Patriotic Fervor

Via Rick Garnett, a really interesting claim about the role of patriotism in America's governmental system. It seems that too much of it is, well, unpatriotic:

Americans' powerful identification with their country poses a significant threat to the system of intergovernmental competition that the Framers envisioned. The Framers believed that the state and federal governments would compete with one another for citizens' loyalty and for the regulatory power which that loyalty often yields, and that this competition would give both sovereigns strong incentives to remain finely attuned to the needs and desires of the citizenry. I contend that the nation's seemingly exclusive claim to citizens' patriotism significantly shields the federal government from the competitive forces that the Framers believed would restrain its ability to govern in objectionable ways. I conclude by advancing a two-part argument. First, to ensure that the federal government does not wield monopolistic power in a vast array of domains, we should give increased consideration to treaties and other regulatory alternatives that require America's leaders to negotiate with their counterparts in other countries. Second, in the years ahead, Americans may very well develop the supra-national patriotic sentiments necessary to sustain such models of international governance.

I do wonder how many federalism supporters saw this abstract and started flailing their arms wildly, shouting for attention. But even still, it's an interesting point.

And while we're on the subject of too much patriotism undermining the ideals our nation was founded upon, I note with some satisfaction that the flag desecration amendment failed in the senate today--albeit by one vote. I wrote these letters to my senators prior to the vote, but unfortunately I believe both voted for the amendment.

Keep It Clean

Kevin Drum points out something Democrats would do well to keep in mind: We'll lose the race to the bottom. If politics goes completely into the gutter, if Democrats and Republicans fight a duel with Ann Coulter and Michael Moore as the primary combatants, Republicans will win. Every time.

There's a bunch of reasons why that's true, but here's the simple test. Compare these two attacks and see who's going to come out ahead:

REPUBLICANS: Democrats demonize people of faith!

DEMOCRATS: Republicans demonize atheists!

Yeah, that's going to turn out well. Or try with different categories. Families versus homosexuals. Soldiers versus dissenters. Immigrants versus "hard working Americans."

Note that I am not saying that these dualism are accurate characterizations of the issues. I'm merely pointing out that when things get reduced to their barest caricatures, Democrats are going to lose. Because we're a party of deep ideas. We're not good at transforming our message into a taunt, because it's about uplifting America, not trying to keep it down.

One could argue that we're too late, the political climate has already moved past the point of civility, and we need to play dirty or lose every time. I might agree with the first half, but I sorely dissent from the second. If American politics today is framed as a slime contest, then Democrats need to focus their efforts on changing that frame. We need more Barack Obamas, not more Michael Moores.

Caught in the Net

This Washington Post article about a man thought to be a fugitive because a criminal had used his name as an alias left me with chills. It's truly frightening how heartless the criminal "justice" bureaucracy has become. This man had clear, incontrovertable proof of his innocence that was easily accessible to the authorities. What hope do those persons have who are not so obviously in the clear?

Thanks to my friend Lauren for the heads. Meanwhile, the DC rain storms have flooded my basement, so I'll likely be waging war against rising water for the next few days. Wish me luck.

Al Gore Patrol

I am a big Al Gore fan. I explain this to my friends, and they don't understand. The Democrats certainly are vaguely positive towards him, in the pining sense ("imagine if he had become President instead of Bush!"). The Republicans are just bewildered. They can imagine someone supporting Al Gore, but not being a big cheerleader for him. Don't I know that he's boring and uninspired?

My first response is that Al Gore is possibly the only major political figure to have been right on every major issue of the past 15 years. He was right on Gulf War I. He was right on Gulf War II. He was right about Global Warming and hybrid cars way before it was popular. He was a national security wonk in the mid-nineties when it was on nobody's mind, and he was advocating increased airline security years before 9/11 happened. His policy instincts, time and time again, have been proven to be without parallel.

But more than that, I refuse to buy into this notion that I should elect a President based on the same criteria that I'd elect a frat brother. I honestly don't care if Al Gore makes for a better drinking partner than George W. Bush. Hunter summed up my feelings exactly:

Ah, what might have been. Gore was widely derided by the press for the audacity of the lengthy answer or the wonkish explanation, a man too versed in facts, or God forbid with a speaking style that paused, from time to time, to find the right phrase instead of the next phrase. Not a man you would want to have a beer with, was the conventional wisdom shoved down our gullets like we were geese being prepped for our final hours. Knowledge is wooden, education is wooden, intellectualism is wooden, because facts are like trees: there's too damn many of them, and they're hard to tell apart.

Election 2000 was the start of my disenchantment with the democratic system, and not because Gore lost. It was before that, listening to the media coverage, where being smart and concerned and intellectual and yes, a bit wonkish, was seen as a liability, something to be overcome, rather than a boon to our nation, Gore's greatest strength. Well gosh, what was I doing trying to keep my A- GPA if this made me less qualified to lead in the public eye? Seriously, what kind of message do you think that sent to students following the election? I'll tell you: intelligence is for chumps. Frankly, I think we hear that message enough.

Well I've had it. I'm sick of being forced to hide from my own mind, and I'm sick of being forced into the political shadows as part of the evil liberal academic cabal of intelligentsia. I'm sick of a polity where education is seen as a vice, and I'm sick of a community which would rather ban new ideas than address them.

Al Gore is this sort of citizen's worst nightmare. Informed, passionate, educated, and committed. I put myself under his banner, and I hope to God we can remove ourselves from the dark path we set ourselves down in 2000--not by electing Bush, but by electing whoever we thought was the best buddy candidate in the group.

Beyond LGF

In Arizona, a Republican gubernatorial candidate is advocating forced labor camps for illegal immigrants. Nice.

