Rossi's Revote, Part Two

The Seattle Times reports that Washington Republican gubernatorial candidate Dino Rossi has filed suit to throw out the election results and have a revote. Powerline provides the link, and appears to approve. I'm sure that this sudden appreciation for litigation and "revotes" in the face of contested elections came out solely because a desire to see democracy flourish, and is entirely unrelated to any partisan concerns. An Election 2000 mea culpa is forthcoming any day now.

All of that notwithstanding, I'm a sympathetic to Rossi's position. I really am. I outlined my problems with a revote in my original post on the matter, but I think I made it abundantly clear that I don't think Rossi is in the moral wrong here.

Most interestingly is Gregorie's comment on the suit: "I respect the rights of others to file an action in court. That's their right. I have to respect that, I'm the attorney general."

Those are admirable sentiments, and are probably the closest thing to a fair, non-partisan comment by a politico on a situation like this I've seen in awhile. Rossi also deserves some credit in this regard. Unlike Powerline, which compares Gregorie to Richard Daley, Rossi has emphasized that he thinks that the discrepancies were the result of honest mistakes and that no one "is out to steal the election." So kudos to both candidates.

The real loser in all of this, of course, is democracy. Any election where the outcome is so muddled will invariably stoke conspiracy theories and paranoia (and holding a revote won't solve that). But it's heartening to see that both candidates have managed to stay respectful and have refrained from overheated partisan accusations.

Fetishizing Our Own Oppression

This post requires me to tell a story for a little bit, so please bear with me as I set up my point.

Today, I attended a conference on multiculturalism, diversity, and race relations. We did many activities, including small group discussion of "who we are," and a "privilege walk" designed to show how people can possess advantages or disadvantages in society through factors they had no control over.

Another one of the activities we did was called "four corners." In it, a statement was made, such as "Bowling is the most boring sport on TV," and the group would move into one of four corners of the room depending on whether they strongly agreed, agreed, disagreed, or strongly disagreed. Undecideds went in the middle.

One of the statements was "race relations are no better today than the were in the 1960s." As the discussion commenced, a lot of people who agreed argued that the face of racism had changed, but not improved. They noted the covertly racist Rockefeller Drug laws, as well as the fact that a large portion of black men are incarcerated and disenfranchised. They claimed that politically, claims for racial equality were DOA, and that institutionalized racism remained intact.

I was in the "undecided" group, and argued thus: Yes, I agree with the majority of what the agreeds said. Institutionalized racism was still intact, and we aren't even close to the dream of ending racial subordination. But, I argued, its gutcheck time. I compared the argument we were having to an argument over whether George W. Bush was the world's GREATEST threat to world peace. In that argument, many speakers on the affirmative listed off a myriad of awful, horrible, evil things that could be attributed to Bush. In response, a negative speaker asked: "Imagine you could place either Kim Jong Il, or George W. Bush in prison tomorrow. Its gut check time. Would you really put Bush in the slammer and let Il go free?" And I argued the same applied to race relations. It may be bad today, but gutcheck time: Would you rather live as a black man in Mississippi in 1960 or today?

Now here's the part that stunned me: A large portion of the people present (I hesitate to say a majority) shouted that they'd put BUSH in prison. To them, he really WAS a comparatively worse threat than Il. What could cause such a position?

I think that there is a tendency amongst society to fetishize our own oppression. All of the awful things that happen to us, or, if we're the guilt-sensitive liberal types, happen to others in our name, are the epitome of oppression. Kim Jong Il may execute anyone who speaks an ill word about the "dear leader," but we have the PATRIOT Act. Il has places millions in death camps across the country; we have Guantanamo Bay. In the eyes of some, these are comparable (or reflect worse on the US) because WE'RE the ones doing it. We fetishize our actions and minimize the oppression brought on or brought upon by others.

Such a view is dangerous. In a world with limited resources, pretending that the US or other liberal states are comparatively worse than the worst oppressive regimes insures that those regimes will never change. It is a recipe for inaction. We can't act to end oppression because it would be hypocritical for we, the REAL oppressors, to do so. And even if we can get past that, it would make more sense to remedy the "worse" oppression in the US than to ameliorate the "mild" oppression of North Korea or Iraq.

The logical incoherence of such a position is astounding. Can anyone truly argue that (especially proportionally) more people are starved, more people are denied the right to vote, more people are held in prison on political charges, more people are murdered, or that more people are denied the basic human rights to freedom or equality by the US than China, or North Korea, or Iran, or Sudan, or Congo? With all do respect to my radical friends, what planet are you living on?

The radical left needs to remember that protesting foreign oppression and recognizing its relative evil compared to the West does not justify the things the West does wrong (and there are many). Perversely, the self-flagellation that passes for activism amongst the left wing dooms those most in need of radical change. We need to train the eyepiece beyond ourselves and look to how we can help the world, not just hurt ourselves.

Impending Doom

Kevin Drum thinks the end of the blogosphere draws nigh. What's the cause? The trigger is that newspapers want to switch to subscription-based formats online, rather than their current free editions. Drum thinks that without the presence of free online content, bloggers won't have enough to talk about.

I see his point, but I think there are a few things that need to be addressed. First, there are other things bloggers link to besides newspapers. Law Review articles, court cases, academic journals, and above all OTHER BLOGGERS all serve as spark points for insightful and provocative discussion. As long as a few bloggers can still come up with independent thoughts without the benefit of the New York Times, we should manage to get through this okay. Second, people still can read the print editions of these papers and transcribe excerpts online. It isn't ideal, and it would hurt the general medium (because you can't provide hyperlinks), but it wouldn't be catastrophic either. Finally, I think the blogosphere might have reached critical mass, where it can sustain itself. There are so many bright, insightful commentators from all over the political spectrum currently running blogs that I think that there is enough information to go around.

Oh, and if you want some REAL impending doom, Gregg Easterbrook has an article for you. Features include giant volcanic eruptions, magnetic field reversals, and of course asteroid impacts.

I Hate Irony

Kevin Drum is depressed. So am I. Why? Because California Governor Arnold Schwarzenegger has proposed something that he and I both agree with wholeheartedly: ending partisan control of the redistricting process.

