Prior Restraint

Boo:

A high school teacher who faced losing her job after a student newspaper published an editorial advocating tolerance of gays can continue teaching at another school.

Amy Sorrell, 30, reached an agreement that allows her to be transferred to another high school to teach English, said her attorney, Patrick Proctor.

"The school administration has said in no uncertain terms that she's not going to be given a journalism position," Proctor said.
[...]
School officials in the conservative northern Indiana community about 10 miles east of Fort Wayne said Sorrell did not comply with an agreement to alert the principal about controversial articles.

Obviously, I'm glad she's not being fired outright, but still: an editorial advocating tolerance for gays is nowhere near the boundaries of what should even raise an eyebrow at a student newspaper. The "agreement" to alert the principle about "controversial" articles strike me as nebulous language--what constitutes "controversials" (answer: equality!). I'm clearly spoiled by the fact that my high school newspaper did not undergo any sort of prior review or restraint by the administration, but it's cases like these which show who has the better model.

Schools are there to open kids' minds, not stifle them. Unfortunately, the administrators in this district seem to have other goals for their system. Shame.

The French Model

Back during the height of the French Race Riots last summer, I noted the interesting irony underlying American discussion. Conservatives love to bash on France, and they love to bash on European "multiculturalism", which they blame for ails like the race riots that tore through Paris. The problem is that France, as a matter of policy, has adopted a legal mandate of color-blindness that conservatives here can only dream of. And many of the more astute commentators pointed this out, arguing that French "color-blindness" was preventing it from adequately redressing the pervasive grating poverty of its racial minorities. As a political matter, I support labeling any conservative advocate of the color-blind system as supporting "The French Model," but I think there is a serious point to be made here.

Via Workplace Prof, Yeshiva (Cardozo) University Law Professor Julie Suk has expanded on this point in a forthcoming article appearing volume 55 of the American Journal of Comparative Law. Here's the abstract:

In Fall 2005, race riots in France drew attention to differences between the French and American legal regimes for remedying racial inequality and discrimination. The riots reacted to the persistence of employment discrimination against people of North African origin. French antidiscrimination law has been unable to solve such problems because of its focus on criminal punishment of racist speech and its uncompromising commitment to race-blindness. These features embody the intersection of two historical forces: the influence of Vichy memories on French legal conceptions of racism and discrimination, and the strong republican resistance to social distinctions. Understanding this history comparatively brings certain features of U.S. antidiscrimination law into sharper focus: U.S. law imposes civil, rather than criminal liability, and is more tolerant of race-conscious affirmative action, more resistant to regulating racist speech, and more reluctant to extend antidiscrimination law to a wide range of protected characteristics. These distinctive features of U.S. law are explained by the law's reaction to the history of slavery and segregation. The different evolutions of antidiscrimination law reveal how particular forms of racism - anti-Semitism and genocide in France, and the slavery and segregation of African Americans in the United States - gave rise to two very different antidiscrimination regimes. The French contrast challenges the assumptions of American antidiscrimination law, leading to greater precision about the uniquely American commitment to race-blindness in equal protection doctrine. The stricter French model of race-blindness highlights the instability and ambivalence of American race-blindness. Comparative historical inquiry reveals that the goal of eradicating group subordination does more work in U.S. antidiscrimination law than the goal of achieving a truly race-blind society based on individual merit.

France has adopted hate-speech laws that would make many American liberals blanch--we are reasonably committed to legal protection for racist speech. And America's relatively color-conscious policies (like affirmative action) are considered by the French to be "dirty", racist, and immoral.

Can America's relatively(!) superior racial climate be explained by our greater tolerance for color-conscious policy making? It's true that other variables present themselves. It could be due to France's more closed economy. But as conservative icon Richard Posner notes, America has had its share of race riots in the 60s and 70s, in an economic climate still significantly more liberal than contemporary France. Race riots happen regardless of economic system, and the fact that they are race riots should make us immediately suspect the causes have something to do with racial policies.

