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Saturday, September 19, 2009
Aldous Huxley:
Ann Althouse mentions looking for an Aldous Huxley quote. Below is my favorite Aldous Huxley quote:
I have been told by an eminent academic critic that I am a sad symptom of the failure of an intellectual class in time of crisis. The implication being, I suppose, that the professor and his colleagues are hilarious symptoms of success. The benefactors of humanity deserve due honor and commemoration. Let us build a Pantheon for professors. It should be located among the ruins of one of the gutted cities of Europe or Japan, and over the entrance to the ossuary I would inscribe, in letters six or seven feet high, the simple words: Sacred to the memory of the world's educators. SI MONUMENTUM REQUIRIS, CIRCUMSPICE.
This, from the preface to the second edition of Brave New World. Brave New World was the first genuine adult literary novel I had ever read, apart from science fiction such as Foundation; my brother brought it home when I was in the fifth grade. I must have read the novel a hundred times, and could recite lengthy passages from memory, without exactly understanding everything. Well, without understanding a lot, starting with the origin of 'Brave New World'. Or - something I wondered about for several years even after I understood the American version - "she was wonderfully pneumatic."
The preface was also the first true essay I ever read - I was deeply impressed by the voice, even without understanding the context or theme or what he was driving at. I understood that it was witty, and I understood the cadence of his wit, years before I had any understanding of the content. Another book that fell into exactly that category, one that I read a year or two later, was Camus's The Fall. I still remember phrases and sentences from it. "Modern man - he fornicated and read the newspapers, and after that, if I may say so, the subject was exhausted." It was a long time before I got the joke, but I immediately knew that it was witty. I loved the cadence of French wit before I understood what it was about.
Update: Ann Althouse was kind enough to link here, so let me add something. When I say a hundred times, no doubt I exaggerate somewhat. But possibly not that much. That's because, at least in my family of seven kids, reading was what you did non-stop, all the time. We had a lot of books for the time, I guess, lots of kids books, grownup books, but reading was what you did in any spare moment. It was what you did waiting for Mom to get out of x, y, or z while you were sitting endlessly in the car. It was the default option. And all of us tended to pick up books we had read a zillion times, flip it open to any page and re-read. It wasn't that Brave New World was my favorite book or that the books that got re-read were the great books - they were entertaining and convenient to hand and easy to jump back into.
Our reading was utterly indiscriminate and unguided. One minute, some Weekly Reader Book Club paperback - but then, one summer doing a week long campout at the beach in San Diego while my father was doing some chemistry professor conference, and it rained endlessly, my mother let my brother and me by a sci fi novel in the drugstore just to keep us busy, and it turned out to be the first volume of James Blish's Cities in Flight, They Shall Have Stars. My god. We sat in the car in the rain for days, fighting for a while over who was reading when, and then finally simply reading over each other's shoulders.
I didn't have to "get over" Huxley because I never thought he was the greatest. I just liked reading him and so I did. I never read anything else by him, wasn't drawn to him or his writing. I was completely indifferent to his drug stuff, never had the faintest interest in the rest of his work. (The only exception being the complete and utter accident of a children's book, one that is on my daughter's shelf and which she always liked a lot, written by Huxley himself, The Crows of Pearblossom. Huxley spent time in Pearblossom, which is a desert town - now one of the endless subprime suburbs of the Inland Empire of San Bernardino County, on the back side of the burning Angeles Crest, that at the time was a tiny desert hamlet on the road to the upper Mojave. Huxley wrote the story, the only one he ever wrote for children apparently, for the six year old daughter of a family friend when he lived there. I liked the story, and anyway I knew Pearblossom from my childhood, so it meant something to me. The book must be quite rare by now, unless it has been reissued by some press.)
I didn't consciously memorize whole sections; it was just something about that age in childhood, when it slipped effortlessly into the brain. It was when literature actually spoke to me, and even in not very good stories, I could hear them in my head. God, don't you miss those days? It was what made me want to write things, to be able to have a voice that I could hear for myself. The point I was trying to make was that it was less content that drove me to want to write things - and as a professor, I'm just a dried up version of a fiction writer or journalist who, ironically, has found his tenured niche while watching the economic model of his genuine writer friends collapse around them - and fundamentally wanting to have a voice.
Political Ignorance and the Case Against Paternalistic Regulation:
My colleague Josh Wright and co-blogger Todd Zywicki have an important essay criticizing the Obama Administration's proposed new Consumer Financial Protection Agency (CFPA). The premise behind the CFPA is that consumers' choices need to be limited by government regulators because otherwise consumers are likely to make mistakes caused by their own cognitive errors.
Josh and Todd outline several serious problems with the CFPA proposal and the economic theory underlying it. Here are two others based on my own work on political ignorance.
I. Voters are More Ignorant and Irrational than Consumers.
First, the CFPA and other paternalistic policies will have to be adopted through the democratic process. But voters tend to be rationally ignorant about politics, and commit serious cognitive errors in analyzing the little information about politics they do know. Political ignorance and irrationality is likely to be far more severe than the cognitive mistakes consumers make. Voters intuitively realize that there is very little chance that their votes will actually influence the outcome of an election. As a result, they have precious little incentive to either acquire political information or to work to overcome their biases in evaluating what they do learn. By contrast, consumer decisions are individually decisive. If I decide to get a credit card or take out a mortgage, I can actually implement that decision without getting the agreement of over 50% of a large electorate. Good incentives certainly don't lead consumers to avoid ignorance and cognitive bias entirely. But they do cause consumers to be less ignorant and irrational than voters. Even people who follow politics closely devote far more time and effort to, say, choosing the right car or TV, than they do to deciding who to vote for president. For that reason, political decisions about paternalistic regulation are likely to be far more influenced by ignorance and cognitive bias than the consumer decisions paternalists seek to "correct."
II. Political Ignorance Increases the Risk of Regulatory "Capture."
Second, political ignorance opens the door to interest group "capture" of the CFPA or other agencies that will implement paternalistic regulations. Such regulations will necessarily be complex and difficult to understand. Rationally ignorant voters are unlikely to follow them closely enough to be able to tell the difference between effective regulations and harmful ones. As a result, it will be easy for interest groups and government officials to enact regulations that benefit politically influential businesses as the expense of the public under the guise of consumer protection. We have seen this pattern time and again with other regulatory agencies, such as those engaged in railroad, airline, public utility, and trucking regulation.There is no reason to believe that the new paternalistic regulatory agencies will be any different. Indeed, agencies implement paternalistic financial regulations are likely to be even more vulnerable to capture because of the complexity of the financial system (which makes political monitoring by ignorant voters even more difficult), and the presence of numerous powerful interest groups who have an incentive to do the capturing. Banks, credit card companies, real estate developers, and many others will no doubt lobby hard to capture the CFPA once it gets established.
Some advocates of paternalistic regulation, such as Cass Sunstein, recognize the dangers of ignorance and interest group power. They argue that these problems can be mitigated by delegating the regulation to experts insulated from political pressure. This solution creates serious dangers of its own, which I outlined in a post written two years ago. Moreover, any proposal to establish such an "independent" agency must itself first navigate a political process heavily influenced by ignorance and interest group lobbying. It's highly unlikely that it would get through Congress unscathed.
Expert advice is often useful in making difficult consumer decisions. On balance, however, it is better to trust experts chosen by consumers in a competitive market than to delegate coercive power to government-appointed experts who have neither the knowledge nor the incentives needed to genuinely improve consumer welfare. Related Posts (on one page): - More Wright and Zywicki on the Consumer Financial Protection Agency:
- Political Ignorance and the Case Against Paternalistic Regulation:
Bernard Kouchner Calls to Revive Idea of Global Financial Tax to Fund Development:
French Foreign Minister Bernard Kouchner calls in the Financial Times for a tax on global financial transactions as a means of funding the currently moribund UN Millennium Development Goals. It is an idea that has been floated repeatedly since the 1990s - sometimes with the emphasis on the tax itself as a means of deliberately slowing down and making more costly the movement of global capital (essentially a turnover tax on transactions,; the Tobin tax) and other times with the emphasis on the uses of the funds, whether to fund the UN or development goals generally or global income transfer or, as in this case, the MDGs. (I think this is behind the sub wall at the FT, but anyway registration is free.):
[T]o fund development, we have to think about introducing a voluntary contribution based on international financial transactions.
On one side, there are vast needs. The Millennium Development Goals set in New York in 2000 remain a priority. Last November, at the United Nations conference on development financing, President Nicolas Sarkozy reiterated our commitment to them. By 2015 we have to eradicate extreme poverty and hunger, achieve universal primary education, increase gender equality, reduce child mortality, improve maternal health, combat major pandemics such as HIV/Aids, tuberculosis and malaria, ensure environmental sustainability and develop a global partnership for development.
