Originalism and the ERA

Ilya Somin and Eugene Volokh have been making the argument that passing the Equal Rights Amendment (ERA) would mean the end of a great many policies that liberals (including feminist liberals) are very much enamored with (or at least don't want to see categorically abolished). This would include female-only sports teams, affirmative action programs for women, bars on women in combat, or single-sex bathrooms.

Responding to the criticism that judges would simply not interpret the ERA in this manner (similarly to how they haven't--yet--interpreted the 14th Amendment or the Civil Rights Act as barring affirmative action), Somin argues that the times have changed on the Supreme Court and progressives can no longer count on liberal majorities to establish precedents and interpretations in their favor on these issues.

This argument is not wholly implausible, but it ignores the massive differences between the judiciary today and that of the 1960s and 70s which created the dominant interpretations of the Civil Rights Act. At that time, the judiciary was overwhelmingly liberal and nontextualist. As a result, they were willing to deviate from the text to reach liberal results, especially at a time when Congress and the president largely approved of their objectives (as did even Republican President Richard Nixon, who supported affirmative action). Today, the judiciary is largely made up of judges appointed by conservative Republican presidents Reagan, Bush I, and Bush II, all of whom tried hard to pick judges with strong conservative credentials and (to a lesser extent) textualist approaches to constitutional and statutory interpretation. For example, almost 60% of today's federal court of appeals judges were appointed by conservative Republican presidents. With the replacement of Justice O'Connor (who waffled on the issue) by Justice Alito, the Supreme Court also has a majority hostile to affirmative action. And today's presidency is often held by conservative Republicans. Congress, even under the Democrats, is unlikely to have the kind of strong liberal majority that existed in the 60s and 70s.

What Somin doesn't mention, however, is that these conservative judges often at least nominally claim to adhere to originalism, not just textualism. And it is beyond clear that liberals do not intend the ERA to be interpreted in a manner that would preclude favored liberal policies. Indeed, the tone of Somin and Volokh's posts seems premised on this point--that liberals giddily pushing for passage of the ERA don't know what they're getting into (and certainly don't intend to live in a world where the aforementioned policies are deemed unconstitutional). While Volokh and Somin focus on the plain text itself (and agree that their interpretations are certainly plausible ones), the scholarship on the ERA (especially in recent years when it has seemed all but dead) has come primarily from the feminist left, which has created a paper trail that points rather strongly in the direction of an ERA not meant to embody an anti-differentiation principle (which is how Somin and Volokh read it).

So we are faced with an interesting conundrum for conservative judges nominally tied to originalism. The original intent, meaning, and understanding of this amendment almost has to be read in accordance with the scholarship that has been its primary exposition over the past 20 years or so. This scholarship embodies not just liberal, but relatively radical leftist positions on the relationship of law to subordination--positions that I'm a fan of, but conservatives tend to rail against with wild abandon.

Personally, I'm in agreement with Somin that conservative judges political opposition to many of these liberal policies will guide their interpretations, and originalist rhetoric will be co-opted or subsumed to that end. If so, that should drive a pretty large stake through the heart of the claim that originalism is a more "objective" philosophy of judicial interpretation--as opposed to just another guise by which judges install their preferences into law.

Life Meets Doonesbury

I just clicked a banner ad for Walden College.

Obama Drops Fox/CBC Debate

Joining John Edwards, Barack Obama has announced he will not participate in the Democratic candidates debate co-hosted by Fox and the Congressional Black Caucus. While Obama had also withdrawn from Fox's planned debate in Nevada, the CBC's sponsorship made Obama's decision far riskier. Obama has been fighting persistent rumors that he is being rejected by the Black community due to his unconventional background and African (as opposed to African-American) father. To my mind, that's BS, and the reason that Black voters aren't automatically flocking to Obama is because they are intelligent people who will vote for who they think is the best candidate, not whoever can wave the right color swatch.

That notwithstanding, it definitely has been hurting Obama that he hasn't been able to solidify his support in the Black community, and the CBC debate must have been an awfully tempting venue to try and get his message out to them. He will still participate in another CBC debate co-hosted by CNN.

The Netroots, unsurprisingly, is quite pleased. Praises sing from DKos, Steve Benen, MyDD, and FireDogLake. In fact, I haven't seen a single liberal blog condemning him. But I'll admit that these are mostly White (or non-African-American) sources--I'm curious if Black Democrats feel differently--their opinion is the crucial one here, I feel. BlackProf--one stop shopping for Black political/legal commentary--hasn't written anything on it yet. Pam Spaulding, however, is quite pleased with Obama as well, lending credance to the notion that the CBC is out of line with mainline Black Democrats.

The Short Version

This is an abbreviated version of my aforementioned article. It runs a bit long at 30 pages (if you're interesting in reading it, but not all of it, Sections II and IV are the heart of the argument.), so I'm putting down a greatly truncated version here (an implication of which is that the argument is better and more complete in long-form). If this piques your interest, please download a free copy of the article to peruse at your own leisure.

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Theoretical Problems with Strict Separationism

In my paper I outline several problems with strict separationism. However, by and large the most prominent is how strict separationism encourages legislatures to pass so-called “generally applicable” laws. These laws are distinguished by the fact that they do not single out or otherwise “notice” religion in any way whatsoever. They apply equally to persons of all (or no) religious faith. It is obvious that a “general” law can have drastically different implications for different faiths. For example, a law categorically barring the consumption of wine would be devastating for Catholics but relatively inconsequential for Buddhists (I’ll use this as an example because I trust the Catholic practice at issue is familiar; I’m not expressing an opinion as to whether Catholics are disadvantaged faith). However, from a religious liberty perspective the problem is the burdens these generally applicable laws distribute will inevitably fall overwhelmingly on minority religions. This is not necessarily a result of overt hostility to minority faiths. Laws will rarely stand in opposition to Christian religious practice, because most legislators are Christians and will be aware of the potential conflict (and won’t want to harm their own faith). Lawmakers are simply more likely to notice when majority practice might be implicated in a law (or be responsive to constituent reports of religious burden or hardship) than if a politically powerless minority sect faces similar problems. Even if made aware of this religious hardship, it may be difficult for a legislator to conceptualize the burden a law places on an uncommon or unfamiliar religious practice, and fairly weigh that against the interests the proposed law is meant to achieve.

Despite being saddled with an intrinsic bias, however, the rhetoric of a “neutral” or “generally applicable” law implies that deviations are a demand for special rights or privileges and thus would constitute religious favoritism. Insofar as minority faiths do inevitably deviate from a norm based on a Christian template, their requests for accommodation would be a facial violation of strict separation and will be summarily rejected. An exemption for Catholics to our “no drinking wine” law could not survive such review, for example. Hence, strict separation will only treat disfavored groups equally insofar as they are similar to or consistent with the dominant paradigm. But if we are to conceive of the religion clauses as protecting religious distinctiveness (that part of having the religious freedom to be Jewish means not having to make your practices Catholic), this schema is a wholly inadequate defense of religious liberty.

The Anti-Subordination Alternative

There is an alternative to the separationist formulation of the First Amendment that is consistent with our desire to protect minority religious traditions. Instead of mandating strict separation in all cases, including those in which that doctrine is interpreted to require state suppression of minority religions under the guise of “neutrality,” the First Amendment “should be read to protect minority religious beliefs and practices from being burdened by government and…equalize the status of minority religions before the government with that of majority faiths.” This is freedom of religion as an anti-subordination principle—concerning itself primarily with the status of religious minorities and insuring that they are placed on equal footing with majority faiths.

Anti-subordination is not a constitutional “test” as much as an outlook or a framing point that directs what ends the legal system desires the religion clauses to achieve. Ruth Colker articulates the view of anti-subordination as believing that “it is inappropriate for certain groups in society to have subordinated status because of their lack of power in society as a whole.” This is contrasted with the “anti-differentiation perspective,” which holds that “it is inappropriate to treat individuals differently on the basis of a particular normative view [about their group membership].” In other words, if we are committed to treating two groups equally under anti-differentiation, we must treat them precisely the same, while if we are committed to equality as anti-subordination, we must treat them in a manner so as to equalize their status in society, which may require disparate treatment. Anti-differentiation manifests itself in separationism insofar as the principle facially condemns disparate treatment between religions, as well as between religion and irreligion. It is thus officially agnostic to the manner which equal treatment might yield unequal effects or results. Anti-subordination sees the harm not necessarily in the particular treatment government metes out to religious or secular actors, but in the resulting effects such treatment has on those groups’ equal status in society. To return to the wine case, anti-differentiation would notice only that Catholics and Buddhists are being treated the same, and that an exemption would treat them differently (and thus unequally, and thus illegitimately). An anti-subordination stance would notice that the wine law impacts Catholics and Buddhists differently, and that it has the effect of subordinating the Catholic faith by proscribing a crucial element of its faith. Moreover, if an exemption were granted, Buddhists would not see themselves as being disadvantaged or subordinated to Catholicism (assuming they too received exemptions in analogous cases where they are on the bottom). Using an anti-differentiation principle would do nothing to “protect” Buddhists and would do serious damage to Catholicism. So anti-subordination would advocate granting the exemption, differential treatment notwithstanding.

