Quick Con Law Question

Probably a foolish one, but whatever--and we're on the topic in my Constitutional Law class, so may as well address it now.

The 14th Amendment to the Constitution reads, in part, that "No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States." This clause, as far as I understand it, was meant to overrule the Supreme Court's decision in Barron v. City of Baltimore, 32 U.S. 243 (1833), which held that the bill of rights was inapplicable to the states.

However, prior to the passage of the 14th amendment, the constitution already had similar clause in Article IV, Section II, which states that "The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." In fact, the framers of the 14th amendment specifically and deliberately used language to mirror the pre-existing constitutional text.

I understand that the 14th amendment's language is slightly more clear and specific than that found in Article IV. But I am curious: what was the purporse or practical effect of the Article IV language originally? Why was it including in the constitution?

Jews Without The Mossad

That's how Martin Peretz describes Iraqi Shiites. And given the atrocities inflicted upon them by Sunni terrorists daily, it's hard to disagree.

The gruesome Sunni killings of Shia go on and on. They went on today when some 50 innocents were murdered at prayer in Karbala. The truth is that there is no outrage or even polite disapproval from the Sunni world where this bloodlust nests. It is a fact of life, and we are by now accustomed to thinking it immutable. Like Sunni Palestinians kill Israeli Jews, Sunni Arabs also kill Shia Arabs. But in much greater numbers. After all, the latter are heretics. So why not? And, of course, the Shia do not have a Mossad. And they do not have checkpoints or barriers. To be sure, many people think that every conflict can be pacified by sufficient goodwill and ingenuity. Some American commentators believe, for example, that if only the Sunni receive their "fair" share of Iraq's oil revenues and their "fair" share of representation in the government in Baghdad and their "only fair" veto rights the mass murders will stop--that 30 Shia will no longer be bombed to death in a funeral procession at Miqdadiya. The Sunni Arabs of Iraq are not victims of anything except their delusions that they--in reality, a small minority of the country--were meant to govern because they are Allah's people and a majority besides.

Brutal.

Various Political News

It was the first day of classes today. I'm a bit off--we had virtually no work and I still can't find the energy to blog. Not good. But here are some interesting links to the day's news.

White House Spokesman Scott McClellan breaks with party, supports...mom.

Warning: Republican staffers can be crazy.

Las Vegas Mayor Oscar Goodman may be running for Senate. Umm...I guess I'm excited, but isn't he tied to the mob?

Phoebe Maltz on why the Dreyfus Affair matters to more than just "Francophilic Zionists". And I liked my AP History classes too, Phoebe.

Bull Moose begs to be ignored.

Professor Bainbridge wants an "extended edition" of the Harry Potter flicks, a la Lord of the Rings. I understand the sentiment, but I don't know if I can stand more of that awful acting. So unless the entire extra portion is dedicated solely to Severus Snape (Alan Rickman), count me out.

Compare Powerline versus Crooked Timber on the merits of Plame/NSA leak comparisons (a hint: they disagree).

This one's a bit older, but I loved this post on stock image constructions of Africa by Westerners. I probably made that sound boring--it isn't.

Only a small subset of the blogosphere will care that Constitutional Law and Church/State expert Douglas Laycock is moving from the University of Texas to the University of Michigan. Interesting factoid revealed--he attended Michigan State University as an undergrad. Know who else did? Constitutional law and Church/State expert Michael W. McConnell, currently on the 10th Circuit Court of Appeals and, in my opinion, one of the more brilliant writers I've ever read. What is in the water in East Lansing?

I've been negligent in blogging on the Mining Tragedy, but West Virginia resident John Cole has a must-read post on the subject. This Kevin Drum post also raises questions.

And that's it. Everything else on the internet today is crap. I do feel badly though--I feel like I've promised a true return to blogging for some time now while constantly short-shrifting y'all. So wish me luck to get back into my rhythm as the term gets started.

Full Moon Rising

A Maryland judge has just ruled that mooning, while "disgusting", is not illegal in our lovely state. The attorney for the defendant stated (and I'm not making this up):

yesterday's ruling should "bring comfort to all beachgoers and plumbers" in the state.

It's so good to live in a progressive state. Plumbers' Rights!

True Activism

Tom Parker is a Justice on the Alabama Supreme Court. He is, I presume, a very intelligent man, with an undergraduate degree from Dartmouth and a law degree from Vanderbilt. But I am at a loss to explain this op-ed, where he blasts his follow Alabama Justices for not ignoring the Supreme Court's clear precedent in Roper v. Simmons. Specifically, he argued the following:

You see, my fellow Alabama justices freed [Renaldo] Adams from death row not because of any error of our courts but because they chose to passively accommodate -- rather than actively resist -- the unconstitutional opinion of five liberal justices on the U.S. Supreme Court.
[...]
The proper response to such blatant judicial tyranny would have been for the Alabama Supreme Court to decline to follow Roper in the Adams case. By keeping Adams on death row, our Supreme Court would have defended both the U.S. Constitution and Alabama law (thereby upholding their judicial oaths of office) and, at the same time, provided an occasion for the U.S. Supreme Court, with at least two new members, to reconsider the Roper decision.
[...]
State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. Judges around the country normally follow precedents in similar cases because they know that if those cases go before the Court again they are likely to receive the same verdict. But state supreme court judges should not follow obviously wrong decisions simply because they are "precedents."

Justice Parker has to know better than this. Inferior court judges are not at liberty to simply ignore precedent because they see fit. And there is no warrant to suggest that the only reason they do follow said precedent is because if they choose not to, the Court will overturn their verdict. Precedents serve to provide stability and predictability in our judicial proceedings, both attributes conservatives should love. Judges who ignore superior court mandates are engaging in clear activism--ignoring the strictures of law in favor of their own personal whims and desires. There simply is no way around it.

Steve Vladeck comments further:

This strikes me as not only very wrong, but also very dangerous. As pertains to interpretations of the U.S. Constitution, the U.S. Supreme Court is the ultimate arbiter, and its decisions are binding on every court in the United States, no matter how "wrong" it may be. State supreme court judges who think they're not bound to follow the federal Supreme Court's reading of the federal Constitution might want to re-read Article VI thereof (not to mention Marbury and, at the very least, Cooper v. Aaron).

It's ironic that the already barely plausible justification Justice Parker gives for his activism, that the new judges on the Supreme Court may assist in overturning Roper, is virtually inconceivable. As is noted by Douglas Berman, none of the judges being replaced were part of the Roper majority, so even if all of the new appointees vote to overturn (and given all the pains Alito and Roberts have taken to assure us they "respect precedent", that may not be a sure bet), the result wouldn't change unless the newbies could persuade a member of the majority to defect.

But for me, the kicker is this quote from Parker's own court biography (first link at the top of the post):

Justice Tom Parker was elected to the Alabama Supreme Court in November 2004. Immediately prior to that, he was the Special Projects Manager for The Foundation for Moral Law, where he coordinated a federal legislative effort, under Article III, Section 2 of the U.S. Constitution, to combat judicial activism.[emphasis added]

My how the proud have fallen. Or perhaps "combat[ing] judicial activism" was always code for implementing conservative policies?

One final note I'd like to add. Many commentators are saying that a judge merely writing an op-ed attacking an opinion by one's colleagues is in itself reprehensible. I'm open to being persuaded on the matter, but I have to admit that aspect doesn't bother me. This editorial does not strike me as substantially different than something Parker would have written as an "angry dissent" if he hadn't recused himself from the case at hand. I do think that his recusal was appropriate in this case, to be sure. And I know that judges traditionally have not participated in the rough-and-tumble of mainstream journalism. But I fail to see why what would have likely been his same words in a dissenting opinion become inappropriate when written in an editorial.

Hockey Heartthrobs

Greetings, boys and girls. I'm still settling in here at Carleton, so no major blogging yet. The trip in to Minnesota was slightly delayed and generally annoying, but otherwise uneventful. After I got to college, I hung out with some friends and generally frolicked. Nothing too crazy.

I did, however, want to share something from the copy of "The Hockey News" I read on the plane. I am, as you may know, a bit of a fan of the sport. However, this issue, I discovered 33,000 feet in the air, was their attempt at a "humor" addition. Not a particularly successful attempt either. The worst consistent mistake was that many of their anecdotes and jokes were repeated throughout the issue as if new. But the most amusing discrepancy came in their description of semi-star Mike Ricci. See if you can spot the difference.

A heartthrob to women in Denver for his Italian bad boy looks, Ricci was getting hit on one night at a Denver bar... [pg. 80]

and

Gap-tooth with scraggly long hair and a busted-up schnoz, ex-Sharks forward Mike Ricci isn't exactly a supermodel...[pg. 117]

Arghh! Fact-check, fact-check!!!!

