Why America Can’t Build

Are we too regulated for our own good?

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In “What America Needs Is a Liberalism That Builds,” Ezra Klein argues that the progressive project is often impeded by Democratic processes as much as by Republican obstructionism. And he uses arguments from a libertarian think tank to build his case. His core complaint:

In a series of columns over the last year, I’ve argued that we need a liberalism that builds. Scratch the failures of modern Democratic governance, particularly in blue states, and you’ll typically find that the market didn’t provide what we needed, and government either didn’t step in, or made the problem worse through neglect or overregulation.

We need to build more homes, trains, clean energy, research centers, disease surveillance. And we need to do it faster and cheaper. At the national level, much can be blamed on Republican obstruction and the filibuster. But that’s not always true in New York or California or Oregon. It is too slow and too costly to build even where Republicans are weak — perhaps especially where they are weak.

This is where the liberal vision too often averts its gaze. If anything, the critiques made of public action a generation ago have more force today. Do we have a government capable of building? The answer, too often, is no. What we have is a government that is extremely good at making building difficult.

The thing is, we were world-leading good at this sort of thing once upon a time. We managed to build transcontinental railroads and telegraph networks in record time a century and a half ago and this continued well into the 20th century.

[T]he Empire State Building was constructed in just over a year. We are richer than we were then, and our technology far outpaces what was available in 1930. And yet — does anyone seriously believe such a project would take a year today?

“We need to unpack the many constraints that cause America to lag other major countries — including those with strong labor, environmental and historical protections — in delivering infrastructure on budget and on time,” [Brian] Deese [the director of Biden’s National Economic Council] continued.

Nor is it that we don’t spend a lot of money on infrastructure projects.

[T]he United States is notable for how much we spend and how little we get. It costs about $538 million to build a kilometer of rail here. Germany builds a kilometer of rail for $287 million. Canada gets it done for $254 million. Japan clocks in at $170 million. Spain is the cheapest country in the database, at $80 million. All those countries build more tunnels than we do, perhaps because they retain the confidence to regularly try. The better you are at building infrastructure, the more ambitious you can be when imagining infrastructure to build.

The problem isn’t government. It’s our government. Nor is the problem unions — another favored bugaboo of the right. Union density is higher in all those countries than it is in the United States. So what has gone wrong here?

I’m not sure he gets the answer right but it’s one to which I’m sympathetic:

One answer worth wrestling with was offered by Brink Lindsey, director of the Open Society Project at the Niskanen Center, in a 2021 paper titled “State Capacity: What Is It, How We Lost It, and How to Get It Back.” Lindsey’s definition is admirably terse. “State capacity is the ability to design and execute policy effectively,” he told me. When a government can’t collect the taxes it’s owed or build the sign-up portal to its new health insurance plan or construct the high-speed rail it’s already spent billions of dollars on, that’s a failure of state capacity.

But a weak government is often an end, not an accident. Lindsey’s argument is that to fix state capacity in America, we need to see that the hobbled state we have is a choice, and there are reasons it was chosen. Government isn’t intrinsically inefficient. It has been made inefficient.

And not just by the right:

What is needed most is a change in ideas: namely, a reversal of those intellectual trends of the past 50 years or so that have brought us to the current pass. On the right, this means abandoning the knee-jerk anti-statism of recent decades, embracing the legitimacy of a large, complex welfare and regulatory state, and recognizing the vital role played by the nation’s public servants (not just the police and military). On the left, it means reconsidering the decentralized, legalistic model of governance that has guided progressive-led state expansion since the 1960s, reducing the veto power that activist groups exercise in the courts, and shifting the focus of policy design from ensuring that power is subject to progressive checks to ensuring that power can actually be exercised effectively.

Klein expands on this by quoting one of Lindsey’s colleagues:

A place to start is offered in another Niskanen paper, this one by Nicholas Bagley, a law professor at the University of Michigan. In “The Procedure Fetish,” Bagley argues that liberal governance has developed a puzzling preference for legitimating government action through processes rather than outcomes. He suggests, provocatively, that that’s because American politics in general, and the Democratic Party in particular, is dominated by lawyers. Joe Biden and Kamala Harris hold law degrees, as did Barack Obama and John Kerry and Bill and Hillary Clinton before them. And this filters down through the party. “Lawyers, not managers, have assumed primary responsibility for shaping administrative law in the United States,” Bagley writes. “And if all you’ve got is a lawyer, everything looks like a procedural problem.”

