The current Parks & Recreation storyline features protagonist Leslie Knope running for city council against Bobby Newport. Newport is the son of the wealthiest man in town (owner of a candy company), and he is basically an utterly unaware moron. He's not a "bad guy", per se -- in fact, his main flaw is he seems utterly oblivious to how anything matters to anyone. As far as he's concerned, everyone should be happy all the time -- not realizing that not everyone has a trust fund they can dip into when times get rough.
I'm starting to view Mitt Romney as similar. He's not as obviously dumb as Bobby Newport is. But he just seems completely unaware that not everyone has a free pile of familial wealth to dip into when things aren't going well. Responding to the issue of student debt, Romney recommends ... having mommy and daddy give you a $20,000 loan. Of course, I'd imagine a substantial majority or recent college grads don't have parents with a spare 20 grand they can just lend at will. But for Romney, it just seems clear as crystal.
Friday, April 27, 2012
Marxist Cannibal Nazis from Kenya!
Barack Obama wants to eat your babies:
The man is unreal.
"This is so reminiscent of the Twilight Zone episode 'To Serve Man,' " West wrote. "Obama and his liberal progressive disciples are the modern day Kanamits."
For those of you not intimately acquainted with insults taken out of television episodes from 1962, the Kanamits were a race of nine-foot-tall aliens that come to Earth and cure famine, blight, and nuclear warfare. They also bring in advanced technology to solve the world's energy problems. In other words, the Kanamits were acting like dirty, rotten progressives.
The problem, though, is that the Kanamits don't have noble intentions -- their kindness is really just a not-very-elaborate ruse to fatten up the human race so they can be carted back to the Kanamit home planet to be eaten. A Kanamit book called To Serve Man that was discovered by the humans turns out not to be about helping man at all -- it's a cookbook. (Get it? Serving man?)
The man is unreal.
Thursday, April 26, 2012
Jesus Loves Superior Firepower
Franklin Graham promotes bombing Syrian airstrips to protect civilians from the Assad regime. This, in of itself, may not be a fringe position, but Robert Farley is surely correct that the rhetorical decision to cast the F-15E Strike Eagle in the role of the Good Samaritan may be a little incongruous.
Wednesday, April 25, 2012
Playing Nice When Concurring Rough
Professor Kerr offers his response to my post on the judge as moral arbiter. Frankly, I don't find much to disagree with. And much of that boils down to the simple point that while I don't have an intrinsic problem with opinions like Judge Brown's, this one in particular was poorly formed -- it was not exactly the shining moment for the genre.
I certainly did not mean to imply that judges should be intemperate or injudicious in their language. Obviously, judges (really, all of us) should strive to be polite and well-reasoned when making arguments, and perhaps judges in particular should be especially attentive to that virtue. To the extent that Judge Brown's opinion fails in that, it is deserving of criticism -- but that's a problem of rhetoric, and I don't see it as a necessary part of the type of opinion I'm defending.
I do think judges have the right to extend wide-ranging critiques of whole lines of doctrine, same as of individual cases. If the problem is that Judge Brown did not support her arguments with well-reasoned analysis, then I agree she should reason better or come up with more defensible policy beliefs. But I think Professor Kerr and I generally agree that tempered, well-mannered and well-reasoned judicial opinions that are designed to either guide legislators (or other judges) or prevent wrongful appropriation of moral credibility are permissible, and may often be salutary.
I certainly did not mean to imply that judges should be intemperate or injudicious in their language. Obviously, judges (really, all of us) should strive to be polite and well-reasoned when making arguments, and perhaps judges in particular should be especially attentive to that virtue. To the extent that Judge Brown's opinion fails in that, it is deserving of criticism -- but that's a problem of rhetoric, and I don't see it as a necessary part of the type of opinion I'm defending.
I do think judges have the right to extend wide-ranging critiques of whole lines of doctrine, same as of individual cases. If the problem is that Judge Brown did not support her arguments with well-reasoned analysis, then I agree she should reason better or come up with more defensible policy beliefs. But I think Professor Kerr and I generally agree that tempered, well-mannered and well-reasoned judicial opinions that are designed to either guide legislators (or other judges) or prevent wrongful appropriation of moral credibility are permissible, and may often be salutary.
Tuesday, April 24, 2012
Top Reality
Last Tuesday, I saw my first episode of Top Shot on the History Channel (they're in the middle of Season 4).
By this weekend, I had completed watching all of seasons 1 and 2 (the only ones available on Netflix). That's a rather brisk pace, even for me -- and particularly so given that I have no shooting background or any real desire to fire a gun (ditto for Jill, who really likes the show too). So what gives? Why is Top Shot so compelling? I can think of a few reasons.
* Genuinely interesting challenges. Top Shot is very good on variety, not just in the weapons they use but the way they have them used. Almost every episode involves people doing things that just look cool.
* (Relatively) little drama. There's not none -- there are definitely cliques that form and alliances and such (more in Season 2 than Season 1). But it's not forced, and it's not rammed down your throat.
* Great camera work. The high-speed cameras mean you get to watch bullets piercing jugs of liquid in exquisite slow motion. That never gets old.
* It's objective. There's really no place for biased judging like on, say, Project Runway. You hit the target or you don't. You go faster or you go slower. No excuses. No way for weak shooters to slide by because they have a back story the producers like.
