Saturday, December 15, 2007

Does Intention Matter?

Upon request, Kevin Drum receives a conservative argument as to why it's okay for America to torture in the war on terror. He reprints it without comment (I, as you will see, am not so generous):
I want our side to win. Or maybe more accurately, I don't want our side to lose....As with any other form of violence, motivation is everything. A cop shooting a murderer is not the same as a murderer shooting an innocent victim, although both use guns, and at the end, someone is bleeding and dying.

You'd be amazed at how many people find these things nearly equivalent. A leftist I know sees no difference between a Palestinian child dying from a stray Israeli bullet during a firefight, and an Israeli child dying when a Palestinian terrorist puts the barrel of a gun to the kid's forehead and blows his brains across the back wall of the child's bedroom. In his two-dimensional perception, the only important factor is that both resulted in a dead child. Avoiding true moral analysis and motivations allows him to skirt the concept of "evil," a term which makes many liberals intensely uncomfortable.

John Kiriakou said that waterboarding a terrorist stopped dozens of attacks. Dozens. Not attacks on military targets, but attacks on innocent non-combatants.

That was the motivation.

The terrorists who torture and kill our prisoners (never something as benign as waterboarding) don't do it because they need information to save innocent people. They do it because they like it, because they want to hurt or kill someone.

At some point you have to decide if a known terrorist having a very bad day (after which he goes back to a hot meal and a cot) is more of a moral problem than allowing a terrorist to blow up a building full of people.

Yes, it's good if we do it, when it's for the right reasons. So far, it's been for the right reasons. And no, it isn't good when it's done to us, for the reasons it has been done to us. Get back to me when some enemy tortures one of our soldiers in order to save innocent lives.

Got it?

There are two issues that spring to mind upon reading this argument.

1) The unidentified conservative draws a contrast between America, which tortures to save innocents, and the terrorists, who do it "because they like it, because they want to hurt or kill someone." This is a tempting argument. But ultimately, it is intellectually lazy. Certainly, there are brutes among men -- people who simply like to cause pain. But when it comes to vast, multi-national organizations, motivation is never that simple. The world is not made of cartoon villains. Ask anybody -- from the Klan to the Gestapo to Al Qaeda -- if their intentions are good, and they'll answer yes. They'll say they are building a better world. They are saying they are saving their people from damnation and imperial domination. They'll say they are purging society of the infidels and the undesirables. People don't cackle in corners about their plan to bring darkness and evil down upon the world. Everybody comes with good intentions.

A hypothetical I heard used was if Iran captured and water boarded a downed American airman to figure out if the U.S. was planning an invasion. Surely, innocent lives are at stake. They could claim good intentions. They wouldn't be lying. But neither would it be enough. Water boarding is not something civilized societies engage in.

2) Nonetheless, motive does matter. It is different; torturing someone to save innocent lives versus doing it for thrills. And we can evaluate different proffered motives dispassionately -- we don't have to simply agree with an assertion that a motive (establishing the caliphate, sending a message to the queers) is good.

But motive isn't all that matters. Nobody seriously disputes this, because nobody (I hope) disagrees that there is some outward limit to what we can do under the moniker of good intention. Can we water board suspected terrorists in order to save lives? This man says yes. But that isn't the only question at issue. Can we water board suspected terrorists without knowing whether it will save lives or not? Can we torture people who we're not sure are terrorists (and in some cases, we find out later are not)? All of these are moral questions raised by the current torture regime.

Or let's press the issue further. Can we dip their fingers in acid? What if they still won't talk? Can we dip their family members' fingers in acid? Can we sodomize their sons with spiked bats? If we do so, does it matter that we went in with pure souls?

Intention only gets you part of the way. There are still boundaries which an ethical society cannot cross, no matter how noble the heart and no matter how righteous the cause.

Friday, December 14, 2007

Comedy Is a Dead Art. Now Tragedy! That's Funny!

Is there a grad student alive in the Western World with worse luck than Scott Eric Kaufman? I should thank him for literally being a magnet for bad karma.

But he's a good guy, so I hope everything turns out okay. And he wins the lottery for good measure.

Authoritarian Evolution

Following up my post yesterday on how the changing international scene is proving a boon for African liberalization, Daniel Drezner rescues us from crippling optimism by noting how authoritarian regimes have adapted to the new era and found new ways to solidify their grip on power. Route #1: economics. Keep the economy humming, and folks really don't care that they don't get to vote. Route #2: use quasi-Democratic means to ramp up executive power. This appears to be a favorite in South America, where Presidents win office democratically, then host loaded "constitutional conventions" to remake the system to their liking (Drezner cites Bolivia and Ecuador, as well as the narrowly defeated attempt in Venezuela).

It's a good post, and shows that the forces of democracy can't get complacent.

In The Bunker

Arkansas Governor Mike Huckabee, writing in Foreign Affairs, critiques the Bush administration for having an "arrogant, bunker mentality." Now, if past experience is any guide, Huckabee's somewhat surprising break from orthodox, institutional conservative talking points will rapidly be followed by a sprinting back-track, as he cowers from the furious reaction of the base.

