Thursday, June 22, 2006

An Alabama Tradition

One thing that you learn quite rapidly when doing research into primary source texts of a historical period is that things are never as monolithic as popular parlance portrays them. For example, while the American South was definitely (and brutally) racist, it was not uniformly so, in that the people were entirely unaware that racism might even be wrong. These arguments were indeed being presented, albeit often by outsiders and always in the minority. As such, it provides an interesting riposte both to those who would caricature the American South as being in a state of complete moral darkness, as well as those who would apologize for their crimes with the cry of "they knew not what they did."

While looking up the local coverage of the Scottsboro trials, for example, I found a really interesting editorial in the Montgomery Advertiser defending the political rights of atheists. Commenting on a State Court of Appeals ruling which held that atheists were not "competent" to take oaths because they did not believe in an almighty God who could mete out justice and punishment, the editorial powerfully defended the rights and privileges of a group which undoubtedly was not any more popular in 1931 Alabama than it is today. Responding the court's argument that:
The whole fabric of this nation from its inception to the present time is founded on a belief in a Supreme Being whose guiding hand is recognized and involved in our most solemn governmental pronouncements

the editorial proclaimed:
What 'governmental pronouncement' is more 'solemn' than the constitution of the United States? It is a purely political document. It is a purely secular document. Not one line in it refers to a Supreme Being.... The reference to 'Almighty God,' etc., in the Declaration of Independence is cited, but the citation lacks weight for the reason that the Declaration of Independence is a war-cry and is not in any sense a part of the law of the Republic.
[...]
The genius of our governmental institution is affronted by the laws of Alabama, if the laws of Alabama are correctly interpreted by the State Court of Appeals when it says:
There is no place in our whole governmental structures for a belief which ties men to the rocks and clods and places him on a level with the beasts of the field

But we prefer to regard this as rhetoric rather than a statement of the laws of the Medes and Persians. Actually, there is a place in our "governmental structures" for all dissenters and all believers. If there is no place for dissenters, then this is a theocracy rather than the "republic of republics" where the conscience of the individual of goodwill is inviolable.

If the Court of Appeals is right, then Alabama has a state religion. ["Alabama's State Religion," Montgomery Advertiser, March 26, 1931 at pg. 4]

There are so many things that strike me about that passage. The imputation that "Alabama has a state religion" is not just used as an insult, but is assumed to be one on face (in other words, an assumption that the readers are not just constitutionally literate to know that state religions are prohibited, but constitutionally committed so they'd agree). The blunt dismissal of the Declaration as a document that is part of our contemporary body of law (I'd agree, but nobody would get away with putting it that plainly today). Even the idea that someone could write in one of Alabama's largest daily papers and boldly defend atheists as equal American citizens (and the piece pulled no punches in that regard) is surprising. I'm not sure you'd see such a clear commitment to religious equality in Montgomery today.

Also interesting was that a few days later, someone wrote in responding to the editorial. He claimed that "oath" definitionally implied swearing to a deity or higher power, and "religion" cannot definitionally encompass atheism (which is a lack of religion). The editors of the Advertiser responded by pulling across the pragmatic arguments they made in the first editorial--that the position of the court (and the letter-writer) would mean that atheists could not testify in their own defense, serve on a jury, or be elected to office (all of which require oaths). Are we really comfortable with denying them those rights (and if we do, are we seriously going to say we treat all citizens equally?). But I'd simply point out that, if we are to take these traditional definitions of "oath" and "religion" seriously, then to protect atheist rights will require not just accommodation but a bona fide change in the law or its understanding. So when conservatives today say that "atheists don't want equality anymore, they want special exemptions from long-standing laws," remember that this objection is essentially unchanged from 75 years ago. There is no "anymore," the folks who want to deny atheist rights can always frame it as "special rights" rather than fair accommodation.

Wednesday, June 21, 2006

And Proud Of It

Via The Moderate Voice, I find that the dictator of Sudan is blaming the Jews for leading the charge against his genocide:
Sudan's president said Jewish groups are responsible for the possible U.N. deployment of peacekeepers in his country.

"If we return to the last demonstrations in the United States, and the groups that organized the demonstrations, we find that they are all Jewish organizations," Omar al-Bashir said.

U.S. Jewish groups have taken the lead in calling for more international intervention to prevent genocide in Sudan's Darfur region, where a government-sponsored campaign of violence has led to an estimated 200,000 deaths and a humanitarian crisis.

You better believe we're heading this one up. I've never been so proud to be at the head of a Jewish conspiracy.

PS: I hate to say "I told you so" to Mark Olson but...

Waiting for Argument

One of the raps against originalism is that it miraculously stops being relevant when it leads to results conservatives dislike. It nearly always acts as a cover for results-based judging, which is especially annoying given how its adherents smugly defend it as a bold stance against judicial policymaking.

A few months ago, I noted that the usage of foreign law in American judicial opinions actually has rather deep roots in American jurisprudence, stretching back to the founding generation. Since then, I've only seen evidence supporting that view:
Under an originalist approach, a good deal of evidence demonstrates that at the country's inception, discussion of law from elsewhere was commonplace....Critics of the contemporary use of foreign law sometimes reply that foreign sources were not used to interpret the meaning of the Constitution. Defenders respond that (1) as an empirical matter, citations in cases prove otherwise; (2) in early periods, the Court did less constitutional interpretation; and (3) the line between common law and constitutional interpretation was not sharp. [Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry, 115 Yale L.J. 1564, 1568-9 n.7 (2006)]

I'm not an originalist, so in that past post I gave my own independent reasons for allowing citation to foreign cases. But I'm curious how self-described originalists make their case. There may well be solid reasons for opposing foreign law citation, but they are the type of objections that originalists would normally tag as fundamentally policy questions (e.g., it undermines the democratic process because we don't vote for foreign judges). Were I to use their rhetoric, I could very easily respond to a Scalia acolyte
"Sure, citation to foreign law may be suspect as a matter of good policy, but it's been well established since the time of the founding that this sort of interpretation is permissible. What grounds do we have to say it's illegitimate now?"

Now, one could respond that judges should use their discretion and refrain from using these sources even though they theoretically could. But that doesn't seem to be the objection of Scalia and his ilk. They say that this sort of usage is not just wrong, but illegitimate (Paul Mirengoff said it was grounds for impeachment). How is that defensible on originalist grounds?

I ask any originalist readers of the blog (this seems right up Southern Appeal's alley) for an answer to this truly vexing question.

Tuesday, June 20, 2006

The Law as an Outrage

I took my first look at the Law & Society Blog today, and it is a clear winner. This brilliant post by Hanno Keiser, on a 200 year sentence for possession of child pornography in Arizona, is just a brilliant display of what blogging can be: deep, engaging, informative, and compelling. It's on the blogroll.

The case, Arizona v. Berger, might actually be right as a matter of law--mostly because the Supreme Court has really taken the teeth out of any proportionality requirement the 8th amendment might impose. If you can sentence someone to life in prison for stealing golf clubs, or for a first time possession of cocaine rap (both cases cited by the court), then I have a hard time saying that possessing 20 pictures of child pornography is any more shocking (Douglas Berman accurately points out that this posed no barrier to examining the parallel clause in the Arizona state constitution, however). But what Keiser illustrates is that such a jurisprudence is one that's gone deeply awry. The sentence here is longer than the presumed sentence for rape, for second degree murder, or (ironically) for sexual assault against a minor. Discontinuities like that occur when criminal law views itself as in the business of expressing moral outrage. To quote Keiser at length:
The Berger case is one of the latest examples of enemy jurisprudence, of moral wrath using the legal system, and with it the government’s monopoly on the exercise of lawful violence, to destroy the lives of undesirables. The decision in Berger cannot be rationalized with arguments from traditional consequentialist or retributive theories of punishment, as it violates every requirement of proportionality....
[...]
The sentence in Berger is largely expressive conduct. It uses law as a means to display moral outrage. It is a celebration of moral hatred, as aptly described in the opening chapter of Michel Foucault's Discipline and Punish. A free society under the rule of law critically depends on the separation of the legal and the moral system. The code of the moral system is right/wrong. The code of the legal system is lawful/unlawful. By incorporating notions of morality, the law has transformed them into legal categories. That transformation of moral into legal categories is of particular significance in the context of criminal law. Moral categories tend to be absolute. Legal categories never are. In the criminal law context, the law does not only capture a society’s sense of moral condemnation, but also and more importantly for a free society, it imposes limits on what a government can do to the offender. These limits are the essential contribution of the law in the process of punishment. And in cases like Berger, these limits have all but disappeared....
[...]
The Berger case is a vivid illustration of that point. Here, the offender was technically not punished, if we require punishment to be a meaningful intra-societal answer to the offense. Rather, the boundaries of society have been redrawn so as to exclude the offender. Ejected from society into a natural state, society is free to wage war, to lash out and crush the offender, unrestrained by considerations of proportionality.

To the extent that Keiser is saying that law is not (or should not) be an instrument of morality, I disagree with him, but I don't think that's his claim. I think it's facile to claim that law and morality are, should be, or ever can be divorced. But I think that there is value in saying that law should not be used merely to express social outrage. There has to be some utility behind it. And again, this is a bigger problem when the subject is criminal law, when the legal sanction is not an injunction and a settlement, but prison or even death. In many ways I think that racial discrimination is as grave a moral wrong as mere possession of child pornography, but I don't think that it should generally come with criminal punishment (I do think that possession of child pornography is worthy of criminal sanction--but not life in prison for owning 20 images).

