DRI-365 for week of 4-14-13: The Pattern of the Anointed Strikes Again, Part Two

An Access Advertising EconBrief:

The Pattern of the Anointed Strikes Again

The previous EconBrief related “The Pattern of the Anointed” – the social theory of the great black economist Thomas Sowell. This pattern describes the perverse cycle of crisis, policy solution, result and response by the dominant elite, who consider themselves anointed to dictate the course of our lives. Not only do the big-government solutions prescribed by the anointed fail to alleviate the perceived crisis, but they actually make the situation worse.

To add insult to injury, we subsequently learn that the crisis never existed in the first place. The unfortunate circumstances represented as a crisis in desperate need of federal-government intervention were really an improving situation – which federal intervention worsened.

Sowell elaborated three classic case histories of the Pattern, each taken from the rise of big government in the 1960s: the War on Poverty, the ubiquity of sex education in public elementary and secondary schools and the Warren Court’s “criminal rights” revolution of the 1960s and early 70s.

Alas, the Pattern is alive and well and thriving in the United States today. A current, ongoing example is provided by the regulatory and legislative jihad against “distracted driving.”

Background: Annual Driving Fatalities in the United States

For nearly a century, one of the leading causes of accidental death each year in the United States has been motor-vehicle accident. In 2011, over 30,000 people lost their lives from this cause. Statistics from 2012 are slow coming out, but extrapolation based on third-quarter figures suggest that last year saw the first rise in motor-vehicle deaths since 2005. This would also result in an increase in the fatality rate, calculated as the average number of deaths per 100 million vehicle miles traveled. This would be regrettable under any circumstances but it is extremely puzzling in historical context.

The trend in highway fatalities has been level or downward since 1988, with only small increases and an overall decline from about 47,000 yearly deaths to about 32,000. Evaluating in terms of fatalities per 100 million vehicle miles traveled – a much more accurate measure of driving safety – the trend is even more striking. In 1921, this figure stood at 24.1. By 2011, it had fallen to 1.05. The trend over that 90-year period was sharply downward, a few increases being interspersed with steady declines. (The most accurate measure of all is fatal accidents per 100 million miles traveled, but this figure is often unavailable.)

This context is what makes 2012 so startling. Previously, we had a very long and relatively continuous period of declining deaths and steadily improving safety. Then in 2012 we have an abrupt interruption and reversal of this trend just as it had reached an apex. Even more unlikely, the increase in fatalities came during a time of economic adversity, when people drive less and fatalities normally decline. Explaining the trend is hard enough; explaining the reversal is even harder.

Still, an economic detective has instinct and experience to go on. Long-term beneficial trends are usually the outcome of free markets. Sudden downturns into decline usually showcase the visible hand of government at work.

The “Crisis”

The reality of driving safety forms the backdrop against which government pushed a crisis agenda with driving safety as its rationale. That agenda was pursued on two fronts. The first was professional.

When the Obama administration came to power in 2009, it inherited a revamped plan for trucking-safety regulation called “Comprehensive Safety Analysis.” Since it was due to take effect in 2010, it acquired the shorthand tag CSA 2010. In the event, full implementation of CSA 2010 was delayed until 2011. Ostensibly, it was designed to improve trucking safety by more thoroughly evaluating motor carriers and truck drivers utilizing modern statistical techniques.

CSA 2010 had two predecessors, “SafeStat” and SAFER. SafeStat included data on accidents and moving violations based on state and local enforcement. Unfortunately, the data was questionable; enforcement and terminology varied widely between jurisdictions. SAFER employed date from compliance reviews conducted on the basis of random samples. While this improved the quality of the data, it left most carriers unscrutinized and ignored outside data. Federal regulators felt that neither of these two systems produced results reliable enough to allow the public to gauge the safety of motor carriers or drivers.

CSA 2010 applied a statistical approach by considering all data on all carriers and drivers. It developed a statistical data base and assigned safety ratings to companies and drivers. (The former were released to the public, the latter made available only to companies.)