Once upon a time, this type of rhetoric was limited to the LittleGreenFootballs crowd. Now you find in Republican primaries. And while Senator McCain and Representative Jim Kolbe (both Republicans) get props for harshly condemning the plan, really, what have we come to when they have to?

H/T: DKos

An Alabama Tradition

One thing that you learn quite rapidly when doing research into primary source texts of a historical period is that things are never as monolithic as popular parlance portrays them. For example, while the American South was definitely (and brutally) racist, it was not uniformly so, in that the people were entirely unaware that racism might even be wrong. These arguments were indeed being presented, albeit often by outsiders and always in the minority. As such, it provides an interesting riposte both to those who would caricature the American South as being in a state of complete moral darkness, as well as those who would apologize for their crimes with the cry of "they knew not what they did."

While looking up the local coverage of the Scottsboro trials, for example, I found a really interesting editorial in the Montgomery Advertiser defending the political rights of atheists. Commenting on a State Court of Appeals ruling which held that atheists were not "competent" to take oaths because they did not believe in an almighty God who could mete out justice and punishment, the editorial powerfully defended the rights and privileges of a group which undoubtedly was not any more popular in 1931 Alabama than it is today. Responding the court's argument that:

The whole fabric of this nation from its inception to the present time is founded on a belief in a Supreme Being whose guiding hand is recognized and involved in our most solemn governmental pronouncements

the editorial proclaimed:

What 'governmental pronouncement' is more 'solemn' than the constitution of the United States? It is a purely political document. It is a purely secular document. Not one line in it refers to a Supreme Being.... The reference to 'Almighty God,' etc., in the Declaration of Independence is cited, but the citation lacks weight for the reason that the Declaration of Independence is a war-cry and is not in any sense a part of the law of the Republic.
[...]
The genius of our governmental institution is affronted by the laws of Alabama, if the laws of Alabama are correctly interpreted by the State Court of Appeals when it says:

There is no place in our whole governmental structures for a belief which ties men to the rocks and clods and places him on a level with the beasts of the field

But we prefer to regard this as rhetoric rather than a statement of the laws of the Medes and Persians. Actually, there is a place in our "governmental structures" for all dissenters and all believers. If there is no place for dissenters, then this is a theocracy rather than the "republic of republics" where the conscience of the individual of goodwill is inviolable.

If the Court of Appeals is right, then Alabama has a state religion. ["Alabama's State Religion," Montgomery Advertiser, March 26, 1931 at pg. 4]

There are so many things that strike me about that passage. The imputation that "Alabama has a state religion" is not just used as an insult, but is assumed to be one on face (in other words, an assumption that the readers are not just constitutionally literate to know that state religions are prohibited, but constitutionally committed so they'd agree). The blunt dismissal of the Declaration as a document that is part of our contemporary body of law (I'd agree, but nobody would get away with putting it that plainly today). Even the idea that someone could write in one of Alabama's largest daily papers and boldly defend atheists as equal American citizens (and the piece pulled no punches in that regard) is surprising. I'm not sure you'd see such a clear commitment to religious equality in Montgomery today.

Also interesting was that a few days later, someone wrote in responding to the editorial. He claimed that "oath" definitionally implied swearing to a deity or higher power, and "religion" cannot definitionally encompass atheism (which is a lack of religion). The editors of the Advertiser responded by pulling across the pragmatic arguments they made in the first editorial--that the position of the court (and the letter-writer) would mean that atheists could not testify in their own defense, serve on a jury, or be elected to office (all of which require oaths). Are we really comfortable with denying them those rights (and if we do, are we seriously going to say we treat all citizens equally?). But I'd simply point out that, if we are to take these traditional definitions of "oath" and "religion" seriously, then to protect atheist rights will require not just accommodation but a bona fide change in the law or its understanding. So when conservatives today say that "atheists don't want equality anymore, they want special exemptions from long-standing laws," remember that this objection is essentially unchanged from 75 years ago. There is no "anymore," the folks who want to deny atheist rights can always frame it as "special rights" rather than fair accommodation.

And Proud Of It

Via The Moderate Voice, I find that the dictator of Sudan is blaming the Jews for leading the charge against his genocide:

Sudan's president said Jewish groups are responsible for the possible U.N. deployment of peacekeepers in his country.

"If we return to the last demonstrations in the United States, and the groups that organized the demonstrations, we find that they are all Jewish organizations," Omar al-Bashir said.

U.S. Jewish groups have taken the lead in calling for more international intervention to prevent genocide in Sudan's Darfur region, where a government-sponsored campaign of violence has led to an estimated 200,000 deaths and a humanitarian crisis.

You better believe we're heading this one up. I've never been so proud to be at the head of a Jewish conspiracy.

PS: I hate to say "I told you so" to Mark Olson but...

Waiting for Argument

One of the raps against originalism is that it miraculously stops being relevant when it leads to results conservatives dislike. It nearly always acts as a cover for results-based judging, which is especially annoying given how its adherents smugly defend it as a bold stance against judicial policymaking.

A few months ago, I noted that the usage of foreign law in American judicial opinions actually has rather deep roots in American jurisprudence, stretching back to the founding generation. Since then, I've only seen evidence supporting that view:

Under an originalist approach, a good deal of evidence demonstrates that at the country's inception, discussion of law from elsewhere was commonplace....Critics of the contemporary use of foreign law sometimes reply that foreign sources were not used to interpret the meaning of the Constitution. Defenders respond that (1) as an empirical matter, citations in cases prove otherwise; (2) in early periods, the Court did less constitutional interpretation; and (3) the line between common law and constitutional interpretation was not sharp. [Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry, 115 Yale L.J. 1564, 1568-9 n.7 (2006)]

I'm not an originalist, so in that past post I gave my own independent reasons for allowing citation to foreign cases. But I'm curious how self-described originalists make their case. There may well be solid reasons for opposing foreign law citation, but they are the type of objections that originalists would normally tag as fundamentally policy questions (e.g., it undermines the democratic process because we don't vote for foreign judges). Were I to use their rhetoric, I could very easily respond to a Scalia acolyte

"Sure, citation to foreign law may be suspect as a matter of good policy, but it's been well established since the time of the founding that this sort of interpretation is permissible. What grounds do we have to say it's illegitimate now?"