* I can appraise it. Listen, I really like Hell's Kitchen. But at some level, I'm just taking the announcer's word for it as to what's happening and how people are doing (wow, I bet that beef wellington really was delicious!). By contrast, on Top Shot I can see what is happening. I see that the target was hit, or I see that it wasn't. I don't feel like I'm being led by the nose.
By this weekend, I had completed watching all of seasons 1 and 2 (the only ones available on Netflix). That's a rather brisk pace, even for me -- and particularly so given that I have no shooting background or any real desire to fire a gun (ditto for Jill, who really likes the show too). So what gives? Why is Top Shot so compelling? I can think of a few reasons.
* Genuinely interesting challenges. Top Shot is very good on variety, not just in the weapons they use but the way they have them used. Almost every episode involves people doing things that just look cool.
* (Relatively) little drama. There's not none -- there are definitely cliques that form and alliances and such (more in Season 2 than Season 1). But it's not forced, and it's not rammed down your throat.
* Great camera work. The high-speed cameras mean you get to watch bullets piercing jugs of liquid in exquisite slow motion. That never gets old.
* It's objective. There's really no place for biased judging like on, say, Project Runway. You hit the target or you don't. You go faster or you go slower. No excuses. No way for weak shooters to slide by because they have a back story the producers like.
* I can appraise it. Listen, I really like Hell's Kitchen. But at some level, I'm just taking the announcer's word for it as to what's happening and how people are doing (wow, I bet that beef wellington really was delicious!). By contrast, on Top Shot I can see what is happening. I see that the target was hit, or I see that it wasn't. I don't feel like I'm being led by the nose.
Monday, April 23, 2012
I See Gay People
This year's Jerry Falwell Teletubby Memorial Award goes to ... Tony Perkins!
I suppose at least Perkins has the fact that Mike & Ike have two dudely-sounding names and are presented as being in a marriage -- all Falwell had to go on was Tinky Winky's triangle symbol and purple color. But it's tough to live up to a legend like Falwell -- kudos to Perkins for giving it his best shot.
These days, you can't get a sugar high without experiencing a cultural low. Hello, I'm Tony Perkins of the Family Research Council in Washington, D.C. There's trouble in candy land. After more than 70 years together, Mike & Ike are calling it quits. The duo is staging a gay divorce as part of a new ad campaign to draw in younger customers. In this society, even candy has an agenda! From Facebook to Tumblr, the fruity pair says, "The rumors are true. We just couldn't agree on stuff anymore." Starting this summer, the company will spend $15 million on billboards and TV commercials that poke fun at the breakup. It's just another subtle example of society chipping away at the value of marriage. And I don't know what's more disturbing--that advertisers think divorce appeals to kids or that sexualizing candy will make people buy more.
I suppose at least Perkins has the fact that Mike & Ike have two dudely-sounding names and are presented as being in a marriage -- all Falwell had to go on was Tinky Winky's triangle symbol and purple color. But it's tough to live up to a legend like Falwell -- kudos to Perkins for giving it his best shot.
Friday, April 20, 2012
"Rational Basis with Bite" for All
Randy Barnett responds to my blog post Strict Scrutiny for All! I mentioned this to a friend and he remarked that Barnett is the current "constitutional giant-slayer", to which I replied "and I'm no giant."
That being said, I don't think Barnett gets my post quite right or succeeds in defending Judge Brown's opinion. His basic argument is that Carolene Products, properly understood, still would allow meaningful review of economic regulations because the way it articulated rational basis still had some bite to it. The case that gave us our modern, toothless "rational basis" doctrine was actually Williamson v. Lee Optical. But we can restore "the real Carolene Products" and still have something properly called "rational basis" (rather than strict scrutiny) that nonetheless gives the Court meaningful oversight over economic regulation.
I venture no opinion as whether this is the correct reading of Carolene. As a response to my post, though, it's mostly a non-sequitur, for two reasons. First, Judge Brown's opinion did not cast its villain as Williamson -- it set its sights on Carolene. And it didn't say "rational basis is being wrongly applied", it attacked rational basis review wholesale: "The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. . . . Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more."
Second and more importantly, the main point of my post was that whatever she thinks the remedy should be (rational basis plus, strict scrutiny, a yea or nay vote by Richard Epstein, whatever), Judge Brown's indictment is not limited to economic regulations but applies equally to any law Congress passes. This is the focus of her attack on Carolene and its echoes of Ackerman's -- that public choice theory denies that "discrete and insular minorities" should be at a democratic disadvantage, hence, Carolene's decision to provide heightened protections for laws targeting them and them alone is utterly wrongheaded. Small special interests are actually quite powerful, and political ignorance prevents adequate checks at the ballot box, so even diffuse majorities are vulnerable to political exploitation.
But this line of attack is not limited to economic regulation -- it is a general indictment of our democratic structure and its operation as pluralistic interest-group bargaining. Every law is vulnerable to this process defect, every law ought be suspect. Whether that means every law deserves strict scrutiny, like Brown effectively implies, or some heightened form of rational basis, as Barnett does, the point is that there is no reason to treat economic regulations specifically as any more likely to be the product of this general shortcoming in the system.