No Good Answers

It is unfortunate that the Israeli/Palestinian conflict often leaves one in a position where there are no good answers. I labor under no illusions that Israel's security barrier ("barrier" striking me as the most value-neutral term for the entity separating Israel and Palestine--since it changes forms quite often along the route, calling it either a "wall" or a "fence" would both be inaccurate and prejudicial) is something we should cheer about; it incurs real costs on both Israelis and Palestinians that should not be minimized or shunted aside. At the same time, the wall/checkpoint system has real and crucial security benefits for Israel that are critical and unreplicable. I am truly sorry for the tremendous inconvenience the barrier places on the Palestinians who need to navigate it. I am not willing to let suicide bombers blow up children's parties because of that sorrow.

I wrote earlier of my anticipation of Professor Adrien Wing's "part II" blog post on her trip to Israel and the West Bank. I expressed hope that Professor Wing could present the relevant issues in a balanced way, with both a sensitivity to the Palestinian's plight while recognizing Israel's legitimate security interests as well. Though it could have been worse, I feel she fell far short of that goal.

She begins:

The Israelis have militarily occupied the West Bank where Bethlehem is located since 1967 along with the Gaza Strip, East Jerusalem, and other areas. In the past few years, they have been building a giant wall of nearly 400 miles in the West Bank, three times as long as the Berlin Wall and twice as high. When completed, this barrier will wall in the more than 1 million Palestinians into little noncontiguous pockets of poverty and misery that many people globally say remind them of American Indian reservations or South African apartheid. Needless to say, many resent any comparisons of any aspect of the Occupation to apartheid. The wall is not located along the 1967 border lines, but instead weaves deep into Palestinian areas, separating people from their land, schools, jobs and family members. In 2004, the International Court of Justice issued an advisory opinion that the Wall violated international law.

Oy. This is wildly distortive and Professor Wing knows or should know better. Let's just go part by part. Starting with the Berlin Wall comparison--it obviously is going to be longer than the Berlin Wall, because that was a barrier within a city and this is one between two countries. As to the height, Professor Wing should know that the barrier only rises to its total height in a select few places where it is needed to stop Palestinian sniper attacks on Israeli roadways (specifically, there are 8.5 kilometers of "wall"). That strikes me as quite legitimate. In its "normal" manifestation, the barrier is not even a solid "wall" at all but a fence, designed to stop Palestinian suicide bombers and terrorists (something it has, to even Professor Wing's acknowledgement, been extraordinarily good at).

The second argument she makes, that it will wall in "1 million Palestinians" into "noncontiguous pockets of poverty and misery." As I'm sure Professor Wing is aware, the wall at most will "wall in" 7% of the West Bank--and extends "deep into Palestinian areas" only where those areas are not predominantly Palestinian (such as the Ariel settlement bloc, and some Jerusalem suburbs). All told, around 10,000 Palestinians will be on the Israeli side of the line--though that number is fluid (partially because many Palestinians in East Jerusalem have petitioned to be moved onto the Israeli side of the line). As such, even if Israel does decided to annex the territory on its side of the wall at the end of negotiations (and it disavows such designs), this would leave the new Palestinian state with 100% of Gaza, and 93% of the West Bank including 99% of its population base there, in exchange for a huge rise in Israeli security and safety. That this is seen to be a massive imposition on Palestine just shows that Palestinian advocates have completely forgotten the meaning of a "compromise" (hint: generally, neither side gets everything it wants).

Though it isn't an argument per se, I love how she makes non-specific analogies to greater instances of global oppression, like South African apartheid that are just generic enough so that she disavow the claim herself:

many people globally say [that the barrier/checkpoint system] remind[s] them of American Indian reservations or South African apartheid. Needless to say, many resent any comparisons of any aspect of the Occupation to apartheid.

I'm thrilled that "many people" say that. Do you say that? I mean, that's quite a charge to make. Some people might say that conflation of the two situations betrays a shocking absence of moral proportionality. Some might also say that the rhetorical tactic being used, of soft insinuations of a link mixed with plausible deniability in case the charge doesn't pan out, is very reminiscent of how President Bush tried to tie Iraq to 9/11. Not me, only "some people," of course. But I do love how these particular sins seem to be so non-partisan. Sometimes, it seems like they're the only thing that are.

Finally, as an International Law expert Professor Wing should know better than cite that ICJ ruling. I stand by my original criticism of it, and upon re-read my contempt only grows. For example, even though the primary legal question was whether Israel's security concerns justified the hardships put upon the Palestinians by the barrier, the Court opinion felt it could get enough factual grounding on the former issue from "Israel's Written Statement...limited to issues of jurisdiction and judicial propriety" because it "contained observations on...Israel's concerns in terms of security" as well as information in the "public domain" [emphasis added]. Well then! I guess that's more than enough information to make a judicial ruling with massive geopolitical implications. This is especially ironic because, on one of the rare occasions the opinion even touches on security issues, it says that "on the material before it" [emphasis added], the court is unconvinced that the barrier's destruction of property is "absolutely necessary" for Israel's security. All told, not even one full paragraph is devoted to analyzing Israel's security claims (out of 162 paragraphs total).

But perhaps more upsetting than the false and misleading premises the argument is based upon, are the little phrasings and storytelling decisions designed to minimize Jewish and Israeli legitimacy in the region (call them "discursive micro-aggressions" if you will). The reference to Nablus as the "center of resistance to the Occupation", rather than a hotbed of terrorism, for example. Professor Wing refers to Tel Aviv as "considered the Israeli capitol by most countries of the world." Well pardon me if I don't give "most countries of the world" authority to strip Israel of its own actual capitol (in West Jerusalem). It should be noted that this is not a trifling slight--the existence of a Jewish state with a capitol in Jerusalem is the culmination of the 2000 year old dream that sustained our people in exile as they spent countless generations of slaughter by their Christian and Muslim peers. The effort to deny Jews this even in the face of its realization can only be interpreted as a last gasp effort to maintain the Jewish state of exile--as any good Crit knows, its far easier to keep a group down when you can deny their reality and replace it with ones own. The ability of Jews to construct their own identity has only occurred sporadically in the modern era, and for whatever reason, everytime we try the world rallies against it to crush it (whether it be by Christians calling us Satanists, Muslims calling us Crusaders, or Televangelists incorporating us as "Judeo-Christians"). She refers to the reduced rates of suicide bombing caused by the wall, but almost as a negative factor in that it may be responsible for the fact that "most of these people on the beachfront [in Tel Aviv] did not have to think on a daily basis if at all or may not be truly aware about the harsh existence of Palestinians in the Occupied Territories." In fact, this is a bit of a trend in the literature I've noticed--in the ICJ opinion, for example, the extension of the wall toward Israeli settlement blocs, far from being counted as a part of Israel's security concerns toward those Jews not being blown up, was counted as a negative factor because it legitimized the settlement campaign. The implication--unintentional, perhaps, but unavoidable--of both the former and the latter is the same--the "right" end result would be less security and more death of Jews.

I do not think that everything in Professor Wing's post is wrong. Particularly, I very much believe her description of naked racism against black Jews in Israel. I also believe that Israel has made greater strides in this field that nearly any other nation, but that only makes them the very sad king of a very small hill. More clearly needs to be done--and Jews everywhere have an obligation to stand in solidarity with their cohorts of all ethnic persuasions in their pursuit of full and equal rights. I applaud Professor Wing in bringing this issue to light for the greater blogging community. And in all honesty, I applaud her for writing this entire post as well. Nothing can change in the world without dialogue between people who have disagreements--many as ours may be. If she hadn't written this post, I'd never have written this response, and both of us would be that much farther from synthesis. The comments above should thus not be understood as a call for censorship but a request for further discussion--limited, contingent, and partial as it may be.

But it is singularly depressing just how little concern there is in her post for Jewish experience and Jewish lives. This is obviously a difficult topic to write upon, partially because of the need to separate the gravely intertwined issues of criticizing Israel and anti-Semitism. It is equally clear that the former must be possible without being accused of the latter, and that the latter can and often does inform the former. In seeking to navigate those treacherous waters, I have been greatly influenced by the incredible strides made by the CRT movement in elucidating how racism can operate subconsciously or structurally even when the individual system participants have the best of intentions. I believe that anti-Semitism can work much the same way, and that the long, broad, and deep tradition of global anti-Semitism still pervades our collective consciousness even amongst those who strive to overcome it (or believe they already have). One day, I wish to write a broader work exploring these issues. But today, only sketches exist thus far.

