When Brownback Isn't Enough

Let's say you're a voter who wants to restore "Christian" values to America. Sam Brownback's coddling of genocide victims and bleeding-heart statements of concern for North Korean human rights violation just make him too liberal for your tastes. Where do you go?

Arkansas Governor Mike Huckabee seems like a good bet. While Rob Anderson finds his poor knowledge of television evolution objectionable, I am more disgusted by his homophobic slap at Barney Frank ("we've seen our country go ... from Barney Fife to Barney Frank"). Homosexuals in Congress? Soon, they'll demanding that we treat them like humans!

All the extremism of Brownback, without any apparent concern for human rights abroad. What can you say--he fills a niche!

Definitely Better Than Them

Though I try to mostly read thoughtful (which, unfortunately, usually means centrist) blogs rather than wade around in the muck of the partisan blogosphere, I do admit every once in awhile I wander over to the harder stuff. And, since I lean left, my partisan indulgences tend to also represent the left edge of the spectrum as opposed to the right. Because of this skew, I'll occassionally stumble across some really nasty stuff from these folks, which I dutifully condemn as an insult to the progressive name. These are just front page posts--if I wandered into the comments section, I'm sure I'd find more.

Since I don't tend to read the hard-right conservative sites, I don't usually have parallel stories to tell, to show that this is a sin both sides engage in. So when someone comes out and says "this is all the liberals faults," I usually can't cite to a hard source to prove otherwise. And admittedly, in my darkest moments of self-doubt, I wonder: "Do they do it too?"

The answer, unfortunately, is yes. And the bile on the right makes even the worst offenders I've seen on major leftwing blogs look like the Care Bears. Sadly, No gives us this smattering from a LittleGreenFootballs post on immigration (H/T: Michael Froomkin):

It is past time for the US citizens to put an end, a complete end, to foreigners, many here illegally, coming into the US and then "demanding" that the US change to support their concepts of how the US should function.
[...]
These IDIOTS leave their country because they do not like it but now want the US to change. We need a new law. If foreigners protest a US law or policy, they are DEPORTED IMMEDIATELY.
[...]
If they are found to be illegals, they are branded.
[...]
If they are found in the US a second time, put them aboard a leaky WWII vessel and tow it into the middle of the Pacific and leave it there.
[...]
Create a bombing and straffing range along the US/spixico border. No warnings as to when it will be used and DO make use of it. Dropping a few thousand bombs and a few hundred thousand shells fired into the area will have a significant impact on these illegal spixicans crossing into the US.

Casual calls for slaughter, racial epithets, grouping both legal and illegal immigrants under the moniker "foreigner" and urging them all to be deported if they criticize any US policy (including, presumably, the one in which they get branded then towed out to drown). Makes me pine for the days where the worst bigotry I blogged on concerned Michelle Malkin's tits.

See also Neil Boortz calling US representative Cynthia McKinney a "ghetto slut". I should add that I detest Rep. McKinney. But my intense dislike for her politics doesn't rationalize vicious slurs such as this.

So when I plead for liberal bloggers to be better than "this" (referring to some racial or sexual attack), it should be clear that they remain better than this.

For Better or For Worse

Andrew Sullivan links to an Egyptian cartoon contest protesting the Danish Mohammed cartoons. As he says, it's better than riots. On the other hand, the fact that at least three of the cartoons played off anti-Semitic themes kind of ruins the whole "tolerence" meme that these protests are pretending to play off of. Can somebody remind me what the Jews had to do with this controversy? Please?

You can see all of the cartoons published here.

The Ever-Increasing Political Sphere

Michael Froomkin points me over to a resolution recently passed by the American Society of International Law:

1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum)
2. Conduct of armed conflict and occupation is governed by the Geneva [Conventions] of August 12, 1949 and other international law (jus in bello)
3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted.
4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.
5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.
6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts or their subordinates.
7. All states should maintain security and liberty is a manner consistent with their international law obligations.

Roger Alford says he voted against the resolution because he fears "it will be seen as politically motivated." To which Froomkin ask: which of those statements possibly could be construed as political? And if "obey the law" and "international law prohibits torture" are considered "political" statements, what exactly isn't?

I think that politics is whatever people make it to be, but that doesn't mean I wouldn't vote for this resolution. Sometimes one has to take a stand, even when something is politically contested, because sometimes a given side on a political issue is morally or factually wrong. The law is pretty clear on this subject--I haven't heard anyone this side of John Yoo claim that states can claim exemption from the categorical bar on torture. The real "debate" on the matter is about as substantive as the evolutioon/creationism "debate," which is also "political" even though there isn't any actual dispute amongst the experts.

I think the scarier thing is what this says about our political system, when one reasonably could assert that "torture = bad" is a "political question." I'm fine with taking a stance on political issues, but on issues like this, it's a tragedy that I even have to.

It's Time to Snitch

The Duke University rape case is one of the most shocking racial flare-ups we've seen in America in quite some time. A bunch of wealthy, White, often northern boys sexually assaulting a Black woman, all while hurling racial slurs at her--it brings to mind a darker age of our nation's history. And of course, the upshot is that maybe we should start thinking about these cases in the context of this age in our nation's history.

