The Prop. 8 Drama Isn't Over

As opponents of Proposition 8 fight a last-ditch battle to overturn the results (on the grounds that the amendment is actually a "revision" to the California constitution, which would require a 2/3 majority to pass), proponents are trying to press their own advantage further: seeking to nullify the gay and lesbian marriages that already occurred under California law. Their argument is that the text of the amendment prohibits recognition of all marriages that aren't between one man and one woman, and that this necessarily applies retroactively.

Let's put aside a moment the fact that these people are assholes (I know it's hard, but let's try). My understanding (probably incorrect) was that the state is constitutionally precluded from nullifying previously created contracts. See, e.g., Dartmouth College v. Woodward, 17 U.S 518 (1819); Fletcher v. Peck, 10 U.S. 87 (1810). In Fletcher, that included a repealing a corrupt state grant of land, so the prohibition is pretty broad in scope. The marriage contracts entered into between the court's decision and Proposition 8 were valid under California law at the time, hence, I have difficulty understanding how the state could retroactively annul them without running afoul of some very old contracts clause precedents.

And So It Begins

Amp, Jill, and others have already provided good commentary on the horrifying story of 12 year old Black girl who was abducted by plain clothes police officers in front of her own house, accused of being a prostitute, beaten, then later charged with "resisting arrest". Suffice to say I agree with all their analysis.

I only want to add this. If this honor roll student grows up and becomes a "gangsta rapper", and spins out verses with her own version of "Fuck the Police", nobody has the right to complain or judge. Agreed?

Going South of the Border

A short while back, Feddie complained that there were no southerners in Barack Obama's cabinet. Now the final tally is out, and there will be one, lone representative of Dixie: former Houston Dallas mayor Ron Kirk as the US Trade Representative. Southerners don't seem mollified. Consider the reaction of Georgia Congressman Jack Kingston (R):

"Southerners need not apply," said Rep. Jack Kingston, R-Ga. "It's hard to believe that there wasn't anybody qualified for something from the South."

There are a bunch of ways one might play this. The first is to note that Kingston basically is calling for southern-based affirmative action -- right down to the rhetoric, which comes almost straight out of the LCCR's playbook.

Or, one might take John Cole's tact, which would be to note how difficult it is to find qualified southern politicians for elevation when they keep electing people like, well, Jack Kingston:



Hey -- the problem isn't that there are no qualified southern politicians. It's just that none of them are White. White folk want in on the meritocracy, they gotta start raising their game.

Or finally, you might go with my original instinct: wouldn't, under previously forwarded lines of analysis, any southerner who accepted a cabinet position with Barack Obama automatically be an "insult" to the region? I forget if it is better or worse that Kirk is a Democrat, but presumably the fact that he's Black makes it a moot point anyway.

The Vatican Deserves an Apology

Earlier, I noted that the Vatican -- alone amongst European nations -- had come out in opposition to a non-binding UN resolution urging the decriminalization of homosexuality. I described this choice as "an unconscionable decision and a formal decision to cooperate with intrinsic evil."

Unfortunately, they now have company in the Western world. The United States -- differing with every other major Western nation -- also withheld its signature, citing nebulous "legal concerns" with the mostly symbolic gesture.

UPDATE: It's worse than I thought: according to Human Rights Watch, the Vatican actually reversed itself, leaving the United States entirely alone.

UPDATE #2: The same source indicates that Israel signed. So all you defenders of "Judeo-Christian morality" can go Cheney yourselves.

The Big Lie

Quin Hillyer argues that limiting big government isn't just a good principle for Republicans, but historically has been good politics for them as well. He proves his point through the brilliant argumentative strategy of (a) defining "big government" only to encompass things that conservatives dislike (no critique of the partial-birth abortion ban here!), (b) excluding all counter-examples, like the 2000, 2002, and 2004 elections where George W. Bush was specifically running on big government conservatism, as outliers, and (c) making believe that Republican losses which clearly stemmed from other factors are really a result of having too loose a grip on the purse-strings. Republicans didn't lose in 1998 because they looked like crazed maniacs pursuing a broadly unpopular impeachment investigation which was the biggest political news story in a decade. No, the problem was they relaxed spending constraints in order to keep moderate GOP representatives on board! I only missed the scoop because I'm tainted by beltway-insiderism.

