"Rational Basis with Bite" for All

Randy Barnett responds to my blog post Strict Scrutiny for All! I mentioned this to a friend and he remarked that Barnett is the current "constitutional giant-slayer", to which I replied "and I'm no giant."

That being said, I don't think Barnett gets my post quite right or succeeds in defending Judge Brown's opinion. His basic argument is that Carolene Products, properly understood, still would allow meaningful review of economic regulations because the way it articulated rational basis still had some bite to it. The case that gave us our modern, toothless "rational basis" doctrine was actually Williamson v. Lee Optical. But we can restore "the real Carolene Products" and still have something properly called "rational basis" (rather than strict scrutiny) that nonetheless gives the Court meaningful oversight over economic regulation.

I venture no opinion as whether this is the correct reading of Carolene. As a response to my post, though, it's mostly a non-sequitur, for two reasons. First, Judge Brown's opinion did not cast its villain as Williamson -- it set its sights on Carolene. And it didn't say "rational basis is being wrongly applied", it attacked rational basis review wholesale: "The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. . . . Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more."

Second and more importantly, the main point of my post was that whatever she thinks the remedy should be (rational basis plus, strict scrutiny, a yea or nay vote by Richard Epstein, whatever), Judge Brown's indictment is not limited to economic regulations but applies equally to any law Congress passes. This is the focus of her attack on Carolene and its echoes of Ackerman's -- that public choice theory denies that "discrete and insular minorities" should be at a democratic disadvantage, hence, Carolene's decision to provide heightened protections for laws targeting them and them alone is utterly wrongheaded. Small special interests are actually quite powerful, and political ignorance prevents adequate checks at the ballot box, so even diffuse majorities are vulnerable to political exploitation.

But this line of attack is not limited to economic regulation -- it is a general indictment of our democratic structure and its operation as pluralistic interest-group bargaining. Every law is vulnerable to this process defect, every law ought be suspect. Whether that means every law deserves strict scrutiny, like Brown effectively implies, or some heightened form of rational basis, as Barnett does, the point is that there is no reason to treat economic regulations specifically as any more likely to be the product of this general shortcoming in the system.

Gay Masorti Rabbis in Israel

The Israeli branch of Conservative Judaism (known as Masorti Judaism) has announced it will begin ordaining gay Rabbis, following a similar decision by the American branch several years ago. This is important, for several reasons (beyond the obvious advance for gay equality).

For starters, that this is happening in Israel has significant symbolic value. But moreover, Jewish organizations outside the US tend to be more traditional than their American counterparts (that is to say, Conservative Judaism in the US is more liberal than its analogue, Masorti Judaism, outside the US). Hence why the decision by American Conservative Jews to ordain gay Rabbis was both pathbreaking and lonely -- the non-US groups notably refused to follow along. But now they're catching up, and that's no small thing.

In the Room with Barney Frank

A fascinating interview with retiring Democratic Rep. Barney Frank (MA). My favorite part is when he talks about him telling House Speaker Rep. Tip O'Neill (D-MA) that he was planning on coming out publicly.

Robert Bauman had written a book in which he outed me. He incorrectly referred to somebody as my boyfriend—he wasn’t; he was a close personal friend—but he referred to me as gay. The press didn’t pick it up, but I thought, I’d better tell Tip. So I went to Tip. We were sitting on the floor, it was a bad day, we were losing the vote on the Contras, and I sat next to him. I said, “Tip, I’ve got to tell you something. Bob Bauman is coming out with a book that says I’m gay.”

“Awww, Bahney, don’t listen to that shit. You know they say these things about people.” I said, “Well, Tip, the point is it’s true.” He said, “Oh, Bahney, I’m so sad.” That’s when he told me he thought I was going to be the first Jewish speaker. He acted as if it was the end. But he was wonderfully supportive.

The final part of the story was when he told Chris Matthews, “We better get ready to talk to the press. They tell me Bahney Frank is going to come out of the room.” Matthews said, “What?” Finally he figured out Tip meant “come out of the closet.”

The whole thing is fascinating. Give it a read.

Cosplay for Killers

I'm a "fan" of the Assassin's Creed series on Facebook, which means their messages occasionally wander across my wall. Today, I saw one that I found interesting -- a plug for "the 1st Assassin's Creed Online Cosplay Contest."

Why do I find this odd? Well, to my lights at least, cosplay has always had the public image of being very geeky fanboy/girlish (I'm not saying I agree with this assessment, only that's how I've understood its public meaning). It's girls in anime costumes and guys with an obsession for Japanese RPGs. Assassin's Creed, by contrast, is much more of a macho man game; its advertising uses professional athletes*, incredible acrobatic feats, and, of course, the prospect of brutally dismembering half of Renaissance Italy.

Given that, I find it interesting that the game's official feed is promoting a cosplay event -- one would think they'd be more attentive to preserving the fragile egos of teen gamers for whom being associated with, ew, nerds is the last thing they want. But maybe I'm too cynical about Ubisoft. Or maybe I'm entirely misreading the cultural salience of cosplay. Thoughts?

* Funny story -- I was with my cousin when an ad for AC:Revelations came on. It showed a bunch of pro athletes in hoodies that mimicked the assassin garb, followed by "stats". The last state was for "Ezio Auditore", who, of course, is the protagonist of the series -- but my cousin just assumed he was another NBA player and was curious why he had never heard of this "Eezee-oh" guy.

Mad Men Thoughts

We missed parts of Mad Men last night (a thunderstorm caused the signal to cut out), but I think I got most of the important parts. Scattered thoughts:

* It was maybe a season and a half too late for maximum schadenfreude, but Pete Campbell got punched in the face! Repeatedly!

* Though Pete has been improving as a character, said schadenfreude was nonetheless amplified by his seeming retrogression this episode into the old, whiny, entitled Pete of yore.

* If you're going to get busted for adultery, chewing gum on your pubes has got to be one of the more bone-headed ways to be caught. If I'm the wife I'm equally offended for having a spouse that stupid.

* While Pete was getting punched, I couldn't help but think "Connor wouldn't have put up with this." Connor also would have never lusted after that high school senior (way, way too young).

* Why isn't Kenny a writer? Is he any good at being an accounts guy? Jill says he's not, as we don't see him bringing in any new business, I say that you also don't see any of his accounts disintegrating into ashes due to his own inattentiveness.

* When Joan was consoling Lane in his office, I shouted at the screen "Oh my God marry Joan your marriage is terrible anyway and she's single!" Immediately afterwards he kissed Joan, and I yelled "What are you doing, don't listen to me my advice sucks!"

* Pete Campbell got punched in the face!