Saturday, July 30, 2005
Friday, July 29, 2005
Recasting "The Lorax"; Or, The Triumph of the Crits
Todd Zywicki points us to a property-rights reinterpretation of Dr. Seuss' classic environmental, er, tract, "The Lorax."
I repost it in full, only because you need to read all of it to understand the point I'm making (and, given my own experience with reading assignments in High School, I don't trust you folks to actually do it yourselves!):
So--let's break this down to the roots. A story that has a dominant, superficial message (corporate greed leads to environmental destruction), and, as the critic admits, probably was intended to forward precisely that message, still contains within in it traces of other meanings which subvert and undermine the primary interpretation and the accompanying ideology.
If this sounds familiar, that's because this is precisely how post-modern literary critics make their living. Yet here, we have a conservative blogger using the same method to make a conservative argument (replacing a traditional liberal environmentalist model with a conservative one emphasizing property rights).
I've registered my own support for this type of method before--but that shouldn't be surprising, since I'm a liberal. What is interesting is seeing how conservatives have adapted this style in their own arguments, probably without realizing its roots. Another example is conservative blogger Steve Bainbridge defending under "Just War" theories the destruction of Alderaan (that's right, we're talking Star Wars. For another "neo-imperialist" argument by a prominent conservative, see here in The Weekly Standard). In another post, which unfortunately points to a broken link, Bainbridge notes that just because they wear black, doesn't make them evil. The point is that the imagery of Star Wars is clearly designed to point the viewer to certain conclusions (sometimes overtly--who names their own ships and installations "Death Star," "Executor," "Tyrant," etc.?), but look underneath the surface and the meaning isn't inevitable (despite the clear intention of the author). This parallels almost exactly the indeterminacy theories forwarded by much of the academic left.
What's funny is that conservatives claim to loathe these theories (see, for just one example, Senator Jeff Sessions (R-AL)). Indeed, Bainbridge himself has called it "bogus." Yet, here he is, engaging in precisely the critical endeavor he claims to abhor. What gives?
Other parts of the critical movement are rapidly making themselves known in conservative circles as well. Storytelling scholarship, despite often coming under criticism, is used by virtually all members of the political spectrum (as Richard Delgado puts it: "who has not run into the conservative or anti-PC detractor who begins by recounting: 'I know a story . . . .' and then tells of a mythical professor who was so hounded by PC fanatics that he hung up his coffee cup and retired" [Richard Delgado, Rodrigo's Book of Manners: How to Conduct a Conversation on Race -- Standing, Imperial Scholarship, and Beyond (Reviewing "BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW" by Daniel A. Farber and Suzanna Sherry), 86 GEO. L.J. 1051, 1072 (1998)]). In an article published in a campus political journal, I noted how conservative arguments for ideological diversity on campus mirror almost exactly liberal arguments for racial diversity--and how the responses of both "embattled minorities" is very similar: Both political minorities and racial minorities tend to separate themselves out from the rest of campus, form groups specifically designed to advocate and protect their interests as well as offering a safe space for members to congregate, and advocate vociferously to defend encroachments on their dignity while at the same time trying to avoid the backlash that is concurrent with being seen as a "pushy minority." Indeed, conservatives seem awfully comfortable with critical theory--aside from the fact that they hate it.
Although part of me does rebel about such a lovely story as The Lorax being co-opted to the conservative cause, I am far more pleased to see a philosophy I find important and compelling being adopted across ideological divides. Indeed, while I expect to hear protests and assaults on post-modernism for years to come, judging by what conservatives are saying, the Crits have already won.
I repost it in full, only because you need to read all of it to understand the point I'm making (and, given my own experience with reading assignments in High School, I don't trust you folks to actually do it yourselves!):
Dr. Seuss' story of the Lorax is an environmental classic (as is the television version that I've just seen). The conventional interpretation is that it's a tale of market-driven environmental ruin. The greedy Once-ler ignores the Lorax's warnings of environmental ruin as he turns truffula trees into thneeds (for a thneed, after all, is a thing that everyone needs!). As the truffula trees disappear the animals run off in fear, smog fills up the air yet the Once-ler doesn't care. Eventually the Once-ler cuts the last truffula down, and his entire corporate empire folds up and leaves town.
