Of Law and Langauge

Yale Law Professor Jack Balkin has a really fantastic post up on the "other side" of the Critical Legal Studies movement. A good deal of CLS scholarship was based around "trashing" liberal conceptions of rights and "neutral" procedures. They argued that law and legal texts were inherently malleable, and would always be bent to serve the interests of the socially powerful at the expense of the weak. Even the very language of the law--centered high-minded ideals like "justice" and "equality", could be manipulated to serve the interests of ruling elites. So it is that many people now understand, say, Affirmative Action as a violation of the equality principle, rather than its instrument. Thus, while CLS thinkers often believed that law is simply another form of politics, law actually has a particular danger not present in other forms of politics. Law, far more than ordinary politics, has the potential to corrupt our very moral categories themselves.

There is more than a grain of truth to this. But as CLS evolved and began to dialogue with its offspring in the race and feminist movements, a counterthread began to emerge. This talk of rights and justice and ideals is certainly not immune to being enlisted in the service of regression. But, as many veterans of the civil rights movement noted, the fact that legal discourse was constructed around these categories meant that they had grounds to at least make claims. Rights were something Black people could stake out, and it is an inherently superior frame for the debate than "pure" power politics. Because law channels elite discourse into terms like justice, advocates can choke them with those words. "How can you do this?" can easily be responded to with "Because I can." "How can you call this just?" is not as easy to dodge out of.

The relative autonomy of law from politics-- rather than its complete autonomy-- simultaneously posed a threat and a promise. The threat was that law would fail to do much more than ratify and legitimate the interests of the powerful; the promise was that it could hold off the worst excesses of power by giving people discursive and institutional tools to talk back to power, to restrain its selfishness and inhumanity, and to imagine finer, better visions of human association.

The threat and the promise of law were joined together inseparably. What gave law its power to legitimate was its ability to re-describe unjust and unfair events, social practices and institutions in terms of valued ideals of human association like consent, freedom, equality and fairness. In the hands of lawyers and politicians, law could disguise, mystify and legitimate great injustices using the very ideas and ideals we admire. But law could only do this because it appealed to these values and claimed to be trying to put them into practice through law. That is, the recourse to law forced the powerful to talk in terms in which the powerless could also participate and could also make claims.

The CLS critique of law was thus Janus-faced. On the one hand, powerful people used law to subordinate others and secure their own interests under the guise of promoting laudable goals like freedom, equality, liberty, consent, community and human dignity. On the other hand, by choosing to speak in the language of law, powerful people and interests could be called to account because they tried to legitimate what they were doing in these terms. The people they took advantage of could always argue that this was a misuse of law, an illegitimate attempt at mystifying rhetoric. They could then appeal to the values that law sought to protect to promote better, juster, and more humane practices and forms of human association.

Law is often overstated as a tool for liberation. But then, it is often underestimated as well. Law has the ability to force the discussion into terrain advantageous for liberators. It does not guarantee results, but it may make the fight just a little fairer.

"We Call Them Terrorists"

Brad Plumer discusses the stock conservative arguments against the proposed Hate Crimes law winding its way through Congress. Though there are some unbelievably dumb arguments against this bill (that it equals slavery, or that it's a massive Jewish conspiracy), the ones Plumer hits are at least somewhat serious and plausible.

There appear to be four main objections to the hate crime bill. First, that it will infringe on free speech rights. The bill seems rather carefully crafted to distinction between violent actions and discriminatory speech, with the latter still enjoying protection. So, as Plumer puts it, Tony Perkins can still gay-bash as often as he wants, so long as he doesn't start actually physically attacking them. I'm fine with that distinction. The second argument is that local law enforcement doesn't need the help. But at worst, then, we have a redundancy, and there are plenty of examples where local cops could either use extra resources, or aren't equipped to handle hate crimes, or simply don't care that gay people get beaten up. I am not sufficiently confident in the ability of local police forces in very conservative areas to take seriously hate and violence against gay and lesbian Americans--especially when it doesn't rise to the sensationalized violence that brings national cameras. The third is that the bill doesn't protect certain other classes, like members of the armed forces or the elderly. The problem is that's the Republicans' fault--color me unsympathetic. And the fourth is that the bill may not deter hate crimes. But as Plumer points out, even if true, deterrence is not the only reason we have criminal laws.

