Saturday, July 30, 2005
Friday, July 29, 2005
Recasting "The Lorax"; Or, The Triumph of the Crits
Todd Zywicki points us to a property-rights reinterpretation of Dr. Seuss' classic environmental, er, tract, "The Lorax."
I repost it in full, only because you need to read all of it to understand the point I'm making (and, given my own experience with reading assignments in High School, I don't trust you folks to actually do it yourselves!):
So--let's break this down to the roots. A story that has a dominant, superficial message (corporate greed leads to environmental destruction), and, as the critic admits, probably was intended to forward precisely that message, still contains within in it traces of other meanings which subvert and undermine the primary interpretation and the accompanying ideology.
If this sounds familiar, that's because this is precisely how post-modern literary critics make their living. Yet here, we have a conservative blogger using the same method to make a conservative argument (replacing a traditional liberal environmentalist model with a conservative one emphasizing property rights).
I've registered my own support for this type of method before--but that shouldn't be surprising, since I'm a liberal. What is interesting is seeing how conservatives have adapted this style in their own arguments, probably without realizing its roots. Another example is conservative blogger Steve Bainbridge defending under "Just War" theories the destruction of Alderaan (that's right, we're talking Star Wars. For another "neo-imperialist" argument by a prominent conservative, see here in The Weekly Standard). In another post, which unfortunately points to a broken link, Bainbridge notes that just because they wear black, doesn't make them evil. The point is that the imagery of Star Wars is clearly designed to point the viewer to certain conclusions (sometimes overtly--who names their own ships and installations "Death Star," "Executor," "Tyrant," etc.?), but look underneath the surface and the meaning isn't inevitable (despite the clear intention of the author). This parallels almost exactly the indeterminacy theories forwarded by much of the academic left.
What's funny is that conservatives claim to loathe these theories (see, for just one example, Senator Jeff Sessions (R-AL)). Indeed, Bainbridge himself has called it "bogus." Yet, here he is, engaging in precisely the critical endeavor he claims to abhor. What gives?
Other parts of the critical movement are rapidly making themselves known in conservative circles as well. Storytelling scholarship, despite often coming under criticism, is used by virtually all members of the political spectrum (as Richard Delgado puts it: "who has not run into the conservative or anti-PC detractor who begins by recounting: 'I know a story . . . .' and then tells of a mythical professor who was so hounded by PC fanatics that he hung up his coffee cup and retired" [Richard Delgado, Rodrigo's Book of Manners: How to Conduct a Conversation on Race -- Standing, Imperial Scholarship, and Beyond (Reviewing "BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW" by Daniel A. Farber and Suzanna Sherry), 86 GEO. L.J. 1051, 1072 (1998)]). In an article published in a campus political journal, I noted how conservative arguments for ideological diversity on campus mirror almost exactly liberal arguments for racial diversity--and how the responses of both "embattled minorities" is very similar: Both political minorities and racial minorities tend to separate themselves out from the rest of campus, form groups specifically designed to advocate and protect their interests as well as offering a safe space for members to congregate, and advocate vociferously to defend encroachments on their dignity while at the same time trying to avoid the backlash that is concurrent with being seen as a "pushy minority." Indeed, conservatives seem awfully comfortable with critical theory--aside from the fact that they hate it.
Although part of me does rebel about such a lovely story as The Lorax being co-opted to the conservative cause, I am far more pleased to see a philosophy I find important and compelling being adopted across ideological divides. Indeed, while I expect to hear protests and assaults on post-modernism for years to come, judging by what conservatives are saying, the Crits have already won.
I repost it in full, only because you need to read all of it to understand the point I'm making (and, given my own experience with reading assignments in High School, I don't trust you folks to actually do it yourselves!):
Dr. Seuss' story of the Lorax is an environmental classic (as is the television version that I've just seen). The conventional interpretation is that it's a tale of market-driven environmental ruin. The greedy Once-ler ignores the Lorax's warnings of environmental ruin as he turns truffula trees into thneeds (for a thneed, after all, is a thing that everyone needs!). As the truffula trees disappear the animals run off in fear, smog fills up the air yet the Once-ler doesn't care. Eventually the Once-ler cuts the last truffula down, and his entire corporate empire folds up and leaves town.
Environmentalists love to present this as a parable of modern industry's exploitation of the natural world. The relentless pursuit of profit leads to environmental -- and economic -- ruin. When the last truffula falls, so does the natural base for the Once-ler's wealth. And unless humans learn to care for the natural environment, and control industrial development, we will produce ecological devastation. But is this the best interpretation?
Paul Feine of the Institute for Humane Studies suggests the Lorax is subject to alternative interpretations. Viewing the tale of the Lorax through an institutional lens, ruin is not the result of corporate greed, but a lack of institutions. The truffula trees grow in an unowned commons. (The Lorax may speak for the trees, but he does not own them.) The Once-ler has no incentive to conserve the truffula trees for, as he notes to himself, if he doesn't cut them down someone else will. He's responding to the incentives created by a lack of property rights in the trees, and the inevitable tragedy results. Had the Once-ler owned the trees, his incentives would have been quite different -- and he would likely have acted accordingly -- even if he remained dismissive of the Lorax's environmental concerns.
The story ends with the Once-ler giving a young boy the last truffula seed. He tells him to plant it and treat it with care, and then maybe the Lorax will come back from there. The traditional interpretation is simply that we must all care more for the environment. If we only control corporate greed we can prevent environmental ruin. But perhaps it means something else. Perhaps the lesson is that this boy should plant his truffula trees, and act as their steward. Perhaps giving the boy the last seed is an act of transferring the truffula from the open-access commons to private stewardship. Indeed, the final image -- the ring of stones labeled with the word "unless" -- could well suggest that enclosure, and the creation of property rights to protect natural resources, is necessary for the Lorax to ever return.
Now I am not suggesting for a moment that this is the interpretation Dr. Seuss intended. Yet the Lorax, like any text, is open to multiple interpretations -- and this institutional interpretation is certainly compatible with the text. As is, perhaps, another interpretation in which the Lorax is himself an owner whose property rights are ignored by an unaccountable corporation. Either way, the Lorax is easily seen a story about property rights -- or the lack thereof -- and the inevitable environmental consequences of poor institutions. Something to think about the next time you hear the Lorax mentioned in an environmental policy debate.
So--let's break this down to the roots. A story that has a dominant, superficial message (corporate greed leads to environmental destruction), and, as the critic admits, probably was intended to forward precisely that message, still contains within in it traces of other meanings which subvert and undermine the primary interpretation and the accompanying ideology.
If this sounds familiar, that's because this is precisely how post-modern literary critics make their living. Yet here, we have a conservative blogger using the same method to make a conservative argument (replacing a traditional liberal environmentalist model with a conservative one emphasizing property rights).
I've registered my own support for this type of method before--but that shouldn't be surprising, since I'm a liberal. What is interesting is seeing how conservatives have adapted this style in their own arguments, probably without realizing its roots. Another example is conservative blogger Steve Bainbridge defending under "Just War" theories the destruction of Alderaan (that's right, we're talking Star Wars. For another "neo-imperialist" argument by a prominent conservative, see here in The Weekly Standard). In another post, which unfortunately points to a broken link, Bainbridge notes that just because they wear black, doesn't make them evil. The point is that the imagery of Star Wars is clearly designed to point the viewer to certain conclusions (sometimes overtly--who names their own ships and installations "Death Star," "Executor," "Tyrant," etc.?), but look underneath the surface and the meaning isn't inevitable (despite the clear intention of the author). This parallels almost exactly the indeterminacy theories forwarded by much of the academic left.
What's funny is that conservatives claim to loathe these theories (see, for just one example, Senator Jeff Sessions (R-AL)). Indeed, Bainbridge himself has called it "bogus." Yet, here he is, engaging in precisely the critical endeavor he claims to abhor. What gives?
Other parts of the critical movement are rapidly making themselves known in conservative circles as well. Storytelling scholarship, despite often coming under criticism, is used by virtually all members of the political spectrum (as Richard Delgado puts it: "who has not run into the conservative or anti-PC detractor who begins by recounting: 'I know a story . . . .' and then tells of a mythical professor who was so hounded by PC fanatics that he hung up his coffee cup and retired" [Richard Delgado, Rodrigo's Book of Manners: How to Conduct a Conversation on Race -- Standing, Imperial Scholarship, and Beyond (Reviewing "BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW" by Daniel A. Farber and Suzanna Sherry), 86 GEO. L.J. 1051, 1072 (1998)]). In an article published in a campus political journal, I noted how conservative arguments for ideological diversity on campus mirror almost exactly liberal arguments for racial diversity--and how the responses of both "embattled minorities" is very similar: Both political minorities and racial minorities tend to separate themselves out from the rest of campus, form groups specifically designed to advocate and protect their interests as well as offering a safe space for members to congregate, and advocate vociferously to defend encroachments on their dignity while at the same time trying to avoid the backlash that is concurrent with being seen as a "pushy minority." Indeed, conservatives seem awfully comfortable with critical theory--aside from the fact that they hate it.
