All Obama, All The Time

Barack Obama is on the cover of the latest edition of The American Prospect. And it's a great article. Here's a snippet:

That he has not pushed through major legislation matters hardly at all, not to him, not to supporters. He is a fledgling in the minority party and, during his first year, 99th in seniority. No matter. Obama has bigger ideas.

Back to the Democrats. The first part of his answer involves some boilerplate about the usual list of issues -- education, health care, energy independence -- peppered with deferential language about wanting to "be a part of the process." Then, he gets to the business about what makes him different: "Where I probably can make a unique contribution is in helping to bring people together and bridging what I call the 'empathy deficit,' helping to explain the disparate factions in this country and to show them how we're joined together, helping bridge divides between black and white, rich and poor, even conservative and liberal." Later, in a similar vein: "The story that I'm interested in telling is how we can restore that sense of commitment to each other in a way that doesn't inhibit our individual freedoms, doesn't diminish individual responsibility, but does promote collective responsibility."

Obama wants nothing less than to redefine progressive values, make them more universal, and unite the country around them. His staggering 72 percent approval rating in Illinois -- a number that reflects strong support not only in and around Democratic Chicago, but from Republican downstate as well -- shows he may be figuring out how to do that. His first year in the Senate suggests a man on a long, ambitious, and intricate journey. It's not too much to say that the future of the Democratic Party, and maybe even the country, could be profoundly affected by where that journey ends.

That quote at the end of the second paragraph, about restoring a sense of commitment to each other, strikes me as money. Too often, the American (and global) social climate seems to be one where we climb all over each other in adesperatee race to get ahead. Very Darwinian, very Adam Smith. But at the end of the day, I don't think most Americans are happy with a social climate that makes us all each other's enemies. We want to have neighbors we can trust our kids with; we want to know that if we run into a hard economic patch, some one will be there to set us straight; we want to be assured that if we get sick, there will be a doctor we can afford giving us the best treatment available. Those aren't liberal or conservative values. They're just American values.

All told, I was a relatively early passenger on the Obama train, beginning to get excited about him even before his stellar Democratic Convention speech. But one of the things the article pressed upon me was how close we were to losing him. In a very competitive 5-way primary, Obama was neither the party establishment's preferred candidate, nor the wealthiest candidate with his hat in the ring. That he managed to take an outright majority in such a field is testament to his incredible political skill. But still, it makes you wonder: What if....

Hitting the Cronies

For quite some time now (October 2005 is the earliest post I could find quickly, but I know I've been saying it since well before that), I've been adamant that the winning message for Democrats in 2006 is an anti-corruption, clean-government, the-GOP-is-power-drunk campaign. And wouldn't you know if they aren't starting to listen. Look at this new video released by the Jon Tester campaign attacking Montana Senator (and Abramoff crony extraordinare) Conrad Burns. Oh it feels good to watch. Check out The Billings Gazette on the matter too.

Meanwhile, Rick Santorum, by far the most endangered 2006 incumbent, is getting nailed on his connection to "The K Street Project," the GOP's on-going attempt to turn the entire lobbying community into an arm of the Republican party. Basic story: he denies that he had anything to do with them; folks point out he's lying. Not good for Ricky.

While I agree with Kevin Drum that the dynamics of the electoral map make a Democratic 1994 unlikely, I still think that the corruption issue will drive a few seats our way that we wouldn't be able to touch otherwise. And as folks come around to the notion that this is a Republican scandal, not a generic "congressional" one, I see this issue becoming only more potent as November approaches.

The Center of the Blogosphere

Though it's mostly on another subject, a line from this Todd Zywicki post prompted me to ask a question that's been niggling at me for some time. He writes:

My impression is that liberal blogs tend to be in some sense larger and more centralized (such as Daily Kos), whereas conservative blogs tend to be more plentiful, smaller, and more decentralized in structure.

Zywicki isn't the first one who's said this--it's a refrain I've heard for awhile now. My question is whether it's true? And what I really wonder is how much The Daily Kos distorts our picture of the thing.

Because when it comes to Kos, Zywicki is absolutely right. Kos is large, centralized, brings together a huge community, is a fund-raising machine, participates in activism--it pretty much is a massive, do-everything hub. And there really isn't any parallel on the conservative side of things. But, and here's where my question comes in, is there really anything else like it amongst liberals either? What Kos has done is absolutely amazing, no question. But across the whole blogosphere (left and right), I think of it as something of an anomaly. Outside of Kos, liberal and conservative blogs seem to behave roughly in the same manner. They have their heavy hitters (Kevin Drum, Josh Marshall) as well as plenty of middling and smaller blogs floating around. Take Kos out of the picture, and there doesn't seem to be any more or less centralization, monopolization, or conglomerization amongst liberals vis a vis conservatives.

Am I wrong about this? I know that "take Kos out of the picture" makes for a pretty big shift in the blogworld, but even still--I think that it's fairer to call Kos a singular phenomena rather than tag it as emblematic of the whole left end of the blogosphere.

Answering the Prayer

Prayers for the Assassin--Review

One of the more tragic traits of America's current political climate today is that opponents aren't just wrong. They're hacks, they're disingenuous, they're liars, they can't possible believe all the happy and moral sounding rhetoric they spout out. It has become impossible to even imagine that one's ideological adversaries are misguided but flawed. Instead, each party views the other with complete mistrust, certain that they have no principles or values, only an endless lust for power--and that they'll say or do anything to get it.

Robert Ferrigno's Prayers for the Assassin styles itself as a revelation of what will happen if America loses the war on terror. Set in a post-Civil War 2040 America, it has nearly 2/3 of the United States under an oppressive Muslim theocracy. But ultimately, Prayers for the Assassin isn't about bashing Muslims or Islam. It's about bashing liberalism.

One of the critical aspects that can make or break a novel is how well it constructs its "world." If it's a fictional universe, is that universe cohesive, uniform, and logical? Or is it built solely to satisfy the plot devices of the author? If (as in Assassin) the novel is set in the "real world", then are the historical events the author lays out reasonable predictions? This is Assassin's first real failing, as the book depends on several wildly implausible leaps to get us from a largely secular democracy to a near-totalitarian Muslim theocracy.

The premise of the book is that nuclear bombs had been set off in New York City, Washington D.C., and Mecca, Saudi Arabia. At first, it was assumed that these attacks were precipitated by Muslim extremists, but the world is shocked when America airs confessions by an Israeli spy that in reality, the "Zionists" were behind the attacks in order to discredit the Arab world. Credulous sheep that they are, the global populace buys the frame wholesale, and the new world order begins. A "Euro-Arabic" alliance invades Israel, which flees to Russia for sanctuary (apparently Russia gets over its severe internal anti-Semitism to do this--a social shift justified...in no way whatsoever). From here, things get a bit hazy. Americans convert en masse to Islam, though it is disputed as to why (some say it's because they blindly followed the conversion of a few pop and movie stars. Others say it's because they were sick of cheap, diluted religion and wanted something with some muscle behind it). In any event, the newly converted Muslims immediately launch a Jihad, dividing America into the Muslim North and West, and a Christian South consisting entirely of the states of the old Confederacy.

It only takes one or two sentences implying that the old South is bravely fighting for freedom against the Northern oppressors to realize that the author is clearly trying to affect some kind of psychological guilt release for conservative southerners, caught between their claims of uber-patriotism and the uncomfortable truth that they were the only Americans to openly commit treason against the state (and in the purpose of that most American of ends--slavery). The juxtaposition where this rebellion is justified is meant to imply that the last one is too. Otherwise, why would the only rebel states be the confederate ones?