It is clear to me that partisan redistricting is one of the great plagues on our Democracy (NOTE: A new paper questions whether redistricting actually harms competitiveness in Congressional races. Mark Schmitt buys most of the paper's conclusions, but contests that specific one). Texas was the most flagrant manifestation of this, but it hardly is unique. The lack of competition in California's 52 congressional districts shows that Texas is not alone. In theory, then, I support Arnold's intiative. So what's the problem? Over to Drum:

So why am I depressed? Because the insanely partisan atmosphere of contemporary American politics means I can't support this proposal even though I think it would be good for the state. After watching Texas Republicans ram through a brutally gerrymandered mid-decade redistricting that gained the Republican party four congressional seats in the 2004 election, how stupid would a California Democrat have to be to agree to meekly support a goo-goo proposal that would have the effect of giving Republicans more seats in yet another state? Guys like Tom DeLay and Hugh Hewitt would be guffawing in their beers for days about our terminal naivete if we went along with this. Raw power would be their ally in red states and appeals to progressive idealism would be their ally in the blue states. That's quite a combination.

Chalk up another reason to detest DeLay and Co. Even if we want to play fair, we can't because its political suicide. We all have to race toward moral destruction in the longterm because to do otherwise would be political destruction in the short term. All because DeLay and his pals don't believe in abiding by basic ethical standards. Curse you.

Cheney Gets Down

This photo from Wonkette is just hilarious.

Word up, Cheney D.

Roots of the Hatred: An Answer to Powerline

Over at Powerline, the question is asked: what, if any, is the rational reason liberals hate Bush?

My experience is that the two propositions set forth in the preceding paragraph are articles of faith among this crowd. The first -- distrust of U.S. power -- is the searing lesson of the Vietnam era. The second -- disdain for traditional religion -- is the lesson of the culture war. I may be wrong about this, but before confessing error I'd need to see, at a minimum, a satisfactory explanation for the intellectual left's hatred of President Bush that does not incorporate either of my two propositions, or others similarly fatal to the formation of a coalition with evangelicals.

Did someone call my name (I don't know if I qualify as part of the "intellectual left." I PLAN on being an academic, and my age isn't my fault!)? My immense distaste for President Bush stems from neither of the two premises Powerline puts out. The primary motivation for my ire is how Bush has delegitimized the exercise of U.S. power on the global stage, possibly for decades. I've already outlined the negative impacts of a world with an insular US, and I'm sure Powerline needs no persuasion on the matter. However, if it is important for the US to exercise power, than it must be EQUALLY important to create a climate in which US exercise of power to solve problems is supported, or at least tolerated. By undermining that sentiment, Bush has done the US (and the world) an immense disservice. In this respect, I loathe Bush for the OPPOSITE reason than the one ascribed by Powerline: It is my belief in the positive potential of US power that motivates my anger toward Bush's policies. I see him as destroying an ideal I deeply believe through arrogance, incompetence, and shortsightedness. An analogy that might work for Powerline would be if Bush was anti-tax zealot (not a hard picture)--but he expressed it by ONLY cutting taxes for millionaires. Powerline might be upset at the specific policy--I don't know--but it would be livid that now the whole enterprise of cutting taxes would be delegitimized by the idiotic actions taken in its name.

From a religious perspective, my faith dictates the extension of common decency to all mankind. Regardless of what I believe in private life, it is an important component of my spiritual beliefs that I believe them because I choose to, not because the government mandates them. I reject any attempt to impose religious views, whether I share them or not, on the population, because it is degrading to MY faith. Bush's cynical promotion of the FMA, which sought to degrade a class of human beings solely for the electoral benefit to be gained from it, was religiously offensive to me. And his and his allies' attempt to justify on the grounds of "Judeo-Christian morality," as if Jewish and Christian morality are remotely similar, was a distortion of historical realities (cf. Arthur A. Cohen, "The Myth of The Judeo-Christian Tradition," (New York: Harper & Row, 1957); Jacob Neusner, "Jews and Christians: The Myth of a Common Tradition" (London: SCM Press, 1991); and Stephen M. Feldman, "Please Don’t Wish Me a Merry Christmas: A Critical History of the Separation of Church and State." (New York: New York University Press, 1997), esp. 17-18 and 258-59) that sought to falsely incorporate my religious views into his oppressive ideology. I'll concede that this stance of mine may not make for an easy common cause with evangelicals, but it is equally not an expression on my part that all religious persons (of whom a count myself as one) are "rubes."

Those are my biggest reasons, but others abound. The most important article on this is Jonathan Chait's aptly named article "Mad About You: The Case for Bush Hatred." Some of Chait's reasons are simply visceral emotion (and he is the first to admit it), but not all of them. A few of the reasons include Bush's extremism:

Clinton offended liberals time and again, embracing welfare reform, tax cuts, and free trade, and nominating judicial moderates. When budget surpluses first appeared, he stunned the left by reducing the national debt rather than pushing for more spending. Bush, on the other hand, has developed into a truly radical president. Like Ronald Reagan, Bush crusaded for an enormous supply-side tax cut that was anathema to liberals. But, where Reagan followed his cuts with subsequent measures to reduce revenue loss and restore some progressivity to the tax code, Bush proceeded to execute two additional regressive tax cuts. Combined with his stated desire to eliminate virtually all taxes on capital income and to privatize Medicare and Social Security, it's not much of an exaggeration to say that Bush would like to roll back the federal government to something resembling its pre-New Deal state.

Partisanship:

When the September 11 attacks gave Bush an opportunity to unite the country, he simply took it as another chance for partisan gain. He opposed a plan to bolster airport security for fear that it would lead to a few more union jobs. When Democrats proposed creating a Department of Homeland Security, he resisted it as well. But later, facing controversy over disclosures of pre-September 11 intelligence failures, he adopted the idea as his own and immediately began using it as a cudgel with which to bludgeon Democrats. The episode was telling: Having spent the better part of a year denying the need for any Homeland Security Department at all, Bush aides secretly wrote up a plan with civil service provisions they knew Democrats would oppose and then used it to impugn the patriotism of any Democrats who did--most notably Georgia Senator Max Cleland, a triple-amputee veteran running for reelection who, despite his support for the war with Iraq and general hawkishness, lost his Senate race thanks to an ugly GOP ad linking him to Osama bin Laden.

And disingenuousness:

And, while there has been no shortage of liberal hysteria over Bush's foreign policy, it's not hard to see why it scares so many people. I was (and remain) a supporter of the war in Iraq. But the way Bush sold it--by playing upon the public's erroneous belief that Saddam had some role in the September 11 attacks--harkened back to the deceit that preceded the Spanish-American War. Bush's doctrine of preemption, which reserved the right to invade just about any nation we desired, was far broader than anything he needed to validate invading a country that had flouted its truce agreements for more than a decade. While liberals may be overreacting to Bush's foreign policy decisions-- remember their fear of an imminent invasion of Syria?--the president's shifting and dishonest rationales and tendency to paint anyone who disagrees with him as unpatriotic offer plenty of grounds for suspicion.