To meet the health goals alone, we will have to find no less than $35bn (€24bn, £22bn) a year. Then, on top of the millennium goals, there are new demands to finance, in particular the fight against climate change.
The economic crisis is exacerbating the situation: according to the World Bank, afall in growth of one percentage point means 20m more in poverty. Mortality of children under a year old could increase by 700,000 because of the slowdown. Official development assistance, which provided $119bn in 2008, cannot do everything, even though it remains an essential lever. The innovative financing mechanisms must act as a catalyst so that the millennium goals may one day become the millennium achievements.
Why Kouchner calls this “innovative financing,” I am unclear, since the idea has been around for so long. Also, as I understand the papers at the Paris conference in which this was discussed, so far as I could tell, it was voluntary insofar as it was a “voluntary” step by governments to tax their financial actors, not voluntary as in a voluntary contribution by the participants.
For many policy reasons, I think this a very bad idea - mad and bad. Whether it is the sort of idea that might appeal to the Obama administration, I simply have no idea. But I do think it is a bad idea on both the (a) “slow down the velocity of global capital” revenue-collecting side and (b) the “create another vast international organization fund” that will not only be spent on the poor but will also actually make a difference spending side of the equation. Not to mention the precedent of a global tax - something that Kouchner says will help move toward global taxes to address carbon and climate change and potentially many other things.
I admit, I am an unapologetic Easterly-ite, and I think the MDGs were dead before the financial crisis hit and deader than dead two years later. Others will certainly have different reactions to that policy view, of course, but it is frankly incomprehensible to me that Kouchner could write such a call without addressing the fact that even without a financial crisis, the MDGs were in serious trouble in collecting their funds - even from European countries - let alone showing that this round of top-down financing, this latest in zillion dollar effort that comes about once a generation, this time will be different. Inchallah.
If I sound like I’m channeling William Easterly, I am. I simply don’t think it’s possible to pen a serious FT op ed proposing a global tax for the first time in history in order to fund the most grandiose and ambitious set of anti-poverty goals that have quite failed to meet any real targets either for funding or for accomplishment, without at least including a sentence or two about why that might be, or why it is not so, or why this might be different. A prayer - which is what it amounts to - that if only we have more money, the millennium goals might become millennium achievements is not enough.
More broadly, my view of UN development generally is that there is a serious conceptual mistake in the MDGs’ - in Jeffrey Sachs’s - assumption that international development requires a genuinely common fund. Meaning, a single big pot of money in the hands of the UN or, frankly, anyone. That would be so if
- first, we actually knew how to make international development happen (as distinguished from Professor Sachs thinking he knows how to make it happen if only he has enough money; I am not aware of any circumstance in Professor Sachs’s writing on development in which he has not called to double down on the bet for more resources);
- two, the prescription for making it happen required pools of capital large enough to do very large things, as distinguished from, for example, smaller pools of capital flowing into much smaller things, but many more of them; and;
- three, we had any reason to think that the UN was capable of administering such massive pools of capital, or that official development assistance actually works, as distinguished from flowing off into rent-seeking at the UN and its “wholesale” aid agents, and private corruption at the point of country-disbursement.
I don’t think there’s any reason to assume any of those three things. The position that leaves things in, so far as I can tell, is that funders should pursue the strategy each thinks best, because there is no reason to think - given the vast and heterogeneous demands - that a common pot is necessary. On the contrary, given the radical uncertainties, a diversification among uncorrelated efforts makes far better sense.
Better that funders work as they think best, in parallel, rather than in common. If best practices emerge - apart from the only large scale one that seems to have had real success, private direct investment combined with the ample provision of a limited list of public goods - and if they require the combined resources of donors, fine. But there will still be a presumption to be overcome, viz., that rent-seeking at the UN will always incline it to think that resources should flow its way for redistribution - after it has taken its cut.
A "Narrow" Investigation of CIA Interrogations:
The Washington Post has an interesting article on the Justice Department investigation of CIA interrogations, suggesting the inquiry may be narrower than some hoped or feared. It begins:
The Justice Department's review of detainee abuse by the CIA will focus on a very small number of cases, including at least one in which an Afghan prisoner died at a secret facility, according to two sources briefed on the matter.
On Friday, seven former CIA directors urged President Obama to end the inquiry, arguing that it would inhibit intelligence operations in the future and demoralize agency employees who believed they had been cleared by previous investigators.
"Attorney General [Eric] Holder's decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute," the directors, who served under Republican and Democratic presidents over the past 35 years, wrote in a letter.
Opposition to the probe has grown in the weeks since Holder ordered it, even as the outlines of the inquiry become more clear. Among the cases under review will be the death seven years ago of a young Afghan man, who was beaten and chained to a concrete floor without blankets, according to the sources. The man died in the cold night at a secret CIA facility north of Kabul, known as the Salt Pit.
It also contains this interesting bit:
Holder said last month that his decision to open the inquiry was in part because of a still-secret ethics report, which is examining the conduct of Justice Department lawyers who drafted memos blessing harsh interrogation tactics, including simulated drowning and sleep deprivation.
The ethics report, which is undergoing declassification review, does not point to problems with attorneys in the Eastern District of Virginia, two sources said, but it does explore differences of opinion within the working group that examined the detainee allegations over how to proceed on the few cases that were "close calls." In a small number of instances, career lawyers disagreed about whether the evidence was sufficient to seek indictment and ultimately win in court. Some of those issues were assessed -- as is normally the case -- by political appointees, including Paul J. McNulty, the U.S. Attorney in the Eastern District of Virginia who was nominated to serve as deputy attorney general in October 2005. There are no allegations that cases were rejected for improper political reasons.
Before his decision to reopen the cases, Holder did not read detailed memos that prosecutors drafted and placed in files to explain their decision to decline prosecutions. That issue has rankled GOP lawmakers and some career lawyers in the Justice Department, who question whether Holder's order was made based on the facts or on his political instincts.
But a government source asserted that Holder was briefed on some of the details by advisers and that the attorney general was troubled by the material he read. Authorities have not pointed publicly to new evidence or witnesses that would strengthen the cases under review.
Irving Kristol's Legacy:
My senior essay at Yale was an intellectual biography of Irving Kristol up through the founding of The Public Interest in 1968. I was particularly interested in what caused him to move from Left to Right, as I have always been intrigued by ideological migrations. What I discovered, interestingly enough, was that Kristol's migration occurred earlier than for most of those identified as neoconservatives. Indeed, I doubt whether he really fit the definition at all. Nonetheless, he was rightly labeled the "godfather" of neoconservatism for his role in shepherding neocons and their ideas. He never understood the libertarian impulse, but his efforts helped open the door to some important libertarian ideas. And while he got about as many things "wrong" as "right," he was among the most important public intellectuals of the later 20th century.
I've posted some additional thoughts on The Corner at NRO.
Related Posts (on one page): - Irving Kristol's Legacy:
- Irving Kristol, Dead at 89:
Professor Jost Replies:
On The Politico's Arena, Professor Timothy Stoltzfus Jost, of Washington and Lee, replied to my Politico post on the constitutionality of a health insurance mandate (that I reproduced here yesterday): I interpreted Fred's question to ask whether the current Supreme Court would uphold the constitutionality of an individual mandate, not to ask my for my personal views of the Constitution. I would be willing to wager with Prof. Barnett that the Supreme Court would uphold such a mandate given the Court's expansive reading of the Commerce clause. In fact, I don't think the vote would be close. Here is my response: I thank Professor Jost for his clarification. I find his interpretation of the question, "Is 'mandatory insurance' unconstitutional?" illuminating of how most constitutional law professors, along with politicians and commentators, view the Constitution. The question did not expressly ask for a prediction of how the Supreme Court would rule, unless you assume that the Constitution actually means whatever the Supreme Court says it means. According to that view, you could not criticize however the Court decides because there is no external standard against which to assess the constitutionality of a statute. But we do have such an external standard: the written Constitution.
Asking whether "mandatory insurance is unconstitutional" is not asking for a "personal opinion" on constitutionality but for a professional opinion on the proper meaning of the Constitution. The answers to this question given by my co-blogger Jon Adler and by Mark Tushnet represent a professional opinion about the meaning of Supreme Court precedents--such as Gonzales v. Raich--not the Constitution itself. Assuming that Supreme Court precedents constitute "the Constitution" empowers long dead judges to rule us from the grave. Sorry, that is hyperbole. It allows the opinions of justices to trump the meaning of the written Constitution.
Under our system, the Supreme Court has the last word on whether a statute challenged as unconstitutionality will be upheld or nullified. But it does not have the power to change the written Constitution, which always remains there to be revived when there is a political and judicial will to do so. For example, after the Supreme Court gutted the Fourteenth Amendment during Reconstruction, it remained a part of the written Constitution for a future more enlightened Supreme Court to put to good use. By the same token, the current Supreme Court can still make serious mistakes about the Constitution. Because the Constitution is in writing, there is an external "there" there by which to assess its opinions.
