Sepia Mutiny, by way of Blog De Novo, points us to the only Amicus Curae filed by non-Judeo-Christians in the upcoming 10 commandments case. Like the ACLU brief, it is an utter smackdown. This one is better though, because it presents an argument that not only is irrefutable, but really doesn't cut against the common wisdom. The ACLU brief argued that the 10 commandments aren't really a major part of our historical legal tradition, which may be true but certainly isn't going to be accepted by the population at large. The Hindu American Foundation brief, however (which was filed jointly on behalf of Hindus, Buddhists, and Jains), merely asserts that a document with roots in Judaism and Christianity cannot be said to be neutral to Hindus, Buddhists, Jains, or other religions outside the tradition. Many of the specific injunctions and prohibitions mentioned in the decalogue are antithetical to the core spiritual beliefs of these religions.
Powerline says that "a moment of serious reflection should make it clear that putting up a statue representing the Ten Commandments does not amount to making a 'law respecting an establishment of religion,' which is what the First Amendment prohibits." But as this amici makes clear (and in my opinion, as that "moment of serious reflection" should too), posting a six foot by three foot 10 commandments statue right in front of the Texas Capital building clearly is "respecting an establishment of religion." There simply is no principled way to conclude otherwise. I don't even have to go into any extra-textual analysis to come to that conclusion, the rhetoric in the amendment is clear here.
According to the Oxford Essential Dictionary, we get the following definitions: "Respect," as in "with respect to" (the way it is used in the amendment), "regarding." "An" is an indefinite article, as opposed to "the" which is definite and implies singularity. "Establish" is "1. set up on a permanent basis, 2. achieve permanent acceptance for (a custom, belief, etc.) 3. validate; place beyond dispute." "An" implies that there are many ways to establish religion, it isn't just laws that say "everybody has to worship Jesus." "Respecting" means that we interpret the clause broadly, laws that are "related" to the establishment of religion are prohibited as well (I think that can be interpreted to mean laws that a reasonable person might conceive of as promoting religion). And finally, "establish" is to "validate or place beyond dispute," which is exactly what law does. In a Democratic society, law represents what is right or proper in society. Even when there are no punitive sanctions attached, when the law says one "should" act this way or affirms that a given life-path is the governmentally sanctioned one, that carries significant moral weight.
A "moment of reflection" would clearly place the 10 commandments on the wrong side of the establishment line. They clearly are at least "related" to the promotion of religion, and a fair amount of them serve solely to affirm a particular type of religious dogma. The only way to uphold their placement in our governmental centers is to entirely ignore the text of the 1st amendment, replacing the language of the document with majoritarian norms. Needless to say, this is precisely the type of judicial activism Powerline claims to abhor. But apparently the text of the constitution is only worth looking at when it affirms values Powerline agrees with.
Tuesday, March 08, 2005
Schweitzer for President?
Kos is giving the early nod to Montana Governor Brian Schweitzer if he chooses to run for President. A Democrat who won in one of the reddest of red states, Schweitzer holds views that might be quite appealing to the persuadable red-staters. He's pro-gun, an old-school economic populist, and holds conservationist environmental views that resonate deeply with hunters and fishermen. The Washington Monthly did a whole cover story on his rise to political power, which is a great primer in how the Democrats can compete again outside their coastal base.
I obviously think its a bit early to be naming 2008 contenders, and "economic populism" always worries me. Still, it is very clear that Schweitzer is a savvy politician and someone to keep an eye on. Everytime I read about him, it seems like he's doing something sharp. Could he be the one in 2008?
I obviously think its a bit early to be naming 2008 contenders, and "economic populism" always worries me. Still, it is very clear that Schweitzer is a savvy politician and someone to keep an eye on. Everytime I read about him, it seems like he's doing something sharp. Could he be the one in 2008?
Monday, March 07, 2005
Pragmatic Textualism
I actually agree with a lot of what this Legal Fiction post says. It articulates a legal theory called "pragmatic textualism," which refuses to extend the constitution beyond what is actually written down, but similarly refuses to abide by originalist notions of what the text "means." As the author explains:
I've been somewhat enamored of this method of thinking since reading Democracy and Distrust by John Hart Ely. Although Ely and LF are really arguing different things, they both are based off rejecting originalism, a stance I agree on. But after what is a pretty persuasive analysis throughout, LF then makes a claim that almost seems like a parodied response to his own argument:
I understand what he's trying to say here. The Court's can't say what the law "is" because text is indeterminate. But his logic forces the question: why shouldn't the legislature be the one to choose between the different indeterminate meanings. That would be the democratic thing to do, and as long as the legislature stays within the bounded indeterminacy, I think it makes sense to assert that it should be a democratic branch who makes the call. I know Scalia would make that argument, and I'll admit it carries some weight with me.
I personally think the text should be and is intended to be interpreted broadly, both in terms of the powers granted to the government by the text and the powers denied to it by the text. This seems most in accordance with how our constitution was set up--the founders wanted a stronger system than the Articles of Confederation, but they were still very cognizant of the potential for oppression latent in any government. A non-originalist interpretation should stay faithful to that legacy, giving broad latitude to where the government is given jurisdiction (inter-state commerce, for example), but being zealous in the defense of the rights government is not permitted to impinge upon.
To me, the Constitution consists of words and nothing else. Text is the essence of what it is. But as any linguist would tell you, a word never has a single determinant meaning. Instead, it has a range of plausible meanings. The word "cool" can mean very different things, even though the actual text of the word itself remains the same. Words also change through time, and changes in background context can also change the meaning of the word. The text of the Constitution is no different. Words like "cruel," "unreasonable," "speech," "commerce," "cruel and unusual," and "search" lack a clear determinant meaning. That's not to say they are wholly indeterminate, but rather that there is a range of plausible meanings."
I've been somewhat enamored of this method of thinking since reading Democracy and Distrust by John Hart Ely. Although Ely and LF are really arguing different things, they both are based off rejecting originalism, a stance I agree on. But after what is a pretty persuasive analysis throughout, LF then makes a claim that almost seems like a parodied response to his own argument:
When you get away from this idea that we cannot stray from the brooding omnipresence in the sky that is the "original understanding," you can begin to inject more pragmatism and more democratic deliberation into matters that effect hundreds of millions of American lives. Obviously, we cannot stray from the text. "Cruel" can never mean something that only one state outlaws. But once we are within the bounds of the plausible, we can engage in policy analysis and other pragmatic inquiries to determine what the meaning should be. If "cruel" could plausibly mean "A" "B" or "C" then is it so wrong to ask what the right answer should be, when the answer could be any of the three? This is pragmatic textualism-- constitutional interpretation's Third Way. Its motto is:When choosing among textually justified outcomes, it is emphatically the province and duty of the judiciary to say what the law should be, not what it is.
I understand what he's trying to say here. The Court's can't say what the law "is" because text is indeterminate. But his logic forces the question: why shouldn't the legislature be the one to choose between the different indeterminate meanings. That would be the democratic thing to do, and as long as the legislature stays within the bounded indeterminacy, I think it makes sense to assert that it should be a democratic branch who makes the call. I know Scalia would make that argument, and I'll admit it carries some weight with me.
I personally think the text should be and is intended to be interpreted broadly, both in terms of the powers granted to the government by the text and the powers denied to it by the text. This seems most in accordance with how our constitution was set up--the founders wanted a stronger system than the Articles of Confederation, but they were still very cognizant of the potential for oppression latent in any government. A non-originalist interpretation should stay faithful to that legacy, giving broad latitude to where the government is given jurisdiction (inter-state commerce, for example), but being zealous in the defense of the rights government is not permitted to impinge upon.
Sunday, March 06, 2005
Thank You, Justice Kennedy
This LA Times article reminds me to write a post on Justice Anthony Kennedy (link via How Appealing). There is no doubt Kennedy is a Conservative, albeit a moderate one. However, his own political leanings not withstanding, what I like about Kennedy is that it is clear from his opinions that he has a passionate commitment to justice for all Americans, not just those politically favored. Unlike his swing vote colleague Sandra Day O'Connor, whose predilection for Solomonic rulings is turning into somewhat of a joke, Kennedy is willing to take a stand when he feels the constitution mandates it. That Kennedy, a devout Catholic, wrote some of the most stirring and life-affirming opinions in the past half-century on gay rights (Romer v. Evans and Lawrence v. Texas) is proof that he is a man of legal principle and integrity. And I still feel that his opinion in Lee v. Weisman represents one of the greatest pieces of 1st amendment jurisprudence of our times. Since his opinion in Roper v. Simmons, Kennedy has been attacked as a "would-be legislator, a dilettante sociologist and a free-lance moralist, disguised as a judge", his opinions examples of the "Supreme Court's imperialism". Conservatives need to remember that the constitution doesn't permit every policy they find preferable or advantageous. Some things do violate our constitution. It is certainly debatable what those things are. However, I personally find Kennedy's obvious and passionate devotion to justice to be inspirational, not scorn-worthy.
Texas Justice
The Volokh Conspiracy points us to a lovely Texas case where a plantiff's attorney secured a $28 million judgment for his clients...with his girlfriend on the jury. Once the news got out, the judge dismissed the woman but refused to declare a mistrial, despite other issues of professional misconduct likely present in the case as well.
Apparently, this is actually the rule of law in the state. In Armstrong v. Williams, a Texas State Court of Appeals upheld a life sentence for a murderer who was convicted with the Prosecutor's girlfriend on the jury, and expressed "no opinion" on whether or not the Prosecutor violated the Texas Disciplinary Rule of Professional Conduct 3.09, a special rule for prosecutors (Texas has rules for prosecutors?).
Ahh...Texas. I can always count on it to uphold the strictest standards of justice. At least this isn't the infamous sleeping lawyer case, where Texas Courts (thankfully overruled by the 5th Circuit Court of Appeals) held that a defendant's right to a fair trial wasn't violated when his lawyer consistently dozed off through his proceedings. I believe the Texas Courts argued this could have been a "tactic" by the lawyer.
Apparently, this is actually the rule of law in the state. In Armstrong v. Williams, a Texas State Court of Appeals upheld a life sentence for a murderer who was convicted with the Prosecutor's girlfriend on the jury, and expressed "no opinion" on whether or not the Prosecutor violated the Texas Disciplinary Rule of Professional Conduct 3.09, a special rule for prosecutors (Texas has rules for prosecutors?).
Ahh...Texas. I can always count on it to uphold the strictest standards of justice. At least this isn't the infamous sleeping lawyer case, where Texas Courts (thankfully overruled by the 5th Circuit Court of Appeals) held that a defendant's right to a fair trial wasn't violated when his lawyer consistently dozed off through his proceedings. I believe the Texas Courts argued this could have been a "tactic" by the lawyer.
Saturday, March 05, 2005
Gay Marriage in Washington State
The Seattle Weekly gives an overview of the upcoming State Supreme Court fight over Washington's State Defense of Marriage Act. The state is appealing two lower court rulings, Castle v. State (discussed here) and Anderson v. Sims (discussed here), both which ruled the law unconstitutional. Unfortunately, the Court is reviewing the decisions de novo, so those two excellent opinions will carry very little weight. However, the Washington State Constitution is known to be very protective of individual liberties, so it is quite possible that the rulings will be upheld and marriage equality will enter Washington once and for all.
HT: The newly redesigned How Appealing blog.
HT: The newly redesigned How Appealing blog.
Mo Money, Mo Problems
UPDATE: I confused "Mark" of Pseudo-Polymath with "Marc" of American Future. AM, tragically, will not be opining on my proposal, since, as Marc has since reminded me, it is solely a foreign affairs blog. My apologies for a truly boneheaded mistake.
Many people have graciously offered responses to my original call for reasons privatizing Social Security will solve the solvency problem. Pseudo-Polymath (whose move to a new server has prompted me to make its long overdue addition to my blogroll) offers the following:
Other commenters argued that taking funds out of the trust fund keeps it from money-grubbing legislators, and one argues that the $2-3 trillion debt figure only is relevant to spending money on other programs (which isn't true, more on that in a second). While I think PPM raises some legitimate points, to make the long story below short, I think that the risks (both in terms of transition costs and additional liabilities without additional revenue) outweigh the benefits (inheritence, speculative economic growth, and avoidance of population shocks).
The reason I phrased my question the way I did is that I don't have a philosophical objection, per se, to allowing for private accounts. So long as there is still some sort of safety net so my grandparents don't starve on a Miami street corner, I have no issue with people investing their own money for retirement. At the same time, neither are private accounts my top priority. I really don't care about them either way. So if private accounts are a threat to Social Security as is, either by making the problem worse or by pretending like we've "solved the problem" when we haven't, then I oppose them.
Since I wrote my last post, I talked to my friend and brilliant guest-blogger Greg Ihrie, and he told me the following: In the most pure sense, Privatization would provide solvency to Social Security in the long-term (transition costs, once again, are separate). This is because the government wouldn't be "covering" anything anymore, you'd put in whatever money you wanted, and you'd get out whatever money you make. If you make a fortune, congratulations. If you get burned, well, its time to start a price-check on dog food. There couldn't be a debt or a surplus, because nobody is "owed" anything. Of course, we're not talking about complete privatization, but a partial privatization scheme. Partial privatization aids solvency because it reduces the "risk" that the government has to cover--it only has to worry about the amount of social security that is still public, which, thanks to the diversionary effect of private accounts, is a smaller and thus more manageable amount.
The kink is that the system can never work in that "pure" manner. This is because every Privatization program has to include some guaranteed safety net in case folks get burned. Otherwise, we're essentially crossing out the "Security" in "Social Security" (and a program just called "Social" makes no sense). This throws all the solvency assumptions above for a loop, because the government has to cover the losses without being able to access the extra gains. I despise Math, but I'll try to explain in simplified figures.