In addition to CSA 2010, the Department of Transportation urged companies to test drivers for health conditions such as sleep apnea. Its avowed aim was to rid the industry of unsafe companies and unsafe drivers. The tacit premise behind this push was that market competition was not equal to this task.

The second prong of the government’s safety approach was pointed toward the general public and given the label “distracted driving.” Two forms of behavior have been singled out for condemnation as uniquely distracting to drivers of motor vehicles – the use of cellphones and texting.

The campaign against cellphone use by drivers accelerated markedly with the accession of the Obama administration. DOT Secretary Ray LaHood vowed to ban cellphone use in cars. So far, bans on cellphone use by all drivers have been legislated by 10 states in the U.S. and the District of Columbia. School-bus drivers have been denied the use of cellphones in 19 states and D.C. Texting bans have been even more popular, gaining legislative approval in 39 states and D.C. Bans for teenage drivers only have passed in 5 states. School-bus drivers have been forbidden to text in 3 states.

While cellphone research has distinguished between the distraction afforded by dialing and conversing, the impact of the distinction on the public debate is unclear. The greater restrictions placed on texting may reflect this. The really remarkable outgrowth of research, though, is the devastating effect it has had on the government’s position.

The Results: Once Again, the Pattern’s Effects are Perverse

Thomas Sowell pointed out that the results of the Pattern of the Anointed are doubly ironic: Not only is the supposed crisis giving rise to government action non-existent, but the results of the action actually make the situation worse.

In this case, we have seen that no driving safety crisis existed. Over the long term, both highway fatalities and fatalities per 100 million miles have been declining steadily as long as the data have been collected. In the short term, deaths have been falling since 2005 and the fatality rate has been falling for over 15 years.

What is more, these declines have been occurring alongside the growth in driver distractions that supposedly constituted the crisis. According to one of the most reliable sources of highway safety data, the Insurance Institute for Highway Safety, as of June 2012, cellphone subscribership was up 240% since June 2002 and 32% since June 2009. The 2.3 trillion minutes of cellphone use constituted an 18% increase since June 2009. Text messages were 9 times greater in number than in June 2007.

If cellphone use and texting are a driver distraction – and research suggests at least some support for this – why didn’t this distraction cause the fatality rate to increase, or at least halt its decrease, during this decade? Perplexing as this question might be to the anointed, it cannot begin to compete with the next one.

Research also shows that cellphone bans have been effective in reducing cellphone use. In at least one state (New York), fatalities even fell after its cellphone ban. But neither cellphone bans nor texting bans were effective in reducing fatalities; in fact, they increased fatalities compared to states with no bans. Since fatalities have been falling for decades even before the bans, it is no good to simply assume that the bans caused further declines. The only basis for evaluation is to compare results after the bans in states with bans and without them. These comparisons shows that the bans were never effective and were actually counterproductive – or, more precisely, the post-ban comparisons were unfavorable to the states where bans were in place.

Shifting focus to trucking regulation, we find similar results. When trucking regulation was so ineffective that regulators refused to certify the SafeStat and SAFER databases for public use, highway fatality rates fell continuously for over a decade. When the Obama administration oiled up its regulatory CSA 2010 machine and sent it out onto the road to improve trucking safety, fatality rates went up abruptly in the year (2012) after the new regime went into effect.

The Pattern of the Anointed strikes again!

What’s Going On?

As previously noted, it’s easy to explain the perversity of this pattern by citing historical precedents and comparing the relative merits and historical record of free markets and government. It’s a little harder, however, to diagram the nuts and bolts of a process that would explain this particular case.

For example, it is not entirely clear what accounts for the long-term trend toward improving safety and declining fatalities. Could this be explained by (say) seat-belt use or protective highway barriers? No, and not just because these things came along long after the trend was underway. Motor-vehicle accidents (crashes) have declined along with fatalities – from well over 600 million in the mid-1990s to just above 500 million today, for example – and factors reducing the severity of the crash’s effects would have no effect on this aspect of driving safety.

