The "Constitutional" Option

With all due respect to Jack Balkin, who is a fine scholar, the new claim that the debt ceiling might be unconstitutional under Section IV of the 14th Amendment ("The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.") strikes me as akin to the right-wing's novel commerce clause claim against the individual mandate. That is, the debt ceiling, like the individual mandate, was seen as incontestably constitutional right up until the moment that it became politically expedient for it not to be. At which point, suddenly, controversy! Forgive me for being skeptical of the development.

Now, maybe the debt ceiling is different because -- until now -- nobody had been dumb enough to make a credible threat to actually follow through on defaulting the American economy. So it never came up until now. Desperate times call for desperate measures and all that. Still, I'm very dubious.

The Cultural Cognition of Climate Change

A new paper coming out of Yale's Cultural Cognition project (led by Professor Dan Kahan) is getting some blogger buzz. Unfortunately, it's for all the wrong reasons.

Folks are seizing on the finding that more scientifically-literate respondents are less likely to believe that Global Warming represents a serious threat. This is true, but overstated -- the difference between high- and low-literacy respondents is extremely small. Kahan et al use it to refute the presumption that greater scientific education is likely to cause the average person's views on global warming to converge on the scientific consensus on the matter, but that's all.

Rather, the real action is that increased scientific-literacy increases the divergence in opinions on the matter amongst members of groups whose narratives predispose them to look with more favor on the scientific-consensus about climate change (that it is dangerous) versus those whose cultural narratives instruct them to view that consensus skeptically. Over the course of several experiments, Kahan et al have divided persons along two axes -- hierarchical/egalitarian, and individualist/communitarian. Persons with egalitarian, communitarian outlooks -- hypothesized to be favorable to believing claims of dangerous climate change -- were more likely to say climate change is dangerous, and this belief rose moderately as scientific literacy increased. Persons with hierarchical, individualist outlooks -- forecast to be skeptical of climate change data -- were accordingly less likely to view it as dangerous, and this risk-assessment dipped sharply as scientific-literacy increased (that the hierarchical, individualist risk assessment fell by considerably more than the egalitarian, communitarian one rose is what accounts for the small negative association between levels of scientific literacy and belief in the dangers of global warming). This is the main conclusion of the paper -- not about how scientific literacy impacts one's assessment of climate change risk (at least not directly), but whether scientific-literacy diminishes the salience of one's prior social narratives. And the answer was not only, "no", it was "no, increased scientific literacy enhances the polarizing impact of these priors."

This finding is part of a larger set of conclusions formed through the Cultural Cognition project's research -- to wit, that increased information does not create consensus amongst politically polarized groups (by directing everyone to the "right" outcome), but rather fosters divergence as each side is able to access bits of fact and information that help them create a coherent narrative that binds together their preferred value priors with experiential data. Discussing other research by Professor Kahan and his cohors, I wrote:

Providing additional facts and information doesn’t cause policy convergence, it causes policy polarization. The reason is that most fact patterns contain narratives, inferences, and interpretations which plausibly can be deployed to support diverse policy positions. Facts, alone, can never by themselves tell us anything about fundamentally value-based policy judgments, even under ideal deliberative conditions. People accordingly interpret the information they receive in manners which support their prior dispositions, only now they feel more comfortable in these beliefs because they have “facts” to back them up. Given this latent ambiguity, there is no incentive to agree, and lots of psychological incentives to latch on to friendly fact stories in order to preserve ones preexisting beliefs.

So persons already predisposed to believe in global climate change, upon gaining more information, have more access to bundles of facts and arguments that help buttress and amplify that belief. But persons predisposed to disbelieve in climate change, in turn, also have more access to arguments and facts that support that worldview as they become more informed. Presumably, less-informed voters -- while still likely to adhere to their predispositions, are more likely to stake a more relatively moderate path, as they have fewer narrative resources at their disposal to explain away counterarguments (and thus are more likely to admit some level of doubt in their beliefs).