Now, one could respond that judges should use their discretion and refrain from using these sources even though they theoretically could. But that doesn't seem to be the objection of Scalia and his ilk. They say that this sort of usage is not just wrong, but illegitimate (Paul Mirengoff said it was grounds for impeachment). How is that defensible on originalist grounds?

I ask any originalist readers of the blog (this seems right up Southern Appeal's alley) for an answer to this truly vexing question.

The Law as an Outrage

I took my first look at the Law & Society Blog today, and it is a clear winner. This brilliant post by Hanno Keiser, on a 200 year sentence for possession of child pornography in Arizona, is just a brilliant display of what blogging can be: deep, engaging, informative, and compelling. It's on the blogroll.

The case, Arizona v. Berger, might actually be right as a matter of law--mostly because the Supreme Court has really taken the teeth out of any proportionality requirement the 8th amendment might impose. If you can sentence someone to life in prison for stealing golf clubs, or for a first time possession of cocaine rap (both cases cited by the court), then I have a hard time saying that possessing 20 pictures of child pornography is any more shocking (Douglas Berman accurately points out that this posed no barrier to examining the parallel clause in the Arizona state constitution, however). But what Keiser illustrates is that such a jurisprudence is one that's gone deeply awry. The sentence here is longer than the presumed sentence for rape, for second degree murder, or (ironically) for sexual assault against a minor. Discontinuities like that occur when criminal law views itself as in the business of expressing moral outrage. To quote Keiser at length:

The Berger case is one of the latest examples of enemy jurisprudence, of moral wrath using the legal system, and with it the government’s monopoly on the exercise of lawful violence, to destroy the lives of undesirables. The decision in Berger cannot be rationalized with arguments from traditional consequentialist or retributive theories of punishment, as it violates every requirement of proportionality....
[...]
The sentence in Berger is largely expressive conduct. It uses law as a means to display moral outrage. It is a celebration of moral hatred, as aptly described in the opening chapter of Michel Foucault's Discipline and Punish. A free society under the rule of law critically depends on the separation of the legal and the moral system. The code of the moral system is right/wrong. The code of the legal system is lawful/unlawful. By incorporating notions of morality, the law has transformed them into legal categories. That transformation of moral into legal categories is of particular significance in the context of criminal law. Moral categories tend to be absolute. Legal categories never are. In the criminal law context, the law does not only capture a society’s sense of moral condemnation, but also and more importantly for a free society, it imposes limits on what a government can do to the offender. These limits are the essential contribution of the law in the process of punishment. And in cases like Berger, these limits have all but disappeared....
[...]
The Berger case is a vivid illustration of that point. Here, the offender was technically not punished, if we require punishment to be a meaningful intra-societal answer to the offense. Rather, the boundaries of society have been redrawn so as to exclude the offender. Ejected from society into a natural state, society is free to wage war, to lash out and crush the offender, unrestrained by considerations of proportionality.

To the extent that Keiser is saying that law is not (or should not) be an instrument of morality, I disagree with him, but I don't think that's his claim. I think it's facile to claim that law and morality are, should be, or ever can be divorced. But I think that there is value in saying that law should not be used merely to express social outrage. There has to be some utility behind it. And again, this is a bigger problem when the subject is criminal law, when the legal sanction is not an injunction and a settlement, but prison or even death. In many ways I think that racial discrimination is as grave a moral wrong as mere possession of child pornography, but I don't think that it should generally come with criminal punishment (I do think that possession of child pornography is worthy of criminal sanction--but not life in prison for owning 20 images).

Re-Colonize This!

The Sudanese government has rejected calls to send in international troops, saying that it would effectively "re-colonise" the African nation.

The post-colonial scholars have always struck a chord with me, but one thing I can't get past is how, in the real world, their rhetoric is far more likely to appear in the defense of brutal oppression than in the liberation. I sincerely doubt that Omar al-Bashir is reading Spivak, but clearly he and his ilk have realized that this sort of language is remarkably effective at stalling liberal international groups' commitment to challenging their brutal regimes.

There is no way, of course, that sending in international troops to stop a genocide is a (re)colonization of anything. But it does no good for me to say that, because I'm from the US. So what I'd really like to hear is a response from the African Union--or even a consortium of African states--unambigiously proclaiming that such an intervention would not constitute colonization in any way, shape, or form.

The Israghani

I recently declared my support for Ghana after one of their players waved the Israeli flag upon scoring a goal. The player, John Paintsil, plays professionally in Israel and wanted to declare his support for the Israeli fans who had supported him throughout his career. Now, Ghana is apologizing for the gesture due to outrage among Arab states.

I should be clear. There are people who can justifiably, if they choose, be outraged by Paintsil's action. They are the people of Ghana. If an American player waved a foreign flag, one could certainly question the appropriateness of the move (and if the player was of Latino origin and waved a Latin American flag--God help us. I could hear Limbaugh explode from here). How one wishes to draw the line regarding national pride in a support where so many players compete in foreign leagues, like soccer, is difficult, and different nationalities might see the issue differently.

That said, anyone not from Ghana needs to back off (and nothing in the article indicates that it was an internal reaction from Ghana that provoked the apology). Ghana's soccer federation might be better off defending its stars from allegations that they are "ignorant and stupid," Mossad agents, and/or bribed by Israelis. They also might want to give Paintsil a forum to discuss whether or not he'd been taken to "football training camps set up by an Israeli coach who discovered the treasure of African talent, and abused the poverty of the continent's children with the ultimate goal of selling them off to European clubs....[S]tart[ing] every morning with a salute to the Israeli flag."