Environmentalists love to present this as a parable of modern industry's exploitation of the natural world. The relentless pursuit of profit leads to environmental -- and economic -- ruin. When the last truffula falls, so does the natural base for the Once-ler's wealth. And unless humans learn to care for the natural environment, and control industrial development, we will produce ecological devastation. But is this the best interpretation?
Paul Feine of the Institute for Humane Studies suggests the Lorax is subject to alternative interpretations. Viewing the tale of the Lorax through an institutional lens, ruin is not the result of corporate greed, but a lack of institutions. The truffula trees grow in an unowned commons. (The Lorax may speak for the trees, but he does not own them.) The Once-ler has no incentive to conserve the truffula trees for, as he notes to himself, if he doesn't cut them down someone else will. He's responding to the incentives created by a lack of property rights in the trees, and the inevitable tragedy results. Had the Once-ler owned the trees, his incentives would have been quite different -- and he would likely have acted accordingly -- even if he remained dismissive of the Lorax's environmental concerns.
The story ends with the Once-ler giving a young boy the last truffula seed. He tells him to plant it and treat it with care, and then maybe the Lorax will come back from there. The traditional interpretation is simply that we must all care more for the environment. If we only control corporate greed we can prevent environmental ruin. But perhaps it means something else. Perhaps the lesson is that this boy should plant his truffula trees, and act as their steward. Perhaps giving the boy the last seed is an act of transferring the truffula from the open-access commons to private stewardship. Indeed, the final image -- the ring of stones labeled with the word "unless" -- could well suggest that enclosure, and the creation of property rights to protect natural resources, is necessary for the Lorax to ever return.
Now I am not suggesting for a moment that this is the interpretation Dr. Seuss intended. Yet the Lorax, like any text, is open to multiple interpretations -- and this institutional interpretation is certainly compatible with the text. As is, perhaps, another interpretation in which the Lorax is himself an owner whose property rights are ignored by an unaccountable corporation. Either way, the Lorax is easily seen a story about property rights -- or the lack thereof -- and the inevitable environmental consequences of poor institutions. Something to think about the next time you hear the Lorax mentioned in an environmental policy debate.
So--let's break this down to the roots. A story that has a dominant, superficial message (corporate greed leads to environmental destruction), and, as the critic admits, probably was intended to forward precisely that message, still contains within in it traces of other meanings which subvert and undermine the primary interpretation and the accompanying ideology.
If this sounds familiar, that's because this is precisely how post-modern literary critics make their living. Yet here, we have a conservative blogger using the same method to make a conservative argument (replacing a traditional liberal environmentalist model with a conservative one emphasizing property rights).
I've registered my own support for this type of method before--but that shouldn't be surprising, since I'm a liberal. What is interesting is seeing how conservatives have adapted this style in their own arguments, probably without realizing its roots. Another example is conservative blogger Steve Bainbridge defending under "Just War" theories the destruction of Alderaan (that's right, we're talking Star Wars. For another "neo-imperialist" argument by a prominent conservative, see here in The Weekly Standard). In another post, which unfortunately points to a broken link, Bainbridge notes that just because they wear black, doesn't make them evil. The point is that the imagery of Star Wars is clearly designed to point the viewer to certain conclusions (sometimes overtly--who names their own ships and installations "Death Star," "Executor," "Tyrant," etc.?), but look underneath the surface and the meaning isn't inevitable (despite the clear intention of the author). This parallels almost exactly the indeterminacy theories forwarded by much of the academic left.
What's funny is that conservatives claim to loathe these theories (see, for just one example, Senator Jeff Sessions (R-AL)). Indeed, Bainbridge himself has called it "bogus." Yet, here he is, engaging in precisely the critical endeavor he claims to abhor. What gives?