One might disagree with some or all of these, although at least a few of them should be roots for common cause between liberals and evangelicals (both, for example, hold value systems which would support more government spending to alleviate the ails of poverty). But they stretch beyond "irrational." Insofar as liberals and conservatives value different things, liberals might dislike Bush for some of the very reasons Conservatives laud him. But there are certain facets of Bush's presidency that should be detested by all members of the political spectrum. The excessive indulgence in partisanship, the poor handle on foreign policy, and the tendency toward extremism in lieu of compromise all spring to mind. If there is a group of Bush haters whose feelings are beyond the scope of rationality, there is another sect of us who share many common values with our Conservative brethren--if only they would acknowledge them.

Guess Who's Back?

Deja vu? How Appealing reports that Michael Newdow has launched another suit in federal court challenging the constitutionality of the "under God" clause in the Pledge of Allegiance. And according to the Sacramento Bee, this time he has co-plaintiffs (all of whom have full custody of their children, the kink that derailed Newdow's original suit).

The full text of Newdow's brief can be accessed here. It presents some compelling arguments. At the very least, it seems to knock flat the notion that the addition of "under God" was a religiously "neutral" act. It also presents some damning evidence of societal discrimination against atheists. There is simply no way to pretend that the United States is not overtly hostile to atheists without massively distorting the historical record. Unfortunately, this may not help Newdow's cause as much as it should. Jack Balkin, Professor of Constitutional Law at Yale University. "What Brown Teaches us about Constitutional Theory." Virginia Law Review Vol. 90, No. 6, October 2004. Pg. 1531-1577

"Law students are usually taught that it is the job of courts to protect what United States v. Carolene Products [304 US 144, 152, n.4, (1938)] called 'discrete and insular minorities.' These are groups that have suffered a long history of discrimination, are relatively politically powerless, and are unable to protect themselves in the political process. This portrait is quite misleading. In general, courts will protect minorities only after minorities have shown a fair degree of clout in the political process. If they are truly politically powerless, courts may not even recognize their grievances; and if they have just enough influence to get on the political radar screen, courts will usually dismiss their claims with a wave of the hand. Conversely, as a reform movement for minority rights gains prominence through political protest and legislative lobbying, courts will increasingly pay attention to minority rights and take their claims more seriously." (1551-1552)

The courts aren't as proactive about defending minority rights as we like to think they are. For the most part, it takes a lot more political influence--far more than atheists can currently muster--to bring about legal change.

One question I have is whether or not the 9th circuit will consider it bound under its ruling in Elk Grove to declare the pledge unconstitutional. Although the Supreme Court reversed its decision, it did not do so on the basis of merits. Since the facts of this case are identical to those in Elk Grove except for the issue of custody, it would stand to reason that the 9th circuit would apply the same analysis in this case as it did in the previous case. But I don't think it is BOUND to do so, which could get interesting.

I also question Newdow's tactics in this case. According to the brief, he has filed suits in courts across the nation. This seems like he is deliberately trying to create a circuit split and take the issue back to the Supreme Court. Nothing could be worse. As I noted in my very first substantive blog post, we dodged a bullet last time. The standing loophole let the Court defuse the firestorm around the case without closing the door to future litigation. They don't have that excuse this time around, and I am not convinced that the 3 judges who explicitly said the clause should be upheld could not pick off 2 judges from the majority to uphold it in law. This becomes even worse when one reads Justice Thomas' concurrence in Elk Grove. In it, he essentially agrees (as I do) that current precedent would mandate that "under God" is unconstitutional. But then, in a stunning evisceration of the principle of stare decisis, he proceeds to argue that this gives us a perfect opportunity to overrule the offending precedents and restore 1st amendment law to its former position prior to Lee v. Weisman. If he can sway enough judges to his position (and I do believe that he's right in a sense, the only way to uphold the pledge is to overrule Lee), this could rapidly become the largest legal setback for religious minorities in the past 50 years.

Torturous Reasoning

I earlier ripped into Powerline for their absurd suggestion that Republicans attacking Bush is a "betrayal". Today, Andrew Sullivan calls out Glenn Reynolds for the same foul, this time related to torture.

To be sure, Reynolds' claims are less reprehensible than Powerline's. He seems to making a descriptive rather than a normative claim: Opposition to Bush will only harden the resolve of Bush's Republican allies and thus prevent real change. He writes:

I think the effort to turn this into an anti-Bush political issue is a serious mistake, and the most likely outcome will be, in essence, the ratification of torture (with today's hype becoming tomorrow's reality) and a political defeat for the Democrats. And the highly politicized way in which the issue is raised is likely to ensure that there's no useful discussion of exactly how, in terms of incarceration, etc., we should treat potentially very dangerous people who do not fall readily within the laws of war.

To which Sullivan replies:

Run that by me again. The point is not "an anti-Bush political issue." It's about whether the United States condones torture of prisoners (many of whom have turned out to be innocent) in its care. Since president Bush shifted U.S. policy to one which allows what any sane person would call torture, any criticism of the policy, by its very nature, has to be "anti-Bush." And when the president responds to his egregious error - which has undermined the war - by rewarding those who helped him make it, like Gonzales and Bybee, are we all supposed to roll over? Is all legitimate criticism of the administration now reducible to this kind of inane partisanship? Glenn's deeper point is that if you ask for torture to be stopped, the majority of Americans will respond by saying: ramp it up. But that amounts to complete capitulation to something no civilized person should tolerate, and no grown-up military officer would approve. Glenn cannot pretend to be anti-torture, while eschewing any serious attempts to stop it through the political process. If you won't stand up to the Bush administration on torture, is there anything you won't acquiesce to? And it's not "hype." Read the reports.

Reynolds responds that even if Sullivan isn't a partisan, most of the critics are. I think that Reynolds is essentializing just a bit here; I've seen no evidence that there isn't at least a sizable chunk of the anti-torture agitators who oppose on principle, rather than as a political opportunity. Reynolds' also claims that Republicans want to have this debate, as it would just emphasize the Democrats as soft on terror. You know what? I'm willing to take a little political flak here and expose the gap between American rhetoric and reality. The American people ARE outraged by torture--as long as its on the front page. Mark Graber elaborates

Most Americans probably suspect that our nation now routinely tortures persons and that the President has sanctioned this policy. We sort of know this is wrong, but as long as we can maintain plausible deniability, who really cares. Thus, while we profess outrage when stories hit the front page, the outrage vanishes as soon as the stories disappear. Besides, some victims of torture might give up valuable information. Others are no doubt bad people, who might well torture us in appropriate circumstances. Most are people we do not know, and in America, people we do not know are people Americans need not care about. This is the real scandal, and it is about us. Beneath all the media talk of a politics of morality, George Bush and his cohort are deeply amoral people, and American under George Bush is a deeply amoral place. The real challenge for the left is making people care about torture, even when torture is not on the front page.