Articulating the First Amendment from this framework would, in my opinion, yield significantly different jurisprudence. By recognizing that difference is a relative term, it would reject the “original entitlement” the dominant party claims by virtue of its dominance, by which the subordinated party’s difference/deviation is made into a justification for unequal treatment. Generally speaking, a view from the perspective of the minority group will not condition equality on sameness with the majority, but rather will define equality as equal entitlement to pursue their own conception of the good. At the very least, an affirmative effort to include subordinated perspectives into legal discourse would enhance their moral and democratic legitimacy, for as Iris Marion Young argues, “Normative judgment is best understood as the product of dialogue under conditions of equality and mutual respect. Ideally, the outcome of such dialogue and judgment is just and legitimate only if all the affected perspectives have a voice.” Insofar as some voices are not represented in the status quo, legal actors must proactively work to insure that the voice of the minority—be it Jewish, Muslim, Atheist, or other—is included and fairly considered in the proceedings.

Objections

1) Isn't this biased in favor of minorities?
Well, yes and no. What anti-subordination recognizes is that different groups, in order to be truly equal in society, may need different treatment. Laws are written with the majority in mind and their interests should be protected via democratic processes. The same can’t necessarily be said for minority groups. This is why we have judicial review in the first place. So in that sense, it provides a different type of review for minorities, because they’re in a different situation in our society and polity than majorities. Ironically enough, though, in many of these cases the legislatures were quite protective of minority rights, carving out exemptions for faiths which requested it, only to see their laws struck down as religious favoritism. In that case, anti-subordination acts as a constraint on courts to stop them from interfering with the democratic process as it tries to accommodate religious difference.

What I will say is that if we understand the religion clauses as expressing a constitutional aspiration that all faiths (or all those compatible with basic liberal premises) should be free to exercise their religion in their own autonomous and distinctive manner, then we will almost definitely have to pay special attention to minorities whose faiths and practices are unfamiliar or strange. You can’t see through a wall (of separation), and this blindness is a major obstacle to writing legislation and policies compatible with religious pluralism.

2) What about the human sacrifice religion?
To go into a bit more technical constitutional nomenclature, anti-subordination would in large part restore the Sherbert test (largely abandoned by the Supreme Court in the 1990s) for Free Exercise cases, which demands that laws which impede on religious practice be supported by a “compelling state interest.” This is the same standard that the Court uses to analyze other rights claims—free speech, freedom of assembly, equal protection, etc.. Though it is a stringent standard, certainly it is not impossible to meet, and preventing killings (along with a wide array of other rules necessary to keep intact a liberal, civilized society) would easily survive it. The point is to enshrine religious pluralism (including the right to distinction from prevailing norms) as a constitutional value. This clearly does not mean this value cannot be “trumped”—but we should be explicit when we do so, and what I’m rejecting is that an “anti-differentiation” or “strict separation” principle is strong enough to trump by itself.

3) What counts as a “minority” faith anyway?
This, actually, is the toughest question. In general, I mean “non-Christian” faiths, because America is a Christian dominated polity. Our very conception of religion is premised around a Christian template (for example, there have been reams of paper written on how the constitutional privileging of belief over action is a Christian model that was designed to stand in contrast to Judaism, which holds the reverse), every legislator is aware (or soon will become aware) of basic Christian religious practices, and there is close to zero chance of an American polity passing a law severely burdening mainstream Christian religious practice. Nonetheless, I recognize that certain Christian sects may be likely to face severe burdens that rise to the level of subordination (Jehovah’s Witnesses are the obvious example).

The tougher case would be a village or town that is overwhelmingly of a non-mainstream religion. I do not oppose the existence of minority-dominated localities—in addition to the fact that many religious traditions require this sort of seclusion, such an opposition would be fundamentally biased: nearly every town is Christian-dominated—there is no reason why disadvantaged groups should be “locked in” to minority status at every level of governance if they desire some level of local autonomy or a community where their culture is the norm (and not an “exemption” or “accommodation”). That notwithstanding, in such situations it is still quite fair to examine whether or not a Christian “minority” is being treated fairly and equally. In short, anti-subordination is aware of the potential for subordination of the nationally dominant faith in a minority-comprised locality. However, it does not view the mere existence of such locales as constituting subordination.

Publication Announcement

I'm proud to announce that my first law review article, "When Separation Doesn't Work: The Religion Clauses as Anti Subordination Principles," will be published in the upcoming Spring 2007 edition of the Dartmouth Law Journal. Here's the abstract:

Since the Warren Court era, strict separation between church and state has been the hallmark of liberal religion clause jurisprudence. Separation between church and state has been understood to protect minority religions from majoritarian oppression, preventing dominant religious faiths from using the state apparatus to instill an official orthodoxy or creed. Minority faiths, cognizant of these risks, have thus dutifully supported strict separationism as their preferred legal principle.

Yet strict separation may not be to the optimal benefit for religious minorities. Using the experience of Jews in America, I take a critical view of the separation of church and state, showing how both in theory and in practice it takes inadequate account of religious difference and thus is intrinsically biased in favor of dominant religious paradigms (Christianity or secularism). At the same time, separationism is indifferent or even hostile to the particularistic needs of less prominent sects. I then use these observations to construct a new, more egalitarian religion clause jurisprudence, based on the principle of anti-subordination. This principle, inspired by similar critiques of neutral principles made by the legal feminist and critical race theory movements, would articulate an establishment and free exercise perspective that sees as its goal the equalization of status between majority and minority faiths in America.

You can download a draft copy here at SSRN.

UPDATE: Too long? Don't feel like downloading the whole thing? Here's my blog-only abbrieviated form. For those of y'all too lazy to dive into a 30-page paper by someone you barely know.

Make No Mistake

It's lines like this that are going to push Obama to the Democratic nomination and the Presidency:

Mr. Obama was approached by a woman, her eyes wet. She spoke into his ear and began to weep, collapsing into his embrace. They stood like that for a full minute, Mr. Obama looking ashen, before she pulled away. She began crying again, Mr. Obama pulled her in for another embrace.

The woman left declining to give her name or recount their conversation. Mr. Obama said she told him what had happened to her 20-year-old son, who was serving in Iraq.

“Her son died,” he said. He paused. “What can you say? This happens to me every single place I go.”

The next day, at the rally here, Mr. Obama described the encounter for the crowd. The woman, he said, had asked if her son’s death was the result of a mistake by the government. “And I told her the service of our young men and women — the duty they show this country — that’s never a mistake,” he said.

Beautiful.

UN Passes Resolution Condemning Holocaust Denial

The Washington Post has the story, including charming testimony by the Venezuelan delegate who, "while supporting the resolution," argued that Israel's "excesses under the pretext of legitimate defense has led to a new holocaust against the Palestinian people." Nice. Clearly they understand what happened in the Holocaust. Of course, I can't be too surprised. After all, Venezuelan President Hugo Chavez claimed that Israel's Lebanon campaign was "doing the same thing as Hitler," or "perhaps even worse."

In any event, A. James Rudin notes that, while only Iran formally disassociated itself from the resolution (neither it nor any other country formally cast a vote against the resolution), 88 countries abstained from the vote, a full 46% of the General Assembly. Rudin claims many of the abstaining states were Arab or Muslim. This does not appear to be completely accurate--the resolution was adopted "by consensus" (without a vote). What I assume he means that 88 states did not sign on as co-sponsors (103 did--that would tally to Rudin's 46%). I don't want to rain on the parade though, so I'm curious to see which Arab and Muslim states did sign as co-sponsors. I will point out that both Egypt and Indonesia spoke out in favor of the resolution (though I don't know if they were co-sponsors). Anyone who has the full list of 103, please drop me a line.

Five Stages

Sadly, No! on the five stages conservative Iraq war supporters go through watching all their, er, best laid plans go to hell:

1. Denial: "The media doesn't show the good news in Iraq."

2. Anger: "The treasonous far-left-liberals and their media lapdogs are making us lose in Iraq."

3. Bargaining: "If we send x-thousand more troops to Iraq, victory will be ours."

4. Depression: "Did you catch 300 yet? [munch-munch-burp] God, it made me hate liberals even more. [channels flipping] They wouldn't last a day in ancient Sparta."

5. Advanced Literary Theory: "The hegemonic binary of 'success' and 'failure' traumatizes the (re)interpretive possibilities of an ethos of jouissance regarding the War in Iraq."

I say "conservative Iraq war supporters" not to deny my old status as an Iraq war supporter, but to say that I don't think I fairly went through any of these stages--while I supported the war, I pretty quickly became angry at the fact that a policy I thought was important was being mismanaged into a catastrophe of epic proportions. Certainly, I never hypothesized about what would happen to liberals (like, er, me) in ancient Sparta.

Geraldo: Voice of Reason

Check out these flames from Bill O'Reilly, debating with Geraldo Rivera on a tragic accident in Virginia Beach where a teenage girl was killed by a drunk driver. The drunk driver was an illegal immigrant, and O'Reilly tries to make that into the story. Rivera would have none of it, pointing out that the issue was that of drunk driving, and that for this girls family it wouldn't matter if the driver was an illegal alien or some random Jewish guy.