Other parts of the critical movement are rapidly making themselves known in conservative circles as well. Storytelling scholarship, despite often coming under criticism, is used by virtually all members of the political spectrum (as Richard Delgado puts it: "who has not run into the conservative or anti-PC detractor who begins by recounting: 'I know a story . . . .' and then tells of a mythical professor who was so hounded by PC fanatics that he hung up his coffee cup and retired" [Richard Delgado, Rodrigo's Book of Manners: How to Conduct a Conversation on Race -- Standing, Imperial Scholarship, and Beyond (Reviewing "BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW" by Daniel A. Farber and Suzanna Sherry), 86 GEO. L.J. 1051, 1072 (1998)]). In an article published in a campus political journal, I noted how conservative arguments for ideological diversity on campus mirror almost exactly liberal arguments for racial diversity--and how the responses of both "embattled minorities" is very similar: Both political minorities and racial minorities tend to separate themselves out from the rest of campus, form groups specifically designed to advocate and protect their interests as well as offering a safe space for members to congregate, and advocate vociferously to defend encroachments on their dignity while at the same time trying to avoid the backlash that is concurrent with being seen as a "pushy minority." Indeed, conservatives seem awfully comfortable with critical theory--aside from the fact that they hate it.
Although part of me does rebel about such a lovely story as The Lorax being co-opted to the conservative cause, I am far more pleased to see a philosophy I find important and compelling being adopted across ideological divides. Indeed, while I expect to hear protests and assaults on post-modernism for years to come, judging by what conservatives are saying, the Crits have already won.
Thursday, July 28, 2005
Now I Am Getting a Touch Angry
I was not one of those persons who was ready to jump on the new Pope as soon as he was elected. Indeed, I was even a bit excited, and chided those who immediately tried to box the new Pope as any sort of ideologue.
But my patience is waning.
In a recent speech, Pope Benedict specifically condemned terrorist attacks in Britain, Iraq, Turkey, and Egypt, neglecting the terror attacks against Israel in Netanya (not that it should matter, but Netanya is not in the West Bank or Gaza Strip). The omission was bad enough--the Holy See has enough credibility problems with Jews that it doesn't need to make things worse by refusing to condemn murder.
But the incredibly, the reason given for Israel's omission was even worse than the omission itself. Namely:
I concur wholeheartedly with the reaction of Andrew Sullivan's guest-blogger:
As am I. The Pope cannot get away with the murderous equivilancy of suicide bombings and legitimate self-defense and expect to have any credibility in the Jewish community. Israel may or may not be right in the particulars of how it responds to terror. But it certainly possible to condemn suicide bombings that deliberately target innocents without feeling compelled to condemn actions designed to deter these murders.
But my patience is waning.
In a recent speech, Pope Benedict specifically condemned terrorist attacks in Britain, Iraq, Turkey, and Egypt, neglecting the terror attacks against Israel in Netanya (not that it should matter, but Netanya is not in the West Bank or Gaza Strip). The omission was bad enough--the Holy See has enough credibility problems with Jews that it doesn't need to make things worse by refusing to condemn murder.
But the incredibly, the reason given for Israel's omission was even worse than the omission itself. Namely:
It's not always possible to immediately follow every attack against Israel with a public statement of condemnation," a statement from the Vatican press office said Thursday night, "and (that is) for various reasons, among them the fact that the attacks against Israel sometimes were followed by immediate Israeli reactions not always compatible with the rules of international law."
"It would thus be impossible to condemn the first (the terror strikes) and let the second (Israeli retaliation) pass in silence," said the statement, which had an unusually blistering tone for the Holy See.
I concur wholeheartedly with the reaction of Andrew Sullivan's guest-blogger:
Just so I understand, the reactions of Egypt, Britain, Iraq and Turkey to terror attacks have always been compatible with the rules of international law ?! Therefore, terror attacks against innocents living in those countries are wrong. Terror attacks targeting citizens living in countries with imperfect records are not. I am wordless.
As am I. The Pope cannot get away with the murderous equivilancy of suicide bombings and legitimate self-defense and expect to have any credibility in the Jewish community. Israel may or may not be right in the particulars of how it responds to terror. But it certainly possible to condemn suicide bombings that deliberately target innocents without feeling compelled to condemn actions designed to deter these murders.