To someone operating within this tradition, saying "I have Jewish friends" is no different than the White conservative who answers all charges of racism with "but some of my best friends are Black." Similarly, the existence of Jews who may echo certain complaints just makes them the Semitic equivalent of a Black conservative--the closest analogue to Noam Chomsky is Clarence Thomas. This is not meant perjoratively, but simply descriptively--both are members of a minority identity group who take positions far outside the norm within said group--positions that I believe are hostile to the collective interest and play into the hands of the greater oppressive matrix. To cite just one more example, the discussion on Jerusalem as Israel's capital does not unintentionally draw from Charles Lawrence's "cultural meaning" work--the work I think can very easily be transplanted to issues of anti-Semitism, and it is a shame it hasn't happened on a greater scale. At the same time, I will admit hesitancy at some of my stronger rhetoric. Being charged of anti-Semitism (or perhaps, more accurately, being complicit in a global anti-Semitic framework) hurts, just as a similar charge about racism does. I have expressed my concerns about the expansion of these terms' discursive terrain, and they remain valid here. Even still, I believe Professor Wing knows that just as "racism" can be understood not necessarily in its classic sense of "you are an awful human being who wants all Blacks to be your inferior" but as a more subtle and nuanced (but still dangerous form), anti-Semitism is not just Holocaust-advocacy but also exist in those little blocks that construct our world such that it is hostile to Judaism and Jewish identity. And it is something we all must struggle to overcome. The world's longest running "ism" continues unabated--but somehow it stings harder when the left is leading the charge.

Assorted Jewish Blogging

A few Jew-related blog posts and articles I've stumbled across these past few days...

Julia Gorin writes a piece entitled "Dumb Jews"--presumably, she is the paradigmatic example because it is just awful (H/T: Feministe). I mean really, I have rarely seen idiocy on such a grand scale. Net story, she apparently cannot conceive that Jewish leaders can criticize both Evangelical Christians AND radical Islamists--and then (I swear I'm not making this up) she thinks that God has abandoned his "Chosen People" because we don't vote Republican. Yeah, I can imagine that ticking Him off. She continues:

Foxman also noted that 70 percent of weekly churchgoers and 76 percent of Evangelicals "agreed that 'Christianity is under attack' in this country -- a conclusion that is hard to square with their growing influence in Congress, the White House and the courts, he said."

With attacks on religion that target "In G-d we Trust", "Under G-d", tiny crosses on county seals, Christmas trees and the 10 Commandments, Christians really have nothing to fear.
[...]
There is only one group in America that is victim to bigotry on a massive scale, and that is the Christians. For those who think the minority can't oppress the majority, think again. The minority with its various minorities can oppress an entire nation.

Is she stoned? Or is this from natural causes? Somewhere along the line, getting rid of "Under G-d" has mutated into "bigotry on a massive scale." Next step, Stalinist Russia (a claim she, unsurprisingly at this point, makes as well). I'd like to think anyone with a passing knowledge of Jewish history knows that "bigotry on a massive scale" encompasses slightly more than removing overt state support for religion. Those little things like death camps, and burning Jews at stake, and tearing down synagogues--that's religious bigotry. And would someone introduce this woman to a inquisitor, so she can get off from the notion that wherever Christians are safe, Jews are too? I mean, honestly.

Fortunately, the remaining posts were slightly less likely to get my blood pressure up. David Bernstein remarks on the growing integration of Ethopian Jews into Israeli public life. This is important on several counts. First, Israel has had an unfortunate history of discrimination by the (European) Ashkanazis against the (African and Middle Eastern) Sephardim. That they are starting to move past this tradition is great news by itself. But also, Israel represents perhaps the best model of what a racially integrated society could look like. This isn't to say it is all that great--but then, no country is. Rather, I think would could plausible argue that on the race issue alone, Israel might have made more strides toward full integration than any other country in the world. People who criticize Israel as a "racist" or "apartheid" state would do well to remember that--and remember that their rhetoric completely writes out of existence the Sephardic Jewish population. They're people too, and they deserve to have a role in our political/historical dialogue.

On the subject of Israel, Iowa Law Professor Adrien Wing has given "part one" of her trip to Israel. Though this part is positive, it ends with the ominious "Unfortunately, we did not feel peace in the Holy Land." I had recalled from looking over Professor Wing's C.V. that she had done a lot of work on Palestinian legal issues, so I am particularly curious to hear her first-hand opinions of the current status there. I will admit that when I see a Professor who specializes in "constitutionalism in...Palestine...legal decision-making in the Palestinian intifada...and women's rights in Palestine" (among many other things) I get suspicious of how fairly they will treat Israel in their scholarship. It isn't fair of me, and I desparately hope to be proven wrong (I can't fiat my prejudices out of existence, but I can acknowledge them and hope to keep the suppressed until factual backing comes out). I firmly believe that there are persons who are personally invested in seeing Palestine become a stable, progressive, and democratic state that also harbor no ill will toward Israel and recognize its legitimate security and political interests as well. In fact, I'd like to think I fall into that category as well. So I eagerly await this next post by her that she claims is forthcoming.

David Kopel inquires about that prevelance of the phrase "First the Saturday people, then the Sunday people" in Palestine and the surrounding areas. The good news is that the consensus seems to be it's rather rare. The bad news is that this seems to be more a function of anti-Christian sentiments lagging far behind anti-Semitic sentiments than any true repudiation of violence. Ah well.

And there you have it--the complete blog-day in Judaism. Consolodated for your pleasure by your friendly Debate Link staff.

How I Spent My Winter Break

One Florida High Schooler decided "Hey! Why not take a trip to Iraq?"

Part of me admires him. Another (larger) part thinks he's insane. Favorite excerpt from the article:

"I want to experience during my Christmas the same hardships ordinary Iraqis experience everyday, so that I may better empathize with their distress," he wrote.

Farris Hassan says he thinks a trip to the Middle East is a healthy vacation compared with a trip to Colorado for holiday skiing.

"You go to, like, the worst place in the world and things are terrible," he said. "When you go back home you have such a new appreciation for all the blessing you have there, and I'm just going to be, like, ecstatic for life."

Hey...don't be so hard on Colorado skiing. It's got...hardships...

So, yeah. Craziness of it aside (and admittedly that's a big aside), I think he demonstrated an extraordinary character in taking this trip. And hopefully he will in the future apply that character toward making the Middle East and the world a bit better for all its inhabitants.

Only "Radical Feminist Women" Need Apply

Well, I nearly managed to avoid blogging throughout this whole vacation. But alas, I have succumbed on what would have been my last ski day. I woke up with a sore throat and aches all over from 4 straight days of almost nothing but black diamond runs. So I decided to take the day off. And here I am, back on the blog--posting away. How sad for me.

One of my favorite feminist blogs, Alas, a Blog, is mulling over having "radical feminist woman only" threads. I am not a fan of the proposal on several grounds. First of all, it strikes me as needlessly exclusionary. Flame wars are frustrating--having participated in a few, I know. But it is always possible to ban trolls. And unlike many of the boards cited by the post author (Cheryl Lindsey Seelhoff, whom I believe is at this point only guest-blogging), the odds that it will be the feminists being kicked out strikes me as rather slim at this particular site. And this particular group: "radical feminist woman" strikes me as far too narrowly tailored. I consider myself a feminist who occasionally flirts with being radical--though as one might expect, both terms are quite fluid [UPDATE: Immediately upon posting, I realized that the author meant "radical" referring to a specific branch of Feminist Thought, as opposed to a more generic signifier. I don't think I am all that close to a Radical in this respect--I'm too anti-essentialist and too much of a third-waver/intersectionality fan to really fit the category. But by the conventions of ordinary political discourse, I'd be a small "r" radical. It doesn't seem like this oversight really affects the post content--the author mentioned below was definitely a big R Radical, and the denotation of a specific feminist branch is, if anything, more exclusivist than radicals in general.]. Alas, I'm not a woman. And I'll admit that, having taken Feminist Theory last term, there are certain radical feminists whom I find to be appalling creatures (the author who tempered her proposal to bring about the "political suppression of men" by assuring her readers that she meant methods other than "genocide" was my particular anti-hero in that class). But I do believe that I have things to add to the discussion. Perhaps it's my debate background, but discourse and argumentation are fields where I am most leery of even partial exclusion and marginalization. And I think that AAB is first a site about discussing these issues, and only second an activist front. Otherwise, they wouldn't tolerate anti-feminist posters at all. I am fine with AAB's experimentation in limiting explicitly anti-feminist arguments to certain threads--the "sidetracking" problem is a legitimate one. But establishing insider/outsider forums that precede political positioning I find a tad bit scary.

I also worry that such discussions discourage outreach to the very communities that feminists need to dialogue with. Outside a separatist movement (which I, for obvious reasons, don't subscribe to), any effort to dismantle patriarchy has to at some level deal with the patriarchs. Not just them either--the sympathetic but undecided liberal male, the uncertain moderate women--there are many groups whose support is necessary for the feminist project to succeed. I make this same argument with regard to racial hierarchy--yes, it is true that minority discourse and scholarship need to have greater currency in society at large. But that goal can't come at the expense of (and I'd argue, should operate concurrently with) the meta-project of fixing the problem. Making males (or non-radical feminists, for that matter), feel like outsiders or enemies or otherwise unwelcome is antithetical to that project. Marginalization operates in many ways--radical feminists have to recognize that creating this exclusivist forums will exact costs in terms of how much non-radicals are willing to engage them. I am not at all confident that these costs will be outweighed by whatever benefits are accrued from an incestuous mini-circle of political allies. I know that Amp and I don't see eye-to-eye on everything, but I like to think we've learned from each other precisely because we disagree. Bouncing ideas off each other, so long as it is honest and respectful, is a boon to any intellectual movement, not a curse.