Anyway, Rachel Sullivan, who has been indefatigable in getting this story out (drop her a line of encouragement at her blog, if you will), has a particularly interesting post up about how the media portrays Black crime as indicative of group behavior, and White crime as isolated and aberrational. Consider:

The most famous example of this is the term "wilding." The term wilding was used to describe the attack of a White woman in Central Park in the late 1980s. Scared Whites suddenly worried that groups of young Black and Latino men would descend on innocent White women and attack them, like that has supposedly done to this woman. The term was almost exclusively used for young Black and Brown men, and as such has became synonymous with them. What is even more striking it that through DNA evidence and a confession by an imprisoned man, we later found out that this group of young men didn't attack the Central Park jogger and in 2002 their sentences were vacated (DNA evidence confirmed that it was a lone attacker, who was a Latino man.). Why not use the term wilding to talk about what the rape survivor said happened at Duke. One of the regular commenters on my blog, Anthony, reminded me of this term, when he argued that the attack at Duke was an example of wilding. I wondered if popular media outlets will use the term wilding, or will they come up with some special code word that referred to groups of young White men who attack women (especially Black women). Probably not. When White men behave badly it is usually framed as a problem with the individual White man or the small group of White men involved, but it is almost never a collective statement about the problems with White guys in America.

Another example of this is the whole "Stop Snitching" phenomenon, which has been labeled as a huge threat to the criminal justice system. The term "Stop Snitching" has been connected with an underground video out of Baltimore. "Stop Snitchin'" has also been advertised on T-shirts that have become very popular mostly among young urban Black and Brown kids. If you watched shows like America's Most Wanted or the nightly news, you would think the "Stop Snitchin" phenomenon is new and young Black men created it. However, it doesn't take a genius to figure out that the idea of not snitchin' has been around for a long time, way before Hip Hop and way before the T-shirts. In fact, I was watching the Abrams Report, since he has been covering the Duke case, and he kept alluding to the editorial that he was going to do at the end of the show. The editorial was about "Stop Snitchin." My initial reaction was good somebody finally gets it. These Duke boys are living by the "Stop Snitchin" code of ethics. It's not just poor Black and Brown people and Hip Hop artists. Well much to my chagrin Abrams didn't even connect the Duke case to this phenomenon even though it was so blatantly obvious--the Duke lacrosse players need to start snitchin.

This second one gave me some pause, because I am not a proponent of the "stop snitchin'" school by any means, but I know I give more leniency to "I'm not going to talk on the advice of my lawyer," even though they're effectively the same. Dressed up in legal language, suddenly it's not a threat to social stability but a cherished legal right. Imagine that! It's especially ironic because the most pervasive "stop snitchin'" mentality ever to actually come into practice is not inner-city Blacks refusing to aid murder investigations, but southern Whites refusing to cooperate with lynching investigations. In the end, I concur with Rachel--maybe we can't expect the actual guilty parties to come forward and confess, but we can expect the bystanders to act as witnesses to see that justice is done.

The other part of this story that's been nagging me (and I apologize because this is a bit of a leap) involves the "apologetic White guy." Let me just give a summary of the story for context:

According to a search warrant, the victim and another woman went to a university-owned house on March 13, where three members of the team live. When the men became aggressive, the women left but another player apologized and convinced them to return.

The women returned to the house, but were separated. The victim alleges she was forced into a bathroom and assaulted. The men also allegedly yelled racial slurs at the women.

Okay, what do we do with this mysterious man? Let's assume that he wasn't "apologizing" in a deliberate effort to get them back in the house to undergo this abuse. I'm not saying that this couldn't be the case, only that if it is we'd all agree that this guy is a Really Bad Man and there'd be no debate.

Let's assume, for argument's sake, that this guy was operating in good faith. The rest of this thought experiment goes under those lines. We don't know what he said, but it might have been something like this: "I'm really sorry, those guys just got really drunk, they didn't mean it, I'll talk them," etc etc in those lines. Naive perhaps--but there are naive people out there. Hell, I'm a naive person--I always underestimate the amount of "true" racism that exists in America, so in my shoes I'd probably be far more likely to attribute this sort of thing to drunkenness than animus (at least one time someone said something anti-Semitic to me while drunk, I shrugged it off). Anyway, his apology is genuine, not a ploy to get the rape to happen. But happen it did--in some respects, as a direct result of this person's "apology", for if he'd had said nothing, the woman probably would have went home. Given that sequence of events, the apologizer feels awful about it. How do we feel about him? Is he a complete accessory of the rapist? Not as morally culpable, but still condemnable? Is he more or less condemnable than the complete bystander at the party--the one who said nothing to girl but stopped nothing either? Does it matter how he behaved once everyone went back inside? We might say he had an obligation to stop the rape--but remember, he's still one guy on 39 at this point--not exactly fair odds.

Anyway, this person seems to be in a different category, for better or for worse, than the rest of the partygoers. I'm curious to hear his story. If he really does feel guilty about his role in this crime, it's time for him to snitch.

Justice 4 Two Sisters is the information clearinghouse for this story.

Law and Grad School Bleg

It's a bit early to be thinking about it, but I figure it's never actually to early. So, to anybody that has relevant information, I ask the following:

-Which top law schools (defined as, ones from which I could plausibly make the leap to legal academia) have strong programs in Critical Race Theory?

-Which top law schools, if any, have strong programs in Jewish law and legal theory?

-Are there any grad schools of any sort offering work specifically in the field of Whiteness studies?

-Let's say my scholarly interests primarily lie in these the above three fields (CRT, Jews and the Law, and Whiteness studies). What would be a sensible post-graduate route I could take to enhance my knowledge in these fields while preparing myself for an academic career (preferably without staying in school forever)?

Leave your pristine advice in the comments, or drop me an email ( schraubd *A*T* carleton *D*O*T* edu ). And thanks in advance.

Indiana Jones as Nietzchean Drama

It's a slow day today, so I thought I'd just throw this one out.