It's pretty amazing to watch, but I just want to point out that Rivera, who is often mocked and maligned in more "sophisticated" circles, really was impressively zealous in defending the right side here. I give him a lot of credit for it, and for standing up to a Bill O'Reilly whose normal setting of loud anger carried over into abject fury.

Breaking News!

Northfield, MN -- April 5th

A crack team of Jewish theologians and snack bar employees determined that quesadillas were Kosher for Passover last night, in a giant leap forward for local Jews. Snack bar options have been severely limited over the past few weeks as it turns out every $*%^^& food on the planet is made with bread. While acknowledging that the ruling may conflict with what one participant called "those stupid Passover rules that don't involve not eating bread," the committee agreed that it was time to push back against "OCD Rabbis" and that the holiday was not meant to cause starvation for those who'd rather stab their eyesockets out with the Afikomen than have another bite of Matzah.

Quesadillas are made with flour, water, and various cheeses. They do not contain yeast or rise.

Reenfranchisement

New Florida Governor Charlie Crist has come out in favor of at least the limited restoration of voting rights for convicted felons.

Crist's predecessor, fellow Republican Jeb Bush, opposed automatic restoration. But Crist has called the failure to restore rights a legacy of the era of "unjust" anti-black Jim Crow laws of the racially segregated south.

Florida has one of the toughest disenfranchisement laws in the country. These laws tend to concentrate themselves in deep south states, where they were promulgated to dilute Black voting strength. See J.F. Barbour, Jr., Note and Comment, 8 Miss. L.J. 196, 202 (1935)

In specifying those crimes which would disqualify a citizen from exercise of the privilege of voting, upon conviction, the compilers of the Mississippi Constitution listed those offenses which the irresponsible and impulsive class of uneducated Negroes are most prone to commit....

Barbour's article was written in the wake of the Scottsboro decision, explaining why the Supreme Court ruling would not threaten Southern efforts to disenfranchise Black voters and keep them off jury service.

Today, felon disenfranchisement laws survive because the last thing these Republican-dominated states want is more poor and Black people voting (they'd likely vote Democratic). It is supremely difficult to convince any politician to stand up for the rights of Black ex-cons (not the most politically popular group), much less one for whom it is not in his political interest.

So, kudos to Governor Crist--for making this an issue, and for not letting it drop after the campaign ended. Via Blackprof.

Build Anew?

Michael Hirsch has a piece in the Washington Monthly entitled "Don't Go Wobbly, Barack." It's a bit of a meandering piece, starting at first with the personal histories of Samantha Power and Anthony Lake (major foreign policy advisers to the Obama campaign), moving to a critique of the Iraq war that nobody would find controversial, and ending with a plea for Obama to not abandon international institutions in their current form.

Power and Lake, two heavyweights in liberal IR circles (for excellent reasons), are used by Hirsch to embody the growing despair many liberals feel as to the efficacy of the UN and other international organizations.

Power's Pulitzer [for A Problem From Hell: America in the Age of Genocide] was awarded in April 2003, just as the looting began to rage in the streets of Baghdad, providing the first glimpses of the nightmare that Iraq was to become. And as the months passed, Power watched her interventionist dreams turn to dust. In just a few years, she believed, President Bush had squandered the efforts of half a century, in which Washington carefully nurtured an international system and worked its way, fitfully, toward a vague doctrine of global leadership. While Bush talks of freedom, democracy, and human rights, most people see a savage, botched occupation, alignment with Arab autocrats against Iran, and waterboarding in secret prisons. Says Power: "Now we're neither the shining example, nor even competent meddlers. It's going to take a generation or so to reclaim American exceptionalism."

Hirsch agrees with Power that the Bush administration has done severe, possibly catastrophic damage to America's ability to enact positive changes in the global arena. However, they differ as to the implications. Power and Lake are despondent over the ability of the UN to effectively deal with international crises, from genocide in Darfur and Rwanda, to refugee problems, to environmental catastrophes, to just the general enlargement of human rights and democracy around the world. Hirsch believes that there is nothing intrinsically flawed with the international system built after 1945, and that if the US was under proper leadership, there would be no need to start "from scratch."

Unfortunately, Hirsch provides very little evidence that the current international system is capable of doing the work liberal theorists expect and demand of it in the coming century. The closest Hirsch comes to an argument here is the assertion that international systems today enjoy more power than at any comparable point in history:

Compared to previous periods of imperial rule, this international system was--and still is--unmatched by any other in history in the depth and breadth of its reach. As James Richardson, an Australian scholar of international relations, has pointed out, the global economic order policed by institutions like the World Trade Organization is "without historical precedent; earlier attempts to establish international order relied mainly on political and military means."

It is indeed true that international institutions have far more power today than ever before. But this leap in capacity, drastic as it is, still pales in comparison to surge in responsibilities expected of the international arena. We expect it to keep the peace between nations, promote democracy, protect human rights, defend against genocide, reduce famine and suffering, foster dialogue among nations, and maintain an objective neutrality towards all nation-states. Never in history has any entity, much less one essentially created from scratch, been tasked with such an assignment.

While the UN can if it chooses enact policies that directly effect the sovereignty of its member states on some very key issues, its power and influence are no where near at the level it would need to be to accomplish these aforementioned goals. Moreover, the body has been unwilling to focus what power it has effectively, with genocidal maniacs either running out the clock as UN bureaucracy grinds, or being ignored entirely. The UN's grant of each state equal power also becomes problematic by allowing non-democratic states to control the agenda--this makes it unlikely that the body will act meaningfully to promote the cause of free elections in the face of its dominant members' interests. These are structural problems that cannot be fixed just by repairing America's damaged image. They strike at the very heart of the UN's legitimacy, impeding it in its quest to expand liberty and protect the marginalized, and responsible for its anemic response to some of the most brutal human rights violations over the last century. Hirsch does not offer a compelling reason how the current system can be expected to transcend these problems. And in absence of that, I do not find it unreasonable that some of our brightest luminaries are questing for alternatives.

Looking at a UN which has fallen so far short of our dreams, many of the world's brightest liberal scholars have all concluded that we gotta get out of this place (metaphorically if not literally). Hirsch is right that, even today, no country aside from the US has the credibility to become a leader in the international arena (the nightmare is that a network of "non-aligned" states like Cuba, Iran, and Venezuela will try to contest America's international political dominance, but I don't see that happening, yet). The problem is that we don't have the credibility anymore, either. This is the legacy of the Bush administration in international arena--a terrifyingly anarchic world in which no country can lead and no country can effectively press for the reforms so desperately required. This, I suspect, is what leads so many liberal internationalists into depression, and this, I suspect is what leads them to Obama, as well. Democracy Arsenal had an amusing post tallying Google hits for "[Person] is the Messiah." Of a bevy of politicians, public and even religious figures, Obama stomped the constitution, with 360 hits (Mohammed came in second with ten). The Obama-as-Messiah motif, while hyperbolic, is also real. There are a great many people, myself included, who see him as a last, best hope to save the world from some of our most intractable social and political problems. We're probably asking too much of him; he may well fail (even if elected). But the fact that we feel the need to prop someone up as a pseudo-messianic figure is evidence of how far the world has fallen, and how desperate we are for a savior.

April Showers

When someone at the Seder mentioned it was snowing outside, I laughed. Oh, how bitter that laugh is now.

When You Wish Upon A Star

You'll notice on the right side-bar that I've added an Amazon.com Wishlist. If any of my lovely readers feels moved to buy me something, that would be the place to do it.

There also are now google ads at the top of the page. I feel that they are not very obtrusive, but if you disagree, let me know, and I'll probably take them down (I doubt they'll make much money). Again, if you feel compelled after reading the site to direct a bit of money in my direction, you can click on one of the links.

The Tenth Drop

There are ten plagues read on Passover, foisted upon the Egyptian people as Moses asks Pharaoh to "let my people go." The plagues run a gamut of nasty things, from turning the Nile River to blood, to locusts, to boils. The tenth and final plague is the slaying of the Egyptian first born. When Jews recite the ten plagues, they spill a drop of wine for each one, to symbolize their loss of joy in response to the suffering of others.

Though nominally beneath Yom Kippur and Rosh Hashanah (the day of atonement and Jewish new year, respectively) in terms of religious significance, Passover in a very real sense represents the climax of the Jewish biblical narrative, both telling of our enslavement in Egypt and our redemption by God. This narrative of oppression and freedom is perhaps the crucial influence on Jewish social and political thought, and occupies a central place in the religion. It is nearly impossible to conceptualize a Jewish "world" without the Passover story.

Yet, this year, I almost decided I could not celebrate it.

In the modern era, the Passover story has been supplemented by the Holocaust as the crucial experience in the Jewish narrative. Twelve million people, six million Jews including 1.5 million children, were obliterated by the Nazi death machine, totaling a quarter of the world's Jewish population. A massive portion of contemporary Jewish theology has focused on the Shoah and its aftermath, and what it means to be Jewish after Auschwitz. Rabbi Irving Greenberg articulated one of the more potent formulations of a post-Holocaust Jewish theology, arguing that, for the modern Jew, "no statement, theological or otherwise, can be made that would not be credible in the face of burning children."