Although part of me does rebel about such a lovely story as The Lorax being co-opted to the conservative cause, I am far more pleased to see a philosophy I find important and compelling being adopted across ideological divides. Indeed, while I expect to hear protests and assaults on post-modernism for years to come, judging by what conservatives are saying, the Crits have already won.
Thursday, July 28, 2005
Now I Am Getting a Touch Angry
I was not one of those persons who was ready to jump on the new Pope as soon as he was elected. Indeed, I was even a bit excited, and chided those who immediately tried to box the new Pope as any sort of ideologue.
But my patience is waning.
In a recent speech, Pope Benedict specifically condemned terrorist attacks in Britain, Iraq, Turkey, and Egypt, neglecting the terror attacks against Israel in Netanya (not that it should matter, but Netanya is not in the West Bank or Gaza Strip). The omission was bad enough--the Holy See has enough credibility problems with Jews that it doesn't need to make things worse by refusing to condemn murder.
But the incredibly, the reason given for Israel's omission was even worse than the omission itself. Namely:
I concur wholeheartedly with the reaction of Andrew Sullivan's guest-blogger:
As am I. The Pope cannot get away with the murderous equivilancy of suicide bombings and legitimate self-defense and expect to have any credibility in the Jewish community. Israel may or may not be right in the particulars of how it responds to terror. But it certainly possible to condemn suicide bombings that deliberately target innocents without feeling compelled to condemn actions designed to deter these murders.
But my patience is waning.
In a recent speech, Pope Benedict specifically condemned terrorist attacks in Britain, Iraq, Turkey, and Egypt, neglecting the terror attacks against Israel in Netanya (not that it should matter, but Netanya is not in the West Bank or Gaza Strip). The omission was bad enough--the Holy See has enough credibility problems with Jews that it doesn't need to make things worse by refusing to condemn murder.
But the incredibly, the reason given for Israel's omission was even worse than the omission itself. Namely:
It's not always possible to immediately follow every attack against Israel with a public statement of condemnation," a statement from the Vatican press office said Thursday night, "and (that is) for various reasons, among them the fact that the attacks against Israel sometimes were followed by immediate Israeli reactions not always compatible with the rules of international law."
"It would thus be impossible to condemn the first (the terror strikes) and let the second (Israeli retaliation) pass in silence," said the statement, which had an unusually blistering tone for the Holy See.
I concur wholeheartedly with the reaction of Andrew Sullivan's guest-blogger:
Just so I understand, the reactions of Egypt, Britain, Iraq and Turkey to terror attacks have always been compatible with the rules of international law ?! Therefore, terror attacks against innocents living in those countries are wrong. Terror attacks targeting citizens living in countries with imperfect records are not. I am wordless.
As am I. The Pope cannot get away with the murderous equivilancy of suicide bombings and legitimate self-defense and expect to have any credibility in the Jewish community. Israel may or may not be right in the particulars of how it responds to terror. But it certainly possible to condemn suicide bombings that deliberately target innocents without feeling compelled to condemn actions designed to deter these murders.
Don't See This Everyday
When's the last time you've seen a bona fide liberal blogger congratulate the Bush administration on anything? Kevin Drum even manages to keep the snark down to a minimum:
Of course, there are other cases where liberal bloggers have congratulated the Bushies for particular moves and policies. (See, for example, this Dean partisan lauded Bush for his Sudan policy). But it is still nice to see folks transcend partisan affiliation and say "I don't like the guy, but he's right here." Oddly enough, I like seeing this attribute even when I think the actor is wrong on what they're agreeing with (not that I'm saying I disagree with Drum--I obviously like more rights for minorities in Iraq and a strengthened political process; withdrawal is far sketchier though). I agree with Publius that this entirely irrational--why should I like to see Democrats both agree with Republicans AND be wrong about it? I really don't know. I guess polarization has gotten so tiresome that I'm happy to see any cross-aisle partnership, no matter what the cause. However, this is limited to rhetorical props only. Nothing is more infuriating than watching otherwise bickering politicians put aside their differences and unite around idiocy (can you say Bankruptcy Bill?). It's just a wasted opportunity.
While we're on the subject, I have seen almost no examples of the equivalent by conservative bloggers about liberal political figures. Some examples please, and barring that, a bit of parity, perhaps?
Sure, a lot of this is politically motivated, and I have little doubt that the planned spring withdrawal is being timed to coincide with next year's midterm elections — and probably being timed to avoid a manpower meltdown as well. But politics is part of life. A timetable for withdrawal that's linked to the political process and combined with pressure to protect minority and gender rights, is the best course of action regardless of the motivation. If the Bushies keep it up, kudos to them.
Of course, there are other cases where liberal bloggers have congratulated the Bushies for particular moves and policies. (See, for example, this Dean partisan lauded Bush for his Sudan policy). But it is still nice to see folks transcend partisan affiliation and say "I don't like the guy, but he's right here." Oddly enough, I like seeing this attribute even when I think the actor is wrong on what they're agreeing with (not that I'm saying I disagree with Drum--I obviously like more rights for minorities in Iraq and a strengthened political process; withdrawal is far sketchier though). I agree with Publius that this entirely irrational--why should I like to see Democrats both agree with Republicans AND be wrong about it? I really don't know. I guess polarization has gotten so tiresome that I'm happy to see any cross-aisle partnership, no matter what the cause. However, this is limited to rhetorical props only. Nothing is more infuriating than watching otherwise bickering politicians put aside their differences and unite around idiocy (can you say Bankruptcy Bill?). It's just a wasted opportunity.
While we're on the subject, I have seen almost no examples of the equivalent by conservative bloggers about liberal political figures. Some examples please, and barring that, a bit of parity, perhaps?
Wednesday, July 27, 2005
Will the Real Hillary Clinton Please Stand Up?
In the wake of Clinton's successful venture against GTA, Kevin Drum feels inclined to ask the following:
I will admit to some confusion. While The Washington Monthly is split both ways on whether Hillary can win the White House, I don't see why Drum thinks that Clinton's centrist drift is in anyway faked, and I certainly don't see it restricted to "a few harmless rhetorical flourishes."
Clinton's "common ground" speech, for example (delivered at NARAL no less), was a tremendously gutsy position to take. Perhaps more than any other issue, abortion has become divided into two sides completely convinced the other is evil. It's murderers versus misogynists. In this environment, any words suggesting compromise or reconciliation could create a brutal backlash amongst the left. This is true even in the presence of such obvious common ground like what Clinton pointed out, that nobody likes abortion, that most people think that society and/or government should take steps in some form to reduce the amount of abortions that occur. Indeed, the primary point of departure is on whether abortion should be criminalized (link: Bitch Ph.D)--and most pro-lifers, when pressed, are unwilling to go all out and say women who have abortions should be sent to prison as murderers. Political waters are most dangerous when there is clear grounds for consensus that people have consciously chosen to eschew. That suggests that positions and sentiments have become so entrenched as to border on irrational. Clinton's foray into the morass says much about character--it was not anything contrived.
It is true that in this (GTA) particular instance, Democrats have been relatively sanguine about Clinton's rightward shift. But it is simply wrong to suggest that on issues of substance, the base will applaud anything Hillary does simply because she's Hillary. It is tough to disregard your core base of support--especially when you're reaching out to a demographic group that has shown its distrust with you personally in the past. Most politicians don't have the guts to do it. Witness GWB's prostration before the Christian right on the Schiavo matter. If a just re-elected term limited president wildly popular with his rightwing base can't say no to them on issue of the most profound stupidity, when can he? Hillary's situation is no different--the base will certainly give her some slack, but not an infinite amount. Look at what happened when she called for a truce amongst warring factions within the Democratic party. As usual, the response was depressingly fratricidal all around (link: Balloon Juice)--showing that even folks with Clinton's rock star status are not immune to being burned when they defy the base.
Simply put, not only do I think Drum is wrong about the superficiality of Clinton's centrist move, I think it's politically damaging as well. Such a critique plays into the hands of GOPers who are trying to portray Clinton's move as pure politics (mostly because they can't disagree with the actual substance of what she is proposing). It's bad enough when they do it--but does our side have to join in too?