Status Quo System: $100 coming in (payroll taxes), $110 going out (SS benefits)
Partial Privatization System (w/out Safety Net): $80 coming in (payroll taxes), $85 going out (SS benefits). In addition, there is $20 going into private accounts and $X dollars coming out of Private accounts. The government doesn't have to worry about this at all.
Full Privatization (w/out safety net): $0 in, $0 out.
Partial Privatization (with safety net): $80 coming in (payroll taxes), $85 coming out (SS benefits) + $X coverage of investment losses. There still are some gains in the above X (private accounts), possibly (probably?) even a profit, but the government can't touch them because they are private. Hence, we have our problem: We have additional liabilities (investment losses) without additional income.
The other issue at hand here is the transition costs. These should be dealt with separately because they are a one-time expense--but they're a doozy of one. Contrary to what PPM says, there is no "debate" over whether the transition costs will "happen" or not--they are there. That's a fact, and nobody has adequately explained how they are being paid for. Here's how it works.
The reason Social Security was able to hit the ground running in the 1930s is that the current generation of workers pays the current generation of retirees. The money I put into SS isn't "mine," it's going to my grandparents. When I grow old and frail, my grandchildren will be paying for my account. That's why you keep hearing about the declining worker:retiree ratio--if it was my money going into the system that wouldn't be an issue.
Here's the rub: If I divert however much money into Private Accounts, that money is no longer available to pay the current benefits of retirees. That creates our lovely shortfall. If I was paying in $100 originally, and now am paying in $90 (because I diverted $10 to my account), then that's $10 less that's available to pay the current generations benefits. Magnified across the entire system, that's where we get our $2-3 trillion dollar gap. It isn't based on competing conceptions of how strong the market will be, or crystal-ball gazing. It's a direct characteristic of how the system is set up. Hence, we get back to my original objection to privatization: the short-term hit we take (in the transition costs) is too threatening to justify whatever longterm benefit we're getting, at least when there are other options open to fix the problems (like eliminating the Payroll Tax Cap).
Meanwhile, in comments PPM asked me a question of his own: Why should the government be involved with retirement plans at all? Why can't the middle class simply save for its own retirement?
From the way he framed his question, I believe he thinks a government "safety net" for the poor would be right and proper. But he questions why we need to pay benefits to everyone else to do it. This is a fair question, and I don't think there are obvious answers. I do have two tenative responses.
The first is purely political. As I said above, the highest priority on my end is making sure that our elderly population can be secure in retirement. Shifting Social Security from its current universalistic format to a particularistic government aid program to the poor will rob the program of much of its political potency. Empirically, government programs which are targeted solely at the poor have a disturbing tendency to die slow, quiet deaths on the Hill. That's because a Democratic government will necessarily tailor its spending to give benefits to "us" (IE, White, Middle-Class Americans). When it wants to cut spending, it will look to programs that aid "the other," because they don't have the same level of political influence. Since we know that the poor have virtually no political cachet in Washington, making them the sole constituents of Social Security would likely be a lethal blow to the system. By contrast, when the Middle Class has a stake in a program (like they do in SS now), they will defend it voraciously, hence Social Security's "third rail" reputation. So basically, this argument is that we need to give Social Security to the middle class in order to preserve it for the lower class.
The second response I'd give is that transforming the program only into a safety net (say, a guaranteed minimum income) would destroy any incentive for lower income Americans to save. Let's say the minimum income level is set at $2000/month. If I, Mr. Poor Man, save enough to give me a retirement income of $1000/month, the government will give me the remaining $1000 to make up the difference, giving me $2000/month total. Alternatively, I could spend all my money now, leaving me with no savings. The government will then cut me another check, leaving me with...$2000/month. For person's who will make less, the same, or only marginally higher than the cut-off amount, there will be a disincentive to save--or to go after a better job--under a safety net system. In this respect, the current Social Security program acts like the retirement version of the Earned Income Tax Credit--since earnings are tagged positively to retirement income, it gives an incentive for people to work hard and try and reach the middle class.
I would not be opposed to some type of "means-testing" on Social Security, so long as it only effects upper-income Americans. Call it class-warfare if you want, but it makes perfect logical sense from my standpoint. The rich aren't part of the "us" (so it dodges my first objection), and there is an upward limit on how much the prospect of additional income will motivate one to work (law of diminishing returns), thus avoiding my second objection. And of course, means-testing the rich will reduce SS costs while not throwing any grandmothers on to the streets! It's win-win!
And finally, I want to thank everyone for giving me the chance to title a post "Mo Money, Mo Problems." I don't like rap, but I do love that song.
Many people have graciously offered responses to my original call for reasons privatizing Social Security will solve the solvency problem. Pseudo-Polymath (whose move to a new server has prompted me to make its long overdue addition to my blogroll) offers the following:
There are only three valid arguments against privatization, being:
"It's not broken" That we shouldn't consider improving a social program, which costs as much as it does seems suspect. Why wouldn't one want to improve a program that comes at such a high cost? Why not consider ways of providing more "bang" for the buck?
Transition costs As to the second argument, alas I have no data to add to the mix. Both sides of this fray have brought forth their personal predictions from their own crystal balls of future trends and have come down firmly holding to answers they want to find. These results would be perhaps more believable, if evidence could be shown that those people ever came up with results which did not jibe with their pre-conceptions.
dependence of retirement on market fluctuations and market fraud. To my mind, the best type of retirement investment would be index funds. There are negligible management fees, and no great profits for managers to gain lots of federal funds due to tweaking of the laws regarding SS privatization funds. Index funds cause one to "bet" on the health of the US industries as a aggregate. There seems to me no more natural thing to base our retirement on than that.
The following are reasons for privatization:
Inheritance Since accrued benefits can be inherited early death does not cause loss of benefits for heirs. While this is often seen as a "blow" to the ability of the system to remain solvent, in reality it really can't be, for benefits allegedly are paid in proportion to money put in. If this is really true, then after "transition" costs are paid, inheritance of money saved can't hurt the "system". Further it aids the solvency of the system in that little money is expected to be paid from sources outside of that which was put into the system in the first place by the investor. Since less "transfer of wealth" is going on, less wealth needs transferring and it's easier to remain solvent.
Investment aids US industry Those funds, while being saved are invested primarily in US industries. This helps the economy, which in turn helps the solvency of the system in general. Malthus notwithstanding, economics is not a zero sum game.
Population dependence is weakened. This lessens the dependency of SS benefits on relative population fluctuations. In the current scheme the SS solvency is closely tied to the relative sizes of the working and retired population ration. As medical advances, unforeseen epidemics, or heaven forbid large scale wars affect these population rations. The privatization scheme removes much of this dependence by allowing each individual to rely on his own accrued investment, removing his ties to the future generations ability to support him.
Other commenters argued that taking funds out of the trust fund keeps it from money-grubbing legislators, and one argues that the $2-3 trillion debt figure only is relevant to spending money on other programs (which isn't true, more on that in a second). While I think PPM raises some legitimate points, to make the long story below short, I think that the risks (both in terms of transition costs and additional liabilities without additional revenue) outweigh the benefits (inheritence, speculative economic growth, and avoidance of population shocks).
The reason I phrased my question the way I did is that I don't have a philosophical objection, per se, to allowing for private accounts. So long as there is still some sort of safety net so my grandparents don't starve on a Miami street corner, I have no issue with people investing their own money for retirement. At the same time, neither are private accounts my top priority. I really don't care about them either way. So if private accounts are a threat to Social Security as is, either by making the problem worse or by pretending like we've "solved the problem" when we haven't, then I oppose them.
Since I wrote my last post, I talked to my friend and brilliant guest-blogger Greg Ihrie, and he told me the following: In the most pure sense, Privatization would provide solvency to Social Security in the long-term (transition costs, once again, are separate). This is because the government wouldn't be "covering" anything anymore, you'd put in whatever money you wanted, and you'd get out whatever money you make. If you make a fortune, congratulations. If you get burned, well, its time to start a price-check on dog food. There couldn't be a debt or a surplus, because nobody is "owed" anything. Of course, we're not talking about complete privatization, but a partial privatization scheme. Partial privatization aids solvency because it reduces the "risk" that the government has to cover--it only has to worry about the amount of social security that is still public, which, thanks to the diversionary effect of private accounts, is a smaller and thus more manageable amount.
The kink is that the system can never work in that "pure" manner. This is because every Privatization program has to include some guaranteed safety net in case folks get burned. Otherwise, we're essentially crossing out the "Security" in "Social Security" (and a program just called "Social" makes no sense). This throws all the solvency assumptions above for a loop, because the government has to cover the losses without being able to access the extra gains. I despise Math, but I'll try to explain in simplified figures.
Status Quo System: $100 coming in (payroll taxes), $110 going out (SS benefits)
Partial Privatization System (w/out Safety Net): $80 coming in (payroll taxes), $85 going out (SS benefits). In addition, there is $20 going into private accounts and $X dollars coming out of Private accounts. The government doesn't have to worry about this at all.
Full Privatization (w/out safety net): $0 in, $0 out.
Partial Privatization (with safety net): $80 coming in (payroll taxes), $85 coming out (SS benefits) + $X coverage of investment losses. There still are some gains in the above X (private accounts), possibly (probably?) even a profit, but the government can't touch them because they are private. Hence, we have our problem: We have additional liabilities (investment losses) without additional income.
The other issue at hand here is the transition costs. These should be dealt with separately because they are a one-time expense--but they're a doozy of one. Contrary to what PPM says, there is no "debate" over whether the transition costs will "happen" or not--they are there. That's a fact, and nobody has adequately explained how they are being paid for. Here's how it works.
The reason Social Security was able to hit the ground running in the 1930s is that the current generation of workers pays the current generation of retirees. The money I put into SS isn't "mine," it's going to my grandparents. When I grow old and frail, my grandchildren will be paying for my account. That's why you keep hearing about the declining worker:retiree ratio--if it was my money going into the system that wouldn't be an issue.
Here's the rub: If I divert however much money into Private Accounts, that money is no longer available to pay the current benefits of retirees. That creates our lovely shortfall. If I was paying in $100 originally, and now am paying in $90 (because I diverted $10 to my account), then that's $10 less that's available to pay the current generations benefits. Magnified across the entire system, that's where we get our $2-3 trillion dollar gap. It isn't based on competing conceptions of how strong the market will be, or crystal-ball gazing. It's a direct characteristic of how the system is set up. Hence, we get back to my original objection to privatization: the short-term hit we take (in the transition costs) is too threatening to justify whatever longterm benefit we're getting, at least when there are other options open to fix the problems (like eliminating the Payroll Tax Cap).
Meanwhile, in comments PPM asked me a question of his own: Why should the government be involved with retirement plans at all? Why can't the middle class simply save for its own retirement?
From the way he framed his question, I believe he thinks a government "safety net" for the poor would be right and proper. But he questions why we need to pay benefits to everyone else to do it. This is a fair question, and I don't think there are obvious answers. I do have two tenative responses.
The first is purely political. As I said above, the highest priority on my end is making sure that our elderly population can be secure in retirement. Shifting Social Security from its current universalistic format to a particularistic government aid program to the poor will rob the program of much of its political potency. Empirically, government programs which are targeted solely at the poor have a disturbing tendency to die slow, quiet deaths on the Hill. That's because a Democratic government will necessarily tailor its spending to give benefits to "us" (IE, White, Middle-Class Americans). When it wants to cut spending, it will look to programs that aid "the other," because they don't have the same level of political influence. Since we know that the poor have virtually no political cachet in Washington, making them the sole constituents of Social Security would likely be a lethal blow to the system. By contrast, when the Middle Class has a stake in a program (like they do in SS now), they will defend it voraciously, hence Social Security's "third rail" reputation. So basically, this argument is that we need to give Social Security to the middle class in order to preserve it for the lower class.
The second response I'd give is that transforming the program only into a safety net (say, a guaranteed minimum income) would destroy any incentive for lower income Americans to save. Let's say the minimum income level is set at $2000/month. If I, Mr. Poor Man, save enough to give me a retirement income of $1000/month, the government will give me the remaining $1000 to make up the difference, giving me $2000/month total. Alternatively, I could spend all my money now, leaving me with no savings. The government will then cut me another check, leaving me with...$2000/month. For person's who will make less, the same, or only marginally higher than the cut-off amount, there will be a disincentive to save--or to go after a better job--under a safety net system. In this respect, the current Social Security program acts like the retirement version of the Earned Income Tax Credit--since earnings are tagged positively to retirement income, it gives an incentive for people to work hard and try and reach the middle class.
I would not be opposed to some type of "means-testing" on Social Security, so long as it only effects upper-income Americans. Call it class-warfare if you want, but it makes perfect logical sense from my standpoint. The rich aren't part of the "us" (so it dodges my first objection), and there is an upward limit on how much the prospect of additional income will motivate one to work (law of diminishing returns), thus avoiding my second objection. And of course, means-testing the rich will reduce SS costs while not throwing any grandmothers on to the streets! It's win-win!
And finally, I want to thank everyone for giving me the chance to title a post "Mo Money, Mo Problems." I don't like rap, but I do love that song.