See, e.g., immigration, taxes.

Law School Brochure Blogging, Part II

Positive ones today, kids.

I got a nice thick envelope from Michigan Law School today. At first, I was really excited -- until I remembered I hadn't actually submitted my application to Michigan yet (soon!). A nice counter-balance to the thin envelope I received from a school "acknowledging" my application. Anyway, I give Michigan full marks on its brochure. It was jammed full of information, and it came with a personal note at the bottom ("We love to get Carleton grads!"). The author even underlined "impressive" in "credentials as impressive as yours." Am I a sucker for having my ego stroked? You better believe it. But actually, it was the "Carleton grads" note that really made me happy. I like it when my school gets recognition, one of my close friends from Carleton just got into Michigan, and my adviser is a Michigan alum (undergrad and Ph.D -- she got her law degree at Boalt Hall).

Also with a good brochure was Chicago-Kent School of Law. While my eyebrows did hike slightly when they said they were "among the top three law schools in the Chicago area" (true, but I think there's a real gap between them, and Northwestern and Chicago), I did think they did a good job pitching their Honors Scholars program. I was particularly impressed that their LSAT cut-off for the Honors Scholars program was higher than their 75th percentile LSAT score (which isn't too shabby itself). That tells me they're a) truly gunning for top students and b) trying to improve the quality of their student body overall -- both good signs.

Indiana came today too, but it was pretty forgettable.

See Part I.

Five Myths About Torture

Courtesy of Reed College Professor Darius Rejali. They are:

1) Torture worked for the Gestapo [I like how this is considered an argument in favor -- DS]

2) Everyone talks sooner or later under torture.

3) People will say anything under torture.

4) Most people [specifically, the intelligence professionals administering the torture -- DS] can tell when someone is lying under torture.

5) You can train people to resist torture.

The McGwire Paradox, Redux

Last year, I wrote a post on the burgeoning baseball steroids scandal entitled The McGwire Paradox. Noting the intense amount of loathing Barry Bonds has received as he pursued a cherished national record (namely, career home runs), I asked why Mark McGwire, who also chased and eventually broke a popular home run record (Roger Maris' single season mark) while under steroid suspicions didn't receive the same opprobrium. Now it's not like McGwire was treated with kid gloves during his run. But surely we can agree that he didn't face the same level of hostility that Bonds has: booing at every ball park, a universally hostile media, and now a criminal probe.

Working off that, Paul Butler of George Washington Law School wonders if the 89 players -- mostly White and Latino -- named in the Mitchell Report will face similar charges to the ones being pressed against Bonds. If not, Butler argues, prosecutors should drop the case against Barry.
There is a sense, both in the criminal justice system and in the social Zeitgeist, that drug use by African-Americans is somehow worse than drug use by others....To state the obvious, all drug offenders ought to be treated the same. Since we don’t have the resources to “level up” enforcement for white people to enforcement for African-Americans, we should “level down” enforcement for blacks. It seems unlikely that the 88 other baseball players accused of doping will be investigated and prosecuted like Bonds. Dropping the charges against Bonds would send the important message that when it comes to criminal justice, what is good enough for white people is good enough for African-Americans.

Butler has written much excellent scholarship on this and related topics. If you have the time (and the access), I highly recommend his article Starr is to Clinton as Regular Prosecutors are to Blacks, 40 Boston College Law Review 705-716 (1999).

Drug Users of America, Unite!

At his new American Prospect location, Ezra Klein argues that Bill Shaheen's clumsy effort at making Obama's past drug use an issue may have actually aided Obama by inoculating him against the charge when Republicans (or their proxy groups) throw it at him in the 2008 elections.

I certainly hope that's right. But can I just say I find this whole thing ridiculous. Obama used drugs as a kid. Fantastic. Lot's of kids do. I don't find that thrilling information, but you know what I consider the ideal outcome of a youthful drug habit? Kicking it, going to Ivy League schools, and eventually becoming a front-runner for President. There is this persistent murmuring that Obama is a bad example for kids because, after he admitted to taking drugs, he didn't have the decency to become a hobo or thug for the rest of his life.

This mentality simply won't last. Kids today know people who take drugs. If we got rid of all the people who had tried marijuana, I wouldn't have a college anymore. And you know what? Having had friends, class-mates, roommates, family members, and romantic partners who have experimented with cannabis, I can say without a doubt that the world would be a worse place if they were in prison. Anybody who has attended college in the last several decades has had the same experience. Eventually, it's going to have an effect on policy.

Thursday, December 13, 2007

Oprah's Racial Politics

Nobody should be surprised that some of Oprah's fans are not happy seeing her stump for Obama. When you have as much of an audience as Oprah has, undoubtedly you're going to have people who aren't Obama fans, and it's no shock that they would rather not see their icon pitching for a politician they find distasteful.

What does amaze me, however, is that they are accusing her of being racially divisive:
But, what's especially interesting about reading Oprah's Web site is why some of those fans seem to be upset: the way she stumped for Obama, they say, seemed to pit white against black.

