad information it provides.

The very reason we like private transactions is that we think people who trade with one another each want what the other has. They’ll be better off if they trade, and, therefore, we’ll collectively be better off. When you buy a car, you value the car more than the money you give to the dealer, and the dealer values the money more than the car. Simple. Here, Smith says, Goldman’s doing two things. It’s conveying information to clients in order to make them value a trade erroneously (erroneously form Goldman’s perspective). Then it’s transacting with them in a way that enriches Goldman but, presumably, impoverishes the client. And there’s no guarantee that Goldman’s gains even outweigh the client’s losses. You’d think the mortgage crisis never happened.

Economists may well suggest that we’re getting an efficient level of bad deals here. That is, clients don’t invest in obtaining more information on their own, because the marginal increase in deal quality that better information would give them is not worth the cost of acquiring it. Maybe, but this is a problem that repeats itself, and one wonders if this is really the best we can do. Your mechanic tells you that you need a new engine. The doctor tells you that you need a surgical procedure. The air conditioning repairman says that you need a new compressor. What do you do?

The simple fact is that our counter-party in each of these scenarios is wearing two hats. There is not one transaction, but two. On the one hand, they are our information agents, meaning that we are relying on them, and often paying them, to produce the information needed to decide whether to engage in a transaction. On the other hand, they are our prospective partners in that very transaction.

The case for regulation, for imposing legal duties on parties that both provide information and profit from our use of the information, rather than allowing the free market to do its thing is greater as the costs of getting a second opinion (in time, effort, and money) go up and as the cost on the agent of acquiring the information it’s withholding or distorting go down. (For a classic discussion of this, see this article by Richard Posner, especially page 21 about fraudulent nondisclosure.) In all of the above cases, there’s significant hassle in acquiring additional information — so much so that people often prefer investing in online systems to distribute information about trustworthiness (like yelp) to shopping engaging in more than one transaction to acquire information.

Now, there are of course costs that would owe to regulation here, perhaps even large ones to the extent we do more than punish outright, conventional fraud. And I’m not trying to make the case for any particular response. (I’m just kind of scratching around in this post.) Rather, I just found this to be an example of one of the many ways that free markets are not really free. They may, or may not, be freer than the alternative. But we are constantly boxed in by the state of our own knowledge, at the mercy of others whether we like it or not.

The Failures of Freedom

Few notions are as destructive of human welfare as “freedom.” The problem lies in the word’s siren-like allure combined with its clay-like malleability. Who doesn’t want freedom? It’s one of those words that chiefly calls to mind its opposites: slavery, obedience, constraint, “a boot stamping on a human face forever — forever.” Whatever freedom might mean, surely it’s something we’d far prefer to the alternatives. That is until we reflect on the suffering and atrocity, not to mention more minor corruptions, inflicted in freedom’s name.

There are three domains, three kinds of markets, in which the concept of freedom has in recent times been unleashed as a kind of apex predator of the law. Two of them, economic markets and government, have since been exposed as far more complex than starry-eyed libertarians or collectivists wanted to admit. In one of these, the marketplace of ideas, this predator still roams free, destroying laws that can be characterized as regulating speech. Under the guise of freedom, the modern interpretation of the First Amendment tends to perpetuate a laissez faire market for speech replete with market failures and catering to powerful interests, just like the judicial enforcement of freedom to contract kept in place the lopsided, failure-filled laissez faire economic market that preceded the Great Depression. That is the real story of Citizens United. All of this has happened before, and all of this will happen again.

The Free Speech Talisman

In the United States, the freedom of speech is venerated as our highest ideal, maybe our greatest achievement, and perhaps even constitutive of what it means to be an American. Our nation professes to have adopted lock, stock, and barrel Evelyn Beatrice Hall’s characterization of Voltaire’s speech ethic: “I disapprove of what you say, but I will defend to the death your right to say it.” And so, we have upheld the rights of Neo-Nazis to march through a town inhabited by many holocaust survivors and to display the swastika as proudly as they would like. We have struck down a statute that attempted to criminalize sexually explicit images that appear to feature, but do not actually feature, minors. We have famously upheld the right of Hustler Magazine to make fun of televangelist Jerry Falwell by stating that his sexual debut was with his mother in an outhouse. The freedom of students to protest the Vietnam War by wearing black armbands. The freedom of civil rights activists to criticize harshly and even if slightly mistakenly the state police. The freedom to burn the U.S. flag.