Friday, March 04, 2005
Casey in, Santorum on the Way Out
Andrew Sullivan reports that Pennsylvania Treasurer Robert Casey Jr is going to challenge incumbent US Senator Rick Santorum in 2006. Casey is a pro-gun, pro-life Democrat who will be difficult to tar with the "out of step liberal" label. Santorum, by contrast, is reviled by decent human-beings across the nation for his stridently anti-gay rhetoric, culminating in his infamous comparison of gay sex to sex with a "box turtle" after the Lawrence v. Texas decision. The poll data is looking very good for Casey. He has the same approval ratings of Santorum with only a third of the disapproval ratings (twice as many people haven't heard enough about Casey to form an opinion, however). Santorum has struggled in recent elections, with a relatively unknown Democratic challenger taking 47% of the vote against him in 2000. This time, with a high-profile name on the ticket, topped by popular Governor Ed Rendell and prominently absent the presence of GOP ticket-topper George W. Bush, liberal prospects here look much better. Indeed, the Quinnipiac poll cited claims that Casey's main problem might be a divisive Democratic primary. And lo and behold, according to PoliticsPA (the same site that broke his bid), Casey's main Democratic challenger, former Treasurer Barbara Hafer, has dropped out of the race. The stars appear to be in alignment, and the Democrats might be able to knock off one of the most prominent Conservatives in America. If only we could get a certain exterminator to join him...
UPDATE: The Pittsburgh Channel has a permalinked edition with the basics.
UPDATE: The Pittsburgh Channel has a permalinked edition with the basics.
Split Decision
Yale Law Professor Jack Balkin makes a daring prediction about the upcoming Ten Commandments case. Best one line blog post, ever. Follow the link.
Broken Bonds
Kevin Drum reports that the primary link keeping the fractured Republican coalition together--slavish devotion to Tax Cuts--is finally coming undone.
Obviously, this a good thing for Americans desperate for a return to fiscal sanity. And there are few lobbyist I find more obnoxious than Grover Norquist (Americans for Tax Reform) and Steven Moore (Club for Growth). But the real interesting question is, where now for the GOP? A few months ago, I argued that Tax Cuts were literally the only ideological bond shared by the Republican Party today. As I wrote then, beyond Tax Cuts
Without cutting taxes (and reducing the size of government generally), there is nothing, literally nothing, that the Social Conservatives and Libertarian wings of the party have in common. There will be significant tensions in the old-guard GOPers as well, who like cutting taxes but (nominally, at least) value fiscal responsibility more.
The Washington Monthly article I linked to above notes that even in notoriously tax-averse Virginia, a group of stalwart Republican legislators managed to get passed a giant $1.8 billion tax increase, outstripping even the calls from Democratic Governor Mark Warner. Norquist and Moore have called for these legislators' heads, and are gunning for them in Virginia's 2005 elections. A very good indicator of the anti-tax zealots grip on power is how those elections turn out. If the maverick Republicans hold their ground, then that is a major crack in the wall.
Obviously, this a good thing for Americans desperate for a return to fiscal sanity. And there are few lobbyist I find more obnoxious than Grover Norquist (Americans for Tax Reform) and Steven Moore (Club for Growth). But the real interesting question is, where now for the GOP? A few months ago, I argued that Tax Cuts were literally the only ideological bond shared by the Republican Party today. As I wrote then, beyond Tax Cuts
[w]hat, exactly, does the Republican Party have left? It doesn't have a commitment to Homeland Security, witness Bush's opposition to the DHS, 9/11 commission, and a myriad of other HS reforms. It doesn't have a commitment to small government, look at the Prescription Drug Coverage plan. It doesn't have a commitment to states rights, look at NCLB. It doesn't care about government non-intrusiveness, look at the FMA and the PATRIOT act. The closest thing to a coherent foreign policy it has is a commitment to democratization, which I support (and tragically, many Democrats have reflexively opposed despite it being a natural extension of liberal views), but even this appears to have stalled out beyond Afghanistan and Iraq (look at our anemic protests towards Putin's Russia, and our devil's bargain with Uzbekistan, for example). I would say Republicans like to blow things up, but then why is North Korea still on the map? It appears that LITERALLY the only thing that "unites" the Republican party is tax cuts, and that coalition simply can't hold together much longer.
Without cutting taxes (and reducing the size of government generally), there is nothing, literally nothing, that the Social Conservatives and Libertarian wings of the party have in common. There will be significant tensions in the old-guard GOPers as well, who like cutting taxes but (nominally, at least) value fiscal responsibility more.
The Washington Monthly article I linked to above notes that even in notoriously tax-averse Virginia, a group of stalwart Republican legislators managed to get passed a giant $1.8 billion tax increase, outstripping even the calls from Democratic Governor Mark Warner. Norquist and Moore have called for these legislators' heads, and are gunning for them in Virginia's 2005 elections. A very good indicator of the anti-tax zealots grip on power is how those elections turn out. If the maverick Republicans hold their ground, then that is a major crack in the wall.
Diplomatic Justice
Powerline rightfully assails this article on TNR Online for its utter disregard of the separation of powers and general analytical shoddiness. I don't think the opinion was all too horrible, though the other article Powerline cites, by Crescat Sententia's law guru Will Baude, makes a compelling argument against it. However, regardless of whether the Supreme Court got it right or wrong here, it is utterly ridiculous to even imply the Supreme Court should exercise foreign policy discretion when making decisions. That is not, under our constitutional form of government, its role. Indeed, the Court has expressly removed itself from exercising influence over FP (see United States v. Curtiss-Wright Export Co.), beyond, of course, its constitutionally delegated responsibilities (interpreting treaty law, for example). Certainly the Court's actions have incidental effect on how the world perceives us--if they interpret our constitution in a manner that makes the world happy, the world will like us, and if they interpret it in a less pleasing manner, they won't. However, once the judges go beyond merely interpreting the law and instead considering how the law should be applied in order to further a specific policy goal beyond their mandate (in this case, friendly foreign relations), that is one of the rare cases where I think the tag of "judicial activism" is deserving.
To be clear, however, I don't think that's what happened in this case. As I noted, the 8th amendment is somewhat of a special case because its language specifically connotates evolution and a look toward contemporary societal norms. Whether or not the rest of the world should count as part of that "society" is debatable, but answering yes to that question (as I do) certainly is not a ridiculous position. That's why Powerline's use of this particular case as its springboard into arguing that the Court is acting like a bunch of "robed masters" who consistently are issuing "outrageous decisions" is so manifestly absurd. This decision can be criticized, as many cases can be (and Scalia's opinion is unquestionably a resounding success on this front). However, is it really so off-kilter as to question the entire legitimacy of our judicial system? Let's get some perspective here. Maybe if the Court, say, allowed American citizens to be detained indefinitely on an isolated military base in, say, Cuba, by the whim of the President without ever being charged with a crime or being granted access to a lawyer, then they'd have a case. But thankfully, that isn't the legal environment we live in, because apparently the "Terrorists got the Last Laugh" in Al-Odah v. Bush. How nice. By the way, much credit to Mr. Mirengoff for registering is support for the right side in Hamdi and Padilla, at least. But if two of the three decisions were correct, why are the negative theme of the post? Moreover, what am I supposed to take from this excerpt in his latest attack on the Court?
Either the decisions were right, and suspected terrorists do have the right to due process of law, or they were imperialist whims of an unaccountable court. You got to pick one or the other. Hyper-ventilation aside, I have not seen much evidence to support the notion that this Court has stepped too far in its constitutional interpretation, regardless of whether we're talking about Liberal nightmares like U.S. v. Lopez and U.S. v. Morrison, or Conservative anathemas like Lawrence v. Texas or, apparently, Roper v. Simmons. Take a deep breath, and calm down.
To be clear, however, I don't think that's what happened in this case. As I noted, the 8th amendment is somewhat of a special case because its language specifically connotates evolution and a look toward contemporary societal norms. Whether or not the rest of the world should count as part of that "society" is debatable, but answering yes to that question (as I do) certainly is not a ridiculous position. That's why Powerline's use of this particular case as its springboard into arguing that the Court is acting like a bunch of "robed masters" who consistently are issuing "outrageous decisions" is so manifestly absurd. This decision can be criticized, as many cases can be (and Scalia's opinion is unquestionably a resounding success on this front). However, is it really so off-kilter as to question the entire legitimacy of our judicial system? Let's get some perspective here. Maybe if the Court, say, allowed American citizens to be detained indefinitely on an isolated military base in, say, Cuba, by the whim of the President without ever being charged with a crime or being granted access to a lawyer, then they'd have a case. But thankfully, that isn't the legal environment we live in, because apparently the "Terrorists got the Last Laugh" in Al-Odah v. Bush. How nice. By the way, much credit to Mr. Mirengoff for registering is support for the right side in Hamdi and Padilla, at least. But if two of the three decisions were correct, why are the negative theme of the post? Moreover, what am I supposed to take from this excerpt in his latest attack on the Court?
"...most of the decisions [by the Supreme Court] aren't viewed as that earth-shaking from a policy standpoint, even by people who disagree with them. This is not to say that they don't have serious consequences. The defendant in the juvenile death penalty case took into account his belief that he would not be executed if he indulged his desire to murder. Now that the killer's belief has been validated and become the law of the land, a few more people probably will be murdered based on a similar calculation. But these murders will occur away from the limelight, after ordinary people have forgotten all about the Court's decision. It would take something as dramatic as a major act of terrorism by a detainee released due to a Supreme Court decision to shake the public's willingness to tolerate the Supreme Court's imperialism." [emphasis added]
Either the decisions were right, and suspected terrorists do have the right to due process of law, or they were imperialist whims of an unaccountable court. You got to pick one or the other. Hyper-ventilation aside, I have not seen much evidence to support the notion that this Court has stepped too far in its constitutional interpretation, regardless of whether we're talking about Liberal nightmares like U.S. v. Lopez and U.S. v. Morrison, or Conservative anathemas like Lawrence v. Texas or, apparently, Roper v. Simmons. Take a deep breath, and calm down.
Good News Club
The Bull-Moose directs me to some of the best news I've heard in a long time: Tom DeLay is getting nervous about his re-election prospects back home in Texas. DeLay's mid-term redistricting episode got five new Republicans into the House--but at the cost of making his own district substantially less secure. The local media has turned against him, and the Democratic challenger in 2004--relative unknown Richard Morrison--managed to hold him to only 55% of the vote. Since then, the stench of scandel has only grown around the good Representative, and national Democrats are beginning to eye the district carefully.
It appears even Texans know a rat when they see (or smell) one. Here's to hoping that the Exterminator goes back to zapping bugs down in Sugar Land.
It appears even Texans know a rat when they see (or smell) one. Here's to hoping that the Exterminator goes back to zapping bugs down in Sugar Land.
Thursday, March 03, 2005
Private Aid
A few commenters took issue with my last post where I applauded Democrats for finally showing some spine on Social Security. They argued that Social Security is faltering and we need to do something to put it back on solvent footing. Thus, Democratic opposition to privatization is not something to be applauded but rather something to be protested. Now to start, I'm not sure I accept the claim that Social Security is dying as true. Kevin Drum has been excellent in showing how the Social Security projections have consistently been too pessimistic over the years. Furthermore, as has been noted over and over, once that magical 2018 barrier passes us by, Social Security will begin paying out more than it takes in, making it...like every other federal program. So I'm sorry, but it's pretty hard to motivate myself here.
However, let's take the claim at face value (after all, the Democrats did a fair bit of Social Security scare-mongering in their time as well). What I don't get is how Privatization will in any way, shape, or form, help the problem. Not even solve it, but help it. I've never seen any analysis that even purports to show how privatization will fix the short-term solvency crisis. I have seen tons of evidence showing how it would exacerbate the problem--by giving us a funding gap of several trillion dollars and by sucking away part of the funds in fees. This is why Talking Points Memo's constant refrain of Bush proposing "Social Security phase-out" actually carries some weight with me (and other more sober center-leftists as well, see this post on TNR's Etc. blog)--it actually appears to be the most likely upshot of his signature proposal.
So this is a call to all my Republican (or otherwise pro-privatization) pals. How does privatization help restore the Social Security system to solvency? I'm not interested on any other reasons why it's a good idea, just that particular facet of the argument. Thanks a bunch.
However, let's take the claim at face value (after all, the Democrats did a fair bit of Social Security scare-mongering in their time as well). What I don't get is how Privatization will in any way, shape, or form, help the problem. Not even solve it, but help it. I've never seen any analysis that even purports to show how privatization will fix the short-term solvency crisis. I have seen tons of evidence showing how it would exacerbate the problem--by giving us a funding gap of several trillion dollars and by sucking away part of the funds in fees. This is why Talking Points Memo's constant refrain of Bush proposing "Social Security phase-out" actually carries some weight with me (and other more sober center-leftists as well, see this post on TNR's Etc. blog)--it actually appears to be the most likely upshot of his signature proposal.
So this is a call to all my Republican (or otherwise pro-privatization) pals. How does privatization help restore the Social Security system to solvency? I'm not interested on any other reasons why it's a good idea, just that particular facet of the argument. Thanks a bunch.
Wednesday, March 02, 2005
Finding Their Voice
Is it just me, or has the relentless pummeling the Democrats have taken in the last 3 elections finally given them back their voice? After Election 2000, Democrats wouldn't speak up because there was a collective consensus that we needed to "unite as a country" after the Florida debacle; from 2001-2002 Democrats couldn't speak for fear of being labeled "unpatriotic" and losing the 2002 elections; after getting crushed in those elections Democrats were left dazed and reeling, and finally came together just long enough to fall back into flimsy wishiwashiness for the 2004 election. And of course, they lost then too.
But with no groundshaking events to put them on their heels, no more prospect of kicking Bush out of office to keep them motivated, and no elections until 2006 (and with virtually all vulnerable Democrats have already been knocked out of office anyway), Democrats finally have absolutely nothing left to fear. And with Bush's politically suicidal Social Security Privitization Scheme at the top of the news, the Democrats have appeared to find their voice for the first time since Bush got elected...in 2000.