That being said, I don't think Barnett gets my post quite right or succeeds in defending Judge Brown's opinion. His basic argument is that Carolene Products, properly understood, still would allow meaningful review of economic regulations because the way it articulated rational basis still had some bite to it. The case that gave us our modern, toothless "rational basis" doctrine was actually Williamson v. Lee Optical. But we can restore "the real Carolene Products" and still have something properly called "rational basis" (rather than strict scrutiny) that nonetheless gives the Court meaningful oversight over economic regulation.
I venture no opinion as whether this is the correct reading of Carolene. As a response to my post, though, it's mostly a non-sequitur, for two reasons. First, Judge Brown's opinion did not cast its villain as Williamson -- it set its sights on Carolene. And it didn't say "rational basis is being wrongly applied", it attacked rational basis review wholesale: "The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. . . . Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more."
Second and more importantly, the main point of my post was that whatever she thinks the remedy should be (rational basis plus, strict scrutiny, a yea or nay vote by Richard Epstein, whatever), Judge Brown's indictment is not limited to economic regulations but applies equally to any law Congress passes. This is the focus of her attack on Carolene and its echoes of Ackerman's -- that public choice theory denies that "discrete and insular minorities" should be at a democratic disadvantage, hence, Carolene's decision to provide heightened protections for laws targeting them and them alone is utterly wrongheaded. Small special interests are actually quite powerful, and political ignorance prevents adequate checks at the ballot box, so even diffuse majorities are vulnerable to political exploitation.
But this line of attack is not limited to economic regulation -- it is a general indictment of our democratic structure and its operation as pluralistic interest-group bargaining. Every law is vulnerable to this process defect, every law ought be suspect. Whether that means every law deserves strict scrutiny, like Brown effectively implies, or some heightened form of rational basis, as Barnett does, the point is that there is no reason to treat economic regulations specifically as any more likely to be the product of this general shortcoming in the system.
Thursday, April 19, 2012
Gay Masorti Rabbis in Israel
The Israeli branch of Conservative Judaism (known as Masorti Judaism) has announced it will begin ordaining gay Rabbis, following a similar decision by the American branch several years ago.
This is important, for several reasons (beyond the obvious advance for gay equality).
For starters, that this is happening in Israel has significant symbolic value. But moreover, Jewish organizations outside the US tend to be more traditional than their American counterparts (that is to say, Conservative Judaism in the US is more liberal than its analogue, Masorti Judaism, outside the US). Hence why the decision by American Conservative Jews to ordain gay Rabbis was both pathbreaking and lonely -- the non-US groups notably refused to follow along. But now they're catching up, and that's no small thing.
For starters, that this is happening in Israel has significant symbolic value. But moreover, Jewish organizations outside the US tend to be more traditional than their American counterparts (that is to say, Conservative Judaism in the US is more liberal than its analogue, Masorti Judaism, outside the US). Hence why the decision by American Conservative Jews to ordain gay Rabbis was both pathbreaking and lonely -- the non-US groups notably refused to follow along. But now they're catching up, and that's no small thing.
In the Room with Barney Frank
A fascinating interview with retiring Democratic Rep. Barney Frank (MA). My favorite part is when he talks about him telling House Speaker Rep. Tip O'Neill (D-MA) that he was planning on coming out publicly.
The whole thing is fascinating. Give it a read.
Robert Bauman had written a book in which he outed me. He incorrectly referred to somebody as my boyfriend—he wasn’t; he was a close personal friend—but he referred to me as gay. The press didn’t pick it up, but I thought, I’d better tell Tip. So I went to Tip. We were sitting on the floor, it was a bad day, we were losing the vote on the Contras, and I sat next to him. I said, “Tip, I’ve got to tell you something. Bob Bauman is coming out with a book that says I’m gay.”
“Awww, Bahney, don’t listen to that shit. You know they say these things about people.” I said, “Well, Tip, the point is it’s true.” He said, “Oh, Bahney, I’m so sad.” That’s when he told me he thought I was going to be the first Jewish speaker. He acted as if it was the end. But he was wonderfully supportive.
The final part of the story was when he told Chris Matthews, “We better get ready to talk to the press. They tell me Bahney Frank is going to come out of the room.” Matthews said, “What?” Finally he figured out Tip meant “come out of the closet.”
The whole thing is fascinating. Give it a read.
Tuesday, April 17, 2012
Cosplay for Killers
I'm a "fan" of the Assassin's Creed series on Facebook, which means their messages occasionally wander across my wall. Today, I saw one that I found interesting -- a plug for "the 1st Assassin's Creed Online Cosplay Contest."
Why do I find this odd? Well, to my lights at least, cosplay has always had the public image of being very geeky fanboy/girlish (I'm not saying I agree with this assessment, only that's how I've understood its public meaning). It's girls in anime costumes and guys with an obsession for Japanese RPGs. Assassin's Creed, by contrast, is much more of a macho man game; its advertising uses professional athletes*, incredible acrobatic feats, and, of course, the prospect of brutally dismembering half of Renaissance Italy.
Given that, I find it interesting that the game's official feed is promoting a cosplay event -- one would think they'd be more attentive to preserving the fragile egos of teen gamers for whom being associated with, ew, nerds is the last thing they want. But maybe I'm too cynical about Ubisoft. Or maybe I'm entirely misreading the cultural salience of cosplay. Thoughts?
