Outside Sources

John Hinderaker severely criticizes Justice Ruth Bader Ginsburg's defense of citing foreign law in American court opinions. My old mentor, Paul Mirengoff, echoes the claim and says that Ginsburg's actions (on the Court, presumably, not the speech itself) warrant impeachment.

In response, Jim Lindgren points to a new paper by Stephen Calabrisi and Stephanie Zimdahl on the history of foreign law citation in American Supreme Court opinions. To put it bluntly, it's a tradition that goes back to the early 19th century and not some new invention by liberal demons. So if we're talking about impeaching Ginsburg for citing to it, then we should be engaging in similar condemnation of Justices Joseph Story and Felix Frankfurter, two of the Justices Calabrisi and Zimdahl identify as most likely to have used foreign law in their opinions. This is doubly ironic, because Justice Frankfurter is the modern Godfather of the "judicial restraint" school of judicial interpretation--the very school that Mr. Mirengoff claims to want more of in our court system (of course, Kelo proved that judicial restraint, like all other legal theories popular on the political right, is only a conservative issue when it leads to conservative ends).

Calabrisi and Zimdahl do not explicitly endorse the citation to foreign law. Rather, they say that the case for it's use is strongest in 4th and 8th amendment cases, amendment's whose language includes vague and socially expansive terms like "unreasonable," "cruel," and "unusual." By contrast "citation to foreign law is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence [v. Texas], or whether a federal statute violates American federalism rules, as it was asked to do in Printz v. United States."

Calabrisi and Zimdahl are both primarily conservative originalists, hence the importance to them and other fellow travelers of the long-standing tradition of citing to foreign law. To people who think the longevity of a rule of interpretation strongly relates to its merit, this fact should carry much weight. I, however, am not an originalist (see, e.g., here, here, and here), and thus cannot fall depend on the long tradition of foreign law citation to defend the practice. To quote from Justice Oliver Wendell Holmes: "It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV...and the rule simply persists from blind imitation of the past." So what's my perspective on foreign law?

I'd agree with Zimdahl and Calabrisi that foreign law is most applicable in cases where the constitutional text refers to vague and subjective value judgments (such as the 4th and 8th amendments), although I suspect I'd find more use for it in other opinions than either of them do. However, we should remember that the case where (to me at least) the clamor against foreign law citation really took off was Roper v. Simmons--an 8th amendment case. So even if you're more of Calabrisi-type than a Schraub acolyte, it should be somewhat clear that the latest batch of fury is motivated less by legal reasoning and more by partisan point-scoring. I'd probably go further than they would in asserting that in such cases, opinions from other places are crucial to our understanding of the clauses. You can't undertake an analysis of whether or not a punishment is "unusual" or not without at least noting that our country is one of only four that partakes in it--at least, not without distorting the constitutional text beyond recognition.

But back to the specific question. In the majority of situations, I think that considering foreign law is as useful as any other secondary source in crafting an opinion. Sure, a Swiss justice had no role in writing or ratifying the constitution? So what? Neither did nearly any commentator who wrote nearly any secondary source. A law review article can still be useful even if it was written post 1789--and citing one shouldn't be an impeachable offense. To be fair, the Supreme Court might take precisely this route under warrant--not the impeachment part, but the part about not citing to secondary sources. David Barron made this point to much chatter, although I think the jury is still out. But I think such a stance would be counter-productive to the goal of increased judicial accountability--we can't vote judges out, but we can at least expect them to pay attention to the recent scholarly commentary on their work and past work on parallel issues. A sequestered court is an unaccountable court.

Moreover, I think there are a lot of situations where a diversity of perspectives should be at least examined in order to answer a legal question. Calabrisi and Zimdahl say that foreign law is not particularly useful in determining whether or not a given right is "deeply rooted in our nation's traditions," a key standard for determining whether or not it is a fundamental right covered by the 9th amendment. I'd be inclined to agree. But what about whether it is "implicit in the concept of ordered liberty," another crucial 9th amendment test? There, foreign law and opinion (actually, the whole field of philosophy in general), strikes me as quite relevant to the question. And to answer John's objection that citation to foreign law can just as easily lead to the influence of regressive Muslim state's versus progressive European ones, I think the answer is quite simple: there is no "liberty," ordered or otherwise, in these countries' legal system. Hence, their contribution is of little use to us.

In sum, as long as the foreign law is treated as advisory, not binding, I see no problem in seeing what other commentators had to say about the difficult questions that the Supreme Court has to face. Interpretation is a difficult endeavor--rarely is it as cut-and-dry as the armchair pundits would make it out to be. I would be hesitant, to say the least, of depriving the current manifestation of Justices a tool that they've used for hundreds of years to aid their decisions, solely on the ground that we dislike what they're saying now.

I've Got An Idea!

Okay, I took a brief shot in my round-up post that it's the GOP that has no ideas, and Mark Olsen doesn't believe me. The original post Mark made dealt specifically with Iraq, which, as he points out, I'm not the best target for since I supported the war. I will point out, however, that his own example here wasn't exactly top-notch.

Well ... the Administration and the military seem to have plenty of ideas [of what to do in Iraq right now]. [H]e wrote this during a major anti-terrorist operation north of Badghad which is interesting for its contrasts with the force that had been requied in Falluja (and who is now doing the majority of the operations, i.e., Iraqis).

But this isn't a "new" idea, it's the same old idea (blow up the insurgents) we've been using for three years now. It didn't work in a vacuum then, there's no reason to assume it will start now. What is really needed is a strong focus on democratic institution building, especially restoring trusts between the Sunnis, Shi'ites, and Kurds. The good news is that's exactly what Ambassador Khalilzad has been focusing on recently (I'm a big Zalmay Khalilzad fan). The bad news is that it appears to be about a year or two too late. Whether or not it will do any good now is, at best, a toss-up.

Withdrawing from Iraq may or may be not be a better idea, but it is a new (in that it's a tactic we haven't tried yet) idea that has some plausibility. The line of reasoning goes that our forces are the primary point of friction for a significant portion of the population, so by setting a withdrawal point, we (a) take the wind out of the sails of at least a portion of the insurgency, and (b) put pressure on the various squabbling sects in the government to get their act together before we pull out. Do I buy this argument? Not yet, although it's certainly been growing on me since it was originally proposed. But I have a lot of trouble arguing why it isn't better than staying the with the same old tired, failing strategies the Bush administration has been pushing in the region. As for what we should have done instead of invading, the obvious answer is focus on rebuilding Afghanistan (remember when the Bush administration was so focused on Iraq it "forgot" to put in any money for the Afghani reconstruction? That's an example of what we call a bad PR move). A bird in hand, after all....

But, as I said, I'm the wrong guy to talk to when it comes to Iraq. So let's look at some other issues I see a greater distinction between my and my party's beliefs, and those of the GOP. Start with Social Security. Mark says that while this may be a bad solution, it's better than the Democratic claim that there's no problem at all. First of all, it's entirely plausible that Democrats are right: there might not be a problem. The estimates of Social Security solvency are always pessimistic--we've outperformed the market estimates they're based off every time. But even if Democrats are wrong, they're still right, because (a) Social Security running a deficit makes it no different from every other federal program, and (b) if the market actually is running that poorly, that may hurt the SS status quo, but it kills any market-based solution for fixing it. But second of all, I'm not sure how "not having a solution" comes off as comparatively disadvantageous for the Democrats anyway--why is nothing worse than a "solution" that exacerbates the problem? That's the other thing--I blogged previously on how privatization won't actually "solve" anything, because political reality mandates we still cover retirement losses, and the transaction costs will skyrocket our deficit to the point of making this administration look thrifty. If we have a spare 2-3 trillion dollars that we're just aching to spend, why can't we just use it to shore up the solvency deficit directly (I think I read that this amount of money would keep social security solvent well into the 22nd century), rather than embarking on some new and unknown program (whatever happened to the Burkean conservative?). I think it's a bit rich to give Republicans a pat on the back for coming up with a "solution" that doesn't even come close to addressing the actual problem. If that's our standard, fine, my "solution" is that we give Shetland ponies to every little girl when they turn seven years old. I have no idea how that will reduce our solvency deficit, but thankfully, that's no longer relevant to saying we've fixed the problem. Our party gives out ponies. Where's the GOP at?

On to health insurance, medicare, et al. Mark pretty much admits that the "reform bill" was a disaster, and proposes that we amend the constitution to prohibit the government giving insurance. This might be an interesting argument, but what national Republican is running these days on abolishing Medicaid? I must have missed that part of Bush's campaign speech. I'm kind of reminded of a line by Kevin Drum on the Federalist Society:

[they] talk[] about whether or not genuine originalists should overturn New Deal opinions from the 40s, which strikes me as sort of like arguing over whether or not Superman could kick Green Lantern's butt: harmless, to be sure, but hardly part of the real world. If Federalist Society members are convinced that...what's really needed is someone who will vote to repeal the Social Security Act, they're just fantasizing, not discussing real-life issues.

