Saturday, June 24, 2006

Al Gore Patrol

I am a big Al Gore fan. I explain this to my friends, and they don't understand. The Democrats certainly are vaguely positive towards him, in the pining sense ("imagine if he had become President instead of Bush!"). The Republicans are just bewildered. They can imagine someone supporting Al Gore, but not being a big cheerleader for him. Don't I know that he's boring and uninspired?

My first response is that Al Gore is possibly the only major political figure to have been right on every major issue of the past 15 years. He was right on Gulf War I. He was right on Gulf War II. He was right about Global Warming and hybrid cars way before it was popular. He was a national security wonk in the mid-nineties when it was on nobody's mind, and he was advocating increased airline security years before 9/11 happened. His policy instincts, time and time again, have been proven to be without parallel.

But more than that, I refuse to buy into this notion that I should elect a President based on the same criteria that I'd elect a frat brother. I honestly don't care if Al Gore makes for a better drinking partner than George W. Bush. Hunter summed up my feelings exactly:
Ah, what might have been. Gore was widely derided by the press for the audacity of the lengthy answer or the wonkish explanation, a man too versed in facts, or God forbid with a speaking style that paused, from time to time, to find the right phrase instead of the next phrase. Not a man you would want to have a beer with, was the conventional wisdom shoved down our gullets like we were geese being prepped for our final hours. Knowledge is wooden, education is wooden, intellectualism is wooden, because facts are like trees: there's too damn many of them, and they're hard to tell apart.

Election 2000 was the start of my disenchantment with the democratic system, and not because Gore lost. It was before that, listening to the media coverage, where being smart and concerned and intellectual and yes, a bit wonkish, was seen as a liability, something to be overcome, rather than a boon to our nation, Gore's greatest strength. Well gosh, what was I doing trying to keep my A- GPA if this made me less qualified to lead in the public eye? Seriously, what kind of message do you think that sent to students following the election? I'll tell you: intelligence is for chumps. Frankly, I think we hear that message enough.

Well I've had it. I'm sick of being forced to hide from my own mind, and I'm sick of being forced into the political shadows as part of the evil liberal academic cabal of intelligentsia. I'm sick of a polity where education is seen as a vice, and I'm sick of a community which would rather ban new ideas than address them.

Al Gore is this sort of citizen's worst nightmare. Informed, passionate, educated, and committed. I put myself under his banner, and I hope to God we can remove ourselves from the dark path we set ourselves down in 2000--not by electing Bush, but by electing whoever we thought was the best buddy candidate in the group.

Friday, June 23, 2006

Beyond LGF

In Arizona, a Republican gubernatorial candidate is advocating forced labor camps for illegal immigrants. Nice.

Once upon a time, this type of rhetoric was limited to the LittleGreenFootballs crowd. Now you find in Republican primaries. And while Senator McCain and Representative Jim Kolbe (both Republicans) get props for harshly condemning the plan, really, what have we come to when they have to?

H/T: DKos

Thursday, June 22, 2006

An Alabama Tradition

One thing that you learn quite rapidly when doing research into primary source texts of a historical period is that things are never as monolithic as popular parlance portrays them. For example, while the American South was definitely (and brutally) racist, it was not uniformly so, in that the people were entirely unaware that racism might even be wrong. These arguments were indeed being presented, albeit often by outsiders and always in the minority. As such, it provides an interesting riposte both to those who would caricature the American South as being in a state of complete moral darkness, as well as those who would apologize for their crimes with the cry of "they knew not what they did."

While looking up the local coverage of the Scottsboro trials, for example, I found a really interesting editorial in the Montgomery Advertiser defending the political rights of atheists. Commenting on a State Court of Appeals ruling which held that atheists were not "competent" to take oaths because they did not believe in an almighty God who could mete out justice and punishment, the editorial powerfully defended the rights and privileges of a group which undoubtedly was not any more popular in 1931 Alabama than it is today. Responding the court's argument that:
The whole fabric of this nation from its inception to the present time is founded on a belief in a Supreme Being whose guiding hand is recognized and involved in our most solemn governmental pronouncements

the editorial proclaimed:
What 'governmental pronouncement' is more 'solemn' than the constitution of the United States? It is a purely political document. It is a purely secular document. Not one line in it refers to a Supreme Being.... The reference to 'Almighty God,' etc., in the Declaration of Independence is cited, but the citation lacks weight for the reason that the Declaration of Independence is a war-cry and is not in any sense a part of the law of the Republic.
The genius of our governmental institution is affronted by the laws of Alabama, if the laws of Alabama are correctly interpreted by the State Court of Appeals when it says:
There is no place in our whole governmental structures for a belief which ties men to the rocks and clods and places him on a level with the beasts of the field