America was designed to have checks and balances, with the minority party acting as a hedge against majoritarian extremism. The Democrats have not been able to fulfill that role for too long. Let us hope that their new-found political spine lasts for the next four years. America sure needs the help.
But with no groundshaking events to put them on their heels, no more prospect of kicking Bush out of office to keep them motivated, and no elections until 2006 (and with virtually all vulnerable Democrats have already been knocked out of office anyway), Democrats finally have absolutely nothing left to fear. And with Bush's politically suicidal Social Security Privitization Scheme at the top of the news, the Democrats have appeared to find their voice for the first time since Bush got elected...in 2000.
America was designed to have checks and balances, with the minority party acting as a hedge against majoritarian extremism. The Democrats have not been able to fulfill that role for too long. Let us hope that their new-found political spine lasts for the next four years. America sure needs the help.
Introducing "State o' Nature"
In the same vein as Poly Sci romance, Poly Sci bedtime stories, and Poly Sci pickup lines, we give you Poly Sci gangsta rap, with a cover on my man J-Locke.
Then in comments:
You can credit Oxblog for that lovely addition to your collective intellectual repertoires. And let me just shout out: East Side!!! D.C. What Up?!?
And now I quietly will return to my lily-white Minnesota rural College. Thank you for your indulgence.
"Political power, wanna know the truth?
Get to the roots, man, get to the roots.
What’s it like without the state?
Freedom, freedom nothing to hate.
Who’s the pimp and who’s the whore?
Don’t talk to me til you learn the score!
Unless our maker says I’m first,
Me and you’s equals on this earth."
Then in comments:
"You betta watch what tha fuck flies outa ya mouth
Or Ima burn your house down with ya tied to ya couch
Cos reward and punishment’s the only rational way
To make a fuckin man do whatever the fuck I say
I gotta viewa human nature that’s tabula rasa
Cos you don’t know shit til I make you my masta
Separation a powers, got my checks and balances
And the Glorious Revolution got me in the palaces
And you mystical muthafuckas just look like some phalluses
Locke down and cold, murdering all yo fallacies.
Empirical truth, mutha, don’t ever try to diss me
Cos I got rhymes that’s colder than Walt Disney
My lyrics are like syphallus but harder to catch
An if you don’t obey my law, then you gettin yo ass capped
You gettin locked in the pen fo ten to fifty
Monopoly a violence boy, cos you lookin shifty
You Hobbesian people swallow like Bambi Woods
And you’d never live a day in the projects or the hoods
Cos you ignorant about what keeps men from they selfish ways
Private property, boy, helps the people get paid."
You can credit Oxblog for that lovely addition to your collective intellectual repertoires. And let me just shout out: East Side!!! D.C. What Up?!?
And now I quietly will return to my lily-white Minnesota rural College. Thank you for your indulgence.
Tuesday, March 01, 2005
Proof of Syrian Terror, Part 2
I posted earlier on a report that the Israeli government had proof that Syria was linked to the latest suicide bomb attack in Tel Aviv. Now it appears that the US is onboard with this theory as well. Clearly, this isn't really too shocking, as Syria's animosity toward the Jewish state is well known. How this will impact the peace process, however, (not to mention the ongoing events in Lebanon, and, oh yeah, Iraq) remains to be seen. It is still unclear whether or not Europe has the spine to take decisive action against the enablers of terrorism in the region. Here's to hoping, though.
Legally Speaking
Legal Affairs points us to the Supreme Court's decision in Roper v. Simmons, striking down the use of the death penalty on juvenile offenders. Justice Kennedy wrote the opinion of the Court, Stevens concurred, and dissents were authored by O'Connor and Scalia. Scalia, by the way, gains points for intellectual consistency but is docked on persuasiveness for arguing that original intent would allow us to execute seven year olds for certain criminal acts.
Powerline is angered by the Court's use, once again, of foreign opinion and standards as part of its decision (Scalia, unsurprisingly, also blasts the majority on this, as does Crescat Sententia's Waddling Thunder). I'm more placid about it. I can certainly see the dangers of relying too heavily on foreign case law and community standards in American constitutional law; after all, they didn't ratify our constitution and didn't vote for our laws. However, let's keep in mind what specific constitutional clause we're talking about here: The 8th Amendment's prohibition on "cruel and unusual punishment." As John Hart Ely noted in his masterpiece Democracy and Distrust, those words have no meaning behind them UNLESS we look at what the overall contemporary community feels about the issue. Executing seven year olds may not have been unusual in 1789, but it certainly would be today. And as the Court aptly notes, the United States is very unusual in the modern world by executing juveniles. Now, I'm not a huge fan of originalist interpretations of the constitution in any event, but in this case the constitution seemed use rhetoric specifically designed to change with age--ironically, the very facet of the opinion Justice Scalia criticizes in the introduction to his dissent. In this respect, Justice Scalia and his allies are so wrapped up in the original context in which the amendment was passed that they appear to ignore the original intent inherent in how the amendment was written--using language that specifically requires us to look to contemporary moral norms in evaluating whether or not a practice violates our constitution. I do not think noticing that the US stands nearly alone in executing juveniles violates either the letter or the spirit of that mandate.
Powerline uses this case to highlight the importance of who President Bush will name to the Court, and points us the post immediately prior where it endorses Michael McConnell for the bench. I'm happy to say I concur in this assessment, Judge McConnell is a brilliant scholar and would represent a fine addition to the Supreme Court. Hopefully, this all-too-rare occasion of concurrence between Powerline and The Debate Link will signal that McConnell is someone everybody can agree on for the Supreme Court. In fact, my only grievance with Powerline on this issue is that they got to see Mr. McConnell while he was in Minneapolis, and I didn't. I will freely admit my jealousy.
Powerline is angered by the Court's use, once again, of foreign opinion and standards as part of its decision (Scalia, unsurprisingly, also blasts the majority on this, as does Crescat Sententia's Waddling Thunder). I'm more placid about it. I can certainly see the dangers of relying too heavily on foreign case law and community standards in American constitutional law; after all, they didn't ratify our constitution and didn't vote for our laws. However, let's keep in mind what specific constitutional clause we're talking about here: The 8th Amendment's prohibition on "cruel and unusual punishment." As John Hart Ely noted in his masterpiece Democracy and Distrust, those words have no meaning behind them UNLESS we look at what the overall contemporary community feels about the issue. Executing seven year olds may not have been unusual in 1789, but it certainly would be today. And as the Court aptly notes, the United States is very unusual in the modern world by executing juveniles. Now, I'm not a huge fan of originalist interpretations of the constitution in any event, but in this case the constitution seemed use rhetoric specifically designed to change with age--ironically, the very facet of the opinion Justice Scalia criticizes in the introduction to his dissent. In this respect, Justice Scalia and his allies are so wrapped up in the original context in which the amendment was passed that they appear to ignore the original intent inherent in how the amendment was written--using language that specifically requires us to look to contemporary moral norms in evaluating whether or not a practice violates our constitution. I do not think noticing that the US stands nearly alone in executing juveniles violates either the letter or the spirit of that mandate.
Powerline uses this case to highlight the importance of who President Bush will name to the Court, and points us the post immediately prior where it endorses Michael McConnell for the bench. I'm happy to say I concur in this assessment, Judge McConnell is a brilliant scholar and would represent a fine addition to the Supreme Court. Hopefully, this all-too-rare occasion of concurrence between Powerline and The Debate Link will signal that McConnell is someone everybody can agree on for the Supreme Court. In fact, my only grievance with Powerline on this issue is that they got to see Mr. McConnell while he was in Minneapolis, and I didn't. I will freely admit my jealousy.
Monday, February 28, 2005
Padilla Detained Illegally
The Volokh Conspiracy, among other sources, directs my attention to this ruling. A Federal Judge in South Carolina--Bush appointee, one might add--has ruled that the President does not have the authority to detain Jose Padilla as an enemy combatant. The Washington Post has an article on it coming out tomorrow, but frankly one would do better to read the Law Professor blogs out there for a good summation.
Nothing in the opinion is too earth-shattering, though conservatives across the nation would do well to read this quote:
When the law explicitly grants certain protections, a Court is just as activist when it defaults to the democratic branches of government as it is when it overrules those branches to create its own social policy. It applies here, where the constitution very clearly mandates that criminals receive procedural protections (except in a few very limited scenarios not implicated by the case), and it applies to many of the "activist" rulings the Court has been criticized for in the past--most of which were just giving the 1st or 14th amendment some teeth. The law says equal protection, so the only "activist" decision would be upholding irrational restrictions that solely apply to gay couples seeking to adopt children. Somehow, this concept remains difficult to grasp, but amazingly enough sometimes "upholding the law" means doing things conservatives won't like.
The most interesting outgrowth of this is what will happen on appeal. There is obviously no way the 4th circuit court of appeals will not weigh in on this matter. But as I've pointed out, two of the top names on Bush's Supreme Court shortlist--J. Michael Luttig and J. Harvie Wilkinson III--both sit on that bench. If either is part of the panel, it could produce some interesting fodder for confirmation hearings.
Nothing in the opinion is too earth-shattering, though conservatives across the nation would do well to read this quote:
"For the Court to find for Respondent would also be to engage in judicial activism. This Court sits to interpret the law as it is and not as the Court might wish it to be."
When the law explicitly grants certain protections, a Court is just as activist when it defaults to the democratic branches of government as it is when it overrules those branches to create its own social policy. It applies here, where the constitution very clearly mandates that criminals receive procedural protections (except in a few very limited scenarios not implicated by the case), and it applies to many of the "activist" rulings the Court has been criticized for in the past--most of which were just giving the 1st or 14th amendment some teeth. The law says equal protection, so the only "activist" decision would be upholding irrational restrictions that solely apply to gay couples seeking to adopt children. Somehow, this concept remains difficult to grasp, but amazingly enough sometimes "upholding the law" means doing things conservatives won't like.
The most interesting outgrowth of this is what will happen on appeal. There is obviously no way the 4th circuit court of appeals will not weigh in on this matter. But as I've pointed out, two of the top names on Bush's Supreme Court shortlist--J. Michael Luttig and J. Harvie Wilkinson III--both sit on that bench. If either is part of the panel, it could produce some interesting fodder for confirmation hearings.
"Not on my Watch"
I just returned from a lecture by Smith College Professor and Darfur expert Eric Reeves, who also maintains a very useful website that has everything you'd ever need to know on the issue. He was absolutely spell-binding, and hit on virtually every important aspect of the conflict I could think of. Unfortunately, the upshot was a prevailing skepticism that anything will be done to stop the killing that is now a matter of routine there.
One of the areas Prof. Reeves addressed was the possibility of using the African Union troops to defuse the crisis. Brian Ulrich specifically mentioned the African Union specifically and "regional actors" in general as the preferred mechanism for stopping genocide. Unfortunately, Prof. Reeves seemed quite assured that the AU could not solve the problem. For one, they are not experienced enough--this is the AU's first major deployment and so far it has been an ignoble failure. To be fair, they have only 2000 troops with a limited mandate patrolling an area the size of France. However, that just emphasizes the second problem: The AU is still not politically stable enough to coordinate an effective response. Reeves gave the example of Nigeria, a key player in the Union. Nigeria's problem is that they are currently facing unrest in their predominantly Muslim north, and the Arab League has made it very clear that if they wish to avoid further trouble they should lay off on Khartoum. The result is that President Obasanjo has basically sold out Darfur to maintain domestic stability. And even if we could get past all of that, there still remains the problem of logistics. The AU simply does not have the equipment to facilitate the massive amounts of humanitarian aid that needs to be forwarded to the region. Reeves believes that even if the AU managed to make a full deployment to Darfur, it still is not adequately equipped to alleviate the crisis.
The UN is no better. The big problem on the UN's end of things is China. China is Sudan's largest foreign investor, and sees it as key to satisfying its future oil needs. China also has a veto on the Security Council, which it has threatened to use if the UN so much as threatens sanctions, much less the military response that clearly is necessary here. Basically, China wants to use Africa as a jumping off point for its hegemonic ambitions, so they are willing to overlook such trivialities like their allies engaging in mass murder of their own citizens (incidentally, I originally linked to that article in the context of a long post on why the GOP is philosophically hampered in fighting the war on terror). Even beyond China though, the UN has an abysmal record on genocide in the past. From Cambodia to Rwanda to Bosnia to Congo, the UN has never once shown even the slightest inclination to reacting toward genocide, even when it's occurring right in front of their own eyes (and Kofi Annan is the worst of this lot). The UN promises security, but it has given only betrayal. This is the context in which the UN refuses to even call the events in Darfur genocide because it might just compel them to act.
So what can we do? Reeves cites UN Peacekeeping Gen. Romeo Dallaire as estimating the total amount of ground troops necessary in Darfur as around 45,000--not too bad, and certainly within the capacity of NATO and the other EU nations who presumably could use this opportunity to demonstrate the vitality of the world beyond the US. But the real sticking point isn't ground troops, it's in logistical support and intelligence so that we can make strategic choices and deliver desperately needed humanitarian assistance. This is where US aid would shine, since this is something we excel at and it is a facet of our military sphere this isn't being taxed to the breaking point by Iraq. We can do this. The only question is, will we?
Professor Reeves opened his comments by describing President Bush's reaction to Bill Clinton's strategic ambivalence regarding the Rwandan Genocide. Bush is reported to have written in the margins of the paper, "not on my watch." Well, genocide is happening on your watch, Mr. President. The AU can't act, the UN won't, and the EU is waiting for a sign. It's time for you to take the lead.
