Friday, December 16, 2005

Tribute To Senator William Proxmire

Former Senator William Proxmire (D-WI) died yesterday after a long battle with Alzheimer's. He was 90.

Senator Proxmire was emblematic of Wisconsin politicians--an independent thinker in the true sense of the term, Proxmire was unafraid to stand up for what he believed in, popular or not, and fight for what was just.

I am not abashed to say that I consider Senator Proxmire to be a true American hero. I do not use the word lightly. Though most obituaries focused on his admirable opposition to corruption, pork, and government waste, Senator Proxmire had a far more important issue he adopted as his own. For 20 years, from 1967 to 1986, William Proxmire gave one speech every single day congress was in session urging the American ratification of the Genocide Convention. When he started, it was considered a fanciful ambition. 3,211 speeches later, the America finally affirmed the absolute and categorical imperative to oppose genocide in an 83-11 vote.

The passage, signing, and ratification of the Genocide Convention was one of the high points for international law in the past century. The failure to enforce treaty was the nadir. I tremble to think of what Senator Proxmire would think of our current glib application of his favored son--where we can admit a situation constitutes genocide and still do nothing. Marisa Katz gives a hint on what Proxmire would think by reference to his intellectual comrade, Raphael Lemkin:
No doubt, when Raphael Lemkin coined and started to promote the term genocide, he hoped it would acquire enough of a moral stigma to actually restrain perpetrators and save lives. But Powell, in debunking the myth that the genocide convention legally compels signatories to action, and by invoking the word while making it explicit that no corresponding action is forthcoming, has succeeded in diluting the convention of much of its moral power. The European Union has since echoed the genocide allegation. (The EU had only recently shied away from the term, claiming that its August fact-finding mission hadn't turned up adequate evidence to warrant it. But, oh, how easy to say it once you know that doing so compels no action!)

In this context, then, I think it is important that we pay close attention to Senator Proxmire's heir as Wisconsin's maverick Senator: Russ Feingold. There is no question that, like Proxmire, Feingold is an independent with a passion for justice and an unswerving commitment to ethics. But as I also noted previously, Senator Feingold shows a disturbing lack of commitment to eradicating genocide in the world. It is telling that in his own tribute to Senator Proxmire on the Senate floor, Feingold said nary a word on Proxmire's career-long efforts in this regard. One wonders whether Feingold would have been one of the 11 nay voters, had he been in the Senate that fateful day.

For all our purported moral outrage about genocide, America goes to near super-human lengths to avoid proactively grappling with the subject. Raphael Lemkin's efforts to put genocide on the political map--literally inventing the term himself--can only be described as Herculean. No Senator in history has approached the type of commitment--to any cause--that Proxmire's one-speech-a-day effort represented. Today, we struggle to even get the world community to notice genocide even as it occurs under our own nose. We need someone who will not be silenced, will not be beaten, will not be discouraged, and who will make the world stand up, take notice, and pay heed to the victims of mass slaughter. We need another William Proxmire.

UPDATE: I'm taking some flack in comments for a perceived "cheap shot" at Senator Feingold. I stand by my comments. In a prior post (linked to above), I quoted a TNR article and Feingold as follows:
Feingold cast just one of three Democratic 'no' votes against the 1999 Kosovo bombing campaign. "It's a compelling notion that the American government has an obligation to stop brutality and genocide. I can't dispute that," he told the Milwaukee Journal-Sentinel in March of 1999. "But how can we be acting in Bosnia and Kosovo and not Rwanda, or Sudan, or East Timor, or even Tibet?"

The claim that Feingold might not have voted to ratify the Genocide Convention thus flows from three premises:
a) Feingold opposed US intervention in Kosovo despite admitting (or at least not contesting) that a genocide was being attempted there;
b) The Genocide Convention imposes affirmative obligations upon signatories to end genocide, which most international law scholars believe includes intervention when feasible;
c) Feingold would not vote for a treaty that would bind him into doing something he wasn't prepared to vote for.

Feingold has explicitly questioned whether the US has an obligation to intervene and stop even admitted genocide. I think that at least raises the question of whether he would support a Convention designed to do just that. The interview in question, while perhaps a step forward, still falls short of what the Genocide Convention seems to mandate.

