Dual Meaning

Here's an interesting insight on the mindsets of liberal vs. conservative commentators. The Iraqi's launched an attack, a real one, not long range mortars or a suicide bombing, on a US military outpost near Mosul. Unsurprisingly, the got slaughtered as soon as US forces could call in air support. What does this attack tell us about the insurgency?

Iraq'd says they're getting cocky. Powerline says they're getting desperate. Which is it? You got me, but viva la difference!

And Happy New Year! Blogging will be sporadic as I settle back into college. Hopefully I'll be back in full force by the 3rd or 4th.

Pollution, Environment, and the Marketplace

Earlier, I wrote a long post on the limits of the market system, inspired by a post by Michigan Law Professor Don Herzog. It received to very insightful comments by my friend John Hall (he's "anonymous"), as well as my longtime reader Randomscrub. A new post on the subject by Prof. Herzog allows me to address their criticisms and bring up some new points.

Startign with Herzog's new addition to the discussion:

A line from Blackstone's Commentaries -- "There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property ; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe" -- is sometimes cited as a prize nugget of classical liberal insight on property rights. But Blackstone invokes it only to launch a long and complicated history of how this intuition properly gives way to wide-ranging historical developments.

These historical points don't settle what we should do; I introduce them only to continue my nefarious project of showing the deep continuities between us left-liberals and our classical-liberal ancestors. If you're a libertarian, you're free to argue that the line in Blackstone is (more or less) right as it stands. And then we have the usual fun dilemmas: should I be permitted to buy a donut ring of property surrounding yours and then refuse to allow you to leave your lot, on the grounds that it would be trespass? Less whimsically, absolutism about property has always yielded in the face of pollution. In Anarchy, State, and Utopia, Nozick has a brief discussion oddly set off in italics. A subordinate clause -- "Since it would exclude too much to forbid all polluting activities" -- gives away the game. On the absolutist view, if a single propertyholder refuses to consent to having pollutants enter her property, that should be enough to shut down industry and other polluting activities.

This provides an adequate answer to John's point on the environment; simply put, he proves too much. If any property holder can sue (on the basis of a violation of property rights) to enjoin pollution that enters his land, then one property holder could permanantly stop all pollution. Perhaps Greenpeace will be happy, but I sincerely doubt it's what John has in mind in his free market system. Taken in the other direction, the tort model proves too little. An article by Murray Rothbard (ironically given to me originally by John) shows the difficulties of prosecuting any polluting activities if we apply the standard tort model. Rothbard lays out the standards for torts in a libertarian world:

To establish guilt and liability, strict causality of aggression leading to harm must meet the rigid test of proof beyond a reasonable doubt. Hunch, conjecture, plausibility, even mere probability are not enough. In recent years, statistical correlation has been commonly used, but it cannot establish causation, certainly not for a rigorous legal proof of guilt or harm. Thus, if lung cancer rates are higher among cigarette smokers than noncigarette smokers, this does not in itself establish proof of causation. The very fact that many smokers never get lung cancer and that many lung cancer sufferers have never smoked indicates that there are other complex variables at work. So that while the correlation is suggestive, it hardly suffices to establish medical or scientific proof; a fortiori it can still less establish any sort of legal guilt (if, for example, a wife who developed lung cancer should sue a husband for smoking and therefore injuring her lungs)
Murray Rothbard, "Law, Property Rights, and Air Pollution." Cato Journal 2 No. 1, Spring 1982. pp. 55-99

As Rothbard later recognizes, any claim of a harm (or as he prefers, an "aggression") based on pollution is almost inherently speculative, and would not survive this strict standard. Rothbard later talks of how property owners can homestead certain levels of pollution; the amount of pollution they give off is their "right" up until a new property owner is affected. At the point, the first property owner can still give off that level of pollution, but cannot raise it without violating the new owner's rights. This too, falters under analysis. Property has been "owned" (in the libertarian, homesteaded sense) since time immemorial, so presumably everybody has a homesteaded right to zero pollution. Even if one decides that modern society has so jumbled and infringed on property rights such as to make all prior property contracts meaningless, we're still left in a situation where we are locked into current levels of pollution, all it takes is one owner to protest against an increased industrial production on the grounds that it violates his property rights to stop it. In the end, either model is equally bad: Either we cannot ban any pollution (because we can't prove a harm beyond speculation) or we can ban all pollution (because it violates property rights).

Randomscrub points out that my argument assumes that the market is amoral, when in fact it is made of people who can choose to make moral choices. This is true, and it is certainly true that the Milbrath quote I cited only reveals that markets have a tendancy to aid the rich. However, there are several problems with the implications his claim.

First of all, there is only a small subset of the population who possesses the means to make the "moral" choice of funding a water treatement plant into a reality. I'd love to create a water treatment facility in South Asia, but I can't because I don't have the funds. The people who possess the funds probably got them from somewhere, and the way one makes enough money to fund major projects is by seizing upon the most profitable options and running them. As already noted, these options cater to the rich at the expense of the poor. So the very type of person who possesses capital is also relatively unlikely to be one inclined to undertake charitable projects.

Second, much capital in the modern world isn't controlled by individuals as such, it's controlled by corporations. Whereas individuals are free to do whatever they like with their money, corporations are bound by a variety of laws, contracts, and agreements to act in the best interests of their stockholders; this means they are obligated to seek out the most profitable, not the most moral, course of action. History shows that corporations, even those governed by people whom are quite generous in private life, tend to act in an impersonal manner, often flagrantly violating the rights of persons up until the outcry is loud enough to drown them out. Since this outcry only works to stop a fraction of the times where the company is proactively violating rights, it seems facile to suggest it would be strong enough to push the company to proactively improve the wellbeing of persons upon whom they have no legal obligation.

Third, I'd say my position is empirically true. The fact that I can pick up the newspaper and still read about appalling water conditions around the world is prima facia evidence that the "moral market" isn't solving the problem. True, some of the obstacles are put in place by and are the fault of corrupt local governments. But I don't believe that removing the governmental regulations would solve the problem. Again, this has been empirically verified. Chris Jochnick, Legal Director at the Center for Economic and Social Rights provides the example of Ecaudor. There, the state had given the Texaco Oil virtually free reign in the country's outland regions. The company responded by engaging in massive environmental degredation at the expense of the nation’s Amazon community. Affected citizens were told that there was no redress available from the company because Texaco was a private corporation and thus not party to relevant treaty law, they would have to go to the state for aid. However, since Texaco’s revenues were 4x the entire GNP of country, and in any event the company was actively backed by the US government, few believed that the nation could stop the environmental destruction even if it were so inclined.["Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights." Human Rights Quarterly 21.1 (1999) 56-79].

