Saturday, September 18, 2004


I guess the Powerline plug has actually gotten me my first "real" (as in, from people I don't know) comments of this blogs existance. How cool! And considering that most of them seemed to center around me being foolish and wrong, I guess I need to tighten up my arguments.

Now, I won't normally do this (or if I do, it will be via e-mail), but I'm going to take this time to answer some of the comments personally, on the front page of the blog! That's YOUR prize for being an early reader!

Starting with the comments in my "Thank You" post. This centered around my boredom with Rathergate and other topics of that nature.
Skb argues that 1) its presumptous to claim what is and is not relevant in this election and 2) that he wouldn't vote for Kerry if he lied about his wounds or Bush if he lied to get into the Guard. In a way he is correct, but I do think that these issues should be of secondary importance in the election. What our politicians did or didn't do 30 years ago is not particularly relevant to how they'll govern our country today. While I can perhaps see these issues as being relevant to the electoral decision as a whole, what I'm seeing (and condemning) is that these issues are seemingly pre-empting a rational discussion on the issues that face our nation, and I think that is deeply unfortunate.
Rmcleod argues more directly about the importance of Rathergate. I agree that it is an important issue. But the question is, should it be covered to the virtual exclusion of all others? As Orin Kerr puts it, it should have gotten a few blog posts, but it shouldn't have dominated the discussion. Even the debater in me, who, as Rmcleod points out, appreciates the need for legitimate, honest argumentation, also recognizes that between a case of bad factchecking and arguments over Iraq, Tax Cuts, Terrorism, and a myriad of other pressing issues, the precedence clearly should go to the latter.

Now to the Pledge Comments. These seem to fall into two broad categories, so I'll address each in turn.
First, saying the pledge in general. This is a complex issue. I'll admit I'm a bit torn, because I can see the validity of the points being made. At the same time, the general point about freedom vs compulsion still holds true. Call me anti-essentialist, but I'm going to honor my country on my terms, not the ones dictated to me by the government. However, that point I have to admit is far less important to me than the religious nature of the pledge.
My critique of the "under God" clause in the pledge seemed to be misunderstood. Terry actually gets my position backwards: I don't like "under God" BECAUSE I find it religiously demeaning. It implies that my faith can be reduced to a one-size-fits-all statement like "one nation under God," which is degrading. And the implication that my religion will somehow suffer if "under God" is taken out suggests that my faith can't survive without government training wheels, which is incredibly offensive. And I think that statements of many of the religious leaders who have fought against UG's removal have indeed characterized their position in terms of the need to protect America and organized religion against the ensuing wave of Godlessness. In any event, the fact that people like me can find fault in the pledge on pro-religion grounds is yet more proof that when government wades into religious messages, the result is invariably negative.
Matt points out specifically that the Pledge is merely an affirmation of certain values or ideals. That's great and laudable, but it only strengthens my argument as to the religious aspect. As Judge Reinhardt wrote in the 9th Circuit Court of Appeals ruling in US v. Newdow (328 F.3d 466, 2002)
In the context of the Pledge, the statement that the United States is a nation "under God" is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation "under God" is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase "one nation under God" in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and--since 1954--monotheism. A profession that we are a nation "under God" is identical, for Establishment Clause purposes, to a profession that we are a nation "under Jesus," a nation "under Vishnu," a nation "under Zeus," or a nation "under no god," because none of these professions can be neutral with respect to religion. The school district's practice of teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, including the religious values it incorporates.

That innoculation of religious values, along with the obvious coercive attribute of a schoolhouse setting (that Mr. Mirengoff aptly describes) should make for a clear establishment clause violation, though there are many, many other reasons on which the UG clause falters constitutionally. The 9th circuit opinion gives an excellent analysis of these reasons (as the Supreme Court ruling focused on standing, it had a far less in-depth analysis of the constitutional issues at hand).

Finally, the statement that "I must be doing something right" in my writings on the pledge (considering all the wonderful benefits it got me) was intended to be humorous. I would HOPE that Carleton didn't let me in simply because it liked my politics (if they did, they'll be sorely mistaken, as I'm probably one of the most conservative students on campus, not that that says much).

Anyway, cheers to y'all!