But there is one final twist: if the Supreme Court adopts a "presumption of constitutionality" by which it defers to the Congress's judgment of the constitutionality of its actions--as it has and as "judicial conservatives" urge--and the Congress adopts Professor Jost's view that "unconstitutionality" means whatever the Supreme Court says, then NO ONE EVER evaluates whether a act of Congress is or is not authorized by the Constitution. A pretty neat trick--and a pretty accurate description of today's constitutional law.
Friday, September 18, 2009
Voting, Religion, and Public Officials:
Further to Chief Conspirator Eugene's post below on religion and public officials, I tried my best to answer that question in an article on Mitt Romney and Mike Huckabee during the primary in the Weekly Standard (this link directly to the magazine; easier than the SSRN link below). The first part is snark - Andrew Sullivan called it political essay of the year, which I appreciated despite my general lack of enthusiasm for the Daily Dish - but the last part is a pretty serious attempt to address Eugene's question. At risk of tooting my own horn (more than usual), I think it is one of the better things I've written in the last few years - meaning by that the answer to the question I gave in the second half of the piece. It touched some kind of chord at the time, because besides Andrew Sullivan, I got appreciative notes from Aryeh Neier and a conservative pastor who told me that he was surprised to see in a secular magazine of any kind a literal imprecation - and not, so far as he could tell, meant merely ironically. As he said, was your editor at the WS aware that in its pages you called down the wrath of heaven? Literally? Well, yes, my editor was perfectly aware of it - that's why he didn't cut anything out of the 6,000 words. But note that the angriest and most frequent email reactions came from Evangelicals deeply offended that I would cite not just to Isaiah but to the parallel passage in the Book of Mormon; that, apparently, was too close to desecration. The last half of the article goes directly to Eugene's question, in the form of a debate between Mitt Romney and his famous religion speech (which I accuse of conservative multiculti relativism), Huckabee, and Christopher Hitchens.
Mormons, Muslims, and Multiculturalism. Abstract from SSRN:
This essay (6,000 words), which appeared in the Weekly Standard ostensibly as a comment on Mitt Romney's religion speech of December 2007, contains something to offend nearly everyone. It bluntly attacks presidential candidate Mike Huckabee and his evangelical followers for their demand for a Christian president, and calls them religious bigots.
The essay also rejects, however, a central claim of Romney's religion speech, that all religious doctrines are beyond criticism or political argument - asserting that Romney, in the attempt to insulate himself from any questions of religion, has endorsed what might be called conservative multiculturalism and moral relativism. The essay argues that this is a disastrous move not just for American conservatives, but for American politics more generally, and urges that liberal toleration has to be understood not as a form of relativism putting religious doctrine beyond scrutiny but instead as a liberal suspension of public judgment on matters that one might well believe one entitled to judge in private. In effect, if the question is what parts of a candidate's religious beliefs are properly subject to public political scrutiny, Huckabee and his evangelical followers say all-in; Romney says, all-out. Neither of those can be considered the answer of liberal toleration. The essay then proposes, in its second half, three rough rules of thumb for determining whether a proposition of religion believed by a candidate for public office ought to be considered fairly open for political discussion.
An enormously important reason why it matters that a liberal democracy get these answers right, the essay concludes, is that it matters today, in the world as it stands today, to be able to ask these questions of Islam, and of Muslim candidates. The answers to important questions - relations of church and state, apostasy, free expression, the status of women and gays, etc. - cannot simply be set aside. Either voters will not trust Muslim candidates and will simply refuse to elect them, because they are not allowed, under rules of multicultural political correctness (including Romney's conservative multiculturalism), to ask these questions - or we can put these questions properly on the table, while at the same time having liberal grounds for ignoring questions of doctrine having no substantial bearing on public policy. The former will save everyone's delicate feelings; only the latter, however, will provide the path for full participation in a democratic political community. (This essay is an unabashed, unapologetic jeremiad and it angered many readers when it first appeared.)
(Sample of the snark below the fold ... this essay dated from 2007; many of the characters have shifted position since then. Update: Reflecting on a couple of the comments, yeah, I should actually display some of the more serious argument, which I am putting first below the fold although it makes for a long below-the-fold. But let me also add that although I describe it (accurately) as snark, the nastiness serves a genuine and in my view legitimate affective purpose, which is to ridicule without apology both Romney's transparent attempt to put any questions about his religion behind a political wall, and a surprising (to me at least) number of Evangelicals' view that Romney's religion alone was a disqualifier for the presidency - as many of them no doubt continue to think today and to which I continue to say, further to the burden of the article ... God smite them.)
From the second half, the argument over religious tests:
Let us now pause to reason together and soberly consider what damage the evangelical goading and Romney's response have wrought upon the possibility of pluralism of belief in political America.
The issue which the evangelicals profligately put on the table, and which Romney inadequately answered, is this. The Constitution prohibits religious tests for taking office. Individual voters are free, of course, in the secrecy of the voting booth, to take account of whatever they feel like, including such morally unworthy criteria as race and religion. Candidates are likewise free to campaign on their religion, even on their religious bigotry, and have done so throughout the history of the Republic. But that still leaves open the question of what voters who aspire to goodness and virtue ought to allow themselves to inquire of a candidate for public office, and in particular, the presidency. What, if any, content of doctrine ought a candidate have to explain about his or her religion in the public square as a condition of being elected? And what, if anything, ought to be regarded by an ethical citizenry to be a matter of private belief and therefore outside the bounds of public inquiry?
The answer offered by Huckabee's presidential bid is plain enough. At least in principle, it's all-in. Every particle of belief is in-bounds and subject to inquiry and debate. There are apparently limits to "all-in" even for Huckabee; at this moment they happen to be his church sermons, which his campaign has refused to release publicly and one wonders why. And when Huckabee's speculation that Mormons might "believe that Jesus and the devil are brothers" was aired in the New York Times, he was embarrassed enough to apologize to Romney, saying "I don't think your being a Mormon ought to make you more or less qualified for being a president." Nice to have that cleared up.
But why have a "no religious tests" principle in the first place? Why shouldn't every jot and tittle of doctrine be subject to public scrutiny? Would this not serve to give us more information about those who would be our leaders and rulers and, anyway, shouldn't we seek leaders who are, as Huckabee apparently believes of himself, beneficiaries of Providence? Shouldn't we want to elect the winners of the Providential lottery?
And note that on this matter, atheistic rationalists and religious overbelievers join hands to say, all-in. A Hitchens, after all, would say that the electorate deserves to know the full irrationality of a candidate, and that is best expressed in his or her religious beliefs, even apparently private ones. (He would say this, and has said it: "Phooey," writes Hitchens, "to the false reticence of the press and to the bogus sensitivities that underlie it.") Just as it is not considered irrelevant to know if one believes that space aliens came to Roswell, New Mexico, or has views on Area 51--shades of Dennis Kucinich?--a candidate's views on the Virgin Birth or transubstantiation or creationism are likewise relevant to making an informed electoral choice as to a candidate's fundamental rationality. Most of us think that Hitchens goes way too far--still, does anyone believe it was truly irrelevant to the public trust that Nancy Reagan consulted an astrologer on weighty matters of public policy? Well, so too with Focus on the Family, although the issue of who might provide better advice remains in doubt.
The long-standing demurral in Anglo-American history against "all-in" sprang from prudence--it was the answer from Elizabeth I on, and the traditional answer of anyone who had to rule a religiously divided kingdom. The alternative, after all, might be, and all too often was, civil war. Prudence counsels toleration insofar as politically possible. Yet toleration is much more than simply a consequence of prudence. Like forbearance, to which it is closely related, religious tolerance is genuinely a virtue and not simply a useful political practice. The reason is that religious toleration in the liberal tradition recognizes (as Hitchens does not) that religion both is, and is not, a matter of rationality and cognitive propositions testable according to the criteria of reason.
This is one of the most urgent recognitions in political culture today, and it is enormously troubling that these stakes have not been put squarely on the table in this debate among Christian pretenders to the presidency. It finally goes to the heart, that is, not of how society deals with Mormons or with evangelicals, but rather with the precedent being established in this dialogue for how American political society will treat with Islam and Muslims. The stakes for a liberal society could not be higher--or seemingly less evident in the discourse of the interlocutors.
Tt is therefore all the more unfortunate that the issue of religious tolerance should arise in a morally and intellectually underwhelming debate between unworthy Christian evangelicals and an opportunistic Mormon politician. They are not worthy of it, but the debate is emphatically taking place. On the one hand, religion is a set of contestable cognitive propositions--not necessarily finally assessable, because of subjectivities--but still a matter of rationality, and beliefs that could, in principle, be accepted as right, or come to be seen as wrong and then changed. Changed within the religion--as with Mormonism and its earlier racial doctrines, for example, even if change requires appeal to such rhetorical devices as gradual reinterpretation of sacred texts and practices or even divine revelation rather than rational discourse. Or, if not within the religion, then changed in extreme cases from without by rational discourse resulting in regulation by the state--as with Mormons and polygamy. If this were all there were to religion, the arguments for outside rational revision of it--apart from prudence and civil war--would be considerable.