In Indiana Jones and the Temple of Doom, the climatic scene has Indy and the evil Thuggie cult leader, and a bunch of his cultist hanging from a cut bridge. As they all climb up the bridge, they throw off the people above them in their way. The cult leader actually deliberately throws off his cultists in an attempt to knock Indy off the bridge and into the alligator infested gorge below.

Is this not a perfect analogue to Nietzche's tightrope metaphor in Thus Spoke Zarathustra? That man must cross the bridge to be the overman, overthrowing all the weak men in his way? And that the weaker men are sacrifices to the pursuit of the overman (much like the cultists are sacrificed to get to the top of the bridge and to safety)? If I made that analogy in my Post-Modern Political Thought class, would I not be really insightful (as opposed to just crazy)?

All I know is that while everybody else was comparing Nietzche to Plato and Socrates, I'm like "no, the real story here is what happens in Indiana Jones." Can somebody say seminar paper?

Democratizing Germany

Germany (and its post-war compatriot, Japan) is my favored example when folks lecture me that democracy can not be established during a military occupation, or in a post-war environment, or all the other arguments that swirl around the general contention that THE IRAQ WAR WAS DOOMED FROM THE START AND THERE WAS NOTHING WE COULD HAVE EVER DONE!!!! I mean, it seems rather self-evident that it is, in fact, quite possible to democratize in the wake of war, and it failures to do so are probably due to specific contextual failures rather than with some notion that exporting democracy militarily is inherently flawed.

Anyway, Ilya Somin, guest-blogging at the VC, has an interesting post buttressing the German example and arguing that German history did not make it specially prone to democratic change.

Many critics of efforts to promote democracy in the Muslim world claim that the successful occupation of Germany after WWII is not a relevant precedent because postwar Germans, unlike modern Arabs and Afghanis, supposedly had a strong cultural affinity for liberal democracy. As one of my commenters put it, Germany was "the land of Kant" and therefore (it is implied) highly receptive to liberalism and democracy. This claim is largely a myth.

The truth is that Hitler and Goebbels were much more reflective of German opinion in the immediate post-WWII years than Kant. According to a series of surveys conducted by the US occupation authorities in 1951-52, 41% of West Germans saw "more good than evil" in Nazi ideas, compared to only 36% who said the opposite. In a 1949 survey, 59% of West Germans said that National Socialism was a "good idea badly carried out," compared to only 30% who said that it was wrong. 63% in a 1952 poll said that German generals held on war crimes charges were innocent and only 9% said that they were guilty. Well into the 1950s, large numbers of Germans rejected liberal democracy and expressed sympathy for various forms of authoritarianism. By the time the 1951-52 surveys, were conducted, West Germany had been occupied by the Allies for 6 years, and had had its own democratic government since 1949. Thus, German support for authoritarianism and even for many aspects of Nazism was quite deeply rooted. For these and other survey data from postwar Germany, see Anna J. Merritt & Richard L. Merritt, Public Opinion in Semisovereign Germany (1980).

Indeed, Iraqi and Afghan opinion today is probably more pro-democracy than German opinion in the 1940s and early 50s. For example, a December survey shows 57% of Iraqis expressing support for a democratic form of government, compared to 14% who endorse an "Islamic state" and 26% who support "a single strong leader."

If it worked then, it can work now. The belief that Germany (just because it's European?) was inherently more receptive to the democratic ideology is demeaning to non-white people around the world, who are presented as too primitive or backwards to even have a hope of grasping the abstract ideal of a free and liberal state. And I don't even know how these people even deal with Japan, which underwent a similar militarily-induced transformation from autocracy to democracy without even the concocted "crutch" of being White.

Cruel But Accurate?

I'm really not enough of a McCain follower to know if this is true or not, but I laughed out loud when I read it. So, is it true that he's "never seen a war he didn't want to start"?

H/T: Publius, who defends McCain from charges that he's sold his soul for the Presidency. He reminds us that when the baseline is George Allen or Sam Brownback, he looks pretty good.

Speaking of Brownback, while I still give props for his human rights advocacy, lets not forget that he remains insane on the mythical "war on Christians".

Wednesday Song Lyrics

Yesterday was a travel day--sorry for not warning you. Anyway, here are some song lyrics that always make me, Mr. Otherization Analysis himself, smile everytime (it's a good song too):

Despite that he saw blatant similarity
He struggled to find a distinctive moiety
All he found was vulgar superficiality
But he focused it to sharpness
And shared it with the others
It signified his anger and misery

Them and us
Lobbying determined through a mire of disbelievers
Them and us
Dire perpetuation and incongruous insistence
That there really is a difference
Between them and us

Hate is a simple manifestation
Of the deep-seated self-directed frustration
All it does is promote fear and constrenation
It's the inability
To justify the enemy
And it fills us all with trepidation

Them and us
Bending the significance to match a whimsied fable
Them and us
Tumult for the ignorant and purpose for the violence
A confused loose alliance forming
Them and us

--Them and Us, Bad Religion--

We'd Like To Compliment You On Your Awesome Principles That We're Trying To Undermine

The Family Research Council cites and lauds Jefferson and Madison's work in the Virginia state legislature and US congress as proof that in America, religious freedom was absolutely crucial from the start. They offer this up in contrast to Afghanistan, where Condi Rice tried to explain the near-execution of a Christian convert by noting they were a "young democracy." How much Madison and Jefferson's work translated from parchment to practice is difficult to ascertain, but the point is well taken--these two founding fathers made sure to protect religious liberty even at the most fragile point in our nation's history.