Certainly we can identify some factors involved. Better road design and signage have obviously made a difference. In the 1930s, vehicle-equipment failure accounted for over 30% of official accident causes, whereas today that figure is around 2%. But these cannot account for the steady, continuous declines we have seen. Demographic factors should be important; the baby-boom generation may have had some responsibility for a five-year period of upward blips in the fatality rate starting in the early 1960s, for example. But we should also note that this coincided with the federal government’s first big regulatory push for auto safety, so we cannot rule out the Pattern for the Anointed as the prime mover in this period.

Many observers feared that CSA 2010 would cause fearful attrition in the ranks of truck drivers. Estimates among industry professionals ranged from 3-20%, with 5-8% forming a consensus view. The COO of Werner Enterprises was quoted as saying that two of his best drivers, with 7.4 million accident-free miles between them, would be classified as “unsafe” under the CSA guidelines. How could this be?

In formulating its statistical risk evaluation, CSA includes all violations on the driver’s and carrier’s record. In addition to serious moving violations, it includes minor technical violations like late submission of logs and late reporting for drug tests, even when no negative repercussions result from these violations.

These kinds of things make up a part of the regulatory burden placed on the industry by the Obama administration. The fact that the profession of truck driver faces a future limited by the advent of driverless vehicles puts a two-way squeeze on the trucking industry. On one side, older drivers are being squeezed out by regulation. On the other side, the influx of youth that would ordinarily be forthcoming from driving schools and new entrants to the labor force is not forthcoming because the handwriting on the wall has warned them against a career as a truck driver. The pool of drivers is made up of the least attractive applicants, resulting in a case where the best, most experienced drivers are exiting and a less attractive crop of applicants is replacing them. We can hypothesize that this has affected driver safety unfavorably.

While the perverse effects of cellphone and texting bans are less easily explained, one possible answer lies in the evasive measures taken by drivers seeking to avoid detection. Concealing the communication device decreases the ease of use and increases the time and attention diverted from driving itself, thereby detracting from safety and promoting accidents. In this regard, we should recall that texting is heavily practiced by the youngest drivers. Research with drug use has firmly established the “rebound effect” – wherein young drug users deliberately reject laws and admonitions intended to control their behavior – as an important motivation. The rebound effect may be behind the perverse effects of texting bans as well.

Free Market vs. Government – Again

The phenomenon of “distracted driving” may seem like the fad of the month, but it has been with us as long as the automobile itself. When radios became standard equipment in passenger automobiles rather than merely optional extras – that is, in the 1940s – accidents caused by drivers tuning their car radios and changing channels were highly publicized. Car radios were viewed in some circles as a triviality and a luxury that was not worth the price – e.g., a potential loss of life.

Gradually, radios became an accepted part of driving an automobile, although radio never quite outran the stigma of being a potential distraction. In this vein, we should recall the example of taxicab drivers, who for decades utilized two-way radios in their cabs as a means of communicating with their companies to receive passenger-trip assignments and other duties. Cab drivers routinely learned to listen to their taxi radio while driving and talking with passengers, and to talk to their dispatcher to acknowledge receipt of messages and communicate important information of various kinds. The degree of distraction faced by today’s drivers seems mild compared to that endured by yesterday’s taxi drivers, who nevertheless seem to have caused comparatively little harm to life and property.

Taxicab drivers learned to cope with distractions because they had to, not because they were ordered to by government. They developed their own sets of coping mechanisms to suit their own talents and personalities. They responded incrementally, as they were allowed to by free markets. Government orders, in contrast, do not allow us the flexibility to cope. That is a big reason why markets work so much better than governments.

Somewhere, Thomas Sowell is nodding his head at this latest proof that the Pattern of the Anointed is still weaving its fabric of failure through our lives.