On the other hand, we also recognize that religion is more than merely a set of rational and therefore mutable doctrines subject to rational scrutiny. It is also an affective identity in considerable measure acquired as part of who one is. In that sense and to that extent, it is accidental and immutable in the way that skin color, race, and ethnicity are accidental and immutable. It is therefore not merely of prudence, but of morality, that good people seek to avoid, unless for extraordinarily strong and publicly accessible reasons, putting a person to a test that forces them to forsake characteristics that make them who they are (or which forces them to contemplate civil war in defense of who they are).
On the one hand, religion has been regarded as something that can be shaped by rational discourse and necessarily sometimes even the application of political and state power. An individual in this light must consider the rationality of his or her religious beliefs and subject them to reason. On the other hand, religion also has an accidental and immutable quality to it which, in the extreme case of one's eternal soul, can force an individual to the most harrowing choice. Liberal toleration has always taken account of both of these things. The canonical instance of the state forcing the issue in the United States was the outlawing of Mormon polygamy in the 19th century--and these were harrowing cases indeed, breaking apart families, even if they were not families recognized by the good Christians of the eastern United States.
Despite this history, Western liberalism has unaccountably decided to treat Islam and Muslims--not just Islamism or so-called "political Islam," but Islam as such--as though only one prong of religiosity mattered, the immutable part. Islam is treated as a race, ethnicity, or skin color--an immutable characteristic not alterable by believers and therefore not a proper moral basis on which to judge them. The consequence has been, particularly in Europe, to put anything claimed to be Islamic beyond the bounds not merely of rational debate but of public regulation or even public protest.
We notably do not treat other religions this way .... ***
Now consider Mitt Romney's speech and the answer he gave to the matter of religious tests .... Romney announced what might be called, appallingly, "conservative multiculturalism"--indeed, a form of conservative moral relativism. If the demand of the evangelicals was all‑in, then his answer was all-out.
To be sure, there was something good and liberal in part of his answer, and we should start with that. Romney said--correctly as a matter of deep liberalism--that for him to give representations as to the content of his faith would make him a representative of that faith, rather than of the people, who are of many faiths. To do so would be to head down the path of communalism, a political space defined not by a religiously neutral public sphere but by a division accepted as reasonably legitimate consisting of groups--religious, ethnic, whatever--that have claims on behalf of their immutably identified members. This is, by the way, the relatively humane (in historical perspective), but altogether illiberal political order of the Ottoman Empire. It is what many Muslims from those historical lands appear to think would be the best and natural political order in the lands to which they have emigrated--Canada, for example (which anyway has its own powerfully illiberal forces driving toward group-identity communalism), and, increasingly, Britain. It is not--at least not so far--the American way, and Romney was right firmly to reject it ....
The "all-out" answer that Romney gave was the denial that citizens might ever legitimately and ethically demand to know the content of religious doctrines professed by a candidate for public office. ("Each religion has its own unique doctrines and history. These are not bases for criticism but rather a test of our tolerance.") It is multiculturalist because it essentially treats all private beliefs as immutable and beyond reason, and because it says that to propose to subject any of them to public scrutiny of reason is an act of intolerance akin to racism. It is a position traditionally asserted by the left on behalf of its identity-politics constituencies. It is dismaying, to say the least, that Romney would claim it for his own to deny the legitimacy of all questions.
It is, moreover, relativist in implication. Toleration is not an assertion of relativism. It is, rather, the forbearance from judging and acting on judgments in the public sphere that one might well believe oneself entitled to make in private. Toleration entails the suspension of public disbelief, or at least political action thereupon, about matters that one might nonetheless consider well within the realm of private moral judgment. Relativism, by contrast, is denial of grounds for judging at all. They could not be more different--and, crucially, relativism removes the possibility of toleration because it removes the possibility of reasoned judgment.
Romney's "all-out" stance goes well beyond a plea for liberal toleration to an assertion of genuine relativism and the denial of the very possibility of moral judgment ....
The issue then is: If neither all-in nor all-out is the answer, are there principles that can help define what religious questions should be in-bounds and what should be out of bounds in a tolerant, liberal polity?
It will always be messy. There will always be room for loud argument over whether something is legitimately in or out. But here are some provisional ground rules, offered as practical rules of thumb, not as academically defensible philosophy. First, for something to be "in," there does have to be a connection to governance, politics, and the public sphere. This is the most traditional form of American religious toleration in politics. A Buddhist's belief in reincarnation ought to be neither here nor there; a Mormon's conception of the Savior likewise; and a Jew's refusal to regard Jesus as Lord likewise. But what about things that are "in"? Religious doctrines of sanctity of life, for example, touching issues of public law and policy such as abortion, stem cells, or capital punishment must surely be on the table. But in what sense?
The publicly reasoned parts of these issues are not the problem; the problem is what to say about religious values that a candidate cannot expect his or her constituents necessarily to share, but which some or all voters might think relevant to public office. To what extent can one inquire of a candidate's religious doctrines? If the candidate puts it on the table as religious doctrine, then fair game, certainly. But what if it is not introduced by the candidate as something that is no longer private? In the first place, it seems to me, we should presume that even where the belief at issue is a religious one, deriving from a religious doctrine which is part of a faith, the locus of questioning should be on the person and not on the faith as such. It should presume to be about the personal convictions of the candidate as an individual, rather than corporate inquiries, so to speak, about the faith itself. This preserves at least provisionally the liberal separation of public and private, but it emphatically does not deprive the public of the chance to explore what a candidate's private convictions are insofar as they relate to public issues but arise from private judgments. Even if one disagrees with a candidate's position and is prepared to vote against a person on that basis, liberalism counsels in favor of doing so on the basis of the candidate's personal convictions, rather than communal affiliation, even where the personal conviction arises from religion. A candidate may correctly refuse to speak for the faith, while still being properly pressed to answer about his or her personal convictions that might, or might not, arise from such faith.
And the nasty, snarky opening?:
Some personal declarations: Mitt Romney is not my candidate. He is (in my humble opinion) a man of principles so pragmatic that he lacks any unshakeable political foundation, save that he ought to be president of the United States. He is a politician of the moderate center who has sat down with his consultants in the calculus of management consultants everywhere and concluded that winning the presidency must mean dropping his moderation--itself principally a means of winning office in liberal Massachusetts--and reinventing himself as a man of the right. I'm afraid Fred Barnes was mistaken to suggest a few weeks ago in these pages that Romney means the "CEO as president." Right church, wrong pew. In fact, Romney represents the rational-choice presidency of Bain, Boston Consulting Group, and McKinsey; democracy as the maximization of consumer preferences; the president as primus consultant inter pares. Thanks but no thanks.
Moreover, Romney's consultant skills and consequent lack of principle (yet again in my humble opinion) do indeed derive from a specifically Mormon aspect of his upbringing. It is the two-year mission, in which young men of the church--the pairs of unenviable, dweeby males in their white shirts and ties trudging the streets, seeking converts as a rite of passage to adulthood--are taught discipline, perseverance, responsibility, leadership, self-reliance, teamwork, humility, and the beginnings of wisdom (in striking contrast to most of their non-Mormon peers of similar age). These young men are also taught, however, that success with God, as with life, is fundamentally a matter of sales. There is always a risk of young Mormons' concluding that packaging is more important than product.
A not-insignificant number of the evangelical readers of this essay are now, I take it, solemnly nodding their heads, true, true, very true, how true, all true; quivering and twitching with the sure knowledge, the Text Message from God, that Mormonism is the cult they always thought it was and a shallow one at that. Yet the worship of sales and marketing is not exactly unknown among the numerous evangelicals who promiscuously deride Mormonism as some kind of weird, even dangerous, sect but who themselves gather weekly to--well, what? Sing their country-rockified, feel-good, self-help-book ballads, lovingly serviced with the Word of the Therapeutic God by blow-dried yet humble, down-home yet suburban preachers whose cavernous mega-churches resemble nothing so much as the Wal-Mart of the soul on sale. And you ridicule Mormons? One need not be Christopher Hitchens to think that if there is something funny about Mormons, there is something funnier about a certain brand of evangelicals' condescending to them.