Thursday, December 15, 2005

Snow Day

I left work early today because of a snowstorm (or at least, what DC whelps consider to be a snowstorm). I then immediately collapsed into a 5 hour long nap. Apparently, the Library of Congress, while absolutely amazing, was also more tiring than I suspected.

A few slightly-less-than-serious blog notes.

First: Can someone explain to me this ad, because I think I'm missing something. At the Bethesda Metro station, there was a billboard that said something like the following:
Need an MRI? You don't need a car! Bethesda MRI is only four blocks away!

Correct me if I'm wrong, but MRIs are for major knee injuries, correct? So how many people, exactly, would plan to walk the four blocks? Convienant for hale and hearty persons, perhaps, but isn't the type of injury that necessitates an MRI the same type that would make a 4 block walk rather difficult?

Second: I love how Michael Crowley characterizes ANWR regarding Republicans' latest efforts to resurrect the beast:
CQ also reports, by the way, that ANWR oil drilling, recently stripped from Congress's budget by House moderates, is back and stalking the countryside again like the unstoppable undead monster that it is.

Hmm...where have I heard rhetoric like this before? When life gives you Lemon...
[L]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under...Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so.
Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. [Lamb's Chapel v. Center Moriches Sch. Dist, 508 U.S. 384, 398-99 (Scalia, J., dissenting) (1993)]

Ah...nothing like Zombie politics.

Wednesday, December 14, 2005

Big Government Choice

Professor Bainbridge links to two conservative authors, the former, Michael Barone, praising the state of conservatism, the latter, Chris Demuth, lamenting it. Specifically, Barone is thrilled at how in the past 50 years, society has become more competitive, with more choices, and more accountability. Demuth, by contrast, mourns the loss of a limited government and decries the "activist" Courts for their imposition on democratic order.

Umm, may I play the role of putting two and two together? Amongst the non-communist left, "choice" has always been an important value. Not just the number of choices available, of course, but also the number of people who can effectively choose. It is indeed nice to have a wide variety of luxury cars available (somehow, I think Professor Bainbridge would agree here). But it is also important from a "choice" paradigm to have more lower-price cars so that more people can choose to become car owners. Liberalism has especially focused on the latter, and--and here's where it splits radically with conservatives--it is far from confident that markets and private society acting alone will provide them. And, counter-intuitively perhaps, they also don't believe that an optimific level of choice will be achieved simply by saying "here everybody, do whatever you want as long as you don't kill each other."

Hence, liberals who like providing greater choice have pushed for programs that seek to meet this end. Unlike stifling communist collectivism ("everybody in the commune must grow wheat!"), the purpose of these programs was to allow individuals to find greater self-fulfillment, however they themselves define it. Rather than an assorted governmentally selected goodie-bag, the new liberal model has been along the lines of a toolbox, giving resources so that people can build their own communities, achieve their own dreams, define their own destiny. Sometimes, paradoxically, this means restricting certain choices (like the choice to discriminate). And of course, like any group, "choice" is not a trump value. But most liberal philosophy of the past several decades has been heavily choice-influenced--and it's reflected in the policies we propose.

Some of these programs have been successful, others, obviously, have not. But if we put Barone (overall, choice has gone up) and Demuth (government has gotten more intrusive) together, do we not conclude that liberals have hit on something? Our model is working, or at least it's working if one agrees with the top-end goal (giving more people more choices on how to live their lives). Voters have more effective choice because the Court chose to intervene in Baker v. Carr. The ability of African-Americans to effectively choose and participate in public life can be directly traced to interventionist government, be it judicial (Brown v. Board) or legislative (the 1964 Civil Rights Act). And yes, the very real and very important choice of how to conduct one's intimate affairs has been strengthen by court decisions (Griswold v. Connecticut, Lawrence v. Texas). Somewhere along the line, choices that otherwise would have been unavailable, out of reach, or flatly illegal have been created because of liberal governmental and legal theory.

This may not affect Bainbridge too much, because, as he makes clear, he's not a choice-conservative (being more within the Burkean model). But for the conservative types who see choice as a value in of itself (and there are many), this has to be addressed. Conservatives seem to admit it themselves: government has continued to play an important role in our lives, and people still have more choices. We must have something right here.