Re-Colonize This!

The Sudanese government has rejected calls to send in international troops, saying that it would effectively "re-colonise" the African nation.

The post-colonial scholars have always struck a chord with me, but one thing I can't get past is how, in the real world, their rhetoric is far more likely to appear in the defense of brutal oppression than in the liberation. I sincerely doubt that Omar al-Bashir is reading Spivak, but clearly he and his ilk have realized that this sort of language is remarkably effective at stalling liberal international groups' commitment to challenging their brutal regimes.

There is no way, of course, that sending in international troops to stop a genocide is a (re)colonization of anything. But it does no good for me to say that, because I'm from the US. So what I'd really like to hear is a response from the African Union--or even a consortium of African states--unambigiously proclaiming that such an intervention would not constitute colonization in any way, shape, or form.

Monday, June 19, 2006

The Israghani

I recently declared my support for Ghana after one of their players waved the Israeli flag upon scoring a goal. The player, John Paintsil, plays professionally in Israel and wanted to declare his support for the Israeli fans who had supported him throughout his career. Now, Ghana is apologizing for the gesture due to outrage among Arab states.

I should be clear. There are people who can justifiably, if they choose, be outraged by Paintsil's action. They are the people of Ghana. If an American player waved a foreign flag, one could certainly question the appropriateness of the move (and if the player was of Latino origin and waved a Latin American flag--God help us. I could hear Limbaugh explode from here). How one wishes to draw the line regarding national pride in a support where so many players compete in foreign leagues, like soccer, is difficult, and different nationalities might see the issue differently.

That said, anyone not from Ghana needs to back off (and nothing in the article indicates that it was an internal reaction from Ghana that provoked the apology). Ghana's soccer federation might be better off defending its stars from allegations that they are "ignorant and stupid," Mossad agents, and/or bribed by Israelis. They also might want to give Paintsil a forum to discuss whether or not he'd been taken to "football training camps set up by an Israeli coach who discovered the treasure of African talent, and abused the poverty of the continent's children with the ultimate goal of selling them off to European clubs....[S]tart[ing] every morning with a salute to the Israeli flag."

I am so sick of this. Israel is, far and away, the most unjustly abused nation-state in the world arena. Waving the Israeli flag expresses precisely no opinion as to the Israeli/Palestinian conflict. It does, I concede, express an opinion as to whether Israel is a legitimately existing country, and let's be clear: that's what this is about. Many people in the Arab world still fundamentally reject Israel's right to exist.

That Mr. Paintsil and his fellow teammates who play in Israel have had such warm feelings towards their host country was truly inspiring. I was hoping that it might open some eyes among people in regions of the world where there are no Jews and thus have far less opportunities to refute the constant stream of slander that Israelis (and often Jews too) are subjected to on a daily basis. Nobody can take away Mr. Paintsil's bold display, but I was hoping that his superiors would embrace it, not hide it as some embarrassing secret.

The Stanley Cup Winner is Hockey

I watched the Stanley Cup finals, game 7 tonight. My dad and I both agree, this (along with maybe the NCAA Basketball tournament) is the most intense sports event of the year. Certainly it's the most grueling. You hear announcers saying what type of injuries these guys play through (Doug Weight begged his trainer to let him play with a separated shoulder), and you just shake your head. These people work harder and play with more passion than you see in any other pro sport.

And this game was no exception--it was a masterful display by both teams that cemented a wonderful comeback season for the NHL. I was rooting for Edmonton, mostly because I want to see the Cup back in Canada after a long abscence. I feel like they deserve it--like they know its significance (especially a small-market team like Edmonton, which--with Calgary--is like the Green Bay Packers of hockey). Carolina fans certainly are enthusiastic, but do they really know the history of the game? My dad was afraid they'd take a cue from football and charge the rink (God, what a disaster that would be).

Still, congratulations to the Hurricanes, who certainly earned this Cup (knocking out my beloved Devils along the way). This was a spectacular season, and I hope the league continues to win over fans going into the next year (hint: watch Alexander Ovetchkin. I swear, he looks like a Brazilian soccer player out there when he touches the puck. Breathtaking).

Saturday, June 17, 2006

Cleaning Up The Kitchen: Responsibility for the Non-Responsible

After reading Mark's rejoinder to my reply to his critique of how Blacks and Jews (among others) remember certain tragedies, I realized that it was futile to keep running around in this circle of critique/refute/critique like I've been doing so far. Not because Mark is a disingenuous writer, or because either of us are stupid, or anything like that. What I've realized is that there are a few core premises that need to be clarified, or else we will perpetually continue talking past each other and make no progress. So this post will only indirectly respond to Mark's, but I hope it will serve to illuminate some of the issues that we've been batting around for some time now.

To begin with, I'd like to offer up a premise, which I think is rather intuitive but which I am open to hearing a critique of:

Human beings have a moral obligation to try and remedy unjust systems of which they are the beneficiary

I'm have warrants to support why this is true, but for brevity's sake (Lord knows I have that problem) I'll hold off on providing them unless the obligation is challenged.

So, for example, if I'm a monarch, heir to a throne established long ago, I have a particular responsibility to try and democratize my country, because I'm a key beneficiary of the current autocratic rule. If I'm a White southerner in 1900, I have a particular obligation to resist Jim Crow because I reap benefits from the current state of injustice.

This is actually a weaker claim than I could be making: I could simply say that human beings have a moral obligation to try and remedy unjust systems whenever they can. And perhaps I believe that, but I don't need to go that far in order to make my argument here.

There is an important clarification to be made. Saying "you have a responsibility to resist racism" is not the same thing as saying "you were responsible for creating racism" or even "you are an active participant in maintaining racism." If I'm told: "you're responsible for cleaning up the kitchen," that statement is entirely agnostic to what degree, if any, I'm responsible for causing the kitchen to have become dirty. There are all sorts of reasons why I might be responsible for cleaning up the kitchen even though I did not make it dirty. For my purpose here, I'm forwarding the argument that you have an obligation to assist in "cleaning the kitchen" (dismantle racial hierarchy, for my pet issue) if one reaps benefits from the kitchen being dirty (if one reaps benefits from the preservation of a racial caste system).

I cannot stress how important this is. In his post, Mark uses the rhetoric of "guilt" and "innocence", and says that I am tagging all White people as "guilty" of perpetuating the slave system. I am not. No living White person today is responsible for creating the slave system. They are "guilty" of nothing. They should face no moral opprobrium for the sins of their parents. There should be no Dickinson-style beheadings. Mark's ancestors could not avoid the "crime" because they did not commit one. However, the crucial point is that my argument depends not a whit on ascribing guilt to White people. The link to an obligation stems out of benefits one accrues from the oppressive regime, regardless of whether one helped create it or not. The divorce of responsibility for causing and responsibility for ending is critical--without it the argument makes no sense. I think a lot of people mistakenly equate the two and oppose it for that reason. I could, to be sure, condemn a White person for failing to actively oppose racism. But I'd be condemning him for failing to fulfill a moral obligation, not because he's a slaveholders grandson.

In the previous post, I made the following syllogism of how Whites benefit from past wrongs against Blacks, even if they or their ancestors had no role in establishing the harms:
A) We still live in a de facto racial caste system. This is supported by the fact that nearly every social indicator--controlled for class--has White people at a tremendous advantage over Blacks in virtually every aspect of life. David Roediger (American Studies/U. Minnesota) has documented "the wages of whiteness" that even post-civil war white people glean from the racial divide.

B) This caste system is supported, in part, by the immense network of images, stereotypes, economic deprivations, and other wrongs that flowed out of the slave system and reinforced the social hierarchy of white over color. This I think is obvious: if there is, in fact, a racial caste system, I don't think it's controversial that slavery has helped build it.

Therefore...
C) All White people today--regardless of ancestry--gain some benefits that flow out from the slave system.

Mark doesn't really dispute the premise that Whites are at an advantage in American life (which he can't, because the data is so overwhelmingly in my favor). He offers up a half-hearted response that since I believe that Whites benefit from a diverse social sphere, I can't then turn around and say that they also benefit from preserving a racial caste system. But that's clearly untrue: If I get $50 by beating someone up and taking their money, or $100 by working with him to build a new business, I'm benefiting either way (although I incur an opportunity cost for my injustice). He also questions my link to how slavery and Jim Crow have influenced modern racial stereotypes--but it's fairly easy to trace the development of both the Black sambo and the Black brute images to the slave era (see, e.g., George Fredrickson, "White Images of Black Slaves: (Is What We See in Others Sometimes a Reflection of What We Find in Ourselves?)", in Critical White Studies: Looking Behind the Mirror, Richard Delgado & Jean Stefancic, eds. (Philadelphia: Temple UP, 1997): 38-45). His main attack is that I'm ascribing group guilt to people who had no role in creating the original harm, but that's what my original moral premise is designed to address.

This is not supposed to be the last word, but the beginning. I hope that I've established my burden in subsequent conversations: if I can show that Whites are benefiting from an illegitimate racial schema, then I've proven that they have an obligation to end it.