These cases, and many others, stand for the idea that we are truly free to express ideas that are inimical to others. Here is a bit from the influential dissent of Justice Oliver Wendell Holmes, Jr. in Abrams v. United States:

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.

Holmes asserts not only that speech and ideas are bandied about in a marketplace but that our Constitution requires that market to be free. The Darwinian selection of The Best is made possible by judicially protected laissez faire. This idea has held on, won out, and delivered to us the line of free speech cases trumpeted in books and films for protecting the powerless and the unpopular.

Economic Markets

Even as he wrote the words above, Holmes was also in the dissenting minority in cases striking down congressional regulations of economic markets. Fourteen years earlier, Holmes had dissented from the now-infamous decision of the Supreme Court, in Lochner v. New York, to strike down a New York law prohibiting bakery employees from working more than ten hours in a day. There, he wrote that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” And in a case decided four years after Abrams, the speech case above, Holmes dissented when the Court struck down of a minimum wage law on grounds that it unconstitutionally interfered with the “freedom of contract.” Holmes believed the Court should defer to legislatures adopting a non-laissez faire theory of economics, including those which, and here he quoted a law review article, “freedom of contract is a misnomer as applied to a contract between an employer and an ordinary individual employee.”

Throughout this period, a number of influential scholars were busy attacking courts for their formally pro-freedom but substantively pro-business agenda. The legal realists, as they are known, included figures like Robert Hale, who along with Wesley Hohfeld pointed out that freedom in a legal sense is a relative concept. My “freedom” to do something necessarily means, roughly, that someone else is disabled from stopping me. You don’t, then, add freedom to a society by refusing to regulate private transactions. Rather, logic dictates that one needs some additional, moral principle to evaluate which kinds of freedoms and whose freedoms to choose over others. These and other scholars established that, rightly or wrongly, many courts had promulgated law that was cloaked in the language of neutrality and freedom but in fact favored the freedom of the wealthy by aggressively protecting their “rights” to coerce the less well off. Spurred by the economic disaster that was the Great Depression, strong empirical evidence that laissez faire sometimes fails massively, the case for market regulation prevailed — at least in the Supreme Court. Ever since, Congress and the states have been pretty much unrestrained by the courts in their ability to regulate markets. No longer is “freedom” used uncritically to prohibit market regulations intended to correct failures or to redistribute in the interests of fairness or to prevent undue suffering.

Over the years, economists have added criticisms of markets that are interior to market ideology. By that, I mean that they have described a number of circumstances in which markets fail to deliver efficient results, where the voluntary participants are made objectively worse off by their participation, under pretty much any moral theory you choose to apply. Market failures occur for many reasons, including, for example, the wasted expenses necessary to complete a transaction (transaction costs), monopolies, and the fact that individual behavior is often allowed to affect others without their consent through payment (e.g., pollution, an example of an unpriced externality). It’s not important now to understand all of these, but the point is that an unregulated market can sometimes bring terrible results, even if we measure results by aggregate wealth alone. For one example scenario, see Garrett Hardin’s Tragedy of the Commons (skip down to Tragedy of Freedom in a Commons) describing how rational, unregulated herdsmen grazing cattle in a common pasture might be locked into a losing game of putting cow after cow on the increasingly degrading lands despite all recognizing the insanity of the situation.

More recently, legal scholars have started to be more systematic in analyzing the case for market regulation, or deviations from laissez faire, in terms of the predictable irrationality of the human brain. Economic transactions can be inefficient, in the sense that they make the actors involved jointly worse off, because of their refusal to ignore sunk costs, their predictable overoptimism, loss aversion, and other psychological curiosities. (Both law and economists and behavioral law and economists are concerned with more than just market regulation and apply their techniques in many areas of the law. I recognize that. What I’m not aware of, though perhaps it exists, is a systematic study of the failures of speech markets.)