But we prefer to regard this as rhetoric rather than a statement of the laws of the Medes and Persians. Actually, there is a place in our "governmental structures" for all dissenters and all believers. If there is no place for dissenters, then this is a theocracy rather than the "republic of republics" where the conscience of the individual of goodwill is inviolable.

If the Court of Appeals is right, then Alabama has a state religion. ["Alabama's State Religion," Montgomery Advertiser, March 26, 1931 at pg. 4]

There are so many things that strike me about that passage. The imputation that "Alabama has a state religion" is not just used as an insult, but is assumed to be one on face (in other words, an assumption that the readers are not just constitutionally literate to know that state religions are prohibited, but constitutionally committed so they'd agree). The blunt dismissal of the Declaration as a document that is part of our contemporary body of law (I'd agree, but nobody would get away with putting it that plainly today). Even the idea that someone could write in one of Alabama's largest daily papers and boldly defend atheists as equal American citizens (and the piece pulled no punches in that regard) is surprising. I'm not sure you'd see such a clear commitment to religious equality in Montgomery today.

Also interesting was that a few days later, someone wrote in responding to the editorial. He claimed that "oath" definitionally implied swearing to a deity or higher power, and "religion" cannot definitionally encompass atheism (which is a lack of religion). The editors of the Advertiser responded by pulling across the pragmatic arguments they made in the first editorial--that the position of the court (and the letter-writer) would mean that atheists could not testify in their own defense, serve on a jury, or be elected to office (all of which require oaths). Are we really comfortable with denying them those rights (and if we do, are we seriously going to say we treat all citizens equally?). But I'd simply point out that, if we are to take these traditional definitions of "oath" and "religion" seriously, then to protect atheist rights will require not just accommodation but a bona fide change in the law or its understanding. So when conservatives today say that "atheists don't want equality anymore, they want special exemptions from long-standing laws," remember that this objection is essentially unchanged from 75 years ago. There is no "anymore," the folks who want to deny atheist rights can always frame it as "special rights" rather than fair accommodation.

Wednesday, June 21, 2006

And Proud Of It

Via The Moderate Voice, I find that the dictator of Sudan is blaming the Jews for leading the charge against his genocide:
Sudan's president said Jewish groups are responsible for the possible U.N. deployment of peacekeepers in his country.

"If we return to the last demonstrations in the United States, and the groups that organized the demonstrations, we find that they are all Jewish organizations," Omar al-Bashir said.

U.S. Jewish groups have taken the lead in calling for more international intervention to prevent genocide in Sudan's Darfur region, where a government-sponsored campaign of violence has led to an estimated 200,000 deaths and a humanitarian crisis.

You better believe we're heading this one up. I've never been so proud to be at the head of a Jewish conspiracy.

PS: I hate to say "I told you so" to Mark Olson but...

Waiting for Argument

One of the raps against originalism is that it miraculously stops being relevant when it leads to results conservatives dislike. It nearly always acts as a cover for results-based judging, which is especially annoying given how its adherents smugly defend it as a bold stance against judicial policymaking.