This is a way that America differs from peer countries: Robert Kagan, a law professor at the University of California, Berkeley, has called this “adversarial legalism,” and shown that it’s a distinctively American way of checking state power. Bagley builds on this argument. “Inflexible procedural rules are a hallmark of the American state,” he writes. “The ubiquity of court challenges, the artificial rigors of notice-and-comment rule-making, zealous environmental review, pre-enforcement review of agency rules, picayune legal rules governing hiring and procurement, nationwide court injunctions — the list goes on and on.”

The justification for these policies is that they make state action more legitimate by ensuring that dissenting voices are heard. But they also, over time, render government ineffective, and that cost is rarely weighed. This gets to Bagley’s ultimate, and in my view, wisest, point. “Legitimacy is not solely — not even primarily — a product of the procedures that agencies follow,” he says. “Legitimacy arises more generally from the perception that government is capable, informed, prompt, responsive, and fair.” That is what we’ve lost — in fact, not just in perception.

Comparing the modern United States to the frontier of the 1860s or even the early 1930s is in many ways unfair. There are real obstacles to building that simply didn’t exist then. But it’s perfectly reasonable to compare ourselves to other OECD democracies. And we’ve tied our own hands with well-intentioned regulations that practically invite long and costly litigation.

Rebuilding that kind of government isn’t a question of regulatory tweaks and interagency coordination. It’s difficult, coalition-splitting work. It pits Democratic leaders against their own allies, against organizations and institutions they’ve admired or joined, against processes whose justifications they’ve long ago accepted and laws they consider jewels of their past.

The environmental movement cheers when Biden says he wants to decarbonize and fast. But if he said that in order to achieve that goal, he wanted to reform or waive large sections of the National Environmental Policy Act to speed the construction of clean energy infrastructure, he’d find himself at war. What if he decided to argue that government workers shouldn’t just be paid more, but they should be easier to both hire and fire?

The problem here is that Klein and I are wonks, interested in solving problems efficiently, first and ideologues second. And, on the domestic policy side at least, Klein is wonkier than me.

I’ve spent most of my adult life trawling think tank reports to better understand how to solve problems. When I go looking for ideas on how to build state capacity on the left, I don’t find much. There’s nothing like the depth of research, thought and energy that goes into imagining health and climate and education policy. But those health, climate and education plans depend, crucially, on a state capable of designing and executing policy effectively. This is true at the federal level, and it is even truer, and harder, at the state and local level.

So this is what I have become certain of: Democrats spend too much time and energy imagining the policies that a capable government could execute and not nearly enough time imagining how to make a government capable of executing them. It is not only markets that have failed.

I find it interesting that Klein couches all of this in terms of “industrial policy,” which Third Way Democrats rejected in the early 1990s in favor of more market-based approaches. But little of this is about the state picking winners and losers (a concept he eschews earlier in the essay) but rather about the nature of the regulatory state. The Empire State Building was privately-owned and financed; the regulatory system simply allowed it to be built quickly.

While I’m still fundamentally conservative in preferring government to be involved only where necessary, I’ve long understood that certain infrastructure projects—roads, rail, airports, mass transit come readily to mind—are only possible with government footing the bill or at least securing land rights. It may well be that various “clean energy” projects will need public subsidy. But I’ve never really thought of infrastructure-building as “industrial policy,” which I’ve always seen as being about making the country’s manufacturing sector more robust and globally competitive.