Passover and the Holocaust exist in tension with each other, not the least because the former emphasizes divine redemption, while the latter feels more of divine abandonment. Nearly every Haggadah explores the obvious connections between Passover and the Holocaust. Generally, the camps are analogized to enslavement, and the establishment of Israel takes on the role of redemption. This narrative holds true as far as it goes. But the conflict is deeper than that.

The plagues God sends upon the Egyptians, specifically, the tenth plague, is very difficult to reconcile with post-Holocaust moral commitments. For one, it was overbroad. Those that it punished were not guilty. The slaughter is complete and indiscriminate, "from the first-born of Pharaoh that sitteth upon his throne, even unto the first-born of the maid-servant that is behind the mill" (Ex 11:5). The two year old Egyptian child is in no way responsible for the political actions of a hereditary dictatorship. I know of no set of circumstances for which I could affirm that this four-year old toddler and that seven-month infant deserve to die, but this certainly was not it. Earlier in Exodus we are told of Pharaoh's order to kill every Jewish baby boy. This is appalling, but when the subject is infanticide, turnabout is not fair play. What psychological contortions must we undergo to so quickly forget our horror at the order to kill children?

Second, the killings were completely unnecessary. While the popular narrative is that the plagues are in response to Pharaoh's persistent refusal to free the Jews, the actual text reveals a more complex story. From the sixth plague on, it is not Pharaoh who hardens his heart, but God. "And the LORD hardened the heart of Pharaoh" (Ex 9:12). So it is that God is in fact responsible for the continued enslavement of the Jews, justifying another round of brutality, eventually culminating in genocidal violence.

When the subject is mass murder, I will not "plead God's cause" (Job 13:7-10). If there is one place where the standard apologetics and defenses for Biblical injustice simply cannot be allowed to carry, this is it. An honest reading of the text forces us to read the tenth plague as nothing short than the gratuitous slaughter of innocent children. Juxtaposed next to the Holocaust, this has horrifying implications. On the one hand, modern Jewish theology is centered around what response (if any) can be given to our dead children. On the other hand, we celebrate a holiday which climaxes through the murder of other innocent children. So long as that basic truth is suppressed, Passover will continue to be, in a very important way, a ritualistic reenactment of the Holocaust--and the songs we sing are praises to the SS. Horrifying as this thought is, there is no way to avoid it. Every year, in order to contort our theology so as to fit within comfortable frames, we force ourselves to forget the Holocaust--and in doing so, literally celebrate burning children. If that is the case, it must surely be the end of the road for Judaism--the Seder as Auschwitz's orchestra, but this time, the participants are willing contributors. This cannot be allowed to stand unchallenged.

And that brings us back to what a Jew, at the Seder, ought to do. Confronted with the manner in which the apex of Jewish ritual is serving as a choir for the nadir, something has to give. Spilling a drop of wine, I feel, is clearly not enough. Is that seriously a credible response before burning children? It's like commemorating Yom HaShoah by spilling a drop of beer at Oktoberfest.

Another crucial part of the Seder is drinking four cups of wine throughout the evening. The drops of wine we spill are from (I believe) the second cup. Last night, at the first Seder, I experimented with a bit of protest theology of my own. Instead of spilling one drop at the tenth plague, I spilled the entire cup. The destruction of innocents does not just reduce my joy, it renders joy impossible in this context. More importantly, by deliberately violating a crucial component of the Passover Seder (not drinking four cups of wine), I register my dissent from the agent who carried the sword and committed the slaughter. I don't consider this sufficient either. But, in a very small way, it hopefully will reorient the celebration of Passover so that it can forthrightly face itself.

****

"Far be it from me to say that you are right; till I die I will maintain my integrity. I persist in my righteousness, and will not yield; I shall be free of reproach as long as I live." (Job 27:5-6)

Boro Park Shudders

A few days ago, Newt Gingrich spoke out against bilingual education by saying that people should "learn the language of prosperity, not the language of living in a ghetto." Most people assumed he was referring to Spanish, as that is the primary case of bilingual education in America, and controversy ensued.

Now Gingrich has tried to clarify. The statement did not mention or "refer to Spanish." So, what did he mean? Gingrich goes on:

Now, I'll let you pick -- frankly, ghetto, historically had referred as a Jewish reference originally. I did not mention Hispanics, and I certainly do not want anybody who speaks Spanish to think I'm in any way less than respectful of Spanish or any other language spoken by people who come to the United States.

Ah, it's Hebrew that is the language of the ghetto! We better dispatch some red-blooded Americans to integrate Kiryas Joel, pronto. Otherwise they'll never learn the language of prosperity, and Jews will be stuck in their American ghettos for all eternity!

Don't See That One Every Day

This is a very weird case coming out of Texas:

Darrell Roberson came home from a card game late one night to find his wife rolling around with another man in a pickup truck in the driveway.

Caught in the act with her lover, Tracy Denise Roberson -- thinking quickly, if not clearly -- cried rape, authorities say. Her husband pulled a gun and killed the other man with a shot to the head.

On Thursday, a grand jury handed up a manslaughter indictment -- against the wife, not the husband.

In a case likely to reinforce the state's reputation for don't-mess-with-Texas justice, the grand jury declined to charge the husband with murder, the charge on which he was arrested by police....

Tracy Roberson, 35, could get two to 20 years in prison in the slaying of Devin LaSalle, a 32-year-old UPS employee.

Assistant District Attorney Sean Colston declined to comment on specifics of the case or the grand jury proceedings but said Texas law allows a defendant to claim justification if he has "a reasonable belief that his actions are necessary, even though what they believe at the time turns out not to be true." ...

When Tracy Roberson cried that she was being raped, LaSalle tried to drive away and her husband drew the gun he happened to be carrying and fired several shots at the truck, authorities said.

Very strange. Can't say I disagree with the decision to charge the women though (assuming that there really wasn't a rape happening, which seems to be taken as a given, so I assume the women admitted to it). Dan Solove has some thoughts on the legal aspects of the case.

Via Volokh

Paradox of Self-Reference

I'm not going to be cliched and write an April Fool's Joke like every other two-bit blogger out there.




Fooled ya! Just did!

Hee hee....(sigh).

The UN and the Jews

I have rarely said kind things about (former) UN Secretary-General Kofi Annan. I was calling for his ouster in 2004, noted his complacency in the UN's appalling anti-Israel bias, and I mocked him when he seemed to seriously believe that Syria would stop arms shipments to Hezbollah along the Syria-Lebanon border.

In short, I have not been a fan.

But this speech he gave, in tribute to UN Watch founder and diplomat Morris Abram, nearly made me cry.

I know that to some of you in this audience, and in the Jewish community at large, it has sometimes seemed as if the United Nations serves all the world's peoples but one: the Jews.

The exclusion of Israel from the system of regional groupings; the intense focus given to some of Israel's actions, while other situations sometimes fail to elicit the similar outrage; these and other circumstances have given a regrettable impression of bias and one-sidedness.

As you know, the General Assembly some years ago rescinded its resolution equating Zionism with racism. Even so, deep and painful scars remain -- for the United Nations, I should stress, as much as for you. One of my priorities as Secretary-General has been to try to heal these wounds and find our way to mutual understanding and partnership.

Building lives of security and dignity for all requires the full participation of all -- of each and every individual and nation. I am glad to say that the Jewish community has been a significant presence at the United Nations from the beginning. Leaders of the American Jewish Committee were in San Francisco when the Organization was founded, and helped to infuse the Charter with concern for justice and human rights. Earlier this year, the American Jewish Committee donated $200,000 to the United Nations refugee agency for the reconstruction of schools in Kosovo, showing a humanitarian impulse that recognizes neither borders nor creed, but only fellow human beings in need.
[...]
The new century is upon us, and the shape of the challenges ahead is clear. Some are as old as civilization itself: war, hunger, intolerance and inequality. Others are newer, such as the AIDS epidemic, climate change and the opportunities and risks associated with globalization. Some threats are conspicuous, such as drug-trafficking and terrorism. Others are more subtle, like corruption and money- laundering.

All these challenges share a crucial aspect: they transcend borders. They demand of us that we think less about what divides us, and more about what holds us together. They demand of us that we continue building an international community: a humane community with rules, with shared values and aspirations and, most of all, with a conscience.

It is unthinkable that your voices would not be part of this quest. Jews know the burden of bigotry. They know the longing for sovereignty. They know the pride and peril of nation-building. They know the push and pull between tradition and the modern; between individual needs and those of the community; between multiculturalism and more narrow visions of society. These are issues and questions that resonate for all people. As we search for answers, your participation can enrich the United Nations.