Just as it was with economic markets, the dream that free political systems can deliver great results if only the voters are free to express their preferences at the ballot box has been discredited. The market for votes is as infected with endemic problems as the market for dollars. Here, the dominant critique is known as public choice theory and has as its objects special interests, rent-seeking, the capture of regulators by regulated parties, and the like.

My point here is only that freedom, defined as the relative absence of regulation, counting on voters to regulate with their votes, sometimes fails within governments, just as the absence of regulation can lead to failing markets. This is well known, well described, and non-controversial. People dispute the extent, the qualities of the problems, the appropriate solutions — sure. But laissez faire as a theory of political and economic market regulation is a dead letter, while the sources of problems in these markets and the search for solutions is hopping.

Speech Markets

When Holmes extolled the virtues of a free marketplace of ideas, he was writing against a majority that approved of a ban on core, political (though revolutionary in the midst of a war) speech. It was a little like extolling the virtue of freedom in an economic market to decry a government’s outright seizure of an average person’s modest home. Rhetorical defense of a libertarian position in one case is understandable. But Citizens United seems to me a sort of endpoint, at which Holmes’s marketplace model has hit upon its ultimate expression. If you’re not familiar with it, the ruling struck down a federal statute preventing corporations and unions from spending corporate money to advocate the election or defeat of political candidates.

No matter how apparently broken the market, market participants, in whatever form, have the constitutional freedom to work it out themselves. As Justice Kennedy wrote, to uphold an earlier Supreme Court decision allowing such regulation would “interfere[] with the ‘open marketplace’ of ideas protected by the First Amendment.” And as Justice Scalia said, defending the decision at a meeting of the South Carolina bar, “I don’t care who is doing the speech — the more the merrier. People are not stupid. If they don’t like it, they’ll shut it off.” And just like that, just like Lochner before it, the freedom of the individual is the sword the Court wields to block attempts to rescue a failing market.

Now, there are ways to attack the kind of thinking embodied in Citizens United that take issue with the very conception of the freedom of speech as a free marketplace. Alexander Meiklejohn, writing in 1948, attacked the marketplace of ideas approach, taking Holmes’s dissent in Abrams as a focal point. For Meiklejohn, conceiving of the freedom of speech in market terms was mistaken from the start. Rather, the right model was the town hall meeting, at which each citizen could speak his mind and be heard. The freedom of speech is about not the “words of the speakers, but the minds of the hearers.” It is not an unregulated, noisy clash of ideas, but an organized but free airing of them, calculated to enlighten the listener.

Markets not only diffuse means of production but they diffuse purposes. For the libertarian speech advocate, the freedom of speech includes the freedom to disagree about the purposes speaking to one another should serve. As I said above, I believe that the marketplace view has held out against such attacks and rules judicial intuitions across the land. But that’s not a stopping point, only a starting point.

What I would like to see more of is the “free speech legal realist.” Broad considerations of freedom allow, perhaps even subconsciously, courts to sweep under the rug the consequences of their interventions. But markets can and do fail. Implicit in saying that is that there are some criteria of success, or purpose. There need not be only one. As with economic markets, there could be patterns of transaction that deliver poor results under any conceivable rationale.

Our political campaigns are an example of the failure of the speech market to live up to our ideals. I am certain some will argue that the problem with campaigns is that there is too much regulation. But surely we can detect the hint of the failure of laissez faire by observing just how awfully electioneers make use of the freedom they already have. Can anyone honestly look at the body of campaign speech and at the polling evidence concerning how people consume that speech and reach decisions and fail to say that the open exchange of ideas has failed to lead to more informed decisionmaking? Modern political campaigns, like all other advertising, sell emotion: fear, identification, hope, purpose. The more money you have to secure broadcast to the masses, the more of it you can shovel. As Dahlia Lithwick ably points out, it’s actually Stephen Colbert who is doing the best work laying out for all to see the ways that the market in campaign speech is a mess. Though his medium is hilariousness, his role is not unlike Upton Sinclair’s in writing The Jungle, which exposed just how unfree and miserable life as a cog in the laissez faire free market could be. Sinclair wrote of the brokenness of the economic market then protected by the Supreme Court, while Colbert lampoons the speech market now protected by the Supreme Court.