Postscript: I apologize to Mark for consistently spelling his name wrong--with a name like Schraub, I sympathize. I also found interesting the story behind it--that "Olsen" became "Olson" to avoid anti-Norwegian prejudice and to sound more Swedish. Ironically, this may prove my point about modern import of injustices. Past prejudice against Norwegians was of course a very bad thing. But today, I'm sure Mark would agree it's played little to no role in his life. In fact, I could not even tell you the difference between a Norwegian and a Swedish name (it's all Scandinavian to me). By contrast, having a Black-sounding name does continue to have a major effect on one's life chances--not for the good. Sometimes society manages to move past it's wrongs. But sometimes the wrong remains ongoing. It's important to distinguish the two.

Friday, June 16, 2006

When Tragedies Still Matter

Mark Olsen thinks certain groups--namely Jews and Blacks--remember their historical tragedies the wrong way. Specifically, he thinks that they falsely claim uniqueness, and that they take an overly hostile stance rather than using past tragedies for ethnic bonding. For example, for Jews, Olsen thinks that the proper model is Passover and Egyptian slavery, which is used for ethnic bonding and solidarity, rather than the Holocaust, with its confrontational "never again" slogan which denies reconciliation.

It's an interesting post, marred only by the fact that it's wildly wrong on nearly every account. Not only does Mark misstate how both Jews and Blacks view their historical tragedies, he glosses over important differences that make certain types of historical catastrophes different than others in a vain effort to say "every ethnic group has had problems."

I'm not going to do a point-by-point, because that would take to long, but a few quickie corrections:
1) Jews do not ignore the deaths of others in the Holocaust (I always write of the 11-12 million total death toll unless I'm specifically writing a post about anti-semitism)--although I'd sometimes like them to be a bit more forward about it. But at the same time, Jews are somewhat justified in focusing on their own plight, again because of its particularism: Unlike, say, Poles or Catholics, many of whom also died from slave labor, Jews were one of the only groups to be singled out specifically for extermination (as opposed to just being sent to slave labor camps).
2) "Nazis" aren't the guilty party, the German people are. Pope Benedict tried to pull this slight of hand, but the Holocaust could not have happened without the widespread consent and support of the populace. Every major Holocaust theorist supports this view. And I'd add that the vast majority of the world, by turning its back on the atrocities and by refusing to accept Jewish refugees, were in effect collaborators to the extermination.
3) The ratification of the 13th/14th/15th amendment matters much more than the end date of the civil war to Blacks. And it's an understatement to the extreme to call July 4th "not such an unalloyed declaration of Freedom" for Blacks. If I were Black, I'd consider "all men are created equal" to be an outright mockery at the time. And I'd hold off on popping the champagne corks on the reconstruction amendments until they actually start being enforced as they were originally intended, which won't happen until the Slaughterhouse Cases are overruled.

But to the main. I want to offer my own counter-standard about when its appropriate to "hold on" to a tragedy for more than just social solidarity, but to still demand reform on behalf of the aggrieved party.

With regards to slavery, Mark writes:
The first error which seems universal regarding such memories is that they are very selective. In our two examples, the American Black ascribes fault to the American/European whites for their bondage. And yes, the white men at the time where the slave holders, transporters, and local enablers. However, in the current drug trafficking trade, we hold the seller accountable at least if not moreso than they buyer. In the African slave triangle, it was African indigenous Black tribes preying on others that sold the Black man to the white. However, in my casual acquaintance with the American Black memories of their time in slavery, blame is never assigned to the African Blacks remaining in Africa. If this event is to be remembered, why is not that complicity of the African Black remembered? Or the sacrifice of the Union (mostly white) soldiers remembered just as well?

Geez, where to start? First, if Mark really cannot find a qualitative difference in a drug use buyer/seller dynamic, and slavery buyer/seller dynamic, then we might as well stop the conversation now. I'll just throw out a few important distinctions:

1) One does not get physically addicted to slaveholding (and while slavery was important to the Southern economy, anyone who tries to argue that they were "dependent" the same way a junkie is dependent on heroin is going to get smacked. Seriously).

2) There is no common consensus that drug users behaving immorally, given that there is no inherent direct harm to another. We view addicts as being stupid, sure, but not immoral. And the flip side is that we see sellers as predatory and thus immoral. This dynamic is non-sensical applied to the slave trade ("look at the poor plantation owner, being preyed upon by that lowly slave trader")

3) The power dynamic is inverted: dealers have it drugs, slave holders have it in the slave trade. Drugs are a seller-created market, slaves are a buyer-created market In fact, the whole antebellum slave economy was a product of White and European forces--African kingdoms knew the only way they stood a chance of resisting European imperialism was to get guns via the slave trade. That doesn't justify it, but it's simply ridiculous to assert that Black slave trade was something that operated independently of White imperialism and immorality.

Mark wants to universalize experiences so that each instance of oppression can be reduced to another, with the only difference being which ethnic group gets to form solidarity from which event. But history is particular, and each instance of tragedy plays out in different ways--it's wrong to try and group each one into some meta-category and treat them all the same. Each tragedy is unique and should be dealt with contextually, based on the particular contours of the event itself and its post hoc impacts.

What Mark seems upset about is that Blacks and Jews hold on to their tragedy for more than just a Passover style communal bonding experience. Jews have used "never again" as a rallying cry against anti-semitism, at least partially to justify the creation of Israel and to become one of the world's most consistent and vociferous advocates for genocide intervention (Mark is simply wrong to imply that Jews have not used "never again" in this manner--Jewish groups were among the earliest to call for Darfur a intervention and pushed hard for Rwanda too). Blacks want reparations for slavery and have used America's slave-holding past as part of their narrative of American racist history. So if Mark's project was to try and box all forms of tragedy-remembrance into a happy holiday of solidarity by way of reconciliation, my project is to articulate when its justified to break out of said box.

Several factors come into play in justifying this:
1) How recent was the tragedy? The Holocaust ended in 1945, Egyptian slavery ended in 3000 B.C.E.. That matters.

2) How egregious was the tragedy? Being called "paddy" when you move to America sucks. Being brought to America in chains, separated from your family, beaten bloody every day, and having your son sold to a known brute and your daughter raped by your master sucks more.

3) Has the power hierarchy changed? Has the majority group apologized? Does it no longer hold a meaningfully higher proportion of political power? Is it genuinely committed to rectifying the wrong both procedurally and substantively? American Blacks, I suspect, would be far more willing to put the legacy of slavery behind them if a) they got an official apology (which we refuse to do), b) racism stopped being a meaningful social force in American life, and c) there were not still rampant social inequalities that make a mockery of the 14th amendment.

4) Does the tragedy have modern import? Slavery still matters because White supremacists still use slavery as part of an overall narrative of Black inferiority. Jews still look at the Holocaust because you still see folks trying to marginalize us by saying things like "Hitler was right" (if someone said to me "the Egyptians were right!", by contrast, I'd look at him blankly).


Three and Four are particularly important for three reasons. First, they show how people living today, even if not direct descendents of direct oppressors, can still be implicated in past oppression. The syllogism for slavery runs as follows:
A) We still live in a de facto racial caste system. This is supported by the fact that nearly every social indicator--controlled for class--has White people at a tremendous advantage over Blacks in virtually every aspect of life. David Roediger (American Studies/U. Minnesota) has documented "the wages of whiteness" that even post-civil war white people glean from the racial divide.

B) This caste system is supported, in part, by the immense network of images, stereotypes, economic deprivations, and other wrongs that flowed out of the slave system and reinforced the social hierarchy of white over color. This I think is obvious: if there is, in fact, a racial caste system, I don't think it's controversial that slavery has helped build it.

Therefore...
C) All White people today--regardless of ancestry--gain some benefits that flow out from the slave system.

Second, it distinguishes these cases from the many other historical tragedies which have befallen many other ethnic groups. Yes, the Irish faced significant prejudice when they first came to America, but it has virtually no contemporary potency or impact on their life's chances.

Third, they provide better explanatory power for why this sort of radicalization occurs. I call this "broken promise syndrome." To be blunt, America has continually broken its promise to rectify its wrongs when it comes to Black people. 80 years after "all men are created equal," we still had slavery. The 14th Amendment was ratified in 1868, 60 years later Strauder v. West Virginia was probably the only major case where Blacks had their rights vindicated in court. Brown v. Board was sent down in 1954, today we still have a largely segregated school system. Slavery matters because its harms are ongoing--it is part of the narrative of American racism which continued through Jim Crow and continues to exist today. As Richard Delgado notes, a celebratory remembrance which emphasizes reconciliation is not only ridiculous idealistically, its foolish pragmatically, because it lets the White majority tell itself that "the problem has been solved" and give itself self-congratulatory pats on the back instead of dealing with the continued presence and effect of racism in society. Blacks shouldn't "get past" slavery until Whites do--that is, until Whites agree to dismantle the racial hierarchy that slavery helped nourish and support today.