My understanding of the reality is that (a) Americans are opposed to "big government" in the abstract and (b) they, for all practical purposes, support every specific manifestation of big government with the exception of (other districts') pork -- which is a relatively insignificant portion of the federal budget anyway. As much as Hillyer might wish it were so, there is no proof that voting patterns in 2008 can be explained through broad-based disgust with the Medicare expansion. Indeed, if anything 2008 represented a broad repudiation of conservative purism -- there were several cases of Democrats winning districts they had no business competing in specifically because the local Republicans had replaced moderate incumbents with right-wing crazies (ID-01, MD-01, MI-07).

Now, is it true that different messages may work better in different places, and a principled small-government strategy might be a winner in some contested districts? Sure. But Hillyer's Palin-esque insistence that he's got the pulse of "real America" ("Washington might not have recognized it, but those of us outside the elite cultural echo chamber (I was in Mobile, Alabama, at the time) heard [disgust about big spending] not just among politicos but out on the street, quite regularly and quite vociferously.") is a sure-fire way to insure that the GOP remains a party that can only win in, well, Mobile, Alabama.

Hey, best of luck though.

It's Christmas Time. Again.

It's that time of year. The "holiday season", which for most people means Christmas. Even atheists and agnostics often celebrate Christmas. But of course, not me. I have Chanukkah, the ultimate holiday example of a battlefield promotion, which manages to be a) almost entirely mysterious to non-Jews and b) the most prominent Jewish holiday on the calendar at the same time.

I don't mind Christmas per se. Indeed, as far as I'm concerned it represents an excellent opportunity to get Chinese food, go see a movie, or hit the ski slopes while seeing virtually no crowds. But a surprisingly big stresser this year is how to respond when someone wishes me "Merry Christmas".

Of course, when unprompted my seasonal well-wish is "Happy Holidays". I've even thought of what I'll say if someone chides me for not saying "Merry Christmas": Ask them why they hate Protestants (What do you think "Christ's Mass" means?). But in many settings, someone will tell me -- with good intentions always -- "Merry Christmas"! And what do I do then?

Stephen Feldman, of course, would tell me that I should reply with a plea: "Please don't wish me a Merry Christmas!" But that seems quite churlish, and cuts against my adopted-Minnesotan instincts. Option two, which is what I tell myself I should do but never can bring myself to pull off, is to shoot back with a bright "Happy Channukah" -- matching sect for sect. But what can I say? I'm a very non-confrontational person. So generally, I just say "thanks -- you too."

But the whole ordeal annoys me. So I'm going to echo Feldman's plea. Happy holidays is the way to go. Jews are already making a concession in pretending that this is the holiday season, when of course the whole reason a podunk holiday like Chanukkah gets elevated to prime status is because this time of year is actually spectacularly unimportant to traditional Jewish ritual and practice (a point which was made by Justice Brennan in Allegheny County v. ACLU, 492 U.S. 573, 646 (1989) (Brennan, J., concurring and dissenting), and has since been ignored by every other person on earth). The least y'all could do is not shove it our faces, or the faces of the various other religious denominations that don't frankly care that Christians like celebrating the birthday of Christ months after it actually happened.

UPDATE: Phoebe Maltz independently explores why (some) Jews dislike Christmas. I think the self-deprivation angle is pretty spot on -- there's an ascetic's pride in separating yourself from the Christian majority specifically by denying yourself what by all accounts is the best day of the year for all a few (I grew up in Bethesda) of your friends. Self-denial turns into bitterness, bitterness turns into hate. Of course, I'd wager that Jews would be less outwardly hostile to Christmas if it wasn't so omnipresent that we had to perpetually and publicly opt out of it. The pride here is coming after the fall -- we can only be proud of standing against Christmas because the alternative is being miserable about it.