Friends, Jews around the world have just finished the annual celebration of Hanukkah -- the last "festival of lights" in a dark and tumultuous century. Tragically, genocide is very much a word of our time, blighting humanity's path and casting long shadows over genuine progress in the human condition. Indeed, the United Nations will never forget its origins in the fight against fascism, and that its Charter was drafted as the world was learning the full horror of the Holocaust. This history makes it especially sad that such a gulf arose between us.
[...]
Together, we have an opportunity -- and an obligation -- to bring more light into the world. Jews have been engaged in just such a mission since the far reaches of antiquity. For the past fifty-four years -- certainly not as long, although it has felt that way at times -- this has also been the mission of the United Nations. Neither of us has always succeeded. But neither have we stopped trying. Let us join forces and build a better world together. Thank you very much.

It isn't perfect. I wished that Annan had conceded that the allegations of one-sidedness were not just an "impression" but a fact, one that Annan should apologize for and demand to remedy.

But even the acknowledgment that we have a legitimate grievance, noticing that we feel the UN simply did not care about our plight and was utterly indifferent to our suffering, is something that I had never heard from the highest elites in the international system.

It's a start. Now let's build a better world out of it.

UNHRC Closes Out

The UN Human Rights Council has finished its session, culminating with its 9th (no joke) condemnation of Israel. No other country in the world has been condemned that often, because no other country has been condemned at all by the council. But check out the strong action they took on Darfur!:

The Council did address the ongoing crisis in the Darfur region of Sudan, but it could only muster a meekly-worded resolution that failed to condemn, or even to cite, the Sudanese government or any other party to the conflict for abuses. The resolution merely 'express[ed] deep concern" about violations in Darfur without attributing them to anyone. Apparently, the human rights violations there are occurring all by themselves. An earlier European Union draft had the words "including attacks by rebel and government forces," but that reference was dropped to achieve consensus. The resolution also defers to Sudan by expressing regret that the Council's expert assessment mission, led by Nobel Laureate Jody Williams, "could not visit Darfur," obscuring that it was the Khartoum government that denied them entry.

The Williams assessment team, which went to Ethopia and the Chad/Darfur border, did present its report at this session. However, the Council, which is dominated by Sudan's allies in the African and Islamic groups, did not formally adopt the Williams report or call for the implementation of its numerous and specific recommendations, but rather simply "took note" of it. Instead, the Council established yet another expert group to "work with the government of Sudan" to promote the implementation of unspecified "relevant" UN recommendations on improving the situation in Darfur,"taking into account the needs of the Sudan in this regard," and to make yet another report to the Council at its next session.

That's the type of bold, decisive language we want when the subject is a half-decade of genocidal violence [/sarcasm].

Other highlights of the session include ending special oversight of the Iran and Uzbekistan human rights situations, increasing "geographic balance" in the hiring decisions of the UN High Commissioner on Human Rights (effectively meaning more employees from dictatorial regimes), and a resolution against "defamation of religion." The resolution, which only mentions Islam, was pushed through by an alliance of OIC (Organization of the Islamic Conference) states, as well as Russia, Cuba, China, and some African nations.

Islam is the only religion actually mentioned in the resolution. I would have loved to cross-examine some of the diplomats on that council, holding up a good fifty or so inflammatory anti-Semitic cartoons, statements, flyers, and textbook entries from around the Arab World (as well as the UN's own meetings) and ask if they counted as "religious defamation under the contours of this resolution."

Finally, following up on my last Why I hate the UNHRC post, UN Watch has posted a video of its speech to the council, the response, as well as a prequel detailing a variety of statements that were deemed quite "admissible."

Putting the "Fraud" in Voter Fraud

This article, "The Myth of Voter Fraud", by Michael Waldman and Justin Levitt, is simply spectacular.

Allegations of voter fraud -- someone sneaking into the polls to cast an illicit vote -- have been pushed in recent years by partisans seeking to justify proof-of-citizenship and other restrictive ID requirements as a condition of voting. Scare stories abound on the Internet and on editorial pages, and they quickly become accepted wisdom.

But the notion of widespread voter fraud, as these prosecutors found out, is itself a fraud. Firing a prosecutor for failing to find wide voter fraud is like firing a park ranger for failing to find Sasquatch. Where fraud exists, of course, it should be prosecuted and punished. (And politicians have been stuffing ballot boxes and buying votes since senators wore togas; Lyndon Johnson won a 1948 Senate race after his partisans famously "found" a box of votes well after the election.) Yet evidence of actual fraud by individual voters is painfully skimpy.

Before and after every close election, politicians and pundits proclaim: The dead are voting, foreigners are voting, people are voting twice. On closer examination, though, most such allegations don't pan out. Consider a list of supposedly dead voters in Upstate New York that was much touted last October. Where reporters looked into names on the list, it turned out that the voters were, to quote Monty Python, "not dead yet."

Or consider Washington state, where McKay closely watched the photo-finish gubernatorial election of 2004. A challenge to ostensibly noncitizen voters was lodged in April 2005 on the questionable basis of "foreign-sounding names." After an election there last year in which more than 2 million votes were cast, following much controversy, only one ballot ended up under suspicion for double-voting. That makes sense. A person casting two votes risks jail time and a fine for minimal gain. Proven voter fraud, statistically, happens about as often as death by lightning strike.

Yet the stories have taken on the character of urban myth. Alarmingly, the Supreme Court suggested in a ruling last year ( Purcell v. Gonzalez) that fear of fraud might in some circumstances justify laws that have the consequence of disenfranchising voters. But it's already happening -- those chasing imaginary fraud are actually taking preventive steps that would disenfranchise millions of real live Americans.

Identification requirements often sound simple. But some types of paperwork simply aren't available to many Americans. We saw this with the new Medicaid proof-of-citizenship requirement, which led to benefits being cut off for many longtime citizens. Some states insist that voters provide photo IDs such as driver's licenses. But at least 11 percent of voting-age Americans, disproportionately elderly and minority voters, lack the necessary papers. Required documentation such as naturalization paperwork can cost as much as $200. By contrast, when the poll tax was declared unconstitutional in 1966, it was $1.50 ($8.97 in 2007 dollars).

The mythology of voter fraud is a thinly veiled facade to disenfranchise Democratic-leaning and marginalized groups. Even something as seemingly innocent as a photo ID requirement both falls much heavier on certain classes of citizens (the elderly, the poor, the homeless) than others, while being utterly unnecessary to combat fraud. As voting rights expert Spencer Overton has stated, "a photo ID requirement would prevent over 1000 legitimate votes (perhaps over 10,000 legitimate votes) for every single improper vote prevented." Outside the ever-popular Daley machine anecdotes, there is precious little evidence to show that voter fraud is a severe or even significant problem in America.

Via LGM

Or Of The Blog(roll)

An interesting discussion at Republic of T (via Faux Real) on the issue of blogrolls and blogroll "purges" (where big bloggers take a knife to their 'rolls and eliminate sites they don't read frequently).

As a smaller but not entirely unknown blogger, this discussion of blog network dynamics obviously effects me. I don't think I will ever become an A-lister (I'm not even sure I'd want to be), but I certainly wouldn't turn down a bit more attention. I'm surprised how depressed I've been over a recent slump in my traffic over the past two months (a little under 6,000 hits in February, and probably less than that this month). Of course, if links are currency, then my blog-economy is entirely tied to The Moderate Voice, where I have the opportunity to feed myself traffic indefinitely. But regardless, there are also psychological benefits from being blogrolled. It is nice to know the bloggers you read and respect feel the same way about you, enough to put you on their roll at least (Faux Real, Slant Truth, Pseudo-Polymath). Getting on the list of a relatively larger blog is still a thrill (I think Balloon Juice would be the largest I'm on now). Of course, even a single link by a true a-list blog can distort my traffic charts for an entire month (I got a link from Powerline on July 4th once, that was a massive deluge). But I really would trade those one-shotters for a more persistent relationship with fellow midrange bloggers.

This isn't meant to be a whine--I don't do the things bloggers are supposed to do to grab more traffic. I almost never send emails plugging my own posts. I hate participating in comment threads (I'm not even really a lurker--I rarely, if ever, read them, and tend to get infuriated the rare occasions I do). I do trackback, but it seems that more and more sites are pulling the option (spam trackbacks are really obnoxious). Ultimately, I link to a wide array of blogs, but don't do much more to promote myself on top of that.

For my part, I do feel I have an obligation to try and draw attention to bloggers lower on the totem pole than I--how else will people find them? I only knew about the now-defunct Armchair Capitalists because one of the writers was the ex-boyfriend of a camp friend of mine. I'm not sure if Law and Letters is smaller than me anymore, but it certainly deserves all the lavish praise it can get from the law blawgger world. I firmly believe people should take it upon themselves to seek out and elevate the smaller bloggers they think have talent--and the more influence you have, the greater the obligation to give back from whence you came.

It's tough being a small-to-middle-sized blogger. You streak after elusive crumbs from the big boys and girls, but never really can break to the top. That's not so bad--I don't think I'd want the stress of becoming a big time blogger. But I wish there was more horizontal linkage among the middle range. The way it seems to work is a hub and spoke system: Someone, large or small, picks up a story, eventually a big blog links to it (if they didn't initiate it themselves), and then a community of smaller blogs all chat about the story with reference to, at most, the originator and the big blog. However, it's rare to see the small-blog discussants trade links among themselves. Partially, that's because they can be tough to find--technorati is a hassle, and trackbacks seem to be falling out the vogue. But even still, it makes community building difficult, and has the effect of stopping the conversation at just a few disconnected voices.