"I've been inspired to believe that a new vision is possible for America,"
Oprah said while on the stump with Obama in South Carolina. "Dr. King dreamed the dream, we get to vote that dream into reality."

Back on Oprah's Web site, one commenter wrote, "Winfrey has artfully begun her stump speeches alongside Obama with a negative racial tone."

And another commenter wrote, "Don't pit blacks against whites."

How Ms. Winfrey's comments could conceivably be called "a negative racial tone" or "pit[ting] blacks against whites" is literally beyond me, except so far as any mention of racial justice makes whites defensive and angry.

Oprah says she is "offended" by implications that she is supporting Obama due to his race. As she should be. It is offensive to assume that Black voters are so immature that they see nothing but skin color when casting their ballots. Obama is getting her vote because she thinks he is the best candidate for America -- the same reason most other voters choose their candidates.

Day In, Day Out

Michelle Cottle has an important observation on Fred Thompson:
With only three weeks to go until the caucuses, is it really possible that Thompson is going to at last get serious about the race and exert some sort of effort? I've always gotten the sense that ol' Fred likes to think of himself as a clutch player, the type of fella who doesn't need to work up a sweat in the early going then comes to life in the last few minutes of the game to carry the day. You saw this in his 1994 Senate run, where, in the closing months, Thompson perked up, hunkered down, and scored a major victory after getting his butt whooped for most of the race.

I suppose Thompson could still be plotting something similar in this election. But do we really want a president who thinks of himself as a swoop-in-at-the-last-second kind of guy? The presidency isn't really a "clutch" kind of job. Yes, you need someone who responds well under pressure, a strong leader who doesn't freak out in a crisis or buckle during intense negotiations. But you also need someone who can perform over the long haul, who can handle the daily grind and grinding anxiety of the job.

This is important, and the media needs to incorporate Cottle's words into the broader narrative of the hypothetical "Thompson surge." It matters because the media needs to take note of this if/when Thompson begins his last-minute push. I would not be surprised if Thompson at least makes a strong move back to the top in the waning days of the campaign. After all, the Republican electorate does not seem happy with it's choices, and Thompson's original rationale as a candidate was precisely to be the savior for conservative voters who had nowhere else to go.

But Thompson shouldn't be given bygones on his previously lackluster effort when covering this surge. It'd be one thing if had been chugging along diligently up to this point, and was regaining votes as Republicans decided to give him a fresh look. That's essentially what happened with Huckabee, and his move to the top of the pack was properly framed. It'd be easy to use that template all over again with Thompson. Easy, but wrong. Huckabee overcame lack of name recognition, but that won't be a problem if he's the leader of the free world. Unlike Huckabee, Thompson's prior mediocre polling is intricately connected with the type of President he'd make. Thompson will have to work hard every single day, day in and day out, if he's President. His lack of commitment to going through the grind is the sort of thing voters have a right to be reminded of, even if he's willing to buckle down in the clutch.

Could You Be More Specific?

Hit and Run live-blogs the last Democratic Iowa debate. Unfortunately, they tag the debate as "The One Nobody is Watching", which is spectacularly undescriptive. But the coverage itself is interesting.

We Can Only Hope

The Boston Globe reports on Africa's surprising turn-around over the past few years. Democracy is up, economies are thriving, and peace is spreading. Matt Yglesias notes that the end of the Cold War, which inherently stymied reform by letting corrupt nations play the two global superpowers off for string-free support, has given these states breathing room to grow and prosper. Yglesias is right that it's important to not get into that same game with China in the coming years, but we must be equally vigilant to not let China cast itself as a "shield" for illiberal regimes who want to continue oppressing their citizenry with impunity (as they have been doing for Sudan).

Of course, it's not all good news -- there are still hellish scenarios playing out in Zimbabwe and Sudan, and Yglesias linked to the Globe article itself as a counterpoint to Congo's descent back into chaos. But any progress is good progress -- and nothing would be better for the persistent trouble-spots in the region than if their neighbors were able to get on solid footing and could pull them up with them.

House Votes To Outlaw CIA Use of Waterboarding

In a 222-199 vote, the House passed a bill which would prohibit the CIA from using interrogation techniques not sanctioned in the Army Field Manual, such as waterboarding. Good news.

There were five Republicans amongst the ayes. They were Representatives Roscoe Bartlett (MD), Wayne Gilchrest (MD), Tim Johnson (IL), Walter Jones (NC), and Chris Smith (NJ). Special credit to Bartlett and Gilchrest, whose ballots meant that the entire Maryland Congressional delegation voted unanimously against sanctioning torture.

There were also ten Democrats who voted nay. They were Representatives Danny Davis (IL), Dennis Kucinich (OH), Barbara Lee (CA), John Lewis (GA), Jim Marshall (GA), David Scott (GA), Jose Serrano (NY), Pete Stark (CA), Maxine Waters (CA), and Lynn Woolsey (CA). With the exception of Marshall and possibly Scott, I'm guessing that these folks were objecting from the left, not casting ballots in favor of torture.