UPDATE #2: Another contribution, courtesy of Howard Wasserman, examines what Christmas specials Jewish children are allowed to watch. I actually don't know if I saw any of these.

Paul Weyrich Passes Away

Paul Weyrich, one of the key architects of the modern conservative movement, has died at 66. He had been the first President of the Heritage Foundation, and currently served as leader of the Free Congress Foundation.

Weyrich was the epitome of a principled right-winger. He was extraordinarily conservative -- there was no doubt about that. But he was not of the sort to sell his principles short for the sake of political expediency. It's a rare quality amongst modern conservatives, and one I can appreciate.

Support for the Michiganers

As a proud member of the University of Chicago Law School's class of 2011, it's rare that you'll see anything but contempt by me towards our compatriots at the University of Michigan.* But I'll make an exception for the Michigan 2L who was charged by police after reporting her assault in the course of engaging in sex work. She gives her story here. If ever there was a reason to legalize and regulate sex work, it's so stories like this didn't happen.

* This is, of course, a lie. Not only is UM a fine law school, but they were exceedingly nice to me when I applied and had perhaps the finest personal touch of any law school that admitted me -- a sense that I've heard verified from other law school applicants. I'm genuinely appreciative of that fact.

Epic Fail

University of Chicago Law School Faculty blog shuts down comments on its post explaining its new comments policy after being overwhelmed with ad hominem attacks. Yikes.

Class Mobility and the Original Position

I had this thought at 3 AM last night, so forgive me if it is utter gibberish.

One of John Rawls key contributions to American political theory was the idea of the "original position". Basically, it imagines citizens under a "veil of ignorance" -- who have no idea about their actual social position, identity, or even capabilities -- deliberating about how they want their society to be constructed. Rawls argues that persons in such a society would be risk-averse (they'd be worried they would be amongst the least well-off members of society), and hence they would evaluate their options based on the minimax rule: basically, trying to get the best possible outcomes for the least well-off. Specifically, Rawls believes that citizens would demand a system wherein:

1. Each citizen is guaranteed a fully adequate scheme of basic liberties, which is compatible with the same scheme of liberties for all others;

2. Social and economic inequalities must satisfy two conditions:

a) they are to the greatest benefit of the least advantaged (minimax rule);

b) they are attached to positions and offices open to all.

One can argue about what particular social arrangements would reflect these standards, but for Rawls they are pretty closely tied to the modern liberalism (with somewhat of a democratic socialist bent).

Of course, the original position is just a thought experiment: in the real world, people do know their capabilities and do know their social position, and their political demands are reflected accordingly. But (and this is what I thought of last night), we can at least somewhat approximate the conditions of the original position along axes where there is significant social mobility. For example, think of class. In a society where there is a lot of class mobility (both upwards and downwards), people kind of are under a veil of ignorance, because even if they know their current position, they can credibly claim ignorance as to where they will be in a year, or two, or five. If Rawls is correct, we'd expect persons who meet that description to push politically for policies that roughly approximate those he believes will flow from the original position.

The problem is that most societies and most identities aren't that mobile. I'm pretty secure in my identity as White. There isn't much of a possibility that next year I'll become Black, and so I have no incentive to be risk-averse as to what happens to Black people, since I know it will happen to me. Even identities which are more amenable to change, such as religion, wouldn't fit, because most religious adherents -- even those who eventually convert -- don't imagine themselves as being in a permanent state of flux moving between religious affiliations.

An exception might be class. In the United States, there is a solid opportunity for upward class mobility amongst the White middle class, but very little downward class mobility. But the Black middle class is a different story. It is notoriously vulnerable to economic shocks -- "one paycheck away from disaster" -- and thus can credibly claim to be "ignorant", in a Rawlsian sense, to their permanent economic status.

Hence, we construct a thesis: If Rawls is correct, we would expect that the politics of the Black middle class, at least along class issues, to be relatively close to what Rawls would expect to flow from the original position, compared to the "control" of the relatively less mobile White middle class. And if we think Rawls is right that the original position provides a good template for ordering society, then it would also follow that we should give substantial weight to the political preferences of the Black middle class when making decisions about economic distribution.