I am so sick of this. Israel is, far and away, the most unjustly abused nation-state in the world arena. Waving the Israeli flag expresses precisely no opinion as to the Israeli/Palestinian conflict. It does, I concede, express an opinion as to whether Israel is a legitimately existing country, and let's be clear: that's what this is about. Many people in the Arab world still fundamentally reject Israel's right to exist.

That Mr. Paintsil and his fellow teammates who play in Israel have had such warm feelings towards their host country was truly inspiring. I was hoping that it might open some eyes among people in regions of the world where there are no Jews and thus have far less opportunities to refute the constant stream of slander that Israelis (and often Jews too) are subjected to on a daily basis. Nobody can take away Mr. Paintsil's bold display, but I was hoping that his superiors would embrace it, not hide it as some embarrassing secret.

The Stanley Cup Winner is Hockey

I watched the Stanley Cup finals, game 7 tonight. My dad and I both agree, this (along with maybe the NCAA Basketball tournament) is the most intense sports event of the year. Certainly it's the most grueling. You hear announcers saying what type of injuries these guys play through (Doug Weight begged his trainer to let him play with a separated shoulder), and you just shake your head. These people work harder and play with more passion than you see in any other pro sport.

And this game was no exception--it was a masterful display by both teams that cemented a wonderful comeback season for the NHL. I was rooting for Edmonton, mostly because I want to see the Cup back in Canada after a long abscence. I feel like they deserve it--like they know its significance (especially a small-market team like Edmonton, which--with Calgary--is like the Green Bay Packers of hockey). Carolina fans certainly are enthusiastic, but do they really know the history of the game? My dad was afraid they'd take a cue from football and charge the rink (God, what a disaster that would be).

Still, congratulations to the Hurricanes, who certainly earned this Cup (knocking out my beloved Devils along the way). This was a spectacular season, and I hope the league continues to win over fans going into the next year (hint: watch Alexander Ovetchkin. I swear, he looks like a Brazilian soccer player out there when he touches the puck. Breathtaking).

Cleaning Up The Kitchen: Responsibility for the Non-Responsible

After reading Mark's rejoinder to my reply to his critique of how Blacks and Jews (among others) remember certain tragedies, I realized that it was futile to keep running around in this circle of critique/refute/critique like I've been doing so far. Not because Mark is a disingenuous writer, or because either of us are stupid, or anything like that. What I've realized is that there are a few core premises that need to be clarified, or else we will perpetually continue talking past each other and make no progress. So this post will only indirectly respond to Mark's, but I hope it will serve to illuminate some of the issues that we've been batting around for some time now.

To begin with, I'd like to offer up a premise, which I think is rather intuitive but which I am open to hearing a critique of:

Human beings have a moral obligation to try and remedy unjust systems of which they are the beneficiary

I'm have warrants to support why this is true, but for brevity's sake (Lord knows I have that problem) I'll hold off on providing them unless the obligation is challenged.

So, for example, if I'm a monarch, heir to a throne established long ago, I have a particular responsibility to try and democratize my country, because I'm a key beneficiary of the current autocratic rule. If I'm a White southerner in 1900, I have a particular obligation to resist Jim Crow because I reap benefits from the current state of injustice.

This is actually a weaker claim than I could be making: I could simply say that human beings have a moral obligation to try and remedy unjust systems whenever they can. And perhaps I believe that, but I don't need to go that far in order to make my argument here.

There is an important clarification to be made. Saying "you have a responsibility to resist racism" is not the same thing as saying "you were responsible for creating racism" or even "you are an active participant in maintaining racism." If I'm told: "you're responsible for cleaning up the kitchen," that statement is entirely agnostic to what degree, if any, I'm responsible for causing the kitchen to have become dirty. There are all sorts of reasons why I might be responsible for cleaning up the kitchen even though I did not make it dirty. For my purpose here, I'm forwarding the argument that you have an obligation to assist in "cleaning the kitchen" (dismantle racial hierarchy, for my pet issue) if one reaps benefits from the kitchen being dirty (if one reaps benefits from the preservation of a racial caste system).

I cannot stress how important this is. In his post, Mark uses the rhetoric of "guilt" and "innocence", and says that I am tagging all White people as "guilty" of perpetuating the slave system. I am not. No living White person today is responsible for creating the slave system. They are "guilty" of nothing. They should face no moral opprobrium for the sins of their parents. There should be no Dickinson-style beheadings. Mark's ancestors could not avoid the "crime" because they did not commit one. However, the crucial point is that my argument depends not a whit on ascribing guilt to White people. The link to an obligation stems out of benefits one accrues from the oppressive regime, regardless of whether one helped create it or not. The divorce of responsibility for causing and responsibility for ending is critical--without it the argument makes no sense. I think a lot of people mistakenly equate the two and oppose it for that reason. I could, to be sure, condemn a White person for failing to actively oppose racism. But I'd be condemning him for failing to fulfill a moral obligation, not because he's a slaveholders grandson.

In the previous post, I made the following syllogism of how Whites benefit from past wrongs against Blacks, even if they or their ancestors had no role in establishing the harms:

A) We still live in a de facto racial caste system. This is supported by the fact that nearly every social indicator--controlled for class--has White people at a tremendous advantage over Blacks in virtually every aspect of life. David Roediger (American Studies/U. Minnesota) has documented "the wages of whiteness" that even post-civil war white people glean from the racial divide.

B) This caste system is supported, in part, by the immense network of images, stereotypes, economic deprivations, and other wrongs that flowed out of the slave system and reinforced the social hierarchy of white over color. This I think is obvious: if there is, in fact, a racial caste system, I don't think it's controversial that slavery has helped build it.