My purpose here is only to provoke the more careful, internal study of speech markets and their failures. Do people assume the relative volumes of speech on either side they encounter reflect the volumes of support in the public? Do transaction costs (here, collective action problems) prevent coalitions of large groups with somewhat milder preferences from securing limited media space that is easily secured by smaller groups with more intense preferences and access to capital — and do voters draw the correct inferences from the presence of the latter and the absence of the former? Do certain emotional cues play on biases that listeners themselves would like to overcome? Are listeners as prone as our media to believing that anytime there are two opposing assertions the truth lies in the middle, incentivizing extreme speech by candidate proxies? Is there a tragedy of the commons at work with negative and non-substantive campaign speech, a sort of game that drives the participants to a discourse no one would choose — the slavery occasioned by freedom? What other psychological quirks of the human brain are exploited by speech in a free market in ways that drag us all down?

Some evidence that regulations intended to ensure higher signal to noise could be fruitful, other than the common sense of one subjected to typical campaign speech, is the effect of deliberative polling. But I don’t intend to lay out the case here.

As with economic markets, the failure of the speech market does not automatically imply the superiority of regulation, for government failure is also possible. I call only for an honest appraisal, a search for truth concerning this marketplace or ideas. When does it go wrong, and why? No more hiding behind a “freedom” that has us collectively in chains.


Human beings like to find out not only what people say but why they say what they do. The impulse to search for motivation, I’m guessing, is highly adaptive. In many circumstances, it serves us well. And it even contributes to valuable discussion. When I hear what you mean and not what you say, I’m able to be more generous and more responsive. It’s a tenet I try to follow.

Like most traits, however, the search for motivation has downsides. When we ascribe bad but hidden purposes to our enemies, we start down a useless and destructive road. Most recently, I have in mind the assertion that those advocating a higher marginal tax rate on high wage earners and increases in tax rates on unearned income do so out of “envy.”

I don’t know how often the various political factions engage in motive-fixing. I feel it most acutely when conservatives ascribe to me reasons for my positions that I know I do not have. And it’s not only in politics. I’ve been lumped in as a purely status-conscious computer consumer on account of my longstanding use of Apple gear. In reality, I’m a nerd, not someone trying to adopt a look or posture by my choice of nerd equipment.

So what of this “politics of envy” thing? Obviously, I can’t say that everyone who advocates for higher top marginal rates does so for reasons unrelated to coveting the privileges of the wealthy. I only know for sure that I am not and never was so envious of such things that it led me to advocate for forcible redistribution. Many people would prefer to acquire more wealth, sure, and a salutary social goal is to increase everyone’s wealth. But just because someone would like to make more money does not mean that they are so jealous of those who already do that they want to seize that wealth for that reason.

That the public advocates for more progressive taxation are not motivated by envy strikes me as so obvious that I, naturally, wonder at the motivations of those who suggest they are. But this takes us further down the road from debating the actual question in front of us. Once we start the motivation war, I’w swept in. Frankly, I think the “envious of the rich” message bearers are of two types. First are those who know it’s bullshit but need the appearance of an argument that has emotional appeal. They need this so that cable news can present the debate as having two sides and therefore a matter of opinion rather than an analysis of facts. They need it also to check the impulse of the struggling to complain about their lot. To do so, the envy-propagandists assert is to be truly sinful. Nothing keeps the disadvantaged in line like really making them feel they have a moral duty to stay there.

Second are those who actually believe that progressive advocates are envious of their greater wealth. I suspect that, in many cases, holding that view is a strategy to dissipate cognitive dissonance. The people advocating for taking more of my wealth are envious. They want to be me. On that, they have rights far inferior to mine. So my keeping my wealth is not selfish, as giving it up would not be for a public purpose but only to enrich the looters - and I should decide how I want to help my fellow man. In this way, the idea that some additional redistribution might actually increase the size of the pie in addition to alleviating some suffering is cast aside, and the negative feelings about one’s own selfishness are forgotten.

