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Are we becoming Italy?

By Jack M. Balkin

Stereotypically, at least, Italy is often associated not only with incredibly beautiful scenery, friendly people, and wonderful food, but also with a propensity, shall we say, to avoid paying one's fair share of taxes (or perhaps one could simply skip "fair share"). Taxes may be, as Justice Holmes once suggested, the price we pay for civilization. However, the Holmesian bad man that, in some ways, the legal academy, in league with economists, has helped to create by using the heuristic as in fact the very model of the "rational individual" will try to free load off the "chumps" (Leona Helmsley's famous "the little people who pay taxes") while otherwise minimizing their own contributions to civilization.

One dismaying lesson of the early Obama nominations may be less the problems in his vetting (itself a word more suitable to paranoid world where we are willing to trust no one to be in fact particularly honorable) than realization that the elites in our society can no longer be trusted to engage in a most basic task of citizenship, which is to pay their taxes voluntarily. One assumes that there is nothing all that "special" about the new Secretary of the Treasury or the now-withdrawn nominee for secretary of HHS. And, dare I say it, I presume as well that they don't typify anything special about Democrats (as against all of the honest elite Republicans who, no doubt, urge their accountants to decide any judgment calls in favor of the government).

I am glad that Daschle has withdrawn (in part, I confess, because I blame him for both writing Bush his blank check in 2002 (so the Democrats could campaign that year on domestic issues alone, a brilliant judgment call) and his carrying Citibank's water for the truly dreadful bankruptcy bill that should embarrass all liberal Democrats). Frankly, I wish that the new Secretary of the Treasury had also withdrawn. I see no evidence that he's "indispensable," and I do suspect that he made a lot of people feel that they are chumps in paying their taxes without complaint. One of Ike's most pathetic moments, many decades ago, was his resistance to firing Sherman Adams, of vicuna coat fame (younger readers can Google the episode) because, Ike said, "I need him." I am, as everyone knows, a very, very strong and elated supporter of our new President, but I would be dismayed to think that he "needs" any given individual to the degree that he will overlook behavior that ought to set off alarms. And, to be clear, the alarm is not that Daschle of Geithner will embezzle federal funds; I'm sure that is not the case. Rather, the alarm is precisely that they further serve to reinforce the view of many in the United States, both Democrats and Republicans, that the elites who inhabit our dominant institutions, whether public or private, simply feel entitled to play by a different set of rules. This is, obviously, most apparent with regard to the Wall Street Masters of the Universe, who, one might presume (or at least hope), are largely Republican. But it really doesn't stop there.

UPDATE: The New York Times has just posted an illuminating series of comments.

Full post as published by Balkinization on February 03, 2009 (boomark / email).