What I mean to do in bringing up the French example is not to say that it is game, set, and match for a particular position. But it does allow us to realize that we're not debating this question in a void. We currently live in an America which has fitfully experimented with affirmative action and other color-conscious race remedies for about 30 years or so. We can compare that to a France which has steadfastly rejected those remedies. Where are minorities better off? Which is more just? Which is working more effectively?

Ultimately, the question presents itself: Are you in the American camp, or do you support the French model?

Congratulations to the Happy Couple

I was talking to a new friend at lunch the other day, and she mentioned how the majority of guys apparently don't like dating intelligent women. They feel threatened by them. As a firm member of the "smart is sexy" camp, I was elated--free range for me! But it turns out she was exaggerating. I actually do have competition in the category, which means that I'll have to rely on my good looks and charm (damn).

All of this is to happily announce the engagement of the very smart PG of Half the Sins of Mankind (and Blog De Novo, and Sepia Mutiny, and Ex Post, and presumably innumerable others). Unfortunate for all of us who'd been nursing intellectual crushes on her, but I'm they're not bitter. So congratulations to her, and congratulations the more so to the lucky fiance.

Best wishes to the happy couple.

Unwritten Rights

Conservative groups love to babble on about how liberal jurists expand "rights" beyond what's actually written in the constitution. "Where does it say 'separation of church and state'?" Yadayada. So I'm curious to see how the Family Research Council justifies this "constitutional critique" of the proposed Hate Crimes law moving through Congress: "The version that now heads to the House floor violates the Commerce Clause and the Thirteenth, Fourteenth, and Fifteenth Amendments."

Now, there is a valid First Amendment attack on the bill text, though the bill explicitly says that mere speech isn't sufficient to violate the law. And I'll concede to that the Commerce Clause and the 14th Amendment are implicated too, though in the former case its not a "violation" of the Commerce Clause, it just may not be justified by the Commerce Clause (it's not justified by the Guarantee Clause either, but that doesn't mean it violates it). But the 13th and 15th Amendments? How does this implicate emancipation from slavery and the right to vote?

It's almost like they took a grab-bag of constitutional hot topics and hoped one would stick. Embarassing.

Mid-Terms are Upon Me!

And I was caught relatively flat-footed. So blogging might be reduced as I try to get a handle on my workload. Step one: Starting my six page paper, due tomorrow morning.

Wish me luck!

Pluralism at the Founding

Georgetown Law Professor Nicholas Quinn Rosenkranz has a paper coming out in the Stanford Law Review that proffers some interesting history regarding the history of the American political institutions. He is responding to Cass Sunstein and Eric Posner's use of Condorcet's Jury Theorem in support of citations to foreign law:

It turns out that Condorcet's vision of law and politics was distinctly "universalist," imagining all people everywhere seeking the correct answer to questions of law and policy. This universalist vision is central to the Jury Theorem, the most basic condition of which is that each "juror" answer the same question. And it is also essential to the Posner-Sunstein application of the Theorem, which posits that questions of law will often be relevantly similar from country to country. But the Framers' vision, as reflected in many of the Constitution's textual and structural features, was distinctly more localist. As careful analysis of features like bicameralism, federalism, juries, and the amendment mechanism demonstrate, the Constitution favors decision-making mechanisms that harness multiple collective bodies with distinctly varied geographic and institutional perspectives, each answering subtly different questions. In short, despite Condorcet, the Constitution itself ultimately refutes the notion that it should be interpreted by reference to the law of other states.

The emphasis is my own. I venture no opinion on the impact of Rosenkranz's analysis on his topic of choice. But I am intrigued by how this provides a historical root to the importance of the pluralism of perspective in the American political tradition. My fellow travelers in the more post-modern strains of contemporary liberalism have pushed this mantra. Iris Marion Young argued in her book Intersecting Voices that "Normative judgment is best understood as the product of dialogue under conditions of equality and mutual respect. Ideally, the outcome of such dialogue and judgment is just and legitimate only if all the affected perspectives have a voice." Justice demands that those we are affecting get to input the process. But it isn't just an obligation--it also seems likely that hearing from diverse perspectives will lead to better policymaking. One group may have insight where another might be blind.