Here, the state pretty much let a large company alone, free from oppressive regulations or legal restrictions. And following my model, Texaco didn't engage in win-win propositions with the local community, or seek to create mutually beneficial business activities. Instead, it systematically raped and plundered the region, at great profit to the corporate overlords and shareholders who lived thousands of miles away and did not have to face the consequences of their actions firsthand. Empirically, then, something more than a free hand has to happen before a company will engage in moral actions in the global periphary, especially in regions where governments are weak and easily coerced by powerful Multinationals backed by US power.

Incidentally, the above event also shows the limitations of claiming that "protection of property rights" would solve. Who exactly would be doing the protection? As noted, the violator (Texaco) was bigger and more powerful than the nominal enforcer (Ecaudor). With the policeman effectively taken off the beat, the structures which defend property rights from aggression effectively collapsed.

I still think the overarching point is valid: markets can't solve everything, and they are particularly bad at solving environmental problems. Once we accept that the governmetn can create certain "baselines" to make the market work, or at least work morally, then we can recast our discourse so that the market works for everyone, not just the elite few. This is the role of governments in the new, globalized world.

Rossi Wants a Revote

In the great state of Washington, losing Republican gubernatorial candidate Dino Rossi now wants the state to just call off the whole election and vote again. For those of you who don't know, Rossi was ahead in the original tally of votes and the first recount. However, a second, manual recount put Democrat Christine Gregorie ahead, and it now looks like she will be certified the winner.

I'm going to try and put aside the rank hypocrisy on the Republican's part here (Kevin Drum is having more trouble), and address the proposal on its merits. I'm honestly undecided as to whether this is a good idea, but I lean that it isn't. For me, the paramount issue is whether or not the will of the people, as expressed in the election, is met. That's why I support recounts, including any additional ones that Rossi would like to have done. I'm also skeptical of the Washington Supreme Court decision that ruled canvassing boards could not look at ballots that were disqualified due to "voter error." I supported looking to voter intent whenever possible in Florida 2000, and I'll support it here. However, contrary to GOP claims of a double standard, I do understand the distinction between those ballots disqualified due to voter error and those disqualified due to administrative error (such as the now famous ballots in King Country which were eventually allowed). The latter ballots have a far better claim of validity than do the former. But that notwithstanding, I do think that there should be a goodfaith effort on the part of the entire state to determine who the voters intended to vote for.

That being said, a revote is an entirely different can of worms. For better or for worse, we have elections on certain days so that all of our candidates are evaluated based on the same series of events. A revote would have absolutely unpredictable effects on voter turnout, it might spike (due to partisans thinking their candidate was "robbed"), or it might plummet (with many less-attuned voters unaware that a second election is being held, or just not caring enough to vote any more). In the absence of clear evidence of fraud, which I haven't seen yet, I don't think we should upon this Pandora's box.

Back in Action

I'm back from Aspen, but I'll be leaving for college on the 2nd! The ski vacation was great, although it was marred by the tragic events in Asia. If you can spare anything, please send help.

Anyway, I'm re-entering the blogosphere with commentary on Kevin Drum's post on the partisan nature of the blogosphere. He writes:

There's a point to be made here about the "independent" blogosphere, too. Namely that it's anything but. In fact, the political blogosphere is far more partisan than any organ of the mainstream media, more partisan than most op-ed pages, and most of the time more partisan than even the overtly political magazines. The blogosphere is about the most partisan and least independent voice this side of talk radio.

Drum says he can't see anything wrong with that (though he may have been sarcastic). I see something VERY wrong with it. The blogosphere's potential for positive contribution to American political discourse doesn't lie in the amplification of shrill partisan hackery. It lies in its potential to bring together an enormous amount of expertise, analysis, opinion, and argument together in an easily accessible and quickly disseminatable form. The mainstream media certainly has its problems, but at least it never became an echo chamber for the RNC and DNC's talking points of the day. The best blogs are those that argue the idea, not the man, and are willing to stand up to their standardbearers when their nominal allies drop the ball.

I almost never read Daily Kos or Eschaton because I know they will never take a Conservative position on anything, regardless of merits. I avoid Hugh Hewitt and even Instapundit for the same (politically reversed) reasons. If you're only posting to pump up your chosen party, then you have no space in my blogworld.

Aspen

Going on vacation to Aspen. Back on the 29th.

Happy Holidays!

Market Limitations

WARNING: Long post ahead. Read at your own peril!

This post, by University of Michigan Law Professor Don Herzog, at the Left2right blog got me thinking about good arguments about the limits of the free market. Contrary to what far-right ideologues like to say, there are plenty of goods in our society which cannot be justly distributed by market forces. Let's start with Herzog's thoughts:

Now there's a huge literature debating when or whether markets fail -- will they provide public goods? and because of network effects and the like, will they create monopolies not disciplined by the threat of entry? And then there are questions about whether the state can improve on even failed markets. Leave that stuff aside. The real question, I think, is: what are the proper boundaries to the market? What do we want to buy and sell, and what do we want to allocate in other ways?

Once we bought and sold people. Slavery is one way to have a market in labor, and we rejected it. Now employers can purchase your labor, but not you. Richard Posner has proposed buying and selling babies, or "parental rights," to get rid of those noxious queues at adoption agencies: most of us flinch, even though he's got to be basically right about the queues. The state assigns each adult citizen the nontransferable right to cast one vote. We could have a market in votes: the state could assign initial property rights by mailing you a coupon that says, "bearer has the right to cast one vote." You could "consume" your property by casting the vote yourself; you could donate the coupon to the political charity of your choice; you could sell it to Ross Perot. But we reject any such market, and we don't budge when an economist observes that prohibiting free transfer generates deadweight loss. Citizenship itself isn't for sale. The usual way to get it is by being born here, which has nothing to do with merit or accomplishment or hard work or consumer demand. Fans of the Boston Red Sox had to wait for their team to win the right games at the right times to win the World Series; they couldn't pool together and raise enough money to buy the title from the Yankees.

The list of nonmarket goods is awfully long and wonderfully diverse. A liberal society isn't just a free market underwritten by a night-watchman state. It has lots of different institutions -- churches, universities, clubs, you name it. Market fundamentalists, as I'll cheerfully dub them, want to envision all of society in the market's image. There are other kinds of fundamentalists out there. A certain kind of participatory democrat wants all of society to be run democratically: she'll demand, why don't workers get to make decisions at firms? And why should the Roman Catholic Church be so hierarchical? Christians have occasionally suggested that all of society should run on an ethic of brotherly love. And so on.