I do wonder, though, what she's up to. After she finishes her supposed "move to the center," which appears to consist of little more than a few harmless rhetorical flourishes, will she then produce some genuinely big ideas to base her national 2008 candidacy on? If so, what will they be? After more than a decade in the national spotlight, I still couldn't even begin to guess. When will the real Hillary emerge from her cocoon?
I will admit to some confusion. While The Washington Monthly is split both ways on whether Hillary can win the White House, I don't see why Drum thinks that Clinton's centrist drift is in anyway faked, and I certainly don't see it restricted to "a few harmless rhetorical flourishes."
Clinton's "common ground" speech, for example (delivered at NARAL no less), was a tremendously gutsy position to take. Perhaps more than any other issue, abortion has become divided into two sides completely convinced the other is evil. It's murderers versus misogynists. In this environment, any words suggesting compromise or reconciliation could create a brutal backlash amongst the left. This is true even in the presence of such obvious common ground like what Clinton pointed out, that nobody likes abortion, that most people think that society and/or government should take steps in some form to reduce the amount of abortions that occur. Indeed, the primary point of departure is on whether abortion should be criminalized (link: Bitch Ph.D)--and most pro-lifers, when pressed, are unwilling to go all out and say women who have abortions should be sent to prison as murderers. Political waters are most dangerous when there is clear grounds for consensus that people have consciously chosen to eschew. That suggests that positions and sentiments have become so entrenched as to border on irrational. Clinton's foray into the morass says much about character--it was not anything contrived.
It is true that in this (GTA) particular instance, Democrats have been relatively sanguine about Clinton's rightward shift. But it is simply wrong to suggest that on issues of substance, the base will applaud anything Hillary does simply because she's Hillary. It is tough to disregard your core base of support--especially when you're reaching out to a demographic group that has shown its distrust with you personally in the past. Most politicians don't have the guts to do it. Witness GWB's prostration before the Christian right on the Schiavo matter. If a just re-elected term limited president wildly popular with his rightwing base can't say no to them on issue of the most profound stupidity, when can he? Hillary's situation is no different--the base will certainly give her some slack, but not an infinite amount. Look at what happened when she called for a truce amongst warring factions within the Democratic party. As usual, the response was depressingly fratricidal all around (link: Balloon Juice)--showing that even folks with Clinton's rock star status are not immune to being burned when they defy the base.
Simply put, not only do I think Drum is wrong about the superficiality of Clinton's centrist move, I think it's politically damaging as well. Such a critique plays into the hands of GOPers who are trying to portray Clinton's move as pure politics (mostly because they can't disagree with the actual substance of what she is proposing). It's bad enough when they do it--but does our side have to join in too?
Tuesday, July 26, 2005
The Code is Law...Follow the Code
PrawfsBlawg links to an interesting article reviewing "Restoring Free Speech and Liberty on Campus". It presents an interesting perspective on the academic freedom wars. While scathingly (and justifiably) critical of campus speech codes, he is also firmly committed to a multicultural education, one
Although I have some sympathies to the goal, speech and conduct codes are suspect for several reasons. For one, there is no institutional competence or neutrality in resolving claims. Campuses adopt speech codes because they are committed to a particular political agenda. This very same committment, however, taints the very people (likely faculty members or administrations) who would be conducting the hearings. This can explain why many colleges have abhorrently low levels of procedural protection for the accused. Second, prevailing social environments on campus are very different than social realities in general. In normal society, prejudice and discrimination is pretty much limited to the traditional racist/sexist/heterosexist/anti-Semetic(/other minority religion) lines. In colleges, by contrast, this is supplemented (though by no means replaced) by feelings of hostility towards conservatives and religious persons (especially Christians). Most colleges have not acknowledged this fact, since it is their very core structures that help reify and enable this prejudice. However, given the reality of much "hate speech" cases (conservative student A expressing a "traditionalist" view of a certain group, to which B belongs), this critically wounds any hope of neutrality amongst the college. Finally, colleges have no institutional traditions suitable to resolving this dispute. Being a Professor is a polemical position. It is based off forwarding and defending particular positions. Unlike legal system, which has historically rooted practices which help guard against biased results (stare decisis, incrementalism, presumption of impartiality), colleges have no similar constraining traditions, making them even more vulnerable to the types of political bias I described above. Of course, panel members may feel a compulsion toward impartiality for other reasons--for example, a feeling of duty--but this is a far weaker foundation (for example, a professor could as easily feel a compulsion to see that the guilty are punished, or to assure that "justice is done").
that reflect[s] the simple and straightforward educational imperative out of which multiculturalism’s legitimate demands flow: We must study other peoples and places because we cannot understand humanity - our own included - without acquainting ourselves with the variety of ways of being human.
Although I have some sympathies to the goal, speech and conduct codes are suspect for several reasons. For one, there is no institutional competence or neutrality in resolving claims. Campuses adopt speech codes because they are committed to a particular political agenda. This very same committment, however, taints the very people (likely faculty members or administrations) who would be conducting the hearings. This can explain why many colleges have abhorrently low levels of procedural protection for the accused. Second, prevailing social environments on campus are very different than social realities in general. In normal society, prejudice and discrimination is pretty much limited to the traditional racist/sexist/heterosexist/anti-Semetic(/other minority religion) lines. In colleges, by contrast, this is supplemented (though by no means replaced) by feelings of hostility towards conservatives and religious persons (especially Christians). Most colleges have not acknowledged this fact, since it is their very core structures that help reify and enable this prejudice. However, given the reality of much "hate speech" cases (conservative student A expressing a "traditionalist" view of a certain group, to which B belongs), this critically wounds any hope of neutrality amongst the college. Finally, colleges have no institutional traditions suitable to resolving this dispute. Being a Professor is a polemical position. It is based off forwarding and defending particular positions. Unlike legal system, which has historically rooted practices which help guard against biased results (stare decisis, incrementalism, presumption of impartiality), colleges have no similar constraining traditions, making them even more vulnerable to the types of political bias I described above. Of course, panel members may feel a compulsion toward impartiality for other reasons--for example, a feeling of duty--but this is a far weaker foundation (for example, a professor could as easily feel a compulsion to see that the guilty are punished, or to assure that "justice is done").
Monday, July 25, 2005
UnBorkable, You Say?
Folks who've been defending nominee John Roberts have claimed that his affable personality and superb pedigree makes him "unBorkable", meaning that Democrats could not portray him into an evil hobgoblin and thus defeat his nomination. However, David Adnesik wondered when the term was used first.
The answer, he found out, was that it was first used in 1990...in reference to David Souter!
Hmm...I may like unBorkable judges...
The answer, he found out, was that it was first used in 1990...in reference to David Souter!
Hmm...I may like unBorkable judges...
For Once I Wish I Agreed With Alabama
Alabama apparently wants to make the punishment for sex offenders castration.
The good news: In retrospect, they now have come to the realization that it might be a wee bit unconstitutional.
The bad news: They may be wrong.
Proving that all idiotic history repeats itself, there are two major Supreme Court cases dealing with castration. The first is Buck v. Bell (274 U.S. 200 (1927)), perhaps Justice Oliver Wendell Holmes Jr.'s most infamous opinion, where he upheld Virginia's castration program for the feeble minded with the pithy "three generations of idiots are enough."
The second case was Skinner v. Oklahoma (316 U.S. 535 (1942)) In that case, the court overturned Oklahoma's castration law. However, it did so (and here's where it gets interesting) without overturning Bell. The ruling instead emphasis the Equal Protection deficiencies in Oklahoma's law:
In other words, the Court struck down the law because it irrationally distinguished between such crimes as Larceny and Embezzlement, one being punishable by castration, the other not. The court also noted that since castration obviously affected a fundamental right, "strict scrutiny" was the appropriate standard (Id., at 541). However, after Skinner, the eugenics movement began to fade, and no state was stupid enough to reenact a castration law (until now).
The question is, then, would a state law that mandated castration for sex offenders pass strict scrutiny (assuming Bell is still good law and castration is not per se unconstitutional)? I think one could make a compelling argument that it does. Sex offenders are a particular class of offenders whose "weapon," so to speak, is their genitalia and sex drive. The state could plausibly argue that depriving offenders of that "weapon" is no different than depriving felons of their right to bear arms. Indeed, in a sense the argument would make more sense in this case, since, to borrow from Frank Easterbrook, this compares "the right to bear arms, which is in the constitution, to the right to one's penis, which is not." There is, I believe, quite a bit of evidence that suggests that castration reduces the sex drive of human beings (no surprise there) and thus would be a valid hedge against recidivism. Ultimately, I think this is an argument that could be made.
I do not think that castration is sound policy, and think that Bell should be overturned. But as the jurisprudence stands now, I do not think Alabama's law is unconstitutional.
Would that I could agree with them this time.