Traditionally, the analysis by Young and her peers has been seen as a radical break from dominant American political thought--emphasizing the plural over the universal. As Rosenkranz demonstrates, however, this is not entirely accurate. Though the unifying language of "We the People" has come to dominate our historical memory of the founding generation, there was quite a strong emphasis by the founders that recognized the distinctiveness of persons and groups and celebrated what each could bring to the table. John Jay in Federalist #2 buttressed the legitimacy of the Continental Congress by noting how "being convened from different parts of the country, [the delegates] brought with them and communicated to each other a variety of useful information." Madison's work in Federalist #10 made group differences the prime defender of American liberty, hoping that a diverse array of factions would play off each other to insure everyone's rights are protected. The large union was instrumental to insuring that a diverse array of views and interests were represented, while smaller communities were understood to be more segregated and homogeneous.

The smaller the society, the fewer probably will be the distinct parties and interests composing it, the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or even if such a common motive exists, it will be more difficult for all who feel it to discover their won strength, and to act in unison with each other.

The good being pursued here is diversity and plurality. "We the people" is in some ways an outlier. Though we are united under banner, our strength comes from our varied perspectives--that which makes us different. E Pluribus [Voces], Unum.

PS: I apologize for my guess at Latin in advance.

Majority Leader Crow

No More Mister Nice Blog points out something important. All those "liberal celebrities" the right loves to harp about? Nobody on the left cares! Celebrities aren't politically important figures. So Sheryl Crow got into a little spat with Karl Rove. I care insofar as she may have made an interesting point (I have no clue if she did), but I certainly take no special pleasure in the knowledge that Sheryl Crow is on my side. Who uses Sheryl Crow as their political litmus test?

Could we say the same thing about Tom DeLay? I don't know if the right actually listens to ex-Rep. DeLay anymore. But nobody ever elected Sheryl Crow majority leader.

"Realistic" Weapons After Virginia Tech

The VC has been blogging about a Yale University ban (now rescinded) on using "realistic" stage weapons at performances on campus. A sword-fight that used real-looking (i.e., metallic colored) swords, instead of wooden ones, would be proscribed.

The VCers have been collectively mocking the ban, and I agree that as applied its pretty stupid. But there are at least a few cases where I think it would make sense in a university or classroom setting.

A psychology professor here at Carleton has related to his students an old teaching method of his on how trauma effects memory. Specifically, he'd be in the middle of a lecture when an accomplice would break in the door, "shoot" him with a realistic looking gun, at which point the professor would trigger a blood packet under his shirt and then slump down over the desk. Then he'd pop back up and ask the class what they remembered of the incident.

The professor has since stopped using this demonstration (apparently, he did it in an adult education class and gave one of his students a heart attack), but surely we can agree that had he not already stopped, now would be a good time to discontinue it?

Similarly, I'm reminded of a story regarding the murder scene in the comedy murder-mystery "Sheer Madness." Early in the play, the "murder" happens, with the lights going out, a shot fired, and a person screaming. Apparently, one performance the Saudi ambassador was in attendance, and when the lights came back on, eight of his bodyguards were up surrounding him, handguns drawn. Should we ban the producing of "Sheer Madness" on college campuses? I don't think so, but a disclaimer at the start might be appropriate.

The difference between these cases and the one's being targeted at Yale are that, while nobody seeing an onstage sword fight will think it's real, the aforementioned cases (especially the first) are meant to (or at least have the potential to, in the second case) deceive the audience into thinking actual violence is happening. They are, in that sense, the real cases of "realistic" violence, and they constitute tougher cases after Virginia Tech than Yale's over-reaction.

The more interesting question, I think, is whether the psychology professor's experiment ever should make it back into the classroom. Certainly, it is effective if nothing else. How long should he have to wait before bringing it back to a college setting? Or should it be permanently banned?

Two Votes For Every Boy!