* Funny story -- I was with my cousin when an ad for AC:Revelations came on. It showed a bunch of pro athletes in hoodies that mimicked the assassin garb, followed by "stats". The last state was for "Ezio Auditore", who, of course, is the protagonist of the series -- but my cousin just assumed he was another NBA player and was curious why he had never heard of this "Eezee-oh" guy.
Why do I find this odd? Well, to my lights at least, cosplay has always had the public image of being very geeky fanboy/girlish (I'm not saying I agree with this assessment, only that's how I've understood its public meaning). It's girls in anime costumes and guys with an obsession for Japanese RPGs. Assassin's Creed, by contrast, is much more of a macho man game; its advertising uses professional athletes*, incredible acrobatic feats, and, of course, the prospect of brutally dismembering half of Renaissance Italy.
Given that, I find it interesting that the game's official feed is promoting a cosplay event -- one would think they'd be more attentive to preserving the fragile egos of teen gamers for whom being associated with, ew, nerds is the last thing they want. But maybe I'm too cynical about Ubisoft. Or maybe I'm entirely misreading the cultural salience of cosplay. Thoughts?
* Funny story -- I was with my cousin when an ad for AC:Revelations came on. It showed a bunch of pro athletes in hoodies that mimicked the assassin garb, followed by "stats". The last state was for "Ezio Auditore", who, of course, is the protagonist of the series -- but my cousin just assumed he was another NBA player and was curious why he had never heard of this "Eezee-oh" guy.
Monday, April 16, 2012
Mad Men Thoughts
We missed parts of Mad Men last night (a thunderstorm caused the signal to cut out), but I think I got most of the important parts. Scattered thoughts:
* It was maybe a season and a half too late for maximum schadenfreude, but Pete Campbell got punched in the face! Repeatedly!
* Though Pete has been improving as a character, said schadenfreude was nonetheless amplified by his seeming retrogression this episode into the old, whiny, entitled Pete of yore.
* If you're going to get busted for adultery, chewing gum on your pubes has got to be one of the more bone-headed ways to be caught. If I'm the wife I'm equally offended for having a spouse that stupid.
* While Pete was getting punched, I couldn't help but think "Connor wouldn't have put up with this." Connor also would have never lusted after that high school senior (way, way too young).
* Why isn't Kenny a writer? Is he any good at being an accounts guy? Jill says he's not, as we don't see him bringing in any new business, I say that you also don't see any of his accounts disintegrating into ashes due to his own inattentiveness.
* When Joan was consoling Lane in his office, I shouted at the screen "Oh my God marry Joan your marriage is terrible anyway and she's single!" Immediately afterwards he kissed Joan, and I yelled "What are you doing, don't listen to me my advice sucks!"
* Pete Campbell got punched in the face!
* It was maybe a season and a half too late for maximum schadenfreude, but Pete Campbell got punched in the face! Repeatedly!
* Though Pete has been improving as a character, said schadenfreude was nonetheless amplified by his seeming retrogression this episode into the old, whiny, entitled Pete of yore.
* If you're going to get busted for adultery, chewing gum on your pubes has got to be one of the more bone-headed ways to be caught. If I'm the wife I'm equally offended for having a spouse that stupid.
* While Pete was getting punched, I couldn't help but think "Connor wouldn't have put up with this." Connor also would have never lusted after that high school senior (way, way too young).
* Why isn't Kenny a writer? Is he any good at being an accounts guy? Jill says he's not, as we don't see him bringing in any new business, I say that you also don't see any of his accounts disintegrating into ashes due to his own inattentiveness.
* When Joan was consoling Lane in his office, I shouted at the screen "Oh my God marry Joan your marriage is terrible anyway and she's single!" Immediately afterwards he kissed Joan, and I yelled "What are you doing, don't listen to me my advice sucks!"
* Pete Campbell got punched in the face!
Saturday, April 14, 2012
The Judge as Moral Arbiter
Commenting on Judge Brown's opinion that I talked about in my last post, Professor Kerr also expresses his discomfort with "the propriety of placing such views in the Federal Reporter instead of a law review or published speech." I strongly disagree -- while obviously I disagree with the content of Judge Brown's opinion, I see nothing at all improper with Judges Brown and Sentelle registering their opinion about what the law should be in their opinion about what the law is (Kerr does say he recognizes the differing views on this topic). I actually swing sharply the other way -- I'd like a stronger norm of judges doing things like this, so long as they divorce it from their legal judgment of the case.
Opinions of the form "the law is constitutional, but moronic" (or vice versa, for that matter) serve at least two important functions. First, they serve a dialogic function that can help make better law. Courts see how laws play out on the ground, this experience gives them insight on how (and whether) the law works and whether it is worth preserving. Why should the judiciary not provide the public with this perspective, parallel to (not replacing) their primary obligation to interpret the law in front of them?
But more importantly, these opinions help sap judicial decisions of unwarranted and unintended "moral endorsements" by the judiciary. When a law is upheld by a court, this usually is followed by a press release by its supporters bragging about how "this demonstrates we were right all along and this law is the bestest thing ever and totally just and fair." Of course, courts often mean to imply none of these things -- the decision might be based on anything from a jurisdictional block to a contested turn of a statute. The blurriness by which courts are seen as moral as well as judicial arbiters means that, absent language to the contrary, a favorable ruling on the law is considered to be a favorable ruling on the underlying ethical merits of the dispute.