Although I once three decades ago served a Mormon mission in Peru, and am proud that I did, I am not a Mormon believer and have not been for a very long time. I hold no brief for the religion. On the contrary, I gave it up because I found I could not continue to say I believed a religion that had been rash enough to make many historical claims, the testability of which was not safely back in the mists of time in the way that protects Christian belief and worldly reason from meeting up to implode like matter and antimatter. The usual thing for a Mormon intellectual under such circumstances is to discover the beauty of postmodernism and its flexibility about rationality and empirical truth, but I'd rather stick with regular old modernity and the Enlightenment even if they don't grant me complete freedom to believe seemingly contradictory things. The same goes for Mike Huckabee and his Bible fabulism. Yet neither is this an antireligious brief in the style of Hitchens and Richard Dawkins, who make breathless arguments as though they were the world's first skeptics. There are very serious arguments, arguments I embrace, that preserve the possibility of religious belief on the basis of mystical experience. Unfortunately they are not available to rescue Romney's faith in events claimed to have happened in historical time in the Western Hemisphere. And they are also not available to rescue Huckabee's followers from their Bible literalism.
And yet, while an unbeliever in Mormonism, I hold the Latter-Day Saint church no ill will--unlike many lapsed Mormons, I'm neither embarrassed nor appalled by it. I rather admire it; I just find its central claims not at all believable. Mormonism not Christian? I am indifferent to the charge; if Mormonism was best understood at some point long ago in the past as perhaps a Christian fertility cult, it has been moving systematically toward the Protestant mean for an equally long period of time. And if our sects are to be thus put under the microscope, then perhaps evangelical Protestantism is best understood as a syncretic cargo cult promising self- and relational-fulfillment through Jesus, a religious movement marching relentlessly forward to embrace a secular culture of therapy in the name of the Nazarene. For this the saints suffered to be torn to pieces by wild beasts and submitted to the flames?
As to the question of cults, well, the traditional reference is to cult of personality--yet Mormonism ended its cult of personality with the deaths of Joseph Smith and Brigham Young some 150 years ago in favor of today's thoroughly modern corporate church, which brings its own problems, but the mad domination of a charismatic cult of personality is not among them. Is it not evangelical Christianity, rather, with its lack of hierarchical authority and discipline, constituted of individual charismatic preachers vying for the fickle attention of crowds, that is today most susceptible to the charge of cults of personality, at least living ones? And is its leading contender at this moment not one Huckabee of Little Rock, who enthralls the crowds with his musings that he is favored of Providence? Who is this Jesus of Nazareth that I should worship his servant Huckabee and offer him my vote?
If I sound irritated at the bigoted attitudes among the lumpen evangelicals--if I sound irritated to discover that an astonishing number of my fellow citizens--30 percent or so, we are told--say they will not vote for a devout Mormon, no matter what his positions or policies, solely on account of his religion; or that Christian voters should not offer support however indirect to supposed cults, or that America must have a "Christian" president. Well, did I say irritated? I understate; furious. Specifically: Instead of a sweet smell among that saving remnant in Iowa, let there be a stink among the pigsties and factory farms of the faithful, instead of a girdle a rent, and instead of well set hair baldness, and instead of a stomacher a girding of sackcloth, and a burning instead of beauty: and may the Lord smite them with a scab, the crown of the head of the 30 percent of Zion: the Lord shall discover their secret parts. (Isaiah 3:17, 24; Bk. Morm. 2 Nephi 13.)
And if I, an ex-Mormon, am furious, I only wonder what actual Mormons think in the secret places of their hearts. The bigotry that has accompanied Huckabee's rise has certainly shifted my view of evangelicals. Am I the only one to find tiresome the endless trope among Christians of this country that they wish they could have (wholesome, good hearted) Mormons without (cultish, anti-Christian) Mormonism? My former confrères among the Mormons apparently do not count as Christian, yet somehow feel themselves bound by their allegiance to the teachings of the Nazarene to turn the other cheek and meekly suffer these attacks upon their spiritual fitness to participate in the public square. Admirably Christian, I suppose. I myself propose that Huckabee be horse-whipped in the square of public reason and turned out of politics so he can get on with writing The Seven-Day Diet of Creation and Mary Magdalene Got Skinny for Jesus and You Can Too.
Irving Kristol, Dead at 89:
The New York Times obituary is here.
UPDATE: I have deleted the comment thread, as unfortunately it brought out the worst in our readers; although a few of the comments were thoughtful, most were not. Related Posts (on one page): - Irving Kristol's Legacy:
- Irving Kristol, Dead at 89:
DOJ Brief in Another DOMA Case:
Today the DOJ filed its motion to dismiss in another case challenging the Defense of Marriage Act, Gill v. OPM, pending in a Massachusetts district court.
It argues that DOMA is constitutional because (1) there is no basis for applying heightened scrutiny to the denial of federal benefits to same-sex couples married in Massachusetts, and (2) DOMA is rationally related to the federal interest in preserving the status quo and in following longstanding practices while letting states experiment with same-sex marriage. It comes close to explicitly asserting that tradition itself -- without more -- is a sufficient justification for a classification on rational-basis review, where there is a presumption of constitutionality. I may have more to say about it later, but for now I don't see anything very surprising in the brief.
Considering a Candidate's Religion:
The St. Petersburg Times reports:
In an interview at his law office, [St. Petersburg mayoral candidate Bill Foster] talked about some of his beliefs and refused to talk about others.
"Dinosaurs are mentioned in Job, so I don't have any problem believing that dinosaurs roamed the earth," he said, referring to the book of Job, which mentions the "behemoth." He said he believes dinosaurs and humans lived at the same time, though most scientists say there is a gap of at least 60 million years between dinosaurs and mankind....
Rather than Darwin's theory of evolution, Foster accepts the Bible's Genesis account in which God created the world and all living things in six days.
Foster, a member of Starkey Road Baptist Church in Seminole, dismissed the suggestion that each of those "days" could represent a period of thousands of years.
"In the Genesis account, it's timed by the sun and the moon," he responded.
Normally, candidates in the Tampa Bay area are not asked about dinosaurs or whether they believe the world is billions of years old or thousands, as some creationists maintain. (Ford said billions, Foster declined to answer.)
Foster's position: "How does my knowledge of scientific theory impact my ability to rationally govern the city of St. Petersburg? It's completely irrelevant." The position of "St. Petersburg architect Michael Dailey, who supports Kathleen Ford, Foster's opponent": "This city is trying to increase its employment base with respect to scientific organizations and trying to recruit scientific concerns to come here.... If our mayor has a belief system that basically rejects science, how can people take him seriously?"
Should we as voters consider such matters in deciding whether to vote for someone? If the position were appointed, but had roughly the same prominence, authority, and duties -- imagine, for instance, that a city council is entitled to appoint a mayor pending a new election when the elected mayor dies or resigns, and Mr. Foster is being considered for such an appointment -- would it be proper for politicians to consider this? Whether or not an individual voter's decision as to this is proper, should opinion leaders try to urge a social norm of considering or not considering such matters? (I'm not asking specifically about whether there's any constitutional or legal barrier to such consideration; you can of course feel free to comment on that, but my question is more about wise policy and a sort of democratic ethics, not about law.)
Note that I've deliberately pointed to a situation in which the person is being considered for an office that doesn't inherently involve much science or science policy. The question then is (chiefly) whether it's proper to consider a person's views about matters such as dinosaurs living on Earth at the same time as humans as (1) probative of the person's general reasonableness, and as (2) potentially embarrassing for the city before some important constituency.
Bloggers polls: Health care, Tea parties, and commentators:
This week, the National Journal poll of political bloggers asked a bonus question, about which "columnists, bloggers and television or radio commentators most helped to shape their opinion or worldview." For right-leaning bloggers, the top five were, in order: Charles Krauthammer, Rush Limbaugh, Mark Steyn, Jonah Goldberg, and Eugene Volokh (!). All hail the Master of the Conspiracy.
On the left, the winners were Paul Krugman, Rachel Maddow, Frank Rich, Bill Moyers, and
Digby.
As for the regular questions, the first was "How much will Democrats be helped or hurt in the midterm elections if Congress doesn't pass major health care reform legislation?" My answer was "Helped a lot." Over half the Right, but only 6% of the Left, thought that Democrats would be helped even a little.
My answer focused not on Democrats in general, but Democrats in swing districts: "There are plenty of reforms which would cost little and give people more choices -- such as allowing interstate competition in health insurance, or giving Medicare/Medicaid/etc. recipients the option of receiving vouchers to use as they see fit. These reforms would probably be supported by a broad spectrum of voters. However, if 'reform' is defined as federal micromanagement of private insurance, and greater federal intrusion into personal health care choices, then 'reform' will probably be perilous for Democrats in purple or red districts."
The second regular question "How closely should the Republican Party align itself with the Tea Party movement?" A majority of both the Left and the Right voted for at least "somewhat closely." I was among the 50% of the Right who voted for "very closely." As I explained, I would have said the same thing about the Democrats: "The Republicans -- and the Democrats -- should crack down on the institutionalized corruption in their own party, and should work hard to balance the budget, end the kleptocratic redistribution of wealth from taxpayers to politically favored businesses, and sharply reduce federal meddling in people's personal lives. Whichever party does that will earn the support of the Tea Party activists, and the gratitude of generations to come."