Similarly, while I prefer regulation to be as modest and unintrusive as possible, it’s been decades since I thought the market would take care of workplace safety, environmental impacts, and the like. But we do seem to have created a regulatory structure that’s more burdensome of that of Western Europe, Canada, and Japan—all of which I tend to think of as more highly-regulated than the United States. Clearly, we’re doing something wrong.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Sleeping Dog says:

    Klein provides one answer that will address part of the problem related to procedural barriers but our issues go far beyond that. 5 years ago the NYT ran an extensive picee on the, still ongoing, 2nd Ave subway expansion and comparing it to a similar project, now complete, in Paris. Paris had spent a sixth as much on that line as NYC has on 2nd Ave.

    Yesterday, @Kathy: , brought up the CA high speed rail debacle. Locally the Federal government has been trying to give the city of Portsmouth the old McIntyre Federal Building, but the city has some hoops to jump through and has been dicking around with the project for a decade. Just when things seem to be a place where no one is happy but the project will proceed, it is election time and some opposition group manages to elect enough like minded candidates to the city council to stymie the project again.

    Much like your and Steven’s writings on why government no longer works, this is simply another example.

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  2. My Yixiao says:

    I have to agree. While I don’t think anyone wants to go back to completely unregulated construction, a lot of the stuff at the edges needs to be reduced or removed.

    California is a good example of this; NIMBYism at its most refined. When anyone can stop a (already ongoing) process with a demand for an environmental impact study (which has already been done), it’s going too far. It weaponizes the heckler’s veto.

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  3. Mu Yixiao says:

    A couple quick notes: Unions in Europe are different from the ones in the US, so it’s not a real comparison on that point.

    And it should be noted that the railroads were built by immigrant labor. Coolies in the west and navvies in the east. The conditions they worked under wouldn’t be allowed today. (Rightfully so)

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  4. Slugger says:

    We definitely have a problem. It’s not new. Boston’s Big Dig was thought up in the 1970s, first construction started in 1982, serious construction 1991-2007, with a final cost 3-4 times the plan. Travel in Boston was very snagged and nerve destroying during that time. I’m still upset that we piddled away the superconducting supercollider in 1993 after spending $4 billion. The Big Dig and the Super/Super should have led to some serious rethinking of our processes; we are still snagged up by a mess of our own making.

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  5. Kathy says:

    @Slugger:

    I’m still upset that we piddled away the superconducting supercollider in 1993 after spending $4 billion.

    Steven Weinberg talked a bit about it in his book Dreams of a Final Theory (1993*). He says a senator told him, “Right now, every senator supports it. Once a site is chosen, only two will.”

    *The book’s so old, it barely acknowledges the dark matter problem. It appears only by the end, and it’s called “the missing mass.”

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  6. DK says:

    @Sleeping Dog:

    Yesterday, @Kathy: , brought up the CA high speed rail debacle

    Projects like this don’t get done because there’s no will. Because not enough Americans travel enough to see how really behind the US is falling in certain areas.

    Bring up rail here, immediate pushback from people who should be enthusiastic based on their politics. But across the political spectrum it’s not “how can we make this happen?” it’s all the reasons it can’t be done, won’t be used, isn’t feasible, can’t compete etc.

    Driving distance from San Fran to Los Angeles is the same as from Barcelona to Madrid, ~380 miles. Barcelona to Madrid by train is a 2-2.5 hour trip depending where exactly you start and end. Who would prefer the time and hassle of getting to, through, and from two airports on the city outskirts rather than hop on a train and being dropped city center?

    Americans would. Because Americans are now so conditioned to mediocrity — and controlled by the fossil fuel lobby — we believe canards like “an SF to LAX train is too far a distance” (it’s not) and “it would take as long as flying” (it wouldn’t).

    It’s regulation and NIMYism but not just that. When even liberals lack vision and the ability to think creatively past the status quo, no, we can’t do moonshots anymore.

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  7. DK says:

    @Mu Yixiao:

    Unions in Europe are different from the ones in the US, so it’s not a real comparison on that point.

    Different how?

    The conditions they worked under wouldn’t be allowed today. (Rightfully so)

    It’s 2022. Are those building rail lines in the EU of late working under conditions poorer than conditions available to US workers?