One of the areas Prof. Reeves addressed was the possibility of using the African Union troops to defuse the crisis. Brian Ulrich specifically mentioned the African Union specifically and "regional actors" in general as the preferred mechanism for stopping genocide. Unfortunately, Prof. Reeves seemed quite assured that the AU could not solve the problem. For one, they are not experienced enough--this is the AU's first major deployment and so far it has been an ignoble failure. To be fair, they have only 2000 troops with a limited mandate patrolling an area the size of France. However, that just emphasizes the second problem: The AU is still not politically stable enough to coordinate an effective response. Reeves gave the example of Nigeria, a key player in the Union. Nigeria's problem is that they are currently facing unrest in their predominantly Muslim north, and the Arab League has made it very clear that if they wish to avoid further trouble they should lay off on Khartoum. The result is that President Obasanjo has basically sold out Darfur to maintain domestic stability. And even if we could get past all of that, there still remains the problem of logistics. The AU simply does not have the equipment to facilitate the massive amounts of humanitarian aid that needs to be forwarded to the region. Reeves believes that even if the AU managed to make a full deployment to Darfur, it still is not adequately equipped to alleviate the crisis.
The UN is no better. The big problem on the UN's end of things is China. China is Sudan's largest foreign investor, and sees it as key to satisfying its future oil needs. China also has a veto on the Security Council, which it has threatened to use if the UN so much as threatens sanctions, much less the military response that clearly is necessary here. Basically, China wants to use Africa as a jumping off point for its hegemonic ambitions, so they are willing to overlook such trivialities like their allies engaging in mass murder of their own citizens (incidentally, I originally linked to that article in the context of a long post on why the GOP is philosophically hampered in fighting the war on terror). Even beyond China though, the UN has an abysmal record on genocide in the past. From Cambodia to Rwanda to Bosnia to Congo, the UN has never once shown even the slightest inclination to reacting toward genocide, even when it's occurring right in front of their own eyes (and Kofi Annan is the worst of this lot). The UN promises security, but it has given only betrayal. This is the context in which the UN refuses to even call the events in Darfur genocide because it might just compel them to act.
So what can we do? Reeves cites UN Peacekeeping Gen. Romeo Dallaire as estimating the total amount of ground troops necessary in Darfur as around 45,000--not too bad, and certainly within the capacity of NATO and the other EU nations who presumably could use this opportunity to demonstrate the vitality of the world beyond the US. But the real sticking point isn't ground troops, it's in logistical support and intelligence so that we can make strategic choices and deliver desperately needed humanitarian assistance. This is where US aid would shine, since this is something we excel at and it is a facet of our military sphere this isn't being taxed to the breaking point by Iraq. We can do this. The only question is, will we?
Professor Reeves opened his comments by describing President Bush's reaction to Bill Clinton's strategic ambivalence regarding the Rwandan Genocide. Bush is reported to have written in the margins of the paper, "not on my watch." Well, genocide is happening on your watch, Mr. President. The AU can't act, the UN won't, and the EU is waiting for a sign. It's time for you to take the lead.
Proof of Syrian Terror?
UPDATE: 2/28 @ 1:42 PM
The Moderate Voice links to a report by the Xinhau news agency that Israel has proof of Syrian involvement in last weeks Tel Aviv suicide bombing--and is briefing European diplomats on the matter.
For those of you who don't know, Xinhau is the state news agency of China, so take whatever it says with a grain of salt. Still, this could be very interesting, especially since, as TMV notes, Syria is already under intense scrutiny of its support for insurgents and possible backing of the Rafik Hariri assassination. So while normally Europe might just scrape by with a half-hearted condemnation and call for dialogue, here we might finally see some action.
Developing...
UPDATE: The Pro-Syrian Lebanese government has just resigned. This keeps getting better and better.
The Moderate Voice links to a report by the Xinhau news agency that Israel has proof of Syrian involvement in last weeks Tel Aviv suicide bombing--and is briefing European diplomats on the matter.
For those of you who don't know, Xinhau is the state news agency of China, so take whatever it says with a grain of salt. Still, this could be very interesting, especially since, as TMV notes, Syria is already under intense scrutiny of its support for insurgents and possible backing of the Rafik Hariri assassination. So while normally Europe might just scrape by with a half-hearted condemnation and call for dialogue, here we might finally see some action.
Developing...
UPDATE: The Pro-Syrian Lebanese government has just resigned. This keeps getting better and better.
Sunday, February 27, 2005
Observer Article Online
Hey, this is neat. Unbeknownst to me, the Carleton Observer, Carleton College's first and only non-partisan journal of politics and public policy (it's run by the Carleton Conservative Union, but don't let that fool you: after all, I write in it!), has some of its archives available online. You can find my first printed article, "Torturous Logic," (not to be confused with my earlier blog post Torturous Reasoning) in this edition. Enjoy!
The REAL Terrorists in our Midst
It's not Osama. It's not al-Qaeda. It's not even the Democrats. Nope, according to far-right wing wacko group Accountability Utah, the real terrorist is Utah State Senator Howard Stephenson (R-Draper). Helpfully reminding us that "not all terrorists wear turbans," AU argues that Stephenson has "promote[d] terrorism, violence, and lawlessness." What did Stephenson do to merit such a claim? Well, according to The Salt Like City Tribune, it's because he voted for a bill stripping illegal aliens of their drivers licenses and giving them instead "driving privilege cards" that wouldn't be acceptable as government identification.
Now, for one glorious, naive second, I assumed their protest was against a really stupid bill that both unnecessarily degrades immigrants and makes our nation less safe by pushing the illegal community further underground and farther out of reach of the law. After all, it strikes me that since the majority of illegal immigrants are generally law abiding, giving them legitimate identification would make it easier to either spot and punish the terrorists (if they tried to get fraudulent ID) or track them (if they tried to stay in the system). Pushing every illegal into the underground community just let's the terrorists blend in with the crowd, and makes it harder for the police to infiltrate the communities they hide within. But that was silly! AU is actually attacking the good senator because the bill doesn't go far enough: "Under the pretense of this reform, this legislation continues to allow al-Qaida operatives to obtain Utah driver's licenses and roam freely in our communities." And the comparison to terrorism? According to the Tribune, the organization argued that "the bin Laden comparison was not egregious because Stephenson is contributing to a society that gives incentives to undocumented workers." Moral equivalency, anyone?
Only the farthest reaches of the far right could possibly say that one is a terrorist by giving "incentives to undocumented workers." And some people say the Democrats have been hijacked by extremists...
Thanks to Wonkette for the heads-up.
Now, for one glorious, naive second, I assumed their protest was against a really stupid bill that both unnecessarily degrades immigrants and makes our nation less safe by pushing the illegal community further underground and farther out of reach of the law. After all, it strikes me that since the majority of illegal immigrants are generally law abiding, giving them legitimate identification would make it easier to either spot and punish the terrorists (if they tried to get fraudulent ID) or track them (if they tried to stay in the system). Pushing every illegal into the underground community just let's the terrorists blend in with the crowd, and makes it harder for the police to infiltrate the communities they hide within. But that was silly! AU is actually attacking the good senator because the bill doesn't go far enough: "Under the pretense of this reform, this legislation continues to allow al-Qaida operatives to obtain Utah driver's licenses and roam freely in our communities." And the comparison to terrorism? According to the Tribune, the organization argued that "the bin Laden comparison was not egregious because Stephenson is contributing to a society that gives incentives to undocumented workers." Moral equivalency, anyone?
Only the farthest reaches of the far right could possibly say that one is a terrorist by giving "incentives to undocumented workers." And some people say the Democrats have been hijacked by extremists...
Thanks to Wonkette for the heads-up.
Deaniacs on the Warpath
Well, it looks like the Conservatives were right. Howard Dean's rabidly liberal base will never countenance the use of American force--even in the face of genocide. Why, just look at this post over at Dean Nation, a blog "dedicated to the spirit of the Dean Movement" (link: Oxblog). It's outrageous:
Well, I'll be darned. Looks like there might be some spine in the Deaniac movement after all. I wrote on Centerfield that the political community should hold off judgment on Dean and his cohorts until he had a chance to prove himself. After all, once upon a forgotten past, Dean was considered a DLC stalwart and a bit of a hawk. And while this post wasn't Dean himself, it is a positive sign that one of his more rabid supporters would come out so strongly in favor of American military intervention in Darfur. And judging by the rhetoric he uses, while it would preferable for the international community to act, he agrees that the US must be willing to act alone, if necessary, to stop the brutality that is rapidly encompassing the Darfur region.
On his other blog, however, the author of the above post is slightly less encouraging. He writes there:
This seems quite a bit more tame than what was written on the other blog. Still, as long as "whenever possible" actually has some meat behind it, then we're still cool. Certainly, the US acting as a "community leader" on the Darfur issue, pressing the world for action, would represent a major improvement on the half-hearted condemnations that are the status quo. On this point, I disagree with the authors assertion that the Bush administration has been "pretty good on Sudan," as it has been entirely too quite and complacent in the face of the genocide there. It has in no way made any major steps geared toward compelling an international response to the Darfur atrocity. We have seen barely any substantive US action on Sudan since we labeled it a "genocide" in the first place, a "response" which I've argued is impoverishing the entire meaning of the term "genocide". If the US can label something "genocide" and still not take an action, then I think we're worse off than when we started, because it sends the message that genocide is something the world will tolerate. This emboldens the killers, past, present and future. Genocide expert Samantha Power gives the example of Serbia:
All of the above carping notwithstanding, the original point still stands: the worst nightmare of Truman Democrats like myself of the Dean ascendancy, that the US will never intervene in foreign conflicts again, appears to be unlikely to pass. Get past that hurdle, and one of my key discomforts with the modern Democratic party falls by the wayside.
"Since this nation was founded, the world has become increasingly interdependent, and at least since Woodrow Wilson worked passionately for the League of Nations, Americans have been at the forefront of efforts to build an international community based off the interests of all rather than narrow alliances for the interests of the participants. And the international community has declared that there is no greater atrocity than the extermination of those whose only crime is to be both different and inconvenient. Genocide and ethnic cleansing are not mere instances of local conflict, but threats to the very foundation of an international order based on the interactions between peoples.
The time has come to enforce these principles, not merely with the words of diplomats and campaigns of activists, but, when necessary and practical, with strength. This is not just a humanitarian principle...
[...]
As wonderful as it would be, we cannot end all war. We can, however, draw a line in the sand at indiscriminate slaughter aimed at the elimination of whole populations. And right now in Darfur, we have the chance to act. The international community must enact and enforce a no-fly zone over the region to prevent the Khartoum regime from using its helicopter gunships. We must slap an arms embargo on the Sudan, and a deployed peacekeeping force must have the strength and authority to disarm combatants within the region. Finally, we must crack down on those responsible through referrals to the International Criminal Court. I am not interested in discussing the merits of this court; this is a debate which the United States must postpone due to the clear and present danger to innocent life. The world's most powerful nation must not cower at the expense [of] children who face unspeakable brutalization."
Well, I'll be darned. Looks like there might be some spine in the Deaniac movement after all. I wrote on Centerfield that the political community should hold off judgment on Dean and his cohorts until he had a chance to prove himself. After all, once upon a forgotten past, Dean was considered a DLC stalwart and a bit of a hawk. And while this post wasn't Dean himself, it is a positive sign that one of his more rabid supporters would come out so strongly in favor of American military intervention in Darfur. And judging by the rhetoric he uses, while it would preferable for the international community to act, he agrees that the US must be willing to act alone, if necessary, to stop the brutality that is rapidly encompassing the Darfur region.
On his other blog, however, the author of the above post is slightly less encouraging. He writes there:
"In the comments, someone has already raised the issue of the U.S.'s limited manpower, and I also anticipate objections to my doctrine as stated that we cannot become the world's police. I agree with both these concerns. When I make specific suggestions, my "we" should be interpreted as referring to the broader international community. The Bush administration has actually been pretty good on Sudan. As far as the "world's police" concern, I'd argue that we need to at least be a community leader, willing to jump on these issues wherever and whenever they arise. However, the actual military burdens should be born whenever possible by regional actors who have the most at stake in a given situation. In the case of Darfur, my understanding is that the African Union can do most of what is needed, and simply lacks logistical support."
This seems quite a bit more tame than what was written on the other blog. Still, as long as "whenever possible" actually has some meat behind it, then we're still cool. Certainly, the US acting as a "community leader" on the Darfur issue, pressing the world for action, would represent a major improvement on the half-hearted condemnations that are the status quo. On this point, I disagree with the authors assertion that the Bush administration has been "pretty good on Sudan," as it has been entirely too quite and complacent in the face of the genocide there. It has in no way made any major steps geared toward compelling an international response to the Darfur atrocity. We have seen barely any substantive US action on Sudan since we labeled it a "genocide" in the first place, a "response" which I've argued is impoverishing the entire meaning of the term "genocide". If the US can label something "genocide" and still not take an action, then I think we're worse off than when we started, because it sends the message that genocide is something the world will tolerate. This emboldens the killers, past, present and future. Genocide expert Samantha Power gives the example of Serbia:
"Slobodan Milosevic saw that he got away with the brutal suppression of independence movements in Slovenia and Croatia and he reasoned he would pay no price for doing the same in Bosnia and Kosovo. Because so many individual perpetrators were killing for the first time and deciding daily how far they would go, the United States and its European allies missed critical opportunities to try to deter them. When they ignored genocide around the world, the Western powers were not intending to 'green light' the perpetrators. But because the killers told themselves they were doing the world a favor by 'cleansing' the 'undesirables,' some surely interpreted silence as consent or even support.". Indeed, it appears we're actually regressing, as the UN still refuses to apply the term "genocide" to the situation at all. So for possibly the last time in my life I will criticize a Bush policy than even a Deaniac is agreeing with: The current US policy on Sudan and Darfur is abominable and cannot stand.