Put this on the front page and lets MAKE America, front and center, say "we're okay with torture." I don't think they have the chutzpah to do it.

I don't have too much confidence in the political process as a means to solve problems. But I do think that it should be the tool of first resort. Principle opposition to torture means getting out there, on the front page, and making it stop. And that's going to mean confronting those who would indulge in immoral US practices head on.

Feingold In the Ring?

Washington Whispers reports that Wisconsin Democrat Sen. Russ Feingold is testing the waters for a possible 2008 run (link Kos).

Keep a lookout for Sen. Russ Feingold , the second half of the McCain-Feingold campaign finance duo, who just won a third term from Wisconsin voters. He's on a nationwide mission to test out his progressive message that's liberal on some issues, like universal healthcare, and conservative on others, like the deficit. Fans think he can bridge the blue-state-red-state divide, making him not just a voice for a changing Democratic Party but a possible '08 presidential candidate.

Another ace up Feingold's sleeve was his opposition to the PATRIOT Act--the only person in the senate to vote against it. No flipflopping here, folks.

Obviously, I want to hear more about Feingold's positions (especially on Foreign Policy), but at the moment I'm cautiously optimistic. I think he could be an excellent candidate who can meld progressive and centrist positions to the betterment of all America.

Ethical Reversal

UPDATE: 1/4/05 @ 7:20 PM
Alot of bloggers, myself included, lambasted the House GOP for changing caucus rules to allow party leaders indicted on felony charges to stay in power. We noted that this rule change would cripple House ethical standards and many of us thought it was emblematic of the arrogance and power-drunkeness of the Republican majority.

So allow me to be the first to applaud the GOP's decision to reverse the rule in a party meeting. I think this was the ethical thing to do, and I call on House Democrats to enact a similar rule for their own party.

The Daily DeLay, which has been covering this issue from day one, has its press release up. Slightly churlish in my opinion, but well taken.

UPDATE: The Moderate Voice adds its thoughts, and reports that the Democrats have changed their rule as well. So everyone wins.

False Betrayal

Powerline is apoplectic that former EPA chief Christine Todd Whitman has the "temerity to impugn the President's re-election victory" in her new book, "It's My Party Too: The Battle for the Heart of the GOP and the Future of America". They write:

Someone should introduce a novel idea into government service: it's actually possible to serve in an administration, and then leave it without writing a tell-all expose about what a wonderful job you tried to do, but how, despite your best efforts, the administration went astray. When a Democrat like Richard Clarke betrays President Bush, that's one thing; when it's done by a Republican, it's unforgivable.

This article is so off base it almost defies a logical rebuttal. First, Richard Clarke isn't a Democrat. He's an independent. Second, perhaps Ms. Whitman actually thinks there are *gasp* things the administration could have done better! Maybe it isn't a vain effort at self-promotion and lucrative book profits. Third, and most importantly, the rhetoric Powerline uses is profoundly disturbing. Whitman "betrayed" Bush and that's "unforgivable." Powerline has taken the Democrats to task (often rightly) for their intolerance of opposing views. But I have yet to see mainstream Democrats label their moderate cohorts as "betrayers" just because they refuse to toe the party line to the letter (instead, they sometimes nominate them for Vice President, as Sen. Lieberman reminds us). Powerline would do well to remember that dissent is a virtue, not a vice, in a free society, and now that the campaign season is over they might also want to try admitting that the Bush administration isn't God's kingdom on earth. If Powerline thinks that the Republican party currently inhabits the perfect ideological terrain--politically, morally, on every issue, position, and controversy--that's their prerogative, but they should realize then that the party only came to its current state because "dissenters" challenged (betrayed?) the 50s-60s Republican orthodoxy of Taft, Eisenhower, and Ford. Seeking to silence those in the GOP with whom they disagree is the greatest gift Powerline can give to the Democratic party. But I for one prefer open political debate to transient political gains.

Moral Legitimacy

I've linked approvingly on several occasions (originally here and then expanded upon here) to Peter Beinart's pathbreaking article, "Fighting Faith," which outlines how the Democratic party needs to get serious on security issues. One of his most controversial claims is that the Democratic party needs to "purge" the radical leftists who deny the relevancy or importance of the global war on terror--those who think we can accommodate or appease the radical Islamic terrorists. Though I wouldn't personally go so far as to advocate a "purge," my general sympathies with Beinart's argument mean I'd be remiss if I didn't link to Joshua Zeitz's warning that getting rid of the leftwing sector of our party would rid of us some of our most important voices in the battles to assure domestic justice.

[T]he health of American democracy continues to depend on the ability of progressives to advance certain core values--on civil liberties, separation of church and state, gay rights, health care, and the social safety net. If liberals today boot out MoveOn, they will be purging some of their best organizers and fundraisers. But more importantly, they will be excommunicating the most passionate advocates of core progressive values in domestic politics. How often does one hear Joe Lieberman or Joe Biden talk about the crime of child poverty, the need to improve labor standards at Wal-Mart, the moral imperative of civil liberties and sexual freedom, or the importance of extending health coverage to all Americans? Sure, hawks like Biden and Lieberman more or less support these liberal positions. But their political passions lie elsewhere, namely in the realm of foreign policy. The Democratic Party needs moral clarity on foreign policy, but it needs moral clarity on the domestic front as well. If it simply purges the left, it may end up sacrificing the latter to achieve the former.

Zeitz notes that the very "softs" the Democrats purged in the 1940s were among the most articulate and passionate defenders of racial equality in the nation. Eliminating them seriously damaged the Democrats moral credibility on human rights. Today, the parallel issue is gay rights. Many of the moderate hawks in the Democratic party are ambivalent--at best--on the fundamental issues of gay equality. The leading lights in this fundamental quest for justice mostly reside on the left end of the party. I do believe that national security is an important issue for Democrats, and I might go so far as to say it's the most important issue. But I am not willing to sacrifice the rights of mankind upon the altar of political unity.