Don't See This Everyday
When's the last time you've seen a bona fide liberal blogger congratulate the Bush administration on anything? Kevin Drum even manages to keep the snark down to a minimum:
Of course, there are other cases where liberal bloggers have congratulated the Bushies for particular moves and policies. (See, for example, this Dean partisan lauded Bush for his Sudan policy). But it is still nice to see folks transcend partisan affiliation and say "I don't like the guy, but he's right here." Oddly enough, I like seeing this attribute even when I think the actor is wrong on what they're agreeing with (not that I'm saying I disagree with Drum--I obviously like more rights for minorities in Iraq and a strengthened political process; withdrawal is far sketchier though). I agree with Publius that this entirely irrational--why should I like to see Democrats both agree with Republicans AND be wrong about it? I really don't know. I guess polarization has gotten so tiresome that I'm happy to see any cross-aisle partnership, no matter what the cause. However, this is limited to rhetorical props only. Nothing is more infuriating than watching otherwise bickering politicians put aside their differences and unite around idiocy (can you say Bankruptcy Bill?). It's just a wasted opportunity.
While we're on the subject, I have seen almost no examples of the equivalent by conservative bloggers about liberal political figures. Some examples please, and barring that, a bit of parity, perhaps?
Sure, a lot of this is politically motivated, and I have little doubt that the planned spring withdrawal is being timed to coincide with next year's midterm elections — and probably being timed to avoid a manpower meltdown as well. But politics is part of life. A timetable for withdrawal that's linked to the political process and combined with pressure to protect minority and gender rights, is the best course of action regardless of the motivation. If the Bushies keep it up, kudos to them.
Of course, there are other cases where liberal bloggers have congratulated the Bushies for particular moves and policies. (See, for example, this Dean partisan lauded Bush for his Sudan policy). But it is still nice to see folks transcend partisan affiliation and say "I don't like the guy, but he's right here." Oddly enough, I like seeing this attribute even when I think the actor is wrong on what they're agreeing with (not that I'm saying I disagree with Drum--I obviously like more rights for minorities in Iraq and a strengthened political process; withdrawal is far sketchier though). I agree with Publius that this entirely irrational--why should I like to see Democrats both agree with Republicans AND be wrong about it? I really don't know. I guess polarization has gotten so tiresome that I'm happy to see any cross-aisle partnership, no matter what the cause. However, this is limited to rhetorical props only. Nothing is more infuriating than watching otherwise bickering politicians put aside their differences and unite around idiocy (can you say Bankruptcy Bill?). It's just a wasted opportunity.
While we're on the subject, I have seen almost no examples of the equivalent by conservative bloggers about liberal political figures. Some examples please, and barring that, a bit of parity, perhaps?
Wednesday, July 27, 2005
Will the Real Hillary Clinton Please Stand Up?
In the wake of Clinton's successful venture against GTA, Kevin Drum feels inclined to ask the following:
I will admit to some confusion. While The Washington Monthly is split both ways on whether Hillary can win the White House, I don't see why Drum thinks that Clinton's centrist drift is in anyway faked, and I certainly don't see it restricted to "a few harmless rhetorical flourishes."
Clinton's "common ground" speech, for example (delivered at NARAL no less), was a tremendously gutsy position to take. Perhaps more than any other issue, abortion has become divided into two sides completely convinced the other is evil. It's murderers versus misogynists. In this environment, any words suggesting compromise or reconciliation could create a brutal backlash amongst the left. This is true even in the presence of such obvious common ground like what Clinton pointed out, that nobody likes abortion, that most people think that society and/or government should take steps in some form to reduce the amount of abortions that occur. Indeed, the primary point of departure is on whether abortion should be criminalized (link: Bitch Ph.D)--and most pro-lifers, when pressed, are unwilling to go all out and say women who have abortions should be sent to prison as murderers. Political waters are most dangerous when there is clear grounds for consensus that people have consciously chosen to eschew. That suggests that positions and sentiments have become so entrenched as to border on irrational. Clinton's foray into the morass says much about character--it was not anything contrived.
It is true that in this (GTA) particular instance, Democrats have been relatively sanguine about Clinton's rightward shift. But it is simply wrong to suggest that on issues of substance, the base will applaud anything Hillary does simply because she's Hillary. It is tough to disregard your core base of support--especially when you're reaching out to a demographic group that has shown its distrust with you personally in the past. Most politicians don't have the guts to do it. Witness GWB's prostration before the Christian right on the Schiavo matter. If a just re-elected term limited president wildly popular with his rightwing base can't say no to them on issue of the most profound stupidity, when can he? Hillary's situation is no different--the base will certainly give her some slack, but not an infinite amount. Look at what happened when she called for a truce amongst warring factions within the Democratic party. As usual, the response was depressingly fratricidal all around (link: Balloon Juice)--showing that even folks with Clinton's rock star status are not immune to being burned when they defy the base.
