Friday, July 28, 2006

On Being a Jewish Democrat

Kevin Drum points to several conservative commentators accusing American Jews of, among other things, being "downright stupid" for being Democrats. The reason is because right now we have a Republican President who is incredibly pro-Israel. Both Ezra Klein and Matthew Yglesias point out that such a claim makes it then difficult to condemn the statements by some that Jews have "dual loyalties" divided between America and Israel. That's true, but (speaking as one of the idiots) I'd like to add a few thoughts of my own.

First of all, even if the GOP is slightly more pro-Israel than the Democratic party, it's not by any meaningful amount. There was, what, around 10 votes against the last resolution supporting Israel in its conflict against Hezbollah? In America today, both parties are strong on Israel, so from my perspective it is effectively a wash, and any advantage the GOP has is negligible. And of course, I don't think it's unreasonable to say that Israel is disadvantaged by poor foreign policy decisions and misadventures elsewhere in the Middle East. Stirring up instability there means bad things happen to Israel.

Second, it's arguable (indeed, I think it's evident) that the reason that the Democratic party is so strong on Israel is because of its strong, consistent Jewish base. Remember, Jews are matched only by Blacks in terms of party loyalty. I think we've done a good job keeping the Dems in line on the issue. Contrast that to Europe, where Jews are far less politically influential and Israel (and Jews themselves) are time and again kicked to the curb by both the left and the right. I'm not saying that Democrats only defend Israel because its politically expedient, but I am saying that a mass exodus would significantly strengthen the hand of the McKinney wing of the party and probably result in a net weakening of support for Israel in the body politic.

Third, and not to be obvious, there are a lot of issues besides Israel that are important to Jewish voters. Democrats have the advantage on nearly all of them. On abortion, social justice, church/state (that's a huge one), economic justice, and civil rights, Democrats are far more in tune with Jewish positions than are Republicans. It's not even close.

There are Democrats who take positions on Israel I find objectionable. Frankly, that's what primary battles are for, and as Representative McKinney is about to find out (again), more Democratic voters than not won't stand for constant, single-minded Israel bashing. But by and large, I feel I'm giving up little, if anything, for Israel by my Democratic affiliation. And in terms of the issues that matter to my faith, I'm gaining a lot more.

Stateside Terrorism

A Pakistani gunman opened fire on a Seattle Jewish Center, killing one and wounding five. The suspect apparently targeted the Jews due to his hostility towards Israel.

Local coverage from both the Seattle Post-Intelligencer and the Seattle Times.

I've been to synagogue services that have had to be held under police protection on multiple occassions. Just another reminder that there are plenty of people in the world that want to see me and my family dead.

Tied Together

If you ever needed a clear view of Republican priorities, this is it. They're willing to bring a minimum wage hike to a vote, but only if its tied to an Estate Tax cut. Because it would be grossly unfair to give a boost to hard-working Americans if it wasn't matched by a giveaway to Paris Hilton.

Of course, the GOP is entirely unwilling to play by those rules when it comes to its own (congressional) pay raises. Only the little people must suffer.

Carpetbagger Report runs the political math and thinks the Dems will come out on top here. I certainly hope so.

Thursday, July 27, 2006

Non-Combatants in Asymmetric Warfare

Those of you who were piqued by the suggestion that the laws of war are unfair to non-state actors who don't have big armies and apparatuses ought to read this post at Obsidian Wings. Among a bevy of really important points on a variety of issues that everyone should read, the post offers a very clear and sobering look at what might happen if we were to provide greater protection to so-called "mixed use" sites, which have both civilian and military purposes:
First, and in my mind most importantly, it would dramatically extend the length of wars. Fighting guerrillas is already very tough, and the proposal to severely curtail attacks on mixed targets would make it even more difficult. This (combined with the often loose organizational structure found in many guerrilla groups) would make negotiated settlements or surrenders very unlikely. The wars can (and do) continue across many generations. This isn't good for civilians.

Second, it would reinforce the already existing impulse to mix military and civilian targets. If you give extra-special protection to mixed targets, you are directly incentivizing the co-location of military and civilian targets. This will tend to be very bad for civilians in the long run unless you completely ban attacks on mixed targets, in which case you lead directly into the indefinite war scenario I outlined above.

Third, it gives no incentive to engage with combatants on the other side. Why fight soldiers who can fight back? You can attack civilians exclusively and retreat to your mixed civilian/military sites with impunity.