Tuesday, December 13, 2005

Educating the Community

Rick Garnett wonders aloud at the dynamics of the school choice debate:
I'm sure it's a failing on my part, but I've never understood the appeal of the argument that poor children should be denied opportunities to escape (via vouchers, home-schooling, etc.) failing and failure-generating public schools because the departure of some kids would make things even worse for those kids who stayed behind. The argument is particularly tough to take (for me) coming from persons who would never send (and are not forced by circumstance to send) their own children to the schools in question.

With regards to vouchers specifically, I too share an aversion to certain liberals who seem to oppose them reflexively because they'll "weaken" public schools. Even the church/state argument I don't find compelling, and I consider myself pretty zealous on the issue. I think vouchers should be evaluated along the very simple paradigm of "will they fix the problem"? And I'm not sure they will. Awhile back, US News ran a feature article on school vouchers, and they raised a number of significant points that I think have been under-represented in the debate. First, even with voucher money, many poor families still wouldn't be able to afford many private schools. Second, and more importantly though, private schools are under no obligation to accept kids in the voucher program. Where are all the slots coming from to accommodate all these children? I don't think that increased demand would necessarily create more private schools, since the market price is effectively capped at the voucher level plus some (presumably small) amount of discretionary income the poor can spend on education. So the solution, to me, lacks cohesiveness.

But on to the meta-point of Garnett's question--which I think really is an attack on those who would prevent individuals from escaping poor schools because the overall community would suffer. Basically, an individualist critique. I think that an excellent engagement with that line of thinking is done by Charles Lawrence III in his article Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy), 114 Yale L.J. 1353 (2005) [PDF]. Like Garnett, I am uncomfortable when wealthy upper-class whites say that minority families should stay in inner-city schools, so it's worth noting that Lawrence is black and his children attend D.C. public schools (as he reveals in the article). I think that he raises many points which would be of interest to Garnett. Based on my vague recollections of the article (I don't have time to re-read it now--so some of this may just be my own musings), he thinks that we should view schools as a community issue, rather than just a collection of individuals acting as education consumers. In a school choice model, a community that has (say) 10 school age children might see them all attend different schools (or be home-schooled). This may be somewhat appealing because we like a breadth of choice. But I think we also lose something in such a situation. Education isn't just textbooks and word problems. I do believe it is some way intricately connected in a community of learning, an environment conducive to intellectual and personal development, both inside and outside school walls. When what was a cohesive community splinters of into dozens of fragmented individuals, those bonds are lost, and I think that students will suffer for it.

Lawrence says that instead of individualist solutions, we should look toward collective proposals that will both strengthen the community and rebuild the schools themselves. For example, he proposes that we extend affirmative action benefits to students of any race who attend integrated schools, to discourage white flight (one of the primary causes of inner-city school attrition). Presumably, he would also support endeavors like local tutoring organizations, daycare, and community-based academic resources, to cultivate a healthy academic community rather than focusing on particular persons. I am not hostile to individualism by any stretch, but I think schools are a perfect example of where its better to build bridges rather than break bonds. I highly recommend Lawrence's article, and think that it raises some interesting positions for our education debate.

UPDATE: Shavar Jefferies also takes up the issue in favor of "school choice" and more explicitly within a racial perspective. My answer remains the same. At the end of the day, even when they work as planned vouchers do little to aid community-building endeavors and more often actively harm them. That our system has not been integrated, that Brown's promise has been breached, is indeed an overlooked and severe problem. However, is not the answer a proactive effort to incorporate these communal values into the schools, rather than engaging in the fracturing and atomizing extreme individualism that only drives people further apart? We can't fix this problem alone, and I fear that a "school choice" paradigm erodes the bonds of trust that are our only hope of overcoming our segregated system.

Monday, December 12, 2005

Atheist Politics

I am Jewish. And, after a brief period in my teens where I wrestled with the question, I do (passively, at least), believe in God. Nevertheless, I bear no malice or ill-will or feeling of superiority toward my atheist friends. They have their beliefs, I have mine, and unlike issues of political substance, their private faith (or lack thereof) has no impact on my life. As such, I support wholeheartedly atheists' rights as American citizens under the First Amendment, and oppose their stigmatization and the constant barrage of attacks that rain down against them from the public sphere. It's wrong, anti-democratic, and reminiscent of our nation's worst prejudicial instincts. I condemn it whole-heartedly.

