Sorry for the unexplained absence. I've been running around the past two days pulling sources for a cite-check. Ah, ain't law review grand?
Also, interviews are over!
Friday, August 28, 2009
Wednesday, August 26, 2009
Safe Haven
I want to dissent briefly from this AAB post, deriding the notion that we need to prevent Afghanistan from becoming an "al-Qaeda sanctuary":
It is certainly true that terrorists don't need a haven like Afghanistan in order to carry out attacks. But it does make their lives a ton easier. Part of this goes back to some of my early observations about statecentrism and how it can distort our outlook on the problem of terrorism. The problem is less friendly versus unfriendly states than it is functional versus dysfunctional states. An unfriendly but functional state (such as Iran) can still be dealt with via the normal tools of statecraft, which is why I don't think they're as significant a threat in terms of spawning terror towards America as they are sometimes labeled. Places like Afghanistan (and, say, Somalia), which either have collapsed or are at risk for doing the same, don't provide that option, and that's dangerous.
It's always better to at least have the option of domestic enforcement as a check against the growth of terror infrastructure. That doesn't mean it will always work, but it is nearly always better than not having it. In this respect, trying to convert Afghanistan into a stable, functional state with control over its borders and a monopoly on violence is almost definitely reasonably related to the fight against terrorism.
There’s nothing unique about Afghanistan that means that Al Qaeda can plot attacks from Afghanistan and no where else in the world. (Indeed, a significant portion of 9/11 seems to have been plotted in Germany). Even Stephen Biddle — who strongly advocates for the US to remain at war in Afghanistan — admits that preventing Al Qaeda from having a sanctuary in Afghanistan isn’t a very sensible argument.
It is certainly true that terrorists don't need a haven like Afghanistan in order to carry out attacks. But it does make their lives a ton easier. Part of this goes back to some of my early observations about statecentrism and how it can distort our outlook on the problem of terrorism. The problem is less friendly versus unfriendly states than it is functional versus dysfunctional states. An unfriendly but functional state (such as Iran) can still be dealt with via the normal tools of statecraft, which is why I don't think they're as significant a threat in terms of spawning terror towards America as they are sometimes labeled. Places like Afghanistan (and, say, Somalia), which either have collapsed or are at risk for doing the same, don't provide that option, and that's dangerous.
It's always better to at least have the option of domestic enforcement as a check against the growth of terror infrastructure. That doesn't mean it will always work, but it is nearly always better than not having it. In this respect, trying to convert Afghanistan into a stable, functional state with control over its borders and a monopoly on violence is almost definitely reasonably related to the fight against terrorism.
What Makes This Song New?
The artist formerly known as Feddie seeks to defend his anti-stare decisis views (via).
Is he serious? If Feddie's criteria for when to respect precedent is whether "the reasoning/holding of that case is based on a plausible interpretation of the constitutional text at issue," then both Plessy and Dred Scott are simply terrible examples. Both are perfectly plausible interpretations of the constitutional text, structure, and especially history. The outcomes are not the only plausible outcomes, but legally they are not "nonsense on stilts". What those cases have in common is that they are both morally abhorrent (like, to a different degree, Bowers was). Which is why Feddie cites them. But that logic is the definition of impermissible "policy-making" as per Feddie's final paragraph.
This is the problem with how conservative judicial philosophy is actually practiced. For all its protestations of objectivity and neutrality, the policy tails completely wag the theoretical dog. Anyone who tries to sell you on the notion that Dred Scott was completely disconnected from "the law" is selling you the legal equivalent of the Brooklyn Bridge. There are plenty of grounds -- indeed, plenty of legal grounds -- to critique Dred Scott. But claiming it violates some mythical "just the facts, ma'am" vision of law is not one of them. Pretending otherwise is what happens when you, well, think the Constitution enshrines preferred policy preferences.
The issue for many originalists, of course, is not whether a prior decision is “correct,” but whether the reasoning/holding of that case is based on a plausible interpretation of the constitutional text at issue. If it is, and a substantial body of case law has been built upon the foundation of this decision, then it is perfectly reasonable for a justice to let that precedent stand as is (even if that justice would have ruled differently as a matter of first impression). But this type of “hard” originalist case is not at the center of the “stare decisis” debate. The question, plainly put, is this: At what point does it cease to matter that a prior Supreme Court decision is nonsense on stilts?