Contempt Citations for Rove and Bolten

The Senate Judiciary Committee has voted to hold Karl Rove and Josh Bolten in contempt for refusing to produce documents related to the U.S. attorneys scandal. It now goes to the full Senate for another vote there. If it passes again, then we could have a major constitutional showdown brewing, as the Bush administration has signaled its willingness to fight to the death to prevent these subpoenas from being enforced.

The WaPo

I'm a fan and defender of the Washington Post, though some parts more than others. I think it's news section is really good (when it's not talking about Hillary Clinton's cleavage). Tom Toles, the editorial cartoonist, is a god amongst men. I even think the unsigned editorials are decent. Their columnist rotation, well, that's a bit iffier:
It has been extraordinarily soft on George W. Bush throughout the various debacles over which he has presided. In fact, the most recent addition to the Post's Op-Ed writers is Michael Gerson, the former Bush speech writer, a man who combines a sunny shallowness with insular retrograde politics. The hiring is inexplicable -- the only possible way Gerson could attract an audience in this area would be if he were slated to be torn apart by wild dogs -- then he could sell out FedEx field.

Truer than you'd think. We're actually that liberal, and actually politically savvy enough to know who Gerson is.

Ossining Public Schools

Dana Goldstein in the American Prospect has a great article on the efforts of Ossining Public Schools to reduce the performance gap between its White and minority students, in part through programs specifically targeted at Blacks, particularly Black men. Ossining is a rare school district that has a long outstanding commitment to racial integration -- one that recent Supreme Court decisions has threatened.

It's really a fantastic and fascinating piece. Go read.

Our Problem Too

This Echidne post on feminists debating "trivialities" is great the whole way through. She lambastes "concern trolls" who claim to support feminist ends but complain that nominal feminists spend all their time debating trivial concerns like language. If only they were talking about rape in Saudi Arabia, then I'd be right on board. Echidne responds:
Note first that the real and grave injustices that women still face: oppression, rape and even being killed for their gender in some countries, are somehow all problems that only the feminists should try to solve. The rest of the society can just sit back and criticize the feminist attempts, almost like those ice-skating judges at the Olympics. Though of course they would applaud should the feminists actually solve all those frighteningly large problems, without much external funding and while being criticized of nitpicking and various forms of lunacy. But are these problems not the responsibility of the rest of the humankind to solve? It appears not. Only the feminists are expected to fix the world for billions of women.

So true. If you don't think feminists are focusing on the right issues, I guess that's your prerogative. But then you better start focusing on those "right issues". Criticizing them for not pressing for women's rights in Iran is a hollow gesture if your next move is to write your Congressman demanding he repeal the Estate Tax.

But also, as Echidne points out, these "trivialities" are often a big deal to those affected. It's easy to call "trivial" what you yourself aren't being subjected to, but that doesn't mean it's not a special form of arrogance to demean the experience of the other:
That there might be something deeper in the trivial topics some feminists (read: Echidne) chooses is lost on the critics. This something deeper is twofold: First, language matters. It matters that the most common insults in the unmoderated parts of the blog threads are about the object of the insult taking the female position in sex (blow me! bend over!). It matters that a politician who is viewed as bought is called someone's bitch. It matters that "whores" are a common term of denigration, too. It even matters when a politician gives a speech with references to great statesmen, not to stateswomen, and it matters because of what the images might be that our brains create from that speech, and how those images then become expectations having to do with how a politician should look (masculine).

Second, trivialities are sometimes trivial for only those who are not affected by them. Suppose that you are bitten by mosquitoes while your friend is not. You go out for a camping holiday together. You get bitten in the morning, your friend does not. You get bitten at noon, your friend does not. You get bitten in the afternoon, your friend does not. You get bitten all evening at the campfire while your friend enjoys some marshmallows. You then scratch like mad and swear and rant, and your friend suggests that you pay far too much attention to such trivialities as mosquito bites. Then you kill your friend.

People who haven't experienced what you have (or, usually worse, have experienced it one time in isolation and think that because it wasn't a big deal then, they "know" you can deal with it now) don't have the right to tell you what matters and what doesn't in your life. I'm sorry, but you don't get to expropriate experience that way. Certainly, sometimes we have to take our best guesses, and we remain free to forward our opinions and conjectures about what matters and what doesn't. But, as Iris Marion Young put it, ultimately "the only correction to...misrepresentation of the standpoint of others is their ability to tell me that I am wrong about them." You got to listen, people!


Wednesday, December 12, 2007

No Further Questions

Senator Lindsay Graham (R-SC) is part of that class of Republican Senators that is willing to talk a good game on torture, but when push comes to shove, isn't willing to do anything that will actually prevent it from happening. Still, tell me he doesn't look genuinely upset when Guantanamo Bay legal adviser Gen. Thomas Hartmann refuses to answer whether Iran waterboarding a downed U.S. airman would constitute a violation of the Geneva Conventions.

Senator Graham is right that there are no further questions to be asked on this issue. It's time for some concrete action backing up Graham's strong words.

Via Liberty Street

Unbidden Verses

I've been listening to Fall Out Boy's song "Thnks Fr Th Mmrs", and I kind of like it. But once it hits this verse:
And I want these words to make things right
But it's the wrongs that make the words come to life.

