At Least Get Your Stupid Slavery Analogies Right

Scott Walker's newest appointee to the Wisconsin Supreme Court, Daniel Kelly, had the following to say about affirmative action:

"Affirmative action and slavery differ, obviously, in significant ways," Kelly wrote. "But it's more a question of degree than principle, for they both spring from the same taproot. Neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship. Morally, and as a matter of law, they are the same."

First, let's clarify that this passage wasn't something Kelly wrote as a drunk sophomore in his university's "alternative" political magazine. He wrote it in 2014, and he included it in his Supreme Court application packet. This is an argument he is proud of.

And that aggravates me. For the obvious reasons, sure, but more because this isn't even the right way of making an idiotic analogy between affirmative action and slavery. The right way of doing that is something to the effect of "both involve the distribution of social benefits and burdens on the basis of skin color." That wouldn't make the conclusion that "Morally, and as a matter of law, they are the same" any less appalling, but at least it would have an internal consistency to it.

But Kelly can't even get that right. Affirmative action very rarely "force[s] someone into an unwanted economic relationship." Much the opposite -- typically affirmative action programs are voluntarily adopted by given institutions (e.g., the University of Wisconsin), and then challenged by external actors who want them instead to use a colorblind admissions/hiring process -- or, to put it another way, want the judiciary to force them into an economic transaction that differs from the one that the university or business would want to enter into if left to its own devices.

This is why I find it so baffling when libertarians say they oppose affirmative action. It takes either a private or quasi-private (where a governmental actor is behaving as a "market-participant") decision, and strips it from the normal decisionmaker in favor of a blanket command-and-control rule imposed by governmental fiat. Libertarians should hate that!

Actually, it seems evident that Kelly simply got his issues confused. The argument he's making has been applied to cherished elements of the civil rights project before -- but it's the Civil Rights Act of 1964 that's been the target (Rand Paul made precisely the argument that this law, by prohibiting racial discrimination in various economic transactions, "force[s] someone into an unwanted economic relationship."). So really Kelly should be arguing that its the Civil Rights Act that is "[m]orally, and as a matter of law" the same as slavery.

In conclusion, Kelly probably won't choke anybody, so he'll still likely be a net boon on the Wisconsin Supreme Court compared to the guy he's replacing.

Sweeping Constitutional Text Aside, Virginia Supreme Court Invalidates Voting Rights Restoration

Earlier this year, Virginia Governor Terry McAullife used his executive powers to restore the voting rights to thousands of ex-felons who had finished their prison term, parole, and/or probation. Today, in a 4-3 decision, the Virginia Supreme Court invalidated the measure -- re-disenfranchising thousands of Virginians. This, simply put, is legally outrageous.

The relevant constitutional clause seems straight-forward enough: Article II, Section 1 of the Virginia Constitution informs us that "No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority." Governor McAullife issued an order which restored voting rights to all persons convicted of a felony who had completed all portions of their sentence (including any parole or probation periods). One would think that would be that -- the constitutional text is clear, and so there is no further work to be done.

But no, says the Court. The structure of this provision indicates that felon re-enfranchisement is meant to be an exception to the rule. The Governor's blanket restoration of voting rights turns the rule into the exception -- effectively becoming a suspension of the constitutional mandate that felons normally experience a lifetime bar on voting.

This, to put it mildly, is jaw-dropping in its reach. It's not just that it is obviously extra-textual -- although it is. It's that it is obviously extra-textual without being bounded by anything that purports to be a judicially enforceable rule or standard for when the governor can exercise his re-enfranchisement power. We're told he can't do it in a "blanket" proceeding -- everybody, all at once. It is presumably evident, though, that the Governor maintains his authority to exercise his enfranchisement authority individually -- or even in groups. So we're left with a "how many grains make a heap" problem that is not conducive to any non-arbitrary answer. Reportedly, 11,000 persons have already registered to vote under Gov. McAullife's order (out of over 200,000 became eligible) and now will have their registration's purged. It seems to me that Governor McAullife's next move should be just be to restore voting rights to those 11,000 (if the Court is as concerned as it claims to be regarding the fact that McAullife didn't include their individual names, I'm sure judicious use of the ol' autopen could resolve that). Would that act convert the rule into the exception? Who knows -- this opinion certainly provides no guidance on the matter. The very fact that we could get caught in this sort of infinite ping-pong match between executive and judiciary without any hints as to where the Governor's authority ends is proof positive of the radically unprincipled nature of the Court's decision.