And this is the critical point. This bill is principally a statement about motives, not victims. Indeed, this is why the bill covers me if my attacker simply thinks I'm gay. And it covers me if a radical gay activist decides to go on a killing spree against straight people. The point is that the state of mind of the attacker--be it to "send a message to the queers" or "give heterosexuals a taste of their own medicine"--is particularly condemnable. We all agree that motive matters when talking about culpability. Murdering mom to get the inheritance is worse than murdering her in a drunken rage, is worse than murdering her because she physically abused you. We know this. And much of the distinctions in criminal law are defined by what we, as a society, have to say about particular motives. In this case, the motive that gay Americans are subhuman. The motive that they do not deserve to be members of our community. The notion that all gay people, not just the particular victim of the violence, is worthy of being attacked and abused. This bill sends an important message about what is and is not tolerated in the American community:

But many if not most hate-crime offenders refuse, even after incarceration, to admit that what they did was morally wrong. This is because they believe they are acting on the unspoken wishes of their previously homogeneous community, and thus taking action on a moral plane all their own.

This is why it's important for communities to stand up and be counted when hate crimes occur in their midst. Making public their utter condemnation of such acts sends an important message to the would-be perpetrators: the community does not condone violence to expel outsiders. Using the stiff arm of the law to back that message up is essential, especially when the need is so clear.

Conversely, pretending that a swastika on a synagogue is just another case of vandalism, or treating (especially in law enforcement terms) a "fag bashing" as just another bar fight, sends quite another message, one that in the mind of a hate-crime perpetrator equates with approval. A slap on the wrist is too often seen as a pat on the back; equanimity as forbearance.

You saw this all the time in Southern lynch-law cases. Even though killing is against the law, the perpetrators of those hate crimes had every reason to believe that the community tacitly condoned the sentiments motivating the act. Even if they would prosecute the murders (and that was rare enough), nothing was done to breakdown the notion that the motivation, too, was immoral. In such a context, it is so important to be very explicit in sending the opposing message. The South needed to be told--in the clearest possible way--that not only was murder wrong, but that the entire desire to force Black Americans into submission was reprehensible and rejected by the broader community.

As Steny Hoyer pointed out in a breath-taking floor speech (scroll to Hoyer's second clip), in America today we also know of people--people of faith, even--who kill and slaughter because they hate the group their targets belong to. We call them terrorists. They attack us, by their own admission, not because they have met us and dislike us, and not because they are drunk. They attack us because we're Americans. Or Christian. Or Jewish. And despite the fact that murder remains illegal, we have anti-terrorism laws to deal with these people. As we should. The action of these men exists on a different moral plane from run-of-the-mill murderers. Murderers' victims are limited. Terrorists target the entire group towards whom they express their hate. When Nasrallah orders rocket attacks on Israeli civilians, I'm affected too, because his stated motivation is to kill Jews across the world. The slaughter is meant to send a message to me, as well, and I hear it loud and clear.

The people who kill to express hate, to strike fear across whole populations and groups, are terrorists. There can be no distinctions. And so, the Americans who would kill gay and lesbian Americans, like those who would bomb abortion clinics, like those who engaged in lynchings in the south, are terrorists. Their motive is hate. They believe that the people are behind them. Our job, our duty, is to prove them wrong in the most emphatic of terms. That's the message of this bill. And that's why it needs to be passed.

Classless

Missouri Democratic Senator Claire McCaskill was invited to speak at her daughter's graduation ceremony at St. Joseph's Academy. Then the Archbishop objected, due to her views on abortion and stem cell research. So she was disinvited.

[Archbishop] Burke is not new to controversy or to politicizing his religious views. He was behind the effort to deny John Kerry and other progressive Catholic politicians eucharist. Last week he tried to derail a benefit concert by Sheryl Crow for a local Catholic hospital because of her support for stem cell research. Apparently he put politics over critical funding for the hospital. He resigned his position on the board of directors for the hospital when they refused to cancel the concert.