So I was sickened to read this account of a man Eugene Volokh calls a "leading atheist legal activist" and, as it happens, a man running for the Democratic nomination in the Alabama gubernatorial race. Larry Darby has expressed sympathy for David Duke, organized speeches for Holocaust deniers, says we live under a "Zionist-Occupied Government," and in general has a long history of anti-Jewish, anti-Zionist, and anti-Semitic comments. Volokh's words, I believe, ring true:
It seems to me very important that irreligious people participate in public debate, to defend the legitimacy of their views, and to protect themselves against religious discrimination and hostility. I don't agree with everything that all atheist activists urge; for instance, I don't think that the Establishment Clause is properly interpreted as banning religious speech by the government. Nonetheless, there are indeed some egregious forms of discrimination against the irreligious (or the less religious), for instance in child custody cases - these should be assiduously fought.
I therefore have nothing at all against atheist political movements in general, nor do I have any reason to believe that atheists generally have any hostility towards Jews, or affection for David Duke. Yet this makes it all the more important, it seems to me, for atheists who are deciding whom to ally themselves with - or for that matter, for members of other groups, such as Scouting for All or any marijuana decriminalization groups - to know Mr. Darby's views that I describe above, views with which I hope most atheists much disagree. Likewise, Alabama Democrats should know who's running in their primary, and should keep in mind the views I note above, even if some of them are tempted to agree with him on marijuana decriminalization, juvenile justice, or even religion in public life. (I doubt there are that many Alabama Democrats who do agree with him on those latter issues, but I imagine there are some.)

And it's also important for Jews - even in America, the place in the world in which it is probably safest to be a Jew - to be reminded that these sorts of views do exist in America, and in what might to many seem like quite unlikely circles.

He's dead on. But what really impresses me is how, responding some of the comments to his post, Professor Volokh immediately began an impassioned defense of atheists as a class, arguing that they do face significant prejudice in America today and that we have, as moral human beings, an obligation to oppose that prejudice. A recent poll indicates that fully 50% of people hold an unfavorable opinion of Atheists--compared to 25% for Muslims, 19% for Evangelicals, 14% for Catholics, and 7% for Jews. Worse, a 1999 poll by Fox reported that a stunning 69% of Americans would refuse to vote for an Atheist presidential candidate (again, this dwarfs the number for other religions). Remember, 1999 predates such negative PR events like the "under God" case and the absurd "war on Christmas." As (again) Volokh notes, if Jews had these numbers in X country, nobody would be defending them. There is no reason why atheists should--as a class--be afforded any less respect.

It is often quite difficult, in the heat of political passion, to distinguish between a representative of a group and the group itself. Lord knows many partisans have fallen into this trap, quoting some random Democrat or Republican and showcasing it as proof positive that the whole movement is an evil plague. This is one of the reasons why Professor Volokh is one of my favorite bloggers. I may not agree with everything he writes, but he is always fair, and always respectful.

Sunday, December 11, 2005

Strategizing Roe v. Wade

There is a quiet but interesting debate amongst pro-choice liberals regarding whether or not they should continue to support Roe v. Wade. Those who argue we should abandon Roe claim that the decision has only galvanized conservative activists, who have managed to severely limit abortion access (especially for the poor) even under Roe's reign. At the same time, active support for abortion laws has drained, as sympathetic persons believe that Roe has "solved the problem," and turn their attention elsewhere. The net effect is that, with the exception of upper-class white women, abortion remains extremely difficult to get while other issues critical to woman's health (education on/access to contraceptives, childcare support, maternity issues, pre-natal care, etc.) are off the table. There are other arguments as well (Roe was simply a bad decision; Roe solidifies the GOP coalition and places out of reach voters Democrats should be winning) but the "it's pro-choice to oppose Roe" claim strikes me as the most interesting.

I've been known to express sympathy with this view. Indeed, my very first column for the on-campus journal I write for forwarded this very idea (though more to spark debate--I wouldn't call myself invested in it). In this light, I'd like to point you to a spectacular debate on the topic "Should Liberals Stop Defending Roe?" The participants are Texas Law Professor Sanford Levinson (yes) and Yale Law Professor Jack Balkin (no). And while both make excellent points and are clearly extraordinarily intelligent, I've been nearly completely swayed by Professor Balkin.
There are, I think, at least four reasons why this is a bad idea.