This, alone, would make for a good reason to defer to a member of one of those democratic branches the Court recognizes ought to be the default site for these sorts of political disputes. Yet the Court shows an astonishing lack of deference to its democratically-accountable fellow. Why? Well, the Court says, apparently no other Governor has used its enfranchisement authority in this sort of sweeping, broad manner; it infers that if such a power did exist, some other Virginia Governor would have exercised it by now. It seems evident that an equally-plausible alternative explanation exists, which is that no governor until now felt particularly interested in blanket reenfranchisement. This, after all, is a decision fraught with political risk, and therefore is perfectly guarded by regular political checks. If Virginia voters find blanket voting restorations intolerable, they are welcome to make their voices known in the next gubernatorial election. This is not the sort of decision that is either benefited by nor amenable to being taken out of the political arena shunted into the judiciary.

Indeed, it strikes me that this case represents the essence of the so-called "political questions" that Courts would be better off leaving aside for the democratic branches (here, the governor's office) to handle. In Baker v. Carr, the Supreme Court outlined the factors which point towards a controversy being nonjusticiable as a poltical question. The first two (and in my view the most important two) are

1. A textually demonstrable constitutional commitment of the issue to a coordinate political department; and
2. A lack of judicially discoverable and manageable standards for resolving it.

The Virginia Constitution textually delegates the issue of felon reenfranchisement to the Governor's office, and there is no (and the Court does not even purport to provide) judicially manageable standard for administering the rule/exception doctrine the Court purports to lay out. The Court picking apart whether the Governor's "exceptions" are "exceptional" enough is precisely the sort of judicial micromanaging of an executive function that (to draw again from Baker) "express[es] lack of the respect due [to] coordinate branches of government." Basic recognition of the limits of the judicial role, if nothing else, should have convinced the Court to keep out of this thicket. Now, it is likely stuck in a morass of its own devise. I hope that Governor McAullife uses the power that he does have -- whatever that might be, since lord knows this decision blurs things up nicely -- to at least get those persons who already tried to register back on the rolls.

UPDATE: Looks like McAuliffe is going to try to restore voting rights one-by-one, if necessary. Bold move.

Taking Clients Seriously

A criminal defendant facing charges after a gun and drugs were found in his dorm room tells his attorney he was framed. The attorney was dubious -- sure you were -- but has the resources to check out his client's story. Turns out, the client was almost certainly right. After relaying this tale (taken from his own professional experience), Ken White writes the following:

Being an effective and responsible criminal defense attorney doesn't require believing everything a client says, exactly. The policy could be better described as "trust, but verify." The key isn't to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don't, you're not defending the client — you're defending your stereotype of the client.

I find it interesting that White's advice here parallels almost exactly my own advice vis-a-vis how we should respond to persons making discrimination claims.  And I don't think it is accidental that the claimants in either scenario -- minorities and marginalized persons, persons accused of crimes (these categories, of course, often intersect) -- are typically persons who tend to be given less credibility as a default; whom society tells it is okay to assume are not worth taking seriously.

"Consent" Isn't Consent If You Have To Consent To Everything

Radley Balko provides a worrisome story regarding the advice the Waterbury, Connecticut police chief gave to a largely black audience regarding how to interact with police:

If an officer stops your car, if they ask to search your person or vehicle, if they demand entry into your home, comply and then complain later to the department’s internal affairs office and police chief’s office if you feel your rights have been violated, [Chief Vernon] Riddick said.

Balko gives a host of reasons why this is an outrageous piece of advice to give. But I'll focus on one: If you consent to a search of your person or vehicle or home, that search is now legal. If the police ask to search you and you agree to it -- even if there's no probable cause, even if there's no warrant -- that search is entirely valid and admissible. There wouldn't be anything to complain to IA about -- at least with respect to the search.

There is plenty of scholarship which suggests that this entire notion of "consent" is more than a little fictitious. If a police officer is talking with you on the sidewalk and asks if he can take a look inside your bag, reflect on how likely you are to say "sorry, no" and walk away. Now think of how much that instinct is compounded if your city's chief of police has just publicly announced that the way to have a safe and healthy relationship with the officers under his command is to "consent" to everything they ask and then complain about it later. Is it realistic to say that any "consensual" searches in that context actually evince "consent" in any meaningful capacity?

This advice is entirely unbecoming of person tasked with enforcing the law in a nation where the Constitution is the most important law of all. There are plenty of lawful commands the police have the right to issue which you should obey; including some of which the right move is to obey and then challenge later. But when it comes to a search request in a scenario where there's no warrant and no exigent circumstances, consenting to the search permanently obliterates your right to challenge it.