Lovely. As the above-linked post states, the odds McCaskill was going to turn this into a pro-abortion rally ranges from slim to none. There is no doubt that a sitting US Senator would make for an excellent role model for the graduates of this academy. Unfortunately, the Archbishop decided to make a political point on the backs of teenagers.

Classy.

Incest and Sinai

Did you know Rhode Island exempts Jews from its law barring Uncle-Niece incest and marriages? This is to allow Jews to fulfill certain commandments laid out in Leviticus. While Jews no longer condone Uncle-Niece incest (centuries-old Talmudic interpretation has essentially nullified the doctrine entirely), it does kind of give lie to cheap talk about "a code of conduct stretching back to Sinai" being against incest. There's a weird tendency among some authors to assume that "bad things" are exactly interchangable with "things the Bible condemns." It's not true, and often times it leads to really sloppy writing. Not to mention, an atrophy of critical thinking on our part as to why we think Uncle-Niece incest is wrong. As this case demonstrates, always deferring to our ancestry can lead to some dangerous and unforeseen commitments.

The Rhode Island law isn't exactly an anomaly, either, though its the only one to single out Jews. Several other states have exceptions to Uncle-Niece incest and marriage laws (Minnesota and Colorado permit it for "aboriginal cultures"), and Oregon doesn't bar Uncle-Niece incest at all (though it does not recognize marriages). I suspect most of these laws are relics of some form--I doubt any would pass today. It's just an interesting legal and historical note that I never knew.

It certainly would make for an interesting case example for my paper on Jews and American Church/State relations, though.

When Election '08 Isn't Close Enough

You'd think that it'd be Democrats who'd be the ones angling to change the powers-that-be in Washington prior to the '08 election. After all, we're the ones who recognize believe this administration is a complete and utter disaster. That's why the impeachment talk keeps bubbling up. But, as so often is the case, we are perpetually being one-upped by our friends on the right. And so, here is conservative luminary Thomas Sowell:

When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup.

But remember, I'm the traitor.

Incidentally, Sowell is reputed to be very bright, and perhaps in his academic work he is, but this column reads like the work of 8th grade member of the Young Republicans club. It's a stream of consciousness rant that just tries to pack in as many non-sequiturs and weakly connected (not to mention warranted) conservative talking points as possible onto a page. It'd be amusing if it was a known moron like Ann Coulter, but Sowell is supposed to pass for a conservative intellectual. Is this really the best they've got?

Via The Plank

Blackroots Awakening

Blackprof contributor and GW Law Professor Spencer Overton has a fantastic post on how the controversial CBC/Fox News debate has really awakened the Black Netroots community (Blackroots). Overton notes that for many years the Black community has been stuck in a MLK/Malcolm X model of leadership, headed up by a few charismatic but unelected leaders, relatively unaccountable, and very top-down. The rise of the Blackroots offers an alternative mechanism for the liberal Black community to assert power and influence, outside the traditional channels. This is how there could be such a groundswell in the Black community against the debate, despite its endorsement by the epicenter of Black political power, the Congressional Black Caucus.

The New Target

Over at Tapped, Garance Franke-Ruta notes that the VRWC has begin to turn its sights away from Hillary Clinton and towards Barack Obama. Bad news for John Podhoretz's book, but probably a good strategic move.

Thus far, the breathless anti-Obama screeds by the right have not been impressive. But perhaps they'll get somewhere, if they can resist not snickering like second grade school children over his middle name for the next 15 months (though nothing would make me happier).

Ever To The Left

The new president of the American Jewish Congress has pledged to restore the group's progressive domestic policy focus. I particularly like the increased emphasis on outreach to other ethnic groups and organizations, including Muslim groups. Jews have always been an integral part of "Rainbow" coalitions, and I think it is important to nourish that activism and assuage concerns that the contemporary Jew is still as committed civil rights and equality for all Americans as we have been in years past.

In recent years, the AJC had been getting a reputation for moving to the right, even occasionally (and unjustly) being called a "conservative" organization. Much of this has been overstated, but I'd just as soon nip things in the bud on that count. Jews remain overwhelmingly liberal, our political commitments are strongly in line with the Democratic Party mainstream, and it's important for the broader political community to feel that our organizations accurately represent the views of the American Jewish population writ large.