Guest-blogging at The VC, Steven Landsburg argues for a change in the way we vote for Congress:

So if I could make just one change in the American political system, it would be to give each voter two votes in every congressional election. You'd get one vote to cast in your own district and another to cast in the district of your choice. When a congressman from West Virginia funnels taxpayers' money from fifty states to his home district, I want him to face the prospect that taxpayers from fifty states will share their feelings with him on election day.

He has others, but this is his numero uno, so let's unpack it a little.

I'm currently reading Lani Guinier's Lift Every Voice, so I'm less skeptical of proposals that deviate from the strict "one-man-one-vote" principle than normal. But Professor Landsburg, I feel, severely overestimates the intelligence of the American voter. First, I have trouble believing that if voters were going to express their distaste against a Congressperson from another district, they'd choose pork as their point of ire. And even if they did, they'd have to all concentrate their votes on only a few targets to have any effect. In a polity where less than a quarter of voters know who the Senate Majority Leader is, you can color me skeptical that they'll be able to know the difference between the Jeff Flake's and the Don Young's of the House.

No, what's likely to happen is that each election, the highest profile Democrat and Republican in the House (likely the Speaker and the Minority Leader) will lose. Why? Because voters will almost definitely cast their votes against the incumbents in the "second district" they choose. And the only politicians likely to have a high enough profile to be known and disliked by enough voters outside their districts to make a meaningful impact on the election are the ones who are the public face of their party. So Republicans around the country will band together to cast out Nancy Pelosi because she symbolizes the Democratic Congress that they hate. And Democrats will unite to beat John Boehner, for the opposite reason. Then we'll elect another round of leaders, and the cycle will begin anew.

The "Problem" of Prison Rape

Another great post (if one can say such a thing) about prison rape by Ankush at Ezra Klein's place. They relay the following story:

Tom Cahill, a former president of Stop Prisoner Rape, was arrested during the Vietnam War for civil disobedience. An ideologically unsympathetic jailer put him in a cell with known sexual predators, telling them he was a child molester, and that if they "took care of him" they'd get extra rations of jello. For the next twenty-four hours Tom was gang-raped. He has never fully recovered from this.

I read a story like this and all I can thing of is that the rapists:the jailer::the murderer:the getaway driver. Well, that's not entirely accurate--sometimes the getaway driver doesn't know that his partner has committed a murder. Here, the jailer was the mastermind behind the rape. That man should be in jail, and he should be there for the rest of his natural life.

Here's the thing, though--prison rape really isn't that difficult to get under control, if we're willing to be serious about it:

To some extent, stopping prisoner rape is simply an issue of better prison management. In facilities where the chief official cares about it, and ensures that his or her subordinates take it seriously, rates of sexual abuse go down dramatically. This is accomplished by, for example, providing vulnerable inmates with nonpunitive protective housing at their request, and establishing confidential complaint systems that encourage inmates to report sexual violence without increasing their risk of future assault or retaliation, from any party.

Ankush finishes it off:

There's more, but the takeaway is that none of the solutions would be particularly difficult to implement were there the political will and appropriate funding in place. If our government officials simply stopped ignoring this problem -- which isn't so much a "problem" as a series of ongoing and widespread human rights abuses occurring within our own borders -- it could probably be brought to an end (or as close to an end as such things can go) in fairly short order.

Truth.

It's About Time

Wiccans gain the right to have their religion recognized on VA tombstones. The only relevant principle here was whether or not we were willing to treat Wiccans like every other relgion. Christians get crosses, Jews get stars of David, atheists can get little atoms, and Wiccans should get the pentacle. It's as simple as that.

And My Roommates Hang Out On Weekends to Drink "Lemonade"

Presidential non-contender Tommy Thompson has a recipe up for "Bratwurst of Liberty":

A Wisconsin tradition for the 4th of July .... Bratwurst!

Step 1: Plan ahead, marinate in garlic, onions and your favorite spices.
Step 2: Grill them on the BBQ
Step 3: Place in a bun
Step 4: Top with your favorite condiments, from onions to peppers to mustard to whatever.
Step 5: Enjoy!
Step 6: Repeat til the fireworks start

Side dishes:
Corn on the cob, also on the grill
Watermelon

Beverages:
Cool Wisconsin products, such as .... milk.