We should reject all these fundamentalisms, and instead respect the idea of boundaries between different social settings. (That's not the same as maintaining whatever the current boundaries are. When the state ditches slavery or makes sexual harassment actionable, it redraws the boundaries of the market.) And we should reject the view that whatever the state does is coercive, and whatever society or the market does is voluntary. The state can write rules that expand our options, and no, not by grabbing and redistributing things that others are entitled to. The legal rules for writing a will let you do something magical and bestow your property after you're dead. And social relations can be coercive...
...
Notice the right-wing complaint that crazed political correctness is silencing people on campuses and elsewhere, even costing them their jobs. True or false, it sure does depend on the view that you can find coercion outside the state. Your action isn't voluntary if you had no reasonable alternatives, and it doesn't take a law to deprive you of such alternatives. Once we wrest free of market fundamentalism, we can see problems with state action and possibilities for it that have nothing to do with market failure, economic inefficiency, regulatory capture, and the like. And we can see a host of political problems -- controversies over the legitimacy of authority in farflung social domains -- that have nothing to do with the state.

A specific area in which markets fail is on environmentalism and distributional justice. Lester Milbrath, Professor Emeritus of Political Science and Sociology at SUNY-Buffalo, LEARNING TO THINK ENVIRONMENTALLY, 1996, p. 87-88.

Markets work quite effectively to allocate resources, but they can’t look ahead to foresee such possibilities as overshoot and dieback, or global warming and climate change. A society that wants to become sustainable must foresee possible scarcities and system disturbances and then use its political system to limit throughput at sustainable levels. Markets also can’t distinguish what’s morally correct from what’s morally reprehensible. They’ll respond to the demands for luxury goods by the rich while ignoring the needs of the poor for bare subsistence. For example, land in the tropics that used to grow food for the poor may be diverted to grow flowers for rich Americans who want flowers in the winter. The free movement of capital and goods in a capitalistic world market has another harmful effect—that of encouraging the location of production facilities in countries with the lowest wages and the lowest levels of environmental protection. Markets encourage, even require, firms to externalize their pollution costs in order to be competitive. The costs then have to borne by the public and the ecosystem.

Markets don't fill every niche, they fill the most profitable niches. These niches (growing flowers for the rich instead of food for the poor) aren't necessarily in line with our moral obligations to humanity. At the same time, the reason market regulation still works (from an economic standpoint) is that "pro-poor" economic activity still can be done profitably, just less so. John Dernbach, Prof. of Law at Widener University, "Symposium On Bjorn Lomborg's The Skeptical Environmentalist: Sustainable Versus Unsustainable Propositions." CASE WESTERN RESERVE UNIVERSITY. (Winter 2002). 53 Case W. Res. 449

...access to drinking water is not just about the environment; improving access to drinking water in developing countries would reduce the incidence of waterrelated disease and death as well as increase economic productivity. [n121] That's why the nations of the world agreed in Johannesburg to "halve, by the year 2015, the proportion of people who are unable to reach or to afford safe drinking water" and sanitation. [n122] The point of such measures is to improve environmental quality, social wellbeing, and economic growth at the same time.

Let's take a hypothetical example. Let's say one could allocate resources to Dernbach's water purification project, which would give us a profit of $1000 (I'm drawing these numbers out of thin air). Or, we could spend it on generic "other" economic activity that is relatively exploitative (say, a mining operation) at a profit of $4000. The point is that in a free market, "other" will win out every time. But if we regulated the market to FORCE someone to do a water purification project, the world wouldn't collapse. Indeed, the businessman would still make a decent profit. That's the warrant for limited, intelligent governmental regulation of the market.

Rightwing economists might respond that eventually one will saturate the market for "other," and then the $1000 in untapped profit one could get from the water project would look good. Unfortunately, I'm not convinced we'll ever hit the crossover point. There are limited resources in the world, for one, so not every project can be tackled, even worthwhile ones. More importantly though, is that economic growth creates its own demand for more products. It isn't as if people hit some level of consumption and stop there in contentment, freeing up other resources to bring the bottom up. Rather, the dynamics of the wealthy lie in conspicuous consumption: they want to consume even more than they need, and they want to show it off. Thus, they'll continue to demand even more, new products, and they have the resources to attract the new production. This perpetuates a cycle: the market feeds the rich, who get richer and create a demand for even more goods. The market never switches its resources to aid the poor, even in profitable manners, because it can always make more money supplying the rich.

The environmental issue is particular important to this debate, because a free market, if left alone, is INHERENTLY destructive to the environment. Barbara Adam Professor of Social Science at Cardiff university. "Time and Environmental Change" ESRC Global Environmental Change Programme. accessible here

"Environmental pollution, contamination, and degradation are inescapably linked to industrial societies’ approach to time, where time is linked to money, speed to efficiency, and the 24-hour society to progress. Industrial time conflicts with the times of the natural environment: it clashes with cycles of life and death, growth and decay, with seasons and rhythms, the variable intensity of change, sustainabilty, and cycles of re-generation." The impact of these temporal perceptions is inescapable degradation of the environment. Adam continues "Industrial societies' economic...time-space is out of synchronisation with the system-specific timescales of socio-environmental change: resources that took millions of years to develop are degraded and/or depleted within a few hundred years: locally-caused hazards have consequences that extend across the entire earth."

Insofar as more production is always better (or at least, the constraint on demand is utterly unrelated to the constraints imposed by sustainable environmental practices), it is unreasonable to expect corporations operating in a free market system to act in environmentally responsible manner. This is the classic "tragedy of the commons," somewhat adapted. Since it is in every corporations to produce a little bit more, they all will, because the get all of the profit from doing so and bear only a portion of the eventual cost (environmental collapse). Furthermore, they'll bear the cost just the same whether or not they partake in the additional production, so they are literally forced to act destructively, even if they are aware of the consequences and even if they are aware that it would be more beneficial to all, in the long term, to scale back production. Governmental regulation that acts to mitigate THIS problem actually increases the net economic gain, since it knocks out the "common costs" for which a free market cannot account for.

Those are the basics on why a free market can't solve everything. The moral compulsions of a just society demand that we take some steps to curb the excesses of the market in order to bring about a fair chance for all (not to mention stopping environmental collapse). Thoughts and comments are welcome.