Fourth, it gives state actors an even greater incentive to engage in proxy wars with guerrillas as their soldiers. Warfare with non-state guerrillas is bad enough, but thought not to be as dangerous because they don't have regular access to the weapons that only states can produce. If you combine them with state sponsorship, they become much more dangerous to civilians because they have access to the weaponry of a state war but fail to respect non-combatant immunity.

Fifth, and perhaps as important as the first, it directly plays into the propaganda war that the guerrillas want to play. It not only reinforces the tactical need for safety, it helps the strategic goal of propaganda--if mixed targets are offered heightened protection when used by guerrillas as opposed to regular military then any civilian deaths (or combatant deaths that can be reported as civilian deaths) have even greater propaganda impact.

This is a definite "read it in full" post. It has some of the sharpest analysis of the dangers that lie in changing the international law status quo I've seen anywhere.

Bury the Hatchet

Kos really has to get over his beef with The New Republic. Seriously: There's no solid foundation to it (Kos is certainly more liberal, but he loves to trumpet how he's interested in building a party, not about purging ideological foes), he's wildly over-estimated their hostility to him (cf. Beinart's positive review of "Crashing the Gates"), and there is no real question that TNR has (and I'd say always has) taken just as hard a line on the follies and failings of the Bush administration as any major Democratic media group.

Seriously. Quit it. You're only hurting your cause.

Wednesday, July 26, 2006

In The Name of Tradition

Compare and contrast two views of "tradition"; the first from the concurring opinion by J.M. Johnson in today's Washington anti-gay marriage court decision, the second from J.M. Balkin's article, Deconstruction's Legal Career [27 Cardozo L. Rev. 719 (2005).

From the concurrence:
Nor is Justice Madsen's claim that "history and tradition are not static," Madsen, J., op. at 26 coherent, at least outside the context of a George Orwell novel. Our history and tradition are real and ascertainable. This court and the United States Supreme Court have always applied these principles to inform the understanding of the privileges and immunities clause, rather than current political notions. Under our constitutional separation of powers, such issues are for the legislature and/or the people, and here the legislature has clearly spoken. This is not to suggest the constitutional right of marriage may be redefined at will by legislative process; that may be a case for a different day. [concurring opinion at 14, emphasis added]

From Professor Balkin's piece:
Claiming to speak in the name of tradition can also be a kind of betrayal in several different ways. First, traditions are often contested. Hewing to one particular vision of tradition obliterates other interpretations of the past and other alternatives for the future. Tradition never speaks with one voice, although, to be sure, persons of particular predilections may hear only one. In this way, a tradition can be a kind of extradition, banishing other perspectives and handing them over to their enemies, so to speak. Second, to respect tradition is also to betray, submerge, and extinguish other existing and competing traditions. It can lead us to focus on a falsely unitary or unequivocal story about the meaning of the past when we should recognize the past as a complicated set of perspectives in tension with each other. Finally, to act in the name of a tradition is often to betray the tradition itself, by disregarding the living, changing features of a tradition and substituting a determinate and lifeless simulacrum. (726)

Professor Balkin is playing on the shared root of "tradition" and "betrayal." To advocates of a "living constitution," the call to look towards tradition seems like a betrayal of the active liberty that animated the founders in writing a constitution; men who wrote a document designed to outlive them; a government of laws, not men. Tradition also runs up against the same problem that I have with Kant--the prescribed action mandated by tradition (just like that of the "categorical imperative") varies wildly depending on how broadly or narrowly one interprets the tradition. If the accepted tradition is "one man, one woman," then gay litigants will likely lose. If the accepted tradition is "marriage is an important institution that all should have the right to participate in, on equal terms," then gay litigants seem more likely to win. Both seem to have solid roots in how we understand the "tradition" of marriage. More importantly, at their inception these two concepts were not seen to be in opposition, while currently we see a severe tension. The "ideological drift" by which concepts which used to stand for one idea come to stand for something else entirely is another point in favor of a heterodox traditional standpoint. Balkin continues:
The phenomenon of ideological drift is related to the multivalent meanings of a tradition, and to the important connections between tradition and betrayal. Ideological drift guarantees that the concrete exemplars and symbols of a tradition will take on multiple and conflicting meanings and implications over time. As a result, different groups can claim to be faithful adherents of the tradition and yet wish to continue it in radically different ways. Traditions are thus the result of and the site of interpretive struggles between adherents all of whom claim to be faithful to the tradition. Each group, however, wishes to consolidate and continue the tradition in ways that seem like a betrayal from the perspective of the other camps. We might say, then, that the seeming unity of any tradition is actually, on closer inspection, a complicated set of nested oppositions, whose conflicts may appear only with the passage of time and the arrival of new circumstances. Traditions often try to submerge and suppress their multiple meanings, enshrining some interpretations as orthodoxy and banishing others as heresy. Yet the multiplicity of meanings and the instability of interpretations continue to emerge incessantly as the tradition travels through history. (731-32)