There is an opportunity for the blogosphere to become a lot richer, not necessarily by expanding our blogrolls or RSS feeds, but by progressing organically from individual posts we find interesting to see all the range of commentary being forwarded on the subject. I think that the way to get the most out of the blogosphere isn't necessarily to rely on the gatekeepers at the top (as useful as they are), but to harness the power of the b-list--blogs that are not at the top but can be relied upon to provide top-notch commentary on their areas of interest and expertise. It takes a bit more effort, but if blogs which can move traffic start working on this, I think we can really change this medium for the better, both in terms of our own intellectual stimulation, as well as revitalizing the more egalitarian and meritocratic blogosphere instincts that have begun to wane of late.

Schlafly Honors Marriage

The ERA has emerged from the grave to make another run at passage, and you know what that means: Phyllis Schlafly is back in the news! At an event at Bates College, the anti-ERA warrior claimed that marital rape is impossible. "By getting married, the woman has consented to sex, and I don't think you can call it rape."

But clearly, it's the "pro-family" folks like Schlafly that are defending the institution of marriage, by informing the populace about the perils of eliminating the marital rape exemption.

Feministing seems to have a solution that everyone can appreciate: "Hows about we make a rule that the amendment would guarantee equality for all women except Phyllis Schlafly? Then everyone wins."

Also at Feministing is a post talking about some queer activists opposed to fighting for marriage equality, because (among other reasons) marriage is so bound up in patriarchal history and practice that it is rather perverse to even want to be included in it. Generally arguments like that don't sway me, but comments like Schlafly's certain add to their potency, no?

It's An Art

I like writing smackdowns. This post, addressing an anti-gay adoption article by Lynn Wardle, was described as a "rib-cracker," something I'm very proud of. Other times, I don't write the smackdown myself, but link to someone else's demolition.

Usually, smackdown posts come out when someone makes a) a really offensive argument b) in a really weak manner. However, sometimes, regardless of whether you have any prefigured commitment on an issue or person, you have to link to a smackdown just because it demonstrates the sheer art of it. Jacob Weisburg laying out historian Andrew Roberts would be a perfect example. I don't know anything about Roberts, in fact, I've never heard of him. But, as a student of the smackdown genre, how can I resist this?

Roberts is as sloppy as he is snobbish. I am seldom bothered by minor errors from a good writer, but Roberts' mistakes are so extensive, foolish, and revealing of his basic ignorance about the United States in particular, that it may be worth noting a few of those I caught in a fast read. The San Francisco earthquake did considerably more than $400,000 in damage. Virginia Woolf, who drowned herself in 1941, did not write for Encounter, which began publication in 1953. The Proposition 13 Tax Revolt took place in the 1970s, not the 1980s--an important distinction because it presaged Ronald Reagan's election in 1980. Michael Milken was not a "takeover arbitrageur," whatever that is. Roberts cannot know that there were 500 registered lobbyists in Washington during World War II because lobbyists weren't forced to register until 1946. Gregg Easterbrook is not the editor of the New Republic. "No man gets left behind" is a line from the film Black Hawk Down, not the motto of the U.S. Army Rangers; their actual motto is "Rangers Lead the Way." In a breathtaking peroration, Roberts point out that "as a proportion of the total number of Americans, only 0.008 percent died bringing democracy to important parts of the Middle East in 2003-5." Leaving aside the question of whether those deaths have brought anything like democracy to Iraq, 0.008 percent of 300 million people is 24,000--off by a factor of 10, which is typical of his arithmetic. If you looked closely enough, I expect you could find an error of one kind or another on every page of the book.

Via Jon Chait

Blank Check

Publius on the unified theory of why the Bush administration is hideous:

If my critique of the Bush administration could be expressed in a single sentence, it would be this -- they ignore and attack restraints on their power. This is the foundational conceptual thread that binds together so many of the scandals and controversies we've seen over the past few years. International law constraining your actions? Ignore it. War crimes statute limiting your interrogation methods? Ignore it (then delete it). Don’t like part of a congressionally-enacted statute? Issue a signing statement and ignore it. Pesky FISA cramping your style? Declare it unconstitutional. Geneva Convention got you down? Call it quaint. Is your habeas flaring up again? Delete it. Having problems with a special prosecutor? Lie to him. Are certain Democrats political threats? Prosecute them, or suppress their political base through fraud investigations or through not enforcing the Voting Rights Act. And if U.S. Attorneys refuse to go along? Fire them.

I could go on, but you get the point. And many similar critiques could be leveled against the Republican Party more generally on everything from Bush v. Gore, to the Texas redistricting, to the Medicare Rx bill vote, to the New Hampshire phone-jamming scandal, to the nuclear option, etc.

I'll give the GOP credit for instilling me with a healthy respect for limiting government (albeit they've shown that I should focus on limitations less of the "minimum wage sucks" form than the "torture = illegal" issue). But as Publius notes, the problems here aren't necessarily breaking or evading rule of law. Some of what the Bush administration has done is probably legal, but hideously inadvisable. For example, I guess I give the administration a little credit for (belatedly) getting Congress to change the law regarding Habeas. It's better than the old position, which was that President Bush could ignore Habeas simply because he wanted to. But it's still a bad thing insofar as it obliterates a crucial check on government power that prevents oppression.

America has a peculiar internal history, one that is deeply tied to our tradition of being a liberal, democratic state. In its purist manifestations, this story serves our nation well as a symbol of our highest aspirations. But we must take care not to be seduced by our own idealized history. If there is one thing Americans remember, it is that there is nothing intrinsic to being "American" that prevents our government from becoming a tool of oppression and illiberalism. If we strip away the procedures and norms that demand open government and democratic accountability, we will not be saved from authoritarianism simply because the state flies red, white, and blue. Many people seem willing to sanction near-any assertion of power by the Executive Branch, primarily because they cannot even imagine that this state, our state, could succumb to the totalitarian temptation that has cursed so many people around the world. This type of thinking will do us (and the democratic project) in.

Not Admissable

This, in a nutshell, exemplifies why I can't stand the UNHRC. Both the speech (by UN Watch), and the response by the chair (the President of the UNHRC), are must-reads (for entirely different reasons, of course).

Two Out of Three Ain't Bad

Unless it's the tally of your lawyers being dismissed from your military commission trial. The ACLU Blog has the story surrounding accused Australian terrorist David Hicks' guilty plea:

No Military Commission proceeding would be complete without a dispute about counsel that nearly derails the case. (See here, and here) Monday's proceedings stuck to the script. The judge asked Hicks whether he was satisfied with his attorneys. He said he was, except that he hoped to add additional lawyers and paralegals so as to achieve "equality" with the prosecution. But precisely the opposite occurred.

First, following a somewhat arcane discussion, the judge ruled preliminarily (while claiming not to) that one of Hicks's lawyers, Rebecca Snyder, could not represent Hicks, because she had been appointed by the chief military defense counsel but was not herself on active duty. This was wrong – and the judge allowed that he might revisit the issue after briefing -- but the result was the first empty chair at Hicks's table.

Next, and far more troubling, the judge stated that Hicks's civilian defense counsel, well-known criminal defense attorney Joshua Dratel, had not submitted a letter indicating his agreement to comply with the rules and regulations of the Commissions, and therefore was not qualified to serve as counsel. Under Commission rules, a civilian lawyer must sign an agreement issued by the Secretary of Defense indicating that the lawyer agrees to abide by the Commission's regulations. The problem for the judge was that the Secretary of Defense had not yet created that agreement, and therefore Dratel could not sign it.

Instead, the judge had created his own version of the agreement – thereby, in Dratel's words, "usurping the authority of the Secretary of Defense." Dratel would have signed even that version – so long as the agreement made clear that it applied only to regulations that already existed, and not to those (and there are many) that have not yet been issued. "I cannot sign a document that provides a blank check on my ethical obligations as a lawyer," Dratel explained. In simple terms, Dratel was unwilling to pledge compliance with rules that he had not yet seen.

The judge was unpersuaded. "I find no merit in the claim that this is beyond my authority," he said. "That's sometimes what courts do, they find a way to move forward." Because Dratel refused to sign the agreement as written by the judge, he could not serve as counsel. There was a second empty chair.

Can we just reiterate that? Hicks' second lawyer was dismissed because he refused to agree to rules that hadn't been written yet. This is the system we're assured is going to provide fair and adequate process to the accused?

Via Michael Froomkin.

And now that the "guilty plea" is in, Kevin Jon Heller remarks: "I certainly hope Hicks gets credit for his five years in Gitmo. Frankly, it should count double."

Throwaway

Today was one of those days I knew no real blogging would get done, so I've been trolling around the intertubes to try and find something so the day wouldn't be a total waste.

The fruits? Tim F's Second Law of Interchats: "[A]s online discussions of Republican transgressions lengthen the probability of an attempted Clinton Did It! distraction approaches one."

With that, I can do some of my homework play Heroes III.