DRI-336 for week of 4-7-13: ‘The Pattern of the Anointed’ Strikes Again

An Access Advertising EconBrief:

‘The Pattern of the Anointed’ Strikes Again

How many times have you seen it happen? The intelligentsia and the mainstream news media discover a crisis. It starts as a single news story or a documentary. Gradually it builds into the crisis of the week, or the month. Eventually, there is a consensus – this is a disaster, or an epidemic, or malaise, or an Armageddon in the making. The remedy is a program, or a national effort, or the moral equivalent of war. Only full-bore, full-speed-ahead action by the federal government can solve the problem.

Agencies are created and staffed. Programs are created, legislated and implemented. The federal government spends oceans of money. What happens? For awhile – nothing. Then, slowly and almost imperceptibly at first, but soon clearly and gnawingly… the problem gets worse.

Ultimately, we find out that the problem was actually getting better all long – until the federal government acknowledged it and tried to solve it. This reversed the pattern of improvement and got things headed in the wrong direction. And they stayed that way.

After watching this sequence of events more than once, it probably occurred to you that it was more than just happenstance. You may even have contemplated announcing your observations to the world in the form of a theory about how government works – or fails.

Congratulations. You have undergone the scientific experience known as independent discovery. Unfortunately, you were too slow in getting your ideas down on paper, so you won’t be able to claim credit for them. That belongs to the great black economist, Thomas Sowell.

Sowell called his discovery “The Pattern of the Anointed.”

The Pattern of the Anointed

Sowell identified what he considered “the prevailing vision of our time” in social theory. The intelligentsia – consisting of leading figures in academia and the mainstream communications media – has been anointed by themselves and the political left as the agenda-setters for big government. This visionary process has four stages.

In Stage 1, a Crisis is identified. “Some situation exists, whose negative aspects the anointed propose to eliminate…even though all human situations have negative aspects, and even though evidence is seldom asked or given to show how the situation…is either uniquely bad or threatening to get worse. Sometimes [it] has in fact already been getting better for years.”

In Stage 2 comes the Solution. “Policies to end the ‘crisis’ are advocated by the anointed, who say these policies will lead to beneficial result A. Critics say that these policies will lead to detrimental result Z. The anointed dismiss these latter claims as absurd and ‘simplistic,’ if not dishonest.

Stage 3 brings the Results: “The policies are instituted and lead to detrimental result Z.”

Of course, this is not the end of the process. In Stage 4, we witness the Response: “[Predictors of] detrimental result Z …are dismissed as ‘simplistic’ for ignoring the ‘complexities’ involved, as ‘many factors’ went into determining the outcome. The burden of proof is put on the critics to demonstrate to a certainty that these policies alone were the only possible cause of [the result]. No burden of proof whatsoever is put on [proponents of the Solution]. Indeed, it is often asserted that things would have been even worse, were it not for the wonderful programs that mitigated the inevitable damage from other factors [emphasis added].”

Sowell observed that evidence for his theory was “abundant.” He cited three well-known examples.

The War on Poverty

The “War on Poverty” is associated with the “Great Society” programs of the Lyndon Johnson administration, but the enabling legislation dates back to 1962, during the Kennedy administration. From the beginning, it was advertised as a means to end or prevent dependence of federal-government welfare programs. The emphasis was on “prevention and rehabilitation,” not on recruiting more recipients for the dole. And a by-product of success would be reduction in federal spending on welfare programs. “Make taxpayers out of tax eaters” and “give a hand, not a handout” were two of the many slogans that flavored War propaganda.

As time went on, the War accumulated subsidiary themes like barnacles adhering to the hull of an aging ship. One such theme was the preemption of urban violence through alleviation of poverty. The racial disorder and riots of the late 1960s provided a convenient setting for “civil rights leaders” to demand more government programs to ward off a “long, hot summer” of violence.

A minority of right-wing critics, the most visible and insistent being Sen. Barry Goldwater, predicted that the War would be a losing venture. It would promote dependence on government and encourage violence by rewarding it. It would divide Americans into those benefitting from government subsidy and those paying the subsidies; e.g., net recipients and net payees. And veteran observers of government noted that since the cost of government only rose, never declined, the War was almost certain to produce higher, not lower, welfare expenditures.