To be sure, I do think that most American Southerners would not be too keen on the prospect of Islamic rule--and probably would fight aggressively against it. But the problem is that's true for most Northerners too. Not only are most Northerners not Muslim either, but their political beliefs are if anything even farther removed from radical Islam than are the prevailing opinions in the American south. Ferrigno shows zero respect for liberal ideological commitments--the entire spectrum of northern liberal socio-political norms is wiped away without any explanation whatsoever. That Ferrigno views his book as a political conflict, as opposed to a religious one, is further demonstrated by the political geography of his new nation. In addition to the aforementioned (and wholly unwarranted) North/South divide, the primary cities in the Muslim state are selected not for their connection to the American Muslim community, but for their connection to the American liberal community. Even though Detroit probably has the largest and most influential Muslim community in a major U.S. city, Seattle is selected as the capital of the new state (why not just make it Boston and be done with it?). San Francisco is labeled as "Sharia Central," and we are told that the Golden Gate Bridge has been redecorated using the skulls of stoned homosexuals (talk about a political turnabout!). One can almost see the author smirking as he wrote that package--he thinks it delicious irony, we know it's just wild delusion. Because what is missing is why the good denizens of Seattle, or San Francisco, or any northern liberal city made the abrupt switch from being on the left edge of American politics to the right fringe. Presumably, it's because of their Islamic conversion, but that just shifts the question back a notch (as well as raising the ultimately fatal question of why a largely liberal community would convert as one to an extreme manifestation of a religion opposed to their whole value system). The move only makes sense if one believes that liberals are normatively vacuous--that their entire ideology is just political parroting. This may be satisfying to hear for a certain class of rabid right wing partisans--but it's intellectual insulting to anybody else with a political pulse.

To be blunt, there is almost no set of reasonable assumptions one could make in which Ferrigno's scenario would play out. The book tries to draw a parallel between the Islamic strife growing in Europe and America's future. But the analogy is flawed--Europe has not even attempted to assimilate its Muslim minority, nor has it made even the slightest effort to incorporate Islam into it's cultural mosaic (the problem in Europe, ironically, is that there is no multi-culturalism, not too much of it). Muslims in Europe are in a permanent state of marginalization--designed to be a perpetual underclass. It doesn't take a Political Science major to predict ethnic strife resulting. By contrast, America's pluralist tradition and the recognition that "American" encompasses all faiths and ethnicities have made us a model for internal religious relations. There have been virtually no instances of home-grown Muslim terrorism in America; nearly all of our post-9/11 conflict has been with radical Muslim's who have been raised and educated in other states. The failure to even attempt to distinguish the overwhelmingly moderate American Muslim community from their radical Middle Eastern (and European) colleague is wholly unwarranted, wildly essentialist, and probably crosses the line into overt racism. Even in the Middle East, not all Muslims are reactionary radicals--there is, again, no reason to assume (and no reason given) for why in the space of a few years the entire American Muslim community abandons even the semblance of modernist ideals. That there is a powerful and radical variant of Islam in the world today is no answer--that's been true of pretty much every major world religion across history. Radicalism is only a path, it is not (in the case of Muslims or anyone else) an inevitability.

Furthermore, as much as conservatives hate to admit it, there is a real and vibrant liberal tradition in America. When people in San Francisco say they support gay rights, they aren't just biding their time until it's politically convenient to bash lesbians with rocks. Sometimes a spade really is a spade, and by and large the liberal desire for a pluralist, secular, and progressive democracy is quite genuine. Only a tiny sliver of left-wing academia even purports to defend Islamic radicalism as such, and I suspect even this group would default to its underlying progressivism if the prospect of a theocracy hit our doorstep. I hate to make the argument, because (as I said earlier) I don't believe any major American political unit really would buy into fundamentalist Islam, but if anything it is far more plausible that the conservative elements of American society would make common cause with their Islamic compatriots. If any stoning of homosexuals is on the American horizon, it's going to happen in Birmingham well before it happens in San Francisco.

In every aspect, the book goes out of its way to insult liberals and their allies, while at the same time implying that there are no actual liberals at all. The only Christian group to align with the Muslim theocracy is the Catholic Church--traditionally the largest liberal Christian denomination. Perhaps the only positive attribute given to the Islamic State is that it purports to have no poverty ("you can have your social welfare state--but only if you're willing to have women locked in their homes!"). And nearly every character in the book has dialogue along the following lines:

Main Character: This regime is crushing us! We can't write freely, we can't read freely, we can't even think freely!

Minor Character: Would you prefer the old regime? I remember back then, the government was so bad they [banned prayer in school/funded obscene art projects/struck God from the Courtroom/let criminals run amok in the streets].

With all the subtlety of a sledge hammer, Ferrigno is blaming liberals and liberal policies for turning all of America into a parody of its individualist, modernist values. Lovely sentiments, but in the real world things are more complex than that, and conservatives deserve at least as much blame for systematically undermining modernist values as liberals do for (perhaps occasionally) pushing them too far.

Prayers for the Assassin can be an entertaining thriller, along the lines of The Da Vinci Code (although nowhere near at that level of talent), if one can overlook the naked political agenda behind it. This is a bit like saying Darfur is a nice place to visit if one can overlook the genocide, but in a sense it doesn't matter because I honestly think Ferrigno wants us to take his geo-political predictions seriously. Otherwise, why would he be seeking out political bloggers for reviews? If that's the case, then it might be the saddest thing of all, because Ferrigno's vision has all the plausibility of a drug-induced hallucination. I'm not actually going to say the book is completely bad, because purely as a drama it hits a good pace and pulls the reader along. But the political stench so overpowers the rest of it, and is so blatantly partisan, that whatever benefits it might have as pulp fiction are completely eradicated. If you're going to relax with mindless fiction, try to avoid the ones which suck out your soul in the process.

Pro-Life Progressivism

Apropos my obligatory Roe post, I think there are several readers who would be interested in an upcoming Symposium in the University of St. Thomas Law Journal entitled "Pro-Life Progressivism" (H/T: Thomas Berg). Professor Berg has posted his introduction to the Symposium onto SSRN, and Mark Sargent's contribution, "The Importance and Coherence of Pro-Life Progressivism" is already online.

Although I prefer to avoid terms like "pro-life" and "pro-choice", given that I a) am on the fence and b) like both values, I think that much of the positions that would fall under "pro-life progressivism" would closely mirror my own. An excellent quote found in Professor Sargent's footnotes illustrates the point of convergence:

While liberal feminists support the legality of abortion, many have moral reservations about the high incidence of abortion in the United States. Nevertheless, for these feminists, the way to reduce the incidence of abortion is not to burden or coerce involuntarily pregnant women but to press for reform policies to create alternatives for such women. This sounds remarkably similar to what some Catholic pro-lifers are currently doing regarding abortion policy in the United States – educating public opinion and sponsoring programs which offer alternatives to abortion for involuntarily pregnant women. This is not to minimize basic differences between Catholics and feminists concerning the moral status of fetal life and the primacy of women's autonomy. Rather, it is simply to point out possible areas of agreement and cooperation between these two groups at least with respect to public policies to assist women. [Mary C. Segers, "Feminism, Liberalism, and Catholicism," in CATHOLICISM AND LIBERALISM 263-64 (R. BRUCE DOUGLASS & DAVID HOLLENBACH, EDS., 1994)]

I have advocated heavily for this sort of "alternatives-first" approach to the abortion issue. In fact, where I break with most pro-lifers is that I advocate that method to almost a complete exclusion of the traditional "legal sanctions" model, where abortion is outlawed and/or criminalized. I do have moral qualms about abortion, but they are tempered by two major points: 1) That I also recognize the competing value of woman's autonomy which I think is very important here and 2) that I think abortion represents a singularly poor venue for law-based solutions. As I result, I reconcile my internal divide by trying to reduce the number abortions not by prohibiting it, but by reducing the times when abortion is either necessary, coerced, or is "the best available choice."

Anyway, I'm just a novice at this issue. Hopefully the Symposium itself will be quite thought-provoking!

Gun (and Bait) Registration

Interesting story via BlackProf about a Florida bill which would mandate that gun and bait shops offer voter registration. In of itself, I see no problem. But as usual with these sorts of things, the problem is one of disparate impact. A Democrat in the legislature tried to amend the bill to add beauty shops and day care centers to the list, and was rejected. I think it's fair to say that gun and fishing aficionados are more likely to vote Republican, while day care centers and (to a lesser extent) beauty shops might attact more Democrats. By making an aggressive push for one party's registration, while ignoring the other, I think the state crosses the line from fair promotion of democracy into naked partisan gamesmanship.

Show a little class, Florida.