Cycle of Violence

Commenting on prospect of real movement towards a Mid-East Peace Summit (primarily between Israel and Saudi Arabia), Daniel Drezner makes a sobering point:

If this gains any momentum at all, I predict there will be an attack in Israel or the occupied territories. The attack will be designed to inflame the Israeli political establishment or wreck the Palestinian coalition government. There are simply too many armed groups in the region with a vested interest in maintaining the festering status quo.

From which Kevin Drum draws an important implication:

He's right, of course, and this is what makes the whole kabuki dance so frustrating: everybody knows this is exactly how it will play out, but nobody is willing to acknowledge it up front and agree to keep forging ahead even when the extremists on the other side do something inflammatory. Unfortunately, the extremists know this perfectly well.

This is true, and I think it is the only way for progress to be made. A Palestinian government which does not recognize Israel cannot be negotiated with (what are they to negotiate over?). But if Saudi Arabia is serious about genuine rapprochement with the Jewish State, the leaders of both countries need to show the courage to pursue peace, even if it means pushing through the obvious and inevitable attempts to sabotage it.

The Tragedy of Great Bracket Politics

And other tales of the day.

Today was the first day of the term, meaning the obligatory "what did you do over break" conversations with various folks. In my first class, I happily chirped away about how I went to Vegas. "What about you, Mara?" I asked.

"I went to Louisiana with Habitat for Humanity."

"Oh."

So that started my day off with a heaping dose of "I'm a horrible human being."

Later on, another friend remarked at how I was sitting at a right-handed desk, even though I'm lefty. I'm so used to them by now, I think I naturally gravitate towards righty desks at this point. It's odd, because I'm usually pretty gung-ho about left-handedness. So I was going to make a joke about how normally I'm a "left supremacist." Except instead, I said how normally I'm a "White supremacist." Wow.

Finally, I'm currently losing in my NCAA pool tournament to a girl who had Illinois in the finals. Illinois! A 12 seed that lost in round one!

Self-Constraint

Marty Lederman reports on Tony Snow's stated reasons for why our prison camp at Guantanamo Bay has not yet shut down. Let's remind ourselves that the President has at least claimed he wishes to shut Gitmo. And new Secretary of Defense Robert Gates believes the taint of the institution actually hurts our prosecution of the war on terror.

I couldn't agree more. So why has this abhorrent eyesore, moral stain, and barrier to fighting terrorism continue to exist?

Q: Why is it that the President's stated desire to close Guantanamo Bay cannot be turned into some kind of plan of action?

MR. SNOW: Because there are legal constraints. . . . [T]he President made clear back in September that he would love to be able to shut it down, but unfortunately the circumstances do not presently permit."

"Legal Constraints"? What, exactly, could those be?

According to the Times, "[s]ome administration lawyers are deeply reluctant to move terrorism suspects to American soil because it could increase their constitutional and statutory rights."

In particular, if the GTMO detainees facility were transferred to a U.S. mainland site, they would unarguably be protected by constitutional due process and the right to petition for habeas corpus. And we wouldn't want that, would we? Better that we should continue to "hamper the broader war effort."

So there it is. It's not a "legal constraint" per se. It's a President who is terrified of what would happen if the legal system ever got to review what he's doing.

Who's afraid of the big bad constitution? The President. And he's willing to hurt the fight against terror to hide from his phobia.

Via Majikthise

Vegas Wrap Up

I finished up on the house! Six bucks, but it's the principle that counts. Take that, Video Poker! I own you!

Saw Jay Leno do standup tonight. He was fantastic. Very different stylistically than Lewis Black, but if anything he was funnier.

Aside from that, I went to an oxygen bar for the first time (overrated). I also tried a Kobe Beef "slider". I feel like it loses something in translation to hamburger form. In general, though, the dining was superb, no surprise to anyone.

Oh, and I got my third watch since Spring Break. Watch One, a Nike sports watch I got a Champs Sports (similar to my old watch), saw its battery die the day I got it. They didn't have a replacement on hand, so they're mailing me a new one to Carleton. But that left me without a watch in Vegas. So I bought, Watch Two, a nicer one from Swatch at its shop in Caesar's Palace. That one lasted a full day before the second hand stopped ticking forward. So I went back to the store in the morning. To their credit, they replaced it immediately, no questions asked, which I appreciated immensely. I'm currently wearing Watch Three--if the pattern holds, it should last two days (long enough to get me out of Vegas) before something goes awry. Watch Four should be in my Carleton mailbox when I get there.

The Essence of Moderation

It isn't that I lie at the precise center of the political spectrum. I don't--at least not anymore--and I'll freely concede that. It isn't David Broder-esque "pox on both their houses", either. I have political commitments, most of which find far greater support from one party than the other.

No, moderation flows out of a post I didn't write this afternoon, on this Washington Post story. Here's the key quote:

If questions remain, Mr. Rove and Ms. Miers should be interviewed. They don't have to testify under oath, since lying to Congress is a crime.

Both Jon Chait and Steve Benen, writers whom I respect immensely, read this passage as the Post trying to accommodate Rove and Miers' inevitable lying. As Chait puts it:

I don't don't which is funnier: the Post's casual, unstated assumption that Miers and Rove will lie, or its casual, unstated assumption that this is perfectly OK. I look forward to the Post applying this logic to other areas of our legal system. ("Mr. Escobar's runners should not be searched for drugs at the airport, since importing cocaine into the United States is a crime.")

And I was about to write a Post joining that choir, for such a claim is horrifying and utterly indefensible.

But as I read further, I realized the Post's point was different. They were saying that the oath is unnecessary because "lying to Congress" is a crime, even if the witnesses are not under oath. Swearing them in is thus redundant.

Now, I think this is a relatively weak point, to be sure. The lack of a transcript would make proof of any lies by Rove or Miers nearly impossible to prove. And perjury is a far more serious crime than lying to Congress, and would probably have a greater deterrent effect. Finally, while the Post seems hell-bent on avoiding a "constitutional crisis", I'd say there is no crisis on the horizon. What is on the horizon is a court finally smacking down the President's argument that Congressional oversight is a separation of powers violation (Think I'm joking? Quoteth Tony Snow: "The executive branch is under no compulsion to testify to Congress, because Congress in fact doesn't have oversight ability."). There is no crisis, because there is really no question--outside Bush's fevered imagination, there is no doubt that Congress is a co-equal branch of government and indeed can hold executive branch agencies accountable. Incidentally, this is an example of the "bad" type of moderation--evading a conflict between Bush and the Democrats for the sake of avoiding conflict. When the point of contention is one party's insistence that checks and balances are a quaint relic of a bygone era, that's a claim that needs to be nipped in the bud (alas, too late for that, so nipped before it fully blooms).

However, the point the Post was making, while stupid, did not say that lying is okay. That was a misreading on Chait and Benen's part. If moderation means anything, it means hitting your opponents on their actual failings, not ones of your creation.

We Ain't Going Nowhere

Adam Kushner at The Plank has a good post explaining, slowly, how it is that Jews don't flock to the GOP merely because they loudly trumpet their support of Israel.

1) Jews have other issues important to us aside from Israel, most of which the GOP is diametrically opposed to us.

2) Jews don't trust the motives of the Christian Right on supporting Israel, and remain unconvinced that their different motives won't lead them to supporting policy positions actually detrimental to the interests of Israel.

3) It seems like the GOP "pro-Israel" stance is to encourage them to adopt a hyper-militaristic stance that really isn't in their best interest. Because we, unlike the Christian Right, have a real stake in this conflict, we can't afford to lock Israel in perpetual combat with its neighbors to prove a point about toughness against Jihad. As so often is the case, the GOP is talking tough with other people's lives on the line.

Distractions

Apparently, Las Vegas does have enough to do to distract me from blogging. Who knew?

I have to say, though, I don't really like gambling. I don't consider myself an overly competitive person, but I don't like participating in activities that I know I won't do well in. Like chemistry. Or frisbee. Or gambling. Obviously, I am never going to "do well" in video poker. Yet I feel like I should be playing to win. So it's stressful, and I don't enjoy it.

That doesn't mean Vegas is a bust, of course. There is still plenty to do aside from gambling. I saw Lewis Black do stand-up last night (great) and will see Jay Leno tomorrow. I also rediscovered my love for pinball--which is a surprisingly cheap way to spend the day in this town, which sucks your wallet dry like nothing else (ask about the $5 glass of coke my brother got). Today is a lazy day--which is cool too.

Maybe I'll even blog.

My Brother's Political Savvy

One of my favorite Boondocks strips features Riley telling Huey about missing a class question that even he felt embarrassed about. The question was "which Black political leader said 'turn the other cheek'", and Riley was given the hint "King."

"I thought, how many 'King's' could there be?"

"I know, but Rodney King?"

Last night, I had that same feeling when discussing over dinner whether "Gonzalez was going to go." My brother perks up and asks, "Elian Gonzalez?"

At the airport today, the TV was showing a Bush press conference. My brother looked over and asked "who's that?"

My brother, FYI, is 17 years old and will be attending the University of Virginia (Engineering School) next fall.

Let The Bankruptcy Begin!