For those of us in the (Clarence) Thomas Camp, the answer is: Never. A Supreme Court decision that has no basis in the text, history, or structure of the Constitution is always and forever a judicial abomination, no matter how much time passes (e.g., Dred Scott v. Sandford, Plessy v. Ferguson). For the Burkean originalist (see, e.g., Scalia), the answer is: It depends on whether the line of jurisprudence is no longer controversial (i.e., it has essentially become woven into the fabric of the Constitution—whatever in the heck that means). Finally, for the living constitutionalist, the answer is: It depends on whether the decision in question enshrines into the Constitution a preferred policy preference (e.g., Roe v. Wade=Stare decisis is sacrosanct!; Bowers v. Hardwick= Stare decisis is fo’ suckas). In comparing the foregoing approaches to constitutional interpretation, it doesn’t take a law degree to recognize which one is concerned with, well, actual interpretation of the relevant text.
Is he serious? If Feddie's criteria for when to respect precedent is whether "the reasoning/holding of that case is based on a plausible interpretation of the constitutional text at issue," then both Plessy and Dred Scott are simply terrible examples. Both are perfectly plausible interpretations of the constitutional text, structure, and especially history. The outcomes are not the only plausible outcomes, but legally they are not "nonsense on stilts". What those cases have in common is that they are both morally abhorrent (like, to a different degree, Bowers was). Which is why Feddie cites them. But that logic is the definition of impermissible "policy-making" as per Feddie's final paragraph.
This is the problem with how conservative judicial philosophy is actually practiced. For all its protestations of objectivity and neutrality, the policy tails completely wag the theoretical dog. Anyone who tries to sell you on the notion that Dred Scott was completely disconnected from "the law" is selling you the legal equivalent of the Brooklyn Bridge. There are plenty of grounds -- indeed, plenty of legal grounds -- to critique Dred Scott. But claiming it violates some mythical "just the facts, ma'am" vision of law is not one of them. Pretending otherwise is what happens when you, well, think the Constitution enshrines preferred policy preferences.
Tuesday, August 25, 2009
Taking Sides
Rep. Peter King (R-NY) is angry at Attorney General Eric Holder for daring to do his job and investigate potential violations of the law:
There are two sides to this conflict. One side is defending democracy, liberty, and rule of law, and the other side is trying to destroy it. And I am quite sure where Attorney General Holder and Rep. King line up, respectively.
"It's bullsh*t. It's disgraceful. You wonder which side they're on," the Long Island Republican told Politico Tuesday.
There are two sides to this conflict. One side is defending democracy, liberty, and rule of law, and the other side is trying to destroy it. And I am quite sure where Attorney General Holder and Rep. King line up, respectively.
Twirl them Hips Round and Round(up)....
Today's roundup brought to you by Lady Gaga's "Just Dance", official soundtrack of OCI 2009.
* * *
Jena Six defendant gets out of Jena, thrives in New York.
The end of the all-White suburb? Wasn't that supposed to happen after Brown (but we're post-racist!)?
Kevin Drum asks how we counter the cranks, when cranks have access to far more megaphones than ever before? The only answer I can think of is demanding more aggression out of the mainstream media. If every time a Republican repeated the vile "death panels" lie, the Washington Post wrote a headline: "Republicans repeat 'death panels' lie", we might see some changes. Might.
Postbourgie argues that "Mad Men" may be fruitful ground for feminist analysis but it is not itself feminist.
Seth Freedman essentially agrees the Swedish "organ harvesting" story about Israel is rubbish, but nonetheless thinks the real wrongdoers are all the whiners who are calling it "anti-Semitic" (because it attacks Israel, y'see, not Jews). Absent from his column is the fact that the Swedish article "hooked" its coverage off the fact that several Jews (not Israelis) had been accused of organ-smuggling. He fails the test. (H/T).
TULIP reports on AFT efforts to assist Palestinian teachers' unions.