For example, the Affordable Care Act might be perfectly constitutional and an awful, awful idea; it also might be unconstitutional and an entirely salutary and appropriate piece of legislation that nonetheless lies beyond Congress' commerce power. But, particularly if the law is struck down, that's not what we're going to hear from conservative opponents -- they will take the opinion as vindication that the law was an unconscionable socialist usurpation nipped in the bud. If the court wants to send that message, it might as well, but it should take affirmative control of what it is communicating. Judicial silence is not read neutrally -- fairly or not, amongst the public the baseline presumption at the moment is that legal victory means moral approval and legal defeat means moral disapproval. The stronger a norm there is of judges explicitly telling us what they think about the underlying policy merits of a dispute, the less likely we will be to conflate their legal discussion with a policy endorsement.
Or consider the infamous recent case where a Texas school district kicked a cheerleader off the team because she refused to cheer for a man who had assaulted her. The school district won in court; many were outraged by this, as it seemed to condone truly appalling conduct by the District. I argued that the district probably was acting perfectly legally -- but the Court should be clear to indicate its disapproval of conduct in the course of dismissing the suit. This is not just to assure the public that it still retains a conscience. It also has to do with the messages received by the parties -- what they are allowed to "take" from their victory or absorb in their defeat. The last thing we want is the school district thinking its legal victory constitutes any sort of imprimatur for their flatly inhuman conduct. Nor do we want to the message heard by the young woman in question to be "the Judicial Branch of the United States thinks you're a big ol' crybaby." The message we want to put out is that the school district is within its legal authority to act in this way, even though its actions were horrifying and demonstrate an incredible lack of empathy and prioritization that should cause all persons of conscience to question their fitness to serve.
Opinions of the form "the law is constitutional, but moronic" (or vice versa, for that matter) serve at least two important functions. First, they serve a dialogic function that can help make better law. Courts see how laws play out on the ground, this experience gives them insight on how (and whether) the law works and whether it is worth preserving. Why should the judiciary not provide the public with this perspective, parallel to (not replacing) their primary obligation to interpret the law in front of them?
But more importantly, these opinions help sap judicial decisions of unwarranted and unintended "moral endorsements" by the judiciary. When a law is upheld by a court, this usually is followed by a press release by its supporters bragging about how "this demonstrates we were right all along and this law is the bestest thing ever and totally just and fair." Of course, courts often mean to imply none of these things -- the decision might be based on anything from a jurisdictional block to a contested turn of a statute. The blurriness by which courts are seen as moral as well as judicial arbiters means that, absent language to the contrary, a favorable ruling on the law is considered to be a favorable ruling on the underlying ethical merits of the dispute.
For example, the Affordable Care Act might be perfectly constitutional and an awful, awful idea; it also might be unconstitutional and an entirely salutary and appropriate piece of legislation that nonetheless lies beyond Congress' commerce power. But, particularly if the law is struck down, that's not what we're going to hear from conservative opponents -- they will take the opinion as vindication that the law was an unconscionable socialist usurpation nipped in the bud. If the court wants to send that message, it might as well, but it should take affirmative control of what it is communicating. Judicial silence is not read neutrally -- fairly or not, amongst the public the baseline presumption at the moment is that legal victory means moral approval and legal defeat means moral disapproval. The stronger a norm there is of judges explicitly telling us what they think about the underlying policy merits of a dispute, the less likely we will be to conflate their legal discussion with a policy endorsement.
Or consider the infamous recent case where a Texas school district kicked a cheerleader off the team because she refused to cheer for a man who had assaulted her. The school district won in court; many were outraged by this, as it seemed to condone truly appalling conduct by the District. I argued that the district probably was acting perfectly legally -- but the Court should be clear to indicate its disapproval of conduct in the course of dismissing the suit. This is not just to assure the public that it still retains a conscience. It also has to do with the messages received by the parties -- what they are allowed to "take" from their victory or absorb in their defeat. The last thing we want is the school district thinking its legal victory constitutes any sort of imprimatur for their flatly inhuman conduct. Nor do we want to the message heard by the young woman in question to be "the Judicial Branch of the United States thinks you're a big ol' crybaby." The message we want to put out is that the school district is within its legal authority to act in this way, even though its actions were horrifying and demonstrate an incredible lack of empathy and prioritization that should cause all persons of conscience to question their fitness to serve.
Strict Scrutiny for All!
George Washington law professor Orin Kerr flags a concurring opinion by two arch-conservative judges on the DC circuit (Brown and Sentelle) urging the Supreme Court to return to a Lochner-style strict-scrutiny review of economic laws. The case is Hettinga v. United States:
I think -- though I'm not sure -- that they're using "cowboy capitalism" as a compliment.
Now, it should come as no surprise that I disagree with this position thoroughly. Lochner remains wrong for the same reasons Justice Holmes told us Lochner was wrong. And the story Judge Brown tells about the "political process", though not wrong on face, is both inconsistent and can't support the jurisprudential shift she's advocating.