Truly Pro-Life

UPDATE: 12/23 @ 9:21 PM
Yale Law Professor Jack Balkin writes on what being a pro-life Democrat really should entail. (Yes, I'm aware that I've quoted Balkin three times (counting an update) in two days. And while I'm at it, I'm going to plug "What Brown v. Board of Education Should Have Said," his book, because it rocked out. Whatcha gonna do about it?)

Balkin writes:

If, despite this, one feels it important to restrict abortion because of the overwhelming interest in potential human life, one must attempt to remedy the problem of sex inequality in another way. Pro-life Democrats can work to lessen the stigma of surrendering a child for adoption, but that stigma is unlikely to fade soon no matter how earnest the effort. Far more important is support for social programs that help working women with the burdens of child care and with the costs of raising children, including nutrition programs, educational programs, subsidized health insurance for mother and child, and subsidized child care. A child's life does not stop after it leaves the womb; and if one really wants to be a "pro-life" Democrat, one should be pounding the table for protecting born children as well as unborn ones, as well as protecting the equality and equal opportunity of the women who gave birth to them.

As an abortion swing voter whose been trending pro-life, I agree entirely. I also don't think these principles can be restricted solely to Democrats. The Republican party has no claim on the label "pro-life" unless it actually takes an interest in the lives of children once they are born. I am reminded of the definition of "pro-life" from Chaz Bufe's indispensable "The American Heretic's Dictionary" (a take off of Ambrose Bierce's classic "The Devil's Dictionary"):

PRO-LIFE, adj...2) Vitally concerned with the wellbeing of "babies" right up to the moment of their birth—at which time they become "welfare cases" and "future criminals" undeserving of such luxuries as housing, health care, adequate nutrition, and a decent education.

Regardless of your views on when a life begins, allowing children to die by stray bullets in ghetto hi-rises is as criminal as letting them die via a medical procedure. The GOP would have far more credibilty if it was pro-EVERYBODY'S life, rather than picking and choosing what lives are valuable enough for the government to step into defend.

One more thing: The easy response to make to the above would be that the government would treat abortion/murder and gunshot/murder the same way: by prosecuting those who commit the crime. This would imply that Republicans are being hypocritical at all. But this logic strikes me as entirely too simplistic. If the government acts with reckless negligence in allowing the seeds of crime to grow (in abysmally poor neighborhoods with little policing and no economic hope) then it is abdicating its responsibilty to keep us safe. The government's responsibilty isn't just to enforce the law, it is also to create the conditions where the law is obeyed. Although the government can only to so much, to borrow from international human rights law, the government is under the obligation to create an "enabling environment" within which life can protected. The advantages to doing so are twofold: First, it will reduce crime by eliminating (or at least reducing) the root causes which force people into illicit activity. The second is that it makes it more likely that the criminals we put in jail are actually "the bad guys." We all agree that there is a different level of moral culpability between a man who steals a bigscreen TV from a house just because, and a women who steals food from the grocer to feed her family. The "enabling environment" paradigm, which would reduce the latter type of theft, would also allow us to--justifiably--spike sentences against those who commit the former type. This would "purify" our criminal justice system and reduce the amount of good-hearted people who get trapped inside a circuit of crime. Bill Clinton once said "If you work hard, and play the rules, no one should have to be poor." I'd expand that to say "If you're willing to work hard and play by the rules, no one should have to resort to crime." That isn't the world we live in now, but with work its the world we can live in one day.

UPDATE: This LA Times article, helpfully linked to by Mathhew Yglesias, shows why it's unreasonable to expect poor folks (especially poor youth) to "just say no" to a life of crime. Yglesias' excerpt is telling:

Years ago I asked gang members what happened to kids who "just said no" to the Bloods or V-18s. They brought me a videotape other gang members had made for a 14-year-old boy who had refused to join them. The tape showed gang members raping his 13-year-old sister. The boy joined the gang so that its members wouldn't return to kill her.

Another great book that both deals with this issue and offers hope is "No Free Lunch" by Rodney Carroll. This is an issue that can no longer be overlooked, if we are to call ourselves a humane and just society. Solving the cycle of poverty, gangs, and violence that plagues urban America strikes me as the most pro-life action a legislator could take.

Where's the Call?

The Legal Fiction blog has a superb post on why Conservatives should be outraged over torture (link: Volokh). It's a superb post, I highly recommend it. My favorite quote:

Again, regardless of what I think of certain neocons, there are some good faith neoconservatives out there. Assuming that this is your view, I don’t see how you could be anything but enraged at the administration for this debacle. That’s because the torture scandal strikes at the very heart of your entire vision of foreign policy. To be grossly general, the neocons believe that the current international system is too restrictive upon the United States. They believe that we need to break away from some of these institutions (UN) and be proud to use American power in support of democracy and other human rights across the globe. There’s a sort of Nietzschean element to their vision – America must transcend the current order and, by acting, create a new and better world order.

Leaving aside the Marxist/Rousseauian/French Revolution aspects of this vision, it rests on one critical assumption – that America is a force for good. Without that pillar, the entire neoconservative edifice comes crashing down. Unless you’re morally superior (or at least "good"), there is no moral justification for ignoring international law and abandoning international institutions. These are not people who simply think “might makes right.” Like the French Revolutionaries, there’s a deep moralistic streak in their vision. America is good. If she acts boldly, others will follow and the world would be better. The justification of invading Iraq in spite of world opinion depends upon this assumption that we are a force for good.

The problem, though, is that the great neoconservative experiment ended with the hooded man with the electrodes on his testicles. In one snap of the camera, everything was lost. How can you convince the world to follow when you sanction Scorpion treatment? How can you regain the moral legitimacy that is the foundation of your vision? How can you convince your fellow citizens to abandon international law when this is what happens. It reminds people that there’s a reason we have laws.

The whole thing is stellar. The question is: are Bush's actions immoral or impeachable?

Impeachable Offense?

UPDATE: 12/23 @ 2:20 AM
The ACLU has released some FBI memos that appear to imply that President Bush himself directly authorized (via executive order) the torture or inhumane treatment of suspects. This would run counter to claim by White House Press Secretary Scott McLellan that all interrogation procedures come from the Department of Defense, not the President.

While conceding there is no "smoking gun," Yale Law Professor Jack Balkin argues that if Bush did authorize torture, it's an impeachable offense (or at least that's what the title to his post implies).

Again, there is no smoking gun, just lots of interesting questions. We should not prejudge what the President did nor did not do until there is further proof. But my view can be stated fairly simply: If the President did authorize inhumane treatment of prisoners, whether or not his lawyers could claim that this was not technically in violation of various international agreements to which the United States made numerous reservations, these acts are morally unconscionable. He has shamed the country and should be removed from office.