Therefore...
C) All White people today--regardless of ancestry--gain some benefits that flow out from the slave system.

Mark doesn't really dispute the premise that Whites are at an advantage in American life (which he can't, because the data is so overwhelmingly in my favor). He offers up a half-hearted response that since I believe that Whites benefit from a diverse social sphere, I can't then turn around and say that they also benefit from preserving a racial caste system. But that's clearly untrue: If I get $50 by beating someone up and taking their money, or $100 by working with him to build a new business, I'm benefiting either way (although I incur an opportunity cost for my injustice). He also questions my link to how slavery and Jim Crow have influenced modern racial stereotypes--but it's fairly easy to trace the development of both the Black sambo and the Black brute images to the slave era (see, e.g., George Fredrickson, "White Images of Black Slaves: (Is What We See in Others Sometimes a Reflection of What We Find in Ourselves?)", in Critical White Studies: Looking Behind the Mirror, Richard Delgado & Jean Stefancic, eds. (Philadelphia: Temple UP, 1997): 38-45). His main attack is that I'm ascribing group guilt to people who had no role in creating the original harm, but that's what my original moral premise is designed to address.

This is not supposed to be the last word, but the beginning. I hope that I've established my burden in subsequent conversations: if I can show that Whites are benefiting from an illegitimate racial schema, then I've proven that they have an obligation to end it.

Postscript: I apologize to Mark for consistently spelling his name wrong--with a name like Schraub, I sympathize. I also found interesting the story behind it--that "Olsen" became "Olson" to avoid anti-Norwegian prejudice and to sound more Swedish. Ironically, this may prove my point about modern import of injustices. Past prejudice against Norwegians was of course a very bad thing. But today, I'm sure Mark would agree it's played little to no role in his life. In fact, I could not even tell you the difference between a Norwegian and a Swedish name (it's all Scandinavian to me). By contrast, having a Black-sounding name does continue to have a major effect on one's life chances--not for the good. Sometimes society manages to move past it's wrongs. But sometimes the wrong remains ongoing. It's important to distinguish the two.

When Tragedies Still Matter

Mark Olsen thinks certain groups--namely Jews and Blacks--remember their historical tragedies the wrong way. Specifically, he thinks that they falsely claim uniqueness, and that they take an overly hostile stance rather than using past tragedies for ethnic bonding. For example, for Jews, Olsen thinks that the proper model is Passover and Egyptian slavery, which is used for ethnic bonding and solidarity, rather than the Holocaust, with its confrontational "never again" slogan which denies reconciliation.

It's an interesting post, marred only by the fact that it's wildly wrong on nearly every account. Not only does Mark misstate how both Jews and Blacks view their historical tragedies, he glosses over important differences that make certain types of historical catastrophes different than others in a vain effort to say "every ethnic group has had problems."

I'm not going to do a point-by-point, because that would take to long, but a few quickie corrections:

1) Jews do not ignore the deaths of others in the Holocaust (I always write of the 11-12 million total death toll unless I'm specifically writing a post about anti-semitism)--although I'd sometimes like them to be a bit more forward about it. But at the same time, Jews are somewhat justified in focusing on their own plight, again because of its particularism: Unlike, say, Poles or Catholics, many of whom also died from slave labor, Jews were one of the only groups to be singled out specifically for extermination (as opposed to just being sent to slave labor camps).
2) "Nazis" aren't the guilty party, the German people are. Pope Benedict tried to pull this slight of hand, but the Holocaust could not have happened without the widespread consent and support of the populace. Every major Holocaust theorist supports this view. And I'd add that the vast majority of the world, by turning its back on the atrocities and by refusing to accept Jewish refugees, were in effect collaborators to the extermination.
3) The ratification of the 13th/14th/15th amendment matters much more than the end date of the civil war to Blacks. And it's an understatement to the extreme to call July 4th "not such an unalloyed declaration of Freedom" for Blacks. If I were Black, I'd consider "all men are created equal" to be an outright mockery at the time. And I'd hold off on popping the champagne corks on the reconstruction amendments until they actually start being enforced as they were originally intended, which won't happen until the Slaughterhouse Cases are overruled.

But to the main. I want to offer my own counter-standard about when its appropriate to "hold on" to a tragedy for more than just social solidarity, but to still demand reform on behalf of the aggrieved party.

With regards to slavery, Mark writes:

The first error which seems universal regarding such memories is that they are very selective. In our two examples, the American Black ascribes fault to the American/European whites for their bondage. And yes, the white men at the time where the slave holders, transporters, and local enablers. However, in the current drug trafficking trade, we hold the seller accountable at least if not moreso than they buyer. In the African slave triangle, it was African indigenous Black tribes preying on others that sold the Black man to the white. However, in my casual acquaintance with the American Black memories of their time in slavery, blame is never assigned to the African Blacks remaining in Africa. If this event is to be remembered, why is not that complicity of the African Black remembered? Or the sacrifice of the Union (mostly white) soldiers remembered just as well?

Geez, where to start? First, if Mark really cannot find a qualitative difference in a drug use buyer/seller dynamic, and slavery buyer/seller dynamic, then we might as well stop the conversation now. I'll just throw out a few important distinctions:

1) One does not get physically addicted to slaveholding (and while slavery was important to the Southern economy, anyone who tries to argue that they were "dependent" the same way a junkie is dependent on heroin is going to get smacked. Seriously).

