RONLT (Readers of NLT) know that I am helpless to resist the ever-evolving comedia of Silvio Berlusconi. I once proffered that his name would go down in history as a shorthand verb:

To Berlusconi: To act in the most egregiously juvenile manner while in a position of utmost authority without ever suffering the slightest consequences.

Well, he's done it again:

An Italian court on Saturday dismissed a corruption case against Silvio Berlusconi, ruling that the statute of limitations had expired on charges that the Italian billionaire allegedly paid his lawyer to give false testimony in the 1990s to shield him from prosecution.

Try to keep this in perspective. As the paper notes:

Over his 18 years in politics, Mr. Berlusconi has survived dozens of criminal investigations and many trials. In some trials, he was acquitted while in other trials the statute of limitations expired.

Of course, il caveliere lost his hold on the reigns of political power in November. Yet his personal powers of evasion still seem strong. I think that Italy and the world have not seen the last of Berlusconi - and it is a more interesting place for him.

From today's WSJ:

New York City on Friday released for the first time a database ranking nearly 18,000 public schoolteachers based on their students' test scores, a historic move that lifted the curtain on one measure of quality in the classroom.

How can it be that teachers are only now being evaluated on the basis of their work output? A teacher's job is to instill knowledge of a subject in their pupils. It seems only rational that their performance would be judged on the basis of how much knowledge they instill. By what standard have they been measured up to this point?

Of course, the answer is that they haven't been held to any standards whatsoever. That fact is reflected by the teachers' and union's zealous opposition to the evaluation database. The unions have a lucrative public monopoly over education and teachers are immune from discipline based on their performance - neither group have an interest in subjecting themselves to criticism, implementing objective standards of performance and upsetting the status quo.

I've written on American educational exceptionalism before and have been heavily critical of unions and public school unaccountability. The education bureaucracy surely sees any form of comparable evaluation criteria as one step in the direction of market competition in American education. Competition would certainly favor private, parochial schools - to the fiscal and political detriment of unions and to the utter dismay of liberal secularists. These cultural, political and economic factors are the true motivations behind America's public education policies and the opposition witnessed to teacher evaluation databases. 

This week's news that the Supreme Court will hear a case on policies to increase the number of black and Hispanic students enrolled at public universities in Texas reanimates the affirmative action debate, just in time for America to decide whether to elect its first black president to a second term. Our friend Joel Mathis forcefully expresses several pro-affirmative action arguments:

1. Diversity is good because diversity is good: "Why should diversity be a goal? That's easy," Mathis writes. "America is diverse. Unless you believe that white men possess all the talent and smarts - and some people really do believe that - it's criminal not to foster the resources and resourcefulness of all our country's citizens."

2. Fairness demands compensatory justice: "For more than 300 years, America's culture and law enforced racial preferences - whites, of course, were preferred. We still live with the ramifications: A few decades of affirmative action don't make up for the fact that many minority groups weren't allowed to start the 100-yard dash until whites got a 50-yard head start."

3. Affirmative action may be problematic, but its absence would be a significantly bigger problem: "[A]ffirmative action sprung up as a response to an actual problem: That ... 300 years of slavery and Jim Crow left a lot of folks without sufficient resources ... to achieve and succeed on society's new colorblind terms... [A] longstanding legal-cultural regime enforced both by senators and sheriffs for hundreds of years might've caused damage that still needs repair... Simply put, conservatives don't seem to have an animating principle that moves them to address problems of this sort."

I've never met anyone who really does believe that white men possess all the talent and smarts, and neither has Mathis. Happily, his sensible conclusion that we should foster all our citizens' abilities does not follow from his overwrought premise. Neither, however, does support for affirmative action follow from the premise that we should foster all our citizens' abilities. We - as a society, not just through public policies - should do so through good schools, safe and cohesive neighborhoods, strong families, voluntary organizations that deepen an ethos of caring and sharing, a vigorous economy that expands opportunities, and by strengthening the ties of affection and respect that bind Americans as Americans closer together by transcending race, class, faith, and ethnicity. 

Affirmative action is irrelevant or harmful to the goal of fostering every American's resources and resourcefulness. Instead of encouraging people to make the most of their abilities, it rewards them for making the most of their grievances, allocating opportunities and outcomes by calibrating the impact of the historical victimization of a large group on the life prospects of individual members of that group.