Third, these boards strike me as a Siren's Call. Assume that AAB does establish these boards. I predict they will be very popular, for the simple reason that it is far less stressful to chat with one's intellectual allies than it is to hit the trenches and battle with enemies (or negotiate with the moderates, which in some ways may be even harder). So after a suitable period of trial, Amp may ask for feedback on the threads. And the participants will be very happy to have a respite from the muck and grime of political warfare present elsewhere. So they'll give positive feedback. The excluded persons will at this point have already made our reaction to the forums--we'll either have left the site or acceded to their presence. So our response will be muted--and will be generally less compelling because we don't have access to the benefits the threads offer (ironically, because one of their primary reasons for existence is to prevent us from reaping said benefits). So we "just won't get it." In the end then, all the really important things will be said in the exclusivist forums--the discussions, the hashing out of positions, the refinement, the whole shibang. And there will be little incentive to go out into the world (or in this case, the other comment threads) and actually do the hard work of bouncing the ideas off maybe non-allies or non-sympathetic ears. It's too tempting to stay in the cocoon. As I said before, I think an apt analogy is to incest, and it will have the same effect--weakening the movement, isolating its participants, and depriving the whole endeavor of fresh ideas, opinions, and blood.

It might not be fair, given the contemporary political landscape, to apply this standard to AAB. After all, its not like an open policy at AAB will convince mainstream institutions of the error of their sexist ways and bring about an equitable playing field. But again, ultimately the goal isn't "eye for an eye" political justice, it's about laying the framework for real social change. I think exclusionary thread policies are generally opposed to that end.

UPDATE: I also offer my concurrence to Rachel S. and Dorktastic in comments. I'm only part way through, but as usual their comments section is superb.

UPDATE 2x: The updates are coming quick because the more I think about it, the more complex I realize this issue is. I do see the benefit of exclusive discussion groups. I'm not sure AAB is the right place to host them, because I think it has a different role to play. An explicitly activist site strikes me as a better host for such a forum--less likely to fall prey to the problems I outlined above. But I think at AAB, the net effect may be to dilute a rare site that encourages and fosters debate on these critical issues.

Feingold and the Genocide Convention

For those of you smoldering over my "cheap shot" at Russ Feingold on genocide, see the update to my post here.

It's So Simple!

Do you ever get the feeling that the Christian Right is just parodying itself? Consider this excerpt from the American Family Associations proposed boycott of Target:

ATTENTION! Expect Target To Try To Confuse You

When you call Target, they will no doubt try to confuse you. You may be told their employees are free to greet people with a "Merry Christmas." You may be told that they support the Salvation Army. You may be told many things in order to confuse you.

Therefore, ask this one simple basic question and don't allow them to confuse you. "Do you use the term 'Christmas' in your in-store promotions developed by Target (not products you have for sale) and do you include the term 'Christmas' in your retail advertising?"

Target refuses to use "Christmas" in their in-store promotions or in their retail advertising. If you are told they do, you are being mislead.

1) That's two questions

2) I don't know about you, but I don't consider that to a "simple" question, what with the parenthetical and the modifiers ("in-store promotions developed by Target", and "retail advertising"). Seems rather specific, don't you think.

3) What with their support of the Salvation Army, and store greeters free to say "Merry Christmas," it seems like Target is plenty supportive of Christmas already. I mean, I understand the AFA's dream-world is one where all retailers blare out carols at 250 decibels while being staffed solely by born-agains throughout December. But seriously, meet them half-way already!

I'm going to see the Caps tonight, and then will be off to Aspen, Colorado tomorrow. So this may be my last post for a week. It may not--I don't know if I'll have internet access in Colorado. But if it is, have a happy holidays, be it Christmas, Chanukkah, Kwanzah, or just the spirit of the season.

Back In The News

The story of the Bush administration's appalling negilgence toward Homeland Security in general (and the DHS in particular) is back in the news--only 2 and 3/4 years after Jonathan Chait first wrote the break-through article on it. To readers of this blog (or any credible center-left source, like The New Republic), there isn't anything wildly new. Bush opposed the DHS, blocked key Homeland Security initiatives, wielded the issue like a partisan club, etc. etc.. Still, at this point I'm just thrilled they're paying attention at all.

Kevin Drum remarks:

One of the worst results of all this is that because George Bush treats terrorism mostly as a handy partisan club to make Democrats look weak and cement his own support with his corporate base, he's managed to convince a lot of liberals that the whole thing is just a game. Unfortunately, this is pretty understandable. At this point, I don't really blame liberals for feeling that terrorism is little more than a Republican bogeyman that's pulled out whenever the president's poll numbers are down. After all, that's pretty much how Republicans treat it.

But it's not. Osama bin Laden really would like to find a way to kill a whole bunch of us, and we really should all be working to keep that from happening. Maybe someday Karl Rove will figure out that that's more important than bringing back the glory days of William McKinley and his 30-year Republican reign.

Yes, yes, and more yes.

Matt Yglesias also responds.

"Criminal Non-Intervention"

My old Feminist Theory professor has directed my attention to a short but very interesting paper on the subject of leftist opposition to American interventionism. It's by Harvard Women's Studies and History Professor Afsaneh Najmabadi, and it's titled "Must We Always Non-Intervene"? It raises precisely the type of questions that need to be discussed amongst those leftists reflexively opposed to an interventionist American foreign policy. It's very brief, but here's a taste just the same:

The dissident voices in this country (at least the ones with which I have engaged) have met this prospect with an orientation that could be summarized as: Oppose and Expose. This is a similar orientation to that taken toward the two recent American engagements with this part of the world; the Gulf War of 1990-91 and the campaign in Afghanistan against the Taliban. In both cases, this dissident American position came to be in conflict with those of the people who have lived and suffered under these regimes and who in both instances welcomed (and at times begged for) outside, including American and including military, interventions. The kind of social disintegration that the Ba'th or the Taliban had produced meant that internal forces opposing these regimes knew all too well that they were too weak on their own to get rid of them. No outside intervention meant continuing to live with (and die from) the intolerable brutalities of these regimes indefinitely. The American dissident position, therefore, was received by these forces (and is received currently by the Iraqi opposition) as worse than irrelevant: it is tantamount to criminal non-intervention. What here may seem the honorable position of opposing the war machine and military adventurism of one's own government, in this configuration, came at the price of other people continuing to suffer with no end in sight.

In all these instances, this opposition to war stance has been linked to another stance, that of exposing US government's history of prior support for the very forces that it then has set to overthrow, the Taliban and the Iraqi Ba'th. In the extreme, the Taliban and the Ba'th become mere creations of the all-powerful US government -- something verging on racist denial of any agency on the part of the people of the Near East to be able to even produce their own dictators. In any event, even if one were to agree on the total responsibility of the American government, that responsibility could just as easily and in fact more logically be invoked for a US intervention to set these past bad deeds to good for a change, instead of a non-interventionist stand. Why should Afghanis and Iraqis continue to suffer the consequences of terrible US foreign policy instead of expecting that government to take responsibility for its bad judgments and do some good? Without an interventionist orientation that is centered on the interests of the people of these regions, the exposition of prior US foreign policy by the voices of American dissidence over the war is received by Afghanis and Iraqis as hollow moralism at their expense. While they have been repeatedly betrayed by US government policies, Iraqi dissidents feel they have no other option but to seek its support for their struggle. Similarly, the great fear of Afghanis today is lack of long-term commitment by US government (and other international forces) to stay in Afghanistan and help their post-Taliban reconstruction. Why shouldn't the dissident energies in this country be focused on the kind of American intervention (one for the interests of Afghani or Iraqi people), rather than on a policy of non-intervention?
[...]
[O]ne may have to consider the terrible possibility that a policy that may be wise for internal US developments may not be good for Iraqis and Afghanis. One may have to openly say: sorry folks, but we have to abandon you. Yet I am not convinced that that desperate position is necessary, at least not until we have considered other options. I do not believe that opposition to the attack on civil liberties and immigrant rights has necessarily have to be linked with a non-interventionist policy. This is a link that the most hawkish and right-wing forces in this country have worked hard to forge in post-September 11th political landscape; the you-are-with-us-or-against-us mentality. It is critical to break apart this link. There is no reason why the opposition to the internal US developments cannot be linked with an interventionist policy that puts demands on the government over the terms of its interventions, and the consequent responsibility beyond the military aspects of intervention. [Emphasis Added]

I agree completely. I cannot say how many times I have written posts critical of appalling human rights violations done under the guise of the war on terror, and received responses (both liberal and conservative) which all assumed I was anti-war. We very well may fail in managing to have a foreign policy of liberation that does not stray into imperialism and mismanagement. But if that is the case, it is a failure, not some sort of vindication for the left. It is intellectually lazy to think otherwise.