Moreover, I think that this model is closer to how Blacks actually view their case. Take W.E.B. Du Bois. In his first major work, The Souls of Black Folks(1903), Du Bois was in many ways a model for what Mark wants out of Black leaders--he continually emphasized reconciliation with the south, and argued against the type of general attacks Mark dislikes. Du Bois wrote then that "The present generation of Southerners are not responsible for the past, and they should not be blindly hated or blamed for it," and "if the representatives of the best white Southern public opinion were the ruling and guiding powers in the South to-day the conditions indicated would be fairly well fulfilled." Seventeen years later, Du Bois wrote Darkwater, and this conciliatory tone was gone from his voice--calling the atrocities committed during African colonization "the real soul of White culture." As Du Bois life progressed, he grew ever more radical until one of the greatest advocates for democratic pluralism the world has ever seen joined the Communist party and exiled himself to Ghana for the last few years of his life. Du Bois had the faith in White people that Mark wishes to see, he was willing to put slavery and southern atrocities behind him, and found that hope dashed by the cruel reality and persistence of white racism. We'd expect the reverse pattern if, as Mark puts it (in different words), this view of the past was a pathology with little relation to current realities: Black leaders would grow more optimistic about the state of America as they see that their lives are not being constrained by these structures of prejudice. But instead, the classic pattern is one of disenchantment: they start off believing the hype that America is willing to get past racism, and they slowly lose faith as they discover that the story does not match the reality. Mark needs to come up with an alternate explanation of this disenchantment phenomena.

Ultimately, the question is is the tragedy still relevant? For Jews, we won't forget the Holocaust until the underlying harm is gone: that people wish to wipe the Jewish people off the face of the earth (notably, few anti-semites advocate Jewish enslavement, which makes it easier to forget about Egypt). Blacks will not and should not get past slavery until the underlying problem is eliminated--the underlying problem being White racism. Until then, I applaud their advocacy for change, and I stand in solidarity with their call.

Part of the 38%

Bush gets applause from a radical Muslim cleric for his homophobic stances.
Qaradawi said that gays deserved "the same punishment as any sexual pervert - the same as the fornicator. The schools of thought disagree about the punishment. Some say they should be punished like fornicators... Some say we should throw them from a high place, like God did with the people of Sodom. Some say we should burn them, and so on. There is disagreement."

The leading Muslim scholar also claimed that former Democratic contender for the US presidency, John Kerry, was "supported by homosexuals and nudists."

"But it was Bush who won (the elections), because he is Christian, right-wing, tenacious, and unyielding. In other words, the religious overcame the perverted. So we cannot blame all Americans and Westerners," Qaradawi added.

See, we are making inroads with the Muslim world after all.

Thursday, June 15, 2006

Evolving The 4th Amendment

The Supreme Court just issued a 5-4 decision (along the normal lines) in Hudson v. Michigan. The opinion looks to dramatically restrict the potency of the exclusionary rule, which has served as a check against police excesses since the 1960s. What the exclusionary rule says is that any evidence obtained via illegal police action is inadmissable in court. This case refused to apply the exclusionary rule in a case where the police did not (as legally required), knock to announce themselves before carrying out a search.

I haven't read the opinions, so I'm in no position to comment. But there is a fair amount of blogger chatter about the structural aspects of the case. Orin Kerr, for example, notes how Justice Scalia, normally so quick to extoll the virtues of originalism, rested his argument here on how new social circumstances have changed the meaning of the 4th amendment from prior understandings. Specifically, he noted the rise of both attorneys willing to file complaints against illegal police action, and the increased "professionalism" of the police force which now can be expected to discipline internal infractions, as reasons why civil remedies are sufficient deterrence for police misconduct.

(Quick digression: Is it just me, or is that justification essentially eliminating the rule because it has been effective? I'd say that the zero-tolerance approach embodied by the exclusionary rule has a lot to do with the change in environment which makes both outsiders and insiders more vigilent in policing the police. There is no reason to think that their behavior will not lapse if this tool is taken out of the tool box)

Anyway, whatever merits this argument might have from a public policy perspective, it is quite far from originalism. As Justin Gardner points out, this case was effectively dismissive of the past regime of police abuses--a sterling example of what the boys and girls at Southern Appeal would applaud as "Stare Decisis is fo' suckas" opinion-making. I concur with Kevin Drum: it is cases like this which make me decline to take originalism seriously as a judicial doctrine. And this isn't an outlier for Scalia: his opinions have come under serious originalist fire in both Affirmative Action and Free Exercise cases.

In any event, the point is that Scalia really has to come up with some compelling explanation why recent evolutions alternatively start and stop mattering from case to case.

Now I'm Two!

This blog turns two years old today! I can't decide whether the time has flown by or crawled. Of course, two years old is quite a run in the blog world--I consider myself quite the veteran. I would link to my first week of posts, but I'm embarrassed--I don't think they were very good. You can check them out in my archives if you truly desire.

I need to thank Belle Lettre, for posting a happy blog-birthday message on her blog before I did. Also, of course, my indulgent host, Joe Gandleman at The Moderate Voice, and all my lovely co-bloggers there. All of the bloggers on my blogroll deserve mention--I don't believe in link-trading, so anyone who is there is someone I geniunely have gotten something out of--but especially my readers from the opposing side of the aisle who keep me honest and (on the flip side) give me potential converts.

As with all bloggers, I have my moments where I am "up" on blogging and moments where I'm "down" on blogging, and right now I'm recovering from a downswing. It's sometimes a lot of pressure to have something up and ready each and every day (this is why I'll never do journalism), and I always feel guilty when I think I'm not producing enough. But the opportunities I've found through blogging and the people I've met (or, more accurately, "met") have always made it worth it. I'm looking forward to many more posts, and I hope that you will continue to patronize this fine institution of commentary now and in the future.

Wednesday, June 14, 2006

Expert Sleuthing

Headline from CNN: UN Hears of Mass Darfur Killings.

Excellent work, investigators. Maybe now they'll do something about it.

Tuesday, June 13, 2006

Post-Work Roundup

My first day of work was today. The law firm I'm interning at has a very large practice in Civil Rights and Anti-discrimination law. But they put me in securities. Securities! And I could just taste the Wal-Mart case too.

Anyway, I came home really drained for no good reason. So no post (maybe later tonight), just a roundup of other stuff.

A great look by the New York Times on how legalizing gay marriages would impact religious liberty (Heads up: The VC). I argued here and the article concedes that the prospect of judges forcing churches to perform gay marriages is minimal at best. But there is real potential for clash in terms of how churches with traditional opposition to homosexuality are treated via the new anti-discrimination regime.

Spencer Overton shows a perfect example of politicians picking their voters (and here I thought it was supposed to be the other way around?). The culprit is Florida.

A pair of good posts by Will Baude at Crescat Sententia. The first inquires into the relationship between stare decisis and cert decisions, within the specific context of a case called Almendarez-Torres, which apparently a majority of justices now believe is wrong. Justice Thomas wishes to go the traditional route and simply overrule it. But Justice Stevens argues that state courts can effectively nullify Supreme Court rulings which give too little protection to rights. I don't find Baude's 10th amendment attack on this principle convincing, but I admit the argument troubling (although to be fair, it is uncontroversial that state courts can interpret their state constitutions to give heightened protection over the federal constitution, even where they use similar or identical language. So this is kind of a pedantic debate, it seems).

The second post features a good response to the obnoxious fact that the 1st amendment states "Congress shall make no law" abridging all of its prohibitions. Theoretically, that means that the President can, right? But as Baude (quoting the ever-incredible Michael W. McConnell) notes, there are other amendments which protect "liberties" from being abridged without "due process of law." Only Congress can pass laws, and it can't pass a law that abridges (say) free speech. So if the executive decides to violate one's free speech rights, ipso facto they are exceeding their legally delegated powers (unless it acts within a few parameters narrowly defined [or if your the Bush administration, infinitely broadly defined] by Article II).

Michelle Adams gives an intriguing account of CRT-father Derrick Bell's student-centric teaching pedagogy, and follows up with her own defense of the Socratic method.

With Tester and Webb both winning their senate primaries, the netroots is starting to get some momentum (at least in Democratic primaries).

Tony Karon makes the case to root for Angola in this year's World Cup. I was already rooting for them to beat their former colonial overlord, Portugal (but they lost 1-0). Fellow cup fan Bitch Ph.D also comments and gets the pointer credit.

Rachel Sullivan makes an important point about the Duke Rape case. It seems like they're getting crushed in the court of public opinion recently, and I'd begun wondering about how strong the case really was. But Rachel reminds us that virtually all the new info has been leaked by the defense, which (of course) is leaking selectively. So it's too soon to jump to conclusions without the prosecution getting to state its case.

A solid post by J. David Velleman on the Guantanamo Bay suicides, from a moral (Kantian) perspective.

Monday, June 12, 2006

Legal Legitimacy and Abortion Politics

I didn't get a chance to blog on this before I left, but I want to now plug this post by Leon H. Wolf on how law gains legitimacy in the public eye, and what the implications of having it (or not having it) are. Wolf specifically examines the question of abortion.

One of the crucial problems with the abortion debate is that both sides consider themselves to be fighting for sacred principles. Pro-lifers think that abortion is murder (in which case allowing it is tantamount to consent to murder). Pro-choicers think that being able to have an abortion is crucial to women being full members of the social community--without it they are second-class citizens, slaves to their ovaries. I've always thought that the normative case for overruling Roe v. Wade and then "letting the states decide" made little normative sense: the only way abortion is not clearly a woman's right is if it's murder, and I think a few constitutional clauses would pose a barrier to a state deciding to simply legalize the slaughter of innocents.