The Trump Movement's Dark Reflective Equilibrium

All of us have certain broad principles of justice we claim to adhere to. All of us, equally, have a variety of individualized judgments we make on the particular moral cases and controversies we might consider on a daily basis. Needless to say, sometimes our broad principles and our particular judgments don't precisely line up. In such cases, we can either modify the principle to account for the particular judgment or modify our case-specific judgments so they match the principle. Neither move is inherently more or less legitimate than the other -- sometimes reference back to a broad principle can tell us that our assessment of an individual case is mistaken, other times the exigencies of a concrete scenario can illuminate a flaw or inadequacies in our principles. The process of moving back in forth between the general and the specific, trying to bring the two into alignment, is known as "reflective equilibrium".

The rise of Donald Trump -- openly racist, avowedly xenophobic, deeply misogynistic, contemptuous of the very idea of rule of law -- has made me rethink some very basic assumptions I had about the American polity. Most notably, it raised the question about whether racism really had just gone to ground -- people's views not so much changing from the 1960s as being covered up until the moment was right. Yet it remained difficult for me to accept the idea that nothing changed, that this was simply the people getting what they always wanted. Was it really the case that a good 45% or so of Americans had always been secretly thirsting for far-right autocracy, awaiting only the right standard-bearer? Did bedrock American values regarding rule of law, regarding basic temperament for office, regarding human rights and liberties, really have so little purchase?

As I've been thinking about it, I've wondered if we are witnessing folks go through the reflective equilibrium, darkly. Many Americans, it is clear, held some pretty brutal case-specific views regarding social outgroups -- including mass deportations of immigrants and religious tests on public office. And Trump stood before them and endorsed those views loud and clear, but also was unyielding in identifying the principles that such particularistic views were and were not compatible with. Even the time-worn platitudes about colorblindness wouldn't do. And people, as reflective equilibrium would predict, adjusted their principles accordingly. And in doing so, well, that made certain other, still more radical specific proposals seem a little less out-of-bounds. Maybe we should endorse violence against protesters. Maybe it's okay to lob Holocaust imagery at Jewish journalists. And back-and-forth we go, the boat rocking ever-steadily towards fascism.

When I fret about a Donald Trump presidency, the first thing that springs to my mind is not a particular policy -- as abhorrent as I'm sure I'd find most of them. It's a question of more fundamental principle: the very idea of "rule of law". If a court tells Donald Trump he can't do something, can anyone say with confidence he'll listen? Does he believe, in any meaningful sense, in limited authority when he's the authority? Does he believe he's constrained by the rules, orders, statutes, cases, precedents? This charge -- thrown with such reckless abandon at Hillary Clinton ("there’s no politician who has been at the center of so many scandals that have turned out to be worth so little") -- is a very real concern when it comes to Trump. This is not someone who will work the system in a way I'd cluck my tongue at. This is a guy who may well destroy the system if it doesn't bend to his every whim.

The scariest thing about the Trump movement, then, is not that its adherents don't see how their man flouts the conventions that keep America's constitutional system afloat. The scariest thing is the prospect that they do see it, and they're simply okay with it -- those values and principles aren't what guides them anymore. To support Trump and his specific policies would require tossing out significant swaths of what makes America recognizable as a constitutional democracy. And so, on reflection, they reached a new equilibrium.

"Should" Leftists Vote for Jill Stein?

A question that pops up periodically on my social media account is whether folks on the lefter-side of the left-spectrum "should" vote for Jill Stein come November. Persons answering no typically accuse their Jill-curious fellows of being selfish or of not actually caring about progressive outcomes (on the theory that their decision risks throwing the election to Trump). Persons answering yes sometimes make the trivial -- and uncontested -- point that everyone has the right to vote for whomever they want. But more often they make more serious arguments, such as the contention that politicians are not owed anyone's vote but have to earn them, or that given their political positions Clinton and Trump are not meaningfully distinct from one another.

My instinct, on reading these innumerable back-and-forths, has always been to dismiss the inclination to vote Stein as one only possessed by political imbeciles. But recently, it struck me that perhaps part of the problem with the discourse here was the conflation of more than one type of question. To illustrate this, consider a different voter asking if he should support Donald Trump. To simplify, let's say this voter's political views are as follows:

1. By far, the thing he cares about most is insuring the absolute minimum amount of federal regulation on big business. He thinks Wall Street should be able to do effectively whatever it wants.
2. If it were up to him, he would not be building an immigration wall or engaging in mass deportations of Muslims, but the issue is of comparatively little importance when weighed against his views on business deregulation.