Going into the election, I recall being most concerned about security. The al-Qaqaa debacle and my continued fury at the Bush administrations refusal to actually fight the war they got us kept my focus firmly trained on foreign policy and military affairs. But after the election, undoubtedly aided by the 11 states passing anti-gay marriage referendums, I found that the issue that most arose my ire was gay rights. Part of it was due to Andrew Sullivan's coverage of the reaction in the gay community. It wasn't resignation, or disappointment, or even anger. It was fear. They were genuinely afraid of the message being sent by the rest of the country. It was loud, resounding, and universal: We don't want you. You're not welcome here. You aren't part of the American community. That message seriously disturbs me. When America starts telling its vulnerable minorities that they aren't welcome, starts passing laws that seek to relegate disliked groups to legal, moral, and political inferiority, we have a problem. And I do believe that this problem ranks right with the war on terror as one of the great moral challenges of our times.

If the baseline for continued Democratic legitimacy in the 21st century is support for the war on terror, then the baseline for Republican moral legitimacy is support for gay rights. Unfortunately, I see far fewer Republicans rising to this challenge than Democrat's rising to theirs.

Dual Meaning

Here's an interesting insight on the mindsets of liberal vs. conservative commentators. The Iraqi's launched an attack, a real one, not long range mortars or a suicide bombing, on a US military outpost near Mosul. Unsurprisingly, the got slaughtered as soon as US forces could call in air support. What does this attack tell us about the insurgency?

Iraq'd says they're getting cocky. Powerline says they're getting desperate. Which is it? You got me, but viva la difference!

And Happy New Year! Blogging will be sporadic as I settle back into college. Hopefully I'll be back in full force by the 3rd or 4th.

Pollution, Environment, and the Marketplace

Earlier, I wrote a long post on the limits of the market system, inspired by a post by Michigan Law Professor Don Herzog. It received to very insightful comments by my friend John Hall (he's "anonymous"), as well as my longtime reader Randomscrub. A new post on the subject by Prof. Herzog allows me to address their criticisms and bring up some new points.

Startign with Herzog's new addition to the discussion:

A line from Blackstone's Commentaries -- "There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property ; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe" -- is sometimes cited as a prize nugget of classical liberal insight on property rights. But Blackstone invokes it only to launch a long and complicated history of how this intuition properly gives way to wide-ranging historical developments.

These historical points don't settle what we should do; I introduce them only to continue my nefarious project of showing the deep continuities between us left-liberals and our classical-liberal ancestors. If you're a libertarian, you're free to argue that the line in Blackstone is (more or less) right as it stands. And then we have the usual fun dilemmas: should I be permitted to buy a donut ring of property surrounding yours and then refuse to allow you to leave your lot, on the grounds that it would be trespass? Less whimsically, absolutism about property has always yielded in the face of pollution. In Anarchy, State, and Utopia, Nozick has a brief discussion oddly set off in italics. A subordinate clause -- "Since it would exclude too much to forbid all polluting activities" -- gives away the game. On the absolutist view, if a single propertyholder refuses to consent to having pollutants enter her property, that should be enough to shut down industry and other polluting activities.

This provides an adequate answer to John's point on the environment; simply put, he proves too much. If any property holder can sue (on the basis of a violation of property rights) to enjoin pollution that enters his land, then one property holder could permanantly stop all pollution. Perhaps Greenpeace will be happy, but I sincerely doubt it's what John has in mind in his free market system. Taken in the other direction, the tort model proves too little. An article by Murray Rothbard (ironically given to me originally by John) shows the difficulties of prosecuting any polluting activities if we apply the standard tort model. Rothbard lays out the standards for torts in a libertarian world:

To establish guilt and liability, strict causality of aggression leading to harm must meet the rigid test of proof beyond a reasonable doubt. Hunch, conjecture, plausibility, even mere probability are not enough. In recent years, statistical correlation has been commonly used, but it cannot establish causation, certainly not for a rigorous legal proof of guilt or harm. Thus, if lung cancer rates are higher among cigarette smokers than noncigarette smokers, this does not in itself establish proof of causation. The very fact that many smokers never get lung cancer and that many lung cancer sufferers have never smoked indicates that there are other complex variables at work. So that while the correlation is suggestive, it hardly suffices to establish medical or scientific proof; a fortiori it can still less establish any sort of legal guilt (if, for example, a wife who developed lung cancer should sue a husband for smoking and therefore injuring her lungs)
Murray Rothbard, "Law, Property Rights, and Air Pollution." Cato Journal 2 No. 1, Spring 1982. pp. 55-99

As Rothbard later recognizes, any claim of a harm (or as he prefers, an "aggression") based on pollution is almost inherently speculative, and would not survive this strict standard. Rothbard later talks of how property owners can homestead certain levels of pollution; the amount of pollution they give off is their "right" up until a new property owner is affected. At the point, the first property owner can still give off that level of pollution, but cannot raise it without violating the new owner's rights. This too, falters under analysis. Property has been "owned" (in the libertarian, homesteaded sense) since time immemorial, so presumably everybody has a homesteaded right to zero pollution. Even if one decides that modern society has so jumbled and infringed on property rights such as to make all prior property contracts meaningless, we're still left in a situation where we are locked into current levels of pollution, all it takes is one owner to protest against an increased industrial production on the grounds that it violates his property rights to stop it. In the end, either model is equally bad: Either we cannot ban any pollution (because we can't prove a harm beyond speculation) or we can ban all pollution (because it violates property rights).

Randomscrub points out that my argument assumes that the market is amoral, when in fact it is made of people who can choose to make moral choices. This is true, and it is certainly true that the Milbrath quote I cited only reveals that markets have a tendancy to aid the rich. However, there are several problems with the implications his claim.

First of all, there is only a small subset of the population who possesses the means to make the "moral" choice of funding a water treatement plant into a reality. I'd love to create a water treatment facility in South Asia, but I can't because I don't have the funds. The people who possess the funds probably got them from somewhere, and the way one makes enough money to fund major projects is by seizing upon the most profitable options and running them. As already noted, these options cater to the rich at the expense of the poor. So the very type of person who possesses capital is also relatively unlikely to be one inclined to undertake charitable projects.

Second, much capital in the modern world isn't controlled by individuals as such, it's controlled by corporations. Whereas individuals are free to do whatever they like with their money, corporations are bound by a variety of laws, contracts, and agreements to act in the best interests of their stockholders; this means they are obligated to seek out the most profitable, not the most moral, course of action. History shows that corporations, even those governed by people whom are quite generous in private life, tend to act in an impersonal manner, often flagrantly violating the rights of persons up until the outcry is loud enough to drown them out. Since this outcry only works to stop a fraction of the times where the company is proactively violating rights, it seems facile to suggest it would be strong enough to push the company to proactively improve the wellbeing of persons upon whom they have no legal obligation.