Friday, September 17, 2004

Kerry on Iraq

Anthony Cordesman echoes a claim that I've been hearing alot recently: That while President Bush has unquestionably screwed up Iraq, Sen. Kerry has not articulated anyway to solve the problems Bush has created. This is a fair point, and for the most part, its an accurate criticism. However, there is at least one key point of differentiation between Kerry and Bush on Iraq policy. I blogged earlier on Spencer Ackerman's articulation of this difference, namely, that Sen. Kerry can secure international cooperation and support--even if its not of the military variety--that the reviled Bush cannot. That's an important plus for Kerry, and Bush is not helping matters by burying his head in the sand and pretending nothing is wrong.

I'd like to think this is the first step in answering Powerline's challenge for me to find Conservative reasons to vote for Kerry (as opposed to just voting against Bush). In fact, since I think a clear articulation of POSITIVE reasons to vote for Kerry is severely lacking, I'm going to start compiling positive reasons to vote for Kerry.

Starting off with...his education plan!

The folks at Powerline are very nice...and wrong

The folks at the Powerline Blog have been nice enough to mention my blog on their site. This marks the first time a major blog has linked to my own site. So thank you Powerline!

And what better way to repay them than to take issue with one of their posts?

Mr. Mirengoff remarks that no one at his daughter's school, Walt Whitman High School stands for the pledge. As a former student, I can vouch for the accuracy of this claim, but I would hardly ascribe the nefarious motives Mr. Mirengoff does.

Mr. Mirengoff says there are three reasons given by the students for this:
Three main reasons are cited. First, school starts early, and kids don't feel like standing up. Second, Bush is evil and the U.S. is pretty bad too. Third, with hardly anyone else standing, some feel uncomfortable doing so.

First of all, I would bet money that the first issue is far and away the most prevalent. We're teenagers. Ergo, we are lazy. That's just the way it is. And I'd bet a sizable portion of the people in groups two and three are really "ones" but think that laziness is a pretty poor reason and are embarrassed to say so.

For the second, I can't speak for most Whitman students. However, I do know that I have not stood for the pledge for a LONG time, dating well back into the Clinton admin. It has nothing to do with my (very real) dislike of Bush, because I think it is very important to distinguish between a nation and its government. I'll admit that at the start I didn't stand for the pledge because, yes, I was too tired. Now I don't recite the pledge on principle (more on that in a moment). I think that, to the extent that people are really not standing as protest against the administration, that's an unfortunate expression. However, if you believe that this administration has made a mockery of "liberty...for all" (Federal Marriage Amendment) and "justice for all" (Guantanomo Bay, Patriot Act, Hamdi/Padilla/Moussaoui), then I can see where they're coming from. I don't agree with their methodology (hell, I don't even agree with all they're protesting against), but not everyone has the type of time or energy to craft sophisticated and eloquent protests against authority. Sometimes, simplicity works.

The third I think is very interesting. I am very much inclined to believe that there is a sizable portion of the student body at Whitman who would stand but does not want to ostracize themselves by being "different" from the vast majority of the student population. Mr. Mirengoff is ABSOLUTELY right to point this phenomena out. Unfortunately, I doubt that he would be so quick to embrace the flipside of his argument, that in regions where the vast majority of students stand for the pledge, those who would prefer not to (let's assume out of true political or religious conviction) would feel pressured into standing. In the words of Lee v. Weisman they (the students who would stand but feel pressured not to, and those who wouldn't stand but feel pressured to) are being "psychologically coerced." The same people who are ready to jump down the throats of the liberal pinkos who are making young patriots uncomfortable about honoring their country are utterly dismissive of claims that people who object (religiously or otherwise) to the content of the pledge are "coerced" into participating in it by the patriotic majority. Mr. Mirengoff aptly though inadvertently illustrates the power of the "participate or protest" dilemma faced by so many children and teenagers every day. It just so happens that at Whitman, the "protesters" are in the majority. And the power of this psychological force, now recognized by Mr. Mirengoff, forms the linchpin of my opposition to the pledge in general. This type of coercion can be a force for good or for evil, and we'd all do well to remember that.

Now moving to my personal reasons for not saying the pledge. Even before the Newdow case, I was deeply troubled by the mention of "under God" in the pledge (indeed, I wrote my college essay and my national merit scholarship essay on it. Since I got into college and got the scholarship, I must be doing something right!). This is not because I'm an atheist. Indeed, I believe in God and consider myself a fairly religious person. Rather, its the implications of including "under God" that I find troubling.