"Should" this person vote for Trump? On the one hand, we could say "obviously yes" -- Donald Trump matches his policy preferences far better than Hillary Clinton does, and voting for Trump is the best way to bring his political desires into reality. On the other hand, we could as easily say "obviously no," for the simple reason that his policy views are substantively terrible. His preferences are bad and he should feel bad for having them.

The discourse regarding left-wingers voting for Stein likewise blurs these understandings of "should". To be sure, sometimes there is just pure confusion at play -- someone's positions are perfectly compatible with Clinton's but for whatever reason they're in denial about it. That said, there absolutely are sets of preferences where it makes more sense to cast a ballot for Jill Stein than Hillary Clinton. However, given the realities of American electoral politics (at least for voters in battleground states), these preferences would have to include general apathy regarding whatever chaos Trump would wreak upon America and the world -- including another generation of GOP dominance on the Supreme Court, massive rollbacks of labor and environmental regulations, evisceration of reproductive rights, probable crackdowns on racial and religious outgroups (the list goes on) -- at least as compared to the "message" voting Green would send.

Someone who is okay with that calculus -- that is, who finds the possibility of all the terrible things a Trump presidency would bring about less significant than whatever expressive joy or moral satisfaction they get from casting their Stein vote -- can reasonably say they "should" vote for Stein in the sense that she better maps onto their actual preferences, just as a right-wing corporate hack who doesn't even care about the lipservice they give to "colorblindness" "should" vote for Trump. But they "shouldn't" vote for her in the sense that this view is normatively appalling and is worthy of significant scorn, as is that held by our hypothetical Trump voter.

Part of the confusion, of course, stems from the fact that many in Camp Stein fervently contend that they do care a lot about the aforementioned litany of horribles, even as their actual behavior shows that they care about it less than "sending a message" or "rejecting the two-party system" or whatever. They sometimes try to square this circle by suggesting that Trump and Clinton are not meaningfully distinct from one another in the America their presidencies will produce. Once again, sometimes this is just confusion of the normal kind -- not having any clear sense of the actual havoc a Trump presidency could wreak (see "Meh, the Supreme Court will block anything too terrible" -- how adorable). But sometimes it can reflect a cohesive position. If you actually think, as Cornel West apparently does, the "neoliberal" and "neofascist" are morally indistinguishable from one another, then it may well be that the gaps between a Clinton and Trump presidency will likewise not strike you as morally relevant. But once again, while someone who thinks that way may in some sense be perfectly justified in casting a Stein ballot, the real problem with is that the analytical steps that lead to that conclusion are substantively awful.

Things People Blame the Jews For, Volume XXVIII: The Coup Attempt in Turkey

As news broke of an attempted coup in Turkey last night, my mind went to many places. I worried about regional stability, about the implications for democracy in the Middle East, about the risk of repression and crackdowns regardless of who ended up prevailing, and about the persons living through what must have been a scary and tumultuous evening throughout the nation. I also thought of this series, and wondered who will be the first to go all "Zionist plot" as an explainer.

Odd as it may be to hear, I was actually modestly hopeful that we might get a pass on this one. Certainly, Recep Tayyip Erdoğan has not always had the friendliest relationship with Israel. But we're only a few weeks removed from a historic deal to restore ties between the two nations. Israel has never had more reason to like President Erdoğan than they do at this moment. Of all the times it might make sense for them to support a coup (not that I think they would), now is the least sensible.

Alas, sensibility is not the theme of this series:

Re turkey there was some kind of israeli connection as well as the apparent Egyptian connection judging by headlines https://t.co/4mhNNtqA4h

— Daoud Kuttab (@daoudkuttab) July 16, 2016

Interesting. https://t.co/Q4Ic6RNdff

— Ali Abunimah (@AliAbunimah) July 16, 2016

The link chain ends up taking us to this article in Ha'aretz, which informs us that one of the six senior officers arrested in the aftermath of the coup attempt had served as Turkey's military attache to Israel .... almost 20 years ago.

Now sure, that may seem like a tenuous connection. But you don't control the world for thousands and thousands of years without knowing how to play the long game. Good sleuthing, everyone -- you've solved the puzzle (except, you know, for the "why would Israel back a coup attempt against a leader with whom they just signed a major deal" bit).

BLM and ISIS To Partner, Says Black Sheriff

An ongoing area of fascination for me is situations where a member of a minority or marginalized group dissents from the mainstream position of his or her fellow members of said group, where that position is taken to be central to the group's survival or equal standing in the community. In that vein, I present the comments of Milwaukee County Sheriff David A. Clarke Jr., himself an African-American man:

Milwaukee County Sheriff David A. Clarke, Jr., says he believes the Black Lives Matter movement will team up with the so-called Islamic State to destroy the United States. Clark, who is black, is a frequent guest on Fox News and often attacks the minority activism group. “Before long, Black Lies Matter will join forces with ISIS to being down our legal constituted [sic] republic,” he tweeted late Tuesday evening. “You heard it first here.” Several hours later, he followed up with another word of confidence: “I have been right on every call I have made about these subversives. I will be right again.” 