Again, it's a bit rich to give Republican's credit for an idea they're not actually proposing. Getting rid of the welfare state is not part of contemporary American politics--Republican or Democrat. So what's the Republican "idea" for fixing the healthcare crisis? Admittedly, perhaps Mark is right, and they don't actually care, and thus the Medicare reform bill was actually a very clever attempt to sabotage the massive mainstream support for the program. But I hardly think bait-and-switching the electorate is the type of "idea" we're talking about here, so I'm going to assume that the GOP congressional leadership honestly wants to fix the healthcare crisis.

In which case, the idea (and it is pretty much singular) is Health Savings Accounts. Only Republicans could see a polity where millions lack insurance, and say "this is horrible! We need to create another tax shelter!" It honestly defies belief, but I think it warrants my claim of the GOP being tax cut obsessed. Health Savings Account, it hardly needs mentioning at this point, are another "give a pony" solution to a problem that has nothing to do with ponies. Besides the fact that the folks who are currently not insured tend not to overlap with the folks who can afford to set-aside $2000 in discretionary income each year, even if we manage to get past that, it still doesn't fix the major problem, which is coverage of catastrophic healthcare scenarios. Your $2000/year layaway is lovely, but it ain't going to do jack if you come down with cancer. Still, until then, more places to hide your income from the tax boys is a nice perk (for those who can afford it).

The Democrats, by contrast, have Universal Health Insurance as their answer. Mark can't figure out who would support this besides "healthcare professionals" (God forbid we listen to Doctors on healthcare policy!). I think there's a rather obvious group #2 we can add...the uninsured. Presumably, they'd prefer having health coverage, to, um, not having it. Group #3 is big business. They're finally coming around to universal healthcare, because they want to get what is turning into a massive liability off their backs. The amount of money they put out on healthcare puts them at a huge competitive disadvantage compared to European firms who get it governmentally subsidized. And the ones who did commit to giving health benefits are suffocating from them (remember when Mark wanted to let the entire American auto industry go bankrupt?). In fact, the only major constituency group opposed to UHC is the Health Insurance industry, because it ruins the racket they've got going.

UHC solves the healthcare crisis in several ways. First, it obviously fixes the problem that millions can't afford private health insurance. I've never seen the GOP even pretend to try and solve for these people. Second, it solves for catastrophic health concerns because it pools risk. Most of us won't come down with cancer, and those who do can draw from a much larger pool of resources than they could with their puny HSAs. Third, it restores competitive balance between American and Europe, by removing our largest corporate liability. Fourth, it saves costs by allowing for price negotiations, and removing the inefficiencies latent in our current hodgepodge mix of HMOs, PPOs, employer insurance, private insurances, ER attacks, etc.. Are there some kinks to work out? Probably. But at least this solution actually addresses the problem at hand, which is more than you can say for HSAs. And contra what Mark says, this sort of long-term thinking is perfectly feasible for politicians (and I'm a cynic!). Saying "I've just ended your insecurity about health expenses" is certainly competitive with "I'm going to cut your taxes until my eyes bleed." And insofar as it isn't, that's primarily because Republican's have perfected making the "tax cuts now, pay for them later, let the others eat cake" argument win votes. To then say that the government shouldn't do insurance because it's too concerned with the short-term is like the guy who kills his parents, then asks the court for mercy because he's an orphan. I'm sorry, but you can't claim advantages from a problem of your own creation. Just because Republicans haven't seen a future-interest they won't sell out for short-term political gain doesn't mean all politicians do it. Otherwise, why are so many Democratic politicians pushing for these longterm benefit plans?

As for the rest: in every case where there's been a conflict, the modern-day GOP has sacrificed it's purported policy objectives for tax cuts. Every. Time. NCLB? Left underfunded. Pay-as-you-go? Threatens further tax cuts, so it's out. Homeland Security programs? Bush threatened veto because he was afraid the price tag would threaten his latest batch of tax cuts. Deficit hawks? Please--we've raised the debt ceiling again and again to accommodate a ballooning deficit. Iraq war? When the Senate tried to pay for it by repealing a few upper-income cuts, Bush threatened veto again. It never ends.

Chutzpah Roundup

Brief overview of who's showing some balls on the web (or pointing out others who are).

Sirhan Sirhan, Robert Kennedy's assassin, is denied parole. He claims that Mr. Kennedy would not have wanted him to remain in prison. Jim Lindgren responds: "I suppose that it is just Sirhan's bad luck that somebody killed Robert Kennedy."

San Diego Law Professor Larry Alexander has a new paper arguing that "academic freedom" should not extend to professors when they are not doing an academic duty--e.g., politicizing their classroom. I only half-buy that argument anyway (I agree with it the context of a professor politicizing his Chemistry class, but disagree if it target's a professor expressing radical views in a "private," non-academic speech), but more importantly these endeavors always seem to boil down to trying to censure professors one disagrees with, irrespective of whether they are behaving inappropriately or not. And sure enough, Professor Alexander lays the blame directly at the feet of those favored whipping boys, the practicioners of "identity politics" and "crude post-modernism," making me suspicious that this is just one more salvo in the ongoing war between the liberal and conservative wings of the professoriate (and their respective allies). Thanks to Rick Garnett with the heads-up.

In California, a man wants the city to pay for damage done to his truck when a city dump truck crashed into it. The problem? The same guy was driving the dump truck at the time.

A family is suing its doctor because he didn't discover signs of likely birth defects in a developing fetus. The family claims that had they known of them, they may have chosen to abort.

Michael Froomkin reports that a slim plurality of Americans support Senator Feingold's censure motion--primarily due to surprisingly high numbers from Republicans. The FRC accuses Feingold (and presumably, the plurality of Americans who support his motion) of treason. As for me, I think intimidating dissenters into silence is far more treasonous to American ideals than holding a President accountable for breaking the law.

According to Kevin Drum, the most common word people associate with George W. Bush is "incompetent." Followed immediately by "idiot" and "liar."

Professor Bainbridge (with a cool new site design) still supports the retailiatory reaction against Justice David Souter for his Kelo vote. I still think he's wrong. So does Ann Althouse.

Mark Olsen says Democrats have no ideas (on Iraq). Jonathan Chait says Republicans are out of ideas (on everything). While on Iraq I don't think anyone has any idea (a state of affairs which can partially be laid at the feet of this administration, for so badly mismanaging the war that no option appears to be a good option), on other issues I side with Chait (stunning, I know). But seriously, what's been the last big idea from Republicans on any major issue of policy that's even been mildly popular? Social Security privitization bombed, the medicare "reform" is widely recognized to be a disaster, their only solution to the healthcare crisis are the crackpot "Health Saving Accounts," which aren't actually a solution even if one thinks they'll work exactly as planned (which they won't). As far back as a year and a half ago I was already claiming that Republicans had absolutely no agenda besides cutting taxes until the government went bankrupt. I think I've been vindicated.

...Versus a Four-Year Old Child

I want to thank everyone who commented on my query of when "life" begins. I received many erudite responses, all of which helped clarify the position in my eyes. I am sufficiently convinced to take as a provisional position that a fetus is endowed with moral personhood at the commencement of higher brain activity. This seems like a suitable brightline, and is intellectually coherent as it seems to actually correspond to a feature we feel importantly distinguishes humans from other creatures. This does raise interesting questions about the non-health-related abortion of a fetus whose higher-brain function has begun (I gather this happens around the 3rd trimester). I think some commenters were too glib in saying that even these abortions should be left entirely between a women and her doctor, but it's a tough issue. I also want to note a provocative argument made by philosopher Judith Jarvis Thompson (cited by Lindsay Beyerstein):

In a famous paper the pro-choice philosopher Judith Jarvis Thompson assumes the full human rights of fetuses for the sake of argument and goes on to make a very strong argument for the permissibility of abortion. This is a radical view, even among pro-choicers. Normally we don't think that the right to bodily sovereignty entitles us to kill another person who is impinging intextricably upon your person but who is not directly threatening your life....[However,] Thompson doesn't say that the woman's right to control her own body simply overrides the fetus's right to life. Rather, she maintains that an innocent person's right to life doesn't include the right not to be killed if that person should inadvertently end up parasitizing another person's body against their will.

It's an interesting claim. But that's not what I want to go into right now.

What actually has been nagging at me is the example I gave to show why "life begins at conception" isn't really a viable position. I'm going to modify it slightly to provide some symmetry for the point I'm going to be making, but I don't think it really changes the base analysis:

If a fire breaks out in a fertility clinic and you can only save a petri dish with three blastulae or a four-year old child, who do you save if all are equally persons?

The point of the question is that I'd clearly save the four-year old. And I would not feel the slightest bit guilty about it. By contrast, if the blastulae were equally "persons" to the child, I'd presumably be obligated to save the blastulae (there being more of them), and leave the child. I can't imagine any person with a soul actually doing that though.

The problem, though, is that on further reflection, the argument may prove too much. Consider this modified scenario:

If a fire breaks out in a hospital and you can only save three newly born, 5-week old triplets, or a four-year old child, who do you save if all are equally persons?