Third, I'd say my position is empirically true. The fact that I can pick up the newspaper and still read about appalling water conditions around the world is prima facia evidence that the "moral market" isn't solving the problem. True, some of the obstacles are put in place by and are the fault of corrupt local governments. But I don't believe that removing the governmental regulations would solve the problem. Again, this has been empirically verified. Chris Jochnick, Legal Director at the Center for Economic and Social Rights provides the example of Ecaudor. There, the state had given the Texaco Oil virtually free reign in the country's outland regions. The company responded by engaging in massive environmental degredation at the expense of the nation’s Amazon community. Affected citizens were told that there was no redress available from the company because Texaco was a private corporation and thus not party to relevant treaty law, they would have to go to the state for aid. However, since Texaco’s revenues were 4x the entire GNP of country, and in any event the company was actively backed by the US government, few believed that the nation could stop the environmental destruction even if it were so inclined.["Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights." Human Rights Quarterly 21.1 (1999) 56-79].

Here, the state pretty much let a large company alone, free from oppressive regulations or legal restrictions. And following my model, Texaco didn't engage in win-win propositions with the local community, or seek to create mutually beneficial business activities. Instead, it systematically raped and plundered the region, at great profit to the corporate overlords and shareholders who lived thousands of miles away and did not have to face the consequences of their actions firsthand. Empirically, then, something more than a free hand has to happen before a company will engage in moral actions in the global periphary, especially in regions where governments are weak and easily coerced by powerful Multinationals backed by US power.

Incidentally, the above event also shows the limitations of claiming that "protection of property rights" would solve. Who exactly would be doing the protection? As noted, the violator (Texaco) was bigger and more powerful than the nominal enforcer (Ecaudor). With the policeman effectively taken off the beat, the structures which defend property rights from aggression effectively collapsed.

I still think the overarching point is valid: markets can't solve everything, and they are particularly bad at solving environmental problems. Once we accept that the governmetn can create certain "baselines" to make the market work, or at least work morally, then we can recast our discourse so that the market works for everyone, not just the elite few. This is the role of governments in the new, globalized world.

Rossi Wants a Revote

In the great state of Washington, losing Republican gubernatorial candidate Dino Rossi now wants the state to just call off the whole election and vote again. For those of you who don't know, Rossi was ahead in the original tally of votes and the first recount. However, a second, manual recount put Democrat Christine Gregorie ahead, and it now looks like she will be certified the winner.

I'm going to try and put aside the rank hypocrisy on the Republican's part here (Kevin Drum is having more trouble), and address the proposal on its merits. I'm honestly undecided as to whether this is a good idea, but I lean that it isn't. For me, the paramount issue is whether or not the will of the people, as expressed in the election, is met. That's why I support recounts, including any additional ones that Rossi would like to have done. I'm also skeptical of the Washington Supreme Court decision that ruled canvassing boards could not look at ballots that were disqualified due to "voter error." I supported looking to voter intent whenever possible in Florida 2000, and I'll support it here. However, contrary to GOP claims of a double standard, I do understand the distinction between those ballots disqualified due to voter error and those disqualified due to administrative error (such as the now famous ballots in King Country which were eventually allowed). The latter ballots have a far better claim of validity than do the former. But that notwithstanding, I do think that there should be a goodfaith effort on the part of the entire state to determine who the voters intended to vote for.

That being said, a revote is an entirely different can of worms. For better or for worse, we have elections on certain days so that all of our candidates are evaluated based on the same series of events. A revote would have absolutely unpredictable effects on voter turnout, it might spike (due to partisans thinking their candidate was "robbed"), or it might plummet (with many less-attuned voters unaware that a second election is being held, or just not caring enough to vote any more). In the absence of clear evidence of fraud, which I haven't seen yet, I don't think we should upon this Pandora's box.

Back in Action

I'm back from Aspen, but I'll be leaving for college on the 2nd! The ski vacation was great, although it was marred by the tragic events in Asia. If you can spare anything, please send help.

Anyway, I'm re-entering the blogosphere with commentary on Kevin Drum's post on the partisan nature of the blogosphere. He writes:

There's a point to be made here about the "independent" blogosphere, too. Namely that it's anything but. In fact, the political blogosphere is far more partisan than any organ of the mainstream media, more partisan than most op-ed pages, and most of the time more partisan than even the overtly political magazines. The blogosphere is about the most partisan and least independent voice this side of talk radio.

Drum says he can't see anything wrong with that (though he may have been sarcastic). I see something VERY wrong with it. The blogosphere's potential for positive contribution to American political discourse doesn't lie in the amplification of shrill partisan hackery. It lies in its potential to bring together an enormous amount of expertise, analysis, opinion, and argument together in an easily accessible and quickly disseminatable form. The mainstream media certainly has its problems, but at least it never became an echo chamber for the RNC and DNC's talking points of the day. The best blogs are those that argue the idea, not the man, and are willing to stand up to their standardbearers when their nominal allies drop the ball.

I almost never read Daily Kos or Eschaton because I know they will never take a Conservative position on anything, regardless of merits. I avoid Hugh Hewitt and even Instapundit for the same (politically reversed) reasons. If you're only posting to pump up your chosen party, then you have no space in my blogworld.

Aspen

Going on vacation to Aspen. Back on the 29th.

Happy Holidays!

Market Limitations

WARNING: Long post ahead. Read at your own peril!

This post, by University of Michigan Law Professor Don Herzog, at the Left2right blog got me thinking about good arguments about the limits of the free market. Contrary to what far-right ideologues like to say, there are plenty of goods in our society which cannot be justly distributed by market forces. Let's start with Herzog's thoughts:

Now there's a huge literature debating when or whether markets fail -- will they provide public goods? and because of network effects and the like, will they create monopolies not disciplined by the threat of entry? And then there are questions about whether the state can improve on even failed markets. Leave that stuff aside. The real question, I think, is: what are the proper boundaries to the market? What do we want to buy and sell, and what do we want to allocate in other ways?

Once we bought and sold people. Slavery is one way to have a market in labor, and we rejected it. Now employers can purchase your labor, but not you. Richard Posner has proposed buying and selling babies, or "parental rights," to get rid of those noxious queues at adoption agencies: most of us flinch, even though he's got to be basically right about the queues. The state assigns each adult citizen the nontransferable right to cast one vote. We could have a market in votes: the state could assign initial property rights by mailing you a coupon that says, "bearer has the right to cast one vote." You could "consume" your property by casting the vote yourself; you could donate the coupon to the political charity of your choice; you could sell it to Ross Perot. But we reject any such market, and we don't budge when an economist observes that prohibiting free transfer generates deadweight loss. Citizenship itself isn't for sale. The usual way to get it is by being born here, which has nothing to do with merit or accomplishment or hard work or consumer demand. Fans of the Boston Red Sox had to wait for their team to win the right games at the right times to win the World Series; they couldn't pool together and raise enough money to buy the title from the Yankees.