Now Who's Authentic?

From the NYT's profile of Barack Obama's relationship with his pastor, a somewhat controversial figure who proudly advocates Black liberation from the pulpit:

In the 16 years since Mr. Obama returned to Chicago from Harvard, Mr. Wright has presided over his wedding ceremony, baptized his two daughters and dedicated his house, while Mr. Obama has often spoken at Trinity’s panels and debates. Though the Obamas drop in on other congregations, they treat Trinity as their spiritual home, attending services frequently. The church’s Afrocentric focus makes Mr. Obama a figure of particular authenticity there, because he has the African connections so many members have searched for.

Isn't that ironic? The knock on Obama was that he was not sufficiently "authentic" as a Black man, because his ancestry did not stem from the Atlantic Slave Trade. But now it turns out that he's extra-authentic, because he's comparatively closer to his African roots than most of his Black peers.

I think this entire issue of authenticity is a rather silly question, and one primarily concocted by the media to boot. Obama, like all candidates, has the obligation to prove to the Black community that he understands their concerns and has the commitment and the chops to advance their interests as President. Insofar as the Black community is not just flocking to Obama like sheep, that's the reason: They're not sheep, they're savvy voters, and they'll make Obama earn their vote just like any other politician.

Racial Geography: The Indian Question

A comment dropped by PG on my "French Model" post mentioned the status of Indian-Americans in American racial discourse. She points to their exclusion from the traditional Black/White binary, but I think the problem is yet deeper than that, and when I try and speak of Indian-Americans from a racial prism, I run into all manner of problems.

Here's the deal. I think America has, for now, settled on roughly the following divisions in race: White, Black, Latino, Native American, and Asian. Arab strikes me as being seen more as an ethnicity than a race, but that may be changing with the whole "clash of civilizations" rhetoric surrounding the war on terrorism (there's some really interesting literature about how Arabs "won their Whiteness" in legal cases back when America still made serious racial distinctions in its immigration laws). But aside from Arabs, Indians are the group that really gets left out. But it's interesting as to why.

In terms of racial stereotyping, I feel like Indians should be grouped with their geographic compatriots, (East) Asians. Aside from the fact that Indians are from, well, Asia, they are viewed in much the same way by Whites as Asians are. The stereotypes are predominantly (not completely) positive. They are seen as academically advanced, even nerdish. Mockery tends to be based around accent (the most prominent uniquely Indian negative stereotype, the Apu-type shopkeeper, is based heavily around this). Sometimes they are seen as competitive threats (taking our jobs), but are not usually considered inferior (sort of like Jews). They are not seen as particularly criminal or violent. Interracial relationships between Whites and Indians, like White/Asian pairs, are relatively accepted compared to other cross-racial mixes.

Yet, I don't think that when most people talk about Asians as a race, they include Indian-Americans. Why is this? In America, race is inextricably linked to color. That's why the binary races are called "White" and "Black". Archaically, you'd see Native Americans called the "red" race ("Redskins"), Asians "yellow", Indians "brown", and Latinos "tan." Today most of that has fallen by the wayside except White/Black. But the mental linkage remains, and let's face it--east Asians and Indians are of a different color. Hence, I think we have a lot of trouble placing them as part of the same race.* It'd ruin our neat framework that unites race and color.

Ideally, the tension Indians bring out between color-centric and characteristic-centric manners of racial categorization would help reveal some of the instability of racial categories, and would lead to some more critical dialogue about what it means to be part of a "race". Unfortunately, America as a nation seems to have a collective inability to deal with complexity ("John Kerry is too nuanced for me!"), so that's out of the question. What we get instead is Indians being dropped out the conversations entirely, so we don't have to deal with the issues they raise to our basic conceptual schema. Similarly, non-Arab Muslim states are either simply grouped as the same as their Arab neighbors (Iran, Pakistan), or relatively ignored when talking about how Muslim governments do or do not perform (Turkey, Indonesia). Arab=Muslim=Simple. Arabs being of many religions, and Muslims being of many ethnicities, is not simple. Intersectionality questions, ditto ("Black AND Woman? One at a time!").