Here's where the problem lies, because I'd still probably save the four year old. I'd feel incredibly guilty about it, but I cannot imagine I'd turn away from a child crying for help in the face of a few infants. I'm just guessing my visceral reaction here, but I really think I'd do it. However, I don't think that infants are not full moral human beings, and I don't think they can be generally deprived of their rights as persons.

At first, I was willing to chalk this up to my predisposition to linking moral personhood to enhanced brain activity--four-year olds top infants on that score. Problem number one with that approach is that it ruins my brightline--I dislike stupid people, but I definitely don't think they deserve fewer rights, so creating a sliding scale of protection linked to brain function is problematic. Problem number two is that the analogy falls apart in the face of the next scenario:

If a fire breaks out in an office building, and you can only save three fifty-year old accountants, or a four-year old child, who do you save if all are equally persons?

Uh-oh. Even here I can easily see myself saving the child. Again, with lots of guilty feelings, but that's my gut. Why is that? It's hard to think of a rational reason. I think that we have a deep-set aversion to letting children come to harm. It seems that at least part of that sentiment stems from the feeling that a child's gifts have not had time to develop, the potential they hold within them is still untapped. Oh God, the potential argument! I thought we got rid of that back in the last post, when responding to the point that a fetus was a "potential" human being. But, like a video game boss character, it has re-emerged from the dead, in far stronger form than when we last battled. Whereas the mere potential of a fetus to become a human being does not intuitively drive me to recognize its full rights as a person, the potential of a toddler to become a great poet or brilliant scientist leads me to give it considerably enhanced protection compared to other persons.

Of course we give additional protection to small children all the time, for a variety of reasons. But none seems particularly applicable here. Small children are comparatively more helpless than adults, but then, so are fetuses (and blastulae). Society has a special interest in developing the talents of its young, but generally "special interests" don't extend to letting many people die so that one can live. Nor is this a triage situation; the child is no more or less likely to survive the fire than the accountants, should you choose to rescue her.

I'm not even precisely sure how this relates back to the abortion debate (if it does at all). But it's a moral dilemma that's been troubling me for some time. Am I entirely off-base here? Or is there some justification for my decision to over-protect four-year olds over other people?

What does this all mean?

Etz Chaim

David Bernstein compares the Federalist Society to Conservative Judaism (which, as some of his commenters now have been made aware, is quite different from conservative Judaism. Capitalization matters, folks!).

The Federalist Society: "It is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

Conservative Judaism (as expressed by Rabbi Kenneth Cohen): "[T]he role of the rabbi is not to decide what the law should be, but rather what the law is."

But wait! Follow up on that Cohen quote:

Nevertheless, there are always new situations which were not clearly anticipated in the classical literature. For instance, rabbis have always insisted that smoking is prohibited on Shabbat. But recent health data might compel a rabbi to rule that smoking is prohibited altogether. Although this is an innovation, it is in conformity with the Torah injunction to preserve life. Similarly, our understanding of human sexuality has undergone remarkable changes in recent years. This information needs to be considered sensitively when applying Jewish law.

Halacha has never been determined in an ivory tower, removed from the "real world." It has always reflected the environment in which it thrived. The Torah is an "etz chaim - a tree of life" with solid and ancient roots but also with branches and leaves which continue to grow.

A tree of life? Sounds like a living constitution to me!

People often forget how legalistic Judaism is (indeed, that was one of Jesus' early critiques, was it not?). It is definitely a law based religion. So all of those later texts that are so important to us--the Talmud, the Mishnah, Responsa, etc.--all are essentially legal interpretations, akin to court rulings. That's why examining the Jewish tradition can yield such fascinating insights on legal thought. We've got thousands of years of experience dealing with a fluid and flowering tradition.

Cut Some Slack

Orin Kerr (over at his new blog! Check it out!) writes about so-called "good driver stops." Basically, if a cop sees you showing good driving ettiquite, they pull you over, but instead of giving you a ticket, they give you tickets...to a sports game. Or some other fabulous prize!

The tragedy is, according to Professor Kerr, that these stops may be unconstitutional. To be fair, there are good reasons to be wary. Kerr notes that:

Another reason the programs run into constitutional difficulty is the juxtaposition of the programs with the permissive rule of Whren v. United States. Whren offered a bright line rule: Probable cause to believe that a person has violated a traffic regulation justifies a traffic stop, even if the stop is pretextual (that is, the officer really has no interest in enforcing the traffic laws). If "good driver" stops are constitutional and co-exist with Whren, you end up with what strikes me as a pretty remarkable result. Unless I'm missing something, the police would be able to pull over pretty much any one at any time. Any driver who is violating any traffic regulation could be pulled over under Whren, and any driver who is not violating a traffic regulation could be pulled over under the "good driver" program.

Once someone is pulled over in a traffic stop, if the police officer sees something that tips him off that another crime may have occurred (a marijuana joint on the passanger seat, for example), he can search the vehicle for that purpose too.

That concern troubles me too, but I'd like to think we can find a way out of it--if for no other reason than I like people being nice to each other, and giving me free baseball tickets is a nice thing to do.

It seems like we must be drawing this line in some contexts anyway with Terry stops though. The police can "stop and frisk" me if they have reasonable suscpicion I'm either committing or am about to commit a crime. Fine. And if I live in a small town, where I know the local beat cop, he might come up to me for no other reason than to say hi, chat about my family and school, etc.. If he sees a gun-like bulge in my jacket pocket, can he stop and frisk me just off that? I think probably--but I'm not sure I think that's a problem either. It seems weird to say the original conversation with the cop is a 4th amendment violation. And maybe my friendly neighborhood cop is a distinct situation from a traffic cop--its more of an imposition to be stopped while driving, for example. But at the same time, clearly we have to have mechanisms that let police officers be nice people and good community members without implicating the 4th amendment.

Kerr also does not believe that this program encourages good driving either, but I'm still undecided on the subject: presumably that depends on how many good driver awards are given out. Eventually you get a panoptican effect (but in the nice, fuzzy, Santa Claus way). But even if the odds are low, people might driver safer anyway. After all, people buy lottery tickets based on much lower odds (admittedly, a much higher payoff too). And even beyond that, just the news of the program and the stories might exert subtle pressure on people to drive more safely--benefits which might exceed marginal.

I'm not so invested in these programs that I want to preserve them at all costs. If "good driver stops" mean the 4th amendment becomes effectively meaningless on the highways, then I'll let it go. But I'd like to think that we can get around this. Can good cops be good neighbors too?

Use It or Lose It

I've had these links sitting on my computer for awhile, and kept planning on writing an insightful and fascinating blog post about them. Alas, that never materialized. So now, I just want to get them down so I don't lose them forever. They're reviews of two books on the Jewish community in India. Very interesting.

The first is of the book "Who Are The Jews of India", and the second is of "Burnt Bread and Chutney: Growing Up Between Cultures--A Memoir of an Indian Jewish Girl". The former got a great review, the latter got a more lukewarm reception. But in general, the topic is one I find fascinating.

Particularly interesting was the relative lack of anti-Semitism against Jews in India (compared to the murderous violence they faced in Europe and the Middle East). Several hypothesis have been forwarded for this fact--India's polyglot nature being more tolerant of diversity in general, the lack of Abrahamic roots in either Buddhism or Hinduism checking against minor theological disputes turning into holy wars, or more generally the polytheistic nature of Hinduism allowing for other Gods to co-exist in peace. Irregardless, the Jewish community in India is a relatively happy story for our people, and proof positive that being in the diaspora does not have to mean either assimilation or persecution.

I'll admit I know very little about the Indian Jewish community. I did know it existed, and I knew that it's presence had heavily contributed to the thawing of India/Israeli relations after the cold war, as well as the burgeoning tourism industry in India catering to Israeli civilians. If I get time, I'd love to pick these two books up.

Rite of Passage

Guess what! I got my first hate-comment on my blog today! On my "On the Shelf" post, "A Goyim" wrote in the comments:

Zionism is disgusting.
Don't pass the buck. The billions and billions of bucks and nuclear secrets, Mr. Moneybag Israelite.

What do I think when I look at a list of fascistcorporate CEOs and see Steinbergs, Bernstiens, Cohens, Wolfowitzs, etc? Sure, What a bunch of evil Christians! You f--king twit.

Christianity doesn't even exist in todays world, except as ZIONISM, it is a dead religion.

Part of me feels like I should be upset, but I'm not. Honestly, it feels like a rite of passage. Once you get your first piece of hate mail, that's when you know you've made it.

So I guess the fact that I've been blogging almost two years now without getting a message like could be seen as an indicator that I'm still a minor player in the blogosphere. But I prefer to see it as a sign of just how wonderful the folks who comment regularly on my blog are. You know who you are. I see other blogs and know how lucky I am that we have virtually no trolls and no flame wars here. That's a blessing. And both when you agree with me and when you don't, I love your input and thank you for your patronage.