I disagree with Balkin that, if the President's actions were "morally unconscionable" but legal, he should be removed from office. Impeachment is a very serious matter, and following the procedures and guidelines set out in our constitution for impeachment are essential to maintain a just government. If Bush's actions were ILLEGAL (and again, this all comes with the caveat that these are just questions, not proofs), then it's a closer question. I'm reticent to impeach officials for actions taken in their official capacity, so long as they aren't wantonly and recklessly in violation of US law. I'm not sure that any of President Bush's actions, even if they were illegal, were "wantonly" so. Presumably, our experience with President Clinton should have taught the Democrats that impeachment should not be used in each and every situation where the President has conceivably broken the law. I would agree, however, that if the President did authorize the illegal torture of detainees, it certainly would be more justifiable to impeach him than to impeach Clinton. But "more justifiable than impeaching Clinton" is not a particularly tough standard to meet.

UPDATE: Professor Balkin responds to some of the arguments I made (though not directly to me). A far more compelling post than the first, I think.

Ordinarily the fact that Congress thinks the President has acted immorally should not, without more, be grounds for impeachment. But the allegations in this case concern much more than that. The charges, if true, suggest a real abuse of power (and abuse of office) and violations of both domestic and international law.


I noted earlier that the Administration's torture memo tried to offer a very narrow standard of torture, and so his lawyers might claim that what was ordered was not technically "torture" under the (unreasonable) interpretation that the OLC torture memo gives to that word. Nevertheless, if the allegations are correct, it would very possibly make the President guilty of war crimes. And it would almost certainly be in violation of the Geneva Conventions. Not all violations of international law should be impeachable offenses, but surely ordering the abuse and torture of prisoners should be.

Knocking on Rumsfeld's Door

Powerline responds to Andrew Sullivan's column explaining why Donald Rumsfeld needs to go. Powerline goes through a bunch of issues, but the overall point of contention is: If we had done X differently, could we have avoided Y bad result in Iraq? Or was Y inevitable (or at least out of Rumsfeld's hands)?

The epitome of this question is whether or not more US troops could have prevented the looting and lawlessness that characterized Iraq immediately after Hussein's government fell. Sullivan thinks the answer is yes, Powerline says no. But I don't see any reason to doubt why more US troops couldn't have stopped the looting. It's well known that looters stayed away from areas under US guard, the problem was that US troops were so overstretched we couldn't guard everything at once, or even everything important at once. If the Iraqi's are so desperate to break out into anarchy and lawlessness that they'll do it even when optimism is high and US military presence is strong, then we might as well concede defeat in Iraq now, because a democracy can never form under those circumstances. At the very least, Rumsfeld deserves blame for not giving democracy a fair shake.

But Powerline's follow-up post is far more disturbing. They write:

Sullivan finds it "blindingly obvious" that we don't have the number of troops in Iraq "needed to keep the peace, to police a country of tens of millions, to seal borders, to gain intelligence and to suppress rioting, looting and disorder." If that's our mission then, yes, it's obvious to me that we don't have enough troops. Indeed, to "police" the entire country of Iraq might require Vietnam-era troop levels. But if our mission is basically to capture and kill insurgents, train and help build up Iraqi forces, and provide enough security for elections to occur and for the elected government to assume power, then it's less than clear that our present troop levels are insufficient.

To me, this is game, set, and match in favor of the argument that we needed more troops. Why? Because the need to "keep the peace, to police a country of tens of millions, to seal borders, to gain intelligence, and to suppress rioting, looting and disorder" are prerequisites to the latter objectives. We can't expect to end the insurgency unless we secure the borders and gather intelligence. There cannot be a democracy if the nation cannot be policed. I am dumbfounded at how these issues can be separated. As I blogged earlier (quoting Robert Kagan), the looting in Iraq and the general feeling of insecurity in the region is a direct cause of the present insurgency. The two issues cannot be divided.

"The most tragic [of the Bush administration's failures] was the failure in the early days after the invasion to fulfill the 'first duty' of an occupying power: providing basic security. Much has been made of the looting that occurred immediately after the fall of Saddam Hussein's regime, but Feldman notes the essential point: by allowing the looting to proceed, American forces sent a clear message 'that the United States was not in charge, and that no one else was, either.' Iraqis had to seek security for themselves in what was for a time a state of anarchy, and it was hardly surprising that they turned to their own kind for protection. Feldman says that it was not 'ancient' ethnic and religious differences that empowered armed militias, but the human instinct for survival. 'Had there been half a million U.S. troops on the ground,' he insists, 'it is highly likely that there would have been little looting, no comparable sense of insecurity and therefore a reduced need for denominational identities to become as dominant as they quickly did.'"

Rumsfeld and his allies still view this as solely a military conflict. In doing so, they neglect the other causes and issues that relate to the war on terrorism, and this blindspot has manifested itself in terms of increased instability in the anti-terror frontlines. We need a secretary of defense who sees the war holistically, and has a plan for winning it. Sure, having a plan isn't everything. But it still is something, and that something essential to winning this war.

John McCain Supports the Terrorists

Or so everybody's favorite politician, Tom DeLay, implicitly alleged. Speaking on the Sean Hannity show (guest hosted by Oliver North), DeLay said that those who criticize Defense Secretary Donald Rumsfeld might be "aiding and abetting" the enemy. Conservative website Newsmax.com has the full story (linked to by the indispensable Daily DeLay). My favorite quote:

DeLay complained that "most of those who are criticizing [Rumsfeld], starting with the national media, never wanted us in the war to begin with. And then you have a lot of these Democrats who voted against the war. They're the appeasers. They want to go back to the days of Clinton when we appeased these terrorists."

Some of these "Democratic appeasers" include Senators John McCain (R-AZ), Chuck Hagel (R-NE), Susan Collins (R-ME), and Trent Lott (R-MS), all of whom have recently come out with statements expressing discontent with Rumsfeld's performance.

DeLay, of course, subscribes to the theory that it's okay to have ineffective leadership in the most important battle the US has fought since the cold war--so long as nobody says anything about it. Who knows how demoralized the American people might get if--gasp--they actually had competent officials running the show? It's a risk we obviously can't afford to take.

Call me crazy, but I think that supporting officials who are proven failures in fighting this war offers far more "appeasement" to the terrorists than anything the Democrats have advocated so far. But that's why I'm not in Congress.