"Milk." Of course.

I guess since I'm Jewish, I can't enjoy the "Bratwurst of Liberty." Maybe I can replace it with the "Matzah Ball of Communism." Or the "Kosher Hot Dog of Money-making."

Via Majikthise.

Umm...Yay?

More women are rising to top ranks....in Mexican drug cartels. They're even poaching top-level female police officers with promises of better money and more excitement.

Another victory for feminism...I guess.

Taking Thomas Seriously

Via Jon Adler, there's a fair amount of buzz around the new biography of the most enigmatic justice, Clarence Thomas. Academic all-star Kenji Yoshino (who, it's fair to say, probably disagrees with Thomas on most every substantive legal issue) reviews the book in the Washington Post:

It is hard, though, to quarrel too much with a book that solves the great Thomas mystery: his legendary silence. One conventional explanation is that Thomas is still smarting from the Anita Hill scandal that occupied his confirmation hearing, an explanation that seems less plausible with every passing year. Merida and Fletcher explain his courtroom demeanor by suggesting that silence is the closest Thomas can come to opting out of the scripts that eddy around him. "If you can't be free," the poet Rita Dove writes, "be a mystery." It is a serious indictment of race relations in this country that, in 2007, the nation's most powerful African Americans are still not permitted to be individuals. And because the book makes that case -- as well as many others -- in such a personal and non-ideological way, it may be heard. This book's greatest achievement is that the "supreme discomfort" of the title initially belongs to Thomas but, in the end, becomes our own.

Many people, left and right, think that Thomas believes racism is over in America. Conservatives believe it because they believe it and think of Thomas as one of them. Liberals believe it because they can't otherwise fathom why Thomas seems so uninterested in the fight for equality.

But they've got it precisely backwards. Thomas doesn't believe racism is gone in America. Thomas believes racism is irrevocably ingrained in America. In this respect, he draws from a deep Black Conservative tradition that sees little hope in the full-frontal assault for civil rights. Rather, they think the only way equality will be achieved in America is by absorbing everything racism has to throw at you, and still excelling. What this means differs for different theorists (the Black Conservative tradition contains men as widely varied as Booker T. Washington and Marcus Garvey), but the strain of thought tends to accept racism as a fact and demand Black people succeed anyway.

Thomas has faced an incredible share of racism in his life--as a child, as a seminary student, in law school. He considers the affirmative action (that he admits he received) to be a form of patronizing racism as well. In the face of that, Thomas still has risen to be one of the most powerful and most influential men in the country. Were he not so famously quiet and reserved (another characteristic of Black Conservatives is self-discipline), you can almost hear him taunting: Is that the best you got?

I don't identify with the Black Conservative movement--I'm idealistic enough to think that racism can be eradicated, and I think that the obstacles institutional racism erects are just too high for but a rarefied few to scale them. I also don't know what it would mean for a White person to buy into a Black Conservative view of the permanence of racism (see below). But nonetheless, I think Thomas' views are important, for liberals and for conservatives. Liberals need to understand the perspective he's coming from, one that is not running from Black thought but rather is embracing a particular strand. They can oppose that strain, of course, as I do, but argumentative ethics require that we accurately identify the position of our opponents before we blast it.

But conservatives, especially, need to understand this foundation of Thomas' politics and jurisprudence. This split Thomas has with White conservativism is very deep--one camp believes racism is permanent, the other thinks that it has been eliminated. That's a major gap. Basically, I think it is qualitatively different for a Black person versus a White person to say "racism is permanent." The reason the former says it is because the latter isn't willing to do anything about it. As a White person (liberal or conservative) hearing the Black Conservative critique, my only ethical response is to try and prove him wrong. I may fail at it--but virtually any framework that believes racism is bad cannot then allow White people to concede to it without a fight. Because White conservatives don't grapple with Thomas' basic observation of racial dynamics, they avoid this tension--but only at the cost of not taking one of their own champions seriously.