Darfur Meltdown

The UN has announced its cutting its aid budget to Darfur in half. Its stated reason? The area has gotten so dangerous that UN workers can't utilize most of the resources at their disposal. To me, that's an excellent tip-off that hey, maybe the time has past for just sending in aid workers, and it's time to send in some blue helmets instead. But alas, that appears not be the case.

The AU has just extended its mission in Sudan so that there still might be some troops (ill-equipped and undermanned as they are) in Darfur while the UN and other international actors continue to delay sending in their own forces. Sudan has vigorously opposed any UN intervention, going as far as to threaten terrorist strikes if UN boots hit the ground in Darfur. It's a vicious cycle--the AU knows that it is in way over it's head and wants the UN to relieve it, but the UN desparately wants to avoid any tangible action and thus wants to act as if the AU mission is succeeding.

But it's not all bad news! Check out this offer by the Sudanese government:

Sudan said earlier Friday it would reinforce African Union troops in Darfur with 10,000 men, half of them Sudanese armed forces and half former southern Sudanese rebel SPLA soldiers who have been integrated into the Sudanese army.

Reinforce or "reinforce"? I'm sure the Darfur refugees feel safer already, with at least 5,000 troops from the government dedicated to their extermination arriving on the scene.

It would be funny if it weren't so genocidal.

The Sound and The Fury

Ex-Justice Sandra Day O'Connor lashes out at the anti-judicial right. She sounds furious. Regarding Tom DeLay's rants after the Schiavo rulings:

"This was after the federal courts had applied Congress' one-time-only statute about Schiavo as it was written--not as the Congressman might have wished it were written. The response to this flagrant display of judicial restraint was that the Congressman blasted the courts..."

And regarding Senator Jon Cornyn:

"It doesn't help when a high-profile senator suggests there may be a connection between violence against judges and decisions that the senator disagrees with."

Retirement seems to suit Sandra. It's about time members of the judiciary started standing up for themselves in the face of an unrelenting assault on their dignity and character from the right.

In related news, the FRC endorses impeaching judges who issue rulings they disagree with (note: the FRC's site is notoriously fickle--I have no idea if this URL will point to the same site I witnessed).

Racist Faucets

Nick Schulz's rant against auto-flushers didn't blow me away, but I loved this anecdote:

Hands-free toilets and faucets are certainly smarter now than when they first came on the market. Pete DeMarco told me that when automatic fixtures first got popular in the early 1990s, they had difficulty detecting dark colors, which tended to absorb the laser light instead of reflecting it back to the sensor. DeMarco remembers washing his hands in O'Hare Airport next to an African-American gentleman. DeMarco's faucet worked; the black man's didn't. The black guy then went to DeMarco's faucet, which he had just seen working seconds before; it didn't work. This time DeMarco spoke up, telling him to turn his hands palm side up. The faucet worked.

Ah...structural racism at work.

Life Begins At...?

I'm not a big abortion blogger. It seems most people view abortion in terms of black and white. It's either akin to slaughtering babies, or it's a key aspect of woman's rights. And since the arguments seem to devolve into these simplistic terms rather quickly (even more so than in most political arguments), I remain confused.

One important question in this debate is when life begins. Pro-lifers have a very simple answer: at conception. Pro-choicers have a bevy of objections to this. Some are pragmatic (""If a fire breaks out in a fertility clinic and you can only save a petri dish with five blastulae or a two-year old child, which do you save if all are equally persons?"). Others are theoretical--it is fair to argue that even if life begins biologically at conception, one does not have moral personhood until some later part of development (incidentally, the Catholic Church used to abide by this through the doctrine of "ensoulment", which did not happen "at conception" but (I believe) two months into pregnancy. But I digress). Peter Singer essentially believes this--he says that a fertilized egg is unquestionably alive, and unquestionably part of homo sapiens, so its a bit peculiar to say its not a "living human." He continues to argue that something else besides being biologically alive is required before one has complete human rights. Unfortunately, Professor Singer also defends infanticide, a position most pro-choice people would rather disassociate themselves from. On the flip side, some people say that it is illogical to assert even "biological life" begins at conception. PZ Myers takes this view, arguing that the privileging of fertilization over other stages of fetal (and human) development is completely arbitrary.

Thus, I'll group the objections to the "life begins at conception" (LBAC) claim in the following categories: it's (a) practically untenable, (b) based on falsely replacing moral personhood with biological personhood, and/or (c) biologically arbitrary.

All fair objections, and I find them compelling. But we still need to answer the question: when does life begin--if for no other reason than we think killing "people" is generally bad, so we need to establish who "people" are so we can avoid killing them. If one believes that "In a free society a woman would be able to terminate with absolute ease an unwanted pregnancy for any reason that strikes her fancy" (and I realize that not all self-identified "pro-choice" people sign on to that statement), then one needs to create a definition of life that precludes a fetus at any stage from being included. Because if a fetus is a full human (or at least as fully human as an infant) at any point in its development, then abortion "for any reason" becomes morally untenable. So I give an open question to pro-choice bloggers out there: when does life begin?

The answer should avoid the objections that are lodged against LBAC if it's going to be valid. One can object to LBAC on any or all of these grounds, but to be even-handed one kind of has to make sure one's own definition doesn't fall into the same trap. If the only objection is practicality, then why wouldn't "life begins at viability" be a valid response (which would sanction many abortions)? That seems practical in most cases, and while there are cases where it runs into trouble (life of the mother, for example), that problem also manifests itself in certain cases with post-natal children (a child with a severe medical deficiency born to a family with no health insurance bankrupting them). If the objection is based on "moral personhood", then when does one receive moral personhood--and will that definition also sanction killing newborns and/or the severely disabled (or even the elderly)? If the objection is based on biological arbitrariness, then explain why your standard is less biologically arbitrary than conception.

Again, I'm not taking a position as to any of these. As I pointed out, LBAC has serious flaws that I think preclude it from being a sensible standard for the abortion debate. But I do think it is valuable to explicate when full human life begins if not at conception. So have at it, pro-choicers--my comment boards (and/or trackbacks, if that's what you prefer) are yours.

UPDATE: A brief clarification, because I think I'm being misunderstood. Several people have said that the important question is not when life begins, but when we begin to protect life. In other words, the claim that moral personhood, not biological personhood, is the kicker question. That's lovely--I'd be inclined to agree with it myself. But that just shifts the question back a notch--when does moral personhood begin? If that's the position you take, then that's the question you have to answer, in lieu of "when does life begin," because I suspect the pro-lifers would argue that moral personhood is endowed at the same moment biological personhood is--I.E., at conception.

On The Shelf

It's finals season here in Northfield, and I'll admit to being swamped. Today was a big day in that respect--my last Hebrew test ever was taken, and I sent in my 15 page case note for Constitutional Law. On the horizon remains the final draft of a 10 page Hebrew research paper (due next Wednesday), my Hebrew oral exam (Friday), my Constitutional Law final exam (Monday or Tuesday), a 5 page Science and Society paper (Tuesday), and a 12 page Science and Society research paper (Tuesday). So yeah, blogging may take a back seat.

But even in the depths of soul-crushing work, I still make time to read. I'm in the middle of Notes of a White Black Woman: Race, Color, Community, by Judy Scales-Trent. It's quite good (though not as awe-inspiringly amazing as Kenji Yoshino's "Covering", which I finished a few weeks ago. Best book I've read in ages). Also on my laptop are two SSRN downloads: "The Equal Protection of Free Exercise: Two Approaches and Their History" by Bernadette Meyler (H/T: Rick Garnett), and "An Evaluation of Federal Tax Policy Based on Judeo-Christian Ethics" by Susan Pace Hamill (H/T: Dan Filler). The former just plays off a generic taste I have for Religion Clause jurisprudence. The latter holds interest to me because I've skimmed its prequel article, "An Argument for Tax Reform Based on Judeo-Christian Ethics." The latter article was written by Professor Hamill in support of a plan to overhaul Alabama's insanely regressive tax structure so that it was fairer to the poor. Needless to say, I support that goal. However, as frequent readers of the blog know, anytime I read "Judeo-Christian" my stomach ties in knots, and in fact I first found this article when composing a scholarly critique of "Judeo-Christian." In her overview of the impact "Judeo-Christian" arguments had on American political development, she cites almost entirely to Christian actors, with a single reference to Rabbis supporting the Civil Rights movement buried at the end of a footnote. And unfortunately, this new article (which I am only part way through) appears to suffer from the same flaw--a lot of analysis on "Christian" ethics, with a "me-too" citation to a single Jewish scholar at the end of each point (at least the scholar--Elliot Dorff--is a name I know and respect on the subject).