Both camps in the gay marriage debate see themselves as preserving the tradition, although only one camp has managed to appropriate the label "tradition" to its side. But this is a misnomer--both parties are defending a different branch of "traditional marriage", branches which once were seen as harmonious but now have been revealed to be in conflict. The fact that this conflict has only truly emerged recently does not make either side anti-traditional: the side that wishes to banish the view of marriage as something accessible to all, on equal terms, is equally anti-traditional as the side that wishes to banish the view of marriage as one man, one woman. And of course, this sort of Hegelian dialectic is not an aberration anyway: traditions are always evolving, taking on new roles and casting off old ones. The tradition of marriage as primarily a contract designed seal political alliances has largely been abandoned, for example. To say that tradition is fluid is not anything Orwellian, it is a recognition of tradition as a part of history, and history, as they say, has been going on for a long time and has seen many changes.

Teach Me

Over at Alas, a Blog, there is a post up by Tekanji assailing the argumentative tactic of making the "oppressors into the oppressed". This can happen in a variety of contexts, but it's generally when a White complains of racism perpetuated against him by a Black, or a man complaining of sexism by a women, or something of the like.

This comes back to the age-old question of whether minorities can be racist, which I've addressed in several previous posts, both as an intersectionality issue and on the far more controversial question of whether minorities can be racist against the majority. At the outset and as a matter, I reiterate my agreement with Critical Race Theorist Frank H. Wu: "[A]n approach that categorically denies the possibility that in some instances a white male plaintiff may have a valid claim is rightly repudiated as unfair," and "It is unclear that anything would be gained, or that the result would be especially principled, if white ethnic minority individuals were denied the ability to sue for straightforward discrimination by an institutional actor (i.e., the case was not a collateral challenge to affirmative action.)." That being said, I will agree that many claims of minority-on-majority oppression are wildly exaggerated, to say the least, and are usually less serious and less pervasive than like discrimination faced by minorities.

Tekanji makes three points. The first is on when justified rage crosses over into undeserved viciousness. There isn't much I have to add to this, other than my two part view of the role of "civility" in racial discussions (both recognizing that civility is, generally, a good thing, while remembering that calls for civility are often disguised demands for silence).

The second and third demand stricter scrutiny, however. The second point deals with Nubian (aka Blac(k)academic) complaining about White feminists who view her as a "teacher" and write to tell her how much they've learned (the quote is in the comments, so I can't evaluate in context. So to be clear, I'm only evaluating the spin Tekanji is placing on it, not the particularized event Nubian was referring to). Nubian finds these comments degrading, wishing to respond "I'm not here to teach you!" This is a contextual issue, because I agree that it would get tiring to constantly have to be in "teacher" mode, always expected to serve as the "minority view" and to hand-hold the privileged as they crawl toward awareness. But at the same time, teaching is important, and White people are constantly (and correctly) told by their Black peers to seek out Black stories and learn from Black experiences as a tool in discovering the reality of the American racial schema. I would not be writing this today had I not read the works of scholars of color like Delgado & Stefancic, Lawrence, Matsuda, Bell, Williams, and others. So I can personally vouch for how important and revealing such stories can be. It honestly would never occur to me to be wary of telling one of those professors (or any of the scholars or bloggers of color who have written insightful, eye-opening posts) that I found their argument useful and informative and that I learned a lot from it (ironically enough, AAB is also hosting a discussion on whether Whites have a difficulty discussing racial topics with racial minorities). And that is somewhat key--these are statements written on a blog (or magazine, or journal, or book). We should be so lucky if White people read them and learn from them. That, I think, is qualitatively different from walking up to Josephine-random-Black-woman and saying "teach me all there is to know about the Black experience." Censoring the impulse to learn from the written, expressed experiences of Black intellectuals, such a frail instinct to start with, strikes me as counter-productive and orthogonal to the goal of increased racial awareness amongst Whites.