I think that, if these comments were made by a white police official, we would feel quite comfortable chalking them up to racist sentiment. How is that assessment altered when the speaker is black? And how, as a white person, should one interact with such a statement in a fair and equitable manner?

I ask those questions because I think they're genuinely interesting questions. On the one hand, respect for minorities means respecting their right to form independent judgments that may diverge quite significantly from those of their fellows. On the other hand, requiring a rule of unanimity regarding "what is racism" (or other forms of oppression) is another way of saying "nothing can ever be racist." There will never be uniformity. Likewise, I don't view it as my place as a white person to police the boundaries of what is and isn't a legitimate black opinion. On the other hand, I think there would be something clearly askance if a white person structured their interracial relations by simply finding a dissident minority wing of black persons who agree with their prefigured positions, and use their presence as a means of avoiding a broader reckoning with the other community.

Again, no answers in this post -- just questions worth pondering.

Irrelevant Public Figure A Endorses Irrelevant Public Figure B

Cornel West has officially announced he is endorsing Jill Stein for President, denouncing the woman Bernie Sanders endorsed as a "neo-liberal disaster." (I guess Donald Trump's "authenticity" wasn't enough to win him over). I'm just glad someone who is committed to the practicalities of making progressive change happen was on the Democratic platform committee. One wouldn't have wanted such a valuable slot taken up by someone still infuriated that President Obama doesn't recognize his personal aura of eminence.

Water Under the Bridge

Bernie Sanders has officially endorsed Hillary Clinton. That having happened, there are only a few things to say.

Any closely contested primary -- as this one was -- is going to have moments of bitterness and animosity. There were certainly times, towards the end, where I thought Sen. Sanders was veering too far into grudge territory. But both his conduct and my assessment of his conduct were made in the heat of the moment. Now that we're out the other side, I'll say again that -- my support for Clinton notiwithstanding -- I think Sen. Sanders made the Democratic Party stronger by running. I think he effectively leveraged his considerable successes to bring about genuine and positive changes in the Democratic Party platform -- the most progressive in the Party's history. By mobilizing the left flank of the Party, he'll help ensure that Hillary Clinton is a more effective and more progressive president than she otherwise would be -- not because she yearns to be a neoconservative hack, but because politicians respond to organized pressure and too frequently the left shuns political organization.

I also suspect that the vast majority of Sanders voters will come home to Clinton -- as they should: The gap between him and Hillary Clinton is minuscule compared to the chasm between either of them and Donald Trump. Of course there are some dead-enders who are making a lot of noise right now -- that, too, is typical in a closely-contested and bitter primary (remember PUMAs?). But they're a distinct minority that misconstrues the key lesson of the Sanders campaign. Sen. Sanders shows that if you push inside the system -- he ran as a Democratic, not a quixotic independent vanity run -- you can bring about genuine progressive reforms. If your purity is too precious to even fathom compromising with 85% of your side of the political spectrum (let alone the country), you usually end up with nothing.

So as far as I'm concerned, any bad feelings or ill will is water under the bridge. Senator Sanders ran a good, strong campaign that accomplished many things he can be proud of. Focus on that, and focus on bringing about the electoral outcome come November that will best turn those political accomplishments into genuine policy reforms.

GOP Not So Interested in Adhering to Pro-Israel Redlines

Ignoring objections by, among others, AIPAC, the GOP has dropped from its party platform any support for a two-state solution to the Israeli/Palestinian conflict. We've remarked on how this is nominally a redline for who is considered "pro-Israel" -- remarks that near-invariably come tied to an observation that this constraint is imposed only on the left, not the right. And one suspects we'll see it here again -- despite engendering opposition by virtually the entirety of the pro-Israel spectrum, I suspect we'll wait in vain for any editorials proclaiming that the Republican Party is now the anti-Israel party.

Of course, political realities are what they are, and one can understand why major Jewish and pro-Israel groups need to keep pacified one of America's two major parties, even when it seems wholly uninterested in actually listening to what Jews and pro-Israel activists have to say. But if nothing else, perhaps this can cause us to dispense with the fiction that Republicans are listening to Jewish voices whilst Democrats failed to do so. GOP Israel policy is, at this point, almost entirely divorced from what American Jews desire it to be. They're open about that fact, they're proud about that fact, and its time for pundits to forthrightly acknowledge that fact.