My mind immediately flashes to this line from Wizard People, Dear Reader: "H.P. knows he's got to make it right, even though it feels so good to make it wrong."

And then I can't stop laughing. It's a curse.

Freedom Showers

Stephen Suh at the new Cogitamus Blog asks for defenders of torture policy to tell us why we were wrong back in the 1940s when we stood strong against torture. We prosecuted Japanese military officers after WWII for waterboarding our guys. Even the Mississippi Supreme Court, at the height of Jim Crow, declared it beyond the pale. Why were they mistaken?

My TMV co-blogger Pete Abel thinks the era of the culture war is over as foreign policy and national security take their place as the primary political issues of the new era. I'm afraid I can't share his optimism. Even if abortion and homophobia fade to the background as my generation takes over, they'll merely be replaced by different areas of concern. One of the more terrifying developments of the past few years has been the significant segment of the American electorate -- including a goodly portion of the presidential candidates for a major political party -- unabashedly declaring themselves pro-torture. Like the debates on abortion and gay marriage, this is a moral issue that speaks to the very soul of the nation. Culture still matters when it is still a matter of debate as to whether the American culture will sanction simulated drowning, endless detention without trial, and the other gross human rights abuses that have characterized the "war on terror". Foreign policy hasn't changed the game, merely the frame.

In any event, with a nod to this comment, I move we rename "waterboarding" to the far more apt "freedom shower." It certainly fits the self-image of its barbaric proponents.

l33tspeak FTW!1!!!1!!1

Merriam-Webster's word of the year is "w00t". Seriously. I have to say, though I am a fan of "w00t" as a word, "ftw" is my favorite piece of 133tspeak. But I guess that's just an acronym ("for the win").

Also, "pfft" is in the dictionary. But can I play it in scrabble?

Via Feministe

The Place for Jews in a "Christian Nation"

Of all the places you'd expect to see Jews be safe from anti-Semitic violence, I'd put New York City at the top of the list. Yet, the New York Post is reporting a possible hate crime on the Q train:
A Hanukkah greeting among passengers on a Q train set off an altercation that resulted in ten people being charged with hate crimes yesterday, police said.

The incident in which four people were assaulted took place on a Q train at the DeKalb Avenue station in Brooklyn on Friday at 11:15 p.m.

It began after the four victims exchanged Hanukkah greetings and one of the assailants made anti-Semetic remarks about Jews killing Jesus, saying, "This is a Christian country," sources said.

The group of 19 and 20-year-olds then allegedly attacked the four passengers, who suffered minor bruises and swelling. They were charged with assault and unlawful assembly.

The father of someone in the attacking group claims that the victims shouted obscenities about Jesus. But according to the Gothamist, at least two of the attackers have had brushes with the law before, both after assaulting Black men elsewhere in New York.

Via Phoebe, who herself was near the scene of the crime.

UPDATE: The New York Daily News reports that the man who intervened to stop the attack was a young Bangladeshi Muslim student. That's really nice to hear. Kudos to him. As one of the victims put it, "That a random Muslim kid helped some Jewish kids, that's what's positive about New York."

Also, the story gives more background on how the fight started. The attackers apparently yelled "Merry Christmas" at the group of Jews, who responded with a resounding "Happy Chanukah". Then they jumped them. Elsewhere, I've heard it reported that the attackers thought that Chanukah commemorated "the day the Jews killed Christ", so that could be the "obscenity" the father cited above (but, I hasten to add, that's just speculation on my part).

CNN also picked up the story.

My Fellow Students of Higher Learning

All things considered, I've decided I'm opposed to graduation. I rather like it at Carleton. I know the people there, the community is nice, my stuff is there, I have good roommates....there is a lot going for it. College life appeals to me.

On the other hand, remaining in college means that I'm a compatriot of these people. So it's a wash, really.

Pence For Your Thoughts?

Unsurprisingly, Rep. Steve King's (R-IA) ridiculous resolution promoting the importance of Christmas passed overwhelmingly. But in a pleasant surprise, some folks did stand up -- 9 Congresspersons (all Democrats) voted against, and 10 Congressional Representatives voted "present."

One of whom was Republican Mike Pence of Indiana. This is intriguing.

Pence, for those of you who don't know him, is a conservative's conservative. He was the right-wing's preferred candidate for House Minority Leader after the Republican's crushing defeat in 2006 (he was annihilated by John Boehner in that race), and he describes himself as "a Christian, a conservative, and a Republican, in that order." In other words, he hardly seems the sort to register his dissent from Christianist orthodoxy here. And yet, I'm looking at a vote tally that says he did just that.

Anyone know what's up?

The Essence of the Huckabee Campaign

Via Balloon Juice

Tuesday, December 11, 2007

The Founders and Christianity

In response to Mitt Romney's recent speech, Geoff Stone, of the University of Chicago Law School, runs through the various religious beliefs of our founding fathers. His conclusion? Enlightenment Deism, not Christianity, was their primary influence, insofar as religion mattered at all. Indeed, echoing my warning of confusing "old" and "original", Stone claims that "Those who promote this fiction [of a "Christian nation"] confuse the Puritans, who intended to create a theocratic state, with the Founders, who lived 150 years later."