Obligatory Roe Post

It's Roe's anniversary (a friend noted the irony of calling it a "birthday"), so I suppose I have to write something about abortion politics in America today. I think I write abortion much less than most political commentators, primarily because a) the issue doesn't interest me that much and b) I'm rather conflicted on the subject anyway. I remain probably closest in alignment to a Clintonite "safe, legal, rare" philosophy, but my guiding star is that every abortion represents, in some respect, a failure of society. A failure to provide adequate birth control, a failure to make child-birth a real option for women, a failure to stop penalizing working mothers--whatever it is, something went wrong. So our policies should try and fix those underlying problems, rather than a (to my mind) simplistic solution based off criminalization.

So I'd just like to cite a few statistics I think would be of interest. In Jimmy Carter's new book (as quoted by Chainz of Restless Mania), he writes that

Canadian and European young people are about equally active sexually, but, deprived of proper sex education, American girls are five times as likely to have a baby as French girls, seven times as likely to have an abortion, and seventy times as likely to have gonorrhea as girls in the Netherlands. Also, the incidence of HIV/ AIDS among American teenagers is five times that of the same age group in Germany.... It has long been known that there are fewer abortions in nations where prospective mothers have access to contraceptives, the assurance that they and their babies will have good health care, and at least enough income to meet their basic needs.

This leads Chainz to comment a feeling I've had for a long time, that the pro-life movement, as an institution, doesn't seem to really care about the lives of the innocent. I think Feministe once said they weren't "pro-life", they were "pro-birth". They just want the child to be born. Once that happens, they promptly lose interest in his or her future (if they don't become actively hostile to it).

I also wrote two articles in our progressive political journal (The Carleton Progressive) about Roe, one laying out the reasons for pro-choice liberals to let it die, and the second explaining why I didn't actually believe the analysis I gave in the first (links if they become available). A pro-life friend of mine read the articles and wanted to discuss abortion with me. Mostly, I just made an elongated argument of what I said above--I don't like abortion, but I don't think law is a good solution to the problem, and instead we need to deal with underlying effects while keeping it "safe, legal, and rare." But he cited me statistics that said 90% of women who get abortions use them for "birth-control" purposes. I said I was skeptical of the study (or at least how its findings got labeled). He sent me a link, and I think my skepticism was justified.

The study asked what the "main reason" women had an abortion across several categories:

Wants to postpone childbearing--25.5%
Wants no (more) children--7.9%
Cannot afford a baby--21.3%
Having a child will disrupt education or job--10.8%
Has relationship problem or partner does not want pregnancy--14.1%
Too young; parent(s) or other(s) object to pregnancy--12.2%
Risk to maternal health--2.8%
Risk to fetal health--3.3%
Other--2.1%

I'd imagine that whoever said this totaled up to 90% was only counting the last three categories as not "birth-control". But I'd only put the first two categories as "birth-control," the rest seem like perfectly reasonable decisions by a pregnant mother reflecting on her future and social/economic situation. The leads to less than 30% of women using abortion as "birth-control," and upwards of 70% using it as a response to some form of external economic, social, or medical pressure.

So there's your obligatory Roe post. I hope you're happy. Comments appreciated, but again, this isn't an issue that really concerns me that much. I understand people who take it very seriously--I understand why this can be your be-all-end-all. But even still, I'd be much happier if this issue was reduced in importance in American political debates and we let other issues rise to the fore.

Patrolling the Old Line State

According to Alas, a Blog, a Maryland court has issued a decision holding that the prohibition against same-sex marriage violates the Maryland constitution. That's a positive, but Ampersand is worried that the legislature will overturn it. And state Democrats seem none-too-pleased either.

As Amp notes, to overturn the state constitution, you need the approval of 60% of both legislative chambers, plus a majority of Marylanders voting for it on a ballot referendum. I think that the Maryland state senate, at least, can block this off. With 33 Democrats to just 14 Republicans, anti-gay forces would need to poach 15 Democrats (and hold their entirely party together) in order to pass the amendment. This doesn't seem feasible to me. What may be problematic is the alignment of the state's highest court, which apparently consists of 3 liberals, 3 conservatives, and one Democrat appointed by a Republican whose tenure is too new to evaluate. So there is no guarentee that the ruling will even survive on a legal level.

However, that won't stop it from impacting highly contested races in the state. Maryland currently has an open senate seat that Democrats should hold (but Republicans are making a game effort for). More intriguingly, Democrats have been itching to take a shot at Governor Robert Ehrlich ever since he slid into the office past the incompetent Kathleen Kennedy Townsend. Two of the state's hottest political stars, Montgomery County Executive Doug Duncan and Baltimore Mayor Martin O'Malley, have both declared their opposition to Ehrlich in 2006 election. By all accounts, he should be sweating, but gay marriage is always a life boat for conservatives anywhere. If this was any other election season, I could see the Maryland legislature resisting anti-gay moves, but this is the most in-the-air electoral season Maryland has seen in a long time, which could lead to some kooky positions. Keep an eye out.

Penetrating Ideas

Richard Jeffrey Newman has posted a superb response to my piece regarding the links between anti-Semitic and anti-Israel ideologies. If you start reading the post, this may seem to be a bit self-serving, as he agrees with most of what I say. But he also makes what I consider to be a fair attack on me at the end--that by saying that anti-Semitism is the key issue in the I/P debate, I'm marginalizing Palestinians who presumably have other values at stake. And that's true--while I believe that anti-Semitism is "the" center in the outside academic debate swirling around the conflict, for the actual on-the-ground participants, there are a multiciplity of factors in play that vary from person to person and go well beyond anti-Semitism. I don't think that most of the locals--Israeli or Palestinian--have all that much use for the rhetoric of the intelligentsia anyway, they've got more immediate problems on their hands. But even still (perhaps especially still), their perspectives do matter and shouldn't be rendered invisible as a by-product of a justified attack on the global academic left. So, as I said in his comments, I modify my previous assertion: while I think that anti-Semitism is "the" center for western academic discourse on Israel, it is one of at least two (possibly more) centers in the localized conflict environment.

Meanwhile, if I'm reading this email (reprinted by PrawfsBlawg's Hillel Levin) correctly, then Professor Kenji Yoshino has favorably cited my blog post on his book. Here is the relevant Yoshino quote:

In terms of remedies, I'm with the person who responded to your post by observing that a rights-based approach can protect difference by finding common ground at a higher level of generality. To take a simple example, a right against discrimination on the basis of religion would protect individuals of different religions. I don't think this universal rights approach is a panacea, but I do think it is an avenue our courts and legislatures should explore further. In fact, as our country gets more diverse, I think we will be driven toward this universal liberty approach because the group-based equality approach lends itself to the very balkanization you describe. Last quote: "Ironically, it may be the explosion of diversity in this country that will finally make us realize what we have in common. Multiculturalism has forced us to vary and vary the human being in the imagination until we discover what is invariable about her." p.192.

The emphasis is my own. So is that person me? Well, here was my quote:

When we affirm the right of other cultures to have their own identity free from social stigma, we aren't crafting some bordered ethnic sovereignty model within which they can freely operate and from which we are irrelevant players. It isn't a conference of exclusivity. It's just a different type of shared value: the value of autonomy, the value of human dignity, and yes, as Levin says, the value of respect. I wish for my choices to be respected, and thus I respect the choices of others. This is not an uncrossable gap. Much the opposite, it creates a very strong and very deep bond between all of us as persons that, by protecting ethnic, religious, and social bonds, also transcends them.

I've trolled through the comments in Hillel's posts, and I don't see anything closer what he purports to agree with than that. So I think I can fairly say it was me.

There's no impact here. It's just cool to have a Yale Law Professor say "yeah, this guy's got it down." And like with the other post, it's nice to see that smart people are agreeing with what I say. I love a good debate, but having allies every once in awhile does wonders for the ego.

Cover Four Defense

Yale Law Professor Kenji Yoshino has published what looks to be a fascinating book, "Covering: The Hidden Assault on Our Civil Liberties". It also has its own website giving us the nickel explanation of the book's concepts.