The list of nonmarket goods is awfully long and wonderfully diverse. A liberal society isn't just a free market underwritten by a night-watchman state. It has lots of different institutions -- churches, universities, clubs, you name it. Market fundamentalists, as I'll cheerfully dub them, want to envision all of society in the market's image. There are other kinds of fundamentalists out there. A certain kind of participatory democrat wants all of society to be run democratically: she'll demand, why don't workers get to make decisions at firms? And why should the Roman Catholic Church be so hierarchical? Christians have occasionally suggested that all of society should run on an ethic of brotherly love. And so on.

We should reject all these fundamentalisms, and instead respect the idea of boundaries between different social settings. (That's not the same as maintaining whatever the current boundaries are. When the state ditches slavery or makes sexual harassment actionable, it redraws the boundaries of the market.) And we should reject the view that whatever the state does is coercive, and whatever society or the market does is voluntary. The state can write rules that expand our options, and no, not by grabbing and redistributing things that others are entitled to. The legal rules for writing a will let you do something magical and bestow your property after you're dead. And social relations can be coercive...
...
Notice the right-wing complaint that crazed political correctness is silencing people on campuses and elsewhere, even costing them their jobs. True or false, it sure does depend on the view that you can find coercion outside the state. Your action isn't voluntary if you had no reasonable alternatives, and it doesn't take a law to deprive you of such alternatives. Once we wrest free of market fundamentalism, we can see problems with state action and possibilities for it that have nothing to do with market failure, economic inefficiency, regulatory capture, and the like. And we can see a host of political problems -- controversies over the legitimacy of authority in farflung social domains -- that have nothing to do with the state.

A specific area in which markets fail is on environmentalism and distributional justice. Lester Milbrath, Professor Emeritus of Political Science and Sociology at SUNY-Buffalo, LEARNING TO THINK ENVIRONMENTALLY, 1996, p. 87-88.

Markets work quite effectively to allocate resources, but they can’t look ahead to foresee such possibilities as overshoot and dieback, or global warming and climate change. A society that wants to become sustainable must foresee possible scarcities and system disturbances and then use its political system to limit throughput at sustainable levels. Markets also can’t distinguish what’s morally correct from what’s morally reprehensible. They’ll respond to the demands for luxury goods by the rich while ignoring the needs of the poor for bare subsistence. For example, land in the tropics that used to grow food for the poor may be diverted to grow flowers for rich Americans who want flowers in the winter. The free movement of capital and goods in a capitalistic world market has another harmful effect—that of encouraging the location of production facilities in countries with the lowest wages and the lowest levels of environmental protection. Markets encourage, even require, firms to externalize their pollution costs in order to be competitive. The costs then have to borne by the public and the ecosystem.

Markets don't fill every niche, they fill the most profitable niches. These niches (growing flowers for the rich instead of food for the poor) aren't necessarily in line with our moral obligations to humanity. At the same time, the reason market regulation still works (from an economic standpoint) is that "pro-poor" economic activity still can be done profitably, just less so. John Dernbach, Prof. of Law at Widener University, "Symposium On Bjorn Lomborg's The Skeptical Environmentalist: Sustainable Versus Unsustainable Propositions." CASE WESTERN RESERVE UNIVERSITY. (Winter 2002). 53 Case W. Res. 449

...access to drinking water is not just about the environment; improving access to drinking water in developing countries would reduce the incidence of waterrelated disease and death as well as increase economic productivity. [n121] That's why the nations of the world agreed in Johannesburg to "halve, by the year 2015, the proportion of people who are unable to reach or to afford safe drinking water" and sanitation. [n122] The point of such measures is to improve environmental quality, social wellbeing, and economic growth at the same time.

Let's take a hypothetical example. Let's say one could allocate resources to Dernbach's water purification project, which would give us a profit of $1000 (I'm drawing these numbers out of thin air). Or, we could spend it on generic "other" economic activity that is relatively exploitative (say, a mining operation) at a profit of $4000. The point is that in a free market, "other" will win out every time. But if we regulated the market to FORCE someone to do a water purification project, the world wouldn't collapse. Indeed, the businessman would still make a decent profit. That's the warrant for limited, intelligent governmental regulation of the market.

Rightwing economists might respond that eventually one will saturate the market for "other," and then the $1000 in untapped profit one could get from the water project would look good. Unfortunately, I'm not convinced we'll ever hit the crossover point. There are limited resources in the world, for one, so not every project can be tackled, even worthwhile ones. More importantly though, is that economic growth creates its own demand for more products. It isn't as if people hit some level of consumption and stop there in contentment, freeing up other resources to bring the bottom up. Rather, the dynamics of the wealthy lie in conspicuous consumption: they want to consume even more than they need, and they want to show it off. Thus, they'll continue to demand even more, new products, and they have the resources to attract the new production. This perpetuates a cycle: the market feeds the rich, who get richer and create a demand for even more goods. The market never switches its resources to aid the poor, even in profitable manners, because it can always make more money supplying the rich.

The environmental issue is particular important to this debate, because a free market, if left alone, is INHERENTLY destructive to the environment. Barbara Adam Professor of Social Science at Cardiff university. "Time and Environmental Change" ESRC Global Environmental Change Programme. accessible here

"Environmental pollution, contamination, and degradation are inescapably linked to industrial societies’ approach to time, where time is linked to money, speed to efficiency, and the 24-hour society to progress. Industrial time conflicts with the times of the natural environment: it clashes with cycles of life and death, growth and decay, with seasons and rhythms, the variable intensity of change, sustainabilty, and cycles of re-generation." The impact of these temporal perceptions is inescapable degradation of the environment. Adam continues "Industrial societies' economic...time-space is out of synchronisation with the system-specific timescales of socio-environmental change: resources that took millions of years to develop are degraded and/or depleted within a few hundred years: locally-caused hazards have consequences that extend across the entire earth."