Via Brian Leiter

Pseudo-Originalist Arguments

In a previous post, I unpacked the originalism trinity, exploring how the broad term "originalism" really encompasses at least three subtly different interpretative theories. To follow-up that one, I thought I'd write a post on "pseudo-originalist" arguments -- ones that often drape themselves under the label of "originalism", but really are something else entirely. Specifically, I've noticed that often, nominal originalists simply cite the fact that a proposition or position is old in lieu of proving that it constituted the original intent, meaning, or understanding of the clause in question. For example, Scalia and Thomas, the Supreme Court's prominent originalists, defend the "color-blind" principle, which is quite old (the term dates back to Justice Harlan's Plessy dissent in 1896, and Justice Thomas has tried to date it back even further to the writings of Fredrick Douglass) and has a long pedigree in American racial thought. But there is very little evidence to show that this is the original meaning of the 14th Amendment -- a fact that becomes evident when one remembers that Plessy was decided nearly 30 years after the ratification of the Amendment. Another good example would be the debate over whether the federal government only has powers "expressly" delegated to it. John Marshall answered that question in the negative in McCulloch v. Maryland, holding that the omission of the word "expressly" from the 10th Amendment (in contrast to the Articles of Confederation, where it was included), showed that the original intent of the constitution was to give the central government broad powers. But as Kurt Lash argues in a upcoming paper, that conclusion appears to be incorrect -- the framers did, in fact, think that the powers of the federal government were supposed to be limited to that which was expressly enumerated.

This mistake tangles up two very different justifications for legal decision-making. To be sure, there are perfectly good reasons to take the longevity of a given legal principle into account when deciding how to rule on present cases. But these reasons aren't the same as the one's that motivate originalists. Originalism is normally justified on two grounds: that it is more democratic, because it enacts the policies people actually and consciously chose to vote for, and that it represents the "true" meaning of the clause, before it was muddled about by interpretation. Appeals to the longevity of a rule (through stare decisis or other means), by contrast, are defended on two rather different premise: that people have come to rely on the prior rule (predictability), and that the fact that the rule has "stood the test of time" signifies that it is working.

Two sources might be the cause of the mix-up. The first is that both originalism and, to coin a term, temporalism are both appealing to historical texts in opposition to a contemporary re-interpretation. The second is that both the reasoning used by originalism and that used by temporalism are appealing to modern-day conservatives -- they (say they) like democratic deference and absolute Truth (originalism), but the also are strong proponents of social stability and relying on received wisdom (temporalism). It is unsurprising that the two might be blended together, as they both make arguments that judges of similar political alignments will find persuasive.

But that notwithstanding, originalism and temporalism are actually very different. The latter is more pragmatic and Burkean -- it draws its power not from the "legitimacy" of the interpretation, but the fact that society has already adopted it as the "rule" and has creating working institutions relying on that. Originalism, by contrast, is ideological -- it claims supremacy because it shows the "true" meaning of the law in question and because it's interpretation is democratically ratified. It doesn't particularly care about how the change in law will work in practice.

Why does this matter? The blurring together of originalism and temporalism, in effect, gives conservative jurists two bites at the apple when seeking to justify their preferred policy ends as legally mandatory. Some policies are legally defensible under an originalist regime, but not a temporalist one, others vice versa (and some both, and some neither). People who think of themselves as constrained by an interpretative philosophy, of course, are not free to simply hop from theory to theory until they find the one that fits their preference for the case. But that self-check only kicks in when the judge is cognizant that this is what she is doing. When originalism and temporalism are not seen as separate, that constraint falls away.

Do You Believe This Book?

At the Republican YouTube debate, one of the questioners inquired as to whether the candidates believed that every word of the Bible was literally true. The Jerusalem Post thought it would be interesting to pitch the question to a bunch of Jewish Rabbis (using the Hebrew Bible, of course). Their answers are fascinating, and shed important light on how Judaism as a religion is operationally different from its Christian cousin.

Jews are all about interpretation. The "literal truth" of the Bible, such a point of controversy in Christianity, has never been a big fissure point in Judaism. As early as the Saadia Gaon (6th Century C.E.), and possibly earlier, Jewish scholars have held that the Bible should be understood metaphorically when it conflicts with science. The tradition of oral law and Talmudic interpretation necessarily has created a religion comfortable with differing views, and a rather unique tolerance for interpretative diversity (e.g., the "These and These" principle).

I'm not entirely sure how that would be gotten across to a polity that is largely unfamiliar with the development of Jewish law and largely doesn't realize how different we are from our Christian peers. I suspect that an Evangelical audience, in addition to rejecting the substance of our answer, would also reject that it is a legitimate "Jewish" (or "Judeo-Christian") answer. But that's their ignorance, not ours.

We're Better Than This

Though he believes that waterboarding probably "saved lives", a CIA agent who participated in the procedure believes the technique constitutes torture, and, most importantly, "Americans are better than that."