Is Mandatory Health Insurance Unconstitutional?:
In the The Politico's Arena, we are debating Rivkin and Casey's Wall Street Journal Op-ed that Jonathan notes below. While my take on this issue differs somewhat from his, in my contribution ( here), I respond to this rather catty post by Washington & Lee law professor Timothy Stoltzfus Jost. This is what I wrote: OK, let's be old fashioned and start with what the Constitution says. After the Preamble, the very first sentence of the Constitution says "All legislative powers herein granted shall be vested in a Congress of the United States. . . ." And again the Necessary and Proper Clause gives Congress the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." The Tenth Amendment is not required to see that Congressional power must be found somewhere in the document.("Tenthers"? What's next? "Firsters"? "Necessary and Proper Clausers"?Enough with the derogatory labels, already.) So where in the document is the power to mandate that individuals buy health insurance?
The power "to regulate commerce . . . . among the several states"? This clause was designed to deprive states of their powers under the Articles to erect trade barriers to commerce among the several states. It accomplished this by giving Congress the exclusive power over interstate sales and transport of goods (subject to the requirement that its regulations be both "necessary and proper"). It did not reach activities that were neither commerce, nor interstate. The business of providing health insurance is now an entirely intrastate activity. Reduce...
The "spending power"? There is no such enumerated power. There is only the enumerated power to tax. Laws spending tax revenues are authorized, again, if they are "necessary and proper for carrying into execution the foregoing powers." So we return to the previous issue: what enumerated end or object is Congress spending money to accomplish?
But following the text of the Constitution is so Eighteenth Century. Professor Jost tells us that "a basic principle of our constitutional system for the last two centuries has been that the Supreme Court is the ultimate authority on the Constitution, and the Constitution the Court now recognizes would permit Congress to adopt health care reform." So the Supreme Court gets to rewrite the written Constitution as we go along.
Never mind Dred Scott, Plessy, Korematsu and other not-so-famous Supreme Court "mistakes." The Constitution was what the Supreme Court said it was--until it changed its mind. And the Supreme Court has certainly not limited either the enumerated commerce power or the implied spending power to the original meaning of the text.
Fine. But has the the Constitution of the Supreme Court been extended to include mandating that individuals buy insurance? Professor Jost admits "the absence of a clear precedent." Really! So what has the Supreme Court's Constitution told us about the Commerce Clause Power? Professor Jost cites the medical marijuana case of Gonzales v. Raich.
As Angel Raich's lawyer, who argued the case in the Supreme Court, I think the Court erred (6-3) in reading the interstate commerce power broadly enough to allow Congress to prohibit you from growing a plant in your back yard for your own consumption. By all accounts, however, this is the most far reaching interpretation of the Commerce Power ever adopted by a majority, exceeding the reach of the past champion, Wickard v. Filburn. But even the six Justices in the majority did not say that Congress had the power to mandate you grow a plant in your back yard. Do you think a majority would find that power today?
Perhaps. But under Professor Jost's approach to constitutional law, we must await the Supreme Court's ruling before we know what "the Constitution" requires or prohibits. Until then, the Supreme Court's First Amendment still gives even "two former Bush officials" the right to publish their opinion that the written Constitution delegates to Congress no such power, provided of course they are not trying to influence the outcome of a federal election. Maybe a bare majority will decide this matter by reviewing the text. Stranger things have happened. After all, without any precedent standing in their way, a majority of the Supreme Court decided to follow the original meaning of the text of the Second Amendment in DC. v. Heller.
And when we are done examining Congress's power to mandate that you buy a particular service--or pay a fine, er "tax"--we can then consider its power to restrict the exercise of a person's fundamental right to preserve his or her life.
Is Obama Care Unconstitutional? - Part Deux:
David Rivkin and Lee Casey are back on the WSJ editorial page, arguing once again that current health care proposals are unconstitutional. Specifically, they argue that an "individual mandate" would exceed the scope of Congressional power under current precedent. Further, they argue that this limitation cannot be avoided by using the taxing power to impose a tax on those who fail to purchase a qualifying health care plan.
As with their last effort in this vein, I am unconvinced. I agree with them that an individual mandate would, in many respects, "expand the federal government’s authority over individual Americans to an unprecedented degree," but I disagree that such a mandate would be unconstitutional under current precedent, particularly if adopted as part of a comprehensive health care reform plan.
There is a strong temptation to believe that every onerous or oppressive government policy is unconstitutional Were it only so. Even were the federal government confined to those powers expressly enumerated in the text, it would retain ample ability to enact many bad ideas into law, and current precedent is far more permissive. Opponents of current health care reform proposals should defeat them the old fashioned way, through the political process, and not depend upon salvation from the courts.
D.C. Circuit Voids Campaign Finance Regs:
It may be a little while before we see what the U.S. Supreme Court will do to campaign finance law in Citizens United v. Federal Election Commission. In the meantime, lower court challenges to various FEC rules continue apace. This morning, the U.S. Court of Appeals for the D.C. Circuit struck down some in EMILY's List v. FEC. The court, in an opinion by Judge Kavanaugh, joined by Judge Henderson in full and Judge Brown in part, held several FEC rules are contrary to statute and violative of the First Amendment. Judge Kavanaugh's opinion begins: A non-profit group known as EMILY’s List promotes abortion rights and supports prochoice Democratic women candidates. It challenges several new Federal Election Commission regulations that restrict how non-profits may spend and raise money to advance their preferred policy positions and candidates. EMILY’s List argues that the regulations violate the First Amendment.
The First Amendment, as interpreted by the Supreme Court, protects the right of individual citizens to spend unlimited amounts to express their views about policy issues
and candidates for public office. Similarly, the First Amendment, as the Court has construed it, safeguards the right of citizens to band together and pool their resources as an unincorporated group or non-profit organization in order to express their views about policy issues and candidates for public office. We agree with EMILY’s List that the new FEC regulations contravene those principles and violate the First Amendment. We reverse the judgment of the District Court and direct it to enter judgment for EMILY’s List and to vacate the challenged regulations. The regulations at issue, as descirbed in the opinion, limit the ability of non-profits such as EMILY's List to raise and spend funds by requiring such groups to fund some election-related activities, such as voter registration, advertisements, get-out-the-vote efforts, from their hard money accounts, to which contributions are limited. These rules, the could found, exceed the FEC's power under the Federal Election Campaign Act and violate the First Amendment.
Judge Brown concurred in the court's result, but not it's approach. Her opinion concurring in part argued that the case should have been resolved purely on statutory grounds and questioned Judge Kavanaugh's First Amendment analysis. Her opinion begins: “If there is one doctrine more deeply rooted than any other in the process
of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.” Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). “Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.” Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). Because these regulations must be vacated as contrary to the statute, we need not and should not reach the First Amendment issue. But if we’re going to answer an unnecessary constitutional question, we at least ought to get it right. In light of McConnell v. FEC, 540 U.S. 93 (2003), I have grave doubts about the court’s analysis, which bears at most a passing resemblance to the parties’ briefs, and which will profoundly affect campaign finance law in this circuit. I thus respectfully concur only with Part IV of the court’s opinion, except for footnotes 17, 18 and 20. Something tells me this is not the last we will hear of this case.
Avi Bell on the Goldstone Report:
My inclination is to dismiss out of hand any report that emerges from the U.N. Human Rights Council, which includes such human rights stalwarts as China, Cuba, Egypt, and Saudi Arabia. I'm even more inclined to do so when it establishes a four-person panel to issue a investigate and issue a report on human rights abuses in the recent Gaza war and the panel is initially ordered to focus only on Israel and ignore Hamas (and it's not clear the mandate was ever really changed); one of the members had already declared Israel guilty of war crimes; the chairman of the panel was on the Board of Directors of Human Rights Watch when it accused Israel of war crimes in Gaza; and the panel couldn't do much actual investigating, because the Israeli government quite properly wouldn't let its members set foot in Gaza or Israel.
Nevertheless, for those who don't share my innate skepticism, I thought I'd pass along the following critique of the Goldstone report, received from Professor Avi Bell of University of San Diego and Bar-Lan University:
In paragraphs 100-102, the Goldstone report finds that the Palestinian Authority violates international law guarantees (presumably speech and assembly) by denying funds and employment to Hamas and Hamas affiliates as well as closing their institutions. It raises similar charges against Israel in paragraph 91-92, where it says that Israel carried out "collective punishment contrary to international humanitarian law" by arresting Hamas members who won election to the Palestinian legislature and that Israel violated "international human rights and humanitarian law, including the prohibition of arbitrary detention, the right to equal protection under the law and not to be discriminated based on political beliefs and the special protections to which children are entitled" by arresting "persons affiliated with Hamas."