Simply put, not only do I think Drum is wrong about the superficiality of Clinton's centrist move, I think it's politically damaging as well. Such a critique plays into the hands of GOPers who are trying to portray Clinton's move as pure politics (mostly because they can't disagree with the actual substance of what she is proposing). It's bad enough when they do it--but does our side have to join in too?
I do wonder, though, what she's up to. After she finishes her supposed "move to the center," which appears to consist of little more than a few harmless rhetorical flourishes, will she then produce some genuinely big ideas to base her national 2008 candidacy on? If so, what will they be? After more than a decade in the national spotlight, I still couldn't even begin to guess. When will the real Hillary emerge from her cocoon?
I will admit to some confusion. While The Washington Monthly is split both ways on whether Hillary can win the White House, I don't see why Drum thinks that Clinton's centrist drift is in anyway faked, and I certainly don't see it restricted to "a few harmless rhetorical flourishes."
Clinton's "common ground" speech, for example (delivered at NARAL no less), was a tremendously gutsy position to take. Perhaps more than any other issue, abortion has become divided into two sides completely convinced the other is evil. It's murderers versus misogynists. In this environment, any words suggesting compromise or reconciliation could create a brutal backlash amongst the left. This is true even in the presence of such obvious common ground like what Clinton pointed out, that nobody likes abortion, that most people think that society and/or government should take steps in some form to reduce the amount of abortions that occur. Indeed, the primary point of departure is on whether abortion should be criminalized (link: Bitch Ph.D)--and most pro-lifers, when pressed, are unwilling to go all out and say women who have abortions should be sent to prison as murderers. Political waters are most dangerous when there is clear grounds for consensus that people have consciously chosen to eschew. That suggests that positions and sentiments have become so entrenched as to border on irrational. Clinton's foray into the morass says much about character--it was not anything contrived.
It is true that in this (GTA) particular instance, Democrats have been relatively sanguine about Clinton's rightward shift. But it is simply wrong to suggest that on issues of substance, the base will applaud anything Hillary does simply because she's Hillary. It is tough to disregard your core base of support--especially when you're reaching out to a demographic group that has shown its distrust with you personally in the past. Most politicians don't have the guts to do it. Witness GWB's prostration before the Christian right on the Schiavo matter. If a just re-elected term limited president wildly popular with his rightwing base can't say no to them on issue of the most profound stupidity, when can he? Hillary's situation is no different--the base will certainly give her some slack, but not an infinite amount. Look at what happened when she called for a truce amongst warring factions within the Democratic party. As usual, the response was depressingly fratricidal all around (link: Balloon Juice)--showing that even folks with Clinton's rock star status are not immune to being burned when they defy the base.
Simply put, not only do I think Drum is wrong about the superficiality of Clinton's centrist move, I think it's politically damaging as well. Such a critique plays into the hands of GOPers who are trying to portray Clinton's move as pure politics (mostly because they can't disagree with the actual substance of what she is proposing). It's bad enough when they do it--but does our side have to join in too?
Tuesday, July 26, 2005
The Code is Law...Follow the Code
PrawfsBlawg links to an interesting article reviewing "Restoring Free Speech and Liberty on Campus". It presents an interesting perspective on the academic freedom wars. While scathingly (and justifiably) critical of campus speech codes, he is also firmly committed to a multicultural education, one
Although I have some sympathies to the goal, speech and conduct codes are suspect for several reasons. For one, there is no institutional competence or neutrality in resolving claims. Campuses adopt speech codes because they are committed to a particular political agenda. This very same committment, however, taints the very people (likely faculty members or administrations) who would be conducting the hearings. This can explain why many colleges have abhorrently low levels of procedural protection for the accused. Second, prevailing social environments on campus are very different than social realities in general. In normal society, prejudice and discrimination is pretty much limited to the traditional racist/sexist/heterosexist/anti-Semetic(/other minority religion) lines. In colleges, by contrast, this is supplemented (though by no means replaced) by feelings of hostility towards conservatives and religious persons (especially Christians). Most colleges have not acknowledged this fact, since it is their very core structures that help reify and enable this prejudice. However, given the reality of much "hate speech" cases (conservative student A expressing a "traditionalist" view of a certain group, to which B belongs), this critically wounds any hope of neutrality amongst the college. Finally, colleges have no institutional traditions suitable to resolving this dispute. Being a Professor is a polemical position. It is based off forwarding and defending particular positions. Unlike legal system, which has historically rooted practices which help guard against biased results (stare decisis, incrementalism, presumption of impartiality), colleges have no similar constraining traditions, making them even more vulnerable to the types of political bias I described above. Of course, panel members may feel a compulsion toward impartiality for other reasons--for example, a feeling of duty--but this is a far weaker foundation (for example, a professor could as easily feel a compulsion to see that the guilty are punished, or to assure that "justice is done").