In retrospect, Sowell pointed out, the most eye-opening analytical aspect of this debate was the complete omission to carefully check the actual state of poverty and its historical trend. As of Lyndon Johnson’s ascension to the Presidency in 1965, the number of people living in poverty had been declining since 1960. This was a residue of the end of the 1958 recession. From 1950 to 1965, the officially poor declined by approximately one-third – without taking into account any benefits they received from government.

Oops. So much for the crisis of poverty. How about the War itself? Did it succeed or fail in reducing poverty? What about the aim of reducing dependency on government?

The War picked up momentum with the addition of reinforcements in the form of a growing roster of federal programs. Even though the federal Office of Economic Opportunity, the War’s official HQ, disbanded in 1974, the War did not end. The number of people on public assistance doubled between 1960 and 1977. Expenditures on public housing increased by a factor of five; food-stamp expenditures increased by a factor of ten. In-kind government benefits increased by a factor of twenty. As a percentage of Gross National (now Domestic) Product, federal social-welfare spending rose from 8% to 16%.

The Nixon administration changed the approach by officially declaring victory in the War on Poverty and demobilizing by disbanding OEO in 1974. In fact, they simply adopted a new approach – federalism and block grants given to states. One salutary effect of the change was a decline in urban violence, which stopped completely in the Reagan administration.

By 1992, there were more people officially in poverty than there had been at the War’s start.

Today, of course, over forty million people receive food stamps. Over half of American households receive federal benefits of some kind. Dependency on government is at an all-time high.

This summary of results runs diametrically opposite to the predictions of the anointed and roughly consistent with the predictions of critics. Yet the vision itself remained “hermetically sealed off from the contaminating influence of facts,” in Sowell’s words. Rather than acknowledge this failure, proponents of the War shifted the terms of the debate by citing the number of those who receive (and continue to receive) benefits as the criterion of success. “The goal was redefined as reducing poverty by redistributing resources.” Present-day defenders of the War, like Shelton Danziger of the Institute for Research on Poverty, claim that “I think we’d have poverty rates over 25%” if not for the agglomeration of federal anti-poverty programs.

“In short, no matter what happens, the vision of the anointed always succeeds, if not by the original criteria, then by criteria extemporized later,” Sowell ruefully concludes.

Sex Education

Another product of the crusade-happy decade of the 1960s was sex education. Because the founding intentions of this reform were so completely at odds with its results – and with its current intentions – it is necessary to revisit the origins of this staple of public education.

A 1968 article in Education Digest declared that “contraception education and counseling is now urgently needed to help prevent pregnancy and illegitimacy in high-school girls.” This reinforced prior Congressional testimony by the head of Planned Parenthood that the purpose of sex education was to “assist our young people in reducing the incidence of out-of-wedlock births and early marriage necessitated by pregnancy.” Reduction of venereal disease was another commonly cited rationale for sex education.

How would sex education accomplish these goals? From today’s perspective, the answers seem astonishingly vague. Boys “will find decreased need for casual, irresponsible and self-centered experimentation with sex,” was the prediction of one academic, a so-called “Professor of Family Life (!). It was frequently reiterated that girls became pregnant through ignorance, panic and meek submission; these would be counteracted by sex education. Exactly how this would happen, though, remains mostly a mystery to this day. It is apparent that the stated intentions of the anointed were accepted as sufficient collateral to warranty the results of their proposed solutions – the same attitude that prevails today.

Critics feared for the moral health of the nation. They predicted that sex education divorced from moral instruction would produce effects opposite to those desired and predicted by proponents; that is, more pregnancy, illegitimacy and venereal disease. And for their pains, they were stigmatized and demonized as sexually phobic religious fundamentalists and fanatics – and worse.

Once again, apparently nobody thought to actually investigate the factual extent of this “crisis” before enlisting the federal government to alleviate it. As of 1968, the fertility rate of teenage girls had been declining for over a decade, since 1957. The rates of both syphilis and gonorrhea – the two main venereal diseases in those days – fell throughout the decade of the 1950s.