Judge Brown's critique is basically the indictment of Carolene Products that has been in the mix since at least Bruce Ackerman's Beyond Carolene Products article in the 1980s. The idea is that small, discrete, insular groups are at an advantage in the political process because they are easier to mobilize and can overcome collective action problems. So, for example, even though there are far more milk consumers than milk producers in America, milk producers are at an advantage because they are easier to organize and have a far greater relative stake in milk laws than the diffuse and diverse community of milk "consumers". In this way, law can be and often is subject to capture by these "special interests".
There are at least two responses to this. The first is that, though this does challenge Madison's vision of factions checking factions in Federalist #10, it does not defeat it entirely. Madison may have been wrong that the majority faction always wins. But widespread fracturing may still serve a useful purpose, because it can pit small, discrete factions against each other, thus dissipating their influence. The debate over SOPA, for example, pitted not a "special interest" versus "the people". Rather, there were small factions on both sides -- content providers like the RIAA going against content distributors like Google. In that circumstance, worries about pure capture seem overblown.
But second, even if Judge Brown may well be right that most economic legislation is a series of interest group power plays, her critique tackles our democratic system in general. There's nothing really unique about economic legislation with respect to her concerns. Political ignorance is not just restricted to economic redistribution; it applies across the board. Democracy always is in a weak position to "right itself" with respect to a (potentially mythical) "common good". We are stuck in a system of pluralistic interest-group bargaining, whether we like it or not.
Hence, Judge Brown argument doesn't support strict scrutiny for economic regulation -- it supports strict scrutiny for every law Congress passes. Which may cause my libertarian friends to swoon, but which seems largely incompatible with the supposedly limited role for the judiciary as subservient to the will of the people (imperfect as it may be). And it's notable that even that stance doesn't actually fix the "problem" Judge Brown purports to be tackling, because Congress' decisions not to regulate this or that area is subject to the same interest-group pressures as their decision to regulate (as usual, activity and inactivity is not really any distinction at all). At any rate, there is no evidence that Judge Brown intends to take such a bold position -- strict scrutiny for laws prohibiting gay marriage (and laws which support it), strict scrutiny for affirmative action and for banning it, strict scrutiny for anything and everything.
What's needed is a theory for when heightened judicial solicitude is appropriate. Carolene Products attempts to provide one, but its vulnerabilities are well-taken. But that's why most modern reconstructions of Carolene focus not on "discrete" or "insular" or "minorities", but on "prejudice". This was the one element of Carolene that Ackerman did not have a solid objection to, and it's particularly important in the pluralist interest-group bargaining model because it shows why certain groups or interests may be unable to even "play the game". In essence, public choice theory tells us that being Black in America should have historically been awesome -- they're a discrete, insular minority, they should have been cleaning up in the democratic process. Why didn't they? Because prejudice against them prevented them from even participating equally in the interest-group game. They were pariahs -- it was politically helpful to hurt them and politically deadly to help them.
No true parallel exists for economic regulation. Business interests have shown no incapacity to participate in the democratic process in pursuit of their interests. Obviously no particular business wins all the time, but neither do there seem to be systematic losers placed in the subordinate position because they're simply disliked.
Judge Brown doesn't promote any such theory. What she does have is an aria in praise of free market capitalism. But regrettably, the Constitution still doesn't enact Mr. Herbert Spencer's Social Statics. There is nothing in the Constitution that even presumes free market capitalism leads to the common good. Nor, for that matter, is there anything in the Constitution that presumes that the choices a free democratic society makes will be in pursuit of the common good, though the hope that it does I think is implicit in it.
Indeed, "common good" may be chimerical altogether. All Judge Brown is doing is redistributing the results of the interest-group game away from some and in favor of others more to her political tastes. But neither the Constitution, nor democratic theory, makes any provision for this. It's pure policy, nothing more.
(I have a second post going up dealing with a different part of Kerr's post -- where he questions the propriety of Judge Brown even writing an opinion like this -- which you can find here. While I disagree with the content of Judge Brown's concurrence, opinions of this type I think are quite valuable, for reasons I explain in-post.).
UPDATE: I respond to Professor Barnett's reply in a new post here.
America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.
First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even mprovident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.
As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. . . .
The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).
The hope of correction at the ballot box is purely illusory. See generally Ilya Somin, Political Ignorance and the Counter-Majoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004). In an earlier century, H. L. Mencken offered a blunt assessment of that option: “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” On Politics: A Carnival of Buncombe 331 (1996). And, as the Hettingas can attest, it’s no good hoping the process will heal itself. Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’” Anthony De Jasay, The State 226 (1998). The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. See id. at 248. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.
I think -- though I'm not sure -- that they're using "cowboy capitalism" as a compliment.
Now, it should come as no surprise that I disagree with this position thoroughly. Lochner remains wrong for the same reasons Justice Holmes told us Lochner was wrong. And the story Judge Brown tells about the "political process", though not wrong on face, is both inconsistent and can't support the jurisprudential shift she's advocating.