However, it is important to remember that Madison and Jefferson were both staunch church/state separationists. This was a principle they took very seriously, and it is embodied in both the texts the FRC cites (the Virginia Statute for Religious Freedom of 1786 and the 1st Amendment). Jefferson himself was the author of that much-detested (by the FRC) phrase, "wall of separation between church and state." Jefferson and Madison led the charge against public funding for religion in any respect whatsoever, and were adamant that the union of church and state tends to destroy and degrade both. The FRC takes precisely the opposite stance, urging ever-more integration between religion and the government. The end result is that either religion will become the vassal of the state, or the state will become the vassal of religion--and I'm not sure which is scarier.

Jefferson and Madison's contribution to protecting religion in America was absolutely noble, but it is a legacy that the FRC has consistently opposed in its political and rhetorical advocacy. To claim it as one of the crucial aspects of American democracy is definitely true, but incredibly ironic.

Interdepartmental Warfare

This is how feuds start.

First, we have a spat brewing at Rutgers-Camden Law School over affirmative action in their hiring process. Professor Michael Livingston wrote a blistering attack claiming that Affirmative Action lowers the quality of new hires, gives free passes to "can't lose" minority profs who don't meet normal tenure requirements, and reduces civility at the law school. The last point is warranted by Livingston's claim that:

Because everyone knows that the people other than the best candidates are being selected, but in the nature of things cannot really say so, they tend to develop a habit of dishonesty and "wink-nod" compromises that is extremely difficult to limit to this one area. The entire trust and honesty that characterize academic exchange accordingly tends to atrophy in very short order.

Briefly, I'd like to point out the premise that "everyone knows" these people aren't the best hires is hardly self-evident (see below), and even if he is right that there is some incivility flowing from minority professors attacking other members of the department over the diversity issue, it's no more uncivil than the blanket attack that Livingston makes against this entire group's qualification set. I'm beginning to understand what folks were talking about when they told me how the call for civility acts as tool to suppress minorities defending themselves from majority attacks. The double standard is palpable.

But I digress. The really interesting thing was Imani Perry's email response to Livingston (reprinted at BlackProf). Perry is a black female professor at Rutgers-Camden, and she was a bit perturbed at some of Livingston's insinuations:

[M]y ten publications, coming back to work five weeks after giving birth (by c-section) and three advanced degrees are all certainly signs to our community and the world at large of Rutgers' lowered standards. And the illustrious backgrounds, high level of scholarship, and exemplary faculty citizenship of our aforementioned [minority] colleagues raise serious questions about the legitimacy of their candidacies as well. I know, you said, the issue is not whether we are actually "good enough" but rather that the school would/could have done so much better if it had sought "the best" instead of "the black." Shame on the institution for including racial diversity in its vision of excellence! (Is my facetiousness clear enough?) Incidentally, are you confident that you were objectively the "best" that Rutgers could have hired during your year on the market, or that unconscious racial and gender preferences didn't play a role in your candidacy? I doubt that you or anyone else in your position can be.

Game, set and match. But the irony is that Livingston can go and take this email, and use it to buttress his "incivility" cry. I think that would be complete crap, since he was obviously the provocateur. But it still can happen, and its still wildly unfair.

Oh, and for the record, I'd just like to compare the Livingston's resume to Perry's. Livingston attended Cornell undergrad and got his law degree from Yale. He published a casebook on Tax Law in 2004, has another book in progress, and has published several articles in prestigious law journals (none, however, was listed as being more recent than 1998). Very impressive, to be sure. Perry attended Yale undergraduate, and received both a Ph.D and a J.D. from Harvard University. She hasn't been teaching as long as Livingston, so it's difficult to compare publications, but she has one book out already, and five articles forthcoming this year. Also a stellar resume.

Can anybody fairly say that Livingston was "clearly" a better hire? Perry is already matching him pound-for-pound in scholarly output, and in terms of pre-hire qualifications I have to give Yale/Harvard/Harvard the edge over Cornell/Yale. Who's really got the built-in advantage, then?

On the other side let's look at an unrelated beef from the right. A prominent Baylor University Professor, Francis Beckwith, has been denied tenure. His supporters are aghast, and to be fair, his c.v. looks pretty damn impressive. The American Spectator comments, as does Rod Dreher of the Dallas Morning News, who suspects this case will reverberate nationally. Southern Appeal (where Beckwith co-blogs) has been all over this story, and they all seem convinced that Beckwith was targeted for being an unabashedly evangelical, conservative, pro-life scholar. Ed Brayson, by contrast, attributes it to intra-Baptist and intra-University politics (Baylor is a Baptist school), not to a specific animus against conservatives (its important to note that Brayson, who disagrees with Beckwith on many key issues, is also appalled by the denial). Either way, it's a shame. Beckwith's resume seems almost unimpeachable, with overwhelmingly positive student reviews to match.

Interdepartmental politics--be they powered by political, racial, religious, or personal agenda--are scary things. I don't relish having to navigate them when I enter the job market.

No Way Out

There is an interesting post by Adrian Wing regarding how Black men are portrayed in the media. Basically, she argues that with a few exceptions (Barack Obama) and outside a few select categories (entertainers and athletes), there are very few positive portrayals of Black men getting out to society writ large. She admits that the media craves scandal and trouble (that's what's "newsworthy" after all), and thus has little incentive to give Black success stories page room. But she argues that this is having tremendous negative effects on the Black community--especially the "success stories" who are under tremendous pressure to be a "role model" for other young Black men. She claims that these men statistically die earlier than any other group in the population--a shocking claim if true--due to the stress and weight put upon them (strokes and heart attacks get to them more than street violence).