"Trigger Warning" -- That Phrase Apparently Doesn't Mean Anything

Jerry Coyne, writing in The New Republic, inadvertently summarizes what I consider the ur-feature of all writing on "trigger warnings" (this is apparently from last year, but TNR's Facebook feed decided I should read it now). Discussing a call from some students to provide a trigger warning for Ovid’s “Metamorphoses" due to its graphic depiction of sexual assault (a student survivor who expressed concerns about how the material was presented said she felt "dismissed" by her professor), Coyne writes the following sentence:

That professor was clearly wrong to dismiss the student, and perhaps he or she might have mentioned beforehand that there is violence and sexual assault in Ovid, but that’s as far as I’d go.

So, Coyne would go as far as giving advance notice that their might be troublesome material in the selected readings. Or, put another way, we might say he'd "warn" his students about content which might "trigger" them.

But a "trigger warning"? Heaven forfend!

Given what Coyne agrees would have been appropriate, I confess its no longer clear to me what he thinks a "trigger warning" is. But you can be sure that the ensuing 10 paragraphs will explain why -- whatever it is -- it's the beginning of academic fascism the likes of which threaten the very foundations of the American university.

Marco Rubio's Good Statement on Police Shootings; Bad Statement on Guns

I always try to give credit where it's due, and I'll thus give Sen. Marco Rubio (R-FL) credit for a stronger-than-expected statement regarding police shootings:

"Those of us who are not African-American will never fully understand the experience of being black in America," he said. "But we should all understand why our fellow Americans in the black community are angry at the images of an African-American man with no criminal record, who was pulled over with a busted tail light, slumped in his car seat and dying while his four year old daughter watches from the backseat." 

He was referring to Philando Castile, the man killed Thursday in a Twin Cities suburb. Alton Sterling was shot Wednesday in Baton Rouge. 

"There are communities in this country that have a terrible relationship with their local law enforcement. We need to recognize that," he said. "We also need recognize that law enforcement officers in this country are truly among the best that we have. What these people do on a regular basis, you never hear about it. You never hear about the great things they do. No one is capturing that on video or online. It's only when some bad actor or some bad incident occurs we hear something about it."

 On the other hand, this came contemporaneously with him saying "I'm not sure there's a law we can pass" to staunch the flow of gun violence. He argued that the Dallas shooting -- where of course, the victims had guns -- did not falsify the tired "if only everybody was armed" contention because "This is a very unique situation, You have snipers that are in rooftops, picking off police officers -- a very difficult situation." The report continues:

The officers were armed, Rubio conceded, but didn't know who was firing at them or from where. "The police officers found themselves in a very vulnerable situation: They are wearing uniforms," he said.

It is not immediately obvious to me that, in the relevant respects, this is all that unique. One suspects there are many circumstances where it will not be immediately obvious who is firing or from where, or who is the good guy with the gun versus the bad guy with the gun. One further suspects that the difficulty of ascertaining who is who will increase, not dissipate, the more people who are packing. Finally, recent experience makes me pretty confident that the way we'll resolve these difficulties is be simply assuming brown people are the bad guys. Which is to say, we'll persist in our all-too-normal status quo of black men being automatically treated as threats -- all the more so when they're carrying a gun.

The Whites-Only Second Amendment

Believe it or not, I've never been an anti-gun zealot. I've fired a gun before, once, at camp (it had a shooting range) -- it didn't really make an impression on me one way or the other. I'm a huge fan of Top Shot. I did some pro bono work for the Brady Campaign, even interviewed for a job there, but I withdraw my name from consideration immediately afterwards -- I knew I didn't have the true fire in the belly to work there.

I also know enough of the scholarly literature to be quite aware of checkered past gun control has had vis-a-vis the civil rights movement -- David Graham provides some of that history in this incisive piece. There were many periods where efforts to take away guns blossomed because, simply put, black people were using them to defend themselves against racist whites. The NRA has, of course, expended quite a bit of time excavating this history in order to argue that more guns, not fewer, are the solution to violence besetting communities of color.

And yet today, it is beyond clear that the Second Amendment is meaningless for black gun owners. There is no right to bear arms if you're black, and the "defenders" of gun rights like the NRA have virtually nothing to say when black people are victimized for exercising that right.

After all, if there is a right to open carry, then a black man seen with a gun is not only not committing a crime, there's not even probable cause to believe that they have. If a state allows concealed carry, then telling an officer that one has a concealed (and permitted) handgun can't justify even heightened anxiety, let alone fear for one's life. But everyone knows that black men cannot actually draw on these "rights". It doesn't matter if the gun is permitted, out of reach, or even real. A black man possessing a gun is always going to be viewed as a valid target, no matter what the law says.