Perhaps the Harvard Women's Studies Department is not exactly the place one might expect this sort ofchallengee to be coming from. But it's been my observation that even the liberal academia (including those professors in the much-maligned "identity politics" departments, such as this one) is nowhere near as narrow-minded and monolithic as it is made out to be by the conservative media. I doubt heavily that Professor Najmabadi is in the majority amongst her peers. But she is raising the right questions, and I hope to see her claims addressed in the near future.

Drug Coverage

Dorothy Roberts has an excellent piece up on disparities in media coverage of White versus Black teenage drug addictions. NPR did a report on OxyContin abuse by upper-class Whites. It all the hallmarks of a "normal" drug report--dealing by students, theft to pay for the addiction, trying to be "cool" by taking the drugs (specifically, the sentiment amongst Prep School students that this was what real rich white kids did). But Professor Roberts notes:

What struck me most about the NPR program was its totally sympathetic stance toward the plight of these teens and their parents. The interviewer never asked the teens if they had a problem with acting "white" or their parents why they didn't motivate and supervise their children like "Asian parents." There was not even a hint of blame for anyone: as one mother said, these children just "got grabbed by something that was greater than [them]." Nor was there any indication that any of the teens had been in trouble with the law for their crimes or placed in foster care for their parents' neglect. Most will probably complete the drug treatment program, graduate from their highly-ranked suburban high schools, and go on to college, their brush with drug addiction and crime a forgiven momentary lapse in their privileged path to success.


Can you imagine a similarly sympathetic discussion of addiction, drug dealing, and theft with a group of black teenagers and their parents? The last remotely similar NPR program I heard involving black teens was about the juvenile detention center in Chicago, under investigation for its abusive treatment of its almost exclusively black population, many of whose offenses were far less egregious than those of the white OxyContin addicts in Massachusetts. Some commentators on this blog are fond of blaming the poor parenting skills of black adults and bad attitudes of black children for their failure to achieve. Is it possible that the hugely disproportionate placement of black children in juvenile detention and foster care - and the stereotypes that go along with it - contribute to the "achievement gap?"

The question is, why do we have such different mentalities (and policies) when it is White children with the addiction as opposed to Blacks? Both are amongst the dealing class. Both are committing crimes to support the addiction. Both are encouraged by powerful social cues. But it is only Blacks who we immediately give up on, label lost causes, and shunt off into prison (or prison-esque school tracking programs) without a look back. Clearly, something is motivating this. But if not racism, then what?

Fair Trade Versus Clear Aid

Will Baude is confused about fair coffee supporters:

I have always been confused about why people wanted to pay more for their coffee and then trust the corporations they dislike to pass the money backwards rather than simply donating 25 cents to some international charity directly. Maybe it's just too hard to find a UNICEF jar.

Maybe I'm just confused here, but isn't there a virtually universal consensus that "trade not aid" is the way out of poverty for the third world? Aid breeds dependency and stifles native industry (or at least that's the refrain I hear from the economics right and center). Just giving to charity does little to get these country's toward long-term economic self-sufficiency. But if we can create a market for fair and non-exploitative business practices in the third world, it seems we get the best of both worlds: economic growth without mass worker starvation.

Trust is an issue, of course. But there is NGO-monitoring for precisely that purpose (of course, I'm not sure I trust them either). In any event, procedural kinks aside, it seems that a concerted effort to buy "fair-trade" is far more sensible given the true goals of the target market, compared to donating to a charity or aid-organization.

Putting TDL On The Map

Okay, this is neat. It's a map of the blog world--divided between the dueling kingdoms of Kostria and Wingery. The cartographer asks for further submissions to fill in the map.

Being based on a 1911 map of Austria-Hungary, it seems most of the names are Germanic. I have no idea how to mutate "The Debate Link" into a German sounding name. But "Schraub" is quite German--I suppose as a city it would be "Schrauben".

Now, where to put it? Well, "Schraub" literally means "screw" in German. True, it means "screw" as in "bolt", and not as in "Slutzberg", but still. Just south of that fair city, and west of my allies in "Laurenthia", lies the border of Kostria and Centriola--about right for this blog, I think. It appears the frontier village of Villach remains unclaimed. I Christen ("Jewishen"?) it "Schrauben", and claim it as the true, ever-lasting homeland of The Debate Link.

UPDATE: I've been placed. So to my new neighbors in Sullyfurt and Laurenthia, I am honored to be in your presence. It seems, though, that this part of the map is strangely underpopulated. The perils of moderation, it seems.

Taking The Fall

I'm sorry President Bush. The next time the terrorists attack, it'll be on my head. Attacking the leak of his NSA wiretap program, Bush said:

"My personal opinion is it was a shameful act, for someone to disclose this very important program in time of war."

"The fact that we're discussing this program is helping the enemy."

Leading The Princezz to respond:

You're right, Mr. President. It is our fault for demanding transparency of government in a democratic society, not your fault for pulling old Cold War CIA/KGB wire-tapping tricks on your own people. So I guess if another terrorist attack happens (god forbid!) that will be our fault, too, for wanting some sort of honesty from our own elected government officials, not your fault for still not having your act together after five years in office.

In the same vein, Katherine has a must-read post at Obsidian Wings.

Look. We have a President here who is making a claim of unlimited power, for the duration of a war that may never end. Oh, he says it's limited by the country's laws, but they've got a crack legal team that reliably interprets the laws to say that the President gets to do whatever he wants. It amounts to the same thing.

I am not exaggerating. I am really and truly not.

September 11 started the war. When will it end? Maybe never. Where is the battlefield? The entire world, including the United States. Who is an enemy combatant? Anyone the President says is an enemy combatant, including a U.S. citizen--no need for a charge, no need for a trial, no need for access to a lawyer. What if they're found not to be an enemy combatant? We can keep them in prison anyway, and we don't have to tell their families they're alive or their lawyers that they were cleared. What can you do to an enemy combatant? Anything you want. Detain him forever, for the rest of his life, because this is a war like any other and we have always been able to detain POWs for the duration of the war. But you don't need to follow the Geneva Conventions, because this is a war like no other in our history. And oh yes--if the President decides that we need to torture a prisoner for the war effort, it's unconstitutional for Congress to stop him. They took that position in an official memo, and they have not backed down from it. They have said it was "unnecessary" but they have never backed down from it.

They are not only entitled to do these things to people; they are entitled to do them in secret. When Congress asks for information about them, they can just ignore it. And they are entitled to actively deceive the public about all this.

That's the power they claim. At what point are we going to take that claim seriously?

What Katherine is saying is important. This isn't some hyperbolic claim about what will happen if we accept certain administration programs. This is, effectively, how the Bush administration describes its own position now. They claim all these rights and powers, and resist any attempts at effective congressional or public oversight.

Katherine and Matt Yglesias both cite to this question at a recent White House Press Conference:

I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a President during a war, at wartime? And if the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?. I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a President during a war, at wartime? And if the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?

These our questions we need to start asking. Not as a "gotcha" thing, but as a serious issue in determining what powers are necessary for this war, how they will be limited, how they will be established, and how they will be reviewed. If it is true that this war is perpetual and may not have a clear ending, then we need to account for that--the worst thing for America to do would be to give carte blanche to the Executive for what may amount to eternity. I'm not saying the Bush administration is plotting to turn America into a fascist dictatorship. I'm saying that we need to plan for the future and address these concerns as a nation, openly, fairly, through our democratic processes.

And for arguing that the type of disclosure necessary to jump start this discussion is "helping the enemy", shame on you, Mr. President. If you weren't breaking the law, then maybe we could have avoided this unpleasantness. As it stands, its long since past the point where an executive "trust me" will suffice as a bulwark against the erosion of our constitutional freedoms.

UPDATE: Definitely, definitely, see Steve Vladeck.

Bush Poll Numbers Don't Budge

CNN reports that Bush's poll numbers have not moved in the wake of his Iraq speech last night. I am not surprised. Even though I gave it a guardedly positive review, I think we've reached the point where it's going to take more than speeches to regain the lost trust of the American people. Bush has to show he can back up his words with action, true progress on the ground, and a firm commitment to listen, address, and respond to the quite legitimate criticism coming from legislators, pundits, the media, and outside experts.

I apologize for light blogging, but for whatever reason I have been suffering from bad insomonia and thus spend my days in a sleep-deprived haze. It's downhill from here, as I leave Saturday for a week-long ski-trip to Aspen--blogging will likely be on hold over that time. But I definitely forecast a full recovery by January--so fear not!

Bush's Iraq Speech

President Bush delivered a speech before the nation tonight, seeking to stem growing opposition at home and skepticism over whether we will be able to achieve victory. The Washington Post has the full transcript.