You see how these suspicions about the motivations of the other side do very little for us? In speculating, I’ve just taken us further down the spiral and away from what’s actually at stake. But how are we supposed to respond to a charge of “envy”? That emotional appeal is just not effectively combatted by sober analysis showing, in a nutshell, that a society is more prosperous, including its rich, when a very broad part of it can comfortably buy shoes, computers, games, food, and other goods. Even if you’re unmoved by appeals to do what we can to decrease suffering, you can surely understand that some distributions of wealth generate greater gains over time, just like some allocations of capital within a firm will promote better growth than others - and that the market may not always deliver optimal allocations.

But the envy-peddlers have sought to turn a policy debate into a base, emotional one. I’m not one who believes emotion should be drained from politics, but calling out your opponent for what you believe is his or her motivation injects emotion in all the wrong ways. I wish we could expunge it from political discourse. As suspicious as I am of the motives of the Republican leadership, I’m going to try to keep my mouth shut about it. What matters is to debate what they say, not what I think their ultimate purpose is.

This is all a somewhat long way to say that in all walks of life that involve disagreement, we need to foster a generosity of spirit. The cost of that is being occasionally played for the sucker in someone’s long game. But intelligent engagement with the immediate arguments is often sufficient to disrupt any such longterm, nefarious plots. And it’s a far better way to live one’s own life.

If a belch is accompanied by citations, should we take it seriously?

Newt Gingrich almost never meets a problem that can be fixed with anything short of a fundamental change in the operation of the Republic. His is a disposition that can only be called conservative through the lengthening political kaleidoscope of the last three decades, during which — and this is the key to understanding our current state of affairs — national Republicans have gradually ascended their own version of the Ivory Tower, one so lofty even its foundations float high above in the twisted nether, as Democrats have increasingly embraced pragmatic pursuit of near-consensus goals. (These pursuits go unchecked by any sort of equally pragmatic opposition more disposed to worry about unintended consequences, you know, the office that used to be held by conservatives.) But lofty ideals must at least be ideals, with some hint of reason, not simple tribalism surrounded by quotes from the Federalist Papers.

A recent Gingrich target is the authority of judges to pass on the meaning of the Constitution, with only the prospect of constitutional amendment, impeachment, and new appointments to restrain them. Among the sources of Gingrich’s outrage is a now-void ruling by the Ninth Circuit that Congress acted unconstitutionally in the 1950s when it added the words “under God” to the Pledge of Allegiance. Yes, one of the chief arguments for changing the modern federal order is Gingrich’s dislike of a Ninth Circuit decision that was overruled by the Supreme Court. As Dahlia Lithwick points out, if one dislikes the Ninth Circuit’s opinion, that is was overruled is evidence that the judicial branch actually works.

Sure, Gingrich has other targets: the cases deciding that captured human beings confined far from any battlefield at least have the ability to challenge aspects of that confinement in courts, for example. But other cases striking down acts of Congress, like the invalidation of campaign finance restrictions in the name of a corporation’s right to free speech in Citizens United, are in his words “principled” and should be “appreciate[d].” Abortion decisions, limitations on the death penalty, the potential for one day recognizing equal rights to marry — all are judicial usurpations or “assaults.” Heller, striking down local gun control laws is nowhere to be found. The common thread? The political branches and states should have some sort of power to ignore some kinds of decisions but, apparently not others. Oh, and everyone should be originalists.

Eric Posner, writing for Slate, suggests that Gingrich’s views on this “deserve serious consideration.” I think Posner is correct that the proper arrangement of branches — the design of the informational network of the institutions that comprise the federal government — should be further studied and debated. I’m writing about this, because it’s an area I find fascinating. And I hope to blog about some work I’m doing on the conditions under which law, constitutional or otherwise, legitimately binds future generations and the implications for interpretation and institutional arrangement.

Posner, though, is also correct in his closing paragraph: “Gingrich fancies himself a big-ideas man, but he is really just a politician with an interest in history and a penchant for bombast, and what he needs are ideas that will carry him to the White House.” Dahlia Lithwich has grappled with why Gringrich chose to make this an issue. Maybe it’s easy to bully courts, because they can’t talk back. Maybe he’s trying to shore up hard right support with bluster that he thinks other segments don’t care as much about. Who knows?