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  8. While hardly the main problem, I agree that this (as quoted in the OP) is part of the problem: “American politics in general, and the Democratic Party in particular, is dominated by lawyers. ”

    I have no specific solution, but that jumped out at me. Lawyers not only think in very specific ways about the law itself, but they are training to argue in a way that is aimed more at proving their case than finding the actual truth (at least that is the goal in court). This is not always conducive to practical policy solutions.

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  9. Mu Yixiao says:

    @DK:

    Unions in the US are more adversarial in nature than those in the EU. Based on numerous conversations with Europeans, EU unions are based more on “how do we reach the goals together with managment?” In the US, they tend to be more “What can we get from management?” Example: I once worked in a space where, during lunch, the workers had negotiated that “nobody could be in the work space”. I wanted to go grab my book and spend some time reading. Nope. $5,000 fine.

    Are those building rail lines in the EU working today under conditions poorer than those available to US workers?

    My comment was in reference to the line in the OP saying:

    The thing is, we were world-leading good at this sort of thing once upon a time. We managed to build transcontinental railroads and telegraph networks in record time a century and a half ago and this continued well into the 20th century.

    It’s not about US vs EU now, it’s about US then and US now. One of the reasons things take longer to build is because we care if people get hurt, and we care if they’re working 16 hour days.

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  10. Mu Yixiao says:

    Oh… a point of fact from Klein’s essay:

    [T]he Empire State Building was constructed in just over a year. We are richer than we were then, and our technology far outpaces what was available in 1930. And yet — does anyone seriously believe such a project would take a year today?

    This is incorrect.

    The Empire State Building was built in just under four years. It took a total of 1,562 days to complete the project.

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  11. OzarkHillbilly says:

    Similarly, while I prefer regulation to be as modest and unintrusive as possible, it’s been decades since I thought the market would take care of workplace safety,

    I am just going to note that workplace safety regulation is all but a dead letter. Yes, there are regulations on the books but OSHA as an enforcement agency has been gutted by repeated Republican congresses thru the budget process. Yes, if somebody dies, somebody can still get sued. In theory. In my 35 years as a carpenter I was subjected to 1 (one) OSHA inspection. As soon as the inspector was on site (he had spotted a carpenter working with out a safety harness at the edge of the 4th floor) the word went out to roll everything up. Why? Because if an unsafe tool isn’t being used, a company can’t be fined for it. If carpenters aren’t doing anything, the company can’t be fined for having us do unsafe things. So all 40+ carpenters sat on our asses for 6 hours while the delighted inspector took his sweet time checking out every nook and cranny. We got paid for sitting on our asses, but it was the longest day of my career.

    And when they do get caught? A $10,000 fine gets reduced to $250 thru appeals.

    Even on federal projects where the Corps of Engineers are responsible things aren’t much better. I was on a project where a guy shot himself in the liver with a nail gun while climbing a ladder. By the time the Corps guys showed up to seal off the accident site, the gun had mysteriously disappeared. Funny how that happened.

    I could cite dozens of examples but you get the drift.

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  12. Michael Cain says:

    Any comparison of rail projects in the US compared to rail projects in Europe is tricky. For the most part, European governments have maintained if not ownership then strict control of the rail assets. In the US, we gave it all away to corporations who are no longer interested in passenger service or scheduled freight service. Consider that one of the most useful pieces of the Denver light/commuter rail system will probably never be built because Burlington Northern has set the price for access to a 30-mile stretch of right-of-way that they almost never use at $7B. That’s more than the right-of-way acquisition cost for the entire rest of the system. It’s also only an upfront lease payment, they want an annual fee in addition.

    Consider the insanity that has accompanied the Alameda Corridor and Alameda Corridor-East rail projects in the LA basin, mostly because the UP and BNSF can’t be forced to cooperate.

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  13. OzarkHillbilly says:

    @Mu Yixiao: Unions in the US are more adversarial in nature than those in the EU. Based on numerous conversations with Europeans, EU unions are based more on “how do we reach the goals together with managment?” In the US, they tend to be more “What can we get from management?”

    Yeah, there’s a reason for that. In the EU management wants to work with unions for the betterment of all. In the US management sees working with a union as… As something to be carpet bombed into non existence. See Starbucks and Amazon for recent examples.