So to answer your concern, PG, the reason Indians are absent from American racial discourse is because they ruin our neat conceptual frame. Stop complexifying our simple little world.

--------------

*To be clear, I don't think we actually follow any of our racial categorization procedures to their logical conclusion, because it would expose the concept of race as the absurdist fantasy that it is. Color doesn't fit because it's nearly impossible to distinguish the hue of Latinos from that of Southern Europeans. Stereotypes don't work because they don't actually track groups neatly like we pretend that they do. Biology doesn't work because ethnically related groups are spread out too far to keep our idea of "distinct" races--Finns and Koreans are more closely related to each other than they are to their geographic neighbors, but no racial categorization scheme I've seen has grouped them together.

UPDATE: I'm withdrawing the Finn/Korea connection claim because I've been unable to find significant corroberating evidence beyond my original source (my tour guide when I was in Finland). I have noticed some similarities in physical appearance, and have since read some evidence for the linguistic connection, but it isn't strong enough to base a claim on.

Prior Restraint

Boo:

A high school teacher who faced losing her job after a student newspaper published an editorial advocating tolerance of gays can continue teaching at another school.

Amy Sorrell, 30, reached an agreement that allows her to be transferred to another high school to teach English, said her attorney, Patrick Proctor.

"The school administration has said in no uncertain terms that she's not going to be given a journalism position," Proctor said.
[...]
School officials in the conservative northern Indiana community about 10 miles east of Fort Wayne said Sorrell did not comply with an agreement to alert the principal about controversial articles.

Obviously, I'm glad she's not being fired outright, but still: an editorial advocating tolerance for gays is nowhere near the boundaries of what should even raise an eyebrow at a student newspaper. The "agreement" to alert the principle about "controversial" articles strike me as nebulous language--what constitutes "controversials" (answer: equality!). I'm clearly spoiled by the fact that my high school newspaper did not undergo any sort of prior review or restraint by the administration, but it's cases like these which show who has the better model.

Schools are there to open kids' minds, not stifle them. Unfortunately, the administrators in this district seem to have other goals for their system. Shame.

The French Model

Back during the height of the French Race Riots last summer, I noted the interesting irony underlying American discussion. Conservatives love to bash on France, and they love to bash on European "multiculturalism", which they blame for ails like the race riots that tore through Paris. The problem is that France, as a matter of policy, has adopted a legal mandate of color-blindness that conservatives here can only dream of. And many of the more astute commentators pointed this out, arguing that French "color-blindness" was preventing it from adequately redressing the pervasive grating poverty of its racial minorities. As a political matter, I support labeling any conservative advocate of the color-blind system as supporting "The French Model," but I think there is a serious point to be made here.

Via Workplace Prof, Yeshiva (Cardozo) University Law Professor Julie Suk has expanded on this point in a forthcoming article appearing volume 55 of the American Journal of Comparative Law. Here's the abstract:

In Fall 2005, race riots in France drew attention to differences between the French and American legal regimes for remedying racial inequality and discrimination. The riots reacted to the persistence of employment discrimination against people of North African origin. French antidiscrimination law has been unable to solve such problems because of its focus on criminal punishment of racist speech and its uncompromising commitment to race-blindness. These features embody the intersection of two historical forces: the influence of Vichy memories on French legal conceptions of racism and discrimination, and the strong republican resistance to social distinctions. Understanding this history comparatively brings certain features of U.S. antidiscrimination law into sharper focus: U.S. law imposes civil, rather than criminal liability, and is more tolerant of race-conscious affirmative action, more resistant to regulating racist speech, and more reluctant to extend antidiscrimination law to a wide range of protected characteristics. These distinctive features of U.S. law are explained by the law's reaction to the history of slavery and segregation. The different evolutions of antidiscrimination law reveal how particular forms of racism - anti-Semitism and genocide in France, and the slavery and segregation of African Americans in the United States - gave rise to two very different antidiscrimination regimes. The French contrast challenges the assumptions of American antidiscrimination law, leading to greater precision about the uniquely American commitment to race-blindness in equal protection doctrine. The stricter French model of race-blindness highlights the instability and ambivalence of American race-blindness. Comparative historical inquiry reveals that the goal of eradicating group subordination does more work in U.S. antidiscrimination law than the goal of achieving a truly race-blind society based on individual merit.