All of the above carping notwithstanding, the original point still stands: the worst nightmare of Truman Democrats like myself of the Dean ascendancy, that the US will never intervene in foreign conflicts again, appears to be unlikely to pass. Get past that hurdle, and one of my key discomforts with the modern Democratic party falls by the wayside.
Friday, February 25, 2005
Values-Based Debate
I've gotten some great emails and some intriguing comments on my earlier post regarding Bush's stance on the FMA. I want to write one, long, uber-post explaining my position on this issue and why I think it is a moral imperative that America grant marriage equality to gays.
I. The Morals Problem
The most common attack on gay marriage is that it is "immoral." The problem with that statement is that it is an entirely empty term. I have no idea what "moral" means. I happen to think that equality is "moral." Clearly, others do not. Just parroting the word "moral" over and over again doesn't get us anywhere, because it is too vague. Gay marriage must succeed or fail based on something more concrete.
Generally, something can be considered moral or immoral based on whether it violates some socially accepted value. "Morality" isn't a value, it is a term that encompasses values. Preserving the family might be considered a value. Equal protection might be considered another. Liberty could be a third. Analysis of gay marriage must begin with an examination of how it impacts into specific social values. At that point, we can begin a comparison and start weighing the benefits versus the harms.
II. Protecting the Family
The refrain one continuously hears from the religious right (usually juxtaposed next to "morals") is that they are protecting the family. Stable, secure families are undoubtedly a social value, so that strikes me as a good place to start. So the first question we can ask is: Do gay marriages help or harm families?
At no time has anyone ever pointed me to any evidence, statistical or analytical, that homosexual marriages have caused any harm whatsoever to heterosexual families. It does not threaten the benefits accorded to married couples. It does not signify a degrading of the term--unless one feels that homosexual participate in any institution automatically degrades it. Simply put, heterosexual families are not impacted in any material way by the presence of homosexual married couples. The net negative here is zero.
On the positive side of the ledger, homosexual marriage provides the same benefits to said couples, and their families, that heterosexual marriage does. It affords social legitimacy, provides standardized and streamlined mechanisms for allocating benefits, and grants stability to any children that the family may be raising. I would add another issue as well: the existence of legal restrictions against homosexuals as homosexuals legitimizes their subordinate status. Especially in schoolyard environments which are so sensitive to the prevailing social winds, this has the potential for severe harm to the children of homosexual children (see "anti-subordination" below).
III. Equal Protection
Another value we hold dear in society is equal protection of the law. Indeed, some might argue that this is the paramount value upon which all others are based. The reason that democracies cannot willy-nilly oppress minorities is that any law passed by the legislature must apply equally to the most and least powerful among us. Hence, laws that either single out one group for negative (or positive) treatment must have at least some rational basis in law. The bar is raised to strict scrutiny when the group in question is a "discrete and insular minority," or has been the past target of animus and discrimination. Homosexuals, needless to say, fall in both categories.
So now we turn to whether the prohibition on gay marriage violates the equal protection of the laws. The answer is clearly in the affirmative.
The most obvious parallel is to the prohibitions on inter-racial marriage, held unconstitutional in Loving v. Virginia. The equal-protection violation in that case was clear: If White Man A married White Women B, we had a legal marriage; but if White Man A married Black Women C, then we had a crime. Since the only change was in the race of the party, it clearly was a case of racial discrimination.
Defenders of marriage discrimination rejoin that there is no similar violation here because all men--hetero- and homosexual--are equally barred from marrying other men (and of course, the same applies to women). First of all, I think that is a pretty skewed perception of what marriage means. The right to marry means little if it does not include the right to marry one someone of your choice. Heterosexuals get that choice, homosexuals do not. Once again, marriage is not just about giving two people the socially sanctioned right to have procreative sex. If that was the case, we'd simply pair folks off randomly and assign them to have children. The beauty in marriage lies in two persons consciously choosing to spend the rest of their life together, as a family, often with children. However, even if you don't buy that, the above analogy is illustrative on why marriage discrimination violates equal protection. Let us recast it in terms of the debate at hand. Male A marries Female B, valid marriage. Male A marries Male C, invalid marriage. In this case, the only difference is in the sex of the party, which is also not a valid reason to discriminate under the constitution. The equal protection violation remains.
There are other equal protection shortcomings inherent to the anti-gay marriage case as well. The most prominent is that defenders of marriage discrimination make no effort to apply their logic to similarly situated persons. As I wrote in my analysis of the 11th Circuit Court of Appeals case Lofton v. Department of Children and Family Services:
Virtually all arguments against homosexual marriage come apart under this standard. If the state is seeking to encourage procreation, it shouldn't be giving benefits to non-procreative couples. If the state is worried about social stigmatization of children, then it should be precluded from allowing inter-racial couples to marry. If the state wants parents who will be good role models, then it should prevent anybody but Doctors and Lawyers from marrying. There simply isn't a shred of evidence that can be used to prevent homosexual marriage that could not also be used to strip away rights from people whom society overwhelmingly agrees should be protected. Call this the inverted slippery slope: If we affirm that homosexuals can be discriminated against under law, then there are any number of discriminatory actions we'd have to take against other groups in order to satisfy the dictates of equal protection. Which conveniently moves me to...
IV. The Slippery Slope
The slippery slope argument is another popular one to make. It basically says "even if homosexual marriage isn't that bad, it will invariably lead to X which IS horrible, so we can't set down that path." Now, as I demonstrated above, the slippery slope goes both ways so it really isn't a valid argument. However, if we deconstruct the logic behind "slippery slope," we can see how it falters.
The reason that the "X" above is presumed to be a persuasive reason not to allow gay marriage is because X is some very bad thing. Gay marriage isn't a very bad thing--if it was, we wouldn't even need to raise the comparison to X in the first place. We could simply explain all the bad things associated with gay marriage. However, is X really is that bad, it should not be that difficult to figure what makes it bad when homosexual marriage is not. Take bestiality, a common marker (thank you Senator Santorum!) that the gay marriage slippery slope is supposed to take us past. What makes bestiality bad when gay marriage is not? Animals, of course, cannot consent, while gay couples can. Since we don't allow entities to enter into relationships without giving consent (which implies the capacity to give it), bestiality can be prohibited when homosexual marriage is not. Another example is incest. Here the problem is in harm to any child formed from the relation. Children of incestuous relations are at a statistically far higher risk to any number of genetic diseases and defects. It is protecting these potential children from harm that justifies anti-Incest legislation; clearly this also does not bear any relevancy to homosexual marriage either (incidentally, we can prohibit homosexual incest as well based on equal protection arguments--it would be wrong to grant homosexual couples a right (incest) not granted to heterosexual couples). The slippery slope can be stopped rather easily.
V. Anti-Subordination
It is generally agreed that the state should not subordinate certain groups, labeling them as subhuman and unworthy of basic respect. The problem with codified discrimination is that it is stigmatizing. Law is seen by society as a reflection of reality--those that society chooses to stigmatize via the allocation of legal sanction are presumed to deserve their reduced status. This process of stigmatization can rapidly spiral out of control; even if we want to limit the stigma only to a specific aspect (in this case, that Gays shouldn't be allowed to marry), the stigma has a tendency to reproduce itself as a general proof of inferiority. Ernest Goffman elaborates:
Persons who notice that some persons are not accorded the same respect as others will condition themselves to see the disrespected person in that light. A man who grows up around slaves is being told explicitly that blacks are incapable of self-rule. Implicitly, he is likely to construct broader theories of black inferiority: Blacks are stupid, they are lazy, they are churlish, they are simpleminded, they are sexual predators. Worse yet, the sheer ubiquitousness of these social norms will likely inoculate these same values in the oppressed party--Blacks will see themselves as inferior because that is what society tells them they are. Thus, even narrow deprivations of rights reify discriminatory attitudes across the board. For homosexuals, the signal of the FMA is that they are not equal citizens, that they are something society must be afforded "protected against" under law. It is a very small leap from saying we need to protected against gay marriage, to the society claiming protection against gay sexual molestation, gay cultural abuse, or gay mental instability.
Indeed, the inoculation of discriminatory attitudes perhaps is the worst of all the harms accorded by the FMA because it precludes societal correction or change. This is because in addition to being discriminated against de jure, the stigmatized will be de facto barred from the political process. Any advocacy on behalf of the stigmatized opens the advocate to the same stigmatization, thus, the oppressed party is more likely to withdraw from political controversies so as to not provoke any further backlash. Elisabeth Noelle-Neumann terms this the "spiral of silence": as a social norm becomes more entrenched, dissenters are more likely to self-censor themselves rather than risk the repercussions that stem from challenging the dominant view. This has the effect of further entrenching that view, and a feedback loop ensues. The Supreme Court has recognized as much in its refusal to continence the endorsement of certain religious views:
VI. Liberty
America was founded on the premise of liberty. With some exceptions, it is assumed that persons can do what they like so long as it does not harm others (John Stuart Mill's famous "Harms Principle"). The law cannot, without some demonstration of harm, prevent me from putting cream in my coffee. That action does not harm society in any way, it has no impact on my neighbors, and it is totally beyond the scope of a legitimate government. If something as mundane as coffee is immune from governmental reproach, how much more protected must such a fundamental decision as marriage be! Those who would deny homosexuals the right to marry love to wax eloquent about the importance, the sheer essentiality, of the marital rites. Yet if we are prepared to declare those rites to be fundamental, to be a possession of all of mankind, then we simply have no warrant or justification to restrict marriage to those we deem worthy. The whole justification behind liberty is that every man and woman has the equal right to pursue their life as they see fit. Every time the government stands in the path of a person's life choice, it is stripping that person of their most basic right of all--the right to be. To be gay, to be straight, to be black, to be white, to be a teacher, doctor, lawyer, policeman, whomever. The right to be whatever you want to be, that is what America is founded upon.
VII. Conclusion
Allowing gay marriage fulfills many core American values. It is pro-family, prevents subordination, affirms liberty, and is in accordance with the principle of equal protection of the laws. To me, these seem like a fair cross-section of what can be reasonably be called "moral values." Weighing against those arguments we have the slippery slope and the fact that a majority of Americans are still opposed to gay marriage (IE, Democracy). The slippery slope argument falls on its own terms, as I proved above. The democratic argument is a serious one. However, our nation has never held democracy higher than the basic constitutional rights we all posses. After all,
I. The Morals Problem
The most common attack on gay marriage is that it is "immoral." The problem with that statement is that it is an entirely empty term. I have no idea what "moral" means. I happen to think that equality is "moral." Clearly, others do not. Just parroting the word "moral" over and over again doesn't get us anywhere, because it is too vague. Gay marriage must succeed or fail based on something more concrete.
Generally, something can be considered moral or immoral based on whether it violates some socially accepted value. "Morality" isn't a value, it is a term that encompasses values. Preserving the family might be considered a value. Equal protection might be considered another. Liberty could be a third. Analysis of gay marriage must begin with an examination of how it impacts into specific social values. At that point, we can begin a comparison and start weighing the benefits versus the harms.
II. Protecting the Family
The refrain one continuously hears from the religious right (usually juxtaposed next to "morals") is that they are protecting the family. Stable, secure families are undoubtedly a social value, so that strikes me as a good place to start. So the first question we can ask is: Do gay marriages help or harm families?
At no time has anyone ever pointed me to any evidence, statistical or analytical, that homosexual marriages have caused any harm whatsoever to heterosexual families. It does not threaten the benefits accorded to married couples. It does not signify a degrading of the term--unless one feels that homosexual participate in any institution automatically degrades it. Simply put, heterosexual families are not impacted in any material way by the presence of homosexual married couples. The net negative here is zero.
On the positive side of the ledger, homosexual marriage provides the same benefits to said couples, and their families, that heterosexual marriage does. It affords social legitimacy, provides standardized and streamlined mechanisms for allocating benefits, and grants stability to any children that the family may be raising. I would add another issue as well: the existence of legal restrictions against homosexuals as homosexuals legitimizes their subordinate status. Especially in schoolyard environments which are so sensitive to the prevailing social winds, this has the potential for severe harm to the children of homosexual children (see "anti-subordination" below).
III. Equal Protection
Another value we hold dear in society is equal protection of the law. Indeed, some might argue that this is the paramount value upon which all others are based. The reason that democracies cannot willy-nilly oppress minorities is that any law passed by the legislature must apply equally to the most and least powerful among us. Hence, laws that either single out one group for negative (or positive) treatment must have at least some rational basis in law. The bar is raised to strict scrutiny when the group in question is a "discrete and insular minority," or has been the past target of animus and discrimination. Homosexuals, needless to say, fall in both categories.
So now we turn to whether the prohibition on gay marriage violates the equal protection of the laws. The answer is clearly in the affirmative.
The most obvious parallel is to the prohibitions on inter-racial marriage, held unconstitutional in Loving v. Virginia. The equal-protection violation in that case was clear: If White Man A married White Women B, we had a legal marriage; but if White Man A married Black Women C, then we had a crime. Since the only change was in the race of the party, it clearly was a case of racial discrimination.