2) There is no common consensus that drug users behaving immorally, given that there is no inherent direct harm to another. We view addicts as being stupid, sure, but not immoral. And the flip side is that we see sellers as predatory and thus immoral. This dynamic is non-sensical applied to the slave trade ("look at the poor plantation owner, being preyed upon by that lowly slave trader")

3) The power dynamic is inverted: dealers have it drugs, slave holders have it in the slave trade. Drugs are a seller-created market, slaves are a buyer-created market In fact, the whole antebellum slave economy was a product of White and European forces--African kingdoms knew the only way they stood a chance of resisting European imperialism was to get guns via the slave trade. That doesn't justify it, but it's simply ridiculous to assert that Black slave trade was something that operated independently of White imperialism and immorality.

Mark wants to universalize experiences so that each instance of oppression can be reduced to another, with the only difference being which ethnic group gets to form solidarity from which event. But history is particular, and each instance of tragedy plays out in different ways--it's wrong to try and group each one into some meta-category and treat them all the same. Each tragedy is unique and should be dealt with contextually, based on the particular contours of the event itself and its post hoc impacts.

What Mark seems upset about is that Blacks and Jews hold on to their tragedy for more than just a Passover style communal bonding experience. Jews have used "never again" as a rallying cry against anti-semitism, at least partially to justify the creation of Israel and to become one of the world's most consistent and vociferous advocates for genocide intervention (Mark is simply wrong to imply that Jews have not used "never again" in this manner--Jewish groups were among the earliest to call for Darfur a intervention and pushed hard for Rwanda too). Blacks want reparations for slavery and have used America's slave-holding past as part of their narrative of American racist history. So if Mark's project was to try and box all forms of tragedy-remembrance into a happy holiday of solidarity by way of reconciliation, my project is to articulate when its justified to break out of said box.

Several factors come into play in justifying this:

1) How recent was the tragedy? The Holocaust ended in 1945, Egyptian slavery ended in 3000 B.C.E.. That matters.

2) How egregious was the tragedy? Being called "paddy" when you move to America sucks. Being brought to America in chains, separated from your family, beaten bloody every day, and having your son sold to a known brute and your daughter raped by your master sucks more.

3) Has the power hierarchy changed? Has the majority group apologized? Does it no longer hold a meaningfully higher proportion of political power? Is it genuinely committed to rectifying the wrong both procedurally and substantively? American Blacks, I suspect, would be far more willing to put the legacy of slavery behind them if a) they got an official apology (which we refuse to do), b) racism stopped being a meaningful social force in American life, and c) there were not still rampant social inequalities that make a mockery of the 14th amendment.

4) Does the tragedy have modern import? Slavery still matters because White supremacists still use slavery as part of an overall narrative of Black inferiority. Jews still look at the Holocaust because you still see folks trying to marginalize us by saying things like "Hitler was right" (if someone said to me "the Egyptians were right!", by contrast, I'd look at him blankly).

Three and Four are particularly important for three reasons. First, they show how people living today, even if not direct descendents of direct oppressors, can still be implicated in past oppression. The syllogism for slavery runs as follows:

A) We still live in a de facto racial caste system. This is supported by the fact that nearly every social indicator--controlled for class--has White people at a tremendous advantage over Blacks in virtually every aspect of life. David Roediger (American Studies/U. Minnesota) has documented "the wages of whiteness" that even post-civil war white people glean from the racial divide.

B) This caste system is supported, in part, by the immense network of images, stereotypes, economic deprivations, and other wrongs that flowed out of the slave system and reinforced the social hierarchy of white over color. This I think is obvious: if there is, in fact, a racial caste system, I don't think it's controversial that slavery has helped build it.

Therefore...
C) All White people today--regardless of ancestry--gain some benefits that flow out from the slave system.

Second, it distinguishes these cases from the many other historical tragedies which have befallen many other ethnic groups. Yes, the Irish faced significant prejudice when they first came to America, but it has virtually no contemporary potency or impact on their life's chances.

Third, they provide better explanatory power for why this sort of radicalization occurs. I call this "broken promise syndrome." To be blunt, America has continually broken its promise to rectify its wrongs when it comes to Black people. 80 years after "all men are created equal," we still had slavery. The 14th Amendment was ratified in 1868, 60 years later Strauder v. West Virginia was probably the only major case where Blacks had their rights vindicated in court. Brown v. Board was sent down in 1954, today we still have a largely segregated school system. Slavery matters because its harms are ongoing--it is part of the narrative of American racism which continued through Jim Crow and continues to exist today. As Richard Delgado notes, a celebratory remembrance which emphasizes reconciliation is not only ridiculous idealistically, its foolish pragmatically, because it lets the White majority tell itself that "the problem has been solved" and give itself self-congratulatory pats on the back instead of dealing with the continued presence and effect of racism in society. Blacks shouldn't "get past" slavery until Whites do--that is, until Whites agree to dismantle the racial hierarchy that slavery helped nourish and support today.

Moreover, I think that this model is closer to how Blacks actually view their case. Take W.E.B. Du Bois. In his first major work, The Souls of Black Folks(1903), Du Bois was in many ways a model for what Mark wants out of Black leaders--he continually emphasized reconciliation with the south, and argued against the type of general attacks Mark dislikes. Du Bois wrote then that "The present generation of Southerners are not responsible for the past, and they should not be blindly hated or blamed for it," and "if the representatives of the best white Southern public opinion were the ruling and guiding powers in the South to-day the conditions indicated would be fairly well fulfilled." Seventeen years later, Du Bois wrote Darkwater, and this conciliatory tone was gone from his voice--calling the atrocities committed during African colonization "the real soul of White culture." As Du Bois life progressed, he grew ever more radical until one of the greatest advocates for democratic pluralism the world has ever seen joined the Communist party and exiled himself to Ghana for the last few years of his life. Du Bois had the faith in White people that Mark wishes to see, he was willing to put slavery and southern atrocities behind him, and found that hope dashed by the cruel reality and persistence of white racism. We'd expect the reverse pattern if, as Mark puts it (in different words), this view of the past was a pathology with little relation to current realities: Black leaders would grow more optimistic about the state of America as they see that their lives are not being constrained by these structures of prejudice. But instead, the classic pattern is one of disenchantment: they start off believing the hype that America is willing to get past racism, and they slowly lose faith as they discover that the story does not match the reality. Mark needs to come up with an alternate explanation of this disenchantment phenomena.