This isn't to be too hard on Professor Hamill--I'd suspect that the Jewish tradition would, in fact, be appalled by the Bush administration's tax policy, though perhaps for different reasons. But I still can't shake the feeling that the "Judeo" is present in these arguments less for the independent perspective the tradition provides on difficult moral questions, and more to add faux-diversity to a single-sect argument. Basically, saying that something is justified by "Christian ethics" seems narrow and provincial, while saying its justified by "Judeo-Christian ethics" seems to add at least some degree of cultural pluralism. But we're being used, people--if it turned out that the Jewish perspective was incontestably different from the Christian one, I suspect Professor Hamill would not change her article in the slightest--she'd just drop the "Judeo" pretense entirely and focus entirely on "Christian ethics." And why not? It fulfills her stated goals just as well--by her own admission, nearly 80% of America identifies as Christian (with around 2% claiming to be Jewish)--in Congress, that number rises to over 90%. If the objective is to show the powers that be that they aren't adhering to their own stated value systems, then Jews are a pretty small player in the game. I like seeing Jewish arguments on topics of moral importance as much as the next guy, but I'd rather they be presented as independently valuable, as opposed to Christianity's ethnic doppelganger.

The Terror Check

Giving more ammo to the realist case for Darfur intervention, Restless Mania points to a column by Darfur expert Eric Reeves. He writes that Sudan has been threatening any potential intervention force with the prospect that al-Qaeda fighters will materialize in the country to fight the UN troops.

[I]f there are indeed al-Qaeda elements in Khartoum ("people in Khartoum who were not in Khartoum before"), it is because the National Islamic Front has permitted them to be there, and almost certainly encouraged them to be there. The NIF hosted Osama bin Laden from 1991-1996---the formative years for al-Qaeda. And even when bin Laden departed for Afghanistan in 1996, extremely close ties were preserved through, and after, the terrorist attacks of September 11, 2001. Khartoum's ruthlessly efficient Mukhabarat certainly knows the whereabouts in Sudan of terrorist elements; and any decision to allow them to remain is a deliberate, carefully calibrated threat directed against the possibility of a UN peacekeeping force, and more generally the international community. Khartoum is willing, in short, to use the threat of terrorism---which it can certainly control---as a means of forestalling international actions that might halt genocide.

If the international community yields to this threat, it will become a precedent well noted in other quarters in Africa and elsewhere around the world.

This argument is an almost exact parallel of the "don't let China check" argument. That argument basically said that if a country becomes a Chinese client state, and we let Chinese opposition stop an intervention in the event of a massive human rights catastrophe (like genocide), then other oppressive regimes will get the idea that they should enter the Chinese umbrella to slaughter their citizens with impunity. Sudan is ground-zero for this theory, since it is a major ally of China and China has been working to scuttle international intervention efforts. Apparently, Khartoum is experimenting with terror in the same way. And similarly, if other countries see that becoming a quiet al-Qaeda host acts as a deterrent to foreign intervention, we give a massive incentive for hostile nation's to encourage the growth of terror infrastructure in their borders. That would turn the "war on terror" into a farce.

Cross Purposes

Ah, competing forces at work. On the one hand, we have The Family Research Council announcing a presentation on "The Authentic Pro-life Tradition of Judaism". It purports to chronicle Judaism's pro-life ways, then "unmasks the attack launched against it by Jewish liberals in the latter half of the Twentieth Century." The speaker is one Richard Nadler, whose expertise in this complex area of Talmudic law is well set out in this biography the FRC provides:

Richard Nadler is a free lance journalist and policy analyst. A co-founder of the American Shareholders Association, he authored The Rise of Worker Capitalism (Cato Institute, Nov. 1, 1999), and The Influence of Intensity Factors on the Political Opinions of Investors (Dean Witter Foundation, Jan. 12, 2001). Mr. Nadler co-authored The Kyoto Protocol and U.S. Agriculture (Heartland Institute, Oct. 1, 1998) and Republican Issue Advertising in Black and Hispanic Population Areas: A Meta-Study of the 2002 Mid-Term Elections (Access Communications Group, Feb. 2003). He is the author of political biographies on Sen. Phil Gramm and commentator Pat Buchanan, and a frequent contributor to such publications as National Review, Policy Review, Insight Magazine, Education Reform News, and Human Life Review.

Yep, chock full of theological expertise. By which I mean, none that is apparent aside from writing the book around which his talk is based. In absence of that, I'm going to stick with the article by Rabbi David M. Feldman, "This Matter of Abortion," in Contemporary Jewish Ethics: A Reader (Elliot N. Dorff & Louis E. Newman, eds., New York: Oxford UP 1995): 382-391. Rabbi Feldman is the author of Birth Control in Jewish Law and Health and Medicine in the Jewish Tradition. It's a complex and nuanced argument, but what it comes down to is that abortion is nearly universally not considered to be murder in Jewish tradition, and that a "principle in the Jewish view...is...that her [the mother's] welfare, avoidance of her pain, comes first." Though I hesitate to pass judgment on Mr. Nadler without hearing his argument, I'd be very interested to see how he deals with the significant amount of historical (well before the middle of the 20th century--we're talking Rashi here) support Rabbi Feldman musters for his position.

On the other side of things, the Grey Lady reports that the Conservative Jewish movement (whom I affiliate with) is considering lifting its ban on homosexual marriage and rabbinic ordination (H/T: MoJ). Obviously, I support this move, and the article makes it seem like the proposal is in good shape--because of Judaism's pluralistic tradition, the opinion only needs 6 votes in the 25 member committee to become a valid legal opinion.

Judaism's flexibility and tolerance for a diverse array of perspectives has always been one of its greatest strengths. I hope that my denomination's leaders will make me proud to be a Conservative Jew when this issue comes to a vote.

Bolt of Lightening

Regarding my previous post on the evangelical movement and progressivism, two great articles are in the latest edition of the Washington Monthly. Amy Sullivan has a piece entitled "When Would Jesus Bolt," and it should provide a hopeful note to the pessimistic tone my post set. She claims that the new leaders of the evangelical movement is getting increasingly pissed at the old guard's complete state of servitude to the Republican party, and is more and more willing to look toward the Democratic party as an alternative. That's a signal of the institutional shift I said wouldn't happen. But my analysis was predicated on the partisan loyalties of the current evangelical leadership--if we're approaching a changing of the guard there, the whole situation changes. Kevin Drum is a bit more cautious, but thinks its an avenue worth pursuing. I concur, and think this is a superb place to wedge the GOP. We won't rollup the whole religious votes, but I think we can make an impact, and in many places that's all that matters. We'll probably always disagree on abortion, on gay marriage, on contraception, and issues of that sort. But that shouldn't stop us from making common cause on AIDS research, on humanitarian intervention, and on human rights.

The second article is on the Prince of the Christian Right, Ralph Reed. It's not anything too new, but it does buttress the point made in the first. Reed has completely sold out his evangelical supporters (if he ever truly supported them in the first place). An out-and-out Abramoff clone, Reed shares both the lobby mafiaso's vices and lack of virtues. When the last temptation of Reed is revealed, it's going to be a backbreaker for that wing of the Christian Right.

Maybe I wouldn't give you all this, but Rachel Sullivan said she liked the post. And I'm happy to follow up on posts people like. That's the customer service you expect from The Debate Link!

Free Expression

This is actually an interesting story about Hamas' response to al-Qaeda's call for continued Palestinian violence against Israel, but for me it's all overshadowed by this statement:

Asked whether the timing of the appeal to Hamas from the network led by Osama Bin Laden had made Hamas leaders uncomfortable, Nazzal said only that Zawahiri "has the right to express his opinion".

"We believe in free thinking and free opinion," he said. "We can't suppress any opinion against our own opinion."

Hamas: Fighting for political liberalism since five hours ago.

The source is the Daily Times of Pakistan--I'm not sure how credible they are. But the quote itself comes from AFP, which is credible, so I feel comfortable running it.

The main thrust of the story, anyway, is that Hamas will do whatever it feels is in the interest of Palestine, regardless of whether al-Qaeda likes it or not. The Hamas official's position also seemed quite positive:

We are saying 'yes' to peace. We are saying 'yes' to building relations with the international community. We are saying 'yes' to anything we feel will be in the interest of the Palestinian people.

I'm still putting my money on the peace rhetoric being political posturing, coming as it did while a Hamas delegation was visiting Russia (Putin shows once more why he's not ready to join the West). But the brush-off of al-Qaeda I think may be more genuine. I think Hamas has no interest in becoming a subsidiary of al-Qaeda's war on the West, seeing its conflict as separate and also seeing itself as a far more effective organization at achieving its ends than al-Qaeda ever will be.

Anyway, interesting stuff.

On The Up And Up

It's bragging time. The nationally distributed college magazine I'm an editor for just won 2nd place in the Associated Collegiate Press' Newspaper of the Year award. Given that this was our first edition ever, I'd call this a big deal. So go us.

You can access The Lens online here, featuring an article by yours truly.

Black Flight

Shay of Booker Rising links to an interesting article about black flight from Minneapolis public schools (she, in turn, got the article from Dean Esmay). I'm a Minnesota transplant, not a native, but I still take more than a passive interest on what goes on here. And this story certainly qualifies as interesting.