That's the crucial mark, isn't it? I mean, it's not just Americans who are "better than that" -- waterboarding was beyond the pale for Jim Crow Mississippi for use on Black criminal defendants.

There are lots of things we could do to terrorists and their associates which could conceivably save American lives. We could shock their testicles with a taser, or we could anally rape them with a spiked bat. Shelby Steele advocated prosecuting the Iraq War without worrying about whether given tactics would be seen as "racist" or "imperialist", a policy that, as Spencer Ackerman put it, would define victory in Iraq as "anywhere south of Kurdistan ought to be a smoldering wasteland."

I am skeptical that waterboarding works on a large scale, though there may be specific cases where it gets us useful information (though even in this most recent case, accounts vary about whether we got useful intel). But at some level, this debate is a distraction, because we're Americans, and we're better than this. It's the perils of being the good guys -- sometimes, you got to be good.

Verbing Weirds Language

As a devoted Calvin & Hobbes fan, this might be the greatest thing I've ever seen. First the relevant C & H strip:
Calvin: I like to verb words.

Hobbes: What?

Calvin: I take nouns and adjectives and use them as verbs. Remember when "access" was a thing? Now, it's something you do. It got verbed. Verbing weirds language.

Hobbes: Maybe we can eventually make language a complete impediment to understanding.

And then the quote it inspired:
"First they came for the verbs, and I said nothing because verbing weirds language. Then they arrival for the nouns, and I speech nothing because I no verbs." -- Peter Ellis.


Monday, December 10, 2007

Buyer's Remorse

Lindsay Beyerstein is none too pleased with Nancy Pelosi's explanation as to why she was silent on the CIA's use of torture when she was briefed in 2002. She also is skeptical about Pelosi's claim that she "concurred" with ranking House Intelligence Committee member Jane Harman's (D-CA) protest over the tactics delivered in 2003. And finally, she notes that Pelosi actually removed Harman from her post after attaining the majority, replacing her with Sylvestre Reyes (D-TX), who has recently gained some unwelcome attention of his own for calling Jose Rodriguez, architect of the CIA's destruction of its videotaped "harsh interrogation" sessions, a real-life "Jack Bauer".

Fair enough, and I can't say I disagree with her. But I distinctly remember a significant liberal contingent that was actively pushing for Harman's removal, and her replacement with Reyes, when the Dems obtained the majority in the House (e.g., Matt Yglesias). Certainly, Pelosi's long feud with Harman played a role, but the fact is many liberals really dislike Harman anyway, primarily because she is seen as too close to Israel. I don't know if Beyerstein was one of them, but I know that it was left-ward pressure that kept her out of the chair. At least some folks are expressing remorse now, anyway.

Being Black Makes It Worse

Michael O'Hear remarks on the findings of a book examining how convicted criminals re-enter American society. One of the more "provocative" findings is that -- all else being equal, including resumes, type of crime, demeanor, and background -- Black former criminals are more likely to be rejected from jobs than White applicants.

I hate to be a cynic here, but is there anyone who finds this even remotely surprising? For every single metric of social disadvantage I've ever seen -- from wealth to gender to sexual orientation to criminal history -- the effects are amplified when you're Black. Some would say that's signifies something about America.

Now, I'm of the distinct opinion that we need to do a better job reintegrated offenders into our society. What do we expect released convicts to do once they're free, if legal society is barred from them? Meditate? But once again, while this is a problem for people of every race, it's a problem that affects Blacks more, as they are more likely to be arrested and convicted of crimes, and, as this research demonstrates, face stiffer post-incarceration consequences as well.

Admissions Office Evil

One of my hobbies during application season (first undergraduate, now graduate) was to fantasize about all the evil things I would do if I were a director of admissions. Normally, when I'm faced with a stressful or unfair situation, my mind turns on how to alleviate the burden for the people who will come after me (this is why I like judging debate). But for some reason, the application game brings out my sense of malice.

Previous entries in how to be an evil admissions director include posting "abandon all hope, ye who enter here" above my office door, stuffing rejection letters with packing foam, and making interviewees make their best case for why they shouldn't be admitted. Today, courtesy of a school-that-shall-not-be-named, I have another example: send me a nice thin letter a few weeks after I submit my application, then, after my heart has stopped, reveal that it is merely an acknowledgment of my application.

Heart restarted, but I'm keeping a wary eye on you now.

Huckabee's AIDS Gaffe

Mike Huckabee -- with a bit of dodging -- refused to recant his 1992 comments that we should "isolate" AIDS patients. Notably, by 1992 it was well established that AIDS was not transmitted through casual contact. But AIDS still carried with it an unbelievable amount of stigma, and Huckabee was playing into that. I have to admit that I am surprised he didn't repudiate those words though. It seemed like a no-brainer.

This seems to me to be the grand Huckabee paradox. He does have a lot of personal charm and charisma. To counteract that, he has a lot of positions that are -- bluntly -- crazy. This can be a winning combination (it won in 2000 and 2004), but unlike its current poster boy, Huckabee seems to lack the instincts of a true politician. He doesn't know when and how to spin, when to hold the line and when to break. In this, he's a bit refreshing, actually. But it's a flaw as a candidate, and if it prevents someone with his retrograde views on all manner of issues from taking office, so much the better.