    I think it was a VW plant in AL that wanted to work with the UAW but… iirc, local elected GOPs killed that idea.

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  14. steve says:

    IIRC the cost to build a kilometer of rail or almost anything is largely driven up on the national level by costs in California and New York. Leave those out and our costs are not too much different. Still, a good piece by Klein. We need a govt that functions well. As to the particulars I dont think the involvement of lawyers is the sole cause but it is a huge part of it. I deal with it all of the time. We run up costs, time worked trying too insulate ourselves for what we fear could be a costly suit. The main reason you need lawyers is because other people have lawyers and are willing to use them. To be fair, some of that is due to bad laws being written but even with good laws you can end up defending costly suits when someone decides to push the limits and a judge allows it.

    Steve

  15. Sleeping Dog says:

    @DK:

    If you haven’t, read the NYT article here @Sleeping Dog:, IIRC it tangentially addresses differences in union relationships on the Paris and NYC projects. As Mu mentions, in the US union-management relations are more adversarial, which is unfortunate, as it raises another barrier to completing projects. And to add with emphasis, the adversarial relationship isn’t the fault of the unions, it has become baked into labor relations in the US largely due to managements lobbying of government.

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  16. Lounsbury says:

    @OzarkHillbilly: “In the EU management wants to work with unions for the betterment of all.
    Americans are so charmingly naive and starry eyed about Europe. And simplistic.

    While the German trade union model is hardly the only or perhaps even the dominant one in Europe (the idea that Francophone zone trade unions are collaborative is…. amusing), there is a different trade union tradition on the continent that is more iterative, that is true.

    The US fundamentally has a much more adversarial culture informing the system from both sides of the equation. And a much more legalistic one.

    @DK: The California rail project is complete nonsensical bollocks, with all the sense of a France starting its TGV development between two thinly populated regions. You should have started something in geographical regions densely populated to establish a viable model and then worked out from there. Instead it rather all seems bound up in economically incoherent Europe-envy.

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  17. Beth says:

    @Steven L. Taylor:

    Related to that, people drawn to become lawyers are the laziest hyper-motivated type A people on the planet and crazier than shit house rats. And I say this as a lawyer who not only love being a lawyer and LOVED law school. I bet if you asked lawyers why they went to law school 75% would answer with a shrug and say “I dunno”.

    This filters down into our careers. The craziest become politicians and the rest of us fight like lunatics. It’s a wonder we get anything done.

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  18. Jay L Gischer says:

    @Lounsbury: Hey, it’s California. We’re on the Pacific Rim. I feel quite sure there’s healthy dose of Japan-envy in there.

    More seriously, a HST from LA to SF could be a boon. Especially as gasoline prices rise.

    I don’t think a HST across the country will ever make sense. It would make sense in the Boston-NY-DC corridor, but how do you find room to build it? Property acquisition is going to be crazy expensive.

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  19. gVOR08 says:

    I have the linked Niskansen paper bookmarked but haven’t read it. Reading Klein I felt there was a certain amount of Murc’s Law going on. OK, if you want anything positive to happen, you can’t expect anything from GOPs, but I don’t see how Ds unilaterally end our adversarial politics. GOPs may have a lower percentage of lawyers, but if you list the really destructive GOPs they’re mostly lawyers: McConnell, Cruz, Hawley, DeSantis, Abbott, …

    1
  20. Sleeping Dog says:

    @Jay L Gischer:

    Amtrak owns the right-of-way for the northeast corridor. When the Penn Central and affiliates went into bankruptcy and were nationalized as Conrail for freight and Amtrak for passenger, someone was smart enough to peel off a dedicated RoW. The barrier to true HSR are the tracks are flat and need to be banked on most curves and the number of at-grade crossings. Beyond funding, the problem is what we are discussing, balkanization of jurisdictions and the ever popular NIMBY.

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  21. Just nutha says:

    Is it important to note that building infrastructure at the national level requires a 60% majority in the Senate or is this discussion purely hypothetical?

    1
  22. grumpy realist says:

    Also don’t forget that the Shinkansen is mainly on elevated tracks (or in a tunnel). You need to have isolated continuous tracks in order to be able to get the high speeds.