Greetings from the Venetian Hotel & Casino in Las Vegas, Nevada! We got in a few hours ago, had a late dinner, and are now settling into our rooms. They screwed up our reservation, which is always nice, because it incurred no real inconvenience while causing us to fall upwards into upgraded accommodations. Hurray for failure!

As to the impending bankruptcy, after enjoying a $10 hamburger (yum!) and buying Internet service for another $10 (per 24 hours--again, I hate how I can get this for free at a Days Inn), I'm well on my way to financial oblivion. I even lost my first dollar on airport slots!

I'll keep you posted--assuming I can still afford the $10 Internet fee at the end of the trip.

Endless Introductions

Thinking Girl asks for comments on an interesting dilemma for those of us working in anti-subordination fields: How to deal with the endless parade of people who are (for lack of a better term) entirely ignorant of the basics of what we are doing? Anyone whose participated in these communities knows the type. It's generally the same questions, over and over and over again, basic 101 material that--because, alas, feminism and CRT are not yet mainstream--many folks still don't know. Sometimes it's genuine (if they ask to be taught something, I assume it's in good faith), other times it's trolling (hostile tones beget hostile responses).

The response the hosts and/or regular commenters give is somewhat ad hoc. If we're in a good mood, we'll answer the question as best we can. If we're not, we'll snap at the questioner to stop being ignorant, or coldly inform them that not every blog is designed to help beginners figure out the basics. From an outsiders perspective, it is difficult to understand, but try to imagine watching every discussion on a really important topic being pushed back to square one by (we'll be generous here) well-meaning commenters who just don't have a clue. It's like a Dilbert strip gone to hell.

There's an unfortunate paradox here. It is exhausting to have to tread the same terrain over and over again. Back in my early days doing anti-racism theory, I didn't understand this. I was like a kid with a shiny new toy, and with my debate background (and years of pent up evangelizing spirit that had no outlet since Jews don't missionize) I had near endless energy to try and explain Critical Race Theory to the masses (i.e., my White friends and blog readership). This was in part due to the fact that I was a new sojourner to the movement--I remember back when I was "unsaved" (so to speak), and so I viewed it as my obligation to try and bring as many of my fellow pagans to the fold as possible (I'm not joking with the rhetoric--this felt very much like a religious experience to me). There but for the grace of God and all that. I also hoped that I could use my Whiteness to my advantage here as well--since an aspect of my White privilege is that I do not have to live my life constantly "race-d", I thought that if I began to tire of the fight, I could step back, take a sabbatical, re-charge my batteries, and then return to the battlefield restored and renewed. Suffice to say, it didn't work: once you're attuned to the way race and racism permeate American society, you can't just start ignoring them, even if you're White. And if even I--who is not the primary victim of racism, whose life and equal status is not on the line in the debate--can feel this rhetorical exhaustion and fatigue from dealing with the same foundational debates, then I dare venture to say that it is a problem the whole community experiences.

But on the other hand, anti-subordination workers need to reach new people. We're in the minority, we want to move to the majority--it's axiomatic. And like I said, since I still can remember when I was the ignorant, uninformed one, I am unwilling to just abandon the masses. It was a total fluke that I came across this entire area of discourse--I don't expect other people to come to it the same way I did (a random debate round in high school). And, to speak on behalf of the ignorant for a minute--it's not their fault that they're the 40th iteration of a certain question, so long as they weren't also numbers 39, 38, 37, etc.. Sure, to us it looks like infinite repetition, but remember, for every 40 people asking the question (that they might overhear the answer), there are another 40,000 not talking about it at all. Statistically, the average man or woman is likely to be running in the social circle of the 40,000 than the 40. Such is life in an intellectual minority. In our frustration, it can be difficult to remember that cluelessness is not the same thing as malice. I think, as a community, we have an obligation to speak to anyone who, in good-faith, seeks us out for dialogue. The who and how are, to me, the bigger issues, and I don't want to minimize them. But I think we have to be wary of disclaiming the obligation entirely because we haven't figured out entirely how to go about it.

I hope that the Feminism 101 blog can help mediate this problem (am I the only one who thinks it might be a good Wiki candidate?). A anti-racism parallel would certainly be nice as well. But I just want to emphasize that this is a really important topic, and I'm glad that Thinking Girl has opened the floor for discussion on it.

Credible Source

Elizabeth Cassidy is reporting from the UN Human Rights Council's conference. It's an excellent (if depressing) post. Far and away the best part, though, was her recounting of Nobel Laureate Jody Williams' report on Darfur, which she is battling to see adopted by the commission:

Watch Jody Williams take those challenging her team's report to task for playing political games in Geneva while Darfuris die. Noting the Council's double standards on Sudan and Israel, Williams said that if her mission had gone to Palestine, "I imagine that the discussion here would be amazingly different." Regarding the challenges to the credibility of the report, she told Council members that the issue on credibility is "not about ours, it's about yours."

Supporting adaptation are Canada, Japan, South Korea and the European democracies. In opposition are most of the rest of the Asian bloc, the Arab League, the Organization of the Islamic Conference, Russia, and Cuba. The swing votes are in Africa--several nations spoke out in favor of the report, but others have not publicly revealed a preference.

Speaking of Cuba, while they cannot bring themselves to condemn genocide in Darfur, they did issue a statement accusing Sweden of "carry[ing] out ethnic cleansing that only allows those whose skin and hair color fit with the racial patterns of former Viking conquerors to remain in the country."

The entire post is worth reading, if only to know what we're dealing with when talking of the highest human rights body in the world.

Sin City

Another break, another term I don't fail out of Carleton. Actually, I had one of my best performances at Carleton thus far this last term--taking far and away my toughest schedule. So hurray for me! And hurray for school!

Meanwhile, I'm missionizing on behalf of a drink my friends at college discovered through some alcoholic alchemy. It's very simple: Take a mug of hot apple cider, add one shot of peach schnapps. It's amazing--tastes like liquid candy. Be sure to credit me when you make it on a cold winter night.

Oh, and I almost forgot--tomorrow, I'm off to Vegas, baby! The family is going as a celebration for my 21st Birthday. It'll be sweet. Computer will be along--I don't anticipate any blogging break.

Bad Policies Beget Bad Spin

White House Press Flack Tony Snow: Troop withdrawal bill "victory for enemy."

Color me old-fashioned, but I think the enemy's "victory" in Iraq started with failed policy, not trying to remedy it. I read in my IR textbook that it is almost impossible for democracies to concede defeat in war. I'm not a politician, so I can say it: we've lost. It's a tragedy (for us but more so for the Iraqi people). It will stain our nation for decades to come. But if we're going to blame someone for our defeat, it's the administration that (after years of having a nearly complete free hand) failed to win the war, not the Congress which finally recognized we're losing it.

Running on "Racist"

I understand my definition of "racist", while supported in the academic literature, is much broader than the popular conception. So, there a persons (more often, policies) I consider to be "racist" that other people do not. I think that's a problem, but it is irrelevant to the forthcoming conversation. For "America's Mayor" Rudy Giuliani has decided the best way to win back conservative primary votes is to brag about how he's viewed by some of his Black former constituents.

The campaign also helpfully provided a bunch of quotes from New York papers that demonstrate Giuliani's conservative credentials, such as this one from The Amsterdam News in 2000 (before Giuliani dropped out of the U.S. Senate race):

"[Giuliani's] Only Hope For An Overwhelming Victory In Upstate New York Would Be To Remain As He Is: A Hard-Nosed, Evil, Racist Republican Conservative."

The Amsterdam News is a NYC-based paper catering to the Black community. Remember, Giuliani thinks that being called a racist will gain him votes in conservative primaries.

Erin Esurance

Feministe's "Shameless Self-Promotion Sunday" gives me the chance to ask a question that's been nagging me for awhile:

What's the feminist take on Erin Esurance? For those of you who don't watch TV (ever--she is on like all the time), Erin is the animated spokeswoman for Esurance, an online car insurance company. She appears in a variety of flash animated advertisements, pitching the company's "quote, buy, print" motto in secret-agent type settings. The ads are produced in-house, not by Madison Avenue, so that could explain why they aren't at least flagrantly sexist (in my opinion).

The ads have a male character in them (and various robot baddies), but he is definitely second-fiddle. Erin, for her part, is not cast in stereotypically feminine roles--she races cars, jumps out of buildings, and beats up on robot evildoers. Basically, she spends most of the ads kicking ass. Which is good.

On the other hand, she certainly is drawn in the stereotypical slender, White, pretty mold that virtually all female actresses on commercials have (even animated ones, apparently, though I doubt her figure is humanly possible even among the model-set). When I ran a google blogsearch to try and answer this question on my own, all I got was a bunch of male bloggers repeating how hot she was. Which might be an answer itself, but I suspect it merely proves that any normatively attractive woman in a public arena will find herself objectified. That's certainly not her fault (though Esurance is arguably exploiting that fact--they, of course, control the proportions of their animated characters).

So? What's the line?

Take The Gloves Off

John Cole comments on Senator Patrick Leahy's stated desire to question Karl Rove, Harriet Miers, and other top Bushies on the Prosecutor Purge: "Personally, I say we subject them to strict interrogation methods. After all, those methods aren’t torture."

What's good for the goose....