A Public Defender and PrawfsBlawg have more, and thanks to Objective Justice's BlawgReview for the original tip.
The good news: In retrospect, they now have come to the realization that it might be a wee bit unconstitutional.
The bad news: They may be wrong.
Proving that all idiotic history repeats itself, there are two major Supreme Court cases dealing with castration. The first is Buck v. Bell (274 U.S. 200 (1927)), perhaps Justice Oliver Wendell Holmes Jr.'s most infamous opinion, where he upheld Virginia's castration program for the feeble minded with the pithy "three generations of idiots are enough."
The second case was Skinner v. Oklahoma (316 U.S. 535 (1942)) In that case, the court overturned Oklahoma's castration law. However, it did so (and here's where it gets interesting) without overturning Bell. The ruling instead emphasis the Equal Protection deficiencies in Oklahoma's law:
Sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma's line between larceny by fraud and embezzlement is determined, as we have noted, 'with reference to the time when the fraudulent intent to convert the property to the taker's own use' arises. We have not the slightest basis for inferring that that line has any significance in eugenics nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn. (316 U.S. at 541-42) (citations omitted)
In other words, the Court struck down the law because it irrationally distinguished between such crimes as Larceny and Embezzlement, one being punishable by castration, the other not. The court also noted that since castration obviously affected a fundamental right, "strict scrutiny" was the appropriate standard (Id., at 541). However, after Skinner, the eugenics movement began to fade, and no state was stupid enough to reenact a castration law (until now).
The question is, then, would a state law that mandated castration for sex offenders pass strict scrutiny (assuming Bell is still good law and castration is not per se unconstitutional)? I think one could make a compelling argument that it does. Sex offenders are a particular class of offenders whose "weapon," so to speak, is their genitalia and sex drive. The state could plausibly argue that depriving offenders of that "weapon" is no different than depriving felons of their right to bear arms. Indeed, in a sense the argument would make more sense in this case, since, to borrow from Frank Easterbrook, this compares "the right to bear arms, which is in the constitution, to the right to one's penis, which is not." There is, I believe, quite a bit of evidence that suggests that castration reduces the sex drive of human beings (no surprise there) and thus would be a valid hedge against recidivism. Ultimately, I think this is an argument that could be made.
I do not think that castration is sound policy, and think that Bell should be overturned. But as the jurisprudence stands now, I do not think Alabama's law is unconstitutional.
Would that I could agree with them this time.
A Public Defender and PrawfsBlawg have more, and thanks to Objective Justice's BlawgReview for the original tip.
Sunday, July 24, 2005
Past Mistakes
This took guts.
President Clinton has apologized for his "personal failure" to not help stop the Rwandan genocide. Of course, nothing can absolve one of one's guilt respecting genocide. Clinton's actions (or rather, inactions) were and remain unforgivable. Still, this was the right thing to do. And hopefully (but doubtfully), it will be the last time an American President has to ask victims of homicidal mania for similar absolution.
Now, if only Kofi Annan followed suit...
President Clinton has apologized for his "personal failure" to not help stop the Rwandan genocide. Of course, nothing can absolve one of one's guilt respecting genocide. Clinton's actions (or rather, inactions) were and remain unforgivable. Still, this was the right thing to do. And hopefully (but doubtfully), it will be the last time an American President has to ask victims of homicidal mania for similar absolution.
Now, if only Kofi Annan followed suit...
Friday, July 22, 2005
Them Flashy Liberals
Todd Zywicki, in a post Justice-to-be John Roberts' law school days, wonders about what "type" of intelligence is desirable for a would-be law professor:
Over at PrawfsBlawg, Ethan Leib concurs, and adds that:
I notice a similarity between this discussion and my claim that the desire for "novel scholarship" is partially to blame for academia's liberal slant (a thesis I originally hashed out with the help of Professor Zywicki). Zywicki explicitly makes the link between "flashy" and "novel" scholarship, which makes sense--after all, something new and groundbreaking is far more likely to make a splash than a piece that reiterates something already present in the canon--even if the latter is better written/analyzed/argued than the former. Professor Leib also provides support for the my theory in the form of a cross-application of "hostile environment." All else being equal, of course, there probably are as many outspoken liberals as outspoken conservatives. But in a law school environment that is predominantly liberal, many conservatives might reflexively self-censor themselves--thus skewing the amount of "flash" in the liberal direction. This is especially true considering that the only way to verify that one's academic setting is not biased against conservatives is to risk incurring any bias that is present. In a situation where even rumors of liberal hegemony run rampant--certainly true of American universities-this can cause the self-censorship even where there isn't any expressed hostility to conservative views. Hence, the "bias" (and concordant skew in partisan alignment) can exist even if there is no actual overt discouragement of conservatives to apply or to teach as academics. What does this give us? The magical condition loved by critical theorists (like myself) everywhere--a structural bias!
To be clear--this is my conclusion by combining the posts of Professors Zywicki and Leib together--neither has endorsed this theory (or rejected it, for that matter, but I don't want to give the impression that this was an argument they were making too). And to be fair, Professor Leib's post also poses a challenge to my theory: Why wouldn't this same desire for "flash" and resultant self-censorship be present in Political Science (where he says it isn't)? I'll admit I don't have a ready answer to this.
But all in all, I think that this adds some more heft to the claim that there likely is a liberal structural bias in academia.
I have wondered whether legal academia today (perhaps even more than other academic fields) tends to place an undue premium on a "showy type of intelligence" as opposed to "controlled ... not-aggressive type of intelligence." I don't know, of course, whether this has always been the case. But it is my impression that this is the case today (there's no empirical test for this assertion, of course, so I could be completely wrong).
[...]
...[G]iven the institutional arrangement of modern law schools, it may be that this bias in inevitable. In particular, for whatever reason, law reviews today seem to overvalue novel, glib, and clever articles in the market, thus it may be that to the extent that the law school hiring process selects for "showy" intelligence, it may be an efficient response to peculiar market in which we sell our services, i.e., law reviews.
So, while at first glance the relative absence of people like "Professor Roberts" seems like a market failure in the professorial hiring market, it may be perfectly rational in light of the peculiar market for which future scholars are being selected.
Over at PrawfsBlawg, Ethan Leib concurs, and adds that:
I've benefited from this bias, not because I'm especially intelligent but because I liked to talk in class and get into arguments with people, where I seemed competent and able to hold my own. This disposition would get me almost nowhere in political science, my Ph.D. discipline. As long as one avoids seeming cocky and arrogant, "showy intelligence" pays dividends on the legal academic market.
I notice a similarity between this discussion and my claim that the desire for "novel scholarship" is partially to blame for academia's liberal slant (a thesis I originally hashed out with the help of Professor Zywicki). Zywicki explicitly makes the link between "flashy" and "novel" scholarship, which makes sense--after all, something new and groundbreaking is far more likely to make a splash than a piece that reiterates something already present in the canon--even if the latter is better written/analyzed/argued than the former. Professor Leib also provides support for the my theory in the form of a cross-application of "hostile environment." All else being equal, of course, there probably are as many outspoken liberals as outspoken conservatives. But in a law school environment that is predominantly liberal, many conservatives might reflexively self-censor themselves--thus skewing the amount of "flash" in the liberal direction. This is especially true considering that the only way to verify that one's academic setting is not biased against conservatives is to risk incurring any bias that is present. In a situation where even rumors of liberal hegemony run rampant--certainly true of American universities-this can cause the self-censorship even where there isn't any expressed hostility to conservative views. Hence, the "bias" (and concordant skew in partisan alignment) can exist even if there is no actual overt discouragement of conservatives to apply or to teach as academics. What does this give us? The magical condition loved by critical theorists (like myself) everywhere--a structural bias!
To be clear--this is my conclusion by combining the posts of Professors Zywicki and Leib together--neither has endorsed this theory (or rejected it, for that matter, but I don't want to give the impression that this was an argument they were making too). And to be fair, Professor Leib's post also poses a challenge to my theory: Why wouldn't this same desire for "flash" and resultant self-censorship be present in Political Science (where he says it isn't)? I'll admit I don't have a ready answer to this.
But all in all, I think that this adds some more heft to the claim that there likely is a liberal structural bias in academia.
Nice, Reasonable, Conservative
If this case (U.S. v. Jackson) is any indicator, then I think Judge Roberts will make a fine Supreme Court Justice. It's conservative, to be sure. But it's also very rational, persuasively argued, and well-written.
Like Professor Kerr, I thought this case was quite close. Could go either way. The mark of a superb justice is one who can cogently explain the reasons for their decision (in a dissent, no less) in a case in which rational persons might differ on the result. Here, Judge Roberts performed exceptionally.