That enterprise isn't feasible, and wouldn't be fair if it were feasible. The rectification of racial injustice through affirmative action requires us to be a great deal smarter than we can be. In the 1978 Bakke decision, Justice Harry Blackmun defended affirmative action as a way of "putting minority [medical school] applicants in the position they would have been in if not for the evil of racial discrimination." The problem, as Thomas Sowell explained in Civil Rights: Rhetoric or Reality?, is that "the idea of restoring groups to where they would have been - and what they would have been" if past discrimination had never taken place, "presupposes a range of knowledge that no one has ever possessed."

To make this impossible problem manageable, affirmative action proceeds from the planted axiom that in a society that has extirpated ongoing discrimination as well as all residual effects of past discrimination, every occupational and economic subgroup will be a demographic miniature of the entire population. Sowell points out that the world overflows with evidence refuting the idea that discrimination is the decisive variable explaining differences in the status and attainments among various groups: The Chinese have been and continue to be targets of discrimination in Southeast Asia. Yet, in Malaysia, Indonesia, Vietnam, Thailand and the Philippines, "the Chinese minority - about 5 percent of the population of southeast Asia - owns a majority of the nation's total investments in key industries. By the middle of the twentieth century, the Chinese owned 75 percent of the rice mills in the Philippines, and between 80 and 90 percent of the rice mills in Thailand.... In Malaysia, where the anti-Chinese discrimination is written into the Constitution, is embodied in preferential quotas for Malays in government and private industry alike, and extends to admissions and scholarships at the universities, the average Chinese continues to earn twice the income of the average Malay."

Looking at America, Sowell notes, "Japanese immigrants to the United States also encountered persistent and escalating discrimination, culminating in their mass internment during World War II, but by 1959 they had about equaled the income of whites and by 1969 Japanese American families were earning nearly one-third higher incomes than the average American family." In general, Sowell examined many ethnically and racially heterogeneous societies and concluded that, "large statistical disparities have been commonplace, both in the presence of discrimination and in its absence." He cites one scholar comparing different societies who wrote, "All multi-ethnic societies exhibit a tendency for ethnic groups to engage in different occupations, have different levels (and, often, types) of education, receive different incomes, and occupy a different place in the social hierarchy," and another who "examined the idea of a society where groups are 'proportionately represented' at different levels and in different sectors. He concluded that 'few, if any, societies have ever approximated this description.'"

There is an inescapable zero-sum logic: The goal of ensuring that no group is "under-represented" in society's sought-after berths necessarily means it's intolerable for any group to be "over-represented." It is hard to see how a society embracing that mission can be fair or free. Blacks, for example, constitute 13.6% of the U.S. population, but 0% of the U.S. Senate. Jews, meanwhile, represent 2% of the U.S. population and 12% of the Senate. (From 1992 to 2010 both senators from Wisconsin, the state with the highest proportion of German-Americans in its population, were Jews.) Fixing this "problem" by race-norming elections so that under-represented groups start out with additional votes and over-represented groups with a vote-handicap would be consistent with the spirit of affirmative action, but irreconcilable with the idea of free elections in a democracy.

Prior to the 1978 Bakke decision, "diversity" was a negligible consideration in the affirmative action debate. It became important - indeed, became a word synonymous with affirmative action - only because a tie between four justices who opposed affirmative action as illegal racial discrimination, and four who favored it as compensatory racial justice, was broken by Justice Lewis Powell's concurring opinion. Powell said that school admissions quotas impermissibly discriminated against applicants in the wrong demographic categories, but that using race as a "plus factor" permissibly furthered schools' legitimate interest in a diverse student body. The affirmative action supporter Dahlia Lithwick has shown admirable candor in admitting that Powell's diversity rationale doesn't pass the laugh test: "Powell wasn't really interested in filling colleges with Alsatian goat herders. He was looking for some neutral-sounding reason to give minority candidates a small 'plus' in the admissions office. But subsequent courts of appeals have called him on it. Refusing to honor his code, they take him at his word. If diversity is important, they say, admit more Wiccans."