All well taken. But I wonder if newspapers and other media outlets are being put in a double bind. I recognize that the excessively negative portrayals of black men have ill effects (Beyond what Wing talks about, see the works of Jerry Kang). But in a way, I think the media fears that running stories on model minorities will yield just the same type of backlash. For example, it could perpetuate the stress of being everybody's token role model. Or alternatively, they could be accused of glossing over the problem, ignoring the plight of the inner-city and poorer Blacks who really need our assistance and letting White America pat itself on the back and tell themselves that being Black is not, in fact, a barrier to success. And even if they ask these successful Blacks to explicitly talk about how racism still affects them, it still might not solve for this. First, they might not be willing to articulate it, either because a) they really don't think they feel it or b) they don't want to seem whiny or piss off their white friends by seeming ungrateful. This is especially likely to occur because of the obsession with "balance" in journalism--the story almost definitely will include some successful black saying how racism is not a big player in his life to counter-act the one explaining how it does. But even if they do talk about it, White America will discount it, because they'll see all these trappings of wealth and refuse to believe that these people could seriously be facing marginalization. Whites tend to define racism out to its extreme, so if someone isn't being lynched or enslaved, racism isn't happening. That isn't true, of course, but nevertheless it remains the dominant perception and will be a prevailing response to such an article.

I want to clarify, I'm not really taking a position on whether or not the media should, in fact, pursue these stories to a higher degree than what they're doing now. In fact, while some of the above objections are reasonable, I think all in all it'd probably be better if such ads were run. Rather, what I'm arguing is that its at least plausible that a different branch of the Black left would critique them for running the articles based on the objections I made. At the point, newspapers would feel like they're in a no win situation on the topic. And if they indeed have that perception--that they're going to be slammed by some segment of the black community no matter what they do--that could explain the dearth of the articles Wing would like to see.

Done With Debate

Well, the tournament is over--for Carleton at least. My team went 3-5 (3 of those losses were clear, 1 was a muddy round, 1 I think we got shafted). We had another team go 3-5, one more that went (I think) 2-6, and one team get disqualified mid-way through because of a miscommunication. Yeah, they were pissed. The tournament was kind of a catastrophe.

It was still a good learning experience though (especially considering few of us had much national circuit tournament exposure prior to this), and it gave me loads of ideas on what to work on with my team come next year (where I'll be shifting from debating to coaching for the most part). Topicality shells, Counterplan/DA structure, coverage, and argument selection are the biggies for us.

Anyway, the season is over, and I've got a free day and a half before I fly back to Minnesota. I'll be using it predominantly to relax and unwind, and probably blog as well.

Enjoy the rest of your "spring break" (if that's where you're at in the year)!

Watch Your Mouth

As thrilled as I am that more women are taking key roles in the Democratic party, I would agree that perhaps the rhetoric surrounding them could be a bit more dignified. Women are more than mommies and cleaners. Amazingly, they also are Governors, Senators, and Representatives.

Who knew?

Watch Your FACE!

I'm an admitted addict of Facebook, the college networking site that's rapidly become one of the most popular sites on the internet, period. So I read with interest this post at Freedom to Tinker, about college security staff using Facebook to assist investigations on Princeton students [H/T: Orin Kerr].

The controversy started with a story in the Daily Princetonian revealing that Public Safety had used Facebook in two investigations. In one case, a student's friend posted a photo of the student that was taken during a party in the student's room. The photo reportedly showed the student hosting a dorm-room party where alcohol was served, which is a violation of campus rules. In another case, there was a group of students who liked to climb up the sides of buildings on campus. They had set up a building-climbers' group on Facebook, and Public Safety reportedly used the group to identify the groupÂ’s members, so as to have Serious Discussions with them.

Students were outraged over the alleged violation of their privacy. As the post author notes, this is apeculiarr reaction, because anybody with a Princeton email address (which includes the security staff) can get a facebook account and look at anything other Princeton facebook page (you have to "friend" people from other schools to see their profile, but your schoolmates are fair game regardless of whether they are friends or not). Given that, it's difficult to argue that a student really has a fair expectation of privacy regarding anything he or she posts onto the site.

Still, Facebook feels more private than it is. Most people, I feel, think of it as a virtual place to hang out and casually swap stories with friends. They don't think of it as effectively in the public domain. This image/reality gap is troublesome.

In any event, a warning to all facebook users. You may be being watched. Act accordingly.

Mapping the Conversation

Lucky White Girl maps a conversation rolling through the blogosphere regarding the intersection of privilege and blogging. It's really interesting stuff.

The debate started with a Feministe discussion on whether feminist sites should allow non-feminists to post comments. I haven't been specifically following the thread of the conversation, but I have intersected with it in two places. First, back when Alas, a Blog was considering having threads reserved for "Radical Feminist Women" only, I wrote a post objecting and proposing instead that certain threads be "reserved" for anti-feminists to prevent sidetracking. AAB ended up taking a roughly equivilant stance, leaving most threads open while reserved some for "feminist or feminist-friendly posters," which, while limiting, is nowhere near as constricting as "radical feminist women."

I also read Dark Daughta's post on male feminist bloggers occupying a privileged position in the feminist blogosphere. This post I think was targetted directly at male-operated AAB. I read the post at about the same time as I was writing my "Privileged Man's Guide to Life" post, which I think parallels this discussion nicely as well.

In any event, it's an interesting discussion, and a topic that should be explored in depth (albeit civilly--a right to be hostile, even if justified, doesn't make it the best theory or the best practice).