Attention Deficit Disorder

A little while back, I wrote a post that argued that Republicans are not the right party to lead us in the War on Terror because their ideological leanings are counterproductive toward defeating the threat we face. Furthermore, the longstanding perception by the public that Republicans are "strong on defense" paradoxically makes the situation worse: Republicans know they don't need to make the tough (ideological and political) compromises necessary to make our nation secure to achieve the political benefits of being the security party, so they don't.

It is in that context that I think Kevin Drum's latest post really nails the situation on the head. He quotes two liberal pundits (very liberal in fact, they're Matthew Yglesias of the American Prospect and Brad Plumer of Mother Jones) criticizing the Democrats for ignoring national security now that the election is over. To quote from Plumer:

The second point is that liberals—and Democrats especially—have said nary a word about the future of the military lately. John Kerry may have been the first to suggest expanding our active-duty forces, but no one's said anything since. So the Democrats not only have fed the perception that they make national security proposals only when they need to look "tough" on the campaign trail, but they've also absented themselves entirely from an important debate.

Drum agrees with this argument (as do I). But he asserts that the problem is at least as bad on the Republican side of things:

But the reason this struck as an odd complaint right now was that just last night I was reading through various news articles about the upcoming legislative session, and here's what the Republican agenda appears to be: privatizing Social Security, enacting tort reform, restricting immigration, getting started on tax reform, and cutting the Pentagon budget. As near as I can tell, with the election over and the intelligence bill successfully neutered and shoved under the carpet, Republicans have as good as forgotten that the war on terror even exists anymore.

Republicans ready to engage in boastful triumphantalism about how Democrats are puny and weak on National Security need to start backing their words with deeds. Unfortunately, having absorbed the lesson that rhetoric is all it takes to convince the American public that Republicans care about security, the odds of them actually using up any of that famous political courage we've been hearing about are quite slim.

Get Annan Out

I can agree with this argument by "liberal multilateralist" Kenneth Cain in the Wall Street Journal (behind a firewall, but helpfully summarized by Powerline). Cain argues that Annan's fatal flaw is not corruption, but cowardice. Specifically, the UN's inaction in the face of clear genocide (not that they're alone) is morally shocking and ethically depraved. These failures in leadership are damning, and they necessitate Annan's ouster.

Speaking of Powerline (though this might not be the best segway), they've been named blog of the year by Time Magazine. A hearty congratulations to a truly superb blog.

For Every Action, There is an Equal and Opposite US Inaction

Who here can spot the link between this December 17th Washington Post editorial by former Secretaries of State Warren Christopher and James Baker and this December 18th New York Times editorial by Nicholas Kristof?

Perhaps it is that the US can't hope to tame rising anti-American sentiment unless it is willing to invest time, money, and manpower to ending the most vile havens of injustice and moral depravity that still exist in the world. And nowhere is a better candidate for US action than the abomination that has become Sudan. Tragically, the US (and global) response to the ongoing genocide in the region has been all too typical: Lots of words coupled with precious little action.

Oh, and lest we think that Sudan represents anomaly, the Washington Post is kind enough to report that fighting has restarted in eastern Congo. One of the wealthiest countries in the world in terms of natural resources, Congo has been cursed with poverty due to ongoing civil wars and conflicts with Rwanda, who is likely backing the insurgent group that has restarted the fighting.

The plague of conflict, war, famine, disease, and poverty has all the signals of a region ready to explode. That doesn't mean that the region is hopeless. But the US can no longer afford to ignore Africa and other impoverished regions around the world. The consequences of such an action would be catastrophic.

It Ain't Just India Folks

Kevin Drum links to a report on a recent trip by a US congressional delegation to India, summed up as follows:

They spoke to a lot of Indian government people and the message from them was very clear, and in a nutshell it was this: We don't much care about America. He said they were very polite but almost indifferent. Maybe matter-of-fact is a better description. The conversation went something like this:

We consider ourselves as in competition with China for leadership in the new century. That's our focus and frankly, you have made it very difficult for us to deal with you. We find your approach to international affairs ridiculous. The invasion of Iraq was insane. You've encouraged the very things you say you were trying to fix — terrorism and instability. Your attitude to Iran is ridiculous. You need to engage with Iran. We are. We are bemused by your hypocrisy. You lecture the world about dealing with dictators and you deal with Pakistan. We are very sorry for your losses from the 9/11 terror attacks. Welcome to our world. You threaten us with sanctions for not signing the non-proliferation treaty, but you continue to be nuclear armed and to investigate new weapons. You expect us to neglect our own security because you want us to. We don't care about sanctions.

The meeting may be with India, but I doubt they're the only ones thinking along those lines. The world's tolerance for US hypocrisy on the global stage is rapidly waning, and the risk that either the EU or China could offer a challenge to US hegemony becomes more and more threatening as the US drives potential allies away.

The point isn't that the US can never assert itself unilaterally on the global stage. It can--and often it must. But the point is that that privilege comes with a responsibility to act multilaterally and within global institutions whenever possible. The US must build up a bank account of international credibility so that the world doesn't try to oppose the US at every opportunity. Christopher Layne, Associate Professor of International Politics at the University of Miami writes in the Spring 2002 edition of The Washington Quarterly that:

Being powerful is good in the international arena, but being too powerful is not. The reasoning behind this analysis is straightforward as well as the geopolitical equivalent to the law of physics that holds for every action, there is an equal and opposite reaction. Simply put, the response to hegemony is the emergence of countervailing power. Because international politics is indeed a competitive, "self help" system, when too much power is concentrated in the hands of one state, others invariably fear for their own security. Each state fears that a hegemon will use its overwhelming power to aggrandize itself at that state's expense and will act defensively to offset the hegemon's power.

To prevent this occurrence, the US must be careful not to overreach. Other nation's concerns can be ameliorated if the US acts in a manner that is consistent with international norms and practices. But the US can no longer take their support for granted. The fear of unbridled US authority, coupled with the rise of alternative power spheres means the days of unrestricted US action are numbered.

The Sunni Option

Tom Friedman says that the US should support a neo-Baathist Sunni government in the upcoming Iraqi elections. He claims it is the only way to ensure the Sunnis participate in the election, and the only way to avoid a civil war. Matthew Yglesias says it's a good column. I'm not so sure.

After all, as Iraq'd has pointed out, the Shi'ites best overture possibility toward the Sunnis is offering an end to the US occupation. Since this is bad presumably because both the Sunnis and Shi'ites view the US as puppeteers, would it really be in the US's interest to CONFIRM that hypothesis by actively intervening in favor of a chosen group?