A few months ago, I noted that the usage of foreign law in American judicial opinions actually has rather deep roots in American jurisprudence, stretching back to the founding generation. Since then, I've only seen evidence supporting that view:
Under an originalist approach, a good deal of evidence demonstrates that at the country's inception, discussion of law from elsewhere was commonplace....Critics of the contemporary use of foreign law sometimes reply that foreign sources were not used to interpret the meaning of the Constitution. Defenders respond that (1) as an empirical matter, citations in cases prove otherwise; (2) in early periods, the Court did less constitutional interpretation; and (3) the line between common law and constitutional interpretation was not sharp. [Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry, 115 Yale L.J. 1564, 1568-9 n.7 (2006)]

I'm not an originalist, so in that past post I gave my own independent reasons for allowing citation to foreign cases. But I'm curious how self-described originalists make their case. There may well be solid reasons for opposing foreign law citation, but they are the type of objections that originalists would normally tag as fundamentally policy questions (e.g., it undermines the democratic process because we don't vote for foreign judges). Were I to use their rhetoric, I could very easily respond to a Scalia acolyte
"Sure, citation to foreign law may be suspect as a matter of good policy, but it's been well established since the time of the founding that this sort of interpretation is permissible. What grounds do we have to say it's illegitimate now?"

Now, one could respond that judges should use their discretion and refrain from using these sources even though they theoretically could. But that doesn't seem to be the objection of Scalia and his ilk. They say that this sort of usage is not just wrong, but illegitimate (Paul Mirengoff said it was grounds for impeachment). How is that defensible on originalist grounds?

I ask any originalist readers of the blog (this seems right up Southern Appeal's alley) for an answer to this truly vexing question.

Tuesday, June 20, 2006

The Law as an Outrage

I took my first look at the Law & Society Blog today, and it is a clear winner. This brilliant post by Hanno Keiser, on a 200 year sentence for possession of child pornography in Arizona, is just a brilliant display of what blogging can be: deep, engaging, informative, and compelling. It's on the blogroll.

The case, Arizona v. Berger, might actually be right as a matter of law--mostly because the Supreme Court has really taken the teeth out of any proportionality requirement the 8th amendment might impose. If you can sentence someone to life in prison for stealing golf clubs, or for a first time possession of cocaine rap (both cases cited by the court), then I have a hard time saying that possessing 20 pictures of child pornography is any more shocking (Douglas Berman accurately points out that this posed no barrier to examining the parallel clause in the Arizona state constitution, however). But what Keiser illustrates is that such a jurisprudence is one that's gone deeply awry. The sentence here is longer than the presumed sentence for rape, for second degree murder, or (ironically) for sexual assault against a minor. Discontinuities like that occur when criminal law views itself as in the business of expressing moral outrage. To quote Keiser at length:
The Berger case is one of the latest examples of enemy jurisprudence, of moral wrath using the legal system, and with it the government’s monopoly on the exercise of lawful violence, to destroy the lives of undesirables. The decision in Berger cannot be rationalized with arguments from traditional consequentialist or retributive theories of punishment, as it violates every requirement of proportionality....
The sentence in Berger is largely expressive conduct. It uses law as a means to display moral outrage. It is a celebration of moral hatred, as aptly described in the opening chapter of Michel Foucault's Discipline and Punish. A free society under the rule of law critically depends on the separation of the legal and the moral system. The code of the moral system is right/wrong. The code of the legal system is lawful/unlawful. By incorporating notions of morality, the law has transformed them into legal categories. That transformation of moral into legal categories is of particular significance in the context of criminal law. Moral categories tend to be absolute. Legal categories never are. In the criminal law context, the law does not only capture a society’s sense of moral condemnation, but also and more importantly for a free society, it imposes limits on what a government can do to the offender. These limits are the essential contribution of the law in the process of punishment. And in cases like Berger, these limits have all but disappeared....
The Berger case is a vivid illustration of that point. Here, the offender was technically not punished, if we require punishment to be a meaningful intra-societal answer to the offense. Rather, the boundaries of society have been redrawn so as to exclude the offender. Ejected from society into a natural state, society is free to wage war, to lash out and crush the offender, unrestrained by considerations of proportionality.

To the extent that Keiser is saying that law is not (or should not) be an instrument of morality, I disagree with him, but I don't think that's his claim. I think it's facile to claim that law and morality are, should be, or ever can be divorced. But I think that there is value in saying that law should not be used merely to express social outrage. There has to be some utility behind it. And again, this is a bigger problem when the subject is criminal law, when the legal sanction is not an injunction and a settlement, but prison or even death. In many ways I think that racial discrimination is as grave a moral wrong as mere possession of child pornography, but I don't think that it should generally come with criminal punishment (I do think that possession of child pornography is worthy of criminal sanction--but not life in prison for owning 20 images).