Irreligious Freedom

Over Winter Break, I reunited with a friend of mine who came from one of the few staunch Republican families I knew in Bethesda. I was over at her house and fell into a conversation with her mother, who if anything was more rightwing than her daughter (who'd probably be best described as a moderate conservative). One of the topics of conversation we got into was religious discrimination in America. She had completely bought into the meme that it was Christians who were persecuted here, and atheists got preferential treatment from the government and society. I said that this was a tremendous exaggeration, and not being able to put a 2 ton ten commandments statute in the middle of a courthouse pales in comparison to the social and political ostracization faced by religious minorities across the country.

We went back and forth for awhile, and finally, I cited a Fox News poll saying that around 50% of Americans would refuse to vote for an otherwise qualified atheist for the Presidency. I thought it was my coup d'grace, until she said that she won't vote for one either. Unfortunately, "House" came on right then on Fox, so that ended the conversation. But I was aghast.

Today, Kevin Drum links to a study showing significantly higher negative views by Americans of atheists than of nearly any other group, including Muslims, Gays and Lesbians, and immigrants. The study's authors claim that atheists constitute a glaring exception to the rule of increased social tolerance that has prevailed over the last 30 years.

I am not an atheist. But I am a religious minority. I bear close to my heart Niemoller's warning of what happens when you don't speak up for those they come for first. Degrading the dignity of some threaten the dignity of us all. The message of millennia of human warfare, genocide, imperialism, and destruction is that above all us, respect the dignity of others. There is no alternative. And people who foster hate and resentment toward their fellow human beings are the handmaidens of Satan, even if they claim to speak for God.

Defending Delgado

Oy gevolt, what a day. I just got into to Eugene, Oregon. It was a three-legged trip: Washington to Minneapolis to Salt Lake City to Eugene. In other words, I was in every time zone today. And this computer is brand new--I'm still getting used to it.

Anyhow, I trolled about a few of my regular sites, and wouldn't you know it if I hit jackpot at Concurring Opinions. Not the post itself, but the pointer to Law and Letters. An aspiring law professor with a background in Critical Race Theory? To the blogroll!

But alas, it appears that Belle (the proprietor) is tiring of Critical Race Theory, and is turning her attention to other scholarly endeavors. That's sad enough by itself--I'm not really close enough to the legal academic community to be sure, but it seems as if CRT is in a bit of a rut recently. Whenever I do research, it seems the big pathbreaking articles were published in the late 80s and early 90s, with a significant drop off post, say, 1995. Obviously, part of this is due to the fact that more recent articles have not gotten the same degree of penetration, but it feels like a deeper type of stagnation has beset the movement. In any event, it's a shame that a talented young prospect is leaving the fold.

However, Belle also takes the time to write a post slamming Richard Delgado. Since I have expressed adoration for bordering on creepy obsession with Delgado (and his co-author/wife, Jean Stefancic), I feel compelled to offer at least a partial defense.

I should start by saying that despite what the above-linked post might have you believe, I don't think Delgado is perfect. In fact, I share many of Belle's particular discontents. His foray into the blogosphere (both in his guest-stint at BlackProf and his permanent position as advice columnist there) was a big disappointment. And while I admit to owning The Rodrigo Chronicles (Belle underestimates how many of them there are, by the way, there are at least 11 printed so far in various journals, collected in the book), and enjoying them immensely, his skill as a narrative author is passing at best. It can be overbearing, the characters' reactions often seem contrived, and that is a significant downside to the book.

At the same time, I think Delgado is a very important author, and I think Belle is slightly too quick to dismiss him based on only a subsection of his work. First, I'd note that the Rodrigo Chronicles are not the be-all end-all of Delgado. He's written plenty of other important scholarly works, some of which don't really include narrative at all, others which do but have it in the type of "separated" form that Belle claims to appreciate. One can hate all the Rodrigo articles, and still appreciate the contribution of Delgado's Imperial Scholar articles, Legal Storytelling for Oppositionists and Others, and many others. I think that while Rodrigo is obviously an important portion of Delgado's c.v., it isn't the whole and is in some sense an anomaly--he doesn't really write like that in any of his other pieces.

Also, and of more parochial concern, is Delgado's role in introducing me personally to the CRT movement. In a sense, it's almost an absurd happenstance that I am talking about this at all: my senior year of High School, I participated in a debate round where my opponent ran an anti-essentialism kritik against me. Despite being utterly demolished in the round (and thinking that he said it was an "anti-centralism kritik), I was intrigued. Somehow, I knew that "Critical Race Theory" had to do with post-modern political theory in general, and I ran a search for it on Amazon, where "Critical Race Theory: An Introduction" was first to come up.

This book was a life changer for me. It stopped my slow spiral into libertarianism, and helped reinvigorate my progressive ideals and pluralist spirit. It spoke to me in a way that few authors had. I've since read works by the authors Belle cites (Bell, Carbado, Cheryl Harris, Angela Harris, and Lawrence), and they are quite compelling. In fact, if anything I consider myself closer ideologically with Lawrence, at least, than Delgado. But none of them, I think, lays out the core issues as simply and as powerfully as Delgado does. I've personally recommended that book to some friends as the quick and dirty primer on CRT, and borrowed liberally from it in many more informal discussions. When I fail to bring a point across, the examples he gives unfailingly help illuminate them. For the non-initiate, this is critical.

Maybe for more advanced thinkers, this comes off as simplistic, and Delgado is akin to a favored tricycle that it's time to give up. But I think that we should give him more credit than that. Rodridgo may not be the world's gift to fiction. But it is not the antichrist either, and in any event Delgado's other scholarship is quite worthwhile in its own right.