Essentially, Professor Yoshino argues that many marginalized persons, be they racial minorities, women, homosexuals, religious persons, or the disabled, "cover" their identity in order to assimilate into contemporary society. "Covering" is a cousin to other ways that minorities try to minimize the stigma that comes with their disenfranchisement. Probably the most well studied way of doing this is by "passing," simply pretending to be a member of the dominant cultural group (for example, a light-skinned black who acts and expects to be treated white); another Professor Yoshino adds is "conversion" (being coerced into becoming part of the dominant group, as in homo- to heterosexual conversion therapy). "Covering" specifically does not consist of denying ones status as a person, but minimizing or "toning down" the more well-known aspects of it. A black woman not wearing cornrows, for example, or a Jew who foregoes his Kippah, for example, would both be "covering" their identity even if they don't explicitly hide it.

Yoshino says that covering can occur across four axes: Appearance, Affiliation, Activism, and Association.

Appearance concerns how an individual physically presents himself to the world. Affiliation concerns his cultural identifications. Activism concerns how much he politicizes his identity. Association concerns his choice of fellow travelers -- spouses, friends, colleagues.

Some people cover over only a few of these, others across all of them. However, all of us cover to some degree, as we all suppress certain aspects of our identity in order to fit into what mainstream society expects of us.

I first heard of the book through PrawfsBlawg, where Hillel Levin has written two posts discussing the book. He's sympathetic, but wary of the type of division that can occur when we put too much attention on what separates us rather than things that unite us:

At the same time, however, I strongly believe that there is a value in conformity. It seems to me that the melting pot ideal--with all of its limits--is still a worthy ideal; and surely the melting pot calls on us all to conform and cover. I fear that Yoshino's argument, if taken to its logical conclusion, leads to a world in which we can all respect each other--a laudable goal--but in which we cannot talk to each other. After all, our communication and identification is based on our common and shared experiences.

I understand Levin's concerns, but I don't they necessarily flow from Yoshino's argument, even if taken to its "logical conclusion." Protection from covering does not eliminate the qualities that we share, it just moves them to a more abstract level. Christians and Jews don't share a common practice of wearing skull caps, but they do share a common value of religious autonomy. Yoshino, I believe, is cognizant of this, writing in his Q&A section that

courts can still protect individuals from covering demands, by relying on liberties that all Americans hold. For example, the Supreme Court struck down a statute in 2003 that criminalized same-sex sexual intimacy. But it didn't decide the case as a gay-rights case. Rather, it said that we all -- straight or gay -- have a right to control our intimate sexual lives. I love this approach because it protects our right to be different, but by focusing on what unites us as Americans rather than on what divides us.

I think that's really important analysis, because it cuts to the heart of why I can support new progressive civil rights projects such as this. If the end result was to divide us into non-communicative cultural fiefdoms, then I don't think whatever benefits we might be able to pull would be worthwhile; aside from the fact that I think inter-group dialogue benefits us all, my Jewish background makes it morally imperative that society has the capability to intervene in other cultures' "problems"--at least in certain limited situations. But I don't think that "equality of difference" paradigms will lead to that world. When we affirm the right of other cultures to have their own identity free from social stigma, we aren't crafting some bordered ethnic sovereignty model within which they can freely operate and from which we are irrelevant players. It isn't a conference of exclusivity. It's just a different type of shared value: the value of autonomy, the value of human dignity, and yes, as Levin says, the value of respect. I wish for my choices to be respected, and thus I respect the choices of others. This is not an uncrossable gap. Much the opposite, it creates a very strong and very deep bond between all of us as persons that, by protecting ethnic, religious, and social bonds, also transcends them.

Yoshino gives the example of parallels between homosexuals and religious persons (obviously different religious groups have different views on homosexuality, but let's focus on the conservatives). Anti-gay discrimination, in its current form, is primarily against "flaunting" homosexuality--you can be gay, but don't let me see it. And while I think that the cries of the religious right that they are persecuted against are wildly overblown, the one area I think they do have a just claim is that in many places, being "flamingly religious" comes with massive social stigma. At Carleton, I know a fair few religious persons--nearly all feel compelled to erect some defense around it. The liberals are quick to disassociate themselves from the Pat Robertson/Jerry Falwell wing of their faith, less they be tainted as bible-thumping Neanderthals. And the conservatives mostly just withdraw from political dialogue completely--they know a hostile environment when they see one.

In other words, at some level religious persons and homosexuals are in the some boat. Religious Christians feel compelled to cover their identity in order to receive mainstream legitimacy; homosexuals feel compelled to cover their identity in order to receive mainstream legitimacy. This similarity of status creates grounds for social change--the right of homosexuals to not be just heterosexuals with better hair can be analogized to the right of Christians to not be just atheists wearing crucifixs. This sort of comparison strikes me as fruitful grounds for social reform in areas where classical forms of communication have stagnated.

Ideological Players

In an otherwise sad post commenting on the demise of the print version of Legal Affairs, Orin Kerr also points me to the latest debate on their site, this one between Yale Law Professor Peter Schuck and Texas Law and Philosophy Professor Brian Leiter. The subject is one of my favorites, whether law schools should strive for more ideological diversity. So far the debate has largely tracked traditional lines, with Schuck citing all sorts of studies saying that there are more Democrats than Republicans on law school faculties, and Leiter indicting the credibility of the studies (or at least, the ability to draw the conclusions Schuck does with the data presented).

Leiter also argues that ones general political orientation is a poor indicator of what one feels about legal issues. He asks "what exactly is the 'white Republican female' viewpoint on the analysis of causation in tort law, default rules in contract, the empirical foundations of the hearsay exceptions, the scope of the dormant commerce clause, the relevance of behavioral law and economics, or the professional responsibilities of insurance defense lawyers?" I'll admit I probably couldn't answer those questions because I don't have any formal legal training. But I'm still not convinced political ideology has no bearing on any of these things. Presumably, all have normative implications--that's why we're debating them. And the process by which we determine what issues or positions or arguments are correct seems relatively constant across various issues--even esoteric ones. Obviously, people do break from the "mold" in their beliefs, and I'd even be willing to concede that there is a significant portion of persons wgo, for a variety reasons, conduct normative legal analysis using a separate value system than their political analysis receives. But I don't think that the way politics interacts with law and legal teaching can just be dismissed, or minimized to the degree Leiter does.

Anyway, the debate is on-going at the site. So we'll see how it plays out.

Pre-Game Round-Up

What time is it? It's debating time!!!! I'm off to my first debate tournament of the term this weekend, leaving at 4:30 AM Friday morning. It's in Seward, Nebraska, which kind of sucks, but on the other hand our 6 hour drive takes us through scenic Iowa. I bet the time will fly.

In any event, I'm bringing my computer along (I have some editing I need to do), but I can't guarantee that they have the internet in Nebraska. So the blog may be on hiatus until Monday. But until that happy day, here is a variety of interesting stuff to tide you over.

Terra Nova is a blog exploring issues surrounding online multiplayer games. That may seem geeky to the extreme, and perhaps it is, but the contributors are all legitimate scholars or experts on the subject. Some of the posts are actually quite fascinating, and I speak as someone who has never partook in any sort of online gaming experience whatsoever (well, internet Reversi a few times, but that is IT).

Patrick Belton has a neato post on the upcoming elections in Palestine. Hamas, of course, is the X factor here:

Skulking about the strategic studies centres of their universities, the Israelis seem of two minds when it comes to Hamas's projected strong showing in the polls - either it won't be that bad, as they'll likely moderate and deal cleanly with administration and garbage collection, or it's an end to Oslo and the start of a good bit of jihad; there's also the possibility the lads in green might accidentally win outright, which no one seems to want, least of all possibly Hamas. ('Much easier to keep your virginity when you're not in power,' was how an analyst at the Jaffee Centre put it to me.)

As for me, I have a lot of trouble getting past the fact that the far-and-away most popular candidate in that election is currently serving life in prison for quintuple homicide. But I suppose that's just the cynic in me talking.

A pair of good posts are up over at PrawfsBlawg, one by Tun Ying about the difficulty in applying traditional international law metrics to the current war on terrorism (especially status-of-detainee questions), and another by Rick Garnett about a forthcoming article by two Ivy League Law Professors entitled "Christianity and the Modest Rule of Law." This strikes me as a topic for Mark Olsen to tackle.

Fortunately, I don't have too many flamers in comments, so I don't need to resort to this tactic to get rid of them (yet).