UPDATE: Haha. Althouse brings us the start of Judge Roberts' opinion in Consumers Energy Company v. Federal Energy Commission, 367 F.3d 915 (2004):
Add that one to Roberts' legendary line about "the hapless toad which, for reasons of its own, lives its entire life in California" (I'd give the context, except I've discovered it completely ruins the incredibly poetry of the phrase).
Like Professor Kerr, I thought this case was quite close. Could go either way. The mark of a superb justice is one who can cogently explain the reasons for their decision (in a dissent, no less) in a case in which rational persons might differ on the result. Here, Judge Roberts performed exceptionally.
UPDATE: Haha. Althouse brings us the start of Judge Roberts' opinion in Consumers Energy Company v. Federal Energy Commission, 367 F.3d 915 (2004):
It was a close thing, but Benedict Arnold's bold plan to capture Canada for the Revolution fell short at the Battle of Quebec in early 1776. As a result, the Federal Energy Regulatory Commission must now decide when affiliates of Canadian utilities -- utilities not subject to FERC jurisdiction -- may sell power at market-based rates in the United States.
Add that one to Roberts' legendary line about "the hapless toad which, for reasons of its own, lives its entire life in California" (I'd give the context, except I've discovered it completely ruins the incredibly poetry of the phrase).
Wednesday, July 20, 2005
Clinton Positions Herself: Parts II and III
Let's see. Clinton takes on violent, sex-drenched videogame company. A week later, the company admits that the sex-scenes are of it's manufacture and the game is re-rated to Adults Only, likely costing the company millions. Clinton will take loads of credit.
Clinton: 1
Other People: 0
Not only that, but Southern Appeal notes that Clinton may be willing to vote for Judge Roberts. Frankly, I don't consider this to be a revelation. I have not seen much of an outpouring of opposition to Roberts amongst liberals, indeed, the only even quasi-negative reactions I've heard so far are Randy Barnett's worries that Roberts is so used to being a litigator that he won't have a solid, principled core, and of course Ann Coulter's "Souter-lite" gripe. But SA is still right--Clinton has loads more maneuvering room than most Democratic contenders--she can be as moderate and reasonable and sensitive and bipartisan as she wants, and the base will still adore her.
Clinton: 2
Other People: 0
Clinton: 1
Other People: 0
Not only that, but Southern Appeal notes that Clinton may be willing to vote for Judge Roberts. Frankly, I don't consider this to be a revelation. I have not seen much of an outpouring of opposition to Roberts amongst liberals, indeed, the only even quasi-negative reactions I've heard so far are Randy Barnett's worries that Roberts is so used to being a litigator that he won't have a solid, principled core, and of course Ann Coulter's "Souter-lite" gripe. But SA is still right--Clinton has loads more maneuvering room than most Democratic contenders--she can be as moderate and reasonable and sensitive and bipartisan as she wants, and the base will still adore her.
Clinton: 2
Other People: 0
Tuesday, July 19, 2005
Could Be Worse
So says Legal Fiction, and so say I.
The big man is John Roberts, currently on the DC Circuit Court of Appeals. After all that talk about replacing O'Connor with another woman, or a minority, Bush throws a curveball and nominates a white male. Took my ankles out on that one! (Actually, I'm serious. Bush has been admirable in appointing minorities to high positions--and he loves to make splashes in showing how diverse he is. I figured this was an opportunity he couldn't pass up).
So...Roberts, Roberts. Well, I'm going to respectfully disagree with my noble TMV co-blogger Michael in calling Roberts a "right-wing radical" with a "scary" record. Most of Roberts' paper trail is on stuff where he was representing the Bush (I) administration--in other words, where he had to toe the precise line of the administration. Hence, all the hay about how he asked for Roe to be overturned (Rust v. Sullivan), or other arguments he's made as an attorney, don't carry too much weight with me.
What little I know of Judge Roberts comes from personal testimonials (though if you're looking for a more meaty background, here is a good place to start, thanks to The VC). When presented with a four person "short list" of nominees, I ranked Roberts second, behind McConnell but ahead of Luttig and Wilkinson. Much of that has to do with my conversations with Georgetown Law Professor Richard Lazarus, Roberts' law school classmate and certainly no Republican. Orin Kerr, another man I respect highly, also gave Roberts the thumbs up. Like Joseph Weisenthal, "if it's good enough for Orin Kerr and Juan non-Volokh...then it's good enough for me!" Ultimately, he strikes me as a conservative non-ideologue. I can accept that mix.
Conservatives are happy with the choice. Powerline says "pop the champagne corks," while Southern Appeal is just happy to see that O'Connor's seat won't become reserved for women (they also treat us to this butchering of the Critical Legal movement, courtesy of Senator Jeff Sessions (R-AL)). Like Pejman, I too would have preferred Roberts for Chief, not just because I think he'd be good at it (though I think he would), but also because I think he fits more closely with Rehnquist's judicial philosophy than O'Connor's (remember, he clerked for him). Keep in mind, I've had this Supreme Court since I was 8. I kind of like the lineup--I'd rather not see any drastic ideological shift.
But to me, at least, the most interesting reaction was over at The Daily Kos. Expecting some reflexive Bush-bashing? Think again:
All the conservatives are convinced that the left would just oppose any name Bush threw out. The statements of Kos (as good a barometer as any for the left end of the Democratic party) belie that prediction (yes, I suppose they could just want to appear like they gave Roberts a "reasonable" hearing, to justify later opposition. But since when has Kos cared about being reasonable?).
The big man is John Roberts, currently on the DC Circuit Court of Appeals. After all that talk about replacing O'Connor with another woman, or a minority, Bush throws a curveball and nominates a white male. Took my ankles out on that one! (Actually, I'm serious. Bush has been admirable in appointing minorities to high positions--and he loves to make splashes in showing how diverse he is. I figured this was an opportunity he couldn't pass up).
So...Roberts, Roberts. Well, I'm going to respectfully disagree with my noble TMV co-blogger Michael in calling Roberts a "right-wing radical" with a "scary" record. Most of Roberts' paper trail is on stuff where he was representing the Bush (I) administration--in other words, where he had to toe the precise line of the administration. Hence, all the hay about how he asked for Roe to be overturned (Rust v. Sullivan), or other arguments he's made as an attorney, don't carry too much weight with me.
What little I know of Judge Roberts comes from personal testimonials (though if you're looking for a more meaty background, here is a good place to start, thanks to The VC). When presented with a four person "short list" of nominees, I ranked Roberts second, behind McConnell but ahead of Luttig and Wilkinson. Much of that has to do with my conversations with Georgetown Law Professor Richard Lazarus, Roberts' law school classmate and certainly no Republican. Orin Kerr, another man I respect highly, also gave Roberts the thumbs up. Like Joseph Weisenthal, "if it's good enough for Orin Kerr and Juan non-Volokh...then it's good enough for me!" Ultimately, he strikes me as a conservative non-ideologue. I can accept that mix.
Conservatives are happy with the choice. Powerline says "pop the champagne corks," while Southern Appeal is just happy to see that O'Connor's seat won't become reserved for women (they also treat us to this butchering of the Critical Legal movement, courtesy of Senator Jeff Sessions (R-AL)). Like Pejman, I too would have preferred Roberts for Chief, not just because I think he'd be good at it (though I think he would), but also because I think he fits more closely with Rehnquist's judicial philosophy than O'Connor's (remember, he clerked for him). Keep in mind, I've had this Supreme Court since I was 8. I kind of like the lineup--I'd rather not see any drastic ideological shift.
But to me, at least, the most interesting reaction was over at The Daily Kos. Expecting some reflexive Bush-bashing? Think again:
So who is this guy Roberts? He has only two years of judicial experience, and his legal advocacy can be dismissed as doing the bidding of his bosses.
Fair enough. I'm willing to hear the guy out. We're not going to get a Ginsburg, but I'd be happy with an O'Connor-style moderate conservative. For all we know (and for all the religious-right knows), Roberts might be that sort of guy.
But he has to be honest and forthcoming, unlike his previous confirmation hearing. The Senate must take its time deliberating over the nomination. And this is something that all sides should want, not just ours. For all the right wing knows, this guy may be the next Souter who simply pretended to be virulently anti-privacy.
As Roberts answers all questions posed, we can then decide whether it's worth opposing or not. And as that process plays out, we can make sure that Rove isn't forgotten in all the Supreme Court hoopla.
All the conservatives are convinced that the left would just oppose any name Bush threw out. The statements of Kos (as good a barometer as any for the left end of the Democratic party) belie that prediction (yes, I suppose they could just want to appear like they gave Roberts a "reasonable" hearing, to justify later opposition. But since when has Kos cared about being reasonable?).