Overall, I give the speech a "B." There were definitely parts that I thought were good. I continue to be pleased whenever President Bush takes responsibility for the war and its after-effects. It is such a marked contrast to the early days, when the "responsibility" and "accountability" president refused to accept either for anything. Glenn Reynolds' Insta-reaction is that Bush is setting the stage to take credit for an eventual victory in 2006 or 2008. That may be true, I don't know. But it is a definite improvement over the recent past.

The other thing I liked was his characterization of what happens if we allow radical Islamists to achieve victory. He spoke of "a vision in which books are burned, and women are oppressed, and all dissent is crushed." These should be an anathema to liberals. They are to me anyway. There are reasonable arguments on why the US should withdraw from Iraq or direct our attention elsewhere. But we should not delude ourselves about the stakes of this conflict. Nothing is more depressing to me than watching apparent liberals embrace some form of mutant realism that just ignores the human rights implications of American isolationism. Of course, even a democratic Iraq will not be a paragon of women's rights or political liberalism. But compared to the alternative, there is no question about which is the preferable outcome. And ultimately, that is what makes me steel myself against the very compelling arguments for withdrawal--an act I fear would doom Iraqi's nascent hopes for democracy.

The problem with the speech is that it still felt political. Jon Chait, perhaps the most virulently anti-Bush pundit to also vocally support the Iraq war, thought that the speech was a step up from previous Bush orations:

I am not, to say the least, a fan of President Bush. But a portion of his speech tonight genuinely moved me and made me think more highly of him. It was the part where he addressed opponents of the Iraq war, said he understand their passion but asked that they think of the stakes of defeat now that the war had happened and asked that they not give in to despair. I cannot remember this president ever speaking to his political opponents except to mischaracterize their views and use them as a straw man...

...Bush's prior pro-war speeches mostly struck me as simplistic, ugly and demagogic, reminders that I supported the war despite the administration rather than because of it. But this moment in his speech tonight really struck me as some kind of symbolic or emotional break from the past for Bush--a genuine attempt to unify Americans rather than polarize them. Bush and his supporters (both inside and outside the administration) have made it so damn hard to support them on this war. It just got a little easier tonight.

Perhaps this speech was an improvement from speeches past (I don't tend to watch them, but this one pre-empted "Family Guy"). But it still, for the most part, engaged in very simplistic and narrow-minded characterization of his critics. Consider this excerpt:

Since the removal of Saddam, this war -- like other wars in our history -- has been difficult. The mission of American troops in urban raids and desert patrols -- fighting Saddam loyalists and foreign terrorists -- has brought danger and suffering and loss. This loss has caused sorrow for our whole Nation -- and it has led some to ask if we are creating more problems than we are solving.

That is an important question, and the answer depends on your view of the war on terror. If you think the terrorists would become peaceful if only America would stop provoking them, then it might make sense to leave them alone.

That isn't the "view of the war on terror" that generally is taken by thoughtful advocates of the preceding position. They consider whether or not Iraqi opposition to the occupation, or the massive hit our reputation took after the torture scandals, or Iraqi mistrust of our motives, or any number of factors based on policy, not presence, may have made our troops poisoned fruits. This is a serious claim, but one that I think can be addressed. It is not addressed by painting this group as the same as the loony left fringe who argues that terrorism is only a reaction to American "provocation."

I also had a visceral reaction toward Bush's barely veiled partisan swipe at "defeatists who refuse to see anything is right." He proclaims that such people only make such claims for "partisan uses." Obviously, there are people who fit into this category. However, it is fall smaller than him and his flacks have previously made it out to be. Partisanship cuts both ways here--Bush can't expect me to take his complaints about "defeatists" when nearly any criticism of his policies in any manner, form, or respect has landed the speaker into this category (his token nod to "honest critics" notwithstanding). But more importantly, it says absolutely nothing about those commentators who, one might argue, "refuse to see anything is wrong." Such speakers are nearly endemic amongst the Republican right. Presumably, their triumphantalism is as harmful to the war effort as the defeatists, as it obstructs necessary policy changes and paves the way for the continuation of failed strategies. What is needed is neither defeatism nor triumphantalism. What is needed is a clear-eyed perspective, one that does not proclaim doom at every setback, but is not blind to clear errors either. If President Bush was truly serious about placing this war beyond currents of partisanship, he should have repudiated that branch of his own party. But by exempting his boosters from criticism even while assailing Democrats for similar sins, he shows that he himself has not transcended his view of Iraq as little more than a partisan game.

Obviously, it is a lot to expect of a President to both aggressively defend his beliefs, and reach out to his opponents, and deal with serious objections in a serious way. But I expect a lot of our presidents--when it comes to the leader of the free world, I make no nods to mediocrity. There are very few politicians that could pull off the type of speech I believe would be proper given our current situation. President Bush is not one of them. Ultimately, then, this speech is quite good given the constraints of Bush's abilities. However, it also demonstrates why he will never be ranked amongst our nation's great presidents.

Teach Out

Lauren of Feministe has a great post on her time as a student teacher. It's powerful stuff. Her students had problems that most of us in the blogosphere can only nightmare about. Or, on occasion, simply refuse to acknowledge exist. These types of first person accounts are vital in understanding what exactly goes on in our nation's schools (especially beyond the narrow band of elite public and private schools that many of us, myself included, received our education). I see so many bloggers write polemics against how awful the nation's school system is, with little to no understanding of what actually goes on there. Every one of them should read about Lauren's experience.

I also wish to become an educator, but as a law professor, not a secondary teacher. I simply don't think I have the patience or the emotional steel to "fall in love and have my heart broken so many times in eleven weeks", much less my whole career. But this just shows how special and valuable those people who choose this path really are. Regardless of whether they are career teachers or student mentors, they are all amazing individuals worthy of our praise. We don't respect them nearly enough.

Tribute To Senator William Proxmire

Former Senator William Proxmire (D-WI) died yesterday after a long battle with Alzheimer's. He was 90.

Senator Proxmire was emblematic of Wisconsin politicians--an independent thinker in the true sense of the term, Proxmire was unafraid to stand up for what he believed in, popular or not, and fight for what was just.

I am not abashed to say that I consider Senator Proxmire to be a true American hero. I do not use the word lightly. Though most obituaries focused on his admirable opposition to corruption, pork, and government waste, Senator Proxmire had a far more important issue he adopted as his own. For 20 years, from 1967 to 1986, William Proxmire gave one speech every single day congress was in session urging the American ratification of the Genocide Convention. When he started, it was considered a fanciful ambition. 3,211 speeches later, the America finally affirmed the absolute and categorical imperative to oppose genocide in an 83-11 vote.

The passage, signing, and ratification of the Genocide Convention was one of the high points for international law in the past century. The failure to enforce treaty was the nadir. I tremble to think of what Senator Proxmire would think of our current glib application of his favored son--where we can admit a situation constitutes genocide and still do nothing. Marisa Katz gives a hint on what Proxmire would think by reference to his intellectual comrade, Raphael Lemkin:

No doubt, when Raphael Lemkin coined and started to promote the term genocide, he hoped it would acquire enough of a moral stigma to actually restrain perpetrators and save lives. But Powell, in debunking the myth that the genocide convention legally compels signatories to action, and by invoking the word while making it explicit that no corresponding action is forthcoming, has succeeded in diluting the convention of much of its moral power. The European Union has since echoed the genocide allegation. (The EU had only recently shied away from the term, claiming that its August fact-finding mission hadn't turned up adequate evidence to warrant it. But, oh, how easy to say it once you know that doing so compels no action!)

In this context, then, I think it is important that we pay close attention to Senator Proxmire's heir as Wisconsin's maverick Senator: Russ Feingold. There is no question that, like Proxmire, Feingold is an independent with a passion for justice and an unswerving commitment to ethics. But as I also noted previously, Senator Feingold shows a disturbing lack of commitment to eradicating genocide in the world. It is telling that in his own tribute to Senator Proxmire on the Senate floor, Feingold said nary a word on Proxmire's career-long efforts in this regard. One wonders whether Feingold would have been one of the 11 nay voters, had he been in the Senate that fateful day.

For all our purported moral outrage about genocide, America goes to near super-human lengths to avoid proactively grappling with the subject. Raphael Lemkin's efforts to put genocide on the political map--literally inventing the term himself--can only be described as Herculean. No Senator in history has approached the type of commitment--to any cause--that Proxmire's one-speech-a-day effort represented. Today, we struggle to even get the world community to notice genocide even as it occurs under our own nose. We need someone who will not be silenced, will not be beaten, will not be discouraged, and who will make the world stand up, take notice, and pay heed to the victims of mass slaughter. We need another William Proxmire.

UPDATE: I'm taking some flack in comments for a perceived "cheap shot" at Senator Feingold. I stand by my comments. In a prior post (linked to above), I quoted a TNR article and Feingold as follows:

Feingold cast just one of three Democratic 'no' votes against the 1999 Kosovo bombing campaign. "It's a compelling notion that the American government has an obligation to stop brutality and genocide. I can't dispute that," he told the Milwaukee Journal-Sentinel in March of 1999. "But how can we be acting in Bosnia and Kosovo and not Rwanda, or Sudan, or East Timor, or even Tibet?"