France has adopted hate-speech laws that would make many American liberals blanch--we are reasonably committed to legal protection for racist speech. And America's relatively color-conscious policies (like affirmative action) are considered by the French to be "dirty", racist, and immoral.

Can America's relatively(!) superior racial climate be explained by our greater tolerance for color-conscious policy making? It's true that other variables present themselves. It could be due to France's more closed economy. But as conservative icon Richard Posner notes, America has had its share of race riots in the 60s and 70s, in an economic climate still significantly more liberal than contemporary France. Race riots happen regardless of economic system, and the fact that they are race riots should make us immediately suspect the causes have something to do with racial policies.

What I mean to do in bringing up the French example is not to say that it is game, set, and match for a particular position. But it does allow us to realize that we're not debating this question in a void. We currently live in an America which has fitfully experimented with affirmative action and other color-conscious race remedies for about 30 years or so. We can compare that to a France which has steadfastly rejected those remedies. Where are minorities better off? Which is more just? Which is working more effectively?

Ultimately, the question presents itself: Are you in the American camp, or do you support the French model?

Congratulations to the Happy Couple

I was talking to a new friend at lunch the other day, and she mentioned how the majority of guys apparently don't like dating intelligent women. They feel threatened by them. As a firm member of the "smart is sexy" camp, I was elated--free range for me! But it turns out she was exaggerating. I actually do have competition in the category, which means that I'll have to rely on my good looks and charm (damn).

All of this is to happily announce the engagement of the very smart PG of Half the Sins of Mankind (and Blog De Novo, and Sepia Mutiny, and Ex Post, and presumably innumerable others). Unfortunate for all of us who'd been nursing intellectual crushes on her, but I'm they're not bitter. So congratulations to her, and congratulations the more so to the lucky fiance.

Best wishes to the happy couple.

Unwritten Rights

Conservative groups love to babble on about how liberal jurists expand "rights" beyond what's actually written in the constitution. "Where does it say 'separation of church and state'?" Yadayada. So I'm curious to see how the Family Research Council justifies this "constitutional critique" of the proposed Hate Crimes law moving through Congress: "The version that now heads to the House floor violates the Commerce Clause and the Thirteenth, Fourteenth, and Fifteenth Amendments."

Now, there is a valid First Amendment attack on the bill text, though the bill explicitly says that mere speech isn't sufficient to violate the law. And I'll concede to that the Commerce Clause and the 14th Amendment are implicated too, though in the former case its not a "violation" of the Commerce Clause, it just may not be justified by the Commerce Clause (it's not justified by the Guarantee Clause either, but that doesn't mean it violates it). But the 13th and 15th Amendments? How does this implicate emancipation from slavery and the right to vote?

It's almost like they took a grab-bag of constitutional hot topics and hoped one would stick. Embarassing.

Mid-Terms are Upon Me!

And I was caught relatively flat-footed. So blogging might be reduced as I try to get a handle on my workload. Step one: Starting my six page paper, due tomorrow morning.

Wish me luck!

Pluralism at the Founding

Georgetown Law Professor Nicholas Quinn Rosenkranz has a paper coming out in the Stanford Law Review that proffers some interesting history regarding the history of the American political institutions. He is responding to Cass Sunstein and Eric Posner's use of Condorcet's Jury Theorem in support of citations to foreign law:

It turns out that Condorcet's vision of law and politics was distinctly "universalist," imagining all people everywhere seeking the correct answer to questions of law and policy. This universalist vision is central to the Jury Theorem, the most basic condition of which is that each "juror" answer the same question. And it is also essential to the Posner-Sunstein application of the Theorem, which posits that questions of law will often be relevantly similar from country to country. But the Framers' vision, as reflected in many of the Constitution's textual and structural features, was distinctly more localist. As careful analysis of features like bicameralism, federalism, juries, and the amendment mechanism demonstrate, the Constitution favors decision-making mechanisms that harness multiple collective bodies with distinctly varied geographic and institutional perspectives, each answering subtly different questions. In short, despite Condorcet, the Constitution itself ultimately refutes the notion that it should be interpreted by reference to the law of other states.

