Thursday, December 02, 2004

Left Hook

UPDATE: 12/02 @ 11:00 PM
Peter Beinart has written an important article for the upcoming New Republic (this ones free to everyone). It outlines the steps contemporary liberalism needs to take in response to the threat of Islamic fundamentalism, by drawing parallels to how liberalisms shifted to face the threat of Communist totalitarianism.

Beinart argues that liberalism is split between the "soft" and "hard" wings. The Softs do not condone Islamic terror, but neither do they consider it much of a concern. Rather, the Softs see "the war on terror" as a construct created by the right wing to distract from other, more important goals (healthcare, working families, etc). The Hards, by contrast, are decidedly anti-fundamentalist. They recognize that Islamic fundamentalism is one of the gravest threats to liberal values around the world, and are thus deadly serious about stopping it and rolling it back. Hards are willing to use coercion and force to oppose the totaliterean ideals of al-Qaeda and its allies, while Softs are not. Unfortunately, while there is a powerful Hard Foreign Policy elite in the Democratic party, the grassroots (Michael Moore, MoveOn, etc.) is decidedly Soft. In order to show America that the Democratic Party is serious about security, power will have to be wrested away from the Softs and concentrated in the Hards.

At the same time, Beinart reminded me why the Democrats, ultimately, are the better party for tackling National Security:
"For [Arthur] was conservatives, with their obsessive hostility to higher taxes, who could not be trusted to fund America's cold war struggle. "An important segment of business opinion," he wrote, "still hesitates to undertake a foreign policy of the magnitude necessary to prop up a free world against totalitarianism lest it add a few dollars to the tax rate." After Dwight Eisenhower became president, the ADA took up this line, arguing in October 1953 that the "overriding issue before the American people today is whether the national defense is to be determined by the demands of the world situation or sacrificed to the worship of tax reductions and a balanced budget." Such critiques laid the groundwork for John F. Kennedy's 1960 campaign--a campaign, as Richard Walton notes in Cold War and Counterrevolution, "dominated by a hard-line, get-tough attack on communism." Once in office, Kennedy dramatically increased military spending.

Such a critique might seem unavailable to liberals today, given that Bush, having abandoned the Republican Party's traditional concern with balanced budgets, seems content to cut taxes and strengthen the U.S. military at the same time. But subtly, the Republican Party's dual imperatives have already begun to collide--with a stronger defense consistently losing out. Bush has not increased the size of the U.S. military since September 11--despite repeated calls from hawks in his own party--in part because, given his massive tax cuts, he simply cannot afford to. An anti-totalitarian liberalism would attack those tax cuts not merely as unfair and fiscally reckless, but, above all, as long-term threats to America's ability to wage war against fanatical Islam."

The Republican party has already proven itself to be a failure with regards to terrorism (and now knows it will pay no electoral price for its inadequacies). The Democratic party seems unready to take up the mantlepiece for itself. Which one will snap to its senses first? Only time will tell, but hopefully not too much of it.

UPDATE: If Beinart gave the how, Kevin Drum gives the why. His link explains that someone needs to explain WHY Islamic Totalitereanism is such a grave threat that justifies this mass purge.

I'd take a crack at it, but I'm braindead right now. Also, I'm going up to Princeton to judge the debate tournament there (my triumphant return, I won it my senior year of High School). So that will suck into my time ALOT this weekend.

Tuesday, November 30, 2004

Legal Breakthrough for Gays; Setback for Trees

Andrew Sullivan reports that the South African Supreme Court of Appeals has ruled 4-1 in favor of allowing Gay Marriage (more here and here). As one of his emailers noted, "freedom is on the march," except where President Bush is trying to stop it. If anybody can find the link to the actually ruling and opinions themselves, I'd be very appreciative.

Meanwhile, if any of you wonder why I follow law, its because occassionally something like this case pops up:
Fisher v. Lowe, 333 N.W.2d 67 (Mich. App. 1983), which reads, in its entirety:

We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree's behest;
A tree whose battered trunk was prest
Against a Chevy's crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court's decree.

Now, wasn't that worth reading?

Monday, November 29, 2004

Medical Marijuana Oral Arguments

Lawrence Solum has a good sum up of the oral arguments in Ashcroft v. Raich (link via Volokh). The case, as The Volokh Conspiracy pains to note, is really less of a drug case as it is a federalism case. The question is whether the federal Controlled Substances Act (CSA) preempts state laws that allow for the use of medical marijuana that is grown in-state and never enters the commercial market (thus implicated the inter-state commerce clause).