I remain conflicted on school choice proposals. This article was not particularly helpful in resolving that conflict, because it didn't give me a lot of information that would be important to me in making my decision. For example, though the "open enrollment" plan the Minneapolis metropolitan area has includes suburban public schools, the article itself only focuses on charter schools. Since the suburban public schools here are amongst the most elite in the nation, I'd be curious to see how they play out in this program (Shay thinks that the moment black students start arriving en massse to majority white schools, this program can kiss itself goodbye). The article just asserts that Charter Schools are "accountable", but doesn't say how (and my reading on the subject implies that at least some have been taking parent's for a ride). Also, I think the article shows a more complex story than some of its cheerleaders let on. While Mr. Esmay claims "'black flight' [is] not making the public schools any worse, because everybody admits that after decades of funding increases and 'reforms,' they can't possibly get any worse," not even the article is willing to sign onto that message, admitting that "[s]ince the state doles out funds on a per-pupil basis, the student exodus has hit the district's pocketbook hard. The loss of students has contributed to falling budgets, shuttered classrooms and deep staff cuts, and a district survey suggests more trouble ahead." Contrary to Esmay's Panglossian outlook, this does represent a problem if we, for whatever reason, concede that charter and outside schools can't accommodate the whole district. And that, I think, is a fair assumption--between kids with disabilities to troublemakers to just plain old underperformers, there are plenty of people who for one reason or another will be stuck in the inner city schools. Do we just abandon them?

That being said, Esmay and Shay probably would claim at least a comparative advantage over the status quo, and I'd be hard pressed to argue. I can't in good conscience tell any parent to keep their child in a school system that is failing them that miserably. But this moves me to my second objection (or perhaps, hesitation) to going full-out on school choice. If implemented to its full extent (and assuming that Shay's predicted white backlash doesn't materialize, which is far from certain), I think both Shay and Dean think that school choice represents a long term solution to the problem of schooling poor inner-city youth. I, on the other hand, disagree, and think it represents a short-term patch. Over the long haul, I have serious reservations about a permanent policy of shipping kids here there and everywhere for school.

I made this argument in a previous post regarding school choice, citing Charles Lawrence III (who, for the record, is black and sends his children to D.C. public schools--let there be no claims of hypocrisy here). I'll briefly reprise it for you here:

[Lawrence] 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.

School choice has intuitive appeal to me because it lets people who are stuck in failing schools get a real education. But at the end of the day, nothing can substitute for race and class-integrated communities, where people learn not just algebra, but also how to look out for each other. Does this mean I oppose school choice? I can't bring myself to say I do. But I do think it has to be seen as a waypoint, not a destination. The destination is a time where every neighborhood has a school that is not divided along hierarchal lines, where students of every background learn together, play together, work together, and grow together. Utopian? Maybe. But we can still work toward the dream. At the very least, the affirmative action for integrated school alums proposal seems like a promising avenue for reform. So, I once again recommend Professor Lawrence's article to all interested parties (here's the link--warning, PDF), and remind school choice advocates to celebrate, but tread lightly.

The Question of the Christians

In a recent article I penned for The Carleton Progressive, I lauded Kansas Senator and staunch evangelical Sam Brownback for his aggressive stance on Darfur and North Korean human rights, and urged Democrats, on these issues at least, to "Be Like Sam." That article followed up on a prior blog post, in which I wrote that "If being a hard-right Christian Conservative makes you more likely to support a Darfur intervention, then I can't bring myself to indict the whole movement." But of course, on other issues, such as homosexuality, the Christian right is a massive barrier to progress and human decency. So the question is: what to make of the Christian Rights flirtations with progressivism?

In what appears to be a chance coincidence, two of my favorite commentators have written up thoughts on the matter today. First, Alan Stewart Carl argues in the same vein as my own aforementioned pieces. He notes that on some of history's most pressing moral claims (slavery, woman's suffrage, and civil rights, to name some), Christians and other religious actors have been on the front lines for progress. Remember, he's not just Dr. Martin Luther King, Jr., he's the Rev. Dr. Martin Luther King, Jr.. Carl ties this in with the evangelical movements laudable support for Darfur intervention, condemnation of human rights abuses, and focus on the AIDS crisis in Africa. As a result, Carl condemns the reflexive anti-religious sentiment present in some corners of the secular left. And I'm hard pressed to disagree.

Another great recent example of religious faith being used for stellar moral ends (albeit in this case Catholicism, not Evangelicalism) was shown in a recent New York Times editorial on illegal immigration. Congress is thinking of passing a law that would greatly expand the definition of "alien smuggling" to include nearly any humanitarian acts of charity--caring for a neighbors baby, or working in a soup kitchen that serves illegals. In response, the Catholic Archbishop of Los Angeles, Roger Mahony, issued a very simple response. If the bill passes, Catholics should defy it. Good old fashioned civil disobedience to an unjust law. How can we critique this?

On the other hand, Michelle Cottle's article in The New Republic today raises fair points of its own. Every few weeks, it seems, an article comes out in the mainstream press about how the religious right is going to step beyond its traditional focus on sex, sex, and sex, and start aggressively advocating for other Christian priorities as well. You know, those little things like environmental stewardship, caring for the poor, and ending racism. But, while they may genuinely believe in these values as well, their faith without deeds is meaningless. And at the end of the day, there are few to no deeds to go along with the words of mainstream evangelical groups.

Cottle gives the example of the latest evangelical effort to start focusing on global warming. In what seemed like a auspicious start, the Evangelical Climate Initiative quickly received a major grant from the (secular) Hewlett Foundation. The problem is that Hewlett also funds some family planning efforts. Theoretically, this "problem" isn't one, as environmental justice and contraception are clearly severable issues. But alas, the evangelical hard right went up in arms anyway, wondering--in what can only be described as paranoid delusions--if Hewlett's grant wasn't actually just a closet effort to fund more abortions. Aside from the question of how (and why) one would choose a global warming initiative to enact pro-choice policies, if one was to take that--shall we say, indirect?--route toward the end, why would one fund an unabashedly pro-life organization to do it? Alas, such protests fell on deaf ears. When it turned out that an evangelical film by an evangelical company starred a gay actor--same thing. No more focus on the uplifting message of the movie, or how it showed evangelicalism in a good light. All of that is swept aside to the tune of "no-promo-homo." In general, the organizations themselves, even as they pay lip service to other ideals, have and are maintaining a laser-like focus on a few conservative wedge issues.

The net result is that individual conservative Christians can--and, as Brownback shows, do--look past the "sexy" issues to advocate on human rights. But as an organized political entity, any proposal that doesn't relate to abortion, gay marriage, and abstinence is just spinning its wheels. To make one more Catholic analogy, consider efforts by Catholic legal scholars to take a more condemnatory stand on Bush's torture policy. Surely, this is a pretty clear violation of Catholic doctrine? And sure enough, Princeton Professor Robert George (one of most prominent right-wing religious Catholics--he's affiliated with The Family Research Council) announced he was game--if his fellows would group the announcement as part of a general "ringing affirmation of the Church's teachings on torture, capital punishment, abortion, and marriage and sexual morality." To which Eduardo Penalver, another Catholic legal theorist, responded:

I'm all for taking on sacred cows, but I don't understand the inability of many conservatives to simply acknowledge the evil of this administration's policies with respect to torture without bringing up abortion.

Prof. George would surely admit that the multiplication of issues he proposes would needlessly dilute the force of the truth he welcomes speaking to this administration about the evils of its torture policies. So I have a somewhat different invitation, which I offer as a friendly amendment: Why don't we sign a joint statement (now) condemning in the strongest possible terms the torture practiced by this administration (which was, after all, the topic of Michael's post), and when Democrats control ANY branch of the government or have any appreciable influence on national abortion policy, we can sign a joint statement about abortion?

As far as I can tell, the proposal has now stalled out.

So where does that leave us? The net result is that Christian values can, and often are, a source of support for progressive policies and forces around the world. That can't be ignored. Thus, anybody who condemns religion--even the very religious--solely on the basis of it being religious is wrong. Clearly, unambiguously, inarguably wrong. But the recent history of the evangelical and Christian right movement has shown pretty convincingly that they will not, as full political organizations, expand beyond their meat-and-potatoes "sex" issues to join hands with progressives on any major scale. I'm thrilled that many evangelicals support a Darfur intervention. But can you imagine what our nation's policy toward Sudan would be if they put even a quarter of the effort they put into barring all abortions into stopping all genocide? The ideals are there. The institutional will is missing. That's the bottom line.

Threat Construction

Phoebe Maltz's (self-described "Francophilic Zionist") coverage of anti-Semitism in France is precisely what I would have written if I were as intelligent as Phoebe Maltz. From earliest to latest, here, here, and here. The latter is particular appealing to me, as it eloquently lays out how I think Jews are viewed around the world--but I think in Europe and academic circles particularly:

Or, to put it somewhat more clearly: It cannot possibly be that fantastic to be a Jew in France at the moment. Just as, way back when, Jews were seen as rich and thus evil by the poor because they were associated with the aristocracy, and yet were never able to really join the aristocracy because, well, they were Jewish, today's Jews are considered to be at once the enemy of the downtrodden and a part of a Semitic, non-European, anti-Western population invading France. Jews get to be symbols of the West to those such as Halimi's torturers, and of the East to the pork-soup crowd.