This is perverse in the extreme, particularly in light of duties of states under UN Security Council resolution 1373 to do exactly that. Israel has additional duties to arrest these people under the International Convention for the Suppression of the Financing of Terrorism (1999) and International Convention for the Suppression of Terrorist Bombings (1997). Of course the PA is arguably not a state and not required to abide by 1373, but by the same token, it's not a state required to obey the universal declaration of human rights (assuming that was binding anyway).
Which brings me to the bigger issue: how Goldstone deals with terrorism altogether. This is the shocker: Goldstone examines the issue and finds only one party guilty of terrorism — ISRAEL. In paragraphs 60, 880, 1169, 1718 (second time – there are two paragraphs numbered 1719) & 1724 (second), the Commission accuses Israel of violating article 33 ban of the Fourth Geneva Convention and article 51 (2) of Additional Protocol I by committing acts of terror.
The closest the Commission gets to admitting that Hamas committed acts of terror is in paragraph 1722 (first), where it says "it is plausible that one of the primary purposes of these continued [Hamas rocket] attacks is to spread terror," paragraph 1724 (first), where the report finds that the rockets "have caused terror in the affected communities of southern Israel" and in paragraph 108 where the report finds “significant evidence to suggest that one of the primary purposes … is to spread terror." But, ultimately, the Commission refuses even here to make a finding that Hamas has committed acts of terror, and instead in paragraph 1724, the report charges Hamas with the crime of indiscriminate attacks.
Elsewhere, the Report never refers to Hamas as a terrorist group or even hints that there might be a legal question. When citing Israeli references to Hamas as terrorist, it includes scare quotes (e.g., paragraph 282 and arguably paragraph 382) if the reference is not in a longer quotation (e.g., paragraph 371). In one place (footnote 246), the report, while refusing to acknowledge that Hamas is a terrorist organization, stresses that surely "political" and "social welfare" wings of Hamas are not terrorist, citing the Australian listing of only the military wing as "terrorist." In another spot (paragraph 1206), the report mocks the idea that one can distinguish activity promoting or supporting terrorism: the report states, "There is, in particular, a lack of clarity about the concept of promoting 'terrorist activity': since Israel claims there is no real division between civilian and military activities and it considers Hamas to be a terrorist organization, it would appear that anyone who supports Hamas in any way may be considered as promoting its terrorist activity. Hamas was the clear winner of the latest elections in Gaza. It is not far-fetched for the Mission to consider that Israel regards very large sections of the Gazan civilian population as part of the ‘supporting infrastructure'."
On the other hand, there is numerous use, without scare quotes, of the word terror to describe Israeli activities. See, for instance, paragraph 1256, where the report describes the psychological state of Palestinians in Gaza as follows, "Many of those who met the Mission stated that they felt terrorized." Or paragraph 1690, where the report states, "It is in these circumstances that the Mission concludes that what occurred in just over three weeks at the end of 2008 and the beginning of 2009 was a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population."
Comments open for four hours.
Thursday, September 17, 2009
Federal Judge Resigns After 3 Years on Bench, Citing Low Judicial Salary:
Above the Law has the scoop about the resignation of District Judge Stephen Larson, a 44-year old Bush appointee out in California.
A Better Sort of King or Queen:
[Warning: None of this is remotely related to any area of expertise that I actually possess.]
So I've long been annoyed by monarchies — including the most milquetoast Western European constitutional monarchies — just on general small-r republican principles. My objection, when it comes to the liberties and welfare of the people, is almost entirely symbolic and aesthetic, given that the monarchs don't really -arch any more.
But I'm also troubled by how monarchy distorts the lives of the Royal Family's children. It gives them unfair advantages, of the sort that can be harmful as well as helpful. But it also imposes on them unfair constraints. They may well be limited (perhaps legally and perhaps by family honor) in whom they can marry. They are limited by family obligation in what they can say, what causes they can champion, what jobs they can go into, and so on. It's very hard for them to lead any sort of private life in which they are judged by the normal standards applicable to ordinary people.
And this isn't something they voluntarily chose; it's thrust upon them, for their whole lives. This is in some measure true for younger children of democratically elected politicians as well, but my sense is that it's much more true at least for the British royals and, I'd guess, for many others as well. Hereditary privileges, obligations, rights, and constraints are, I think, unfair and potentially destructive to their holders.
Yet I have to recognize that it's hard to dislodge centuries-old traditions, such as the monarchy, that are emotionally important to citizens. The traditions can change, even quite substantially, as they have with regard to royal power and royal constraint. But simply shifting from a monarchy to a republic, with no reason other than aesthetics or a worry about the welfare of the royal children, is probably too much.
Hence, my humble proposal: Why not retain the monarchy, but (1) stop its being hereditary, and (2) institute a practice through which the figurehead monarch is chosen by Parliament based on his or her great accomplishments during his or her long life (preferably at least 60 years or so)? The offer to Albert Einstein of the Presidency of Israel (an offer that he of course declined) might be something of a model, though you'd expect Presidents to wear socks. The advantages:
The titles, trappings, and most other incidents of monarchy will be preserved, but the symbolism of royalty will become recognition based on great merit, rather than hereditary right. I expect the affection of the people for the office will also be preserved, since I take it that people who love the Queen love her chiefly because she's the Queen and not because she can trace her lineage to the Electress Sophia of Hanover. (I recognize that some love Queen Elizabeth II is because she's been queen for so long, which my proposal wouldn't provide for; but I take it that many other Kings and Queens reign for less than Queen Elizabeth II has, and that the length of the reign is not the main determiner of the nation's affection for the monarch.) The tangible and symbolic benefits will in fact be given to those who merit them, and not based on accident of birth. The King or Queen will be someone schoolchildren will have good reason to admire, and that foreign dignitaries and others may actually be independently pleased to meet. The selected person will be a known quantity, so people with bad character — or even personal habits that might be perfectly fine in a private citizen but might not be optimal in a head of state — can be screened out up front.. The selected person's family will still be delighted, but in most situations the children won't even have to grow up in the shadow of the parent's office (since the children will probably already be adult by then), much less feel substantial constraint on their lives from the parent's position. Because the person will be near the end of their career, the potentially time-consuming ceremonial duties of royalty will probably not take that much away from the value that the monarch could contribute in the science or art that brought him to the throne. (And wouldn't it be good for the worry to be that having your King be King will make it harder for him to make still more great discoveries or creations?) But the monarch's elevation might make the monarch an effective spokesman for more private contributions to that science or art. Now that the monarchy is largely powerless, the historical objection to elective monarchy and in favor of hereditary monarchy — that in each election so much will be at stake that the nation will come close to civil war — will obviously not be available. While there might be some behind-the-scenes dirty politics in such elections, as in any political endeavor, the practical peril posed by such politics would be minimal.
So, our British, Dutch, Spanish, Swedish, etc. readers — are you with me?
Political Ignorance and Jewish Perceptions of Conservatives and the Religious Right:
In a recent post, co-blogger David Bernstein rightly chides for omitting political ignorance from my post on Jewish perceptions of the religious right. David suggests that Jews may overestimate the prevalence of anti-Semitism among Christian conservatives, and that this may account for part of their distaste for them.
The survey data support David's conjecture. This 2005 American Jewish Committee survey shows that American Jews, on average, view "Evangelical Protestants" as more anti-Semitic than any other group, with the exception of Muslims. 28% of Jewish respondents in the AJC survey thought that "many" or "most" evangelicals are anti-Semitic, and an additional 44% thought that "some" are. Only 23% answered "very few" or "none." By contrast, 19% thought that "many" or "most" African-Americans are anti-Semitic, 15% thought that of Catholics, and only 7% of Hispanics. In reality, ADL surveys show that anti-Semitism among evangelicals is comparable to the national average, and National Election study data show that evangelicals, on average, view Jews slightly more favorably than do other gentiles (though the difference is not statistically significant). By contrast, anti-Semitism among African-Americans and Hispanics is significantly higher than the national average (though a majority of both groups is not anti-Semitic, and among Hispanics the divergence from the national average is largely a result of anti-Semitism among Hispanics born in Latin America, where anti-Semitism is more common than in the US).
Obviously, evangelical Protestants and the religious right are not identical. But there is a high overlap between the two groups, and negative attitudes towards one are likely to be correlated with hostility to the other. If anything, I would bet that the AJC study would have recorded a higher perceived level of anti-Semitism if they had asked Jews their opinions about the "religious right."
As I have argued in my academic work, political ignorance is both rational and widespread. So we should not be surprised that that many Jews might be ignorant about the true prevalence of anti-Semitism among Christian conservatives. Political ignorance is not a specifically Jewish pathology. Rather, it cuts across ethnic, religious and political lines. Surveys of evangelicals and conservatives reveal all kinds of political ignorance among these groups as well.