Which brings me to the final point Tekanji makes, which is a general dismissal of the oppressor-as-oppressed argument. I've already explained why I don't think that argument can be made categorically, but in the context of this post it comes off as a cruel joke. One theme I constantly hear when talking to my White friends about race issues and anti-racism is this depressed, crushed hopelessness about their ability to do anything in the face of the critique. It isn't anger. It's sadness. They read these discussions and hear these arguments and find a huge list of things they can't do, but nothing they can do. They're told to "lose their privilege." But they are given virtually no indicator of how to do it, and are given mixed signals (at best) as to the propriety of asking how to do it. So they don't. It's a sense of hopelessness which breeds political quiescence, which in turn feeds into minority anger that the majority doesn't care about setting things right, and it creates a vicious cycle.

I should add that the whole "lose your privilege" rhetoric itself I find misleading. There was an old adage in the cold war about the difference between communists and capitalists: "The communist, seeing the rich man and his fine home, says: 'No man should have so much.' The capitalist, seeing the same thing, says: 'All men should have so much.'" This is, to say the least, a dumb quote, both because capitalists are not particularly interested in giving every one so much, and because communists are certainly not locked in to demanding nobody have so much. But it gains some saliency here, because the goal shouldn't be for Whites to lose privilege, it should be for persons of color to gain it. I've explained the concept of White privilege to my friends who proclaim "White innocence" through the lens of being shadowed in a department store. You won't get shadowed, your Black friend will. It isn't your fault that you don't get shadowed, and you shouldn't go up and kindly request the store employee to shadow you to "remove the privilege", but that doesn't change the fact that it is a privilege that works to your advantage and to your Black friend's disadvantage, on account of race. The proper response is to that is to work to have everyone gain the privilege though. Feeling guilty about the privilege and quietly wishing that you were as marginalized is both depressing and ineffective. Imprecise rhetoric, again, hurts the cause by reinforcing the hopelessness of sympathetic Whites that they'll ever be able to satisfy the terms of the critique.

Racism is a problem. A very large one, in fact. But that does not mean that Whites never have legitimate concerns, it does not mean that they never are unjustly marginalized, and it does not mean we can simply ignore their requests for help and then blame them from not helping. "It's much easier" to not complicate things this way. But that doesn't make it right, and that doesn't make it likely to work.

UPDATE: Feministe gives some context. I'd note off her specific example that while she's right that a constant stream of "beautiful", even in good-faith, is not a substitute for true equality, I'd still point out that there is very little in the way of suggesting what would be a proper response where generic bromides are caught up in and marked by structures of domination.

Striking Down Supported Legislation

This morning, the Washington Supreme Court held that there is no right to gay marriage in the state, reversing two lower court rulings to the contrary. The decision was 5 to 4, but the majority was split into a 3-judge plurality, which ruled quite narrowly, and a 2 judge concurrence, which was far more vigorous in its defense of "traditional" marriage. Three separate dissents were authored, but one was clearly the main and the other two were written to clarify separate objections (whereas the concurrence disagreed fundamentally with the tepidness that the plurality used in its analysis).

I think the dissent gets the better of the exchange, which is unsurprising, as I have long since stopped believing that (absent the political charge surrounding the issue) marriage discrimination presented even a moderately difficult question of law. Indeed, here the plurality only managed to pull together a barely coherent rational basis argument by finding the homosexuality is not "immutable", which a) is almost definitely untrue, b) premised on a view of "immutability" that is overly narrow, and c) puts the cart completely before the horse in terms of what type of groups demand strict scrutiny protection. Even if homosexuals don't deserve strict scrutiny for discrimination, I've always been at a loss as to why they don't at least deserve heightened scrutiny. But even that is irrelevant here, because the court so badly mutilates the issue at hand that it is more than self-evident that an objective look at the issue would conclude that anti-gay marriage laws would fail rational basis--and hard.

However, what I want to talk about is the issue of courts refraining to let their personal views as to a laws merits or morality cloud their judgment as to its legality. Right at the top of the plurality opinion, the judges admonish their colleagues (both the dissenters and the concurrence) that:
It is important to note that the court's role is limited to determining the constitutionality of DOMA and that our decision is not based on an independent determination of what we believe the law should be....A judge's role when deciding a case, including the present one, is to measure the challenged law against the constitution and the cases that have applied the constitution. Personal views must not interfere with the judge's responsibility to decide cases as a judge and not as a legislator [slip op. at 3-4].