But Wolf articulates a pragmatic reason for sending abortion back to the states:
Whatever one might say about the process which gave us the rules encapsulated in decisions like Loving or Lawrence, it can hardly be doubted that the American public, almost as a unified whole, accepts the principles contained therein as legitimate. In the thirty-three years since Roe, no such mellowing has occurred - no legitimacy has been obtained - the debate is as rancorous as it ever was, and more so. Ugliness lies on the horizon.
[...]
[quoting Paul H. Robinson and John M. Darley] [A] number of studies... suggest that the level of commitment to obey the law is proportional to what Tyler calls the law's perceived "legitimacy," by which he means a community's perceptions that, first, the law instantiates their moral beliefs, and, second, that the law came into being via fair procedures conducted by the appropriate authorities. [end quote]

[...]
Presently, this feeling is lacking on the part of pro-lifers - who don't feel yet that this is an issue they have lost by legitimate means. The legacy of the current abortion law has been bequeathed not by democratic processes, but rather by fiat from a majority vote on a panel of 9 individuals far removed from democratic accountability. Adding to the furor, over the past decade and a half, 7 of those individuals (at any given time) were appointed by Presidents who professed similar beliefs on the abortion issue.

Wolf argues that if pro-choicers managed to get democratic ratification for their views, it would finally take the wind out of the sails of the pro-life movement. I'm still not swayed of the pragmatic attack on Roe generally. Specifically responding Wolf's points, I'd argue that on this particular issue democratic procedures can't or won't provide the legitimacy he wants because both sides think of themselves as representing groups marginalized in the democratic polity (pro-lifers representing unborn children who cannot vote, pro-choicers representing women [especially low-income women] who face rampant sexism and misogyny in America). Jim Crow, too, was enacted in an era of formal constitutional equality between the races. Democratic legitimacy is a boon when a group that is on the losing side of a dilemma still accepts that the procedures are neutral and they had their fair shot. When groups do not from the baseline trust that the polity will fairly consider their interests (a feeling which is, of course, ratified when they lose--which one side has to), then democracy will not confer legitimacy.

But the general claim about legitimacy being conferred from the perception of fair (often democratic) procedures is a solid one, and one that pops up again in issues such as the Iraqi elections and the immigration debates. I'd note with regards to immigration that the immigrants themselves have no reason to think that their interests are being duly considered when congress adopts immigration laws, so there will always be a significant gap between the black letter law and the respect that it is given by its target class. I'd also note that this does not translate effectively to disregard for other laws--as John Hart Ely notes, laws are looked upon with particular suspicion by a insular minority when they specifically target that group. So immigrants will be suspicious of immigration laws, but not, say, murder laws. That helps explain why immigrants have lower rates of violent crime than your average third generation American. The myth that allowing illegal immigration breeds disrespect for the law has its premise wrong: illegal immigrants will disrespect laws it feels are illegitimate--but that's the same as any other group and certainly does not include every law. The way to stem crime in the illegal community is to make it so that they do not fear the authorities, who can deport them. In other words, make them legal.

Planes, Trains, and Automobiles

Just so you know my route this weekend:

1) Drive from Bethesda, MD to Baltimore, MD (BWI airport)

2) Fly to Providence, RI

3) Drive to Newport, RI

4) Drive to Woodbridge, CT

5) Drive to New York City, NY (Penn Station)

6) Take train to Union Station, Washington DC

7) Take metro to Bethesda station

8) Take bus from metro station to house.

I'm back, baby.

Saturday, June 10, 2006

Up Up and Away!

I'm travelling this weekend and (gasp) am not bringing my computer (or at least am not planning to). I'm taking a train back home Monday, but I start work Tuesday. Presumably I should be able to blog at nights still (but you remember how I rolled last summer).

Friday, June 09, 2006

The McGwire Paradox

Via the always insightful Belle Lettre, we have an unusually sharp analysis of anti-discrimination law through the lens of Baseball.

The article specifically focuses on the hostility Barry Bonds has faced while chasing Babe Ruth's 714 home run mark. What does it stem from? Well, one candidate is racism: Hank Aaron certainly encountered his fair share of if it when it became clear that a Black ballplayer was about to bypass the Sultan of Swat for the title of home run king. Alternatively, one might argue, Bonds is being targeted because of his suspected (a word which teeters on the line of getting quotation marks) steroids use. Or, of course, it could be a mixture of both.

The trouble is disentangling the legitimate anger that a baseball fan might have over cheating, and the illegitimate resentment that is engendered by Bonds' race. In today's society, few people are overtly racist, or would admit to racist motivations. This does not mean racism is "over", only that it has been driven underground.

Belle asks:
You have to wonder though--do white players get as much heat for their alleged steroid use? Do new fathers get short-shrifted at work as much as new mothers? How much do stereotypes about gender or race affect how the employee's performance is perceived? Do we have different expectations for members of certain races or genders, such that when the members do not perform to our expectations we treat them differently than other groups? If a woman handles a client with professionalism and courtesy but lacking a demure manner, is she evaluated based on such stereotypical expectations? Is a man allowed to be more abrasive or outspoken? Is any transgression by a black or latino employee treated more harshly than someone in the good ol' boys network?

Where racism is not made overt, the only way to discover it is to look comparatively. To take one example, while one would not expect to find an elementary school teacher openly professing white supremacy, if a given school system more frequently fails black students than white students of similar backgrounds, that would be suggestive that there is still something racially wrong in the system: a problem with the pedagogy, or the metrics, or any number of factors which are having a racially disparate effect.

What's important to note here is that this can still be operative even where the baseball fan (or school system) has perfectly plausible explanations for its individual actions. It is, after all, quite legitimate to dislike Bonds for using steroids. But it is indicative to see how he is treated compared to White athletes in similar positions. This is what I am calling the McGwire paradox. McGwire also was pursuing a beloved home run record while under the shadow of steroid allegations. And let's be clear: he got his fair share of negative press. But my recollection includes nothing comparable to what Bonds has endured: a universally hostile media, booing fans, consistent deriding. This is anecdotal and based entirely off my recollections, but I simply don't recall the same level of vitriol then compared to now. So I'd submit that while there are non-racial reasons to praise or disparage both Bonds and McGwire, there are precious few non-racial reasons to treat McGwire with at least respect while slamming Bonds.

This dovetails off my adored Gaertner and Dovidio study (summarized by me here), which says that racism is primarily operative when people can attach it to a superficially non-racial reason. In other words, if Bonds was a perfect human being, we'd respect him even though he's Black. But as a deeply flawed man, we cast scorn upon him--more than we'd give to a similarly situated White athlete.

We're Watching We

Texas Governor Rick Perry wants to install night-vision camaras on the Mexico border, then have citizens be able to call a toll-free number to report illegal immigrants crossing the border.

There is a point to be made here about how the people can be recruited to create their own security state, but I'm too depressed to make it. Who needs Big Brother when we each can act as each other's spymaster?

This is like the evil twin of the wisdom of crowds. We're participating in our own Panoptican.

Via Jason Mazzone

Thursday, June 08, 2006

Become Thy Enemy

Cathy Young is must reading on the slide of some conservatives into scary levels of anti-Muslim (not anti-Islamo-fascist, but anti-Muslim) rhetoric--including sympathy for Slobadon Milosivic's genocidal actions in Bosnia, because the victims were Muslim:
On March 12, the group blog Infidel Bloggers Alliance ran an item titled "Memorable moment in the Milosevic trial." It described, without further comment, an episode in which Milosevic tried to portray himself as fighting the same forces of terrorism now threatening the West. Co-bloggers chimed in with such comments as "Wouldn't it be strange if Milosevic ends up being remembered by history as a hero and a kind of prophet?" and "Ever since 9/11, one question after another about whether we were on the wrong side in the Bosnian conflict has come up. The only thing you can trust a Muslim to be is a Muslim." (Including, it seems, the famously secularized and nonradical Bosnian Muslims, some 100,000 of whom died in Milosevic's assaults of the 1990s.) Similar attitudes, somewhat less stridently expressed, could be found on Jihad Watch, FrontPage, and other popular right-wing sites.

That is appalling. Once you start endorsing genocide, you become, in my mind, indistinguishable from any other terrorist sympathizer.

Conservatives need to start purging these barbarians from their ranks, and fast.

H/T: Eric Muller

No Mo Po-Mo

Via Rob Vischer, I find that Florida has officially declared post-modernism a theory non grata. My initial reaction, inspired by Sandy Levinson, is that the average member of the Florida legislature could not even give a coherent definition of what post-modernism means. But perish the thought that they reflect on that for a moment before using it as a stand-in for all that is evil and wrong with academia.

Post-modernism actually defies easy definition even among its adherents, which makes it nearly impossible to discern what the average Florida legislator thought she was doing when she voted for this law (my definition is that post-modernism represents a critique of meta-narratives). But the supreme irony is that Florida's account of what American history "is", is in fact quite relativist in its own right:
The history of the United States shall be taught as genuine history and shall not follow the revisionist or postmodernist viewpoints of relative truth. American history shall be viewed as factual, not as constructed, shall be viewed as knowable, teachable, and testable, and shall be defined as the creation of a new nation based largely on the universal principles stated in the Declaration of Independence.