Ian Ayers delves into Alito's professed ignorance about the discriminatory policies of CAP, using it as a springboard to discuss "associational fraud." Ayers wants groups to be more transparent when they deviate from generally applicable anti-discrimination codes (such as the Boy Scouts' anti-gay discrimination). I've previously expressed concern over the proposal, though I'm certainly sympathetic. Also at Balkinzation, Professor Balkin himself gives the best analysis I've seen of the Supreme Court's Ayotte decision.

Daily Kos has a new election toy. It's fun--check it out!

Interesting analysis of Bin Laden's "truce" offer over at Restless Mania. See also Dan Drezner.

Crooked Timber gives UCLA Profs (of which I previously blogged about here) only 1/2 a McCarthy out of 5. How sad. But keep trying folks!

Hilzoy of Obsidian Wings has an absolute must-read post on the Medicare "reforms" and how it could affect her.

The more I read about Paul Hackett, the more I can't decide if he's crazy or a breath of fresh air. Lindsay Beyerstein has his latest foray to the media.

Dan Filler examines the Supermax prison.

Alright! Hopefully, I'll also post this weekend (or even later tonight), but if not, see you Monday!

The Radicals Exposing UCLA's "Radicals"

Now here is something vaguely disturbing. A segment of the blogosphere is racing on this story about "UCLA Profs", a website dedicated to "exposing UCLA's radical professors."

There are several things disturbing about the site. The most obvious is their policy of soliciting cash donations from students who provide information about so-called "radicals." UCLA Law Professor Jerry Kang (whom I've previously expressed admiration for) notes that this might be illegal.

But really, the big problem is the disconnect between the stated purpose of the site and what it actually does. As the "About" section makes clear, the site nominally is about preventing Professors from incorporating and proselytizing their "radicalness" in the classroom (at least where it isn't topical):

As a large number of the profiles also demonstrate, these professors are actively proselytizing their extreme views in the classroom, whether or not the commentary is relevant to the class topic.
[...]
Take a minute to skim several profiles. The need for an academic freedom movement that respects both the professor and the student should become clear.

We believe there is hope for depoliticizing the classroom and emphasizing professional behavior - provided we can count on your support.

By itself, this isn't too objectionable. The idea that professor should limit themselves to their topic area, and not be missionizers in the classroom, is at least a reasonable position to take. But yet, it doesn't seem like they are limiting themselves to that. Instead, they are just targeting professors who take positions in their scholarship which they dislike, or who take public political positions that aren't sufficiently conservative (John Cole predicted this without even reading a word on the site).

Take Professor Kang, who (rather surprisingly, to my eye) made their original list. Their justification is really nothing more than he has written defenses of affirmative action, while at the same time disapproves of racial profiling. I understand that conservatives may not like those positions, but in today's political climate they hardly qualify as radical. Worse is the persistent undertone in the piece that Kang is a traitor to his race. They ask

"Why would this Korean-American, who managed stunning educational achievements in spite of 1980's-era racial preferences, favor a system that so manifestly harms his own ethnic group?"

Later, they get on him for his writings on the grave injustice of the Japanese internment--again, implying that he shouldn't care because he's Korean-American:

[Kang] has internalized the historical tragedies of one group as though they were his own. Thus, we find Kang waving the bloody shirt of Japanese internment every chance he gets.
[...]
Kang's strange preoccupation with this historical footnote is in defiance of all reasonable history. Kang was born in South Korea, a country that (in its original undivided form) suffered for 50 years under a harsh imperial Japanese occupation. Moreover, South Korea was a country saved from Communist despotry by the United States not less than a decade after our brief use of Japanese internment camps.

Emphasis added. Of course, calling the Japanese internment a "historical footnote" might be the most radical thing I've read today. But more importantly, the implication that a "good" Korean should just laugh at American injustice toward other Americans (of Japanese descent) is both morally appalling, and gives lie to their self-proclaimed support for treating individuals as individuals, and not markers for their specific ethnic group.

In terms of how they deal with Kang's research, their grasp is laughable at best. They understate his findings, distort his positions, and most importantly don't understand the scholarly context in which it operates inside of--points which would answer many of their objections if they bothered to do the research. But really that's besides the point, because again at the end of the day all they're proving is that Kang disagrees with them, not that Kang is some blight on UCLA's campus. In fact, given their surprising admissions of Kang's rhetorical and argumentative skill, it seems most likely that this group simply wanted to tar an able advocate for progressive causes in California and across the country.

I just went through Kang's profile, because he was the scholar I recognized, but he doesn't seem to be the only one attacked solely for his academic or public positions. UCLA Corporate Law Professor Stephen Bainbridge adds another of his colleagues (see below), and Jennifer Mnookin, another UCLA Prawf (albeit one not on the list) claims that:

Also, while claiming that their concern is about bias in the classroom, when I skimmed through the profiles of a few of my colleagues who made the list, what I saw instead was nasty, vitriolic attacks on their scholarship, their political activities, and nary a word about alleged bias within the actual classroom. In both tone and vehemence, it seemed to me like familiar right-wing radio tactics brought home to the ivory tower, not a pretty sight.

I should note that the two conservative professors I know at UCLA, Stephen Bainbridge and Eugene Volokh, take exactly the right line on this. Bainbridge writes:

My major objection to the BAA project is that they're mixing apples and oranges. In some cases, such as my colleague Jonathan Zasloff, they don't offer a single shred of evidence of in-class bias or other abuses of position. Instead, they object to various political activies in which Zasloff has engaged outside the classroom and on his own time. If that's the standard, than people like me and Eugene Volokh should be on the list too, since our work for conservative causes differs but little from that of Zasloff for liberal causes.

If BAA is going to go forward, a question on which I am firmly agnostic, I should think...they also need to draw a distinction between in-class abuse of position and legitimate political expression outside of class. So far, it would seem, they are falling down on [that] score[].

And Professor Volokh similarly notes the shallowness of their critiques in his own post.

Both Volokh and Bainbridge also further note that as a general matter, fair public criticism professors is not something that is bad. It is a constitutional right, and some might say also a positive boon to our collective academic discourse. If public criticism acts as a deterrent to taking controversial views, Volokh asks, then why do professors have their tenure protections at all? And Bainbridge notes that in the internet age, criticism is something that the powerful are just going to have to have to suck up and accept:

Getting feedback from the proletariat is always unsettling for authority figures, even radical left authority figures who have devoted their lives to deconstructing all authority (except their own). The initial and, perhaps natural, reaction is to decry it as McCarthyism and a danger and so on....

Upon mature reflection, however, we have to realize that the world has changed. Those over whom we have authority now have at their disposal technology that gives them a very loud megaphone. Very public criticism has become the lot of all authority figures, including those within the ivory tower.

All of that is well and good. This sort of free debate is neither bad nor, in today's world anyway, possible to stop. Liberal professors should not be ashamed of their political beliefs or of their public revelation. But this particular site claims to be about revealing the "classroom politics" of the "radicals." And it's not. It's simply a poorly informed smear job performed that doesn't even meet it's own professed reason for existence. It conflates the two very separate issues of radical politics in scholarship or in the "public," and discrimination or missionary activity in the classroom. Play the game straight, or don't play it all. That's not too much to ask.

Quick update: I'm stunned that Devon Carbado didn't make their list. He's certainly a lefty, and an extraordinarily talented one to boot. If I were him, I'd be insulted he wasn't put on. But anyway, he also has an interesting post from an insiders-perspective.

Death Watch

The U.S. Supreme Court has just struck down a federal effort to stop legal assisted suicide in Oregon. Oregonians have twice approved the law for effect in their state, but then-Attorney General John Ashcroft tried to circumvent the law by interpreting that Controlled Substances Act in such a manner as to preclude the Oregon law. By a 6-3 vote, the Court held that this was beyond the scope of what was authorized by the CSA (Roberts, Scalia, and Thomas dissenting). The case was Gonzalez v. Oregon.

There are a couple points to be made here. The first is the most obvious: how this case is an arrow through the heart of conservative claims to support federalism--or strict constructionalism for that matter. Consider this nugget from Scalia's dissent:

The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But....[f]rom an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality....