Though I am not entirely sure how much a judge can divorce her personal beliefs from interpretations of constitutional law, I think the sentiment is fine in general. What I do question is why this argument is always limited to indicting judges who strike down legislation, and never to ones who uphold it.

In gay rights cases particularly, we have seen several instances where judges who have upheld discrimination against gay and lesbian Americans have expressed their reluctance and their sincere hope that the legislature will soon see the light and agree to grant equality via statute where the court could not do so by fiat. For example, in Lofton v. Department of Health and Family Services, the judge wrote at the end of his opinion that
I will conclude on a purely personal note. If I were a legislator, rather than a judge, I would vote in favor of considering otherwise eligible homosexuals for adoptive parenthood. In reviewing the record in this case one can only be impressed by the courage, tenacity and devotion of Messrs. Lofton and Houghton for the children placed in their care. For these children, these men are the only parents they have ever known. Thus, I consider the policy decision of the Florida legislature to be misguided and trust that over time attitudes will change and it will see the best interest of these children in a different light.

Similarly, Justice Thomas wrote a brief dissent in Lawrence v. Texas that was comprised almost entirely of his belief that
the law before the Court today 'is ... uncommonly silly.' Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

I do not question the sincerity of such statements. However, I wonder why we do not apply an equal mandate upon judges who vote to uphold statutes or enactments based on deeply held personal beliefs, even when it seems clear that the legally mandated result lies elsewhere. In other words, there is a lot of pressure on liberal judges to put their personal beliefs aside and apply law "neutrally" (i.e., upholding anti-gay legislation). But there is very little pressure on conservative judges to put their personal beliefs aside and apply law neutrally, striking down anti-gay laws.

In general, the mark of "judicial restraint" is when a judge, presented with a law she finds odious, repugnant, misguided, or just plain foolish, puts those sentiments to the side and recognizes that, as a judge and not a legislator, she is not in a position to make policy, and (however reluctantly) upholds the law. However, presumably there are cases which present the exact opposite scenario: A judge is presented with a law she believes in passionately, thinks is both wise and just, but appears to violate quite clearly some constitutional right. It seems apparent that we should be equally strident in demanding the such a judge bite the bullet and strike down the law (however reluctantly). But in general, the issue is not put that way.

I don't think we are completely at loss to do this. We would properly, I think, condemn southern judges who let their bias against African-Americans and their sincere belief as to their inferiority motivate them into upholding blatantly discriminatory Jim Crow laws. We can still attack Justice Hugo Black for his role in upholding Japanese Internment in Korematsu, even though it seems that Black genuinely believed that the program was legitimate (and perhaps necessary) for national security.

But it seems more difficult to demand it in a contemporary context. Why is this so? Well, constitutional clauses are not only worded broadly, but are phrased in terms of sacred rights and commitments that (to be blunt) you'd have to be a real chump to want to violate. Nobody likes to think that their views--when enacted into policy--are a violation of the constitution's defense of equality. Nobody likes to think of themselves as a discriminator, or having a preference for violating rights. When upholding statutes that one would prefer to strike down, the argument runs like this:
This law, in my view, is unwise and unfair to X persons. However, we live in a democracy, where courts must give deference to the legislature's pronouncements as to matters of policy. As much as it pains me, I can find no constitutional violation with the law at issue here.

When striking down a statute that one would prefer to uphold, however, the rhetoric would have to run something more like this:
In my ideal world, a government would be entirely permitted to discriminate against X/suppress Y's speech/not follow strict due process rights for suspect Z. However, the fact remains that the law mandates equality/free speech/due process, and so I must reluctantly strike down this law as a violation of the constitution

In the former, you're a bold defender of democracy even as you subtly suggest that the law should change. In the latter, you are (for all intents and purposes) declaring yourself to dislike the constitution (there are, as it happens, plenty of things about the constitution that are dislikable. But it's still not a good recipe for popularity to declare your preferred policy agenda to be in contrivance of constitutional norms). This isn't to say that deference to democracy in the face of a perceived bad decision isn't laudable--I think it often is. However, I don't see why it is any more laudable than striking down a democratically enacted decision that does conflict with the constitution. If there is a bona fide violation, shouldn't we be as vociferous in demanding judicial remedy as we are in demanding judicial restraint when the violation is absent?