There and Back Again

Okay, I'm off to Oregon until next Tuesday night! I'm actually picking up my new laptop before I leave (the old one fried), so I'll have it with me on the trip. But God knows if I'll have it up and running before I settle in Minnesota.

Posting will thus be sporadic at best until at least Tuesday night.

Have a great week!

Calm Down

The New York Times reminds us that, for Barack Obama, overly high voter expectations can be curse, because they're impossible to meet and ornery journalists start trying to dig out flaws so they can have a new story angle besides "Obama is the next Jesus." In other words, folks like me need to back off the constant Obama-worshipping, lest we sink his entire political career. If your expectations are low, they can be exceeded, and exceeding expectations is always impressive.

I'm reminded of an old Daily Show segment that ran before the Kerry/Bush debates, where both campaigns engaged in a battle to lower expectations. Bush's camp claimed that Kerry was "the greatest orator since Cicero" who should stomp Bush due to his mental retardation, and Kerry's camp responded that Bush was such a strong and convincing orator, that even he was going to vote for him.

In any event, I don't care how you spin it--Obama is something special. But for his benefit, I'll lay low for awhile until it's his time.

[H/T: Paul Butler]

The Televangelist Promise

A Muslim televangelist preacher is rapidly becoming one of the most popular voices for reform in the Muslim world.

Isn't it interesting how in the Muslim world, televangelists are the progressive ones? While in America, televangelists tend to occupy the farthest of the radical right fringe.

Interesting dynamic.

Dual Loyalties

From an email message sent to Michael Perry:

On Wednesday, March 1st, 2006, in Annapolis at a hearing on the proposed Constitutional Amendment to prohibit gay marriage, Jamie Raskin, professor of law at American University, was requested to testify.

At the end of his testimony, Republican Senator Nancy Jacobs said: "Mr. Raskin, my Bible says marriage is only between a man and a woman. What do you have to say about that?"

Raskin replied: "Senator, when you took your oath of office, you placed your hand on the Bible and swore to uphold the Constitution. You did not place your hand on the Constitution and swear to uphold the Bible."

The room erupted into applause.

Hoo-yah!

Drop Off

He still clocks in at a solid 58% approval rating, but South Dakota Governor Mike Rounds (R) clearly got hurt by the SD abortion ban. Approvals down 14%, disapprovals up 15%--all in one month. That stings.

Meanwhile, the poll figures for President Bush continue to be abysmal. He has a net positive approval rating in just seven states: Utah, Wyoming, Alabama, Idaho, Mississippi, Oklahoma, and Nebraska. He averages a negative 24% net rating across the 50 states. That also stings.

The poll desperately want to see is one measuring voter regret. It would ask who the respondents voted for. Then, it would ask them if they would have still voted for that person if the election were held today.

That would really show the measure of their discontent.

Just so everybody knows: My laptop is in the shop for repairs (I'm borrowing this one), and I'm going to a debate tournament on Wednesday. I won't be getting back to college until a week from tomorrow. So I'll probably be mostly incommunicado over that period.

The Privileged Man's Guide to Life

Andrea Rubenstein has posted a very interesting outline for the majority set. It's entitled "How to be a Real Nice Guy," but I think it's better understood as a guideline for how people with privilege (Whites, Males, Christians, Heterosexuals, et al), should interact with those who don't. This is a topic that interests me, and I endorse most, but not all, of it. The blogosphere being what it is, I'll focus on my discontents, but don't let that mislead you--this is a valuable post and an important read.

My objection pops up along several of Ms. Rubenstein's points, but I think it can be grouped into a general point about intergroup relations. In several places, Rubenstein says (in so many words) that there are plenty of places in which to discuss "your" issues, so when interacting with minority groups, one should sit back and listen--hear their issues, concerns, opinions, and perspectives. I agree whole-heartedly that the minority voice is underserved and underheard in contemporary society--there aren't many soapboxes by which minority issues can get play amongst the mainstream. The problem is that I see a similar dearth of spaces to talk about how we interact together, across borders, as a community. In other words, the status quo already addresses "my" issues, and Rubenstein's plan would give space for "their" issues, but where is the dialogue on "our" issues--where minorities and majorities intersect?

This absence is important, and, I think, relatively unrecognized. We (by which I mean the majority) may, of course, discuss minorities in our own soapbox. But the opinions we express there and the information we gather there are qualitatively different than the insights and perspectives we'd synthesize in a truly multigroup discussion. This requires some tightrope walking--I don't want to make the discussion about me (there is indeed enough said about myself), but I do want to have at least some opportunity to discuss us. Any plan for majority/minority interaction that doesn't make some provision for the "inter" part of it is doomed to fail.

One might think that this synthesis will come naturally. Add the discourse about me, and the discourse about you, and you get "us." I don't think this is true. Look to academia. For decades now, we've adopted an academic model of ever-increasing specialization. Being a generalist is for chumps. Departments get smaller and smaller, articles become geared to an ever-shrinking pool of fellow travelers, trained in the (say) history of pre-Roman Iberian architecture. There is value to this, of course. But what we've discovered is that inter-disciplinary work can yield fascinating results. Think of what Jared Diamond has done, combining biology, genetics, history, and social science. I just took a whole class this last term entitled "Science & Society", exploring not how the two interacted, but how the two were inextricably intertwined. You can't understand either in isolation from the other. In other words, the product of a genuine intergroup dialogue is not the same as the product of the ingroup discourse and the outgroup discourse. If that's sounds familiar to leftist theorists, it should--it's closely related to the intersectionality hypothesis (the experience of, e.g., a black woman is not reducible to "woman" + "black").