    (Which is one reason why the chunk of the Shinkansen going up to Yamagata etc. along the backbone of the Japan Alps is more simply an express rail, a.k.a. doesn’t stop rather than anything high speed.)

    1
  23. Mu Yixiao says:

    @grumpy realist:

    Also don’t forget that the Shinkansen is mainly on elevated tracks (or in a tunnel). You need to have isolated continuous tracks in order to be able to get the high speeds.

    China’s HSR is the same way. And if you book above coach, they’re rather nice trains. In coach… not so much.

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  24. Argon says:

    @Steven L. Taylor: I have no specific solution, but that jumped out at me. Lawyers not only think in very specific ways about the law itself, but they are training to argue in a way that is aimed more at proving their case than finding the actual truth (at least that is the goal in court).

    Meanwhile, there is a lot of money to be made making the process long and litigious.

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  25. Michael Cain says:

    @Sleeping Dog:

    Amtrak owns the right-of-way for the northeast corridor. When the Penn Central and affiliates went into bankruptcy and were nationalized as Conrail for freight and Amtrak for passenger, someone was smart enough to peel off a dedicated RoW.

    I keep hoping that we get off coal quickly enough to bankrupt BNFS. Then Colorado and/or Front Range cities can pick up a bunch of urban RoW for a song.

  26. Michael Reynolds says:

    Not everyone is in that much of a hurry. I have frequently driven SF to LA and the reverse. I can take the 5 and be bored to death and maybe make it in 6 hours, or I can take the 101, which is less dull and slower. What I actually do is split the drive with an overnight at the Allegretto in Paso Robles because I like the place

    What I’d like, that would cost very little: a coastal car ferry. Buy a pair of these bad boys, that do 22 knots (25 mph) which would mean a 14 hour ride from the port of Long Beach to SF or Oakland. They haul 1300 cars and/or 240 trucks and cost 110 million – not billion. Very little new infrastructure would be needed. It would be scenic, relaxing, low pollution and I’d have my car. Leave the LBC at 6 AM, be in the city by 8.

    Not fast, but have you been to LAX lately?

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  27. Kathy says:

    @Michael Reynolds:

    I used to travel for work a lot more in the past. One drive I made several times was Mexico to Guanajuato, about 350-400 kilometers. It took 3.5-4 hours, depending on traffic. More than once I did the round trip the same day (not recommended).

    With an engrossing audiobook or podcast, the time doesn’t exactly fly, but the drive becomes rather pleasant. One time I had about 120 minutes of a really deep primer on quantum mechanics, all leading to Bell’s Inequality.

    1
  28. OzarkHillbilly says:

    @Lounsbury: Americans are so charmingly naive and starry eyed about Europe. And simplistic.

    Go fuck yourself. Come back and talk to me when you’ve hung 4,000 sq ft of drywall in a day. And I don’t mean the lightweight shit they are using now. I’m, talking 12′ stretch board, 5/8’s firecode. Naive doesn’t even begin to describe you. More like ignorant to the point of a college football player who after one single fuckin’ day said, “Nope, not gonna do that.”

    Oh hell, what am I talking about. Come back when you have ever lifted anything that made you break into a sweat. And I don’t mean your tax filings.

    Jeebus, you are stupid.

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  29. Lounsbury says:

    @OzarkHillbilly: Do you feel better after the incoherent outburst that has precisely nothing to do with Europe or Trade Unions or labour-management culture in continental Europe? Or even Europe actually.

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  30. DrDaveT says:

    While I’m still fundamentally conservative in preferring government to be involved only where necessary, I’ve long understood that certain infrastructure projects—roads, rail, airports, mass transit come readily to mind—are only possible with government footing the bill or at least securing land rights.

    That’s a good first step. One of these days you’ll finally have the flash of insight that free markets — the kind that conservatives and libertarians take to be the core of all economics and political philosophy — are only possible when governments create and protect them. In other words, they are public goods. Infrastructure. Like highways and dams and free elementary schools.

    It kind of changes your perspective, once you get that.