And as for the NRA -- of course they're not going to stand up for these gun owners. In the NRA's world, black people don't get to own guns, they're the reason one owns guns. When they talk about guns being essential to American liberty, they don't envision an armed black population evening out the balance of force in a police encounter -- that's what justifies force in a police encounter. When they blather about a well-armed citizenry as a bulwark against tyranny, they don't have in mind Black Panthers exercising their open carry rights at the capital; they imagine Clive Bundy making an ass of himself.

Anyone who's read and takes seriously works flowing from the Black Power movement has to acknowledge the theoretical purchase of the idea that vulnerable populations are the ones who lose out when majoritarian dominated institutions gain a monopoly on the instruments of violence. But practical experience has made it abundantly obvious that this theoretical argument has no practical value. "Gun rights" has long since settled into a contented status quo accessible by whites and whites alone.

And that's unsustainable. If as a society, we feel threatened when a black man walks around openly carrying a firearm, that should mean that nobody has the right to openly carry a firearm. If possession of a gun by a black man is sufficient to justify a police shooting, then possession of a gun by anyone justifies it. In short, if we can't guarantee gun rights for everyone -- and we can't, it's clear that we can't, and gun rights organizations have no interest in changing it so we can -- then they don't belong to anyone. The status quo is racist, murderous, and toxic to rule of law. It is not sustainable. And eventually, it will fall.

All Quiet on the Blogging Front

Certainly, there's no shortage of news to be written on. But I've just begin an intensive 8-day course teaching Energy Law, which will sap me of much of my energy (for the past week and a half, I've been on vacation -- my stockpile of excuses for not blogging is infinite). So if I am quiet, I'm neither dead nor abandoning this site -- just busy busy.

Waffle House Song

The name of this blog, The Debate Link, emerged from my time as a high school debater (my first post here was June 2004, shortly after I graduated high school). The original mission statement of the blog was to link commentary on political issues to the debating world (the first tagline of The Debate Link was "The arguments, presented by and for the debating public.").

Among my happiest memories in high school were attending the Florida Forensics Institute (since closed -- read here for more on that story). One year, we adopted as our unofficial theme The Waffle House Song, communicated to us by one Jeff Hannan. A quick google search reveals no record of this song currently exists on the internet. This deserves rectification, and so, without further adieu, I present its lyrics:

We're at the Waffle House!
We're all messed up!
We're at the Waffle House!
We're all messed up!
We're gonna eat our waffles, gonna eat our waffles, gonna eat our waffles fast!
 Gonna eat our waffles, gonna eat our waffles, gonna eat our waffles fast!
[Quickly, while pointing] Drunk driving ain't funny!

And with that, a priceless bit of our cultural heritage has been preserved. You're welcome.

Elie Wiesel Dies at 87

Elie Wiesel, Holocaust survivor and human rights advocate, has died today at age 87. Many have spoken of the influence his book Night, a memoir of his time in the concentration camps, had on their life. I personally was more taken by his play The Trial of God -- an essential work in post-Holocaust Jewish theology (even if it is nominally set in 17th century eastern Europe).

Wiesel, of course, was a life-long human rights advocate who never shied away from standing at the center of causes for justice. In doing so, Wiesel was never under any delusions that his status would shield him from the slings and travails that target any human rights campaigner, and Jewish ones in particular. There are too many instances of this to count, but I recall distinctly the time at the Durban Review Conference where an Iranian delegate referred to him as a "Zio-Nazi". I can't imagine how painful this must have been for him, but I also know he went into such events with eyes open.

The world is lesser for his passing. May his memory be a blessing.

Thoughts on the UK Labour Chakrabarti Inquiry into Anti-Semitism (and Aftermath)

UK Labour today released the text of the Chakrabarti Inquiry into anti-Semitism (and other forms of racism). I'm trying to think about how to describe it. "Bad" would not be fair -- it's not bad. "Milquetoast" is perhaps the best word for it. Shami Chakrabarti was put in an extraordinarily difficult situation when she was commissioned to lead this inquiry, and did her best not to offend anyone. And I'm not offended, so in that I guess she was successful.

But I am to some degree annoyed at myself that I'm not more annoyed at how small-ball it went. The non-procedural recommendations -- "Zio" is a racist epithet, "resist" comparing Israel to the Nazis (is the temptation really that overwhelming?), don't engage in stereotyping -- would be insultingly banal if they did not in fact need to be said. But banality is the order of the day.