I'm doing guest boxing blogging at The Queensberry Rules this week. Two posts are already up: the first, on political judging and the boxing community's complacency, and the second, a more general stream of consciousness set of ideas.
The Chamber of Commerce wants to put global warming on trial, saying it'd be the Scopes trial of the 21st century. Matt Yglesias notes a couple reasons why this is idiotic, starting with the fact that evolution lost at the Scopes trial (the ruling was reversed on a technicality on appeal), as well as the general observation that 12 random lay folk aren't exactly qualified to resolve technical scientific disputes. I'd add this: I thought we all agreed that the fact we even had to have a Scopes trial was pretty disgraceful, no?
* * *
Jena Six defendant gets out of Jena, thrives in New York.
The end of the all-White suburb? Wasn't that supposed to happen after Brown (but we're post-racist!)?
Kevin Drum asks how we counter the cranks, when cranks have access to far more megaphones than ever before? The only answer I can think of is demanding more aggression out of the mainstream media. If every time a Republican repeated the vile "death panels" lie, the Washington Post wrote a headline: "Republicans repeat 'death panels' lie", we might see some changes. Might.
Postbourgie argues that "Mad Men" may be fruitful ground for feminist analysis but it is not itself feminist.
Seth Freedman essentially agrees the Swedish "organ harvesting" story about Israel is rubbish, but nonetheless thinks the real wrongdoers are all the whiners who are calling it "anti-Semitic" (because it attacks Israel, y'see, not Jews). Absent from his column is the fact that the Swedish article "hooked" its coverage off the fact that several Jews (not Israelis) had been accused of organ-smuggling. He fails the test. (H/T).
TULIP reports on AFT efforts to assist Palestinian teachers' unions.
I'm doing guest boxing blogging at The Queensberry Rules this week. Two posts are already up: the first, on political judging and the boxing community's complacency, and the second, a more general stream of consciousness set of ideas.
The Chamber of Commerce wants to put global warming on trial, saying it'd be the Scopes trial of the 21st century. Matt Yglesias notes a couple reasons why this is idiotic, starting with the fact that evolution lost at the Scopes trial (the ruling was reversed on a technicality on appeal), as well as the general observation that 12 random lay folk aren't exactly qualified to resolve technical scientific disputes. I'd add this: I thought we all agreed that the fact we even had to have a Scopes trial was pretty disgraceful, no?
Swedes are Morons
Even when they aren't spreading blood libels: "Chlymedia helps young men feel more 'manly': Swedish study.
Taketh Away
The WNBA's Washington Mystics aren't fans of the kiss-cam. The reason? It might show teh dreaded lesbians:
Don't even think about being blinkered by Ms. Johnson's "explanation". I am highly skeptical that there are any more kids at a WNBA game than there are at, well, an NBA game. I've seen a kiss cam before at NHL hockey games (hell, I've even -- once -- seen two men kiss on one of them). The issue isn't the children. At "best", they're not protecting the children from smooches, they're protecting them from lesbian kisses.
The WNBA, of course, may only still be alive because of lesbian support. The money is green enough to take, but not enough to acknowledge. And that's shameful.
"We got a lot of kids here," Sheila Johnson, the Mystics' managing partner, said when asked last week at a game. "We just don't find it appropriate."
Understood is that women's professional basketball has two major fan bases: dads and daughters, and lesbians. The KissCam issue, frivolous on its surface, puts the effort to cater to both audiences squarely at odds.
Don't even think about being blinkered by Ms. Johnson's "explanation". I am highly skeptical that there are any more kids at a WNBA game than there are at, well, an NBA game. I've seen a kiss cam before at NHL hockey games (hell, I've even -- once -- seen two men kiss on one of them). The issue isn't the children. At "best", they're not protecting the children from smooches, they're protecting them from lesbian kisses.
The WNBA, of course, may only still be alive because of lesbian support. The money is green enough to take, but not enough to acknowledge. And that's shameful.
This is New Jersey
A conservative pollster has GOP gubernatorial candidate Chris Christie's numbers crashing after a series of damaging revelations have given him a full news cycle of bad press.