You got that? Even though it is found nowhere in the constitution, and justified by nothing more than a vague reference to "public morality", and involves an area traditionally left to the states, it's still a perfectly permissible. Oh, and though Scalia says that we've done this "from an early time in our national history," the earliest case he cites is from 1903, a good 110 years beyond the drafting of the Interstate Commerce Clause, and well beyond the time when a good little originalist like Scalia normally considers to be an "early time" for a constitutional clause. Not only that, but as Legal Fiction notes, Scalia isn't even consistent with that formulation--his vote to strike down the Violence Against Women Act seems difficult to square with an opinion that says congress can use interstate commerce to regulate morality (unless, of course, beating women isn't a moral issue at all).

Robert Tsai gives the take-down of Justice Thomas' separate dissent.

An interesting question is why Oregon lost Justice Thomas, who is moved to write separately. Remember, Thomas dissented in Gonzalez v. Raich, in which the Court struck down California's medical marijuana law as interfering with the CSA's regime. The state had an extremely difficult argument because Congress has specifically enacted a law listing marijuana as a schedule I substance. By contrast, the Republican Congress had tried to ban assisted suicide and failed to muster enough votes before Ashcroft issued the interpretive rule.

There are three possible explanations for Justice Thomas' sudden coolness toward federalism. First, he really does believe that Raich decided every possible federal-state question that could arise involving the CSA. I think this is unlikely--not even Scalia would go that far in his devotion to stare decisis--and Justice Thomas has in other federalism cases shown a willingness to narrowly construe inconvenient precedent. Second, he does not particularly believe that life-ending decisions are the kinds of things that implicate core state powers. A third possibility is that he is personally opposed to suicide of any kind, and his willingness to permit the cultivation of national moral standards trumps his sympathy for state sovereignty. In my view, the answer involves some combination of explanations two and three.

Nothing more to add to that--it's the politics, baby.

That's all very interesting, but it's been said by every commentator under the sun. What I'm interested in is what it reveals about our new Chief Justice, John Roberts. His dissenting vote on this case is very interesting. It is difficult to imagine a state's rights advocate like William Rehnquist making this vote. So right there we have a major difference in opinion between the old Chief and the new one--one I don't think reflects well on Roberts.

Because while this case had federalism implications, at its very core, it was actually an executive power case. Did the Attorney General (a member of the Executive Branch), have the authority to interpret a federal statute in this manner, or did it need congressional authorization first? This may seem rather arcane, but look at how Orin Kerr excerpted from Justice Kennedy's majority opinion and you may see what I'm getting at.

[T]he Attorney General claims extraordinary authority. If the Attorney General's argument were correct, his power ... would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General's limited authority ... but to have given him, just by implication, authority [over] an entire class of activity ....
[...]
The Government, in the end, maintains that the [statute] delegates to a single Executive officer the power to effect a radical shift of authority .... The text and structure of the [statute] show that Congress did not have this far-reaching intent to alter the [institutional] balance and the congressional role in maintaining it.

As Kerr notes, this is precisely the type of language one can imagine being used in the NSA wiretapping cases, in opposition to the broad and unrestrained federal power the President claims he has inherently under Article II. And by contrast, Roberts' dissent shows that he is quite comfortable with extraordinarily broad interpretations of executive power with little or no congressional authorization to back it up.

Finally, Professor Bainbridge is "confused" as to why "federal drug law does not preempt state law when it comes to doctors prescribing drugs so their patients can kill themselves, despite the long-standing moral and legal traditions against suicide. But federal drug law does preempt a state law that would allow doctors to alleviate suffering by prescribing a simple joint." The "hyper-technical" explanation you seek, Professor, is that congress authorized the latter but not the former. I don't think that Professor Bainbridge himself subscribes to this theory, but it really is a sad day in America where congressional approval of executive actions really is argued by some to be an irrelevant "hyper-technical."

See also: INDC Journal
John Cole
Baseball Crank
Kevin Drum
Rick Garnett

Another issue I want to hit briefly was a CNN report on a Massachusetts case involving removing an 11 year old girl who is in a permanent vegetative state from life support. Here's the twist: she's currently under the custody of the state. The person suing, and the closest thing she has to a legal guardian, is her step-father--who stands accused of committing the beating that put her in this state. The Court ruled that the state can take her off life support

This is a perfect manifestation of the axiom that "great cases and hard cases make bad law." I'm uncomfortable with giving the state authority to make this decision--but letting her abusive step-father do it seems, if anything worse. Anyway, just though I'd throw that one out there, because it's topical and timely.

UPDATE: So of all the folks accusing Scalia of hypocrisy, Baseball Crank (C/P'd at Redstate) plucks me out of the crowd to set an example with. It's a good post, but I don't come away convinced that Scalia is saved here.

The crux of the argument comes down to two things. The first is the whole nebulous "public morality" justification for legislation. Scalia thinks that this is "settled law," but it's hard to see how in the wake of Romer v. Evans and Lawrence v. Texas. Scalia was indeed apoplectic at how these cases eroded the government's power to make morality based legislation--it's hard for him to turn around two and a half years later and say it's still "settled."

The second is on enumerated "powers" versus enumerated "purposes." Congress must clearly stay within the former, the question is what it has to do with latter. And I think that's a complex issue. For the most part, I don't think congress has to stay within enumerated purposes when enacted legislation. However, there is a significant caveat to this. When we're dealing with areas normally delegated to the states (of which medicine is clearly one), we better be damn sure that congress actually intends to impinge on that authority. It can do it, perhaps, but we shouldn't assume it--the we being either the Courts or Executive Branch interpreters. Absent specific congressional language to the contrary, there is no good reason to assume that "legitimate medicinal purpose" should be removed from being traditionally defined by the states and transported to a federal issue. This seems like a reasonable, conservative way of interpreting statutes (at least in the post-Wickard v. Filburn era)--we should assume them to respect federalism unless they specifically decide not to. There is also a second caveat, that there are illegitimate purposes even granting Article I powers (such as expressing sheer malice), but that isn't pertinent here.

I think a great analogy is to soon-to-be Justice Alito's defense of his opinion striking down a federal ban on Machine Guns. He didn't say that the federal government has no power to do it inherently, he just said if it's going to rely on the ISC clause, it better provide some actual findings to back it up. Scalia's opinion in Lopez also casts problems on his consistency--if the fact that guns usually cross state lines to reach schools doesn't implicate the commerce clause, how does medicinal drugs crossing state lines suddenly bring it back into play?

See also Protein Wisdom
INDC Journal
Political Spectrum

Guilty Parties

It turns out the one of the bigger bloggers on the net, Wizbang, has posted a response to my call for giving the foreign-born children of illegal immigrants who have spent the majority of their educational careers in the states the benefit of in-state tuition. I really wish these people would trackback to me specifically, rather than my pointer posts at TMV. Actually, that goes for comments too. But I digress.

The crux of my argument was that these people came over as children and thus should not be held responsible for "illegal" activities. Wizbang proclaims to "demolish" that argument through the following:

First, let's look at the "punishing the children for the sins of their parents" argument. This is quite easily demolished by pointing out that these "children" are, in nearly all cases, at least 18 years old -- legal adults and responsible for themselves and their actions and decisions. They can try to make right their status, or not -- but either way, they are liable for it.

Second, almost no college student these days pays their own way. It is the parents that scrape, save, and borrow up the skyrocketing costs of college. By giving the students access to the lower rate, that is a de facto benefit to the parents in many of those cases.

The first objection misses the point. If we agree that at age 12, or whenever, they can't be held responsible for being sent to America, then I think it's facile to expect them to deport themselves at age 18. The analysis remains the same as in my previous arguments--they don't have a home to go back to in most cases, they are for all they know Americans. The "they can try to make right their status" is a straw man--the likely result of that is that they'll be deported along with their families. Forcing these kids to play Russian Roulette with their whole families is just as bad as outright barring them from college. The point I'm making is that this whole process is unreasonable and wildly disproportionate to the gravity of the "offense" (which, at root, as that these kids had the temerity to buy into the American dream and the misfortune to be born into families who couldn't secure legal status).