I'd be very surprised if the Shi'ites took that lying down, especially since they would undoubtedly view it as a) hypocrisy of the highest order from all of our high minded talk of Democracy and b) a theft of their years overdue ascension to political control. But perhaps this a lose-lose choice forced upon us by the Sunni Persecution Strategy. Lose-lose choices...ain't that a refrain we seem to be hearing alot from Iraq.

Playing the Grinch

UPDATE: 12/18/04 @ 2:30 PM
It's that time of year again...the magical season where I have to explain, for the millionith time, why I don't believe that religious messages (Christian or otherwise) belong in official (IE, governmental) events.

Conservative torchbearer Charles Krauthammer takes up the mantlepiece, writing in the Washington Post on how those evil, secularist liberals want to utterly banish Christmas and kill off the holiday spirit. Krauthammer's column is a pecuilar mix of self-congratulatory moralism mixed with a few blatant falsehoods ("Judaism's seven holidays"?), with the occassional fact sprinkled in to get it past the editorial board (Chanukah really is, as Krauthammer asserts, a pretty unimportant holiday). The crux of Krauthammer's argument (such as it is), is that the only explaination for minority skittishness at Christmas messages is that they have insufficient faith and are afraid the slightest whiff of an opposing message will destroy their spiritual roots.

This may have some truth to it, to be fair. But what Krauthammer misses is that it's equally true of the Christian masses who seem to think that unless Macy's has "Merry Christmas" shouted at it's customers from every angle, the Christian faith will wither away and die. Who's being more unreasonable here? At least the minority religions have historical reason to fear that government sponsered religion will provide cover for religious oppression. By contrast, the disestablishment of Church and State would have very little, if any, negative impact on the majority religion (and might aid it, see the struggles of organized religion in Europe and Iran, where it still enjoys state sponsorship).

Indeed, I oppose governmental support of my religious views (I'm Jewish and I believe in God) because I find them both offensive and demeaning. Religion is something deeply personal, and nothing is more personal than the way one expresses one’s beliefs in the public forum (if they choose to at all). Putting religion in a one-size fits all package commoditizes religion, destroying the very thing that makes it sacred. The court recognized as much in Engel v. Vitale, when Justice Hugo Black wrote "A union of government and religion tends to destroy government and to degrade religion. The establishment clause thus stands as an expression of the principle on the part of the founders that religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate." My belief in God is demeaned when it exists not as a genuine expression of my own personal belief, but rather as a byproduct of a government mandate.

This doesn't mean that every religious mention has to be expunged from government. Christmas carols can be included as part of a winter concert, if they are chosen for their musical beauty (I'm a big fan of "Hark Go the Bells" personally) rather than their religious message. This is the same reason I had no problem studying The Bible in English class: We were studying it as a literary document, not to gain deep insights into our spiritual core. The problem comes in having religion involved in the public sphere for no other reason than espousing a religious message. That is what people such as myself seek to avoid, both because the risks it poses to religious minorities (risks that might be overstated by church-state militants but certainly are understated by Krauthammer) and because it is demeaning to religious persons such as myself.

Meanwhile over at The New Republic, Michelle Cottle has a much more intelligent article on the same subject. Cottle first provides an excellent set of examples that prove that the Christmas restorationists are hardly as innocent and tolerant as Krauthammer makes them out to be:

This year, the traditionalists are reportedly even more exercised than usual, in part because they see W.'s reelection as a mandate to put Christianity--and with it, Christmas--back at center stage. The California-based Committee to Save Merry Christmas, for instance, has called for a boycott of Federated Department Stores (which ironically include Macy's, the chain whose role in the classic "Miracle on 34th Street" made it the retail embodiment of the holiday for millions of Americans) in response to the company's replacement of "Merry Christmas" signs with vaguer messages of "Season's Greetings" and "Happy Holidays." The organization points boldly to November 2 as proof that such "political correctness is offending millions of Americans."

Similarly, a church in Raleigh, North Carolina, recently took out a full-page newspaper ad calling for Christians to shop only at stores whose holiday displays include the words "Merry Christmas." (The minister explained the move as part of a "revival" in which "right-minded people" are challenging the nation's "downward spiral to the left.") And down in Louisiana, a group in Terrebonne Parish is not only petitioning to have "Merry Christmas" added to the holiday display outside the main government building but is also selling in-your-face yard signs that read: "We believe in God. Merry Christmas."

This ain't "Miracle on 34th Street" anymore, folks. Meanwhile, Cottle neatly debunks the logical underpinnings of the activist's actions:

It's tough to hear about such antics and not immediately think: What a bunch of nutters. For starters, the notion that anyone who doesn't celebrate Christmas is a godless leftist makes these folks look like total idiots desperately in need of a beginner's guide to Judaism and Islam. And why do traditionalists so often feel the need to ram their beliefs down everyone's throat? Christmas conservationists are free to fill their homes with gaudily garbed trees (my household typically has two) and sing "Silent Night" on the street corner until their voices fail. But why waste so much energy on a point of semantics? I mean, at this stage, you'd think serious Jesus fans would want to distance themselves from the tinsel-strewn retail vulgarity that Christmas has become.

Yet at the same time, Cottle understands where they are coming from. It's disturbing--and upsetting--to many people to see a holiday that has such deep and profound spiritual meaning dissolve into an orgy of crass commercialism and consumer capitalism. Restoring the religious message to Christmas is seen as one way to combat that trend.

Believe it or not, I sympathize with those sentiments (though I'll admit confusion on how putting up "Merry Christmas" in your local department store helps fight this). However, I think that the solution comes in restoring Christmas (and the other religious holidays) back to their place in the private sphere, where people can control the message and instill it with the religious and spiritual message it deserves. Just because Christmas has spiralled out of the control of the church is not a warrant to impose Christian theology on the rest of the population.

UPDATE: Surprising no one, Powerline disagrees.

Weak Assurance

Despite four years of hard evidence to the contrary, CNN is now reporting that George W. Bush supports a strong dollar policy! And not only that, but apparently he's willing to reduce deficits to do it!

You'll have to forgive me if this sets off my BS alarm just slightly. Bush has had four years in office, and he's never once intervened to try and stop or even slowdown the mountains of red ink that currently deluge our budget. And as for alternative methods of strengthening the dollar, CNN notes:

Some economists believe that the administration, while publicly professing support for a strong dollar, actually prefers the decline in the greenback's value against other currencies as a way of dealing with the country's huge trade deficit.
...
Despite White House expressions of support, the administration has not taken action to prop up the dollar. During Bush's four years in office, not once has the administration intervened in currency markets to support the dollar or done anything else to stop the dollar's slide.