One thing is clear, though. Gingrich only deserves credit for advancing the conversation in the sense that he’d deserve it for wondering aloud, perhaps after watching a NOVA special, whether the universe would go on expanding, and suggesting that it indeed would — leading physicists to say that, well, there’s actually debate on this and that Gingrich deserves credit for raising the profile of the issue. But no one would conclude that Gingrich’s foray into physics speculation made him the right choice to lead a team of scientists trying to answer the question. He has shown no more precision, expertise, or ability on the issue of the judiciary’s role.

This won’t generally be a political blog, but what has stuck in my craw over the past few days is the suggestion that Gingrich has advanced a policy at all, much less a serious one. At a minimum, we should expect a presidential candidate campaigning on a policy to identify a problem and suggest what he or she would do about it. Gingrich’s position paper and statements do not come close to doing so. They fail to tell us the problem, fail to specify solutions, even by the gauzy standards of presidential politics, and amount to nothing but bluster, gussied up all law-history-like with citations to Framers, scholars, and judges, most of whom don’t even support the general principle Gingrich seems to advocate.

I think, even though he has taken some heat in the press, that Gingrich gets away with it because it’s a legal issue — both (a) technical enough for many people to defer to the white coat that is the multi-page document dripping with citations and (b) basically unfalsifiable. This is a real problem when it comes to public debates about the courts. Too many people either defer to supposed experts or fail to think deeply enough about what courts do, or they all too eagerly accept a citation-loaded white paper that bolsters their political priors. And political-legal arguments are thus free to float around without even the minimal criticism candidates receive when they talk about the budget or military conflicts, and these “out there” arguments can be cited to prop up the intellectual bona fides of the ones who advance them. (But see Bork hearings.)

Gingrich has somehow managed not to take complete advantage of the dual shield afforded by the nature of law, because he fails to provide a credible account of what he thinks the problem is and how he thinks it should be solved. Sure, he has identified a problem but only in the vaguest sense: that the Supreme Court has reached decisions with which he disagrees and that, on those decisions, the Court should not have the final word. He gives us no criteria for determining when other institutions should be able to overrule the Supreme Court. And what are his suggestions assuming there were some class of decisions open to political reversal? As far as I’ve been able to glean from his position paper, they come down to:

  • The Executive has unilateral power to nullify rulings on “certain national security” issues.
  • “[A] nationwide watchdog” group will be charged with “monitoring the courts and engaging the state legislatures whenever the courts behave radically.” Who knows what “radically” means other than perhaps decisions Gingrich dislikes.
  • State officials could “issue warnings to the federal judiciary about the consequences of the judicial branch exceeding its powers.” I defy anyone to explain what this means.
  • When Congress and the President disagree with the court, or as Gingrich puts it when “it is two branches against one,” the Court can be ignored, at least in an “area where the Constitution empowers the executive and legislative branches.” Of course every piece of legislation involves the consent of two branches, and since legislation is presumably within their power. So what does this mean? No idea.
  • Taking a cue from Lincoln, the President could order agencies “in certain circumstances” to interpret Court rulings as applying only to their facts, and not establishing broader rules. What circumstances?
  • Congress could go to war with the Courts by stripping jurisdiction and reducing or eliminating funding. Why and when?

Contrast this with other conservative targets of ire. Immigration? We’re told the problem is too many illegal immigrants and that the solution is building an electric wall. Terror? We’re told the problem is terrorist attacks and that the solution is war and torture. The economy? We’re told the problem is unemployment and that the solution is drastically cutting government spending. I don’t agree with any of these, or even the less caricatured versions of them, but at least they cite problems and suggest solutions, ones that can involve the public in debate.

I think, on the merits, Gingrich is wrong that there’s an actual emergency here, of whatever nature. I gather he fails to appreciate fully the dynamic institutional framework that we actually have. But, more fundamentally and narrowly (!), I disagree with Posner that anything Gingrich has said or written deserves serious consideration. Posner, himself, has very interesting things to say on this topic. Gingrich does not.