Mathis, like most affirmative action defenders, uses the diversity and compensatory justice rationales interchangeably. They are not only distinct, however, but also at cross-purposes, as Ilya Somin has argued. Eight years ago Harvard University faced a controversy when Jesse Jackson, Sr. accused it of practicing affirmative action in a way that did too much on behalf of diversity but too little to advance the cause of compensatory justice. A majority, perhaps a large majority, of Harvard's black undergraduates were immigrants or the children of immigrants from the West Indies or Africa, or the children of biracial couples. (Barack Obama is both, a different kind of two-fer.) That meant that most of the blacks at Harvard did not have four grandparents descended from slaves, the blacks "for whom affirmative action was aimed in the first place," according to Jackson.

Affirmative action's defenders would do well by the virtues of coherence and candor to bring a merciful close to 34 years of cant about diversity and talk about what affirmative action is and has always been about: Figuring out how big a head start blacks should be given now to make up for the discrimination blacks endured for many years, how long that head start should be given to them, and how we'll know when affirmative action has succeeded and can be retired. To work within such a frame, however, would be a radical departure from a half-century of bad-faith advocacy on behalf of affirmative action. The most forceful advocates of the 1964 Civil Rights Act insisted over and over that it would never, by any stretch of the imagination, require employers or educators to favor any applicant over any other applicant on the basis of race, or to face sanctions for having the "wrong" demographic mix in a workforce or student body. The wheels that would break this promise started turning the day President Johnson signed the bill into law. If affirmative action's friends want to help it they can, at long last, tell the truth about what it entails. If a law that says no person may be discriminated against means some persons may, and must, be discriminated against, what recourse and what justifications do we offer to applicants denied school or employment opportunities on account of their race?

The cover of Newsweek:

The Seals: How Obama Learned to Use His Secret Weapon.

Shouldn't that be "America's Secret Weapon"?

In honor of Rick Santorum.

Thomas Jefferson:

 Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever: that considering numbers, nature and natural means only, a revolution of the wheel of fortune, an exchange of situation, is among possible events: that it may become probable by supernatural interference! The Almighty has no attribute which can take side with us in such a contest

And John Winthrop:

There is now set before us life and good, death and evil, in that we are commanded this day to love the Lord our God, and to love one another, to walk in his ways and to keep his commandments and his ordinance and his laws, and the articles of our covenant with him, that we may live and be multiplied, and that the Lord our God may bless us in the land whither we go to possess it. But if our hearts shall turn away, so that we will not obey, but shall be seduced, and worship other God-our pleasures and profits-and serve them , it is propounded unto us this day, we shall surely perish out of the good land whither we pass over this vast sea to possess it: Therefore let us choose life, that we and our seed may live by obeying His voice and cleaving to Him, for He is our life, and our prosperity.

Instapundit point us to this incident, in which a citizen was denied the right to travel because he damaged the chip in his passport: "The claim has been made that breaking the chip in the passport shows that you disrespect the privilege of owning a passport, and that the airport was justified in denying this child from using the passport."

But is holding a passport a "privilege" or a "right"?  Interestingly the dissenters in U.S. v. Wong Kim Ark (Fuller, joined by Harlan) noted that "birthright" or the notion that soil determines citizenship, was associated with subjecthood--under common law, anyone born on soil belonging to the king could only leave the country with his explicit consent.  That's why that argued that in 1776 the U.S. broke from not just allegiance to the crown, but also from the idea of birthright.  They argued that American citizenship was based upon the principles of 1776--mutual consent between current citizens and any new would-be citizen.  It seems some of our bureaucrats are following the logic of "birthright citizenship" all too well.

In 2009, George Papandreou led his party to an election victory in Greece using the slogan "the money exists."  Basically, his platform was to promise to spend a lot of money the country didn't have and then deal with all of the real world difficulties after the election.  As this clip of Paul Ryan and Tim Geithner shows, President Obama is planning to run for reelection using a George Papandreou-style strategy.  Geithner basically agrees that his strategy is to borrow now, spend now, only increase taxes on high earners now (and the scary looking debt graph is with Obama's proposed tax increases factored in), leave entitlements unreformed and then go broke.  Well either that, or spring huge middle-class tax increases and huge benefit cuts on the voters after the election. 

Papandreou became Prime Minster and it turned out that the money really wasn't there.  Papandreou pretended that he thought that the money had really existed, and that the previous government had lied about the extent of the government's debt.  He was half right.  The previous government really had lied about the extent of the government debt, but Papandreou had to know that government spending was unsustainable whatever the exact details.  He knew he was writing a check he couldn't cash.