This is what always happens in New Jersey. Let's be clear: NJ voters do not like incumbent Jon Corzine (D). In fact, NJ voters tend to harbor a dislike for most of their statewide incumbents (mostly Democrats). But the entire state is so twisted from top to bottom that it will be incredibly difficult for Republicans to find a candidate who can actually capture disaffected votes. Instead, it's a pox on both their houses -- but since New Jersey leans liberal, Democrats win the tie-breaker.
I don't mean to imply Corzine is out of the woods yet -- his numbers are a fair flight worse than you virtually ever see for an incumbent this side of Bob Taft. Not to mention this is but one poll, with some legitimate methodological issues to grapple with. But Republicans may have to prepare for yet another Lucy-and-the-football experience in the Garden State.
This is what always happens in New Jersey. Let's be clear: NJ voters do not like incumbent Jon Corzine (D). In fact, NJ voters tend to harbor a dislike for most of their statewide incumbents (mostly Democrats). But the entire state is so twisted from top to bottom that it will be incredibly difficult for Republicans to find a candidate who can actually capture disaffected votes. Instead, it's a pox on both their houses -- but since New Jersey leans liberal, Democrats win the tie-breaker.
I don't mean to imply Corzine is out of the woods yet -- his numbers are a fair flight worse than you virtually ever see for an incumbent this side of Bob Taft. Not to mention this is but one poll, with some legitimate methodological issues to grapple with. But Republicans may have to prepare for yet another Lucy-and-the-football experience in the Garden State.
Monday, August 24, 2009
The Clash
I think this article in The Forward, on the ongoing volleying between Israel and human rights NGOs over what happened in Operation Cast Lead, is perhaps the best single accounts I've read. It does a great job of cutting through BS, calls both sides to the carpet when need be, and meticulously focuses on the actual issues at hand, rather than petty name-calling. Highly recommended.
Sunday, August 23, 2009
Best Study Ever?
Canadian researchers try to discover the best way to defeat a zombie uprising. The answer: hit them hard, fast, and often. And mercy (in the form of capture or treatment) is for the weak. Tim Cavanaugh thinks the professors are too grim -- but they have mathematical modeling on their side. Mathematical modeling!
Daniel Drezner, by contrast, analyzes the zombie threat from a variety of International Relations perspective. To my eye, it's way too much diplomacy and not enough scenes from "Resident Evil" -- but that's just me.
Here is a link to the original study.
Daniel Drezner, by contrast, analyzes the zombie threat from a variety of International Relations perspective. To my eye, it's way too much diplomacy and not enough scenes from "Resident Evil" -- but that's just me.
Here is a link to the original study.
Origination
David Bernstein posts a squib on Palestinians who are "obviously of African descent." The unspoken subtext is that they aren't "real" Palestinians.
I hate this. I hate this in all of its forms. I hate it when folks try and tell me that Jews don't really belong in the Middle East because they actually descend from Khazars. I hate it when people argue that Palestinians aren't a "real" people because they didn't have national ambitions until relatively recently. I hate it when Israelis are accosted as inauthentic because they have the "wrong" eye color. I hate it when people seem to think this entire conflict is properly resolved via an impossible historical inquiry into who got to the Holy Land "the firstest with the mostest".
It all just strikes me as incredibly primitive -- based on old-school notions of ancestral ties and bloodrights and purity that have no place in modern discussions. I'm a Levi, so I assume I descend from relatively deep Israelite strands. But who knows -- maybe there are some European converts in my family tree. So what? And if some persons with African blood identify as Palestinian and are so recognized by the Palestinian community -- good for them! It is sordid business, this attempt to police each other's racial authenticity for our own transparently political ends.
UPDATE: As per the comments, Professor Bernstein wishes to inform everyone that he does not, in fact, believe that origination has any legitimate bearing on the authenticity of one's national identity. The post he linked to put "Palestinians" in scare quotes, hence my confusion. Of course, Prof. Bernstein is not obligated to agree with every word of each post he links to -- though by the same token, he can't be too surprised when, absent a caveat, people assume he does agree with them (assuming the link was positive, as it was here).