Monday, July 18, 2005
Recusal
If you read this blog regularly, you'll note that I've said nary a word on the Rove/Blame controversy currently all the rage on the blogosphere (I particularly like John Cole's quest for a "consensus." Good luck, John!). There are several reasons for this. The most important is that I detest Karl Rove. He is one of the most repulsive men alive in American politics today. I reject everything he stands for. I'd like nothing more than to see him marched off into prison (or ignoble exile, or whatever). Ergo, I can't give him a fair hearing. Normally, I wouldn't care so much--blogging, like all opinion writing is, after all, merely the process of putting ones biases down into print. But the standard is higher when we're talking about criminal activity. So I'm not commentating. I'm breaking that today, of course, but I don't think I'm really making a legal judgment, as you'll see.
The second reason is that I don't really like the positions taken by either side here. On the one hand, the legal case against Rove seems a bit weak. As far as I understand it, under the statute everyone is talking about, for Rove to have broken the law he'd have had to knowingly blow an agent's cover with the purpose of causing harm to America. The odds of being able to nail him on that are slim to none.
Andrew Sullivan points to an alternative statute which might be used on Rove. The relevant passage, to me at least, is the following:
"[H]as reason to believe could be used to the injury of the United States" is a far easier standard to meet, but even there I think it's only 50-50. So I'm not going to jump on the blood bandwagon when I'm not positive Rove has committed a crime.
However, "committed a crime" is not the same as "did something wrong," and that's why I'm not going to swing the other way and defend Rove. There a disturbing Borg-like mentality amongst those defending Rove--all parroting the same excuses and justifications as if they are part of a giant GOP hivemind, not independent, rational thinkers. After Bush appeared to shift the standard on accountability (I'm with Amy Sullivan: Flippity-flop), we see the partisans falling over themselves to explain why really, nothing changed. As Andrew Sullivan argues, the point isn't whether or not they can make the argument. The point is they are parsing on a level that would make Billy Clinton proud.
The point is, whether a "crime" was committed or not, Rove still was wrong. Ethics transcend law. I come down with Matthew of the Centrist Coalition:
Ultimately, this issue does not lie at the extremes. Whether Rove committed a crime is obviously important, but at the same time it is entirely unimportant. When Bush (by way of Scott McClellan) said that:
he demonstrated that right and wrong was the operating point, not lawful and unlawful. In the two years that have passed, that standard appears to have been lost.
The second reason is that I don't really like the positions taken by either side here. On the one hand, the legal case against Rove seems a bit weak. As far as I understand it, under the statute everyone is talking about, for Rove to have broken the law he'd have had to knowingly blow an agent's cover with the purpose of causing harm to America. The odds of being able to nail him on that are slim to none.
Andrew Sullivan points to an alternative statute which might be used on Rove. The relevant passage, to me at least, is the following:
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it...
(e) [same, but for those having unauthorized access to the material]
Shall be fined under this title or imprisoned not more than ten years, or both.
"[H]as reason to believe could be used to the injury of the United States" is a far easier standard to meet, but even there I think it's only 50-50. So I'm not going to jump on the blood bandwagon when I'm not positive Rove has committed a crime.
However, "committed a crime" is not the same as "did something wrong," and that's why I'm not going to swing the other way and defend Rove. There a disturbing Borg-like mentality amongst those defending Rove--all parroting the same excuses and justifications as if they are part of a giant GOP hivemind, not independent, rational thinkers. After Bush appeared to shift the standard on accountability (I'm with Amy Sullivan: Flippity-flop), we see the partisans falling over themselves to explain why really, nothing changed. As Andrew Sullivan argues, the point isn't whether or not they can make the argument. The point is they are parsing on a level that would make Billy Clinton proud.
The point is, whether a "crime" was committed or not, Rove still was wrong. Ethics transcend law. I come down with Matthew of the Centrist Coalition:
Maybe what Rove did technically wasn't illegal, maybe the accusations that he is a threat to national security are overblown, and certainly the call for criminal proceedings are premature at best; however, that doesn't change the fact that his discussion with Cooper was inappropriate, irresponsible, unethical, and wrong. Furthermore, what he did certainly goes against the spirit of what the President and his Press Secretary previously claimed was the standard for the administration. To me, the words "Valerie Plame" have little meaning.... For a senior adviser of the most powerful office in the world to have a discussion with a news reporter about the work of a CIA agent, regardless of the seriousness or importance of that work, is the action of a man who clearly sees politics at any cost as a means to an end.
Ultimately, this issue does not lie at the extremes. Whether Rove committed a crime is obviously important, but at the same time it is entirely unimportant. When Bush (by way of Scott McClellan) said that:
If anyone in this administration was involved in it [the improper disclosure of an undercover CIA operative's identity], they would no longer be in this administration
he demonstrated that right and wrong was the operating point, not lawful and unlawful. In the two years that have passed, that standard appears to have been lost.
Just a Slip...
Howard Bashman links to a Bush press conference on the upcoming Supreme Court nomination. Any hints? Well, there's this:
The familar face is obviously Gonzalez, no surprise there. But do any of the folks on Bush's shortlist, besides McConnell, have a C.V. of any length? To my knowledge, he's the only one with significant academic experience?
Or am I reading too much into it?
And of course I'm reviewing a different candidate. I'm reviewing their curriculum vitae, as well as their findings. I will sit down with some and talk to them face-to-face, those who I have not known already. You know, we've got some people that -- perhaps in contention that I've already spent time with, that I know; in other words, I'm familiar with some of the people that are being speculated about in the press. And so I don't need to interview those. But of course I'm going to take a very thorough approach.
The familar face is obviously Gonzalez, no surprise there. But do any of the folks on Bush's shortlist, besides McConnell, have a C.V. of any length? To my knowledge, he's the only one with significant academic experience?
Or am I reading too much into it?
Saturday, July 16, 2005
Potter Mania!
Best Potter-related line of the evening:
Runner-up:
Poor girl...she's going nowhere.
The book you say? Well, I'm going to break with the crowd a bit and say that I loved it. Folks are saying that it is slower than the others, or that it is mostly a recap of book 5. I disagree--I think it overcomes a lot of 5's weakness and is one of the stronger books in the series. Very good plot twists--I hate how I never see them in advance. My prediction before the book came out was this book would be in trouble, as it forced JK to rely on the weakest part of her writing. She is stellar at the expressionist aspects of HP--the little flourishes and details that make her world "real." She's above average on plots (with a flair for good twists), and below average on character development. As she wrote more, I figured the creative part would fall away (eventually, the world becomes pretty well formed in the eyes of the reader), and the character part would become more important. This was worrisome, but she rose mightily to the occassion, with another good plot and a passable portrayal of the characters.
The best reaction I've read so far, with regards to sorting out the big events at the end, comes from Letters of Marquee (WARNING: SPOILERS). If you've already read the book, I highly recommend it.
The muggle prime minister gets a visit from Cornelius Fudge and discovers that all the problems he's been dealing with in the past week (transport disasters, murders, unseasonal weather. Unseasonal weather?) are the result of the return of Lord Voldemort and the chaos in the wizarding world. Bet Tony Blair wishes he had that excuse.
Runner-up:
Little girl: But I'm not on line for Harry Potter; I want to go to the bathroom!
--Barnes & Noble, Astor Place
Poor girl...she's going nowhere.
The book you say? Well, I'm going to break with the crowd a bit and say that I loved it. Folks are saying that it is slower than the others, or that it is mostly a recap of book 5. I disagree--I think it overcomes a lot of 5's weakness and is one of the stronger books in the series. Very good plot twists--I hate how I never see them in advance. My prediction before the book came out was this book would be in trouble, as it forced JK to rely on the weakest part of her writing. She is stellar at the expressionist aspects of HP--the little flourishes and details that make her world "real." She's above average on plots (with a flair for good twists), and below average on character development. As she wrote more, I figured the creative part would fall away (eventually, the world becomes pretty well formed in the eyes of the reader), and the character part would become more important. This was worrisome, but she rose mightily to the occassion, with another good plot and a passable portrayal of the characters.
The best reaction I've read so far, with regards to sorting out the big events at the end, comes from Letters of Marquee (WARNING: SPOILERS). If you've already read the book, I highly recommend it.
Clinton Positions Herself
I'm going out to dinner, and then I have a certain book to read, so this'll probably be it for me tonight. Hillary Clinton is calling for a probe on Rockstar Games (in)famous Grand Theft Auto: San Andreas video game. The already controversial game has re-entered the spotlight after an internet download allowed players to simulate sex acts with characters on-screen.