Where All The Xs Are

Jill of Feministe picks a nit on Ayaan Hirsi Ali's recent NYT editorial asking where all the "moderate Muslims" are. Ali used the recent example of the Qatif case (where a woman was sentenced to be lashed after being raped) and asks why there hasn't been an outcry from these so-called moderates.

While professing great respect for Ms. Ali (and noting she has excellent reason to not be a big fan of Islam), Jill notes that this is really an unfair charge. How, Jill asks, does Ali think this case came to our attention? The answer is through the efforts of the woman's Muslim Arab attorney, the coverage of the Arab press, and the general outrage the case sparked in Saudi Arabia and around the world. I see this sort of argument all the time, particularly conservatives asking why feminists "aren't talking about women's rights violations" in the enemy of the day, and it's almost always bogus there too -- most women's rights bloggers and activists are quite concerned with the issue globally (in fact, generally they're the first on the scene), they just don't think the solution always comes at the end of a bombing run. While extremists always get more attention than moderates, Muslim moderates have presented themselves quite well, all things considered.

As Jill says (and I concur), Ali is in many respects an incredible woman, and her voice deserves to be heard. But this column levied an unfair charge, and she deserves to be called out on it.

Sunday, December 09, 2007

Is There a Right To Comment Anonymously?

For the record, this post isn't written in response to anything that's happened on this site. Barring anything unforeseen, I don't expect to in any way hamper anonymous commenting on this site. And while I know theoretically it's possible to track down someone's identity via their IP address, I neither know nor care to know how to go about that.

But I do wonder whether or not people have any reasonable expectation of maintaining their anonymity when they comment on someone else's blog. I fully acknowledge and respect the right of people to start their own blog anonymously. There are many people who, for a variety of reasons, either couldn't or wouldn't write if their identities were publicly known. I read many of these bloggers myself, and I know the blogosphere is better for it. But that's at their own place. What about at other blogs? Is the blog-host who threatens to expose an abusive, trollish, or otherwise hostile anonymous commenter completely out of line?

On the one hand, it is obvious that not guaranteeing anonymity would deter certain people from commenting -- most notably the aforementioned people who blog anonymously. While I actually know of some anonymous bloggers who leave comments under their real name (but who don't link their name to their anonymous blog), many would be uncomfortable even with that. And furthermore, this strategy still blocks participation by their anonymous personas. A comment by "PG" is more meaningful than one by "Pam Gomez" (name deliberately chosen so that it has no chance of being anything close to PG's actual name, which I don't know), because even though they're the same person, I can link PG to her broader array of work, while I have no idea who Pam Gomez is.

On the other hand, anonymity has its fair share of problems. For one, if my blog is my house, I kind of have a right to know who is visiting -- particularly if they are slinging muck my way. People undoubtedly behave worse when they don't feel accountable to their real-world reputation. And, stepping across another line, if someone is being stalked or harassed online, anonymity can be very dangerous. Some blogs which depend on their commenters for credible, inside information (like Brian Leiter's) often don't allow anonymous comments at all because they aren't as trustworthy.

I think the norms of the blogosphere have developed so that, unless specifically told otherwise, an anonymous commenter can expect that her anonymity will be preserved unless specifically told otherwise. I do, however, think it is within a blogger's rights to warn an offensive commenter that, if she returns, her anonymity is forfeit. My house, my rules, so long as I give fair notice.

Prospect In, Prospect Out

There is some movement amongst the blogosphere hordes coming up. Tomorrow, the stable of American Prospect blogs will add a new member as Ezra Klein departs from his old gigs and finds a new home on their website. Klein's excellent set of weekend bloggers is not following him there, but is regrouping with some new members to form Cogitamus, which should be excellent (and has already been added to the blogroll). So congrats to Klein on his promotion, and I look forward to following him and his former co-bloggers to their new homes.

Meanwhile, Garance Franke-Ruta is departing the American Prospect for a new position at the Washington Post as their national web politics editor/producer. She is shuttering her old site, and I don't know if she'll be providing any public commentary in the new role. So while I'm certainly glad that my favorite newspaper is availing itself of her considerable talents, I'll certainly miss her own distinctive voice. But nonetheless, another round of congratulations to her.

Know Thyself

Over at Concurring Opinions, Frank Pasquele blogs on a presentation by a Silicon Valley entrepreneur on privacy in cyberspace. He made a bunch of interesting points, but I thought his most interesting demand was this:
You should know more about yourself than anyone else knows about you.

Consumers should have the right to find out what data is being collected about them. As a consumer, you should be able to go to DoubleClick, AdBrite,, Google, Yahoo, Aggregate Knowledge, etc. and a list of all the websites that track you. You should be able to go to Choicepoint, Experian, Acxiom, Rapleaf, etc. and see all the data they collect on you. . . . And you should be able to access this data for free at anytime.

I had never thought of this. But now that it's been said, it strikes me as completely intuitive. Nobody should have more information on me than I do. Why shouldn't this be a rule?