The second claim is of course a matter of opinion. But the first I suspect would be empirically defensible (though I'd be interested to see someone actually to the legwork here). I'm pretty sure that the Black middle class is significantly more liberal than its White peer group, particular amongst economics, and particularly in terms of assistance to the poor. This would imply that the risk-aversion Rawls predicts is shining through -- knowing that they could become poor with frightening ease, the Black middle class seeks to create social structures that minimize that disadvantage.

Now, there are problems with this model. First, Whites are less downwardly mobile, but are they more upwardly mobile than the Black middle class? And if so, what does that mean (I'm not sure they are more upwardly mobile, but even if they are "poor + middle class" represents a bigger proportion of the American economic experience than "middle class + rich"). Second, Blacks might be more prone to protect the poor for reasons other than risk-aversion -- they might (and in fact are) more likely to have friends and relatives amongst the ranks of the poor, which could affect preference formation. Third, there is an obvious difference between "ignorance of one's social position" and "knowledge that one's social position is prone to change", which could exert an impact -- most notably, the latter position might over-privilege policies which either protect against downward mobility or provide greater resources to families undergoing class transitions.

But even still, I think there might be a there here. Any thoughts?

Return of the Tab Dump

Travel means falling behind on my tabs. Here are some things that caught my eye:

Don't mess with Valerie Jarrett.

The Agricultural Secretary is Iowa Gov. Tom Vilsack. Although slightly better than some alternatives (namely, former Rep. Charlie Stenholm), I know Ezra Klein won't be thrilled to get someone who will continue our focus on the corporate-ag side of things, rather than get us looking at sustainable and intelligent food policy.

Stop the presses! Christian organizations hate governmental support for religion when the religion isn't Christianity (see also). The irony is that the putative "church/state violation" the Thomas More Center is whining about wouldn't qualify under even the most stringent separationist doctrine. A doctrine which, it can't be emphasized enough, the TMC normally loathes when they're not being shameless hacks. Also worth noting: the argument the TMC is pressing is one that, if successful (it won't be) would be lethal to the equalization of minority faiths in American culture.

Sen. Norm Coleman (R-MN), who may or may not have been elected to another term, has lawyered up in response to recent corruption allegations.

Pastor Rick Warren didn't think torture was worth discussing in his meetings with President Bush.

Jackson was a Canary

CNN is reporting that Rep. Jesse Jackson, Jr. (D-IL), who had come off looking bad in the wake of the Illinois senate scandal, actually had been an informant for the FBI on Gov. Blagojevich for several years (though not on this particular case). That is interesting, and gives new credence to Jackson's furious denials that he acted at all untoward during this ordeal. It would be rather bizarre, after all, for Jackson to participate in corrupt dealings with a man he knew the FBI was taking interest in. Then again, it was kind of bizarre that Blagojevich tried to sell a Senate seat even as he know he was in the middle of (separate) corruption investigation.

Still, I'd like to see Rep. Jackson vindicated, both because I prefer fewer corrupt politicians to more, and because Republicans have gained way too much pleasure labeling Rep. Jackson as a slimeball.

Back to Reality

I got back to DC today. The astute among you will deduce this means I finished my law school exams, and with them, my first term of law school. Huzzahs are in order! Now, if only I could find a job. Anyone who has any great summer jobs for a hotshot law student, please feel free to let me know about them.

Who's Ready for Some Football?

I'm not well-versed enough in college football to know if this is fair analysis by the LGM crowd. But I do know that the lack of Black coaches in D-I football is a long-standing problem, and one the NCAA has bent over backwards to avoid correcting. LGM's story is about the coaching moves by Auburn University, which just fired Tommy Tuberville after a disappointing 5-7 2008 season. Tuberville, prior to that, had gone 42-9 over the past four seasons. Still, college football is tough business -- a bad season at a football crazy school like Auburn can give you the yank. Okay, they ask, but why does Auburn choose to hire Gene Chizik (last two seasons: 5-19 at Iowa State) over Turner Gill (13-12 in his last two years at Buffalo -- but this a school that went 2-10 his first year and whom he just lead to a first-ever MAC championship and first bowl appearance in school history)? College football in general, and deep south schools like Auburn in particular, are infected with good ol' boy networks, and Gill is Black. (In fairness to southern schools, Gill also was passed over for a head coaching job by Syracuse, who elected to hire someone who had never been a head coach before at all).