The emphasis is my own. I venture no opinion on the impact of Rosenkranz's analysis on his topic of choice. But I am intrigued by how this provides a historical root to the importance of the pluralism of perspective in the American political tradition. My fellow travelers in the more post-modern strains of contemporary liberalism have pushed this mantra. Iris Marion Young argued in her book Intersecting Voices that "Normative judgment is best understood as the product of dialogue under conditions of equality and mutual respect. Ideally, the outcome of such dialogue and judgment is just and legitimate only if all the affected perspectives have a voice." Justice demands that those we are affecting get to input the process. But it isn't just an obligation--it also seems likely that hearing from diverse perspectives will lead to better policymaking. One group may have insight where another might be blind.

Traditionally, the analysis by Young and her peers has been seen as a radical break from dominant American political thought--emphasizing the plural over the universal. As Rosenkranz demonstrates, however, this is not entirely accurate. Though the unifying language of "We the People" has come to dominate our historical memory of the founding generation, there was quite a strong emphasis by the founders that recognized the distinctiveness of persons and groups and celebrated what each could bring to the table. John Jay in Federalist #2 buttressed the legitimacy of the Continental Congress by noting how "being convened from different parts of the country, [the delegates] brought with them and communicated to each other a variety of useful information." Madison's work in Federalist #10 made group differences the prime defender of American liberty, hoping that a diverse array of factions would play off each other to insure everyone's rights are protected. The large union was instrumental to insuring that a diverse array of views and interests were represented, while smaller communities were understood to be more segregated and homogeneous.

The smaller the society, the fewer probably will be the distinct parties and interests composing it, the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or even if such a common motive exists, it will be more difficult for all who feel it to discover their won strength, and to act in unison with each other.

The good being pursued here is diversity and plurality. "We the people" is in some ways an outlier. Though we are united under banner, our strength comes from our varied perspectives--that which makes us different. E Pluribus [Voces], Unum.

PS: I apologize for my guess at Latin in advance.

Majority Leader Crow

No More Mister Nice Blog points out something important. All those "liberal celebrities" the right loves to harp about? Nobody on the left cares! Celebrities aren't politically important figures. So Sheryl Crow got into a little spat with Karl Rove. I care insofar as she may have made an interesting point (I have no clue if she did), but I certainly take no special pleasure in the knowledge that Sheryl Crow is on my side. Who uses Sheryl Crow as their political litmus test?

Could we say the same thing about Tom DeLay? I don't know if the right actually listens to ex-Rep. DeLay anymore. But nobody ever elected Sheryl Crow majority leader.

"Realistic" Weapons After Virginia Tech

The VC has been blogging about a Yale University ban (now rescinded) on using "realistic" stage weapons at performances on campus. A sword-fight that used real-looking (i.e., metallic colored) swords, instead of wooden ones, would be proscribed.

The VCers have been collectively mocking the ban, and I agree that as applied its pretty stupid. But there are at least a few cases where I think it would make sense in a university or classroom setting.

A psychology professor here at Carleton has related to his students an old teaching method of his on how trauma effects memory. Specifically, he'd be in the middle of a lecture when an accomplice would break in the door, "shoot" him with a realistic looking gun, at which point the professor would trigger a blood packet under his shirt and then slump down over the desk. Then he'd pop back up and ask the class what they remembered of the incident.

The professor has since stopped using this demonstration (apparently, he did it in an adult education class and gave one of his students a heart attack), but surely we can agree that had he not already stopped, now would be a good time to discontinue it?

Similarly, I'm reminded of a story regarding the murder scene in the comedy murder-mystery "Sheer Madness." Early in the play, the "murder" happens, with the lights going out, a shot fired, and a person screaming. Apparently, one performance the Saudi ambassador was in attendance, and when the lights came back on, eight of his bodyguards were up surrounding him, handguns drawn. Should we ban the producing of "Sheer Madness" on college campuses? I don't think so, but a disclaimer at the start might be appropriate.