Defenders of marriage discrimination rejoin that there is no similar violation here because all men--hetero- and homosexual--are equally barred from marrying other men (and of course, the same applies to women). First of all, I think that is a pretty skewed perception of what marriage means. The right to marry means little if it does not include the right to marry one someone of your choice. Heterosexuals get that choice, homosexuals do not. Once again, marriage is not just about giving two people the socially sanctioned right to have procreative sex. If that was the case, we'd simply pair folks off randomly and assign them to have children. The beauty in marriage lies in two persons consciously choosing to spend the rest of their life together, as a family, often with children. However, even if you don't buy that, the above analogy is illustrative on why marriage discrimination violates equal protection. Let us recast it in terms of the debate at hand. Male A marries Female B, valid marriage. Male A marries Male C, invalid marriage. In this case, the only difference is in the sex of the party, which is also not a valid reason to discriminate under the constitution. The equal protection violation remains.
There are other equal protection shortcomings inherent to the anti-gay marriage case as well. The most prominent is that defenders of marriage discrimination make no effort to apply their logic to similarly situated persons. As I wrote in my analysis of the 11th Circuit Court of Appeals case Lofton v. Department of Children and Family Services:
The vast majority of the state's claims of rationale falter because it makes no effort to apply the same standards to similarly situated people (for example, its claim that it wants children in houses with a mother and a father is undercut by the fact that it allows single people to adopt). The only analysis it gives that arguably only applies to Homosexual couples is that the state might want its children to be "normalized" and that it would be weird and possibly harmful for predominately heterosexual children to be raised by homosexual parents who are implied to be outside the mainstream. Even beyond the substantial psychological evidence which shows that any harm to children raised by homosexual parents is fictive...the flaws in this argument are transparent. First, as the dissent aptly notes, it gives no guidance on how to deal with homosexual children who presumably need a "similar" parent figure as much as heterosexual parent does. Second, it doesn't apply the same standard to other groups that could be termed "outside the mainstream" (like inter-racial couples).
Virtually all arguments against homosexual marriage come apart under this standard. If the state is seeking to encourage procreation, it shouldn't be giving benefits to non-procreative couples. If the state is worried about social stigmatization of children, then it should be precluded from allowing inter-racial couples to marry. If the state wants parents who will be good role models, then it should prevent anybody but Doctors and Lawyers from marrying. There simply isn't a shred of evidence that can be used to prevent homosexual marriage that could not also be used to strip away rights from people whom society overwhelmingly agrees should be protected. Call this the inverted slippery slope: If we affirm that homosexuals can be discriminated against under law, then there are any number of discriminatory actions we'd have to take against other groups in order to satisfy the dictates of equal protection. Which conveniently moves me to...
IV. The Slippery Slope
The slippery slope argument is another popular one to make. It basically says "even if homosexual marriage isn't that bad, it will invariably lead to X which IS horrible, so we can't set down that path." Now, as I demonstrated above, the slippery slope goes both ways so it really isn't a valid argument. However, if we deconstruct the logic behind "slippery slope," we can see how it falters.
The reason that the "X" above is presumed to be a persuasive reason not to allow gay marriage is because X is some very bad thing. Gay marriage isn't a very bad thing--if it was, we wouldn't even need to raise the comparison to X in the first place. We could simply explain all the bad things associated with gay marriage. However, is X really is that bad, it should not be that difficult to figure what makes it bad when homosexual marriage is not. Take bestiality, a common marker (thank you Senator Santorum!) that the gay marriage slippery slope is supposed to take us past. What makes bestiality bad when gay marriage is not? Animals, of course, cannot consent, while gay couples can. Since we don't allow entities to enter into relationships without giving consent (which implies the capacity to give it), bestiality can be prohibited when homosexual marriage is not. Another example is incest. Here the problem is in harm to any child formed from the relation. Children of incestuous relations are at a statistically far higher risk to any number of genetic diseases and defects. It is protecting these potential children from harm that justifies anti-Incest legislation; clearly this also does not bear any relevancy to homosexual marriage either (incidentally, we can prohibit homosexual incest as well based on equal protection arguments--it would be wrong to grant homosexual couples a right (incest) not granted to heterosexual couples). The slippery slope can be stopped rather easily.
V. Anti-Subordination
It is generally agreed that the state should not subordinate certain groups, labeling them as subhuman and unworthy of basic respect. The problem with codified discrimination is that it is stigmatizing. Law is seen by society as a reflection of reality--those that society chooses to stigmatize via the allocation of legal sanction are presumed to deserve their reduced status. This process of stigmatization can rapidly spiral out of control; even if we want to limit the stigma only to a specific aspect (in this case, that Gays shouldn't be allowed to marry), the stigma has a tendency to reproduce itself as a general proof of inferiority. Ernest Goffman elaborates:
The attitudes we normals have toward a person with a stigma, and the actions we take in regard to him, are well known...[W]e believe the person with a stigma is not quite human...We construct a stigma-theory, an ideology to explain his inferiority and account for the danger he represents...imput[ing] a wide range of imperfections on the basis of the original one...
Persons who notice that some persons are not accorded the same respect as others will condition themselves to see the disrespected person in that light. A man who grows up around slaves is being told explicitly that blacks are incapable of self-rule. Implicitly, he is likely to construct broader theories of black inferiority: Blacks are stupid, they are lazy, they are churlish, they are simpleminded, they are sexual predators. Worse yet, the sheer ubiquitousness of these social norms will likely inoculate these same values in the oppressed party--Blacks will see themselves as inferior because that is what society tells them they are. Thus, even narrow deprivations of rights reify discriminatory attitudes across the board. For homosexuals, the signal of the FMA is that they are not equal citizens, that they are something society must be afforded "protected against" under law. It is a very small leap from saying we need to protected against gay marriage, to the society claiming protection against gay sexual molestation, gay cultural abuse, or gay mental instability.
Indeed, the inoculation of discriminatory attitudes perhaps is the worst of all the harms accorded by the FMA because it precludes societal correction or change. This is because in addition to being discriminated against de jure, the stigmatized will be de facto barred from the political process. Any advocacy on behalf of the stigmatized opens the advocate to the same stigmatization, thus, the oppressed party is more likely to withdraw from political controversies so as to not provoke any further backlash. Elisabeth Noelle-Neumann terms this the "spiral of silence": as a social norm becomes more entrenched, dissenters are more likely to self-censor themselves rather than risk the repercussions that stem from challenging the dominant view. This has the effect of further entrenching that view, and a feedback loop ensues. The Supreme Court has recognized as much in its refusal to continence the endorsement of certain religious views:
Endorsement sends the message to non-adherents that they are outsiders, not favored members of the political community; and an accompanying message to adherents that they are insiders, favored members of the political community. [Lynch v. Donnelly, J. O'Connor concurring]The harm is just as severe, indeed probably more so, when the state is specifically "endorsing" the premise that one group is to be considered legally superior to another.
VI. Liberty
America was founded on the premise of liberty. With some exceptions, it is assumed that persons can do what they like so long as it does not harm others (John Stuart Mill's famous "Harms Principle"). The law cannot, without some demonstration of harm, prevent me from putting cream in my coffee. That action does not harm society in any way, it has no impact on my neighbors, and it is totally beyond the scope of a legitimate government. If something as mundane as coffee is immune from governmental reproach, how much more protected must such a fundamental decision as marriage be! Those who would deny homosexuals the right to marry love to wax eloquent about the importance, the sheer essentiality, of the marital rites. Yet if we are prepared to declare those rites to be fundamental, to be a possession of all of mankind, then we simply have no warrant or justification to restrict marriage to those we deem worthy. The whole justification behind liberty is that every man and woman has the equal right to pursue their life as they see fit. Every time the government stands in the path of a person's life choice, it is stripping that person of their most basic right of all--the right to be. To be gay, to be straight, to be black, to be white, to be a teacher, doctor, lawyer, policeman, whomever. The right to be whatever you want to be, that is what America is founded upon.
VII. Conclusion
Allowing gay marriage fulfills many core American values. It is pro-family, prevents subordination, affirms liberty, and is in accordance with the principle of equal protection of the laws. To me, these seem like a fair cross-section of what can be reasonably be called "moral values." Weighing against those arguments we have the slippery slope and the fact that a majority of Americans are still opposed to gay marriage (IE, Democracy). The slippery slope argument falls on its own terms, as I proved above. The democratic argument is a serious one. However, our nation has never held democracy higher than the basic constitutional rights we all posses. After all,
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." [West Virginia v. Barnette]Equal protection (14th amendment) Personal Liberty (9th amendment), and non-discrimination (14th amendment) are principles deeply ingrained in our constitutional and social traditions. Our nation cannot ignore those values without ignoring the very foundations upon which our nation stands. For those reasons, the United States must extend marriage equality to homosexual citizens.
Purely Academic
Todd Zywicki of The VC links to research done by Dan Klein showing that Republicans are vastly underrepresented in the halls of academia. The combined rate of Democrats to Republicans at Stanford and Berkeley is 9:1, and judging by the rate of tenure-track hires it is getting worse. What does this mean?
Zywicki correctly notes that if this was the gender or race based disparity, people would be throwing a fit. And certainly, these statistics are distressing. However, there are some important differences between under-represented ideologies vs. under-represented races or genders. The reason is that while there shouldn't, in theory, be any reason why a particular race would avoid academia, it is quite conceivable that a group based on ideological persuasion might prefer to do other things. That's one of the reasons that race is considered a suspect class and political parties aren't: political party members necessarily share certain values and characteristics, while race and gender based characteristics are overwhelmingly based on stereotype. So it does make a certain degree of sense that softy, idealistic liberals may want to go into teaching and sacrifice the allure of money and power, while hardheaded, realistic conservatives would either enter the private sector or think tanks where they can make more cash and influence authority. I'm not saying this is true, but it is far more reasonable a proposition than any non-discrimination based argument for why Blacks are underrepresented (I include in "discrimination" the continued economic disadvantages faced by minorities as a legacy of past discrimination).
The real question is: Are there significant numbers of Republicans who wish to enter Academia but either a) face institutional obstacles to doing so (such as biased administrators) or b) feel academia is a "hostile environment" to persons with their views? If either of those are true, then we may have a case. But more research needs to be done first.
Zywicki correctly notes that if this was the gender or race based disparity, people would be throwing a fit. And certainly, these statistics are distressing. However, there are some important differences between under-represented ideologies vs. under-represented races or genders. The reason is that while there shouldn't, in theory, be any reason why a particular race would avoid academia, it is quite conceivable that a group based on ideological persuasion might prefer to do other things. That's one of the reasons that race is considered a suspect class and political parties aren't: political party members necessarily share certain values and characteristics, while race and gender based characteristics are overwhelmingly based on stereotype. So it does make a certain degree of sense that softy, idealistic liberals may want to go into teaching and sacrifice the allure of money and power, while hardheaded, realistic conservatives would either enter the private sector or think tanks where they can make more cash and influence authority. I'm not saying this is true, but it is far more reasonable a proposition than any non-discrimination based argument for why Blacks are underrepresented (I include in "discrimination" the continued economic disadvantages faced by minorities as a legacy of past discrimination).
The real question is: Are there significant numbers of Republicans who wish to enter Academia but either a) face institutional obstacles to doing so (such as biased administrators) or b) feel academia is a "hostile environment" to persons with their views? If either of those are true, then we may have a case. But more research needs to be done first.
Thursday, February 24, 2005
The Irony Gods Hate Me
Typical. I receive another link from Powerline. An ensuing Power-lanche results. My hit counts go way up. And what is second from the top on the blog? Why, it's my set of proto-marxist debate evidence! That's the way to endear me to my new guests!
Powerline worries (well, maybe "worries" isn't the right word) that now that I've joined The Centrist Coalition, they don't have a favorite liberal blogger. I still like to think of myself as a Liberal, not in the reactionary Kossack/Michael Moore sense, but in the older Truman/Wilsonian sense. My positions on most social issues is still fairly leftwing (as the comments to this post--probably responding to a Powerline reader--make clear). I have a on-going love affair with critical theorists (IE, Catherine MacKinnon, Richard Delgado, et al) that you certainly won't find anywhere near the "center" of American politics. And considering that it is my old pals the Democrats who have taken up the mantle of fiscal responsibility, I guess I'm economically liberal too. So I'm socially a libertarian-style liberal, economically a fiscal responsbility/pro-poor policy liberal, and internationally a Truman/Wilsonian interventionist liberal. Which in today's political climate makes me...a Centrist.
Which is why I will never enter politics.
Powerline worries (well, maybe "worries" isn't the right word) that now that I've joined The Centrist Coalition, they don't have a favorite liberal blogger. I still like to think of myself as a Liberal, not in the reactionary Kossack/Michael Moore sense, but in the older Truman/Wilsonian sense. My positions on most social issues is still fairly leftwing (as the comments to this post--probably responding to a Powerline reader--make clear). I have a on-going love affair with critical theorists (IE, Catherine MacKinnon, Richard Delgado, et al) that you certainly won't find anywhere near the "center" of American politics. And considering that it is my old pals the Democrats who have taken up the mantle of fiscal responsibility, I guess I'm economically liberal too. So I'm socially a libertarian-style liberal, economically a fiscal responsbility/pro-poor policy liberal, and internationally a Truman/Wilsonian interventionist liberal. Which in today's political climate makes me...a Centrist.
Which is why I will never enter politics.
No More Excuses
Read Nicholas Kristof, then tell me not to intervene in Darfur. 11,000,000 people didn't die in the Holocaust so we could ethically ignore genocide. There simply is no longer any excuse. Any administration: the US, the UN, the EU, the Arab League, whomever, who is refuses to support whatever action necessary to end the atrocities in Sudan permanently forfeits any claims to moral leadership in the world.
Link by The Moderate Voice, who falls on the right side of this issue.
Link by The Moderate Voice, who falls on the right side of this issue.
Wednesday, February 23, 2005
The Anti-Capitalist
Those of you who watched LD finals at Harvard will recognize one of the cards present here from the round. Otherwise, these cards are a gift to the trendy Marxist debater near you.