Clinton, in my opinion, is playing this exactly right. She is loudly condemning the explicit content of games as "spiraling out of control," while simultanously limiting the probe only to the question of whether the modification unlocks hidden code written by Rockstar, or, as Rockstar claims, "is the result of hackers disassembling and then combining, recompiling and altering the game's source code." This is an important distinction, as it determines whether Rockstar can be morally/legally liable. But this is unimportant on the political level, where Clinton will score points with the married white women who will be critical if she is to have a chance in 2008.
Clinton, in my opinion, is playing this exactly right. She is loudly condemning the explicit content of games as "spiraling out of control," while simultanously limiting the probe only to the question of whether the modification unlocks hidden code written by Rockstar, or, as Rockstar claims, "is the result of hackers disassembling and then combining, recompiling and altering the game's source code." This is an important distinction, as it determines whether Rockstar can be morally/legally liable. But this is unimportant on the political level, where Clinton will score points with the married white women who will be critical if she is to have a chance in 2008.
Friday, July 15, 2005
Here to There
A truly great post on one Englishman's political growth in the wake of the Subway Bombings, 9/11, and some time in America. Though I came to where I am from a different starting point than he did, I relate entirely to his sympathies and ultimate disenchantment with the whole "America is the root of all evil" wing of the left. In seeing all the things we do and have done wrong in the world and at home, it is easy to forget the good we've done as well. The difficulty is in criticizing without forgetting the big picture. It's a tough line to toe--lord knows I've missed it plenty.
Anyway, read. And thanks to Sullivan for the link.
Anyway, read. And thanks to Sullivan for the link.
Internal Critic
On my commute to work today, I had an epiphany. I decided that in my natural state, I am an "internal critic." I then spent the rest of the trip trying to figure out what that term meant.
I know where I first heard the phrase "internal critic." It was in the context of my readings on Critical Race Theory--referring to scholars who work within the overall CRT framework but then criticize how the movement denigrates, disparages, or otherwise marginalizes certain people, often the very people it purports to be helping. But presumably, an internal critic would include any person who both a) identifies with and/or supports a given cause and b) regularly attacks perceived deficiencies within that movement.
In my mind, there are two types of internal critics--whom I'll label "purists" and "skeptics." Purists are characterized by a heavy reliance on abstract principles. For example, a purist defender of color blindness might criticize Affirmative Action as relying on race-based classifications--even if s/he is aware that some form of race conscious action is necessary to remedy racial discrimination. This is also heavily deontological--disagreeable results may be unfortunate, but they don't "matter" in a normative sense.
Many hardline Democrats and Republicans fall into this category. On the positive end, purism can often be a remedy to partisanship. Justice Scalia, for example, is quite clearly a purist--he abhors the use of pragmatic, results-based analysis to reach legal decisions. This sometimes yields "surprising" results, for example, his rulings in the Hamdi and Texas v. Johnson cases. Whereas a true partisan will freely sacrifice her principles to the altar of party loyalty, a purist would never do that. In theory, liberalism is purist--it is a narrative about constant human progress and an eventual utopian state where everyone is free to guide their own life, people are treated as individuals, and discrimination does not exist (among other attributes).
On the negative side, purism often leads to wholly absurd positions. They follow the principles they believe in up to and over the edge of their logical cliffs. To pick on Scalia again, his purist view of the 1st amendment lead him to explicitly state that the constitution allows discrimination in favor of monotheistic religions (Van Orden v. Perry and McCreary County v. ACLU)--and he has argued in the past that it also let's laws that infringe on the free exercise rights of religion pass constitutional muster no matter how unimportant the government's interest in maintaining the law is.
In many ways, skeptical internal critics are the reverse of purists. Purists are so committed to their principles that they'll follow them even when they yield admittedly distasteful results. Skeptics are inherently distrustful of the principles because they see that so often they've led to bad results. I count myself amongst this group. For example, if you read my posts on democracy, e.g. here and here, you'd probably conclude that I hate democracy. Yet, as long time readers of this blog know, when presented with the choice of democracy and--well, virtually anything else, I'm a vociferous advocate for democracy. With regards to free markets, I feel the same way. I see very little other economic option besides capitalism--the history of socialism and communism makes them wholly unappealing and unrealistic alternatives. Yet, I am very disturbed by the way capitalism reifies pre-existing social inequalities, forcibly stratifies society into winners and losers, encourages actors to "go along get along" with dominant prejudiced attitudes, is destructive of the environment, and other problems.
One impact of this position is that I don't have many overarching principles I'd adhere to at any cost--because I believe that to do so is inherently destructive and potentially genocidal (fundamental opposition to genocide is perhaps the one exception I make). Every theory, it is said, breaks down at the margins--at some extreme it just stops making sense. Nazism resulted from a radical belief in human perfectibility--and the corresponding belief that anybody not "perfect" (or who didn't subscribe to the Nazis view of "perfection") was clearly inferior and worthy of extermination. This risk is not unique to the Nazis. As I have blogged before, any theory asserting perfectibility and universality carries within it the seeds of oppression. While Nazism explicitly valued this, it has manifested itself in theories more facially benign. A blind faith in capitalism requires one to ignore the starving homeless man, ignored by the system and individuals individually deciding that he "deserves" his wretched state. And certainly, the universalist element in religions has time and time again resulted in faiths with good messages engaging in the most horrific of atrocities. Simply put, there is no and never will be any "perfect faith." The trick, then, is balance--to place values to support and simultaneously undermine each other--rather than place one above all on the pantheon and then turn away as the babies begin to get sacrificed upon the altar.
As a result of this, instead of building theories up, I prefer to break them down--probing for weaknesses, potential improvements, and structural blindspots. Indeed, the skepticism I hold toward overarching metatheories helps root my support for democracy--a governmental system which definitionally is undecided about its end goals. Yet, this same deconstructive impulse leads me to critique the aspects of democracy which seem imperial or distorted--for example, politicians acting out of self-interest rather than national interest or coalitions forming with the explicit aim to subordinate a stigmatized minority. Indeed, I would argue that like all systems, democracy ultimately is not self-contained--what would happen if 51% of the people voted to deprive the other 49% of their right to vote? In democracy, like every other system, some outside influence that is "beyond" democracy is necessary to maintain democracy.
In a way, this perspective is liberating, because I can work both inside and outside dominant systems and schema to build a better world. But on the other hand, this philosophy is quite dizzying, because it cannot have an anchor. It is unstable and always in flux. There is no end to the critique, no safe harbor at which point I can say I've "succeeded." It's exhausting at times.
Anyway, that's where I'm at, and that's why you get my oft peculiar mix of political belief and rhetoric.
I know where I first heard the phrase "internal critic." It was in the context of my readings on Critical Race Theory--referring to scholars who work within the overall CRT framework but then criticize how the movement denigrates, disparages, or otherwise marginalizes certain people, often the very people it purports to be helping. But presumably, an internal critic would include any person who both a) identifies with and/or supports a given cause and b) regularly attacks perceived deficiencies within that movement.
In my mind, there are two types of internal critics--whom I'll label "purists" and "skeptics." Purists are characterized by a heavy reliance on abstract principles. For example, a purist defender of color blindness might criticize Affirmative Action as relying on race-based classifications--even if s/he is aware that some form of race conscious action is necessary to remedy racial discrimination. This is also heavily deontological--disagreeable results may be unfortunate, but they don't "matter" in a normative sense.
Many hardline Democrats and Republicans fall into this category. On the positive end, purism can often be a remedy to partisanship. Justice Scalia, for example, is quite clearly a purist--he abhors the use of pragmatic, results-based analysis to reach legal decisions. This sometimes yields "surprising" results, for example, his rulings in the Hamdi and Texas v. Johnson cases. Whereas a true partisan will freely sacrifice her principles to the altar of party loyalty, a purist would never do that. In theory, liberalism is purist--it is a narrative about constant human progress and an eventual utopian state where everyone is free to guide their own life, people are treated as individuals, and discrimination does not exist (among other attributes).
On the negative side, purism often leads to wholly absurd positions. They follow the principles they believe in up to and over the edge of their logical cliffs. To pick on Scalia again, his purist view of the 1st amendment lead him to explicitly state that the constitution allows discrimination in favor of monotheistic religions (Van Orden v. Perry and McCreary County v. ACLU)--and he has argued in the past that it also let's laws that infringe on the free exercise rights of religion pass constitutional muster no matter how unimportant the government's interest in maintaining the law is.