Ultimately, the question is is the tragedy still relevant? For Jews, we won't forget the Holocaust until the underlying harm is gone: that people wish to wipe the Jewish people off the face of the earth (notably, few anti-semites advocate Jewish enslavement, which makes it easier to forget about Egypt). Blacks will not and should not get past slavery until the underlying problem is eliminated--the underlying problem being White racism. Until then, I applaud their advocacy for change, and I stand in solidarity with their call.

Part of the 38%

Bush gets applause from a radical Muslim cleric for his homophobic stances.

Qaradawi said that gays deserved "the same punishment as any sexual pervert - the same as the fornicator. The schools of thought disagree about the punishment. Some say they should be punished like fornicators... Some say we should throw them from a high place, like God did with the people of Sodom. Some say we should burn them, and so on. There is disagreement."

The leading Muslim scholar also claimed that former Democratic contender for the US presidency, John Kerry, was "supported by homosexuals and nudists."

"But it was Bush who won (the elections), because he is Christian, right-wing, tenacious, and unyielding. In other words, the religious overcame the perverted. So we cannot blame all Americans and Westerners," Qaradawi added.

See, we are making inroads with the Muslim world after all.

Evolving The 4th Amendment

The Supreme Court just issued a 5-4 decision (along the normal lines) in Hudson v. Michigan. The opinion looks to dramatically restrict the potency of the exclusionary rule, which has served as a check against police excesses since the 1960s. What the exclusionary rule says is that any evidence obtained via illegal police action is inadmissable in court. This case refused to apply the exclusionary rule in a case where the police did not (as legally required), knock to announce themselves before carrying out a search.

I haven't read the opinions, so I'm in no position to comment. But there is a fair amount of blogger chatter about the structural aspects of the case. Orin Kerr, for example, notes how Justice Scalia, normally so quick to extoll the virtues of originalism, rested his argument here on how new social circumstances have changed the meaning of the 4th amendment from prior understandings. Specifically, he noted the rise of both attorneys willing to file complaints against illegal police action, and the increased "professionalism" of the police force which now can be expected to discipline internal infractions, as reasons why civil remedies are sufficient deterrence for police misconduct.

(Quick digression: Is it just me, or is that justification essentially eliminating the rule because it has been effective? I'd say that the zero-tolerance approach embodied by the exclusionary rule has a lot to do with the change in environment which makes both outsiders and insiders more vigilent in policing the police. There is no reason to think that their behavior will not lapse if this tool is taken out of the tool box)

Anyway, whatever merits this argument might have from a public policy perspective, it is quite far from originalism. As Justin Gardner points out, this case was effectively dismissive of the past regime of police abuses--a sterling example of what the boys and girls at Southern Appeal would applaud as "Stare Decisis is fo' suckas" opinion-making. I concur with Kevin Drum: it is cases like this which make me decline to take originalism seriously as a judicial doctrine. And this isn't an outlier for Scalia: his opinions have come under serious originalist fire in both Affirmative Action and Free Exercise cases.

In any event, the point is that Scalia really has to come up with some compelling explanation why recent evolutions alternatively start and stop mattering from case to case.

Now I'm Two!

This blog turns two years old today! I can't decide whether the time has flown by or crawled. Of course, two years old is quite a run in the blog world--I consider myself quite the veteran. I would link to my first week of posts, but I'm embarrassed--I don't think they were very good. You can check them out in my archives if you truly desire.

I need to thank Belle Lettre, for posting a happy blog-birthday message on her blog before I did. Also, of course, my indulgent host, Joe Gandleman at The Moderate Voice, and all my lovely co-bloggers there. All of the bloggers on my blogroll deserve mention--I don't believe in link-trading, so anyone who is there is someone I geniunely have gotten something out of--but especially my readers from the opposing side of the aisle who keep me honest and (on the flip side) give me potential converts.

As with all bloggers, I have my moments where I am "up" on blogging and moments where I'm "down" on blogging, and right now I'm recovering from a downswing. It's sometimes a lot of pressure to have something up and ready each and every day (this is why I'll never do journalism), and I always feel guilty when I think I'm not producing enough. But the opportunities I've found through blogging and the people I've met (or, more accurately, "met") have always made it worth it. I'm looking forward to many more posts, and I hope that you will continue to patronize this fine institution of commentary now and in the future.

Expert Sleuthing

Headline from CNN: UN Hears of Mass Darfur Killings.

Excellent work, investigators. Maybe now they'll do something about it.

Post-Work Roundup

My first day of work was today. The law firm I'm interning at has a very large practice in Civil Rights and Anti-discrimination law. But they put me in securities. Securities! And I could just taste the Wal-Mart case too.

Anyway, I came home really drained for no good reason. So no post (maybe later tonight), just a roundup of other stuff.

A great look by the New York Times on how legalizing gay marriages would impact religious liberty (Heads up: The VC). I argued here and the article concedes that the prospect of judges forcing churches to perform gay marriages is minimal at best. But there is real potential for clash in terms of how churches with traditional opposition to homosexuality are treated via the new anti-discrimination regime.

Spencer Overton shows a perfect example of politicians picking their voters (and here I thought it was supposed to be the other way around?). The culprit is Florida.