Papandreou's election promise to spend wasn't part of some master plan.  It was just what he needed to say to get from Point A to Point B.  As Prime Minster, Papandreou continued to just say whatever would get him through the day and then let tomorrow take care of itself.  The result has been higher taxes (and some effort to improve tax collection), pension cuts for current retirees, health benefit cuts, labor market liberalization, planned civil service layoffs, planned privatization of state-owned enterprises, and over 20% unemployment.  Somewhere in there Papandreou was forced to resign in disgrace.

So a campaign of promise now and deal with reality later would look like a bad deal for Obama.  Maybe, but I think that Obama believes that a Papandreou election strategy can work in an American context.  I think that Obama believes that he has a strategy by which America's debt can be brought down to a sustainable level in an Obama second term.  He just doesn't believe that he can win reelection by running on that strategy. That is because the strategy is middle-class tax increases and centralized cuts in health care spending.

I think this works in two steps.  First, get reelected on green energy subsidies and promising not to touch entitlements and on only raising taxes on the top 2%.  Then let the debt crisis get a little closer.  Here is the thing: the closer we get to a debt crisis, the more a debt reduction strategy of tax increases and IPAB-style Medicare cuts becomes the most plausible path to a sustainable budget.  People on old age entitlements have structured their live around the promises of those programs.  You can institute changes, but they have to be gradual so that each cohort can adjust during their working years.  It is possible to put together a premium support plan for Medicare that gradually reduces government costs while allowing the medical system to develop more efficient delivery systems.  Instituting such a plan under emergency conditions as Medicare spending was suddenly cut by tens of billions would be politically impossible.  As a political matter, it would be much easier to increase middle-class taxes and empower a government board to deny care (and maybe push to adopt single-payer for the working-aged as Obamacare pushes insurance premiums higher.)  It won't be popular exactly, but it might be the least unpopular alternative and Obama won't be running for reelection anyway.  And once instituted, those changes would be hard to undo.

Obama is betting that his unsustainable promises will get him though the election.  He is then betting that an emergency situation in his second term (an emergency he is doing his part to engineer) will help him transition the United States to a higher level of taxation and more centralized control of health care.  Obama might be betting wrong, but that is the game he is running on us.  Who will tell the people? 

Fred Astaire called this dance routine the greatest to ever be caught on film. The Nicholas Brothers, Fayard and Harold, were tap dancing stars of Vaudeville and the Harlem Renaissance, their careers continuing well into the 1990s. While the 1943 film "Stormy Weather" was primarily about its star, Bojangles Robinson, the "Jumping Five" sequence by the Nicholas Brothers really steals the show.

NY Knicks point guard Jeremy Lin exhibits American virtues, not Chinese ones. One could conclude this from simple observation as well from this book on Chinese (PRC) professional baseketball. "Why are there no Jeremy Lins [point guards] coming out of China?" The answer lies in politics--the sports of a free society and those of a totalitarian one.

Speaking of Lincoln, note this 1860 cartoon of the presidential candidates, featuring baseball metaphors. Lincoln installed a baseball diamond on the White House grounds, as Diana Schaub relates in her classic essay on the All-American sport.

This WaPo account of how various Republicans (why only them, one might ask) use/ransack the founding fathers pits the politicians against historians who criticize this alleged naievete.

Massachusetts Institute of Technology history professor Pauline Maier, author of several books about the period from the 1760s to the writing of the Constitution, says: "It is interesting why so many politicians and even judges today want to show that their ideas had firm foundations among the founders. In some ways, I suppose that defines a new phase in the culture wars over 'who is most American.' "

But, she adds, "that can also be very regressive: No founder ever embraced abortion or endorsed affirmative action. Eight­eenth-century Americans did take rights seriously, but their rank list of rights was probably different than those of rights-conscious people today. They lived, after all, over two centuries ago and on the rights front can seem pretty dated."

Like another fine historian of the Declaration, Carl Becker, Maier falls prey to historicism, the notion that one's historical circumstances poses an absolute barrier to finding transcendent truth. Evidently, to judge just from the professors cited in this article (Jack Rakove, among others), it's the scholars versus divisive Republican politicians.

But the contrast shows how much the defense of the Constitution resides in ordinary citizens and the politicians who reflect their concern. As the Progressives predicted and urged they would, intellectuals take the side of progress and history against the people's pride in their country as founded. Of course, not all thinkers agree with those consumed by Progressivism. Here's a shorter piece.