Insofar as more production is always better (or at least, the constraint on demand is utterly unrelated to the constraints imposed by sustainable environmental practices), it is unreasonable to expect corporations operating in a free market system to act in environmentally responsible manner. This is the classic "tragedy of the commons," somewhat adapted. Since it is in every corporations to produce a little bit more, they all will, because the get all of the profit from doing so and bear only a portion of the eventual cost (environmental collapse). Furthermore, they'll bear the cost just the same whether or not they partake in the additional production, so they are literally forced to act destructively, even if they are aware of the consequences and even if they are aware that it would be more beneficial to all, in the long term, to scale back production. Governmental regulation that acts to mitigate THIS problem actually increases the net economic gain, since it knocks out the "common costs" for which a free market cannot account for.

Those are the basics on why a free market can't solve everything. The moral compulsions of a just society demand that we take some steps to curb the excesses of the market in order to bring about a fair chance for all (not to mention stopping environmental collapse). Thoughts and comments are welcome.

Truly Pro-Life

UPDATE: 12/23 @ 9:21 PM
Yale Law Professor Jack Balkin writes on what being a pro-life Democrat really should entail. (Yes, I'm aware that I've quoted Balkin three times (counting an update) in two days. And while I'm at it, I'm going to plug "What Brown v. Board of Education Should Have Said," his book, because it rocked out. Whatcha gonna do about it?)

Balkin writes:

If, despite this, one feels it important to restrict abortion because of the overwhelming interest in potential human life, one must attempt to remedy the problem of sex inequality in another way. Pro-life Democrats can work to lessen the stigma of surrendering a child for adoption, but that stigma is unlikely to fade soon no matter how earnest the effort. Far more important is support for social programs that help working women with the burdens of child care and with the costs of raising children, including nutrition programs, educational programs, subsidized health insurance for mother and child, and subsidized child care. A child's life does not stop after it leaves the womb; and if one really wants to be a "pro-life" Democrat, one should be pounding the table for protecting born children as well as unborn ones, as well as protecting the equality and equal opportunity of the women who gave birth to them.

As an abortion swing voter whose been trending pro-life, I agree entirely. I also don't think these principles can be restricted solely to Democrats. The Republican party has no claim on the label "pro-life" unless it actually takes an interest in the lives of children once they are born. I am reminded of the definition of "pro-life" from Chaz Bufe's indispensable "The American Heretic's Dictionary" (a take off of Ambrose Bierce's classic "The Devil's Dictionary"):

PRO-LIFE, adj...2) Vitally concerned with the wellbeing of "babies" right up to the moment of their birth—at which time they become "welfare cases" and "future criminals" undeserving of such luxuries as housing, health care, adequate nutrition, and a decent education.

Regardless of your views on when a life begins, allowing children to die by stray bullets in ghetto hi-rises is as criminal as letting them die via a medical procedure. The GOP would have far more credibilty if it was pro-EVERYBODY'S life, rather than picking and choosing what lives are valuable enough for the government to step into defend.

One more thing: The easy response to make to the above would be that the government would treat abortion/murder and gunshot/murder the same way: by prosecuting those who commit the crime. This would imply that Republicans are being hypocritical at all. But this logic strikes me as entirely too simplistic. If the government acts with reckless negligence in allowing the seeds of crime to grow (in abysmally poor neighborhoods with little policing and no economic hope) then it is abdicating its responsibilty to keep us safe. The government's responsibilty isn't just to enforce the law, it is also to create the conditions where the law is obeyed. Although the government can only to so much, to borrow from international human rights law, the government is under the obligation to create an "enabling environment" within which life can protected. The advantages to doing so are twofold: First, it will reduce crime by eliminating (or at least reducing) the root causes which force people into illicit activity. The second is that it makes it more likely that the criminals we put in jail are actually "the bad guys." We all agree that there is a different level of moral culpability between a man who steals a bigscreen TV from a house just because, and a women who steals food from the grocer to feed her family. The "enabling environment" paradigm, which would reduce the latter type of theft, would also allow us to--justifiably--spike sentences against those who commit the former type. This would "purify" our criminal justice system and reduce the amount of good-hearted people who get trapped inside a circuit of crime. Bill Clinton once said "If you work hard, and play the rules, no one should have to be poor." I'd expand that to say "If you're willing to work hard and play by the rules, no one should have to resort to crime." That isn't the world we live in now, but with work its the world we can live in one day.

UPDATE: This LA Times article, helpfully linked to by Mathhew Yglesias, shows why it's unreasonable to expect poor folks (especially poor youth) to "just say no" to a life of crime. Yglesias' excerpt is telling:

Years ago I asked gang members what happened to kids who "just said no" to the Bloods or V-18s. They brought me a videotape other gang members had made for a 14-year-old boy who had refused to join them. The tape showed gang members raping his 13-year-old sister. The boy joined the gang so that its members wouldn't return to kill her.

Another great book that both deals with this issue and offers hope is "No Free Lunch" by Rodney Carroll. This is an issue that can no longer be overlooked, if we are to call ourselves a humane and just society. Solving the cycle of poverty, gangs, and violence that plagues urban America strikes me as the most pro-life action a legislator could take.

Where's the Call?

The Legal Fiction blog has a superb post on why Conservatives should be outraged over torture (link: Volokh). It's a superb post, I highly recommend it. My favorite quote:

Again, regardless of what I think of certain neocons, there are some good faith neoconservatives out there. Assuming that this is your view, I don’t see how you could be anything but enraged at the administration for this debacle. That’s because the torture scandal strikes at the very heart of your entire vision of foreign policy. To be grossly general, the neocons believe that the current international system is too restrictive upon the United States. They believe that we need to break away from some of these institutions (UN) and be proud to use American power in support of democracy and other human rights across the globe. There’s a sort of Nietzschean element to their vision – America must transcend the current order and, by acting, create a new and better world order.

Leaving aside the Marxist/Rousseauian/French Revolution aspects of this vision, it rests on one critical assumption – that America is a force for good. Without that pillar, the entire neoconservative edifice comes crashing down. Unless you’re morally superior (or at least "good"), there is no moral justification for ignoring international law and abandoning international institutions. These are not people who simply think “might makes right.” Like the French Revolutionaries, there’s a deep moralistic streak in their vision. America is good. If she acts boldly, others will follow and the world would be better. The justification of invading Iraq in spite of world opinion depends upon this assumption that we are a force for good.

The problem, though, is that the great neoconservative experiment ended with the hooded man with the electrodes on his testicles. In one snap of the camera, everything was lost. How can you convince the world to follow when you sanction Scorpion treatment? How can you regain the moral legitimacy that is the foundation of your vision? How can you convince your fellow citizens to abandon international law when this is what happens. It reminds people that there’s a reason we have laws.

The whole thing is stellar. The question is: are Bush's actions immoral or impeachable?