Judge Brown's critique is basically the indictment of Carolene Products that has been in the mix since at least Bruce Ackerman's Beyond Carolene Products article in the 1980s. The idea is that small, discrete, insular groups are at an advantage in the political process because they are easier to mobilize and can overcome collective action problems. So, for example, even though there are far more milk consumers than milk producers in America, milk producers are at an advantage because they are easier to organize and have a far greater relative stake in milk laws than the diffuse and diverse community of milk "consumers". In this way, law can be and often is subject to capture by these "special interests".
There are at least two responses to this. The first is that, though this does challenge Madison's vision of factions checking factions in Federalist #10, it does not defeat it entirely. Madison may have been wrong that the majority faction always wins. But widespread fracturing may still serve a useful purpose, because it can pit small, discrete factions against each other, thus dissipating their influence. The debate over SOPA, for example, pitted not a "special interest" versus "the people". Rather, there were small factions on both sides -- content providers like the RIAA going against content distributors like Google. In that circumstance, worries about pure capture seem overblown.
But second, even if Judge Brown may well be right that most economic legislation is a series of interest group power plays, her critique tackles our democratic system in general. There's nothing really unique about economic legislation with respect to her concerns. Political ignorance is not just restricted to economic redistribution; it applies across the board. Democracy always is in a weak position to "right itself" with respect to a (potentially mythical) "common good". We are stuck in a system of pluralistic interest-group bargaining, whether we like it or not.
Hence, Judge Brown argument doesn't support strict scrutiny for economic regulation -- it supports strict scrutiny for every law Congress passes. Which may cause my libertarian friends to swoon, but which seems largely incompatible with the supposedly limited role for the judiciary as subservient to the will of the people (imperfect as it may be). And it's notable that even that stance doesn't actually fix the "problem" Judge Brown purports to be tackling, because Congress' decisions not to regulate this or that area is subject to the same interest-group pressures as their decision to regulate (as usual, activity and inactivity is not really any distinction at all). At any rate, there is no evidence that Judge Brown intends to take such a bold position -- strict scrutiny for laws prohibiting gay marriage (and laws which support it), strict scrutiny for affirmative action and for banning it, strict scrutiny for anything and everything.
What's needed is a theory for when heightened judicial solicitude is appropriate. Carolene Products attempts to provide one, but its vulnerabilities are well-taken. But that's why most modern reconstructions of Carolene focus not on "discrete" or "insular" or "minorities", but on "prejudice". This was the one element of Carolene that Ackerman did not have a solid objection to, and it's particularly important in the pluralist interest-group bargaining model because it shows why certain groups or interests may be unable to even "play the game". In essence, public choice theory tells us that being Black in America should have historically been awesome -- they're a discrete, insular minority, they should have been cleaning up in the democratic process. Why didn't they? Because prejudice against them prevented them from even participating equally in the interest-group game. They were pariahs -- it was politically helpful to hurt them and politically deadly to help them.
No true parallel exists for economic regulation. Business interests have shown no incapacity to participate in the democratic process in pursuit of their interests. Obviously no particular business wins all the time, but neither do there seem to be systematic losers placed in the subordinate position because they're simply disliked.
Judge Brown doesn't promote any such theory. What she does have is an aria in praise of free market capitalism. But regrettably, the Constitution still doesn't enact Mr. Herbert Spencer's Social Statics. There is nothing in the Constitution that even presumes free market capitalism leads to the common good. Nor, for that matter, is there anything in the Constitution that presumes that the choices a free democratic society makes will be in pursuit of the common good, though the hope that it does I think is implicit in it.
Indeed, "common good" may be chimerical altogether. All Judge Brown is doing is redistributing the results of the interest-group game away from some and in favor of others more to her political tastes. But neither the Constitution, nor democratic theory, makes any provision for this. It's pure policy, nothing more.
(I have a second post going up dealing with a different part of Kerr's post -- where he questions the propriety of Judge Brown even writing an opinion like this -- which you can find here. While I disagree with the content of Judge Brown's concurrence, opinions of this type I think are quite valuable, for reasons I explain in-post.).
UPDATE: I respond to Professor Barnett's reply in a new post here.
Friday, April 13, 2012
Throw the Jew Down the Well!
A Pennsylvania state Republican conference is in hot water after a band playing at the event started spouting lyrics like "We’re fighting the corruption of the Jewish banks but when the Jews come to feed us, we always say thanks."
The band apparently was trying to satirize the Occupy Wall Street movement which ... I dunno, maybe? That the OWS is targeting "Jewish banks" is little more than a smear, but it's one I've heard of so it makes sense that it'd appear inthe fever swamp a respected gathering of Pennsylvania Republicans. But that second part refers to ... what exactly? Jewish philanthropy? Prominent Jewish membership and in support for OWS? I have no idea.
The band apparently was trying to satirize the Occupy Wall Street movement which ... I dunno, maybe? That the OWS is targeting "Jewish banks" is little more than a smear, but it's one I've heard of so it makes sense that it'd appear in
Booker Saves the Day
How does a rising superstar mayor who already has uncountable superlatives attached to his name up the ante? By rescuing a woman from a burning building, Spiderman-style.
UPDATE: Vermont Governor Peter Shumlin (D) tries to imitate by attempting to chase off four bears raiding his property, but was unsuccessful (and nearly devoured).
No, I'm not making any of that update up.
UPDATE: Vermont Governor Peter Shumlin (D) tries to imitate by attempting to chase off four bears raiding his property, but was unsuccessful (and nearly devoured).