So we're left with an all too common conclusion: Bush is saying one thing and doing another, to dodge having to make the tough and politically painful decisions that come with responsible governance.

The Mali Miracle

Daniel Drezner has a must-read article up on the situation in Mali. A little background first:

Mali appears at first glance to be one of the most improbable democracies in existence -- life expectancy is at 45 years, infant mortality is higher than 100 deaths per 1,000 live births, it's literacy rate is 46%, and according to the CIA World Factbook, "is among the poorest countries in the world, with 65% of its land area desert or semidesert and with a highly unequal distribution of income."

Not only that, its predominantly Muslim. Your average Democracy skeptic (both liberal and conservative) might therefore be disinclined to think of Mali as an area where Democracy is likely to thrive. But they'd be wrong:

Mali's young democracy is thriving with all of the attendant institutions, including a legal system, however still imperfect, and a free news media that includes 42 privately owned newspapers and 124 private radio stations, the most popular medium in a highly illiterate country. It also is essentially free of human-rights abuses, according to a 2003 State Department report.

The reason I label the post "must-read" is because it covers alot of crucial points about the importance of Democratization around the world--and the American interest in it. Not only is West Africa a key conduit for oil (and one not predominantly under the thumb of OPEC), but it also is a frontline in the war against Islamic extremism. At the moment, the West African brand of Islam is quite moderate. However, as we've seen so many times in the past, US hostility (or even indifference) can drive impoverished and poor citizens to radicalism and violence. The continued instability of the region (made worse by the rapid worsening of the situation in the Ivory Coast) only compounds the problem.

And of course, to top it all off, China has taken an interest in Africa as a region in which to expand its hegemony--primarily because the US has traditionally showed such little interest in Africa in the past. As Stephanie Giry notes in the November 15 2004 edition of The New Republic:

China's efforts don't bode well for African democracy--or for Washington. As the diplomatic wrangling over Sudan shows, China's march into Africa will, at best, complicate African and U.S. efforts to bring good governance and human rights to the continent. At worst, it will hurt the fight against terrorism and weapons proliferation.

The United States must do everything in its power to support fledgling Democracies like Mali. This is a clearcut case where US moral, economic, and realist interests all come into line. Morally, the US must provide direct support to nation's which have overcome the odds to choose the liberal path. Economically, the US needs a stable and secure West Africa to protect our oil interests. And strategically, the US needs to check both Chinese hegemonic ambitions and resurgent Islamic fundamentalism, a cause which could be greatly aided by making Mali a showcase of how Muslims and the third world can benefit if they ally with the United States and align with our values.

Read Professor Drezner's post. It is one of the clearest examples of how democracy can flourish in even the most hostile environments, and offers hope to those of us who believe that all citizens of the world have a future in a liberal, tolerant, modern democratic state.

Are Jews a "Race"?

Over at The Volokh Conspiracy, Eugene Volokh defends his categorization of Jews as a "race" in the context of both legal and practical analysis (while also noting that Jews could be equally labeled an "ethnicity," given the blurring of the two terms).

The objection came from an emailer who claimed:

Jews are not a race, any more than Anglicans or Catholics. Part of the persistence of anti-semitism lies in the thoughtless assumption that there is a race of people known as Jews, instead of a collection of individuals who have certain beliefs.

Speaking as a Jew, I am inclined to agree with Volokh. Jews are ethnically and culturally distinct from mainstream White and Christian America. Certainly, Jews are often mistaken for Whites or Christians, and often actively try and assimilate into White-Christian society. But I think that is more of a function of historical anti-Semitism on the part of the Christian community, Jews hope to dodge anti-Semitism by "passing" as White Christians. Christians simply refuse to see Jews as both unique AND equal, so Jews have been forced to choose one or the other. In many cases (understandably, considering the history of oppression foisted upon them!), Jews have chosen equality, and thus have suppressed the ethnic, historical, and cultural differences they have with the Christian community. (I realize the above is rather inflammatory AND incomplete--not a happy combination. Unfortuntately, the justification for is rather indepth and still a work in process (see below). So I'd ask patience as I try to formulate these thoughts into a broader, more coherent whole that I hope will be provocative without being offensive).

I actually have ALOT to say on this issue, and I'm in the process of writing a large paper on how the Christian construction of Jewish identity contributes to anti-Semitic oppression in general and anti-Israel policies in particular. Since I am still forming my thoughts on the matter, I'm reluctant to write further at this time. If anyone has any good resources or literature on the topic (or generic literature on Critical Theory), I'd be appreciative. So far, the ONLY book I've found on the topic is "Please Don't Wish Me a Merry Christmas: A Critical History of the Seperation of Church and State" by Stephen Feldman, I'd like to branch out a bit.

UPDATE: I should say that categorizing Jews as a "race" only makes sense if one rejects the idea of "race" as referring to something biologically determinate (which I do). Race is a social construction, and, in many of the ways Jews have been constructed, we've been constructed as racially other. Insofar as to many, labeling Jews as "White" is a way of negating their historical differentiation from the dominant White castes, I am leery of chucking out the idea of race with regards to Jews so quickly. I should note that often non-White Jews still are assumed to be White simply by virtue of their Jewishness, or vice versa -- non-White Jews as presumed to be non-Jewish by virtue of their non-Whiteness. This is another demonstration of how the refusal to deal with Jews on their own terms tends to suppress diverse and heterogeneous Jewish experience.

The fluidity and plasticity of race as a concept and category means that we should not expect to be able to lock in how Jews fit in with the concept of race across all different times, spaces, and contexts. The Supreme Court rather wisely acceded to this view in Shaare Tefila Congregation v. Cobb, 418 U.S. 615 (1987). Obviously, applying old-school racialization schemas to Jews has led to some pretty horrific results, which is why it is understandable that many Jews are quite suspicious of the term as a whole. On the other hand, as the valence of "race" has changed, particularly in progressive circles, it is important that Jews not be caught in a damned-if-you-do, damned-if-you-don't scenario. Just as Cheryl Harris complained that "at the very historical moment that race is infused with a perspective that reshapes it, through race-conscious remediation, into a potential weapon against subordination, official rules articulated in law deny that race matters",* Jews too should not be racialized only when it can hurt them, then deracialized at the precise moment where race re-emerges as a potential tool for liberal emancipation.

* Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1768 (1993).