The difference between these cases and the one's being targeted at Yale are that, while nobody seeing an onstage sword fight will think it's real, the aforementioned cases (especially the first) are meant to (or at least have the potential to, in the second case) deceive the audience into thinking actual violence is happening. They are, in that sense, the real cases of "realistic" violence, and they constitute tougher cases after Virginia Tech than Yale's over-reaction.

The more interesting question, I think, is whether the psychology professor's experiment ever should make it back into the classroom. Certainly, it is effective if nothing else. How long should he have to wait before bringing it back to a college setting? Or should it be permanently banned?

Two Votes For Every Boy!

Guest-blogging at The VC, Steven Landsburg argues for a change in the way we vote for Congress:

So if I could make just one change in the American political system, it would be to give each voter two votes in every congressional election. You'd get one vote to cast in your own district and another to cast in the district of your choice. When a congressman from West Virginia funnels taxpayers' money from fifty states to his home district, I want him to face the prospect that taxpayers from fifty states will share their feelings with him on election day.

He has others, but this is his numero uno, so let's unpack it a little.

I'm currently reading Lani Guinier's Lift Every Voice, so I'm less skeptical of proposals that deviate from the strict "one-man-one-vote" principle than normal. But Professor Landsburg, I feel, severely overestimates the intelligence of the American voter. First, I have trouble believing that if voters were going to express their distaste against a Congressperson from another district, they'd choose pork as their point of ire. And even if they did, they'd have to all concentrate their votes on only a few targets to have any effect. In a polity where less than a quarter of voters know who the Senate Majority Leader is, you can color me skeptical that they'll be able to know the difference between the Jeff Flake's and the Don Young's of the House.

No, what's likely to happen is that each election, the highest profile Democrat and Republican in the House (likely the Speaker and the Minority Leader) will lose. Why? Because voters will almost definitely cast their votes against the incumbents in the "second district" they choose. And the only politicians likely to have a high enough profile to be known and disliked by enough voters outside their districts to make a meaningful impact on the election are the ones who are the public face of their party. So Republicans around the country will band together to cast out Nancy Pelosi because she symbolizes the Democratic Congress that they hate. And Democrats will unite to beat John Boehner, for the opposite reason. Then we'll elect another round of leaders, and the cycle will begin anew.

The "Problem" of Prison Rape

Another great post (if one can say such a thing) about prison rape by Ankush at Ezra Klein's place. They relay the following story:

Tom Cahill, a former president of Stop Prisoner Rape, was arrested during the Vietnam War for civil disobedience. An ideologically unsympathetic jailer put him in a cell with known sexual predators, telling them he was a child molester, and that if they "took care of him" they'd get extra rations of jello. For the next twenty-four hours Tom was gang-raped. He has never fully recovered from this.

I read a story like this and all I can thing of is that the rapists:the jailer::the murderer:the getaway driver. Well, that's not entirely accurate--sometimes the getaway driver doesn't know that his partner has committed a murder. Here, the jailer was the mastermind behind the rape. That man should be in jail, and he should be there for the rest of his natural life.

Here's the thing, though--prison rape really isn't that difficult to get under control, if we're willing to be serious about it:

To some extent, stopping prisoner rape is simply an issue of better prison management. In facilities where the chief official cares about it, and ensures that his or her subordinates take it seriously, rates of sexual abuse go down dramatically. This is accomplished by, for example, providing vulnerable inmates with nonpunitive protective housing at their request, and establishing confidential complaint systems that encourage inmates to report sexual violence without increasing their risk of future assault or retaliation, from any party.

Ankush finishes it off:

There's more, but the takeaway is that none of the solutions would be particularly difficult to implement were there the political will and appropriate funding in place. If our government officials simply stopped ignoring this problem -- which isn't so much a "problem" as a series of ongoing and widespread human rights abuses occurring within our own borders -- it could probably be brought to an end (or as close to an end as such things can go) in fairly short order.

Truth.