Yet once again, the solution to the non-existent crisis was massive federal-government spending and interference with the private sector and the federal system. This took two main forms: federal aid to public schools to fund sex-education curricula and federal aid to “family-planning” clinics. Even as early as 1968, sex education programs were found in almost half of all public schools. The concept grew like Topsy until it became omnipresent. Family-planning clinics grew in tandem.

The results of this anointed vision have been unqualified, unshirted disaster – perhaps the most ghastly of all the visionary fiascos foisted on the American public. Pregnancy rates among young girls rose by close to 30% in each of the first two decades after 1968 – despite a doubling of abortions during the same time period. Indeed, abortions soon outpaced live births among young girls. Surveys found a higher percentage of (unmarried) girls between 15 and 19 engaging in sex in 1976 than had been true when the big push for sex-ed began.

Sargent Shriver was a high priest of the anointed – head of the OEO until 1974 and a leading sex-ed supporter. In an unusual mea culpa, he testified before Congress in 1978 that “just as venereal disease has skyrocketed 350% in the last 15 years when we had more clinics, more pills, and more sex education than ever in history, teenage pregnancy has risen.” Ensuing decades saw the implications of these trends worsen with the emergence of new sexually transmitted diseases like HIV and HPV.

Illegitimacy became epidemic. Rates that – in the 1960s – had driven Daniel Patrick Moynihan to fear for the health of the black population were now far exceeded among blacks, Latinos and whites alike as the new millennium dawned. Illegitimacy rates exceeding 70% for blacks, 50% for Hispanics and 25% for whites would have been considered unimaginable at the dawn of the “crisis.”

As if this weren’t scandalous enough, the response of the anointed rivals the results in its breathtaking horror. The rise in pregnancy, illegitimacy, abortions and venereal disease were broadly ignored. If mentioned at all, they were treated as prima facie evidence of the need for more spending and more programs. Opponents were demonized even more strongly as opponents of democracy.

But when speaking to themselves, away from the glare of publicity, the anointed have shifted sex-ed’s focus away from controlling social pathologies and towards encouraging “healthy attitudes about sex and sexuality.” Of course, the definition of “healthy” is the exclusive province of the anointed. Thus, The Journal of School Health rephrases the goal of sex education as “an exciting opportunity to develop new norms.” Sowell correctly deduces that the only purpose behind beginning sex education in kindergarten must be to accomplish the longer, more tenuous goal of indoctrination rather than the more basic program of biological instruction.

Sowell provides an example of this indoctrination at work: a “popular sex instructional program for junior high-school students, aged 13 and 14,” which “shows film strips of four naked couples, two homosexual and two heterosexual, performing a variety of sexually explicit acts.” Not surprisingly, the accompanying teaching materials warn teachers not to show these films to parents or friends so as not to “evoke misunderstanding and difficulties.” What other curriculum prescribes a course of study for students that is not supposed to be available for review by parents? Yet parents who objected to these materials were demonized as “fundamentalists” and “right-wing extremists.” Sowell is quick to remind his readers that this episode, though not typical, is also not rare; similar ones have popped up throughout the U.S.

The response of the anointed is that the typical parent is “either uninformed or too bashful to share useful sexual information with his child.” The direction of these efforts is all too clear: the anointed wish to establish the State in loco parentis, as bearing primary child-rearing responsibility.

The Rights of Criminals and Criminal Suspects

The 1960s also saw a revolution in criminal justice. It is best characterized as an attitude toward crime and punishment. Sowell dissects this attitude with surgical skill, dubbing it the “therapeutic approach.” Several highly placed figures in the judicial system, among them Supreme Court Chief Justice Earl Warren, Attorney General Ramsey Clark and Chief Judge of the D.C. Circuit Court of Appeals David Bazelon, believed that crime was primarily the fault of the law-abiding population rather than criminals. The criminal is “like us, only somewhat weaker;” we imprison criminals out of a “highly irrational… need to punish,” which is a “primitive urge” motivated by “childish fear” (Bazelon).