There might be, in other words, an intractable barrier facing fact-based democratic policy-making in situations where the underlying policy question is normatively polarizing. The presumption was always that greater education -- greater grasp on the facts -- would overcome these divides as people discovered what the best policy option is. But Kahan's work has thrown a serious wrench in this presumption -- as it turns out, normative interpretation governs factual interpretation, not the other way around. At best, we could hope that direct experience might modify norms (if New York does end up under two feet of water, that might convince some climate change skeptics). But that's pretty drastic, and doesn't give us that much hope for normal policy disputes.

Polls Show Jewish Opinion of Obama Unchanged

A Gallup poll pegs Jewish support for President Obama at 60% -- 14 points higher than the general population, which is the typical margin. This figure was statistically unaffected (note the wide margin of error, however, due to the small sample size) by President Obama's May 19 Middle East policy speech which called for '67 based-borders in a two-state solution to the Israeli/Palestinian conflict.

Arm-chair analysis of Jewish voters tends to make some rather elementary mistakes about how Jews will think in the voting booth. Basically, the stock assumption behind GOP efforts to break into the Jewish voting bloc is that they are single-issue Israel voters. Which, by and large, isn't true -- polls consistently demonstrate that while Israel matters to many Jewish voters, it is subordinated to other issues -- the big ones all voters care about, like the economy and education.

Of course, there are Jewish voters for whom Israel is a more prominent voting issue. But for these voters, that greater attachment also comes with a more involved opinion on the matter. They don't just "support Israel", they have particular policy options or politicians they think are good or bad. So some might identify as Likudniks, but others might identify more with Kadima, or Labor, or Meretz. Whether or not that enhanced involvement translates to Republicans is not going to be dependent on how high Republicans dial up the volume on the "WE ARE PRO-ISRAEL" megaphone -- it will depend on the affinity between the Republican's specific policy agenda with respect to Israel, and that held by each individual Jewish voter. If one of these voters thinks that a two-state solution is critical and the United States needs to throw its weight around to make it happen sooner rather than later, obviously that won't help the GOP one bit.

With regards to Netanyahu in particular, Bibi has never been particularly popular amongst American Jews -- a lot Jewish voters who know a lot about Israel believe he's a nutjob, and this dates back to his first tenure as Prime Minister well before his spats with President Obama. There's no reason to suspect, in other words, that amongst high-information, high-passion Jewish voters, a battle between Obama and Netanyahu is one that Netanyahu would win.

Happy 4th of July!

"There is nothing wrong with America that cannot be cured by what is right with America." -- Bill Clinton.

The Insufficiently Downtrodden

Phoebe makes a good point on the nature of anti-Semitism and why it sometimes doesn't get the attention it deserves on the left:

[T]he reason liberals today aren't shouting from the rooftops about anti-Semitism is the same as why they weren't long ago: Jews aren't, or more accurately aren't viewed as, marginalized. Being on the left has always been about supporting the downtrodden, and since anti-Semitism is and always was about accusing Jews of being insufficiently downtrodden, there are only these rare moments when the obvious left-wing position is to get worked up about anti-Semitism - moments when anti-Semitism's on-the-ground influence is so great (think the Dreyfus Affair, the Holocaust) that thinking of Jews as victims becomes uncontroversial.
[...]
Anyway. Ideally those on the left would see that anti-Semitism is an odd kind of bigotry that surfaces the most when its victims seem to be doing the best, i.e. when they seem the least underdog-ish. And there's no reason understanding this wouldn't be compatible with more straightforward social-justice advocacy, including for the Palestinians.

One of the things I think is important to reiterate about anti-Semitism (or any -ism, really) is that it is inextricably connected to what one thinks Jews are owed. If one thinks the Jews already have too much -- too much wealth, too much power, too much influence, too much security -- then it will hardly seem like anti-Semitism to urge stripping it away from them. That will instead seem like a return to fairness (compare complaints about gays seeking "special rights").