The claim that Feingold might not have voted to ratify the Genocide Convention thus flows from three premises:
a) Feingold opposed US intervention in Kosovo despite admitting (or at least not contesting) that a genocide was being attempted there;
b) The Genocide Convention imposes affirmative obligations upon signatories to end genocide, which most international law scholars believe includes intervention when feasible;
hence
c) Feingold would not vote for a treaty that would bind him into doing something he wasn't prepared to vote for.

Feingold has explicitly questioned whether the US has an obligation to intervene and stop even admitted genocide. I think that at least raises the question of whether he would support a Convention designed to do just that. The interview in question, while perhaps a step forward, still falls short of what the Genocide Convention seems to mandate.

Snow Day

I left work early today because of a snowstorm (or at least, what DC whelps consider to be a snowstorm). I then immediately collapsed into a 5 hour long nap. Apparently, the Library of Congress, while absolutely amazing, was also more tiring than I suspected.

A few slightly-less-than-serious blog notes.

First: Can someone explain to me this ad, because I think I'm missing something. At the Bethesda Metro station, there was a billboard that said something like the following:

Need an MRI? You don't need a car! Bethesda MRI is only four blocks away!

Correct me if I'm wrong, but MRIs are for major knee injuries, correct? So how many people, exactly, would plan to walk the four blocks? Convienant for hale and hearty persons, perhaps, but isn't the type of injury that necessitates an MRI the same type that would make a 4 block walk rather difficult?

Second: I love how Michael Crowley characterizes ANWR regarding Republicans' latest efforts to resurrect the beast:

CQ also reports, by the way, that ANWR oil drilling, recently stripped from Congress's budget by House moderates, is back and stalking the countryside again like the unstoppable undead monster that it is.

Hmm...where have I heard rhetoric like this before? When life gives you Lemon...

[L]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under...Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so.
[...]
Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. [Lamb's Chapel v. Center Moriches Sch. Dist, 508 U.S. 384, 398-99 (Scalia, J., dissenting) (1993)]

Ah...nothing like Zombie politics.

Big Government Choice

Professor Bainbridge links to two conservative authors, the former, Michael Barone, praising the state of conservatism, the latter, Chris Demuth, lamenting it. Specifically, Barone is thrilled at how in the past 50 years, society has become more competitive, with more choices, and more accountability. Demuth, by contrast, mourns the loss of a limited government and decries the "activist" Courts for their imposition on democratic order.

Umm, may I play the role of putting two and two together? Amongst the non-communist left, "choice" has always been an important value. Not just the number of choices available, of course, but also the number of people who can effectively choose. It is indeed nice to have a wide variety of luxury cars available (somehow, I think Professor Bainbridge would agree here). But it is also important from a "choice" paradigm to have more lower-price cars so that more people can choose to become car owners. Liberalism has especially focused on the latter, and--and here's where it splits radically with conservatives--it is far from confident that markets and private society acting alone will provide them. And, counter-intuitively perhaps, they also don't believe that an optimific level of choice will be achieved simply by saying "here everybody, do whatever you want as long as you don't kill each other."

Hence, liberals who like providing greater choice have pushed for programs that seek to meet this end. Unlike stifling communist collectivism ("everybody in the commune must grow wheat!"), the purpose of these programs was to allow individuals to find greater self-fulfillment, however they themselves define it. Rather than an assorted governmentally selected goodie-bag, the new liberal model has been along the lines of a toolbox, giving resources so that people can build their own communities, achieve their own dreams, define their own destiny. Sometimes, paradoxically, this means restricting certain choices (like the choice to discriminate). And of course, like any group, "choice" is not a trump value. But most liberal philosophy of the past several decades has been heavily choice-influenced--and it's reflected in the policies we propose.

Some of these programs have been successful, others, obviously, have not. But if we put Barone (overall, choice has gone up) and Demuth (government has gotten more intrusive) together, do we not conclude that liberals have hit on something? Our model is working, or at least it's working if one agrees with the top-end goal (giving more people more choices on how to live their lives). Voters have more effective choice because the Court chose to intervene in Baker v. Carr. The ability of African-Americans to effectively choose and participate in public life can be directly traced to interventionist government, be it judicial (Brown v. Board) or legislative (the 1964 Civil Rights Act). And yes, the very real and very important choice of how to conduct one's intimate affairs has been strengthen by court decisions (Griswold v. Connecticut, Lawrence v. Texas). Somewhere along the line, choices that otherwise would have been unavailable, out of reach, or flatly illegal have been created because of liberal governmental and legal theory.

This may not affect Bainbridge too much, because, as he makes clear, he's not a choice-conservative (being more within the Burkean model). But for the conservative types who see choice as a value in of itself (and there are many), this has to be addressed. Conservatives seem to admit it themselves: government has continued to play an important role in our lives, and people still have more choices. We must have something right here.

Educating the Community

Rick Garnett wonders aloud at the dynamics of the school choice debate:

I'm sure it's a failing on my part, but I've never understood the appeal of the argument that poor children should be denied opportunities to escape (via vouchers, home-schooling, etc.) failing and failure-generating public schools because the departure of some kids would make things even worse for those kids who stayed behind. The argument is particularly tough to take (for me) coming from persons who would never send (and are not forced by circumstance to send) their own children to the schools in question.

With regards to vouchers specifically, I too share an aversion to certain liberals who seem to oppose them reflexively because they'll "weaken" public schools. Even the church/state argument I don't find compelling, and I consider myself pretty zealous on the issue. I think vouchers should be evaluated along the very simple paradigm of "will they fix the problem"? And I'm not sure they will. Awhile back, US News ran a feature article on school vouchers, and they raised a number of significant points that I think have been under-represented in the debate. First, even with voucher money, many poor families still wouldn't be able to afford many private schools. Second, and more importantly though, private schools are under no obligation to accept kids in the voucher program. Where are all the slots coming from to accommodate all these children? I don't think that increased demand would necessarily create more private schools, since the market price is effectively capped at the voucher level plus some (presumably small) amount of discretionary income the poor can spend on education. So the solution, to me, lacks cohesiveness.

But on to the meta-point of Garnett's question--which I think really is an attack on those who would prevent individuals from escaping poor schools because the overall community would suffer. Basically, an individualist critique. I think that an excellent engagement with that line of thinking is done by Charles Lawrence III in his article Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy), 114 Yale L.J. 1353 (2005) [PDF]. Like Garnett, I am uncomfortable when wealthy upper-class whites say that minority families should stay in inner-city schools, so it's worth noting that Lawrence is black and his children attend D.C. public schools (as he reveals in the article). I think that he raises many points which would be of interest to Garnett. Based on my vague recollections of the article (I don't have time to re-read it now--so some of this may just be my own musings), he thinks that we should view schools as a community issue, rather than just a collection of individuals acting as education consumers. In a school choice model, a community that has (say) 10 school age children might see them all attend different schools (or be home-schooled). This may be somewhat appealing because we like a breadth of choice. But I think we also lose something in such a situation. Education isn't just textbooks and word problems. I do believe it is some way intricately connected in a community of learning, an environment conducive to intellectual and personal development, both inside and outside school walls. When what was a cohesive community splinters of into dozens of fragmented individuals, those bonds are lost, and I think that students will suffer for it.

Lawrence says that instead of individualist solutions, we should look toward collective proposals that will both strengthen the community and rebuild the schools themselves. For example, he proposes that we extend affirmative action benefits to students of any race who attend integrated schools, to discourage white flight (one of the primary causes of inner-city school attrition). Presumably, he would also support endeavors like local tutoring organizations, daycare, and community-based academic resources, to cultivate a healthy academic community rather than focusing on particular persons. I am not hostile to individualism by any stretch, but I think schools are a perfect example of where its better to build bridges rather than break bonds. I highly recommend Lawrence's article, and think that it raises some interesting positions for our education debate.

UPDATE: Shavar Jefferies also takes up the issue in favor of "school choice" and more explicitly within a racial perspective. My answer remains the same. At the end of the day, even when they work as planned vouchers do little to aid community-building endeavors and more often actively harm them. That our system has not been integrated, that Brown's promise has been breached, is indeed an overlooked and severe problem. However, is not the answer a proactive effort to incorporate these communal values into the schools, rather than engaging in the fracturing and atomizing extreme individualism that only drives people further apart? We can't fix this problem alone, and I fear that a "school choice" paradigm erodes the bonds of trust that are our only hope of overcoming our segregated system.