I think it is rather fanciful to say that the new nation was based even "largely" on the principles of the declaration of independence. The truth-value of that statement is relatively high from the perspective of landed White male, and relatively low from the perspective of nearly anybody else. Ask any woman, Black person, Native American, or even landless White male what they think of that statement. I pretty confident that we've hit well over 50% of the population with those groups. Manifest Destiny? Trail of Tears? Slavery? Jim Crow? Japanese Internment? America was and remains a work in progress, and the universalist principles undergirding the declaration have not been achieved even today, let alone at the founding.

I can't get Richard Rorty out of my head: "Truth cannot be out there - cannot exist independently of the human mind - because sentences cannot so exist, or be out there" (Contingency, Irony, Solidarity at 5). The way we describe the world is a construction, so how can we pretend like we are uncritically reflecting a world that is out there? I remember learning about both the Battle at Wounded Knee, and the Massacre at Wounded Knee. Which is it? To say that these constructions are just academic playthings is just naive.

Of course, as Levinson notes, we could just bar David Hume and Thomas Kuhn and nearly every development in modern philosophy from Mill on out. That would significantly disadvantage the academic progress of Florida students. But I've gotten the distinct feeling that Republicans are actually hostile to academic achievement--since they think that higher education itself is biased against them. Well, maybe it is--colleges and universities have pretty well bought into the principles of equal humanity and dignity that the GOP (with their lovely FMA) continues to war against. But they really can't pretend to be pro-education at the same time as they try and sabotage it.

Wednesday, June 07, 2006

The Endo Symposium

Japanese Internment expert Eric Muller just hosted it over at his blog. The subject is Ex Parte Endo, an overshadowed sister case to the infamous Korematsu decision. Unlike Korematsu, however, Endo won her case: the government cannot indefinitely detain citizens it admits to be loyal.

Contributions were made by Jerry Kang, Patrick Gudridge, and Greg Robinson, with an introduction by Professor Muller.

It's tempting to treat the Japanese Internment as a--in the words of one conservative activist--"historical footnote". In today's climate, we must resist this temptation. Ms. Endo was subjected to much of the same stick-and-carrot treatment that allowed the Bush administration to evade review in Jose Padilla and Yasser Hamdi's case. She was shuffled from jurisdiction to jurisdiction to prevent her argument from being heard. She was offered an immediate release from detention if she dropped her case. To forget her story is to lose an important piece of our collective history, one which has proven all too ready to sacrifice the rights of detested minorities in pursuit of fictive security.

Tuesday, June 06, 2006

Chick-Sexing and Lawyering

Yale Law Professor Dan Kahan's message to his graduates is provocative and thought-provoking. You have to ask: When conservatives use law to hurt people, is it part of the job? Or why they took the job?

They have a choice. Don't let them forget that.

H/T: Orin Kerr.

Why Are We There?

I was under the impression that we are still in Iraq in order to help the people and government form a stable, representative democracy. This would mean that the where there is a war "in" Iraq. Not, as Rush Limbaugh put it, a war "against" Iraq. If you're saying that we are still "against" Iraq today, then you've either a) been asleep for the last 3 years or b) engaging in Freudian slip and are actually part of the bomb the Iraqi people into rubble camp.

It would be interesting to see who is still using the rhetoric that places America in opposition to Iraq, especially among those who argue that our presence there is for good.

At Home, Out of Action

So I'm done with finals and back at hoem in Bethesda. But I'm having trouble getting my computer re-connected to our network, so my internet access is limited. Hopefully I'll be back in action soon.

Sunday, June 04, 2006

Conversation Between Blacks and "The Law"

I just want to have this excerpt from Alan David Freeman's article "Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine" (62 Minn. L. Rev. 1049 (1978) preserved online for my future perusal. I think it pretty well shows the bewildering array of obstacles the law has put in the path of Black Americans who take seriously that racial discrimination is now illegal.
The Law: "Black Americans rejoice! Racial discrimination has now become illegal."

Black Americans: "Great, we who have no jobs want them. We who have lousy jobs want better ones. We whose kids go to black schools want to chose integrated schools if we think that would be better for our kids, or want enough money to make our own schools work. We want political power roughly proportionate to our population. And many of us want houses in the suburbs."

The Law: "You can't have any of thsoe things. You can't assert your claim against society in general, but only against a named discriminator, and you've got to show that you are an individual victim of that discrimination and that you were intentionally discriminated against. And be sure to demonstrate how that discrimination caused your problem, for any remedy must be coextensive with the violation. Be careful your claim does not impinge on some other cherished American value, like local autonomy of the suburbs, or previously distributed vested rights, or selection on basis of merit. Most important, do not demand any remedy involving racial balance or proportionality; to recognize such claims would be racist." (1049-50)

Saturday, June 03, 2006

Embarrassing Allies

This has to be pretty much the weirdest pro-immigration piece I've ever read. Short summary: only Hispanic Whites are having enough babies to provide the comfort levels elderly White Americans expect. Non-Hispanic Whites are too lazy to have children, and Blacks are "killing their babies." If we allow Hispanic immigrants into the country, we can avoid the horrifying fate of becoming...Europe:
The populations of all European countries are (a) dropping and (b) becoming Muslim. Within fifty years, we will be faced with a much smaller Europe that is much more Islamic and probably more militant. America answers this problem by creating enormous incentives for Hispanics to enter the country and have babies here instead of in Mexico. If the plan works, the elderly white baby boomers will all have their noses wiped at appropriate intervals by young Hispanic nurses and will therefore keep today's politicians in office. But there is more.

The white baby boomers will all be dead in fifty years, either via natural causes or euthanasia. But if the Hispanic replacement population is successfully purchased from Mexico (which will experience its own population replacement problems within the next decade), America’s population will (a) not drop and (b) still be Judeo-[sic] Christian.

Actually, becoming Europe would be a pretty awful fate--they have pretty much the paradigmatically wrong policy when it comes to immigration. But basically supporting immigration because it will keep America nice and White and Christian (spare me the "Judeo" part, what percentage of Latino immigrants are Jewish?) is kind of twisted. The frustrating thing is that this piece has close to the right policy on immigration by complete accident: letting in Latino immigrants will be good for the country economically and will pose no problems culturally. But he only is writing the piece as a foil against the evil Islamist horde that we need to fight against. And it is overwhelmingly obvious that he'd vastly prefer White women to get back in the bedroom and start cranking out babies.

H/T: Bitch.

Friday, June 02, 2006

A Log Cabin Dream

One of Dale Carpenter's course evaluations made me smile: "Coming in to this class, I thought all people with his 'lifestyle' were morally depraved. Now I recognize that Republicans aren't all bad."

It very much reminded me of the bill in Ohio that would prevent Republicans from adopting (a response to a similar bill that would prevent gays from adopting).

There is something intrinsically funny about linking the dignity of Republicans to the dignity of gay and lesbian Americans. Political jujitsu is fun!

Thursday, June 01, 2006

Get Your Facts Straight

Over at The New Republic, John Friedman and Richard Holden have an interesting article up called "The Gerrymandering Myth". Title notwithstanding, it actually deals with a very narrow question: is gerrymandering the reason incumbent re-election rates are so high? And they answer that no, the culprit is actually increased media saturation and big money.

This is a tremendously silly article. For starters, I don't think anyone in the anti-gerrymandering crowd disputes that media penetration and big money have an large effect on incumbent re-election rates. We just think gerrymandering has an effect too. Second, they completely misunderstand the political calculus that goes into gerrymandering. It isn't just about keeping incumbents in office. It's about keeping your incumbents in office and kicking out the opposing party. Friedman and Holden claim that incumbent re-election rates actually go down in the years immediately after redistricting. But that just proves the point: gerrymandering targets vulnerable incumbents from the opposing party, they're kicked out, your new guys entrench (and your veterans re-entrench), and everything settles down by mid-decade. And third, since the authors admit gerrymandering is bad for other reasons, I don't understand the point. At best, they've shown me that we need broader based reforms than just on the redistricting issue, something which I really didn't need persuading on.

More disturbingly, the authors seem to have serious trouble with basic facts. When talking about the prevalence of gerrymandering (in the obligatory "both parties are at fault" section), they write that "in Massachusetts and Maryland...Republicans (who make up nearly 40 percent of both states' populations) account for just 1 of 19 House members."

The problem is that a) together, Maryland and Massachusetts have 18 representatives, not 19, b) two of them are Republicans, not one (specifically, Maryland has two Republicans out of its eight delegates), and c) Republican voter registration is 15% in Massachusetts and 30% in Maryland (with Democrats at 40% and 55%, respectively), which is significantly less than 40% of both state's populations.

I suppose there could be differences in measuring how many GOPers there are, but the former two errors are simply boneheaded. Take what you will.