No, I'm not making any of that update up.
Wednesday, April 11, 2012
I Have in My Hand....
Rep. Allen West (R-FL) claims that "he's heard" up to 80 U.S. House Democrats are Communist Party members. Naturally, he wouldn't name names.
So let me talk about some of the things I've "heard" about Rep. West. He was forced out of the Army after abusing a bound detainee. He's urged top military officials to resign rather than follow the President's orders. He considers Islam the enemy. He says the President is a "low-level socialist agitator" and that Rep. Debbie Wasserman-Schulz (D-FL) is "not a Lady, therefore, shall not be afforded due respect from me!" And he thinks Blacks are being kept on a modern-day "plantation" by the Democratic Party.
The difference is that, unlike Rep. West, I can back up what I've heard.
So let me talk about some of the things I've "heard" about Rep. West. He was forced out of the Army after abusing a bound detainee. He's urged top military officials to resign rather than follow the President's orders. He considers Islam the enemy. He says the President is a "low-level socialist agitator" and that Rep. Debbie Wasserman-Schulz (D-FL) is "not a Lady, therefore, shall not be afforded due respect from me!" And he thinks Blacks are being kept on a modern-day "plantation" by the Democratic Party.
The difference is that, unlike Rep. West, I can back up what I've heard.
Tuesday, April 10, 2012
Publication Announcement
I am pleased to announce that my essay, The Perils and Promise of the Holder Memo, has been published in 2012 Cardozo L. Rev. de novo 187. You can read the whole symposium, entitled DOMA after the Holder Memo, at the Cardozo Law Review website.
My thanks to the hard work from the Cardozo editors, and congratulations to them on putting out a great issue!
My thanks to the hard work from the Cardozo editors, and congratulations to them on putting out a great issue!
Monday, April 09, 2012
Palestinian Group "Evicts" Jewish Students
A pro-Palestinian student group at Florida Atlantic University sent mock eviction notices to 200 FAU Jewish students, allegedly as a commentary on Palestinian home demolitions Israel has undertaken over the past several decades. The notices were apparently close enough to the real thing (including the unauthorized use of the FAU housing department's official stamp) to fool some of the students into thinking they were actually being evicted, and FAU is opening an investigation into the incident (which also may have violated the law). The flyers were distributed on the first night of Passover.
And, since it might have skated by -- these notices apparently targeted Jewish students. Not Israeli students, not "pro-Israel" students, but Jewish students.
Not that it matters. In the eyes of some, so long as there is an Israel whose policies can be opposed, Jews don't have any rights to speak of. It's "opposing Israeli policies", and so it's all good.
UPDATE: Further reporting indicates that Jewish students were not specifically targeted.
And, since it might have skated by -- these notices apparently targeted Jewish students. Not Israeli students, not "pro-Israel" students, but Jewish students.
Not that it matters. In the eyes of some, so long as there is an Israel whose policies can be opposed, Jews don't have any rights to speak of. It's "opposing Israeli policies", and so it's all good.
UPDATE: Further reporting indicates that Jewish students were not specifically targeted.
Saturday, April 07, 2012
Cracking Down on Terrorists Reduces Terrorism
This is an interesting piece in Ha'aretz about efforts by the Shin Bet -- Israel's internal security service -- to crack down on far-right Jewish terrorists. Responding to increasingly brazen acts by these "price tag" militants, the Shin Bet was authorized to, in essence, treat them more akin to the Palestinian terrorists they resemble in every relevant respect. And after arresting over a dozen of the top leaders in the movement, violence against Palestinians has fallen.
It's not just depriving the beast of its head that's doing the work here. As the article relates, the right-wingers "thought they were immune to charges, but we surprised them." Basically, they believed in the culture of impunity, and acted accordingly. Once the Shin Bet sent a signal that the old rules didn't apply, the terrorists were taken aback and, at the very least, have been forced to regroup. This is a good thing.
It's not just depriving the beast of its head that's doing the work here. As the article relates, the right-wingers "thought they were immune to charges, but we surprised them." Basically, they believed in the culture of impunity, and acted accordingly. Once the Shin Bet sent a signal that the old rules didn't apply, the terrorists were taken aback and, at the very least, have been forced to regroup. This is a good thing.
Thursday, April 05, 2012
Took You Long Enough
Who's to blame for Trayvon Martin's killing (and the non-arrest of the shooter, George Zimmerman)? Why the Jews, of course! Something about "Zimmerman" sounding kinda Jew-y and the ADL wants to give Jews carte blanche authority to murder "goyim" and free Palestine and the Southern Poverty Law Center is in on it too and oh who the hell cares. That is, unless the problem is the Jew-owned media perpetuating a fraud on the public by slandering an innocent White man who rightfully gunned down a drug-dealing thug in his backyard. One or the other.
Incoherence aside (or taken for granted), I'm just disappointed at the delay. I mean, it's been weeks since this story broke, and we're only now getting to the Jewish conspiracy element? I think folks are slipping.
Incoherence aside (or taken for granted), I'm just disappointed at the delay. I mean, it's been weeks since this story broke, and we're only now getting to the Jewish conspiracy element? I think folks are slipping.
Subscribe to:
Posts (Atom)