The second issue I have is with the status of ingroup members in these conversations. I think there is a severe cognitive dissonance between what Rubenstein says our status is, and what ingroup perceive its status to be. She says, for example, that it is in fact okay for us to make mistakes, as long as we try and learn from them. But I think many ingroup members are under the distinct impression that one mistake can be fatal, and I think that folks versed in the literature of feminist, critical race, queer, and other related movements forget their own lessons when they dismiss these stories as a kind of "shrill craziness." Larry Summers, I think, might not be so quick to dismiss that some operate under a "one-strike, you're out" standard (recall that when he made his infamous "inherent ability" comment about women and math, Summers was summarizing other people's positions, not expressing his own, and that he promptly apologized when the uproar began). In Patricia Williams' superb book, "Seeing a Color-Blind Future: The Paradox of Race," she tells a story of just such a slip-up by a white friend, and her apology when it was pointed out. Williams uses the story to illustrate that a world of such apologies can be tiresome to those who constantly apologized too, and also that the apology that "she [the white woman] just didn't know" often comes off as a plea for Williams [the black woman] not to know either. However, in the midst of this critique, Williams stresses that she is not contesting the sincerity of the apology, "only its superficiality." But in her review of the book, Taunya Lovell Banks, another respected Critical Race Theorist at the University of Maryland, slams the white woman's "standard insincere apology." In other words, she takes Professor Williams' story, and replaces Williams' professed meaning with a contrary one of her own. In a paper I was writing, I rhetorically asked if this is how Professor Banks would treat a white student in her class: if she responded to a articulation of American racism by saying that "she just didn't know," would Professor Banks lambast her "insincere apology"? This is the fear the ingroups live in, and I think it's unfair to just assume they're hallucinating about its potency.

The point of all this is that there is a disjunction, I think, between how much forgiveness for errors that the minority group's say they are willing to give, and how much the ingroup members suspect they are likely to receive. In all likelihood, the chasm runs from both ends--minorities overestimate how forgiving they are, and majorities overestimate how much forgiveness they deserve. All of this, however, just plays into my prior plea for more intergroup dialogue, not less. We'll never bridge this gap without explicitly having a dialogue between the two camps. In isolation, the stories will never merge, and we'll never get anywhere.

Relatedly, ingroups have a right to know that in such conversations, they will not be ontologically wrong. Rubenstein says that when confronted by a member of an outgroup about one's behavior, the ingroup member should use the information to change his mind, not try to change the outgroup member's. I don't think it's fair to make that statement categorically. Simply put, it is quite possible that an ingrouper will be right about an issue, and an outgrouper will be wrong. There shouldn't be an obligation to accede to a viewpoint just because it's made from a disadvantaged person. The glaringly obvious issue for me is on Israel--if someone tells me that my support for Zionism makes me a racist, then you better be damn sure that I'm going to try and persuade them they're wrong. And I have every right to--differentiating my people's desire for full and equal membership in the international community in their native homeland from apartheid South Africa is crucial to my personhood and dignity as a human being. I think it is true that I should listen to such critiques with an open mind, and recognize that I may be hearing a perspective that I haven't heard before. But I can do that without having a prefigured opinion I have to come to. Besides, the standard is internally incoherent. If one black person tells me that my vocal opposition to affirmative action makes her feel like I think she doesn't belong at the university, and a second tells me that my now-vocal support of affirmative action makes her feel like a token at the university, I'm left without a platform to stand on. At some point, ingroups have to take stands--the litmus test should be hearing from other people, not agreeing with them. And of course, we all can learn from each other--the lessons a Palestinian could teach me about how the occupation negatively affects her life are undoubtedly many, as are the one's I could teach her about Jewish history, exile, oppression, and national yearning.

These suggestions shouldn't be seen as competitive with Ms. Rubenstein's, rather, they should be seen as to compliment it. I think that one can listen respectfully to minority perspectives, learn from them, agree with some parts of it, disagree with others, incorporate one's own perspective, and do it all civilly and productively, all at the same time. And I believe that we can do it now. In other words, I believe we can have a conversation. Let's start one.

[H/T: Alas, a Blog]

Blunt Instruments

Not to go on a Powerline spree (that feels like it should be a pun, but I don't think it is), but I can't resist noting this incredible display of John Hinderaker's problem solving mentality. Referring to the group of Christian extremists who are protesting the funerals of American soldiers because our country encourages homosexuality, and a Minnesota law targetted at them, John laments

our culture's obsession with legal remedies. As a lawyer, I suppose I shouldn't complain; but as a citizen, I think it's ridiculous....One of the basic problems in our society is that nearly all informal sanctions have been forfeited, so that there is hardly any middle ground between passive acceptance of antisocial behavior and a felony prosecution. Legislation and criminal prosecution are blunt instruments that cannot be brought to bear against every deviancy that may arise.

I'm actually inclined to agree here. Though I respect the Court's key role in protecting my rights as a person, it should not be our first resort. Alternative problem solving mechanisms--mediation, arbitration, or even simple conversations between persons of competing views--all are badly underutilized in our current state.

So what is John's non-legal proposal for dealing with these abhorrent characters?

If a bunch of crazies show up waving signs at a funeral, the appropriate course is for an able-bodied man--there should be at least one at any funeral--to take a sign and break it over the ringleader's head.

Ah, yes. The "caveman" approach.

Blunt instruments indeed.

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.