Alas, the “dehumanizing process” of imprisonment only produces “social branding” and “social failure.” Instead, we need to “[turn] all jails …into hospitals or rehabilitation centers,” which employ “psychiatric treatment” using “new, more sophisticated techniques (Bazelon).” Long prison sentences “will not reduce crime” (Clark).

These men sought to solve this crisis through constitutional interpretation. In particular, they broadened the application of the Bill of Rights from federal law to state and local law and broadened its meaning from a charter of liberties or freedoms to a list of powers or immunities.

In Mapp vs. Ohio (1961), the U.S. Constitution’s 4th Amendment provision barring “unreasonable search and seizure” was broadened to apply to state law as well as federal law. It was interpreted to exclude evidence illegally obtained at trial – thus, the shorthand term “exclusionary rule,” which came to describe its defining point of law. After Mapp, ironclad evidence of guilt was ignored if it was (say) obtained via a warrantless search of a suspect’s premises.

In Gideon vs. Wainwright (1963), a criminal defendant’s right to representation at trial was made absolute, so that indigent defendants were guaranteed a right to state-appointed and compensated counsel.

Escobedo vs. Illinois (1964) invoked the 6th Amendment to broaden this right to apply during a suspect’s interrogation by the police. Thus, confessions obtained during a custodial interrogation (that is, when a suspect was held prior to indictment) were invalid if the suspect was not allowed to confer with his attorney.

Miranda vs. Arizona (1966) essentially superseded Escobedo by invoking the 5th Amendment provision against self-incrimination in place of the 6th Amendment to require that suspects be informed of their right to an attorney, the right to confer with the attorney and their right to avoid self-incrimination prior to interrogation; e.g., immediately upon arrest and detention. In order to confess to a crime, a suspect must first waive their Miranda rights. Any confession not complying with these stipulations was invalidated and inadmissible at trial.

Dissenters in each of these opinions, who comprised the first line of critics to this revolutionary approach to criminal justice, included distinguished jurists like Potter Stewart and Byron White. Apart from the various points of constitutional law, which centered on the departure of these decisions from the original intent of the Framers, the dissents stressed the highly adverse effects the decisions would have on the incidence of crime and violence and the administration of criminal justice.

The results in ensuing years amply bore out those fears. To quote Sowell: “Crime rates skyrocketed. Murder rates shot up until the murder rate in 1974 was more than twice as high as in 1961. Between 1960 and 1976, a citizen’s chances of becoming a victim of a major violent crime tripled. The number of policemen murdered also tripled during the decade of the 1960s. Young criminals, who had been especially favored by the new solicitude, became especially violent. The arrest rate of juveniles for murder more than tripled between 1965 and 1990, even allowing for changes in population size.”

One point not raised by Sowell that deserves mention was the virtual abolition of capital punishment by the Warren Court in the early 1970s. Economists have studied capital punishment for decades and firmly disagree with the conventional thinking that it does not deter murder. The increase in murders in this time period closely followed the judicial moratorium on capital punishment.

The response of the anointed followed two lines. The first was to stress confounding factors like education. The second was to accuse critics of using a call for “law and order” as code language for racism; e.g., suppression of constitutional rights for blacks. The “thinking” behind this accusation was that blacks were disproportionately perpetrators of crime; therefore they would be disproportionately affected by procedures making it harder for criminals to escape punishment for their crimes.

Sowell found one response particularly worthy of notice. Chief Justice Warren found complaints about rising crime to be “self-righteous indignation” based on “oversimplification.” Rather than attribute the surge in crime to the new criminal-justice policies, Warren claimed that “all of us must assume a share of the responsibility” since “for decades we have swept under the rug” the environmental conditions that bred crime – slums, poverty, and the like.

The problem with this theory of crime causation, as Sowell pointed out, is that the U.S. murder rate fell steadily after 1934 (that is, after the repeal of Prohibition), throughout the remainder of the 1930s, the 40s and the 50s. In 1960, the murder rate was less than half of what it had been in 1934. Yet according to Warren, this was precisely the time period in which Americans were sweeping the ostensible behavioral causes of crime under the rug. Crime rates should have been exploding – if Warren’s hypothesis was correct.