Re-Colonize This!

The Sudanese government has rejected calls to send in international troops, saying that it would effectively "re-colonise" the African nation.

The post-colonial scholars have always struck a chord with me, but one thing I can't get past is how, in the real world, their rhetoric is far more likely to appear in the defense of brutal oppression than in the liberation. I sincerely doubt that Omar al-Bashir is reading Spivak, but clearly he and his ilk have realized that this sort of language is remarkably effective at stalling liberal international groups' commitment to challenging their brutal regimes.

There is no way, of course, that sending in international troops to stop a genocide is a (re)colonization of anything. But it does no good for me to say that, because I'm from the US. So what I'd really like to hear is a response from the African Union--or even a consortium of African states--unambigiously proclaiming that such an intervention would not constitute colonization in any way, shape, or form.

Monday, June 19, 2006

The Israghani

I recently declared my support for Ghana after one of their players waved the Israeli flag upon scoring a goal. The player, John Paintsil, plays professionally in Israel and wanted to declare his support for the Israeli fans who had supported him throughout his career. Now, Ghana is apologizing for the gesture due to outrage among Arab states.

I should be clear. There are people who can justifiably, if they choose, be outraged by Paintsil's action. They are the people of Ghana. If an American player waved a foreign flag, one could certainly question the appropriateness of the move (and if the player was of Latino origin and waved a Latin American flag--God help us. I could hear Limbaugh explode from here). How one wishes to draw the line regarding national pride in a support where so many players compete in foreign leagues, like soccer, is difficult, and different nationalities might see the issue differently.

That said, anyone not from Ghana needs to back off (and nothing in the article indicates that it was an internal reaction from Ghana that provoked the apology). Ghana's soccer federation might be better off defending its stars from allegations that they are "ignorant and stupid," Mossad agents, and/or bribed by Israelis. They also might want to give Paintsil a forum to discuss whether or not he'd been taken to "football training camps set up by an Israeli coach who discovered the treasure of African talent, and abused the poverty of the continent's children with the ultimate goal of selling them off to European clubs....[S]tart[ing] every morning with a salute to the Israeli flag."

I am so sick of this. Israel is, far and away, the most unjustly abused nation-state in the world arena. Waving the Israeli flag expresses precisely no opinion as to the Israeli/Palestinian conflict. It does, I concede, express an opinion as to whether Israel is a legitimately existing country, and let's be clear: that's what this is about. Many people in the Arab world still fundamentally reject Israel's right to exist.

That Mr. Paintsil and his fellow teammates who play in Israel have had such warm feelings towards their host country was truly inspiring. I was hoping that it might open some eyes among people in regions of the world where there are no Jews and thus have far less opportunities to refute the constant stream of slander that Israelis (and often Jews too) are subjected to on a daily basis. Nobody can take away Mr. Paintsil's bold display, but I was hoping that his superiors would embrace it, not hide it as some embarrassing secret.

The Stanley Cup Winner is Hockey

I watched the Stanley Cup finals, game 7 tonight. My dad and I both agree, this (along with maybe the NCAA Basketball tournament) is the most intense sports event of the year. Certainly it's the most grueling. You hear announcers saying what type of injuries these guys play through (Doug Weight begged his trainer to let him play with a separated shoulder), and you just shake your head. These people work harder and play with more passion than you see in any other pro sport.

And this game was no exception--it was a masterful display by both teams that cemented a wonderful comeback season for the NHL. I was rooting for Edmonton, mostly because I want to see the Cup back in Canada after a long abscence. I feel like they deserve it--like they know its significance (especially a small-market team like Edmonton, which--with Calgary--is like the Green Bay Packers of hockey). Carolina fans certainly are enthusiastic, but do they really know the history of the game? My dad was afraid they'd take a cue from football and charge the rink (God, what a disaster that would be).

Still, congratulations to the Hurricanes, who certainly earned this Cup (knocking out my beloved Devils along the way). This was a spectacular season, and I hope the league continues to win over fans going into the next year (hint: watch Alexander Ovetchkin. I swear, he looks like a Brazilian soccer player out there when he touches the puck. Breathtaking).