that reflect[s] the simple and straightforward educational imperative out of which multiculturalism’s legitimate demands flow: We must study other peoples and places because we cannot understand humanity - our own included - without acquainting ourselves with the variety of ways of being human.
Although I have some sympathies to the goal, speech and conduct codes are suspect for several reasons. For one, there is no institutional competence or neutrality in resolving claims. Campuses adopt speech codes because they are committed to a particular political agenda. This very same committment, however, taints the very people (likely faculty members or administrations) who would be conducting the hearings. This can explain why many colleges have abhorrently low levels of procedural protection for the accused. Second, prevailing social environments on campus are very different than social realities in general. In normal society, prejudice and discrimination is pretty much limited to the traditional racist/sexist/heterosexist/anti-Semetic(/other minority religion) lines. In colleges, by contrast, this is supplemented (though by no means replaced) by feelings of hostility towards conservatives and religious persons (especially Christians). Most colleges have not acknowledged this fact, since it is their very core structures that help reify and enable this prejudice. However, given the reality of much "hate speech" cases (conservative student A expressing a "traditionalist" view of a certain group, to which B belongs), this critically wounds any hope of neutrality amongst the college. Finally, colleges have no institutional traditions suitable to resolving this dispute. Being a Professor is a polemical position. It is based off forwarding and defending particular positions. Unlike legal system, which has historically rooted practices which help guard against biased results (stare decisis, incrementalism, presumption of impartiality), colleges have no similar constraining traditions, making them even more vulnerable to the types of political bias I described above. Of course, panel members may feel a compulsion toward impartiality for other reasons--for example, a feeling of duty--but this is a far weaker foundation (for example, a professor could as easily feel a compulsion to see that the guilty are punished, or to assure that "justice is done").
Monday, July 25, 2005
UnBorkable, You Say?
Folks who've been defending nominee John Roberts have claimed that his affable personality and superb pedigree makes him "unBorkable", meaning that Democrats could not portray him into an evil hobgoblin and thus defeat his nomination. However, David Adnesik wondered when the term was used first.
The answer, he found out, was that it was first used in 1990...in reference to David Souter!
Hmm...I may like unBorkable judges...
The answer, he found out, was that it was first used in 1990...in reference to David Souter!
Hmm...I may like unBorkable judges...
For Once I Wish I Agreed With Alabama
Alabama apparently wants to make the punishment for sex offenders castration.
The good news: In retrospect, they now have come to the realization that it might be a wee bit unconstitutional.
The bad news: They may be wrong.
Proving that all idiotic history repeats itself, there are two major Supreme Court cases dealing with castration. The first is Buck v. Bell (274 U.S. 200 (1927)), perhaps Justice Oliver Wendell Holmes Jr.'s most infamous opinion, where he upheld Virginia's castration program for the feeble minded with the pithy "three generations of idiots are enough."
The second case was Skinner v. Oklahoma (316 U.S. 535 (1942)) In that case, the court overturned Oklahoma's castration law. However, it did so (and here's where it gets interesting) without overturning Bell. The ruling instead emphasis the Equal Protection deficiencies in Oklahoma's law:
In other words, the Court struck down the law because it irrationally distinguished between such crimes as Larceny and Embezzlement, one being punishable by castration, the other not. The court also noted that since castration obviously affected a fundamental right, "strict scrutiny" was the appropriate standard (Id., at 541). However, after Skinner, the eugenics movement began to fade, and no state was stupid enough to reenact a castration law (until now).