In the 19th century, it was well documented that the aristocracy portrayed Jews as rabble-rousing communists, while rabble-rousing communists shouted that Jews were bourgeois. Same thing today: we're simultaneously the privileged Westerners and the barbaric, sub-human Orientals.

Phoebe's post also clarifies a point of contention lodged by Ampersand at Alas, a Blog on my original post on the subject. The Chicago Sun-Times editorial I linked to said that the French government was downplaying the anti-Semitic element to the attack, Amp said that, well hold it, French government folks joined a massive march against the anti-Semitism that motivated the attack. According to Phoebe, the solution to the discrepancy appears to be that universal political attribute: flip-flop. At first, the government minimized the role anti-Semitism played in the assault, but faced with growing outrage in the Jewish community they made an about face. Also, before I forget, nice catch on the issue of Steyn's credibility--though to be fair he's not the only source I've read raising alarm at the rise in anti-Semitism in France.

I will defend Steyn on the point that saying "Israel is the greatest threat to world peace" is an anti-Semitic view to hold. Amp argues that it is plausible to think that "the most likely hotspot to directly or indirectly cause WW3 is the Israeli occupation of the West Bank." Maybe...but I have two objections to that line of argument. First, I don't think most people answer the question in that particular mode, nor do I think that the questioners intend it to come off that way. I could say that America is the greatest threat to world peace simply because we have the most potential to do harm and are the target of a lot of dislike. But to me, that question is more designed to get at "which country is most likely to go out an aggressively start an international conflict," to which I think Iran or North Korea are far and away clearer choices than Israel. That ties in to my second objection, which is that no matter how you cut it, the answer to that question has normative implications for the named country. Let's say that I buy that the West Bank controversy is the conflict most likely to spill over into WW3 (and I'm not sure that I do). That doesn't necessarily make Israel the greatest threat to world peace. To do that, you need to answer two more questions, which I think are progressively more absurd. The first is that the West Bank conflict is unambiguously Israel's fault. If they aren't the blameworthy party, then the peacebreaking effect of the West Bank shouldn't be laid at their feet. Second, I need to agree that the injustice of the occupation is worth sparking an international conflict over. If it isn't, then I should feel more threatened by the radical imams or whomever who are making a particularly stubborn border conflict into the most likely nuclear holocaust scenario.

So really, there are three statements I need to affirm before I can get at that answer, each one a bit harder to plausibly argue than the one before. The first is that the occupation is the most likely hotspot to spark WW3. The second is that this conflict is primarily Israel's fault. The third is that this is an injustice worthy of war. If I answer no to the first statement, then my answer to the survey question shifts to North Korea or something. If I answer yes to the first but no to the second, then my answer becomes Palestine (or, if I feel they're roughly equal at fault, then "Israel and Palestine"). And if I answer yes to one and two, but not three, then my answer becomes "whoever made the crazy decision that the West Bank occupation was worth plunging the world into darkness and despair over," which almost definitely isn't Israel but could easily be Iran or the Arab League. Say what you will about Israel's settlement policy, but the folks who think that Israel harbors global territorial domination ambitions (*cough* Hamas *cough*) have crossed into the realm of paranoia. Put bluntly, even the most anti-Israel interpretation of Israel's interests can't seriously argue that Israel wants the Palestine issue to turn into a global war--and if it does go global, it's going to be some other actor making the push. And since "the Jews [want to] control the world" has a pretty well-developed history as an anti-Semitic myth, I don't feel bad about accusing said paranoids of being anti-Semitic.

Personally, I'm not sure if I buy one, I definitely don't buy two, but to the extent that I do buy one (and assuming arguendo that I buy two, which I don't even think I have to for the purpose of the claim that I have to make), since I don't think that the I/P conflict comes close to justifying another world war (and I do think it's possible to justify one--WWII was a just war, in my view), the "greatest threat to world peace" becomes whatever actor turns said conflict into a global conflagration. The wildly obvious answer to that query is Iran. Which means that, even starting from the premise that "the most likely hotspot to directly or indirectly cause WW3 is the Israeli occupation of the West Bank," the conclusion I'd logically come to is that "therefore, Iran is the greatest threat to world peace."

So to sum up briefly: saying that a country is "the great threat to world peace" is inherently a normative claim. So to say that Israel is said country, you have to believe a) that the West Bank is the hotspot most prone to global escalation b) that Israel is completely or primarily at fault in the region and either c) that those who would push this conflict from local to international are right or d) that Israel is the one making that push. Since this syllogism is illogical bordering on irrational, I think it's fair to question whether or not it's adherents might have adopted some anti-Semitic sentiments from their travels in our lovely (Jewish-controlled) world.

Transcendentally Right

A brief appendix to my Risks and Rewards in Theory post, where I claimed that Cindy Sheehan was "consistently, extremely, and transcendentally wrong on almost every issue." The flip side of her is Barack Obama, who appears to be right on nearly everything. Kind of incredible, actually.

See Kevin Drum for the latest in Obama amazingness. To wit:

The federal government would pay 10 percent of the $6.7 billion in annual health costs for retirees that are weighing down General Motors, Ford and Chrysler if they'll commit to building more fuel-efficient cars, Obama proposed in a speech Tuesday before a panel at the National Governors Association conference. He called it a "win-win proposal for the industry."

Specifically, he wants the auto industry to do the following:

Ramp up new fuel standards that will result in production of 65 billion gallons of alternative fuels per year by 2025.

Mandate that the federal government buy only flex fuel vehicles.

Within ten years, mandate that every car in America is a flex fuel vehicle. Include a $100 tax credit per vehicle to ease the pain.

Put yellow gas caps on all flex fuel vehicles.

Provide a $30,000 tax credit to any gas station that installs E85 pumps (i.e., a blend of 85% ethanol and 15% gasoline).

Matt Yglesias is less hot on the idea on a policy level, although he recognizes that it is political gold. He thinks that it may violate WTO rules (though he doesn't explain how, and I don't see the violation on first pass. If having complete national healthcare isn't a WTO violation, then how does partial coverage become one? Explanation appreciated). At the moment, Yglesias hasn't convinced me (though he definitely didn't pour his full argumentative talent into dismantling the plan). So I stand with Carpetbagger Report that this is win-win-win for Democrats, and they should press hard for it.

Just showing, yet again, that Obama is the golden boy.

Realistic Assessment

I'm not much of a Realist when it comes to foreign policy. That's not to say I don't care about protecting America's interests abroad, just that it isn't the overriding concern. The sort of Cold War mentality where we prop up evil dictatorships to keep them out of the Soviet column is abhorrent to me. So, if someone says "we need to intervene in Sudan because their oil resources are a vital strategic interest," I'm skeptical. But if they say "Sudan's in the midst of a genocide--we need to save lives!" I start paying closer attention.

But not everyone is like me. And that's why this New Republic article laying out the Realist case for a Darfur intervention is so important. It's clearly written, compelling, and urgent. Everyone should read it.

The gist of the argument is that we need to check China's influence in Africa. Basically, every time we withhold economic or political support to an African regime because they're hacking the limbs off their citizens (or whatever), China rushes to fill the gap. So when the US delayed giving Nigeria the arms shipment they wanted, they just ran to China, who said "sure thing!" China offers economic, military, and political assistance to all comers, and (and here's the important part), a shield via its security council veto against meaningful international sanction.

This is where Sudan comes in. Sudan is one of China's biggest client states. And, by committing genocide, Sudan is also the biggest human rights violator in the region. If the US doesn't intervene in Darfur, the message is that China's influence can prevent meaningful sanction over literally any governmental policy. And we, for obvious reasons, don't want that: it would give a blank check to any machete-wielding militia with government support, it would make human rights in the region a dead letter, and it would eliminate any hope the US had of competing with China for regional influence (after all, why bother abiding by pesky American rights standards when China will give you the same support for free?).

I buy the analysis. But since I'd be willing to intervene even without that argument, I'm not the important guy here. It's on the rest of you now. Go forth, and read.

Mississippi Irony

Mississippi takes a step to ban all abortions. Boo. But this clause I find intriguing:

Rep. Omeria Scott, D-Laurel, persuaded the House committee to approve an amendment that says the state would provide free education and medical services to any child born in the state, until age 19.

Scott said her proposal could extend beyond the public schools and Medicaid already offered. She said it could make a significant difference for a poor woman who's trying to decide whether to have an abortion.

"Anyone who wants to take this language out of this bill is not for life," Scott said.

This would be a spectacular policy. And I agree with Representative Scott--a clause like this is make-or-break for being truly "pro-life" (as opposed to "pro-birth").

But here's the delicious irony. This clause would have never passed by itself. This sort of universal education and healthcare commitment is definitely not up the GOP's alley, neither in Mississippi nor anywhere else. But Scott convinced them that it kind of went part and parcel with a true pro-life position (and again, she's dead right), so they threw it in.