The upshot of this, however, is that the true test of a judge's commitment to judicial neutrality isn't restraining herself from striking down the law she hates. It's being willing to strike down a law she supports. We should be equally suspicious of a judicial philosophy which upholds every law a judge thinks would be ideal, as one that would strike down every law the judge finds unwise. I can think of a few instances where I can conceptualize laws I might find agreeable being unconstitutional (especially in 2nd Amendment jurisprudence). But in general, there isn't the same pressure, and I don't think there is a principled reason why.

Other coverage of the Washington Decision:
Gay rights expert law professor Dale Carpenter has a nice big analysis up.

Nathan Bradfield believes that rulings like Washington's will keep coming until either "homosexuals prove to the courts that homosexuality is NOT a sin and traditional families are not a cornerstone of society, or a humanist President is elected and succeeds in nominating several hundred Stephen Reinhardt's. [sic]." He seems to think that this is a good standard. I think it just buttresses my point about the perceived benigness of conservatives injecting extra-constitutional views into their legal decision-making.

Mike Silverman notes that this decision is an improvement in that the plurality is respectful of the gay plaintiff's claims, and rejects the concurrence's gay-bashing. It's a step forward. I guess.

Andrew Sullivan thinks the "court pause" could be a break for the marriage equality movement, as New York Attorney General and gubernatorial candidate Elliot Spitzer endorses gay marriage.

Pam Spaudling responds to an argument made by AmericaBlog that gay-rights advocates should focus on other (non-marriage) issues.

Shakespeare's Sister draws an interesting paradox between the conservative procreation argument relied on by the court here (biological parents are so important we can discourage gays from even having the option of marrying!) to the conservative "snowflake baby" argument we've been hearing on the stem cell debate (we should be encouraging these cells to be adopted by any willing family--biological or not!).

Shock and Blog only has a blurb, but it made me smile: "Washington Supreme Court upholds traditional marriage." Because if the decision had gone the other way, nobody would ever be able to obtain a traditional marriage again. Now that I think about it, I'm frowning, because this basic conceptual misunderstanding is actually pervasive in the plurality's analysis, which examines the reasons for letting heterosexuals marry (which is not disputed by any party) rather than the reasons for excluding homosexuals from marrying (which it really does not get into at all). As Professor Farsnworth might say: "ohh...I made myself sad."

Tuesday, July 25, 2006


Human Rights Watch has an excellent Q&A on the demands of international law as they apply to the Israel/Lebanon conflict. HRW is one of the few organizations commenting on this issue which I hold in high esteem, and I think their analysis here is informative and indispensable for evaluating both Israel and Hezbollah as they prosecute this conflict.

The heads-up is from Taylor Owen, who asks if the international law, as written, is too biased in favor of institutional and state actors and makes it unreasonably difficult to fight an asymmetric war. My answer is that it may be, but unless one can come up with an alternative framework that adequately protects civilians and non-combatants from both a) being deliberately targeted and b) being used as human shields, that might be a harm I have to bite. International law properly focuses itself on the twin concerns of allowing states to defend themselves against aggression or threat, and protecting the human rights of affected parties during the course of battle. I won't say that it does a perfect job, but I do think it is solid enough to demand adherence to until we can find a better one, or unless one can give compelling evidence about why a particular exemption is justified.

Monday, July 24, 2006

In Defense of Brilliance

In welcoming Berkeley Law Professor Daniel Farber to the team at Jurisdynamics, Prawfsblawger Dan Markel pointedly refused to call Professor Farber "brilliant", saying that the label might "earn Dan's ire" due to an article identified only by its citation: 70 Minn. L. Rev. 917. Intrigued, I looked it up, and found a piece by Professor Farber that styled itself as a critique of "brilliance."

This is problematic to me, not the least because I've just been complimented on that blog as a "genius", right as they invite a blogger who indicts the very ideal of virtuosity. Vicious. I've read and enjoyed some of Professor Farber's work (primarily his engagement on CRT with Professor Suzanne Sherry), but I want to try and salvage "brilliance" from his merciless grasp.