Chakrabarti thankfully doesn't engage in any significant victim-blaming or lecture Jews on how we need to stop making anti-Semitism claims up for our own nefarious ends, so thank God for that. Yet everything in her report is calculated to be assure everyone that this problem is not much of a problem at all.  David Hirsh's reaction is here (his characteristically excellent submission to the inquiry is here), and I think it strikes some important chords. This is a superficial report to a problem with much deeper roots. One does not, upon reading the inquiry, get the sense that there is any true danger to Labour anti-Semitism. Nobody is really that bad, we just sometimes use some overwrought rhetoric in the heat of the moment that we should probably "resist". Ultimately, I doubt these recommendations will hurt, but I likewise doubt they will do much to help either. The report condemns stereotypes but gives no guidance on how to root them out; it discusses bias but doesn't even raise the issue that they might be implicit. It speaks broadly about the significant wrong anti-Semitism represents, but it shies away from directly considering anything to be anti-Semitic.

Perhaps most frustratingly, it does not address what to me is the most important issue of all -- the epistemic marginalization of Jews and Jewish voices when we complain about anti-Semitism. Any effort to combat anti-Semitism will fail if it is not coupled with a commitment to take seriously allegations of anti-Semitism. The persistent drumbeat that anti-Semitism is a bad faith charge that serious people should not waste their time with is the single greatest barrier to Jewish inclusion in communal conversations. It suggests that we are unreliable narrators of our own experience -- delusional at best, liars at worst. If that understanding is accepted, then Jews will never be able to be equal participants in dialogue because everything we say will be preemptively discounted -- at least, if it doesn't accord with the preexisting beliefs of our partners.

The Chakrabarti Inquiry should ideally represent the beginning of the conversation on combatting anti-Semitism, not its end. And judging by how the inquiry was received, well, there is more to be had in this conversation. The unveiling was yet another Corbyn catastrophe -- a Jewish Labour MP was chased out the room after being accused of organizing a media conspiracy to get at Corbyn, and Corbyn himself possibly compared Israel to the Islamic State (reports vary on whether he said "Islamic State" or "Islamic states" -- his written text suggests he meant the latter, but many people reported hearing the former). Corbyn certainly did nothing to protect his colleague who -- in a press conference about anti-Semitism, no less -- was victimized by an anti-Semitic trope of the precise sort Chakrabarti identified as being intolerable.

People who don't take anti-Semitism seriously won't fight anti-Semitism seriously. I do think Chakrabarti tried and delivered a seriously flawed but nonetheless sincere effort in her report. Jeremy Corbyn has no interest in fighting anti-Semitism, and so we can expect even the meager gains Chakrabarti gave to use to amount to virtually nothing.

Two Lessons from the Brexit Vote

In a tightly contested race, citizens of the United Kingdom have voted to leave the European Union. There are two lessons we can draw from this:

1) Don't underestimate the ability of misguided xenophobic nationalism to carry a national election. This is something for cocky American progressives to keep in mind as we face down a Donald Trump candidacy. Just because it's a really stupid idea doesn't mean it won't happen. And in this day and age, one makes a very serious mistake regarding the sentiments of the right-wing rank-and-file if one only pays attention to the opinions of the right-wing elite. The latter are rapidly losing the grip on the former.

2) A Jeremy Corbyn style left is utterly incapable of standing against this sort of tide. This is true for many reasons, but the primary one is that the sort of conspiracy-laden thinking Corbynistas like to indulge in isn't really that different from the instincts that motivate their right-wing counterpart. Ultimately, they share a sense that "Real Americans Brits" are under the thumb of some sinister foreign body -- the details of whether its the UN or the EU or the banks or the Jews or the neoliberals or the Zionists or the radical Muslims cabals really matter less than one would  think. It is no accident that even though Labour officially supported the Remain position, Brexit won traditional Labour strongholds by crushing margins.

Are Hamas Rockets "War" or "Terrorism"? Thanks To Insurance, We May Find Out

A lawsuit just filed in California federal district court seeks to determine whether Hamas rocket fire in 2014 is an act of "war" or "terrorism".

Was the suit filed by human rights advocates? Survivors of the violence? Maybe an international NGO?

Nope. It was filed by the USA network against its insurance company. You see, USA was filming a series in Israel that was interrupted due to the rocket fire. It claimed coverage under its policy, which was denied as the policy excluded losses stemming from "war or warlike action". But it does not exclude losses incurred due to terrorism, and the network contends that is the proper descriptor of Hamas' activities.

I have no legal commentary to provide -- I'm just darkly amused that this very important issue (as a rhetorical matter, if nothing else) may well gain legal resolution due to an insurance claim.