Now, the next step in the "banning abortion" theater game (assuming the bill gets passed by the full legislature) is where a federal Court immediately enjoins its enforcement. This isn't even a close call--even if the Court thought that abortion should be criminalized, it has to obey higher Court precedent (which is really clear in this case). But, Courts try, whenever possible, to only strike down the unconstitutional aspects of a bill. If they can "sever" the unconstitutional parts from the constitutional parts, they will. The "ban abortion" clause and the "free education and healthcare" clause are clearly separable, that is, you can enforce one without enforcing the other. So the latter will likely be preserved even if the former goes down in flames.

The upshot is that Mississippi's abortion ban will immediately be struck down, but the children's welfare statute will remain on the books, fully enforcable. Which puts MS politicians in the lovely position of either acceding to a massive new liberal program, or having to repeal healthcare for poor children (can you see the ads?).

Sometimes, the straightest path...

(TMVer Justin Gardner with the heads up)

Risks and Rewards in Theory

One of my pet theories is that only actions in which their is a potential for really bad consequences also have the potential for really good consequences. Take judicial power. I am a supporter of judicial interventionism. I recognize that this could potentially lead to catastrophically bad results (e.g., Dred Scott). But I see it as the only way to lead to good/right results. That is to say, a non-interventionist approach, to me, is a guarantee of moderate suckiness. The same discretion that enables wildly unjust results also unlocks the potential for achieving just results. Since I want to preserve the potential for justice in the system, I support judicial power, but keep a careful eye on it to make sure it's being used for good and not evil (I recognize that these are hotly disputed terms, but that's a subject for another post). Similarly, Ian F. Haney Lopez observed that any use of race conscious thinking could theoretically be perverted to racist ends, but if we're serious about ending racism, race conscious thinking is absolutely necessary, so that's a risk we're going to have to take. Focusing solely on when it goes wrong means foreclosing the only options that offer the chance of getting things right.

An interesting example of this is Connecticut Senator Joe Lieberman, the Democrat most hated by Democrats this side of Zell Miller. I'm kind of ambivalent to old Joe. On one hand, he's been far too willing to defend really bad government policies, serving as a GOP foil to legitimate Democratic attacks on the Bush administration. I think the charges of "Fox News Democrat" are overstated, but not completely drawn from whole cloth either. I'm certainly less of a fan than I was even a few years ago. If The New Republic was revisiting its presidential endorsement issue from 2004, I'd expect and hope that they would not give it to Lieberman (of course, I supported Clark in 2004).

On the other hand, the same maverick streak that places Joe on the side of Bush on issues I'd rather he'd not be, also means that he's been ahead of the curve on a bunch of issues I'd like the Democratic party to push harder on. The Department of Homeland Security? His idea. And in general, Lieberman's constant press for more security funding has been superb. So all in all, I'm willing to overlook, if not forgive, Lieberman's flaws as a politician. I don't support the primary campaign in Connecticut to knock Lieberman out of office (and it's not based off a generic opposition to challenging one's own incumbents--I support Ciro Rodriguez's effort to take back his seat from Henry Cuellar). The attributes that make him sometimes do really dumb things also sometimes make him do really awesome things--I want to preserve that.

I look at Lieberman and see a flawed but ultimately defensible politician. Sure, when he's wrong, he's wrong in a much bigger way than Senator Mainstream Democrat. But on the other hand, he's right bigger too. One can debate about where we should draw the line--but I think it's unfair to cast Lieberman as some sort of uniquely evil man. So when someone makes a Nazi analogy to Joe, calling him "Herr Lieberman", I think that crosses a very serious line. Godwin's Law aside, I blogged specifically on why, in "ordinary political disputes" (which, for better or worse, the anti-Lieberman campaign is), ethnic slurs (by which I mean epithets designed to have particular potency based on the target's race, religion, or background) should be considered out of bounds. See the linked post for the full argument, but implicitly comparing a Jew to a Nazi obviously qualifies--even if one doesn't think that Nazi comparisons are per se wrong, it's qualitatively different when one does it to a Jew because of their unique history. That it was endorsed by one of the more popular liberal blogs on the web is even more distressing, and shows an inability of some persons to divide between political opposition and personal slurs (H/T: The Plank).

Of course, like the proverbial coin that flips tails fifty times in a row, there are those people whose "maverick" streak causes them to be consistently, extremely, and transcendentally wrong on almost every issue. Cindy Sheehan jumps immediately to mind. Even though we both identify as progressives, she still manages to take that value system and morph it into complete idiocy. I probably feel about Sheehan what many people feel about Lieberman (of course, I think I'm right and they're wrong, but whatever), but I'm not going to engage in any sort of "hate speech" against her (calling her a "bitch" or "pseudo-Stalinist pinko" or however one puts down a white female leftist these days). I'll just keep on saying that I think Sheehan is clearly, completely, indisputably wrong about nearly every issue she opens her mouth about. Despite what the right would like, that doesn't make me question progressivism inherently. It just reminds me that any good theory (like progressivism) has the potential to be used for evil. If it doesn't, then it likely isn't flexible enough to actually be a good theory.

So to recap: strong theories will inherently risk being wrong big sometimes (Lieberman) or even all the time (Sheehan). But that isn't, by itself, a reason to reject the theory. It's just a reason to be more vigilant in its application.

Introducing the Kennedy Court

The hyper-partisan Texas redistricting map is coming to the high Court. I think that partisan gerrymandering is one of the great evils of modern American politics, and would love to see the Court take a stand on it. Will it? Tough question.

Again, let's assume that Alito and Roberts vote conservative, giving us our standard 4-4 liberal/conservative split. The wild card, then, is Justice Kennedy. In this TMV post I touched on my sentiment that Kennedy will drift slightly to the left over the next few years and occupy O'Connor's spot as designated swing vote (most people would probably have placed Kennedy slightly to the right of O'Connor previously). I believe that in past cases, Kennedy has signaled severe discomfort with partisan redistricting, but has expressed concern that there is no workable standard for remedying the problem. He's had several years to think of one, and I think he really wants to lay down the law here. I think that Kennedy's normal cautious, centrist mentality can be overcome (and hard) if he's presented with a case that nakedly violates his sense of justice or fairness. That explains how a judge widely considered to be moderate could write such sweeping and uplifting opinions in Lawrence v. Texas, Roper v. Simmons, Lee v. Weisman, and Romer v. Evans (to name a few). This topic, by my reckoning, seems to be elucidating the same sort of visceral reaction in Justice Kennedy that those cases did. Couple that with just how blatant the partisan interest was here, and the Justice Department's political hacks overruling its career appointees, and I think it might push Kennedy over the edge.

Many legal wags named the previous manifestation of the Court "The O'Connor Court," because of her critical role as the pivotal "5th vote" in so many cases. Kennedy seems poised to fill her role. And this case will be highly indicative of what that means for legal doctrine and the nation as a whole.

TNR Takes a Step

Apologizes for the lack of blogging--this week is looking to be a doozy. Hopefully I'll settle in as the week progresses.

Anyway, apparently the next Editor in Chief of The New Republic is going to be Franklin Foer. I'm a fan of the choice--Foer is a gifted and talented writer (as even the churlish folks at DKos admit), and think he will do great things for the magazine. Everyone is marveling at how painless the process is--apparently, TNR leadership battles are normally editorial bloodbaths. Hooray for unity!

Andrew Sullivan and Josh Marshall put in good words, Kevin Drum thinks that TNR's one barrier to greatness is its refusal to say outright that Iraq was a mistake. Maybe so, I don't know. Comments?

Quote of the "Day"

"Day" is in quotations because this was written in an article published in 1979. The topic is an author's futile quest to find objective moral norms:

Nevertheless:
Napalming babies is bad.
Starving the poor is wicked.
Buying and selling each other is depraved.
Those who stood up and died resisting Hitler, Stalin, Amin, and Pol Pot--and General Custer too--have earned salvation.
Those who acquiesced deserve to be damned.
There is in the world such a thing as evil.
[All together now:] Sez who?
God help us.

From: Arthur Leff, Unspeakable Ethics, Unnatural Law, 1979 Duke L.J. 1229, 1249.

Eyes and Ears

Interesting editorial in the Chicago Sun-Times about the rise in European anti-Semitism, and the concurrent rise in Europe ignoring it. Scary stuff. I don't endorse all the rhetoric about Islamists taking over the world (though I think we do need to remember that is the agenda of the radical wing of the Muslim world, I always think articles like this overstate how prevalent this sentiment is amongst the rank-and-file), but the rising tide of anti-Jewish violence in Europe and elsewhere cannot be ignored--no matter how much France might want to.

It's important to call this what it is--anti-Semitism. That it isn't being covered might partially be about Islamic appeasement, but I reject calling that the whole story--that's as demeaning to the victims as the French police or the British papers who refused to say that their was a Jewish link to the cases. Murder of Jews isn't a political tool you get to trot out to show just how really bad the Islamists are. It's bad because killing Jews is bad, period. And not covering the murder of Jews as Jews is a form of anti-Semitism, irrespective of how it plays into our global conception of what the war on radical Islamism is.

H/T: The VC, see also Captain's Quarters.