Tuesday, May 30, 2006

Seeing Black

Meet the new chief White House domestic policy adviser. In an article for the American Enterprise Institute, Karl Zinsmeister argues against color-blindness--but only as it relates to Black-on-White crime. Now, I'm not color-blindness defender either, but not because the color-blind principle is unfair to White people. What does Zinsmeister have to say?
In my private and internal life I am, and must always remain, colorblind....But hard experience has taught me that colorblindness is an ineffective and even dangerous ruling principle. This is not something that I, or the vast majority of other Americans who share my view, learned from public policy conferences or books published by right-leaning theorists. It springs starkly from practical life....
[...]
The penalty for the person who, ignoring race, turns down the wrong street today can literally be death. It is unfair and unrealistic to demand that people "ignore race" so long as race has direct connections to troubles and dangers of this magnitude....

I have five immediate responses. The first relates to the public/private distinction. Though Zinsmeister says that we should be scrupulously color-blind in our private lives, he later references private decisions as the epitome of when race matters (turning down the wrong street is rarely something forced by the government). So if I'm to take him at his word, he thinks that we should be provisionally color-conscious both as a "ruling principle" and as a private concern, but only to the detriment of Blacks. What he's advocating, then, is frighteningly close to a race-based apartheid system. I use apartheid deliberately, because Zinsmeister's analysis appears to both advise socially exclusionary measures (avoid interacting with "dangerous" Blacks and their neighborhoods) backed up by governmental force (when such actions brush up against areas within the legal sphere, the law should approve the White actions).

Second, there is no parity. What about Blacks who have legitimate fear of Whites? If Black people think that Whites are more likely to discriminate against them in hiring decisions (and have the statistical evidence to back it up), how do we respond to their claim? Where are they present in Zinsmeister's analysis? If one is going to be color-conscious in remedying persistent social problems (and I agree we should), the very least one has to do if we aren't to collapse into naked racism is to not restrict the inquiry only to when Whites feel threatened.

Third, there is almost no critical analysis of the statistics which purport to show how much Whites have to fear from Black criminality (presumably Blacks have it even worse, but who cares about what happens to them--they're Black). It is intellectually sloppy, to say the least, to take such statistics at face value. As Angela J. Davis has noted, the issue of prosecutorial discretion and the disparate treatment of alleged Black and White offenders can severely impact who goes to prison and who stays free [Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 Fordham L. Rev. 13 (1998)]. How much of this is race, and how much is poverty, and how much of this is Blacks being arrested more often than Whites because of their race (disproportionate to the relative rates of criminal activity)?

Fourth, the parameterization slants the issue dramatically. If one looks at certain types of crimes and actions, then Blacks will look worse than Whites. Change the parameters, and Whites look worse than Blacks. As Richard Delgado has noted, if one compares the costs of "street crime" (what Zinsmeister is talking about and associated with Blacks) versus "White-collar crime" (associated with Whites), the monetary cost of White collar crimes dwarfs that of street crime, the former ranging from an annual cost of $328-519 billion, the latter costing only around $9 million a year. And in lives, the disparity is similar. In 1991, 24,703 people were killed in murders and non-negligent manslaughters. Deaths caused by corporate actions in that same year was approximately 1,486,000 [Richard Delgado, The Rodrigo Chronicles (New York: NYU Press, 1995): 272-75]. Who really poses the danger here?

Fifth, even granting the legitimacy of White fears, there is not even a hint of weighing out the harms Zinsmeister's policies would have on Blacks. Jody Armour, in his book "Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America", gives solid analysis of how to deal with so-called "reasonable racists" (who are essentially embodiments of what Zinsmeister advocates--those who base their anti-Black actions on statistics and "reasonable" beliefs that they pose higher risk of criminal activity), and how such beliefs can result in real and acute violations of the rights of law-abiding, innocent Black citizens. Professor Armour ultimately concludes that these harms outweigh the "reasonable racist" argument, but regardless of whether one agrees with him, we at least have to recognize that such an analysis is necessary in discussing these issues.

This lack of analysis is the crucial and revealing shortcoming. It's not that White people who exhibit a fear of Black criminality are completely irrational nutcases who need to be locked away. It's that Zinsmeister, probably without realizing it, only examines the White perspective. The logical counterpoise of how such anti-Black policies would impact real Black bodies is not just dismissed, it is never brought up in the first place. That lack of concern, from a man who will be crafting domestic policies which effect millions of Americans, should trouble us all.

Monday, May 29, 2006

The Shadow of Equality Looms

In the Chicago Tribune, Pepperdine Law Professor Douglas Kmiec warns that allowing gay marriage will eventually expand into forcing churches to perform them, under pain of legal sanction. He provides two supporting examples: the backlash against the Boy Scouts, and the marginalization of racists in American society:
With the states being so vigilant in defense of traditional marriage, is there really a need for the people to act? Yes. Activists are deployed across the country challenging traditional marriage, and it is more than likely that some additional judges will compound the Massachusetts mistake. This increased judicial approval of same-sex marriage will metastasize into the larger culture. Indeed, an insidious, but less recognized, consequence will be a push to demonize--and then punish--faith communities that refuse to bless homosexual unions.

While it may be inconceivable for many to imagine America treating churches that oppose gay marriage the same as racists who opposed interracial marriage in the 1960s, just consider the fate of the Boy Scouts. The Scouts have paid dearly for asserting their 1st Amendment right not to be forced to accept gay scoutmasters. In retaliation, the Scouts have been denied access to public parks and boat slips, charitable donation campaigns and other government benefits. The endgame of gay activists is to strip the Boy Scouts (and by extension, any other organization that morally opposes gay marriage) of its tax-exempt status under both federal and state law.

Now, whenever I hear this "we'll be treated just like racists!" argument, my first inclination is that the complaining party might reflect as to why the comparison to racism is so easy to make. I think a little humility in the face of that accusation may be in order. But let that slide for now. There are some points to be had here, but even if Kmiec's worst-case scenario occurs (and I doubt it will), he's overstating his case.

Commenting on Kmiec's article, Dominico Bettinelli claims that this is about legally mandating that churches perform gay marriage. But while it's clear that this is the impression Kmiec wants to give, his argument doesn't actually show that (for good reason, there is no way that would pass free exercise muster). What it does show is that there is some risk that Churches which don't perform gay marriages will lose their tax-exempt status. That's definitely coercive (although no more so than what anti-gay advocates celebrated in the FAIR v. Rumsfeld decision), but it's not the same as compulsory.

But I'll agree that losing tax-exempt status is not exactly a neutral pose, so what about it? Well, first of all, contrary to what Bettinelli says, it is virtually impossible to imagine that it would be a judge who made this decision, as tax decisions are nearly always kept to the legislature. Even Kmiec concedes that it would take a State Attorney General to issue an opinion leading to a revocation of tax-exempt status. Gay equality advocates have enough trouble securing their own rights in the democratic forum, what are the odds that they'll be able to attack others with any success? Incidentally, I want to pre-empt a response to this that is sure to piss me off: saying that judges will do it because judges don't care about the law. I think that the really sloppy legal analysis by Bettinelli (not Kmiec) comes out of a misguided belief that law does not matter to (liberal) judges, so they'll just do whatever their (evil) hearts desire. This just isn't true. To be sure, liberal judges have different interpretive techniques, ones that conservatives find to be illegitimate. But they are still constrained and are not free to do whatever they want. Duncan Kennedy, perhaps the most prominent member of the Critical Legal Studies movement (and thus far less likely to feel constrained by conventional legal restrictions that probably any judge on the federal bench) still ticks off several factors that would prevent him from just doing whatever he likes on the bench:
First, I see myself as having promised some diffuse public that I will "decide according to law," and it is clear to me that a minimum meaning of this pledge is that I won't do things for which I don't have a good legal argument....

Second, various people in my community will sanction me severely if I do not offer a good legal argument for my action....

Third, I want my position to stick....

Fourth, by engaging in legal argument I can shape the outcomes of future cases and influence popular consciousness about what kinds of action are legitimate....

Fifth, every case is part of my life-project of being a liberal activist judge. What I do in this case will affect my ability to do things in other cases, enhancing or diminishing my legal and political credibility as well as my technical reputation with the various constituencies that will notice....

Sixth, since I see legal argument as a branch of ethical argument, I would like to know for my own purposes how my position looks translated into this particular ethical medium. [Duncan Kennedy, Imagining a Judge's Reasoning Process, in ANALYTIC JURISPRUDENCE ANTHOLOGY 208-209 (Anthony D'Amato ed., 1996)]

To reiterate, there is not a single judge on the federal bench that would take even this radical a view. Most others feel bound to some extent by precedent, by prevailing legal norms, by constitutional traditions, and by a commitment to protecting rights (which in this case includes the right of religious majorities to practice their belief system as it sees fit).

But I digress. Okay, let's assume that a state attorney general or legislature does pass such a restriction. What then? Well, I probably would not vote for such a law. And as a judge, I'd probably strike it down as unconstitutionally impinging on the free exercise clause. But since I am neither a legislator nor a judge, that isn't a huge barrier to hurdle. What would the upshot of such a law be? It would merely hold that organizations who discriminate against free and equal members of the polity can not lay claim to the succor of a state committed to the equal status of its citizenry. I really have a hard time getting riled up about that. Bettinelli complains that:
As we have seen it is not enough, according to liberal activists, to have an absence of active persecution or oppression. Anything less than full-fledged love and admiration for their particular lifestyle choice will be seen as hate-speech, racism, or whatever other disparagement can be thrown our way. What they want is approval and acceptance.