The gist of the argument goes like this. A "brilliant" idea is one that is novel, somewhat counter-intuitive while still being intelligent, and is predictive or explanatory. The novelty of brilliance is what is off-putting to Farber. The fact that the idea hasn't been thought of before is a good indicator that people aren't following it, and since they aren't following it, we likely will find that the idea has little predictive power. Or alternatively, if the idea is explanatory, it seems odd to ascribe motivations to people that they don't realize they have. For example, John Hart Ely comes up with a brilliant idea of why people should accede to judicial review, having consented to it by certain vaguely written constitutional clauses. Ely's theory is brilliant (in part) because it's novel: no one has thought of it before. But if no one has thought of it before, it is difficult for Ely to argue that this non-articulated ideal is why the polity has consented to such a power like judicial review.

There are several problems I have with this. For one, I'm not sure that we want all of our theory to be predictive or descriptive of how the world is. At least some of it should be designed to change the world, not reflect it. Brilliance thus serves to articulate an alternative vision--dreaming of things that never were and asking "why not?" For two, I'm not as skeptical as Farber is that an idea that has yet to be articulated can't be a motivator. Many people can't converse fluently in psychology, yet we know that psychological factors exert important roles on the way people behave. These factors are present even in people who are unaware of them (or even those who scrupulously deny their existence). If we believe that certain values dig themselves into the polity where they circumscribe the boundaries of political or legal discourse without ever really coming to the surface themselves, then it is not hard to believe that many people would be motivated by a bundle of value-claims without being aware of it or being able to articulate it.

But, far and away, the biggest problem with Farber's argument is this: It bites--rather hard--into its own critique. That is to say, Farber's argument is a paradigmatic case of a "brilliant" argument within his own definition, which means by his own standards we should dismiss it. The idea that brilliance is bad, and that we should extol "Paul Pedestrian" is quite novel, counter-intuitive, and historically cuts against the grain of virtually every account of what society wants out of its leaders and scholars (not to mention its educational system). Furthermore, like the bad sort of brilliance Farber attacks, there is little evidence that his theory, intellectually pleasing as it may be, has any popular or social saliency. Ironically, Farber's article is probably more embedded in theory-land, and less applicable to the real world, than any of the intellectual dragons he tries to slay: Coase's Theorem, the works of Ely and Ronald Dworkin, etc..

I realize, of course, that Farber's article was likely written somewhat tongue-in-cheek. But I am amused by double-turns, and given that (previous dismissals notwithstanding) somewhat of a populist backlash against intellectuals and book learning, I think it is important to defend brilliance--in all of its forms--as an important and invaluable part of the public and scholarly life.

Sunday, July 23, 2006

I Thought Singapore Was Bad

Brad Plumer has the blood-curdling inside story of one of the more vicious and inhumane death rows in the modern world.

It isn't Iran. It isn't China. It's Japan.
Welcome to death row in Japan. Prisoners are executed by hanging—a process known to produce "gruesome scenes of slow strangulation and even decapitation." And prisoners sitting on death row don't even know when they'll actually die. No one gives them a date. Prisoners aren't told "this day will be your last" until the actual morning of their execution, which can come at any time—days or months or decades after their appeals process is exhausted. Their families aren't notified until after they're dead. Everyone involved lives under the strain of uncertainty.
Needless to say, spending decades on death row, without knowing when it will all end, is liable to make even the most level-headed inmate insane and suicidal. It's gratuitous torture of the worst sort. And that's doubly true in Japanese prisons, where death-row inmates are forced to live in solitary confinement, cut off from other prisoners and allowed only intermittent outside visits as well as two short periods a week to leave their cells for exercise. Not surprisingly, many prisoners develop mental health problems—although, since Japanese courts often find defendants with mental disabilities to be "mentally competent," many of those on death row where already mentally ill when they came in.

To say this is all quite horrifying seems inadequate. And lest anyone thinks that these prisoners are probably all guilty of sin and deserve what they get, note that Japanese courts convict a staggering 99 percent of those accused of crimes—the highest conviction rate in the developed world. The odds that innocent people are frequently sentenced to death are very, very high.

Indeed, the entire Japanese criminal "justice" system is geared towards speedy conviction. Under the daiyo kangoku system, Japanese police can interrogate suspects in police cells for up to 23 days before transferring them to prison. There are few rules regulating interrogations, and a suspects' access to a lawyer is extremely limited during this time. Amnesty has long documented how the police use beatings, intimidation, and sleep deprivation to extract "confessions" from suspects for crimes they haven't committed. In the 1980s four men were released from death row after it was revealed that they signed such confessions under torture, but even though there's no reason to think this was a special case, death-row pardons are extremely rare.


H/T: Amber