This is a tough case. As many commentators have noted, in this case the conservative theoretical position (states rights) would support a liberal policy position (medical marijuana). This is sure to cause at least a few headaches on the court. For liberal ol' me, its not AS difficult, since I didn't find either US v. Lopez [514 US 549 (1995)] or US v. Morrison [529 US 598 (2000)] to be bad decisions (note to the not-legally-inclined: Lopez and Morrison were two of the major cases that limited the Interstate Commerce Clause. Prior to those cases, congress could and frequently did justify virtually any law on the grounds that it impacted commerce. In these two cases, the court essentially held that the ISC clause only could be used if the activity in question actually was economic in nature. Guns in schools (Lopez) and beating women (Morrison) didn't qualify). I'm generally in favor of federal power, but the Interstate Commerce Clause can't extend to anything and everything if we're even going to pretend that we're in a federal system. The court's decision to limit the ISC clause to "economic activities" strikes me as quite reasonable.

However, two more quite thorny issues then present themselves. The first is whether or not the growth and use of medical marijuana is an "economic activity." This is a close call. Since this marijuana never enters the marketplace and is (supposedly) entirely divorced from the recreational and illegal markets, I would tentatively answer no. However, it seems somewhat shaky that the distribution and use of medicine is not an issue of "commerce." After all, many drugs are shipped around the country and are bought and sold for profit. Entire industries (HMOs, Pharmaceutical Companies, etc.) have been built to enhance and sustain this production. To claim that medicine is not a commercial activity seems absurd on face. Yet, on the other hand, medical issues have unquestionably been traditionally seen as a state concern. If the ISC clause was intended to apply to domestic medical issues, then the idea that states had any right at all to regulate their own medical practices would be entirely undermined. What seems to be key here is that, since the marijuana is NOT part of the marketplace and is entirely contained within one state, any impact on commerce is incidental and is de minimis. This is especially true since the amount of users of medical marijuana amounts to a tiny fraction of the overall market demand for marijuana. As such, one of the governments primary arguments, that allowing for medical marijuana would lower market prices and thus undermine the governments regulatory scheme--which consists of creating a black market that keeps marijuana prices high--seems specious at best.

The second issue is whether or not, as a matter of precedent, actions that are "economic" but avoid the marketplace (such as medical marijuana) are within the purview of the ISC clause. At first, the controlling case would appear to be Wickard v. Filburn [317 US 111 (1942)]. In that case, the court held that that wheat entirely consumed on the farm it was grown on still would implicate the ISC clause and was subject to regulation by the federal government. However, as I learned in the oral argument, the wheat in that case wasn't just put on the farmer's dinner table, it was used to feed the livestock which WAS put on the market. Hence, since the wheat was part of the "stream" of commerce that did impact the market, it could be regulated. Since the entire commercial "life" of medical marijuana begins and ends with the patient, there is no similar implication in this case.

Civil War for a Brighter Tommorow

One of the nice things about neo-conservative columnists is that they are so gosh darn optimistic. Iraq DOES have WMDs, we WILL shock and awe them, mission HAS been accomplished, freedom and democracy IS on the march. Because of that admirable trait, its usually safe to assume that things are at least one degree worse than whatever talking point they are parroting at the moment.

So what am I supposed to gather from Charles Krauthammer's column that encourages the US to just let a civil war happen? (tipoff: Iraq'd)
"This is the Shiites' and Kurds' fight. Yet when police stations are ravaged by Sunni Arab insurgents in Mosul, U.S. soldiers are rushed in to fight them. The obvious question is: Why don't we unleash the fierce and well-trained Kurdish pesh merga militias on them? (Mosul is heavily Kurdish and suffered a terrible Kurdish expulsion under Hussein.)

Yes, some of the Iraqi police/National Guard units fighting with our troops are largely Kurdish. But they, like the Shiites, fight in an avowedly nonsectarian Iraqi force. Why? Because we want to maintain this idea of a unified, non-ethnic Iraq. At some point, however, we must decide whether that is possible, and how many American lives should be sacrificed in its name?"

Krauthammer argues that there already IS a civil war, and the US needs to recognize that and get out of the way. That's a viable option, but Krauthammer needs to recognize that it essentially means conceding defeat, because to allow Iraq to go from de facto to de jure civil war will mean the death of Iraq as a sustainable political unit. Krauthammer isn't willing to see this, instead drawing the parallel to the end of the Civil War, when a few ex-confederate states still hadn't fully been reincorporated into the union. But the situations aren't remotely comparable. In 1868 the Union had won a clear and decisive victory over the South, utterly destroying both the means and will for the Confederacy to wage a war. The remaining "insurgents," if you will, were scattered and clearly in an all-out retreat. In Iraq, by contrast, there has been no clear cut victory over the insurgency (which is a very distinguishable entity from Saddam's smashed Baathist government), and the revolt is growing, not shrinking. Krauthammer still seems stuck in thinking that the insurgency is composed of a few Baathist "dead-enders," and that just isn't the case anymore. Until we break out of that mindset and realize that this insurgency is a true and grave threat to Iraq's future stability (not to mention its democratic prospects), we'll never have a prayer of defeating it.