However, that assumes that somewhere on the internet an indication of a contrary opinion by the author hadn't been expressed, and in this respect Prof. Bernstein would also like to draw attention to my inexcusable failure to do due diligence. For if I had only bothered to read the 19th comment from a post he wrote over two years ago, I would not have made the above error. I can only hope my readership forgives me for this horrific lapse in personal responsibility, and grants me another chance to prove my self-worth.
In any event, I'm glad that Prof. Bernstein and I are in agreement that the subtext of the linked-article is repellent, and I am equally glad that one less person than I had assumed bought into it. It is, after all, always a good thing when one finds one has overestimated the amount of wrongdoing in the world.
I hate this. I hate this in all of its forms. I hate it when folks try and tell me that Jews don't really belong in the Middle East because they actually descend from Khazars. I hate it when people argue that Palestinians aren't a "real" people because they didn't have national ambitions until relatively recently. I hate it when Israelis are accosted as inauthentic because they have the "wrong" eye color. I hate it when people seem to think this entire conflict is properly resolved via an impossible historical inquiry into who got to the Holy Land "the firstest with the mostest".
It all just strikes me as incredibly primitive -- based on old-school notions of ancestral ties and bloodrights and purity that have no place in modern discussions. I'm a Levi, so I assume I descend from relatively deep Israelite strands. But who knows -- maybe there are some European converts in my family tree. So what? And if some persons with African blood identify as Palestinian and are so recognized by the Palestinian community -- good for them! It is sordid business, this attempt to police each other's racial authenticity for our own transparently political ends.
UPDATE: As per the comments, Professor Bernstein wishes to inform everyone that he does not, in fact, believe that origination has any legitimate bearing on the authenticity of one's national identity. The post he linked to put "Palestinians" in scare quotes, hence my confusion. Of course, Prof. Bernstein is not obligated to agree with every word of each post he links to -- though by the same token, he can't be too surprised when, absent a caveat, people assume he does agree with them (assuming the link was positive, as it was here).
However, that assumes that somewhere on the internet an indication of a contrary opinion by the author hadn't been expressed, and in this respect Prof. Bernstein would also like to draw attention to my inexcusable failure to do due diligence. For if I had only bothered to read the 19th comment from a post he wrote over two years ago, I would not have made the above error. I can only hope my readership forgives me for this horrific lapse in personal responsibility, and grants me another chance to prove my self-worth.
In any event, I'm glad that Prof. Bernstein and I are in agreement that the subtext of the linked-article is repellent, and I am equally glad that one less person than I had assumed bought into it. It is, after all, always a good thing when one finds one has overestimated the amount of wrongdoing in the world.
Cuba Nixes Women's Boxing
Cuba has, bar none, the best amateur boxing program in the world. In part that's because they've done the hard work of building up a top-flight program, in part it's because their top talent is forbidden from leaving the country and has to defect under cover of darkness if they want to turn pro. Six of one, one half of the other. In any event, after Olympic officials announced the addition of women's boxing to the lineup -- the last sport not to be offered to both men and women [update: in the Summer Olympics] -- Cuban officials have announced that they will not be fielding a team. The reason? They're sexist:
In spite of everything, there is some mythologizing of Cuba by the (mostly European) far-left as having some admirable progressive qualities on human rights. This should be laughable -- Cuba is an oppressive dictatorship and always has been. But this is revealing because it doesn't have anything to do with the exercise of political control. It's just a manifestation of illiberal attitudes towards women, pure and simple.
"We have no plans at the moment to participate in any international events because we don't think the sport is appropriate for women," Jose Barrientos said in comments reported on Friday by Cuba's official news service, Prensa Latina [President of the Cuban Boxing Federation].
[...]
"Cuban women should be showing off their beautiful faces, not getting punched in the face," said Pedro Roque, a top coach of Cuban boxers.
In spite of everything, there is some mythologizing of Cuba by the (mostly European) far-left as having some admirable progressive qualities on human rights. This should be laughable -- Cuba is an oppressive dictatorship and always has been. But this is revealing because it doesn't have anything to do with the exercise of political control. It's just a manifestation of illiberal attitudes towards women, pure and simple.
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