The second point is also pretty far off. Given how poor these families are, I'm not sure that the parents will be paying either. Under most circumstances, these are the income levels whose educations would nearly entirely be paid by loans, grants, and work study. But as has been pointed out, illegal immigrants can't get tuition assistance, so that's out. So it's probably going to be the kid herself who scrapes the money together in all likelihood. But even where that isn't the case, I think it's a bit too glib to act as if the opportunity here is to get half-off on the tuition (which Wizbang says is going to the parents, not the kid). The benefit is that the kid gets to go to college--the financial issues we're dealing with are just instrumental to that end.

Then he proceeds to a series of arguments that argue that the difference in status between illegal immigrants and citizens or legal immigrants creates legal and material justifications beyond mean spiritness that justifies the disparate treatment. But again, this is circular. If we were giving illegal immigrants the right to, say, register for the selective service, and they refused to do it, that would be one thing. But to my knowledge illegal immigrants couldn't register even if they wanted to. At the point where we're barring them from filling a certain requirement on account of immigration status, then prohibiting them from receiving a benefit on account of not meeting that requirement, it's the same as banning them for being illegals. That not persuading you? Well here's a bold proposal: Legalize the status of any illegal immigrant who is admitted to four year college or university in the US. That would incentivize good behavior, insure that we keep our best-and-brightest in the states, stop the blatant waste of potential in the status quo, and would chop off the legality arguments all in one swoop. Wouldn't I love to see a politician with the cajones to pitch that one on the campaign trail.

The discrimination argument is just wrong--the immigrants have the same right as any other US citizen--to be given in-state tuition in the state he or she resides.

The first finite resources argument is absurd if one believes, and I do, that college admissions should be vaguely meritocratic and not some sort of neo-feudalist product of birthright. If they earned a spot at the university, I really don't care that a "red-blooded American" doesn't get in. The second one is operates on shaky assumptions--that the illegals who won't be going to college but would with half-tuition are being replaced by out-of-state, not in-state, students.

The next argument is the only one I find vaguely convincing--that legal residents pay some of the money through taxes and thus get a "rebate" (there isn't any reason to assume that illegal aliens who stay in-state for college are any more likely to leave for work than legals--assuming, that is, the government doesn't step in and deport them). Ultimately, this argument isn't persuasive to me because it seems to trivialize the nature of the program--I view it as assisting residents in pursuing something that will be a communal boon, he seems to see at as souped-up Discover Card bonus program (for every X dollars you spend, we'll throw in $1 of tuition money! It's what we do for loyal customers.). Funding college may be a burden on the state in the short term, it is true. But there's a reason why they do it--over the long run, a highly educated workforce is good for the state and the nation.

At the end, he falls back on the old "it insults people who do it legally." Again, since we aren't talking about adults but children, that argument just doesn't fly with me. I see the two situations as massively and qualitatively different.

Before I go, I just want to briefly address the all-too-common "it's illegal and that's all there is to it" argument. Aside from the fact that people like me would absolutely like these persons to be legalized (and it is the right that frothes up at the barest hint of an amnesty of sorts), again, I don't think the people we're talking about specifically can be held accountable for their law breaking. And in any event, I advocate changing the law, so don't lecture me about "upholding" it.

Update: I'd be remiss if I didn't link to this post by Dan Filler showing what happens when a city (in this case, Birmingham, Alabama), takes the "enforce the law" approach too far:

According to the Birmingham News , "any illegal immigrant who comes in contact with deputies - whether as an offender, a county jail inmate or even a victim - is fair game for the database." The data will be shared with the federal Bureau of Immigration and Customs Enforcement. (Local sheriffs apparently don't have jurisdiction to arrest individuals for violation of immigration laws.)

Notwithstanding the need to maintain border control, this expansive policy strikes me as troubling.

First, I worry that it will stifle crime reporting by undocumented crime victims. This is bad all around. The victims cannot rest safe because the culprits are still loose. And since some offenders repeat their crimes, the policy will leave these folks free to target others - documented and undocumented alike. The sheriff's office is apparently aware of this risk, but simply does not care. When asked about the danger of deterring crime reporting, a department spokesman said: "I hope that's not a byproduct of this, and if it is, it's unfortunate. However, we believe the greater good is having information on the people who are in our country illegally."

Chomskites and The Holocaust

My dear pal Ampersand writes a post defending Noam Chomsky and the architects of the Israel Academic boycott from my half-joking claims that they'd hop a plane to Tehran and provide Western legitimacy to the "Holocaust Conference" they plan on having.

Amp claims that it is unfair to group Chomsky with "real" Holocaust deniers like David Irving. To be fair, the evidence seems mixed--but really, is this an issue where there should even be mixed signals? The well-worn quote that he thinks that to even debate the Holocaust is to deny one's humanity appears to be one he no longer holds, if we are to judge from this quote:

I see no anti-Semitic implications in denial of the existence of gas chambers, or even denial of the holocaust. Nor would there be anti-Semitic implications, per se, in the claim that the holocaust (whether one believes it took place or not) is being exploited, viciously so, by apologists for Israeli repression and violence. I see no hint of anti-Semitic implications in Faurisson's work...

Paul Begala once said that George W. Bush didn't have an ounce of racial bigotry in him--but he sure seemed comfortable with those who did. Above all, it really doesn't matter if Chomsky himself denies the Holocaust, because he appears to be perfectly comfortable associating with, providing material support to, and providing intellectual succor to those who do. In fact, he seems more comfortable in those circles than he does with those academics who truly recognize and refuse to downplay the significance of the Shoah.

But the real thing here is to remember what Iran's goal is here. It isn't necessarily to debunk the Holocaust (though I'm sure they wouldn't mind that). The overriding goal is to justify their fanatical quest to obliterate Israel. And that's where Chomsky becomes useful. One can very easily imagine them passing this off as a "both sides agree" deal. They'll put up some David Irving type fellow to say that the Holocaust never happened and thus, Israel has no reason to exist. And then they'll bring up a Chomsky, who will say that yes, the Holocaust happened, but Israel still shouldn't have a right to exist. How fair! And they'll nod their heads and acknowledge the "scholarly controversy" (snort), but note that either way, Israel is an abomination to all mankind and should be annihilated. So I find it perfectly plausible that he'd show up for that project, given that he appears to have no problem with either Israel going bye-bye, or playing intellectual peek-a-boo with real deniers, I'm not sure where he'd lodge his objection ('cause we know it isn't in a moral opposition to supporting oppressive regimes).

There isn't much to say with regards to the British Israel boycott. I am mildly amused that Amp quotes Ilan Pappe to support the view that one can support the boycott without being anti-Semitic or anti-Israel, given that Professor Pappe, does, actually, believe that Israel should cease to exist as a Jewish state. Whoops. Given that Pappe does not buy into the "baseline" of what most people would consider being "pro-Israel" or "pro-Jew", I don't think he's a credible source as to whether the boycott is commensurate with either of those ideals. Pappe and Chomsky are each, in their own way, the Jewish equivalents of a Clarence Thomas or Ward Connerly. I don't really mean it as a slur, though I suspect that both of them would take it as such. Both take positions with regard to Jewish national identity and cultural survival which are wildly at odds with the community at large. Thomas and Connerly operate in a similar fashion with regards to the opinions of the Black community on race and racial discrimination issues. That doesn't mean that they don't have the right to express their opinions, or that they should be expelled from the Jewish/Black community, I advocate neither. But it does mean that if we, as progressives, are going to address anti-semitism in the same manner as we do racism, as a structural matter deeply ingrained in the fabric of global society, then we can't be side-tracked simply because a few reactionaries have decided to join forces with those who'd deny or minimize the presence/importance of these ills in the modern world.

Like with racism, our society is both pervasively and structurally anti-Semitic. 60 years after the Holocaust, one would think this wouldn't need to be established. But yet, there is almost no literature analyzing anti-Semitism as a structural phenomena, as opposed to a particularly long-running aberration or a mere "me too" example to go along with other forms of ethnic hatred. What it means to be "anti-Semitic" from a social or ideological sense is severely under-examined, meaning that anti-Semitism gets defined only as its most extreme manifestations, rabid hate and/or violence. To be fair, there are many such events to choose from. But this doesn't excuse the dearth of scholarship looking at anti-Semitism in more insidious forms. Why, for example, only the Jewish national state is seen as prima facia illegitimate, when no such claims are made of the French state, or the Russian state, or (God forbid) the Palestinian state could very easily be examined through such anti-Semitic constructs like "the Mark of Cain", by which Jews were forever consigned to live in miserable exile for their collective national sins. Progressive scholars jump all over this sort of thing when it comes to every other minority group--with Jews, such analysis is limited, obscure, and hard to find.