In many ways, skeptical internal critics are the reverse of purists. Purists are so committed to their principles that they'll follow them even when they yield admittedly distasteful results. Skeptics are inherently distrustful of the principles because they see that so often they've led to bad results. I count myself amongst this group. For example, if you read my posts on democracy, e.g. here and here, you'd probably conclude that I hate democracy. Yet, as long time readers of this blog know, when presented with the choice of democracy and--well, virtually anything else, I'm a vociferous advocate for democracy. With regards to free markets, I feel the same way. I see very little other economic option besides capitalism--the history of socialism and communism makes them wholly unappealing and unrealistic alternatives. Yet, I am very disturbed by the way capitalism reifies pre-existing social inequalities, forcibly stratifies society into winners and losers, encourages actors to "go along get along" with dominant prejudiced attitudes, is destructive of the environment, and other problems.
One impact of this position is that I don't have many overarching principles I'd adhere to at any cost--because I believe that to do so is inherently destructive and potentially genocidal (fundamental opposition to genocide is perhaps the one exception I make). Every theory, it is said, breaks down at the margins--at some extreme it just stops making sense. Nazism resulted from a radical belief in human perfectibility--and the corresponding belief that anybody not "perfect" (or who didn't subscribe to the Nazis view of "perfection") was clearly inferior and worthy of extermination. This risk is not unique to the Nazis. As I have blogged before, any theory asserting perfectibility and universality carries within it the seeds of oppression. While Nazism explicitly valued this, it has manifested itself in theories more facially benign. A blind faith in capitalism requires one to ignore the starving homeless man, ignored by the system and individuals individually deciding that he "deserves" his wretched state. And certainly, the universalist element in religions has time and time again resulted in faiths with good messages engaging in the most horrific of atrocities. Simply put, there is no and never will be any "perfect faith." The trick, then, is balance--to place values to support and simultaneously undermine each other--rather than place one above all on the pantheon and then turn away as the babies begin to get sacrificed upon the altar.
As a result of this, instead of building theories up, I prefer to break them down--probing for weaknesses, potential improvements, and structural blindspots. Indeed, the skepticism I hold toward overarching metatheories helps root my support for democracy--a governmental system which definitionally is undecided about its end goals. Yet, this same deconstructive impulse leads me to critique the aspects of democracy which seem imperial or distorted--for example, politicians acting out of self-interest rather than national interest or coalitions forming with the explicit aim to subordinate a stigmatized minority. Indeed, I would argue that like all systems, democracy ultimately is not self-contained--what would happen if 51% of the people voted to deprive the other 49% of their right to vote? In democracy, like every other system, some outside influence that is "beyond" democracy is necessary to maintain democracy.
In a way, this perspective is liberating, because I can work both inside and outside dominant systems and schema to build a better world. But on the other hand, this philosophy is quite dizzying, because it cannot have an anchor. It is unstable and always in flux. There is no end to the critique, no safe harbor at which point I can say I've "succeeded." It's exhausting at times.
Anyway, that's where I'm at, and that's why you get my oft peculiar mix of political belief and rhetoric.
Thursday, July 14, 2005
Balancing Act
Over at Pseudo-Polymath, Mark Olsen disputes my argument that Supreme Court nominees should be aggressively questioned on Hamiltonian grounds (specifically, Federalist #76). Mark is someone I highly respect, and his opinions deserve to be taken seriously. Still, I disagree with him here.
Ultimately, his (Hamilton's) argument boils down to the claim that having Senators query into the background, leanings, tendencies, etc. of judicial candidates will lead them to interject their personal grievances or biases, which leads to malicious attacks and fights. Empirically, this is proven by the current state of affairs in the Senate--the rancor over judicial nominees can be directly traced to the newly active role Senators have been taking in judicial nominations. Hence, Mark argues, Senators should show more deference to the President so that the process becomes more cordial and less polarized (since the president can't polarize himself, leaving it to him ends polarization).
In a way, this is parallel to my generic critique of Democracy. To recap, the "dream" of Democracy, at least for all of us politically attuned folk, is for a nice, deliberative Republic in which all citizens rationally discuss the issues presented, fairly consider opposing views, then faithfully elect similar-minded representatives who will implement these views into law without trying to settle political scores or pander for votes. The reality, as we know, is far different--issues aren't rationally discussed, politicians nakedly pursue personal influence over the national interest, and most citizens are entirely disengaged from the process--stopping only so long to see the latest "Swift Boats" ad. At times, it's enough for the politically aware among us to despair entirely, and say
And perhaps they wouldn't. A dictatorship of me might (emphasized) be rational, empathetic, deliberative, and open-minded--precisely those characteristics Democracy isn't. It also would be elitist, exclusivist, unaccountable, and wholly illegitimate. So I push my megalomaniac ambitions to the side, and recognize that for all its problems, Democracy remains the best of admittedly flawed options.
I feel roughly the same way about judicial nominations. Presumably, if we lived in some Habermasian utopia where politicians didn't make attacks just for the sake of politics and people could and would have rational political conversations, Mark would not mind Senators chipping in on judicial nominations. Indeed, he might favor it, since it is generally better to get more opinions and perspectives on weighty matters than less. But since we don't live in that world, Mark would argue that we must regrettably abandon that noble dream. This is an understandable reaction, but it is as wrong as the impulse to chuck out democracy because so many of its participants present (to quote Hamilton) "a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly." Ultimately, our system is premised on the presentation, analysis, debate, and refutation of a wide range of viewpoints and ideas. It cannot function otherwise, and the convenience (and cordialness) of replacing that debate (the sin qua non of "advise and consent") with an executive "trust me" does not outweigh that value.
What you have to remember about Hamilton is that he was an unabashed advocate for extreme executive power. He did not trust assemblies and he did not trust the people. This view has some merit. But it is not the view either our constitution or our republic has adopted. The proper response to a damaged democratic process is not to abandon the process, it is to commit oneself to healing it. Judicial nominations, like any other policy issue of import and weight, requires a diverse array of voices to be heard. Pluralism is if anything more important in high stakes situations such as this. And so I defend debate--warts and all. There is no other way consistent with our traditions, with our constitution, with our democracy.
Ultimately, his (Hamilton's) argument boils down to the claim that having Senators query into the background, leanings, tendencies, etc. of judicial candidates will lead them to interject their personal grievances or biases, which leads to malicious attacks and fights. Empirically, this is proven by the current state of affairs in the Senate--the rancor over judicial nominees can be directly traced to the newly active role Senators have been taking in judicial nominations. Hence, Mark argues, Senators should show more deference to the President so that the process becomes more cordial and less polarized (since the president can't polarize himself, leaving it to him ends polarization).
In a way, this is parallel to my generic critique of Democracy. To recap, the "dream" of Democracy, at least for all of us politically attuned folk, is for a nice, deliberative Republic in which all citizens rationally discuss the issues presented, fairly consider opposing views, then faithfully elect similar-minded representatives who will implement these views into law without trying to settle political scores or pander for votes. The reality, as we know, is far different--issues aren't rationally discussed, politicians nakedly pursue personal influence over the national interest, and most citizens are entirely disengaged from the process--stopping only so long to see the latest "Swift Boats" ad. At times, it's enough for the politically aware among us to despair entirely, and say
"Enough! If I was dictator, none of these problems would exist."
And perhaps they wouldn't. A dictatorship of me might (emphasized) be rational, empathetic, deliberative, and open-minded--precisely those characteristics Democracy isn't. It also would be elitist, exclusivist, unaccountable, and wholly illegitimate. So I push my megalomaniac ambitions to the side, and recognize that for all its problems, Democracy remains the best of admittedly flawed options.
I feel roughly the same way about judicial nominations. Presumably, if we lived in some Habermasian utopia where politicians didn't make attacks just for the sake of politics and people could and would have rational political conversations, Mark would not mind Senators chipping in on judicial nominations. Indeed, he might favor it, since it is generally better to get more opinions and perspectives on weighty matters than less. But since we don't live in that world, Mark would argue that we must regrettably abandon that noble dream. This is an understandable reaction, but it is as wrong as the impulse to chuck out democracy because so many of its participants present (to quote Hamilton) "a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly." Ultimately, our system is premised on the presentation, analysis, debate, and refutation of a wide range of viewpoints and ideas. It cannot function otherwise, and the convenience (and cordialness) of replacing that debate (the sin qua non of "advise and consent") with an executive "trust me" does not outweigh that value.
What you have to remember about Hamilton is that he was an unabashed advocate for extreme executive power. He did not trust assemblies and he did not trust the people. This view has some merit. But it is not the view either our constitution or our republic has adopted. The proper response to a damaged democratic process is not to abandon the process, it is to commit oneself to healing it. Judicial nominations, like any other policy issue of import and weight, requires a diverse array of voices to be heard. Pluralism is if anything more important in high stakes situations such as this. And so I defend debate--warts and all. There is no other way consistent with our traditions, with our constitution, with our democracy.
Subscribe to:
Posts (Atom)