Sowell was content with validating the Pattern’s effects on criminal justice. We should carry the analysis further to understand why the Warren Court went wrong.

The left-wing judiciary viewed themselves as anointed spokesmen for freedom. Like the Left’s founding philosopher, John Dewey, they confused freedom with power. A valid right can be exercised without depriving someone else of their rights; power implies the ability to compel obedience or control real resources. Freedom or liberty is the absence of external constraint, not the power to command obedience or control over real resources. The Declaration of Independence and Constitution (including the Bill of Rights) are charters of liberty, not enumerations of powers. They limit the powers of government as a way to secure our freedom; they do not list our freedoms.

By conferring powers on criminals and suspects, the Warren Court judicial reforms perverted the Bill of Rights by reducing the powers of law-abiding citizens. By increasing the real incomes of criminal suspects via guaranteed representation, they reduced our real incomes and happiness. Instead of treating criminal justice as a process for determining guilt or innocence, they treated it as a game in which criminals and innocent suspects deserved the same chance of “winning;” e.g., escaping unscathed. The presumption of innocence in a criminal-justice sense was subtly altered to a presumption of innocence in a moral sense. The real income transferred to criminals inevitable came at the expense of law-abiding citizens; it could not be otherwise because that real income had to come from somewhere.

Other Examples of the Pattern

Thomas Sowell claimed that the Pattern of the Anointed was ubiquitous; examples were “abundant.” Without straining unduly, we can call others to mind.

In earlier works, Sowell himself marshaled evidence for the Pattern. He cited the landmark civil-rights case Brown vs. Topeka Board of Education, whichreversed the longstanding presumption in favor of racial segregation in public schooling. Brown overturned the “separate but equal” doctrine that had previously ruled, making the argument that “separate is inherently unequal.” It has long been assumed that progress toward equality between blacks and whites dated from this decision. Subsequent federal programs like as “affirmative action” escalated the goals of federal policy from promoting equality to conferring special privileges on blacks.

Any discussion of equality should distinguish between ex ante equality (equality of opportunity) and ex post equality (equality of result). Indeed, early federal policy was oriented toward opportunity, emanating from bodies such as the Equal Employment Opportunity Commission (EEOC). But one of the most interesting outcomes of Sowell’s early research was the realization that free markets could produce equalizing results even if equal opportunity was formally lacking.

“As far back as the First World War,” Sowell discovered, “black soldiers from New York, Pennsylvania, Illinois and Ohio scored higher on mental tests than white soldiers from Georgia, Arkansas, Kentucky and Mississippi.” This was not a temporary aberration. “During the 1940s, black students in Harlem schools had test scores very similar to those of white working-class students on the lower east side of New York.” While segregation often produced black public schools that were grossly inferior to their white counterparts, other black schools like Dunbar High School in Washington, D.C., were among the country’s finest secondary schools. “As far back as 1899, [Dunbar] had higher test scores than any of the white schools in Washington, and its average IQ was eleven points above the national average in 1939 – fifteen years before the Supreme Court declared such things impossible.” The common factor behind all these results was that economic incentives and freedom of migration allowed blacks to migrate out of the American South and into the Northeast, thereby allowing them to profit from better schools and economic opportunities there.

Sowell showed that the trend toward equality between white and black incomes began well before Brown, let alone later civil rights legislation and affirmative-action legislation. Indeed, the rate of black advance slowed during the later civil-rights era, rather than speeding up. Once again, free markets rather than government proved to be the effective agent for beneficial social change and economic growth. Once again, we learned in retrospect that the alleged crisis justifying massive government intervention was, in reality, an improving situation before the government intervention – but it became worse afterward.

Coming Soon – The Pattern of the Anointed Strikes Again

With practice, we can learn to anticipate the Pattern. The next EconBrief will reveal the Pattern of the Anointed underway again today.