The question is, then, would a state law that mandated castration for sex offenders pass strict scrutiny (assuming Bell is still good law and castration is not per se unconstitutional)? I think one could make a compelling argument that it does. Sex offenders are a particular class of offenders whose "weapon," so to speak, is their genitalia and sex drive. The state could plausibly argue that depriving offenders of that "weapon" is no different than depriving felons of their right to bear arms. Indeed, in a sense the argument would make more sense in this case, since, to borrow from Frank Easterbrook, this compares "the right to bear arms, which is in the constitution, to the right to one's penis, which is not." There is, I believe, quite a bit of evidence that suggests that castration reduces the sex drive of human beings (no surprise there) and thus would be a valid hedge against recidivism. Ultimately, I think this is an argument that could be made.
I do not think that castration is sound policy, and think that Bell should be overturned. But as the jurisprudence stands now, I do not think Alabama's law is unconstitutional.
Would that I could agree with them this time.
A Public Defender and PrawfsBlawg have more, and thanks to Objective Justice's BlawgReview for the original tip.
The good news: In retrospect, they now have come to the realization that it might be a wee bit unconstitutional.
The bad news: They may be wrong.
Proving that all idiotic history repeats itself, there are two major Supreme Court cases dealing with castration. The first is Buck v. Bell (274 U.S. 200 (1927)), perhaps Justice Oliver Wendell Holmes Jr.'s most infamous opinion, where he upheld Virginia's castration program for the feeble minded with the pithy "three generations of idiots are enough."
The second case was Skinner v. Oklahoma (316 U.S. 535 (1942)) In that case, the court overturned Oklahoma's castration law. However, it did so (and here's where it gets interesting) without overturning Bell. The ruling instead emphasis the Equal Protection deficiencies in Oklahoma's law:
Sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma's line between larceny by fraud and embezzlement is determined, as we have noted, 'with reference to the time when the fraudulent intent to convert the property to the taker's own use' arises. We have not the slightest basis for inferring that that line has any significance in eugenics nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn. (316 U.S. at 541-42) (citations omitted)
In other words, the Court struck down the law because it irrationally distinguished between such crimes as Larceny and Embezzlement, one being punishable by castration, the other not. The court also noted that since castration obviously affected a fundamental right, "strict scrutiny" was the appropriate standard (Id., at 541). However, after Skinner, the eugenics movement began to fade, and no state was stupid enough to reenact a castration law (until now).
The question is, then, would a state law that mandated castration for sex offenders pass strict scrutiny (assuming Bell is still good law and castration is not per se unconstitutional)? I think one could make a compelling argument that it does. Sex offenders are a particular class of offenders whose "weapon," so to speak, is their genitalia and sex drive. The state could plausibly argue that depriving offenders of that "weapon" is no different than depriving felons of their right to bear arms. Indeed, in a sense the argument would make more sense in this case, since, to borrow from Frank Easterbrook, this compares "the right to bear arms, which is in the constitution, to the right to one's penis, which is not." There is, I believe, quite a bit of evidence that suggests that castration reduces the sex drive of human beings (no surprise there) and thus would be a valid hedge against recidivism. Ultimately, I think this is an argument that could be made.
I do not think that castration is sound policy, and think that Bell should be overturned. But as the jurisprudence stands now, I do not think Alabama's law is unconstitutional.
Would that I could agree with them this time.
A Public Defender and PrawfsBlawg have more, and thanks to Objective Justice's BlawgReview for the original tip.
Sunday, July 24, 2005
Past Mistakes
This took guts.
President Clinton has apologized for his "personal failure" to not help stop the Rwandan genocide. Of course, nothing can absolve one of one's guilt respecting genocide. Clinton's actions (or rather, inactions) were and remain unforgivable. Still, this was the right thing to do. And hopefully (but doubtfully), it will be the last time an American President has to ask victims of homicidal mania for similar absolution.
Now, if only Kofi Annan followed suit...
President Clinton has apologized for his "personal failure" to not help stop the Rwandan genocide. Of course, nothing can absolve one of one's guilt respecting genocide. Clinton's actions (or rather, inactions) were and remain unforgivable. Still, this was the right thing to do. And hopefully (but doubtfully), it will be the last time an American President has to ask victims of homicidal mania for similar absolution.
Now, if only Kofi Annan followed suit...
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