Atheist Politics

I am Jewish. And, after a brief period in my teens where I wrestled with the question, I do (passively, at least), believe in God. Nevertheless, I bear no malice or ill-will or feeling of superiority toward my atheist friends. They have their beliefs, I have mine, and unlike issues of political substance, their private faith (or lack thereof) has no impact on my life. As such, I support wholeheartedly atheists' rights as American citizens under the First Amendment, and oppose their stigmatization and the constant barrage of attacks that rain down against them from the public sphere. It's wrong, anti-democratic, and reminiscent of our nation's worst prejudicial instincts. I condemn it whole-heartedly.

So I was sickened to read this account of a man Eugene Volokh calls a "leading atheist legal activist" and, as it happens, a man running for the Democratic nomination in the Alabama gubernatorial race. Larry Darby has expressed sympathy for David Duke, organized speeches for Holocaust deniers, says we live under a "Zionist-Occupied Government," and in general has a long history of anti-Jewish, anti-Zionist, and anti-Semitic comments. Volokh's words, I believe, ring true:

It seems to me very important that irreligious people participate in public debate, to defend the legitimacy of their views, and to protect themselves against religious discrimination and hostility. I don't agree with everything that all atheist activists urge; for instance, I don't think that the Establishment Clause is properly interpreted as banning religious speech by the government. Nonetheless, there are indeed some egregious forms of discrimination against the irreligious (or the less religious), for instance in child custody cases - these should be assiduously fought.
[...]
I therefore have nothing at all against atheist political movements in general, nor do I have any reason to believe that atheists generally have any hostility towards Jews, or affection for David Duke. Yet this makes it all the more important, it seems to me, for atheists who are deciding whom to ally themselves with - or for that matter, for members of other groups, such as Scouting for All or any marijuana decriminalization groups - to know Mr. Darby's views that I describe above, views with which I hope most atheists much disagree. Likewise, Alabama Democrats should know who's running in their primary, and should keep in mind the views I note above, even if some of them are tempted to agree with him on marijuana decriminalization, juvenile justice, or even religion in public life. (I doubt there are that many Alabama Democrats who do agree with him on those latter issues, but I imagine there are some.)

And it's also important for Jews - even in America, the place in the world in which it is probably safest to be a Jew - to be reminded that these sorts of views do exist in America, and in what might to many seem like quite unlikely circles.

He's dead on. But what really impresses me is how, responding some of the comments to his post, Professor Volokh immediately began an impassioned defense of atheists as a class, arguing that they do face significant prejudice in America today and that we have, as moral human beings, an obligation to oppose that prejudice. A recent poll indicates that fully 50% of people hold an unfavorable opinion of Atheists--compared to 25% for Muslims, 19% for Evangelicals, 14% for Catholics, and 7% for Jews. Worse, a 1999 poll by Fox reported that a stunning 69% of Americans would refuse to vote for an Atheist presidential candidate (again, this dwarfs the number for other religions). Remember, 1999 predates such negative PR events like the "under God" case and the absurd "war on Christmas." As (again) Volokh notes, if Jews had these numbers in X country, nobody would be defending them. There is no reason why atheists should--as a class--be afforded any less respect.

It is often quite difficult, in the heat of political passion, to distinguish between a representative of a group and the group itself. Lord knows many partisans have fallen into this trap, quoting some random Democrat or Republican and showcasing it as proof positive that the whole movement is an evil plague. This is one of the reasons why Professor Volokh is one of my favorite bloggers. I may not agree with everything he writes, but he is always fair, and always respectful.

Strategizing Roe v. Wade

There is a quiet but interesting debate amongst pro-choice liberals regarding whether or not they should continue to support Roe v. Wade. Those who argue we should abandon Roe claim that the decision has only galvanized conservative activists, who have managed to severely limit abortion access (especially for the poor) even under Roe's reign. At the same time, active support for abortion laws has drained, as sympathetic persons believe that Roe has "solved the problem," and turn their attention elsewhere. The net effect is that, with the exception of upper-class white women, abortion remains extremely difficult to get while other issues critical to woman's health (education on/access to contraceptives, childcare support, maternity issues, pre-natal care, etc.) are off the table. There are other arguments as well (Roe was simply a bad decision; Roe solidifies the GOP coalition and places out of reach voters Democrats should be winning) but the "it's pro-choice to oppose Roe" claim strikes me as the most interesting.

I've been known to express sympathy with this view. Indeed, my very first column for the on-campus journal I write for forwarded this very idea (though more to spark debate--I wouldn't call myself invested in it). In this light, I'd like to point you to a spectacular debate on the topic "Should Liberals Stop Defending Roe?" The participants are Texas Law Professor Sanford Levinson (yes) and Yale Law Professor Jack Balkin (no). And while both make excellent points and are clearly extraordinarily intelligent, I've been nearly completely swayed by Professor Balkin.

There are, I think, at least four reasons why this is a bad idea.

First, one doesn't "give up" on constitutional rights unless one is already convinced that they aren't very important or don't actually exist. Should liberals have given up on Brown v. Board of Education in 1962 when the going got rough if they genuinely believed that racial equality was a fundamental right of human beings? Or to take an example near and dear to your heart, Sandy, should we have given up on constitutional limits on presidential power and constitutional prohibitions on torture because most Americans thought our repeated carping on these issues unpatriotic, and that was bad for Democrats? If we don't stand up for the constitutional rights we believe in when they are politically inconvenient, what is the point of having such rights? Thus, to convince me that we should give up on Roe you'll first have to convince me (and many other people, too) that the right to abortion isn't all that important to women's liberty and equality; or that despite its importance, Bork and Scalia were right and that there is no such right in the Constitution.

Second, we must consider the consequences. Although overruling Roe will not change the law of abortion in liberal states like New York, it will produce significant restrictions on abortion in a very large number of other states, and outright prohibitions in a handful of still other states. In a post-Roe world, abortion will probably still be available somewhere in the United States. Even so, we will probably return to a world (indeed, a world we are already approaching under current doctrine) in which abortions are freely available to the rich but not the poor. Obtaining an abortion in another state requires time to travel, making excuses (i.e., lying) to employers and to family members about one's whereabouts, and considerable expense. Many states currently have waiting periods, and no doubt more states will adopt them—with more draconian requirements-if Roe is overruled. Current waiting period requirements increase the costs of abortion considerably because they often require two separate trips. That expense-and the deterrent effect on the poor-can only increase in a post-Roe world. Lack of access to safe and affordable abortion for poor women increases health risks for those women, and condemns them to lives of increasing economic hardship and dependency, not to mention the costs to society as a whole. The Democratic party has long claimed to stand for sex equality and for economic justice. Capitulating on Roe is inconsistent with both commitments.

Third, the conventional wisdom that overruling Roe will simply return abortion to the states underestimates the strategy, the devotion, and the ambitions of the pro-life movement. If abortion is murder in Alabama, it is equally murder in New York. The pro-life movement will almost certainly push for a national solution to the abortion problem, which means that we may get more restrictive federal abortion legislation that will preempt liberal laws like those in New York. No doubt a nationwide ban on abortion is not politically feasible in the short run; what is feasible, however, even with the changed political climate that we both imagine, are significant restrictions on abortion at the federal level, especially if the Republicans maintain control over at least one branch of Congress. Moreover, if Republicans control the White House, they can do enormous mischief to abortion rights nationwide through administrative regulations that have the force of law and preempt more liberal state laws to the contrary.

Fourth, giving up on Roe in practice will take down more than Roe itself. It will put enormous pressure on other Supreme Court precedents that protect people from state interference in matters of family life, contraception, and sexual autonomy. The pressure is not logical but ideological. It is easy enough for a lawyer to distinguish Roe from earlier cases protecting the right to use contraceptives (Griswold, Eisenstadt, Carey) and later cases protecting the right to same-sex intimacies (Lawrence v. Texas). After all, neither contraception nor same sex sodomy involves the destruction of an embryo or fetus.

Nevertheless, this fails to account for how Roe would be overruled in practice. Imagine how one would "give up." You can't send secret signals to the liberal justices saying "psst, hey Ruth Bader Ginsburg, take a fall on the next abortion case." Rather, giving up on Roe means not opposing new Republican judicial nominees who are committed to overturning Roe (as opposed to merely limiting it). But those sorts of judges will likely oppose much of the other existing jurisprudence on sexual autonomy. The opinions they write will likely emphasize that it is wholly illegitimate for courts to discover and enforce rights not specifically enumerated in the Constitution (unless, of course, it's unenumerated rights that conservatives happen to like! See the federalism decisions). Whether or not cases like Lawrence are technically distinguishable by well-trained lawyers, they may not be distinguishable in the view of the new Supreme Court majority.

Balkin goes on to show off-topic impacts (two actually: the type of judge who will overturn Roe will also vote against liberals on non-sexual privacy cases, and abandoning Roe would make it part of the "anti-canon" of cases such as Plessy and Dred Scott--which will provide a foothold by which conservatives can push for massive changes in prevailing constitutional theory) and provide solvency (push for a Freedom of Choice Act to put Republicans on the record and legitimize Roe democratically). Would that my debaters could write like this!