This is in part why anti-Semitism can't be reduced to simple questions about malign intent -- if one honestly believes that Jews only deserve X, but that they have X + infinity, then one won't think one's desire to return Jews to X is malicious. Equal rights, not special rights. Nonetheless, whether that position is justifiable depends on the propriety of X itself -- and that's a normative question that exists quite independent of the good or bad faith of the proponent.

The Collaborator

Last week, the Wall Street Journal had a piece up on a prisoner being held by Hamas inside the Gaza Strip. Not Gilad Shalit, but rather, a man by the name of Mohamed Abu Muailek. Mohamed was a former member of a Fatah rocket unit in Gaza. But, after striking up a friendship online with an Tel Aviv computer enthusiast, he had a change of heart, and refused to fight.

Mohamed went further than merely expressing dissent: In the eyes of the omnipresent security services, he did something that would make him a potential or actual traitor. He had developed an online friendship with a young computer enthusiast from Tel Aviv. Mohamed the Palestinian had never met an Israeli, face-to-face. Dan the Israeli had never met a Palestinian. This contact with the "enemy" was deeply suspicious to paranoid Islamists committed to Israel's destruction.

Mohamed had felt increasingly uncomfortable about firing rockets into Israeli civilian areas while also having Internet chats with his Israeli friend. "It was such a contradiction. I had to choose, and I chose friendship, not violence," Mohamed told me as he hunched over his computer.

These twin facts -- that he refused to fire rockets into Israel, and that he had an admitted friendship with an Israeli -- led to his arrest by Hamas security services on accusations of being a collaborator. He is being held incommunicado, claims he has been tortured, and faces potential execution. The journalist who reported on this story himself was arrested and imprisoned for several weeks after traveling to Gaza in an attempt to testify on Mohamed's behalf.

Obviously, part of posting this is simply to highlight the oppressive depravity of the Hamas government. But there is another thing that should be said here. Hamas, after all, is hardly the only group out there who demands that the only just maneuver in the Israeli/Palestinian conflict is severing contact with all Israelis. They aren't the only ones who believe that building bonds of friendship between Israelis and Palestinians represents the act of a "collaborator". These are the primary tenets of the BDS proponents too. Friendship with Israelis is national treason.

In the case of Mohamed Abu Muailek, Hamas and the BDS campaigners are in accord.

H/T: Greens Engage.

Don't Drink and Be Driven Home

Orin Kerr points out a perplexing case out of Indiana, where the state Supreme Court ruled that a passenger in a vehicle stopped by the police on the highway is "in public" for purpose of a public intoxication statute (the case is Moore v. State).

Professor Kerr observes that the case is easily distinguished from the precedent the Indiana Supreme Court relies upon (Miles v. State), where the police found the drunken defendant parked by the side of the car with his windows rolled down. Here, by contrast, the defendant was only "by the side of the road" pursuant to the police's seizure of the car pursuant to a traffic stop. He notes the famous case of Martin v. State, an Alabama state case taught in law schools nationwide for the proposition that the police cannot take an intoxicated person into "the public", then arrest him for public intoxication (so much of the 1L curriculum is about shattering student's prior conceptions of fairness as irrelevant to the law; Martin is memorable if for no other reason than as a pleasant break from that routine).

But aside from the seemingly specious legal reasoning of the decision, it also seems rather disastrous from a policy perspective. The state has a substantial interest in keeping intoxicated drivers off the road. One of the main ways it seeks to accomplish this is by encouraging drunk individuals to become intoxicated passengers instead. The whole point of a designated driver program is for non-intoxicated persons to drive their intoxicated friends home, rather than letting them drive drunk themselves. This decision seems to fly in the face of that public policy and, to the extent that it discourages the practice of designated driving, makes the state of Indiana considerably less sake safe [Though my friend Mike is right that it was much better in the original. --DS].

Cory Maye To Be Released

Former Mississippi death row inmate Cory Maye will be released shortly, after he and prosecutors agreed to a plea-deal that reduces his conviction to manslaughter, with a sentence of ten years (which he has already served).

Great congratulations to Radley Balko for getting this case on the radar screen, and also to my colleagues at Covington & Burling, which took up Maye's post-conviction defense.