A pair of good posts by Will Baude at Crescat Sententia. The first inquires into the relationship between stare decisis and cert decisions, within the specific context of a case called Almendarez-Torres, which apparently a majority of justices now believe is wrong. Justice Thomas wishes to go the traditional route and simply overrule it. But Justice Stevens argues that state courts can effectively nullify Supreme Court rulings which give too little protection to rights. I don't find Baude's 10th amendment attack on this principle convincing, but I admit the argument troubling (although to be fair, it is uncontroversial that state courts can interpret their state constitutions to give heightened protection over the federal constitution, even where they use similar or identical language. So this is kind of a pedantic debate, it seems).

The second post features a good response to the obnoxious fact that the 1st amendment states "Congress shall make no law" abridging all of its prohibitions. Theoretically, that means that the President can, right? But as Baude (quoting the ever-incredible Michael W. McConnell) notes, there are other amendments which protect "liberties" from being abridged without "due process of law." Only Congress can pass laws, and it can't pass a law that abridges (say) free speech. So if the executive decides to violate one's free speech rights, ipso facto they are exceeding their legally delegated powers (unless it acts within a few parameters narrowly defined [or if your the Bush administration, infinitely broadly defined] by Article II).

Michelle Adams gives an intriguing account of CRT-father Derrick Bell's student-centric teaching pedagogy, and follows up with her own defense of the Socratic method.

With Tester and Webb both winning their senate primaries, the netroots is starting to get some momentum (at least in Democratic primaries).

Tony Karon makes the case to root for Angola in this year's World Cup. I was already rooting for them to beat their former colonial overlord, Portugal (but they lost 1-0). Fellow cup fan Bitch Ph.D also comments and gets the pointer credit.

Rachel Sullivan makes an important point about the Duke Rape case. It seems like they're getting crushed in the court of public opinion recently, and I'd begun wondering about how strong the case really was. But Rachel reminds us that virtually all the new info has been leaked by the defense, which (of course) is leaking selectively. So it's too soon to jump to conclusions without the prosecution getting to state its case.

A solid post by J. David Velleman on the Guantanamo Bay suicides, from a moral (Kantian) perspective.

Legal Legitimacy and Abortion Politics

I didn't get a chance to blog on this before I left, but I want to now plug this post by Leon H. Wolf on how law gains legitimacy in the public eye, and what the implications of having it (or not having it) are. Wolf specifically examines the question of abortion.

One of the crucial problems with the abortion debate is that both sides consider themselves to be fighting for sacred principles. Pro-lifers think that abortion is murder (in which case allowing it is tantamount to consent to murder). Pro-choicers think that being able to have an abortion is crucial to women being full members of the social community--without it they are second-class citizens, slaves to their ovaries. I've always thought that the normative case for overruling Roe v. Wade and then "letting the states decide" made little normative sense: the only way abortion is not clearly a woman's right is if it's murder, and I think a few constitutional clauses would pose a barrier to a state deciding to simply legalize the slaughter of innocents.

But Wolf articulates a pragmatic reason for sending abortion back to the states:

Whatever one might say about the process which gave us the rules encapsulated in decisions like Loving or Lawrence, it can hardly be doubted that the American public, almost as a unified whole, accepts the principles contained therein as legitimate. In the thirty-three years since Roe, no such mellowing has occurred - no legitimacy has been obtained - the debate is as rancorous as it ever was, and more so. Ugliness lies on the horizon.
[...]

[quoting Paul H. Robinson and John M. Darley] [A] number of studies... suggest that the level of commitment to obey the law is proportional to what Tyler calls the law's perceived "legitimacy," by which he means a community's perceptions that, first, the law instantiates their moral beliefs, and, second, that the law came into being via fair procedures conducted by the appropriate authorities. [end quote]

[...]
Presently, this feeling is lacking on the part of pro-lifers - who don't feel yet that this is an issue they have lost by legitimate means. The legacy of the current abortion law has been bequeathed not by democratic processes, but rather by fiat from a majority vote on a panel of 9 individuals far removed from democratic accountability. Adding to the furor, over the past decade and a half, 7 of those individuals (at any given time) were appointed by Presidents who professed similar beliefs on the abortion issue.

Wolf argues that if pro-choicers managed to get democratic ratification for their views, it would finally take the wind out of the sails of the pro-life movement. I'm still not swayed of the pragmatic attack on Roe generally. Specifically responding Wolf's points, I'd argue that on this particular issue democratic procedures can't or won't provide the legitimacy he wants because both sides think of themselves as representing groups marginalized in the democratic polity (pro-lifers representing unborn children who cannot vote, pro-choicers representing women [especially low-income women] who face rampant sexism and misogyny in America). Jim Crow, too, was enacted in an era of formal constitutional equality between the races. Democratic legitimacy is a boon when a group that is on the losing side of a dilemma still accepts that the procedures are neutral and they had their fair shot. When groups do not from the baseline trust that the polity will fairly consider their interests (a feeling which is, of course, ratified when they lose--which one side has to), then democracy will not confer legitimacy.

But the general claim about legitimacy being conferred from the perception of fair (often democratic) procedures is a solid one, and one that pops up again in issues such as the Iraqi elections and the immigration debates. I'd note with regards to immigration that the immigrants themselves have no reason to think that their interests are being duly considered when congress adopts immigration laws, so there will always be a significant gap between the black letter law and the respect that it is given by its target class. I'd also note that this does not translate effectively to disregard for other laws--as John Hart Ely notes, laws are looked upon with particular suspicion by a insular minority when they specifically target that group. So immigrants will be suspicious of immigration laws, but not, say, murder laws. That helps explain why immigrants have lower rates of violent crime than your average third generation American. The myth that allowing illegal immigration breeds disrespect for the law has its premise wrong: illegal immigrants will disrespect laws it feels are illegitimate--but that's the same as any other group and certainly does not include every law. The way to stem crime in the illegal community is to make it so that they do not fear the authorities, who can deport them. In other words, make them legal.