Okay, so what? Not giving acceptance to homosexuality is not racism, but it is homophobia, and hateful toward homosexual[s/ity]. There really is not any dodging that, and the fact that Bettinelli feels compelled to try means he's already lost his argument. Blacks shouldn't have to settle for not being actively persecuted, they have the right to demand full and equal acceptance in the American community. When this is denied (even in the absence of legal barriers), we rightfully call it racism. There is no reason this shouldn't be true of homosexuality. And if the Christian right wishes to hitch itself to that train, then it is going to have to admit forthrightly that it is discriminating, that in that respect it is breaching one of America's core values, and that it feels sufficiently strong about this commitment that it is willing to accept the consequences.

Ultimately, the argument being presented here is one that likely never will come into being, would probably not survive court muster even if it did, and would not be particularly onerous even if it survived. Spare me the apocalyptic rhetoric, please.

Ultimate Heads Up: Southern Appeal.

The Patriot Game

There is something quite stirring, to my ears at least, about this Spencer Overton post about Patriotism. A taste:
Black folk have a complex relationship with patriotism. I've always been somewhat suspicious of flag-wavers, but in the last couple of years I'll have to admit that my relationship to patriotism has evolved. First, my cousin Larry gave me the military flag from the funeral of my grandfather's brother, Uncle Harry. Second, by visiting Gettysburg and the White House of the Confederacy, and researching and writing about the Civil War and Reconstruction in my new book Stealing Democracy, I've come to appreciate some of the more noble values embraced by the Union during the Civil War (I also appreciate that many were not noble--which contributes to the complexity of the patriotism of Black folk). Third, I invest much of my time into working to protect and expand voting rights in the United States. These three factors have brought me to the conclusion that I've got as much right as most to articulate the normative values to which America should aspire.

When one thinks about it, the fact that so many Blacks volunteered to serve for a country that was systematically and brutally oppressing them is nothing short of amazing (same for Japanese-Americans in WWII). They made what in some cases was the ultimate sacrifice for a country that would spit in their eye when they came home. And yet still, they rose.

This Memorial Day, I ask that we remember all of our veterans, especially those who were fighting for all Americans.

Sunday, May 28, 2006

Frist Has It Right

Let's just say it. Bill Frist has the right line on the FBI's raid of Congressman William Jefferson's office. Congressmen are not above the law, and while I think that context is critical, I see no real plausible way that this act in these circumstances breached either the separation of powers, or the speech and debate clause.

Hastert (and Pelosi too) is egomaniacal to the extreme by protesting this. As a great anonymous wit put it, for congress, "WARRANTS: Not good enough for us, too good for you."

The Feedback Loop

As my second blog birthday approaches (this is one of the few institutions where being two years old makes you a veteran), I figure now is a good time to take stock of where the blog is, where I want it to be, and what you, the precious readers, want out of it.

Basically, my blog is an intellectual exercise. I use it to explore some of my pet issues (liberal interventionism, anti-racism, etc.). I prefer deep argumentation to armchair punditry, and I try to really think through the posts I write. Hopefully, this cuts down on the bonehead moments. I know I write lengthier and don't post as frequently as most blogs. That both fits my schedule better, and is more in line with my desire to actually engage an issue rather than throw a few lines of snarky commentary at it (of course, that can be fun too). I'm happy with my 200-300 readers a day (or at least, per day that I post), and I wouldn't say no to a larger readership, but I have no desire to become one of the top of the pile blogs. I feel like I have a niche here, with patrons who want to read what I have to say, and I like that. I hope you do too.

I like my blog, and I'm pretty satisfied with it. However, I'm interested in what you feel. I've said before how blessed I am to have such wonderful readers (with such few trolls), and I'm sure you have some advice to offer. Any pet peeves that drive you crazy? Topics I spend too much time on? Too little? Writing quirks that make you want to gouge your eyeballs out?

Any comments, be they complimentary or complaints, are appreciated. And I thank all of you for reading The Debate Link!

VI Is No VII

Alright, so I'm starting to feel better, but it's the start of final season (horrific timing on my part), so I've fallen way behind. Blogging is, alas, one of the first things to go. And to make things worse, I've found myself enmeshed in a massive time-waster (see below).

About a million of my friends told me I had to play Final Fantasy VI (aka, Final Fantasy III). Now, I love the FF series, so it didn't take much persuading, but what really sold me is the claim that VI was better than VII, which, to my eyes is the highlight of the series. So I downloaded an emulator and started it up. And, in the spirit of what Ann Althouse might call Mixed Blogging, I give you my preliminary thoughts (from what I surmise to be about a third of the way through the game (in the cave to the sealed gate).

Okay, let's get the first thing out of the way: it's amazing. I love it. That said, it isn't quite up to VII or even IX (which I seem to have a disproportionate love for compared to other FF fans). A couple of my gripes are pure technological. The graphics are obviously much better in VII, but that I don't care about as much (though it is amazing to think that VII came out just 3 years after VI). What I really miss is the 3-dimensional movement. That is frustrating and can really slow you down, especially where diagonal movement is necessary. The gameplay feels slightly less intuitive than the other games (which is partially--but only partially--because I don't have a manual): I shouldn't have to look up an FAQ to figure out how to change Espers. But by far the most infuriating thing is how you can't run without "sprint boots" equipped. So I either have to waste a relic slot, or I crawl across the game like I'm a dinosaur in a tar pit? Spare me.

The plot is stellar, as all FF games are (though it does not outstrip any of the other games). The characters are strong, but I feel like none stands out and truly pulls me in. There is no equivilant of, say, a Vivi here (I prefer VII to IX, but Vivi is simply the baddest character around. He rocks out.), someone who rules both in and out of the battlefield. It also suffers from the recurring flaws of the FF series: getting lost is very easy (and in a tough dungeon, nearly fatal), if you zone out when the dialogue tells you were to go next, you can be in serious trouble (there has been more than one occassion where I've stopped playing an FF game entirely because I left for a week and forgot where I was supposed to be going), and if you accidently exit a zone, you can miss a heap of important dialogue. This last problem seems even worse in VI, because they skimp on the warnings ("Are you sure you want to leave? (Yes) (No)"). On at least one occassion, I talked to characters out of order and missed what seemed to be a crucial plot twist.

This is all focusing on the negative, but the game really is awesome. Just not quite as awesome as its successors.

Friday, May 26, 2006

That's Rich (Unless You're Poor)

Awhile back, I wrote a piece discussing the GOP's obsessive loyalty to tax cuts and how it is virtually the only thing holding an otherwise fractured Republican coalition together. So they cut and they cut, and consequences be damned (This is about justice! Except when it isn't). Today, with the GOP's hold on power faltering, I felt this snippet from Bloomberg was worth noting:
The courts' involvement may deliver a victory to tax-cutting Republicans in Washington who are running out of taxes to cut and are facing a projected $300 billion budget deficit for this year.

Whatever shall they do? They've cut so much, there is nothing left to bribe rich Americans with! Hahahaha...heh...[sob].

H/T: Kevin Drum.

Wednesday, May 24, 2006

Sick Again

I feel like this term has not been my most healthy. I'm feeling abysmal. It's too bad, because there is lots of good bloggable material, but I just don't have the energy. Anyway, I finally got an appointment to go to the doctors, for 5:45 today. Hopefully those miracle-workers will get me back on my feet by the start of the weekend.

Monday, May 22, 2006

Indirect Assistance

The Washington Post gave front-page billing to the investigation of Louisiana Congressman William Jefferson (D). Long and short of it, things are not looking good for the Cajun State's reputation for political integrity (snark).

Republicans are trying to use Jefferson as proof that the culture of corruption is a bipartisan affliction. Paradoxically, though, Noam Scheiber argues that even if Jefferson does go down in flames, it still might hurt Republicans more. He predicts that either that voters won't read the story deep enough to get to Jefferson's party affiliation, or if they do, the effect will be to make corruption a bigger election issue, which can't help Republicans (as Scheiber notes, it is virtually impossible to imagine someone casting a GOP vote to show how fed up they are with Capitol Hill scandal). I'd add that Democrats have shown no inclination to protect Jefferson, providing an excellent contrast to the GOP leadership, which virtually fell over itself to shield Tom DeLay from the blowback of his illicit endeavors.

As to the scandal itself, I'll say this. Jefferson looks like he's guilty, and if he is, I say throw him to the wolves. But the point of the "culture of corruption" attack isn't to say there are no corrupt Democrats. That would be absurd. What's particularly appalling about the type of corruption we've seen in the GOP leadership is how it's been institutionalized. It's not just isolated hacks out for their own gain. It was ingrained in the very mechanics of how politics has been operating on the Hill for the last few years. That's what distinguishes a lone schmuck like Jefferson, and the immense machine of the K Street project.

Sunday, May 21, 2006

You Can't Do That!

Palestinian President Mahmoud Abbas on the prospect of civil war:
"Civil war is the red line that nobody dares cross, no matter which side they are on ... Civil war is forbidden," Abbas said.

I love that rhetoric...it's forbidden. Preventing civil war, fiated into existence by pure force of will. I wish it were that easy. Terrorism? Forbidden! Poverty? Forbidden!

Seriously, if Abbas has that sort of power, I wish he'd exercise it more often.