Richard Lapchick, writing for ESPN, argues for college football to institute its equivalent of the "Rooney Rule", requiring colleges with open coaching positions to at least interview one candidate of color. Lapchick names his version of the rule the "Robinson Rule", after former Grambling State coach Eddie Robinson, at one point the winningnest coach in college football history who nevertheless was never even offered an interview with a Division I-A program (Grambling State is D-I-AA). It wouldn't have helped Gill, as he was interviewed and ignored in favor of candidates which, on face at least, seem to have far weaker credentials. But with the number of Black head coaches in D-I football actually falling dramatically over the past decade or so, something needs to be done.

Harold Wasserman wonders about the Title VII and 14th Amendment considerations in all this. To my untutored eye, this is United Steelworkers of America v. Weber all over again, right up to Justice Blackmun and Judge Wisdom's analogy to walking a "high tightrope without a net beneath them." The NCAA's hiring practices are so sharply slanted against Black coaches as to invite a Title VII challenge (which apparently is being considered), but some of the more stringent interpretations of equal protection and anti-discrimination would prevent the organization from taking the fairest and most practicable options available to start remedying the disparity.

A Literal Eye for an Eye

A woman who was blinded by acid thrown by a male stalker has successfully convinced an Iranian court to blind the man in retaliation.

An Iranian woman, blinded by a jilted stalker who threw acid in her face, has persuaded a court to sentence him to be blinded with acid himself under Islamic law demanding an eye for an eye.

Ameneh Bahrami refused to accept "blood money." She insisted instead that her attacker suffer a fate similar to her own "so people like him would realize they do not have the right to throw acid in girls' faces," she told the Tehran Provincial Court.
[...]
The three-judge panel ruled unanimously on November 26 that Majid should be blinded with acid and forced to pay compensation for the injuries to Bahrami's face, hands and body caused by the acid.

That was what she had demanded earlier in the trial. But she did not ask for his face to be disfigured, as hers was.

"Of course, only blind him and take his eyes, because I cannot behave the way he did and ask for acid to be thrown in his face," she said. "Because that would be [a] savage, barbaric act. Only take away his sight so that his eyes will become like mine. I am not saying this from a selfish motive. This is what society demands."

Look, obviously I don't support eye gouging as legitimate judicial punishment. Indeed, there are many aspects of Iran's judicial system that I dislike -- find quite savage, to tell the truth. But the least we can do is ask that their brutal demands are applied even-handedly, and here it appears they are. One of the key liberal prescriptions for ridding a society of oppressive practices is insuring they're applied across the board. If the majority has to contend with what they impose upon the minority, they're likely to have a sudden flash of sympathy and tolerance. In too many countries across the world, throwing acid at women who refuse to submit to male patriarchal demands -- whether it's refusing to marry or simply going to school -- is considered legitimate practice. It is a practice that deserves to be met by the full weight of the judicial system -- whatever that system is.

UPDATE: Jill of Feministe writes as well. I want to clarify that I don't disagree with her -- the punishment being imposed here is barbaric. But my point is that this is hardly distinct from Iran's judicial system as a whole. What makes this case important is that Iran is treating this crime as "seriously" as it does other violations of human personhood. Obviously, the manner in which Iran responds to "serious" crimes is in violation of any modern standard of human decency. I just don't think that it's any more problematic when Iran starts doing these sorts of things to penalize anti-woman activity as when they do similar things to penalize women themselves.

Didn't You Hear Me? I Said UNBUNDLING!