[A caveat: When I post debate evidence, it should not in any way be taken as an endorsement of the material unless I explicitly say so. Debaters need evidence from all sides of the debate, include evidence that critiques capitalism. They request, I respond]
Brian Massumi, Associate Professor of Comparative Literature at McGill University. The Politics of Everyday Fear. (Minneapolis: University of Minnesota Press, 1993)
IN A CAPITALIST SYSTEM, PERSONS ARE IDENTIFIED SOLELY BY THE COMMODITIES THEY BUY
Rodney D. Peterson, Professor of Economics at Colorado State University. Political Economy and American Capitalism. (Boston: Kluwer Academic, 1991)
ECONOMIC POWER AND POLITICAL POWER ARE IRREVOCABLY INTERTWINED; EACH IS USED TO REINFORCE THE OTHER.
Another line of attack is the famous "tragedy of the commons," which shows how autonomous beings acting totally rationally and without constraint will destroy the environment (for more on the intersection between capitalism and the environment, see my posts here and here)
Garett Hardin, "The Tragedy of the Commons," Science, 162(1968):1243-1248
Capitalism locks rational persons into environmentally destructive decisions
Finally, one undeniable aspect of Capitalism is that it privileges the current generation over the future. The rational capitalist actor has perhaps some incentive to provide for his/her own children, but none whatsover to the other members of generation next. They will not consume the capitalist's products, they will not revolt against his mansion, their cries will not offend his pacified ears. This is immoral.
Philip Phenix, Professor Emeritus of Philosophy and Education at Teachers College, Columbia University. Education and the Common Good: A Moral Philosophy of the Curriculum. Harper and Bros., 1961.
[A caveat: When I post debate evidence, it should not in any way be taken as an endorsement of the material unless I explicitly say so. Debaters need evidence from all sides of the debate, include evidence that critiques capitalism. They request, I respond]
Brian Massumi, Associate Professor of Comparative Literature at McGill University. The Politics of Everyday Fear. (Minneapolis: University of Minnesota Press, 1993)
IN A CAPITALIST SYSTEM, PERSONS ARE IDENTIFIED SOLELY BY THE COMMODITIES THEY BUY
"The commodity endows us with identifiable qualities. It registers our gender, social status, and character traits: buckled up and prudent but still stylish; multi-time zoned jet setter; home-bodyish, with an adventurous streak. The commodity stands (in) for our existence. The ground(lessness) it stands on is the accident in its most general expression--the accident-form, exemplified as downfall, the unqualified or generic founding event. Our generic identity (our subject-form, or humanity) is the generic event (the accident-form); our specific identity (the content of which is our "individuality" or "self") is the sum total of our purchases (axiom 2). In other words, contingency is the form of identity, and identity is determined (given content) through the serial commission of the act of groundless consumption. We buy and buy, until we die. We are in free-fall, held aloft by the thinnest of credit cards. "Shop till you drop" is our motto. We know we are alive--or at least in a state of credit-suspended animation--as long as we are shopping. "I buy therefore I am" (axiom 3). The commodity encounter not only specifies but actualizes the subject of the purchase. The subject of capitalism cannot be said to exist outside the commodity relation." (7, emphasis added)
Rodney D. Peterson, Professor of Economics at Colorado State University. Political Economy and American Capitalism. (Boston: Kluwer Academic, 1991)
ECONOMIC POWER AND POLITICAL POWER ARE IRREVOCABLY INTERTWINED; EACH IS USED TO REINFORCE THE OTHER.
"As political pressure groups from different segments of the citizenry assemble to negotiate, the result is often a compromise skewed in favor of those who were most successful at using their bargaining strengths. Success is often based on the amount of persons a bargainer represents and the property and wealth backing the bargainer. Those with most political influence are often those with most economic advantage. Once both have been acquired, they reciprocate and reinforce each other, especially if the property holders are active in the political arena, pressuring to get laws passed for their benefit, or to gain privileges, subsidies, and favors for themselves from the system. All of this is a logical extension of freedom, self interest, and profit seeking…" (37)
Another line of attack is the famous "tragedy of the commons," which shows how autonomous beings acting totally rationally and without constraint will destroy the environment (for more on the intersection between capitalism and the environment, see my posts here and here)
Garett Hardin, "The Tragedy of the Commons," Science, 162(1968):1243-1248
Capitalism locks rational persons into environmentally destructive decisions
The tragedy of the commons develops in this way. Picture a pasture open to all. It is to be expected that each herdsman will try to keep as many cattle as possible on the commons. Such an arrangement may work reasonably satisfactorily for centuries because tribal wars, poaching, and disease keep the numbers of both man and beast well below the carrying capacity of the land. Finally, however, comes the day of reckoning, that is, the day when the long-desired goal of social stability becomes a reality. At this point, the inherent logic of the commons remorselessly generates tragedy.
As a rational being, each herdsman seeks to maximize his gain. Explicitly or implicitly, more or less consciously, he asks, "What is the utility to me of adding one more animal to my herd?" This utility has one negative and one positive component.
1. The positive component is a function of the increment of one animal. Since the herdsman receives all the proceeds from the sale of the additional animal, the positive utility is nearly + 1.
2. The negative component is a function of the additional overgrazing created by one more animal. Since, however, the effects of overgrazing are shared by all the herdsmen, the negative utility for any particular decisionmaking herdsman is only a fraction of - 1.
Adding together the component partial utilities, the rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another.... But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit -- in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.
Finally, one undeniable aspect of Capitalism is that it privileges the current generation over the future. The rational capitalist actor has perhaps some incentive to provide for his/her own children, but none whatsover to the other members of generation next. They will not consume the capitalist's products, they will not revolt against his mansion, their cries will not offend his pacified ears. This is immoral.
Philip Phenix, Professor Emeritus of Philosophy and Education at Teachers College, Columbia University. Education and the Common Good: A Moral Philosophy of the Curriculum. Harper and Bros., 1961.
"Up to now the people of the industrial nations of the world have lived as though the material bounty of the earth were inexhaustible. In this respect we have been guilty of a "plutocracy of the present," through grasping material privileges without taking account of the needs of future generations. Such a way of life is just as undemocratic as the forcible subjugation of the poor by the wealthy at any given epoch. Democratic justice as between generations requires the employment of the earth’s resources in such a way that they shall be conserved, restored, and replenished for continued use by our children and our children's children."
Tuesday, February 22, 2005
Reap What You Sow
It's finally happened. The Democrats are striking back. Roll Call reports that Democrats are seeking to pull a DeLay and do midterm redistricting in Louisiana, Illinois, and New Mexico--hoping to oust GOP incumbents and blunt DeLay's power grab in Texas.
There are only two ways that this country can go. Either we can universally agree to pull the redistricting process from the hands of partisan politicians, or we can collapse into an orgy of partisan in-fighting and political scuffles. Today's politicians better choose wisely.
There are only two ways that this country can go. Either we can universally agree to pull the redistricting process from the hands of partisan politicians, or we can collapse into an orgy of partisan in-fighting and political scuffles. Today's politicians better choose wisely.
The New Man on Court
Orin Kerr links to this NYT article about Bush's plans for Chief Justice Rehnquist's inevitable retirement. The article specifically notes four judges, Michael W. McConnell, John G. Roberts, J. Harvie Wilkinson III, and J. Michael Luttig, as on the "short list" for the spot, and mentions Samuel A. Alito as also in the running.
I must say, if accurate, this is very heartening news. When The New Republic's Jeffrey Rosen wrote on possible Bush picks for the Supreme Court. The four names on the short list are the four names Rosen picked as "principled" conservatives: certainly not short on conservative bona fides, but not engaged in so-called "Constitutional-in-exile" extremism either (Alito, alas, did fall in that radical category in the article).
From my very limited independent knowledge of these persons, I also will say I'm pleased. I've been reading McConnell's law review articles on the 1st amendment (specifically Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990) and "God is Dead and We Have Killed Him!": Freedom of Religion in the Post-Modern Age, 1993 B.Y.U. L. Rev. 163) and have been tremendously impressed. It is clear to me that McConnell is an intellectual giant who could do great things on the Court, and his unabashed opposition to the decision in Employment Division of Oregon v. Smith, which essentially demolished the Free Exercise Clause of the 1st Amendment, is badly needed on the Court today.
I don't know anything about Roberts firsthand, although Kerr certainly speaks highly of his opinions. However, Georgetown Law Professor Richard Lazarus, who I have the pleasure of knowing through the Walt Whitman HS Debate Team, also has made known that he thinks Roberts is a brilliant jurist and fairminded individual. Their vouchers mean a lot to me. I have no problem with a Conservative taking Reinquist's spot, so long as he is a principled Conservative, and it appears that Roberts meets that standard handily.
Wilkinson and Luttig are both quite Conservative (though the latter is more so), but both are clearly excellent judges who know the law and apply it with principle. Neither would make the Court any worse off than it was with Rehnquist, and some of their opinions (especially Wilkinson's) have struck me as quite erudite and well-written.
My personal order of preference would be McConnell, Roberts, Wilkinson, then Luttig (Alito--known as "Little Scalia" or "Scalito"--is a separate issue entirely). However, this entire story is good news. My personal guess, prior to this, was that Bush was going to nominate Clarence Thomas to the Chief Justice position to draw away Democratic fire, then quietly push through a hyper-Conservative to the bench while nobody is looking (similar to what Reagan did with Reinquist and Scalia). Though I'm not counting that out quite yet, these nominees do a little to mitigate that fear.
I must say, if accurate, this is very heartening news. When The New Republic's Jeffrey Rosen wrote on possible Bush picks for the Supreme Court. The four names on the short list are the four names Rosen picked as "principled" conservatives: certainly not short on conservative bona fides, but not engaged in so-called "Constitutional-in-exile" extremism either (Alito, alas, did fall in that radical category in the article).
From my very limited independent knowledge of these persons, I also will say I'm pleased. I've been reading McConnell's law review articles on the 1st amendment (specifically Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990) and "God is Dead and We Have Killed Him!": Freedom of Religion in the Post-Modern Age, 1993 B.Y.U. L. Rev. 163) and have been tremendously impressed. It is clear to me that McConnell is an intellectual giant who could do great things on the Court, and his unabashed opposition to the decision in Employment Division of Oregon v. Smith, which essentially demolished the Free Exercise Clause of the 1st Amendment, is badly needed on the Court today.
I don't know anything about Roberts firsthand, although Kerr certainly speaks highly of his opinions. However, Georgetown Law Professor Richard Lazarus, who I have the pleasure of knowing through the Walt Whitman HS Debate Team, also has made known that he thinks Roberts is a brilliant jurist and fairminded individual. Their vouchers mean a lot to me. I have no problem with a Conservative taking Reinquist's spot, so long as he is a principled Conservative, and it appears that Roberts meets that standard handily.
Wilkinson and Luttig are both quite Conservative (though the latter is more so), but both are clearly excellent judges who know the law and apply it with principle. Neither would make the Court any worse off than it was with Rehnquist, and some of their opinions (especially Wilkinson's) have struck me as quite erudite and well-written.
My personal order of preference would be McConnell, Roberts, Wilkinson, then Luttig (Alito--known as "Little Scalia" or "Scalito"--is a separate issue entirely). However, this entire story is good news. My personal guess, prior to this, was that Bush was going to nominate Clarence Thomas to the Chief Justice position to draw away Democratic fire, then quietly push through a hyper-Conservative to the bench while nobody is looking (similar to what Reagan did with Reinquist and Scalia). Though I'm not counting that out quite yet, these nominees do a little to mitigate that fear.
Broken Promises
Sorry for the lack of blogging this weekend. I was away coaching my old debate team at the Harvard Debate Tournament (at the same tournament--and with the same team actually--as Powerline's Deacon). If you're interested in the results, go here.
While I was away, one of the breaking stories was on the so-called Bush Tapes. Now, when my GOP friends saw the headlines I knew they were having panicky Watergate flashbacks, but these turn out to be pretty tame. Except for one thing.
In response to requests by Christian Conservatives that he exclude homosexuals from office, Bush responded quite clearly that he would not join in "kicking gays." Noble sentiments. But that simply makes Bush's support for the FMA all the more abominable. Not only is it purely political, not only is it pandering to the basest of human instincts, but it broke a solemn promise Bush made to himself prior to running for office. If legally codifying discrimination into our constitution, if deliberately inciting a new run of anti-gay hysteria for political gain, if seeking to destroy real families while purporting to the protect "the family" is not "kicking gays," then I don't know what is. I understand that politicians sometimes posture and lie for the camera. But presumably what Bush said in that room, in private, was his real and true principle at the time. That he was so ready to abandon it for a quick political bounce speaks volumes of his character and tenure in office.
While I was away, one of the breaking stories was on the so-called Bush Tapes. Now, when my GOP friends saw the headlines I knew they were having panicky Watergate flashbacks, but these turn out to be pretty tame. Except for one thing.
In response to requests by Christian Conservatives that he exclude homosexuals from office, Bush responded quite clearly that he would not join in "kicking gays." Noble sentiments. But that simply makes Bush's support for the FMA all the more abominable. Not only is it purely political, not only is it pandering to the basest of human instincts, but it broke a solemn promise Bush made to himself prior to running for office. If legally codifying discrimination into our constitution, if deliberately inciting a new run of anti-gay hysteria for political gain, if seeking to destroy real families while purporting to the protect "the family" is not "kicking gays," then I don't know what is. I understand that politicians sometimes posture and lie for the camera. But presumably what Bush said in that room, in private, was his real and true principle at the time. That he was so ready to abandon it for a quick political bounce speaks volumes of his character and tenure in office.
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