First, one doesn't "give up" on constitutional rights unless one is already convinced that they aren't very important or don't actually exist. Should liberals have given up on Brown v. Board of Education in 1962 when the going got rough if they genuinely believed that racial equality was a fundamental right of human beings? Or to take an example near and dear to your heart, Sandy, should we have given up on constitutional limits on presidential power and constitutional prohibitions on torture because most Americans thought our repeated carping on these issues unpatriotic, and that was bad for Democrats? If we don't stand up for the constitutional rights we believe in when they are politically inconvenient, what is the point of having such rights? Thus, to convince me that we should give up on Roe you'll first have to convince me (and many other people, too) that the right to abortion isn't all that important to women's liberty and equality; or that despite its importance, Bork and Scalia were right and that there is no such right in the Constitution.

Second, we must consider the consequences. Although overruling Roe will not change the law of abortion in liberal states like New York, it will produce significant restrictions on abortion in a very large number of other states, and outright prohibitions in a handful of still other states. In a post-Roe world, abortion will probably still be available somewhere in the United States. Even so, we will probably return to a world (indeed, a world we are already approaching under current doctrine) in which abortions are freely available to the rich but not the poor. Obtaining an abortion in another state requires time to travel, making excuses (i.e., lying) to employers and to family members about one's whereabouts, and considerable expense. Many states currently have waiting periods, and no doubt more states will adopt them—with more draconian requirements-if Roe is overruled. Current waiting period requirements increase the costs of abortion considerably because they often require two separate trips. That expense-and the deterrent effect on the poor-can only increase in a post-Roe world. Lack of access to safe and affordable abortion for poor women increases health risks for those women, and condemns them to lives of increasing economic hardship and dependency, not to mention the costs to society as a whole. The Democratic party has long claimed to stand for sex equality and for economic justice. Capitulating on Roe is inconsistent with both commitments.

Third, the conventional wisdom that overruling Roe will simply return abortion to the states underestimates the strategy, the devotion, and the ambitions of the pro-life movement. If abortion is murder in Alabama, it is equally murder in New York. The pro-life movement will almost certainly push for a national solution to the abortion problem, which means that we may get more restrictive federal abortion legislation that will preempt liberal laws like those in New York. No doubt a nationwide ban on abortion is not politically feasible in the short run; what is feasible, however, even with the changed political climate that we both imagine, are significant restrictions on abortion at the federal level, especially if the Republicans maintain control over at least one branch of Congress. Moreover, if Republicans control the White House, they can do enormous mischief to abortion rights nationwide through administrative regulations that have the force of law and preempt more liberal state laws to the contrary.

Fourth, giving up on Roe in practice will take down more than Roe itself. It will put enormous pressure on other Supreme Court precedents that protect people from state interference in matters of family life, contraception, and sexual autonomy. The pressure is not logical but ideological. It is easy enough for a lawyer to distinguish Roe from earlier cases protecting the right to use contraceptives (Griswold, Eisenstadt, Carey) and later cases protecting the right to same-sex intimacies (Lawrence v. Texas). After all, neither contraception nor same sex sodomy involves the destruction of an embryo or fetus.

Nevertheless, this fails to account for how Roe would be overruled in practice. Imagine how one would "give up." You can't send secret signals to the liberal justices saying "psst, hey Ruth Bader Ginsburg, take a fall on the next abortion case." Rather, giving up on Roe means not opposing new Republican judicial nominees who are committed to overturning Roe (as opposed to merely limiting it). But those sorts of judges will likely oppose much of the other existing jurisprudence on sexual autonomy. The opinions they write will likely emphasize that it is wholly illegitimate for courts to discover and enforce rights not specifically enumerated in the Constitution (unless, of course, it's unenumerated rights that conservatives happen to like! See the federalism decisions). Whether or not cases like Lawrence are technically distinguishable by well-trained lawyers, they may not be distinguishable in the view of the new Supreme Court majority.

Balkin goes on to show off-topic impacts (two actually: the type of judge who will overturn Roe will also vote against liberals on non-sexual privacy cases, and abandoning Roe would make it part of the "anti-canon" of cases such as Plessy and Dred Scott--which will provide a foothold by which conservatives can push for massive changes in prevailing constitutional theory) and provide solvency (push for a Freedom of Choice Act to put Republicans on the record and legitimize Roe democratically). Would that my debaters could write like this!