I understand the frustration of leftist scholars who believe they have legitimate (if not morally imperative) critiques of Israel who feel like even a whisper will expose them to reflexive attacks of "anti-Semitism." And maybe in some cases it is. More often, however, these complaints ring eerily of conservative scholars who complain of "reflexive" responses of sexism, racism, et al. Anti-semitism is going to be heard often with regards to anti-Israel critics because in the current global schema of anti-Semitism, Israel is the central point of revelation. In Affirmative Action debates, racism will be alleged because the central problem is racism. With regards to Israel, anti-Semitism is alleged because anti-Semitism is the central issue in the Israel/Palestine debate. Anti-Israel speakers know, on the deepest (perhaps sub-conscious) level, that this is the case, which is why they battle so ferociously to keep it out of the discussion. A truly critical examination of how anti-Israel policies are informed, motivated, supported, and legitimated by anti-Semitism would force the left to entirely re-evaluate the entire foundation upon which their critique rests--not to mention undermining the credibility of a whole generation of scholars whose academic currency rests entirely on being able to step outside such ancient oppressions and valiantly assail the oppressive cornerstones we build our life upon. If they themselves are indicted, who is safe? But ultimately, if the left isn't going to examine its own blindspot here, then the movement has no currency. It is a mirage, a facade of a post-modern uprising that is in actuality following very well trodden footsteps--calling for revolution on the backs of the Jews.

If you survived to the end of this post, congratulations! You might also want to read my article, "Jews in Space", published in the inaugural issue of The Lens.

Proving What Exactly?

Jim Lindgren has a very interesting post out on how democracy is likely to play out in the Middle East. Quoting an Egyptian blogger, the thesis is that at this stage, Muslims nations are likely to spend at least some time under Islamist rule, "get it out of their system" so to speak, before making the jump to democracy. I say "mak[e] the jump" as if it's inevitable, but it isn't--as we've seen in Iran, a country can go Islamist, lose the support of its entire population, and stay Islamist anyway off sheer governmental force alone. That, alas, is what good authoritarian states do.

The question is, what does this mean for Iraq? On the one hand, it could buttress support for the US invasion over the long haul, even if the short-term result is an Islamist democracy. If one buys what Lindgren is saying, then such a move is the first step in the democratization process--once the people lose faith in religious theocracy, they'll turn toward liberal democracy. By showing that democracy remains feasible even if the short-term looks bleak, it forces us to look at longer-term metrics of causality. On the other hand, it is far from clear that the transition from oppressive rule is easier when the move is theocracy to democracy as when it is secular dictatorship to democracy. The experiences of Iran and Algeria are not positive here--while Turkey, Indonesia, and the Philippines have all had relatively successful transformations from secular dictatorship to democracy. So perhaps then the US intervention, if it leads to a theocracy (and to be fair, that's far from the clear result), will make liberal democracy less likely. Of course, turning the hand back again, secular dictatorships amongst the Arab world at least have seemed to be far more adept at entrenching themselves than their non-Arab Muslim peers, so perhaps the analogy to the countries I've mentioned (all non-Arab) isn't proper.

Anyway, food for thought.

This Can't Be Good

Oh yippee. Iran is hosting a conference on the Holocaust. Recall, just for review's sake, that this is the country whose president called the Holocaust a "myth" and thinks it was concocted by Jews and Europeans to justify the creation of Israel. So you know that this thing is going to be a fair, comprehensive, and impartial review of the subject.

It doesn't take an oracle to guess that whatever goes down at the event, it will be a mind-bogglingly horrible blend of anti-Semitic lies and Israel-bashing. So my only question is this: which Westerners are going to show up and support one of the world's most despicable ideologies on its home turf? Will we say David Irving? Noam Chomsky? The architects of Great Britain's boycott of Israeli universities? The mind races to know who will place the neon sign over their head: "I'm evil!"

Historical Revival

Andrew Sullivan gives a Malkin Award nomination to Mark Levin for arguing that Ted Kennedy is worse than Joe McCarthy:

From Clement Haynsworth, William Rehnquist, Bob Bork, and Clarence Thomas, to Jeff Sessions, Bill Pryor, Charles Pickering, and Sam Alito -- and scores of others -- Kennedy has played the role of McCarthy for 40 years, and always to a fawning press. He's a greater menace than McCarthy ever was.

Okay, the crazy points are obvious--no need to rehash them. But I just want to ask one thing: Clement Haynsworth? I mean, are we still talking about him? Or did Levin just want to complete his 4-4 parallel structure? I guess it could be worse--he could have brought up Harold Carswell.

Children of Immigrants

UC-Davis Law Professor Kevin Johnson excerpts from a stellar article on the subject. The kids in question are people who came to America, illegally, as minors. They have no papers, are at constant risk for deportation to a "home" they cannot even remember, and face tremendous challenges in trying to succeed in America.

Consider this:

Fermin was born at the height of El Salvador's civil war 17 years ago. When he was 11, his mother finally saved enough money to bring him to Los Angeles, where she had lived since he was 4 years old.

"She wanted me to have more educational opportunities," Fermin says. "It's the only way out of being low-income."

Fermin has taken advantage of those opportunities. He will graduate from high school this spring at the top of his class. After that, things get more complicated. Along with 65,000 other new graduates nationwide, Fermin will leave high school with a diploma, but without citizenship papers.
[...]
For Fermin, it means taking four city buses each day to get to school and back -- as an undocumented immigrant, he can't get a driver's license. When Fermin entered the American public school system six years ago, he did not know a word of English. Today, he is preparing for the California Academic Decathlon. He hopes his team will do well -- but even if they do, he won't be joining them at the state competition in Sacramento. Fermin fears that if he travels without papers he could be detained or deported.

While the majority of undocumented students will give up on school, Fermin is determined to go to college. But his immigration status complicates that prospect.
[...]
First, Fermin must come up with application fees as high as $250 per school. His family income is low enough to qualify him for a waiver, but his immigration status makes him ineligible. He's also ineligible for state or federal financial aid.

"Everyone tells them, 'Go to school, get good grades,'" says Jessica Quintana, director of Centro Community Hispanic Association in Long Beach. "Then the reality hits. It's so easy just to give up at that point."
[...]
Jessica, 18, received a standing ovation at her high school graduation in honor of 13 years of perfect attendance. But the applause couldn't make up for the letter she'd received earlier that year from the design school she dreamed of attending. It told her not to bother applying unless she could produce proof of citizenship.

"I had everything -- the grades, the desire to learn," says Jessica, 18. "It put a stop to all my hope when I realized I was limited."

The infuriating part of this is that these are exactly the kids we'd be salivating over putting in the American workforce--if they were White Europeans (or potentially East Asians). America's immigration policy is heavily slanted in favor of highly educated foreign nationals (most of whom come from those two regions), and stacked against the mostly brown and black "huddled masses" fleeing third world poverty and anarchy. One can make the argument that this is the way it should be--but there is no excuse for denying opportunities to kids who have worked hard facing hurdles we could never dream of to reach the pinnacles of academic excellence. And reading a story like this makes me what to slap all the smug conservative pundits who have destroyed entire forests with self-assured paeans to the power of "hard work," "good grades," and "staying out of trouble."

Far from "rewarding illegal immigration" as some allege (I'm looking at you, Mitt Romney), putting these children on a level playing field is the embodiment of the American dream. These children had no control over the decision to come to America. There isn't some conspiracy amongst Nicaraguan 12 year olds to overwhelm the American work-force with cheap labor. And for the kids we're talking about, it's amazing that "taking American jobs" even comes up as an argument. This is literally the only debate in American politics where some of the world's brightest and most hardworking youth are assumed to be a future drag on the national economy. Give me a break.

There is legislation in congress right now (I believe it's called the DREAM Act?) that would be the first step toward rectifying this injustice. I urge everyone to pressure their representatives to pass the bill and restore the dormant American dream.