First of all, I have always been confused as to the outcry of religious persons in America when it seemed that "Under God" would be taken out. They honestly seemed to view it as a threat to their faith. But what kind of faith requires government training wheels to be expressed? Maybe its because I'm Jewish and my people have had a lot of practice doing this, but it always seemed to me that the true test of faith was ones ability to hold it even when it wasn't part of the status quo. If your faith is so tenuous as to require governmental mandates to keep it afloat, then I think the problem is with our religious institutions, not with the government.

Second, people express religion in different ways. Religion is a deeply personal matter, and there is tremendous variance amongst Americans, even those who do believe in one God, on how to articulate their faith. Even within the same religious tradition there can be cleavages (for example, Jehovah's Witnesses and the Southern Baptists fall on the extreme opposite ends of the Pledge Case spectrum). So when the government proclaims one methodology of expressing faith to be paramount or proper, it has the effect of commoditizing religion, of turning it into a "one size fits all" proposition. I think that is tremendously patronizing of the deep personal and spiritual bound that religion represents, and I think that's what Justice Hugo Black meant when he said that "a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country...showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate." (Engel v. Vitale, 370 US 421, 431)

At root, I'm going to believe in God because I believe in God, not because my government tells me to. And I'm certainly not going to express my faith in terms of federally codified norms. That's not a celebration of religion, that's a mockery of it.

Wednesday, September 15, 2004

Thank You!

As usual, Daniel Drezner says aloud what I've been thinking privately, that is, that all the SBVT and typewriter font and Bush National Guard service reports and all that crap are not the slightest bit relevant in this election. Can the media (and blogosphere) at least PRETEND there are issues being debated here?

Presumably, this sort of media fatigue is helping contribute to Mr. Drezner's 60% probability of voting for Sen. Kerry for President and Barack Obama for Senator (Of course, Alan Keyes opposition to to direct elections of senators might also have something to do with it).

Monday, September 13, 2004

Zacarias Moussaoui Decision

The United States 4th Circuit Court of Appeals has handed down a decision in United States v. Moussaoui. I read the (90 page) opinion, and it appears that the court agreed with District Court Judge Robert Doumar that the government's proposed subsitutions for having certain suspected Al-Qaeda witnesses actually appear on the stand were not enough to survive constitutional scrutiny. However, it disagreed with Mr. Doumar in that any form of substitution was a violation of Mr. Moussaoui's rights, and gave guidelines for an alternative form of substitution to be used at trial. It also reinstated the possibility of the death penalty, which Judge Doumar threw out. The panal of Chief Judge Wilkins and Judges Williams and Gregory was unanimous on the unconstitutionality of the government's original proposal, however, Justice Gregory dissented as to the propreity of the alternative substitution method and the reinstatement of the death penalty.

Debate Club

Legal Affairs has just started a debate club featuring prominent legal academics and commentators arguing over important and pertinent legal issues of our time. Currently, Jenny Martinez is debating David Rifkin and Lee Casey on "How Should the US try suspected terrorists?"

In keeping with this sites debate tradition, I will judge the debate at its conclusion.

Sunday, September 12, 2004

Anti-Privacy Cards?

I don't know how useful these will be, but they seem reasonably likely to help neg cases on the sept/oct topic (some people might recognize these from Matt Scarola's "rights talk kritik" of CFL Nationals Fame. But I don't know if he used these specific cards, or merely this author).

Mary Ann Glendon, Learned Hand Professor of Law at Harvard University, writes in "RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE"
[The Plantiff in Roe v. Wade] won the right that had been understood from its earliest appearance in the American legal system as "the right to be let alone." And let alone she was. No one . . . had been willing to help her either to have the abortion she desired, or to keep and raise the child who was eventually born.
Buried deep in our rights dialect is an unexpressed premise that we roam at large in a land of strangers, where we presumptively have no obligations toward others except to avoid the active infliction of harm. This legalistic assumption is one that fits poorly with the American tradition of generosity toward the stranger, as well as with the trend in our history to expand the concept of the community for which we accept common responsibility.

Also this quote set (which is a good block against gay rights aff cases):
Neglect of the social dimension of personhood has made it extremely difficult for us to develop an adequate conceptual apparatus for taking into account the sorts of groups within which human character, competence, and capacity for citizenship are formed. In a society where the seedbeds of civic virtue-families, neighborhoods, religious associations, and other communities-can no longer be taken for granted, this is no trifling matter.
Because individuals are partly constituted in and through relationships with others, a liberal politics dedicated to full and free human development cannot afford to ignore the settings that are most conducive to the fulfillment of that ideal.