I've always wondered if, in advertising, people simply modulate their tone to make perfectly normal or meaningless things sound wonderful or scary. If you surround "contains monochromaglutimate!" with enough colors and starbursts, I'm going to assume it's a good thing, even though I have no idea exactly what it is I'm getting. And the reverse is true -- a sinister tone can make even utterly benign actions seem like the worst form of evil and malice on the planet.

Though I can't hear his tone of voice, I'm pretty sure that is what's going on in this Ross Douthat post, where he takes issue with the claim that only 3% of Planned Parenthood's expenditures go towards abortions. Now, before we go any further let's remember what we're arguing about. The reason this 3% number is coming up is defense against those who want to strip Planned Parenthood of public funding. Opponents of that proposal are noting that doing that will have the primary effect of reducing Planned Parenthood's ability to give STD exams, distribute contraceptives, and provide other rather generic but important woman's health initiatives.

In his rejoinder, Douthat links to a Weekly Standard piece by Charlotte Allen which wrote the following:

The 3 percent pie slice in the 2005-06 financial report, representing 264,943 abortion customers served, can only be described as deliberately misleading.

One way Planned Parenthood massages the numbers to make its abortion business look trivial is to unbundle its services for purposes of counting. Those 10.1 million different medical procedures in the last fiscal year, for instance, were administered to only 3 million clients. An abortion is invariably preceded by a pregnancy test--a separate service in Planned Parenthood's reckoning--and is almost always followed at the organization's clinics by a "going home" packet of contraceptives, which counts as another separate service. Throw in a pelvic exam and a lab test for STDs--you get the picture. In terms of absolute numbers of clients, one in three visited Planned Parenthood for a pregnancy test, and of those, a little under one in three had a Planned Parenthood abortion.

Let's push aside that my eyeball math translates Allen's figures to "11% of Planned Parenthood clients have an abortion" -- still leaving a massive 89% of customers that don't have one. What Douthat and Allen's argument boils down to is that we shouldn't count many of PP's health services (or should "bundle" it under the metric of "abortion") because many of the sluts women who receive the services also receive abortions. But unless you think that these women are somehow undeserving of gynecological or reproductive health care because they had an unwanted pregnancy and are seeking an abortion, there is no reason to find this remotely problematic. Indeed, if it wasn't for Douthat's clear yet inexplicable agitation, it wouldn't have even occurred to me that this type of accounting would be anything but above board.

One might note that women currently carrying an unplanned pregnancy might be one of the groups most in need of STD exams, contraceptives, and other reproductive health accessories, and laud the fact that PP is providing services to this segment of the population. But Douthat and Allen are essentially arguing the reverse -- they're saying that any reproductive health service provided to a woman seeking an abortion should be grouped under "abortion services" and thus (in the putatively pro-life worldview) not count as a harm if it is cut.

Look at this way. Suppose there was a proposal to cut PP's funding by the precise amount they spend on "abortion". So liberals would say: "that means cutting 3% of PP's budget -- the amount the spend on abortion". Douthat and Allen would argue that number is too small -- it doesn't include pregnancy tests for women seeking abortions, it doesn't count contraceptives given to these women, it doesn't count STD tests administered, etc., etc.. Add the costs of those procedures in, and then you get the dollar amount that we should be cutting. The clear upshot of that argument, though, is that it is not a problem -- indeed, it'd be a good thing -- if Planned Parenthood were not able to provide these services. Women who want abortions, Douthat is saying, don't deserve to be screened for STDs. That right, I imagine, is reserved for women who are not baby-killing whores.

Douthat is correct to argue that the raw number of abortions Planned Parenthood provides is enough for someone who finds abortion to be an unquestionable moral evil to justify withholding funding. That's true irrespective of what proportion of PP's resources are devoted to woman's health outside of abortion -- it's a deontological claim based off Planned Parenthood's clear participation in something many people consider to be immoral. But what is illegitimate -- what is, in fact, fundamentally "pro-herpes" -- is arguing that giving an STD exam isn't "really" part of woman's health because the woman also received an abortion. That's nothing more than dressed up slut-shaming, and it isn't improved just because Douthat and Allen hyperventilate and call accurate reporting "massaging the numbers".