An interesting question is whether Jews would be less hostile to the religious right and conservatism more generally if they had a more accurate perception of the prevalence of anti-Semitism in those quarters. Some of the hostility might disappear, but not as much as we might think. Even if Jews did not perceive Christian conservatives as more anti-Semitic than they really are, there would still be vast cultural and ideological differences between the two groups that would lead many Jews to be hostile to a political movement closely associated with the religious right. Moreover, some of the Jewish overestimation of evangelical anti-Semitism might actually be a result of the antagonism between the two groups rather than a cause. Many studies show that people tend to devalue or ignore any information that makes their political adversaries look good, while overvaluing anything that looks bad. Some Jews might accept exaggerated claims of anti-Semitism among Christian conservatives in part because they already dislike them for other reasons. Similarly, people tend to reject information that makes their political allies look bad. That may help explain why liberal Jews might underestimate the relatively high rate of anti-Semitism among key Democratic constituencies such as African-Americans, foreign-born Hispanics, people with very low levels of education, and the poor (though it is important to note yet again that the majority of each of these groups is not anti-Semitic).
A second way in which ignorance might affect Jewish perceptions of conservatives and the religious right is that Jews may overestimate the extent to which these groups want to establish Christianity as a quasi-official religion, persecute religious minorities, ban the teaching of evolution, and so on. While some Christian conservatives seek to make the US an officially "Christian nation" and otherwise subordinate minority faiths, many others have far more limited objectives, such as legalizing government-sponsored religious displays, permitting voluntary prayer sponsored by public schools, and so on. Even the more moderate version of the Christian conservative agenda is at odds with the social liberalism of most Jews (and my own views as well). But understanding the true nature of the mainstream religious right agenda might lead some Jews to be more willing to ally with conservatives on economic and foreign policy where a large minority of Jews might agree with them. However, it's hard to say how important this factor is without looking at actual survey data on Jewish perceptions of the religious right political agenda.
In sum, I think a more accurate understanding of the religious right would lead only to a modest reduction in Jewish distaste for them. But it might cause some Jews who agree with conservatives on economic and foreign policy issues to be more willing to ally with them in spite of a continuing dislike of the religious right element of the conservative political coalition. It's unthinkable for many Jews to even consider allying with a group perceived as a bunch of troglodyte anti-Semites who want to make Christianity the official religion. An alliance of convenience with people who are not anti-Semitic theocrats, but merely (from secular Jews' point of view) badly mistaken about various social issues, is less inconceivable.
UPDATE: It is perhaps worth noting that the AJC survey linked above does show that Jews perceive a comparatively high degree of antii-Semitism among African-Americans, with 73% answering that at least "some" African-Americans are anti-Semitic, very similar to the 72% who said the same of "Evangelical Protestants." Only 24% stated that "very few" or no blacks are anti-Semitic (23% said the same of evangelicals). However, a much larger percentage of Jews (28%) believe that "many" or "most" evangelicals are anti-Semitic than say the same of blacks (19%).
Indiana Voter ID Law Struck Down:
The Indiana voter identification law that had been upheld by the U.S. Supreme Court in Crawford v. Marion County Election Board was held unconstitutional by the Indiana Court of Appeals today. Whereas the U.S. Supreme Court held the law does not violate the U.S. Constitution, the Indiana court held it violates the Equal Privileges and Immunities Clause of the Indiana Constitution. The opinion is here. More from the NYT and the Election Law blog.
Gerard Lynch Confirmed to Second Circuit:
Gerard Lynch has been confirmed to the Second Circuit by the U.S. Senate by a vote of 94-3. Bravo. Judge Lynch has been an outstanding District Judge, and he is extremely bright; I am very much looking forward to reading his work now that he will be on the Second Circuit.
Lethal Mulligan:
Ohio authorities were supposed to execute Romell Bloom on Tuesday. Technicians spent two hours trying to find a vein to use for the lethal injection procedure, to no avail, prompting Governor Ted Strickland to order a one-week reprieve. Next week, they will try again. In the meantime, Bloom's attorneys and death penalty opponents will press the arguments that it would be unconstitutional to execute Bloom, either because Ohio's lethal injection protocol or a repeat attempt to execute Bloom constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Here's coverage from the NYT and Cleveland Plain Dealer.
What Treasury's Climate Memo Does [And Does Not] Reveal:
A confidential Treasury Department memo from March 2009, obtained by the Competitive Enterprise Institute through a FOIA request, purports to provide evidence that the cap-and-trade proponents have grossly underestimated the cost of such a program. But does it really?
Here is the relevant portion of the document, as redacted by the Treasury Department: While such a program can yield economic benefits that justify its costs, it will raise energy prices and impose annual costs on the order of XXXXXXXXXXXXXX dollars. At the same time, given the Administration's proposal to auction all emission allowances, a cap-and-trade program could generate annual receipts on the order of $100 to $200 billion annually. Finally, by encouraging investments in clean energy sources, climate policy could increase the fiscal cost of existing energy tax provisions, such as renewable electricity and biofuel tax credits. XXXXXXXXXXXXXXXXXXXXX. [The Xed out portions are redacted in the memo.]
The revenue estimate above -- $100 to $200 billion -- is explicitly based upon the auction of all allowances, so it is not a fair representation of the cost of the Waxman-Markey cap-and-trade bill that passed the House. These revenues are costs to energy producers -- costs that would be passed along to consumers -- but the Waxman-Markey bill provides for giving away most of the carbon allowances, so it would generate less revenue, and thus would impose lower direct costs on emitting firms. Waxman-Markey is far more than just a cap-and-trade bill, so other provisions of the bill would cost consumers in other ways, but these are not addressed in the Treasury memo. So, contrary to some claims, the memo does not reveal a secret Obama Administration cost estimate for existing cap-and-trade legislation. [More from the Washington Post here.]
The Treasury memo may be significant in another way, however, insofar as it represents the Administration's view of its obligations under the Freedom of Information Act. Portions of the memo above providing greater detail about the Treasury Department's assessment of the potential economic impact of a cap-and-trade program were withheld. And for what reason? Notations on the memo indicate these estimates were redacted under FOIA exemption (b)(5). This exemption allows the federal government to withhold "inter-agency or intra-agency memorandums of letters which would not be available by law to a party ...in litigation with the agency." As explained by the Justice Department, this exemption applies to "those documents, and only those documents that are normally privileged in the civil discovery context." Yet the Treasury Department did not maintain that the memorandum in its entirety was exempt, just a few clauses and sentences providing more complete cost estimates. I will admit I am not a FOIA expert, but this does not appear to be a faithful application of the relevant exemption, let alone the Administration's stated FOIA policy. It also cannot help but feed suspicions that the Administration has not been candid about the potential costs of proposed climate policies. As Roger Pielke, Jr. comments: "Memo to politicians: if you have nothing to hide, then don't hide anything."
Oregon Attorney General's Office Claims Copyright in
the Attorney General's Public Records and Meetings Manual; now a University of Oregon Economics professor, Bill Harbaugh, has posted the manual online, giving the Attorney General's office a heads-up. It will be interesting to see the results.
I should note that the Copyright Act specifically provides that works of the federal government are in the public domain, and longstanding copyright law decisions say the same about state court decisions, but in principle the Copyright Act does not preclude other state agencies from owning copyrights in works that they've created (though it's possible that the fair use doctrine might authorize pretty broad copying of at least some such works). I take it that Prof. Harbaugh's argument is that the Attorney General's office shouldn't assert copyright, not that it is legally precluded by copyright law from so asserting it. And I take it that he is counting on the Attorney General's good judgment and good political sense, and not on any legal doctrine, to protect him.
Jeff Mapes, a columnist at the Oregonian, reports further; thanks also to Mark Thoma for the pointer.
The Federalist Society National Lawyers Convention
will be in D.C. this year from Thursday, November 12 to Saturday, November 14. As always, it should be a very interesting and educational event, with first-rate speakers, including liberals as well as conservatives and libertarians. I highly recommend it; the conference schedule and registration page are linked to here.
"Illegal Alien" vs. "Undocumented Alien":
Following up on Eugene's post, the always-helpful Bryan Garner concludes in his excellent resource, A Dictionary of Modern Legal Usage: "The usual and preferable term in American English is illegal alien. The other forms have arisen as needless euphemisms, and shold be avoided as near-gobbledygook. The problem with undocumented is that it is intended to mean, by those who use it in this phrase, 'not having the requistie documents to enter or stay in a country legally.' But the word strongly suggests "unaccounted for" to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the meaning."
Garner has more analysis on the debate. I don't have a firm view on the subject, but pass the reference along to those who are interested. Related Posts (on one page): - "Illegal Alien" vs. "Undocumented Alien":
- Illegal Aliens:
Obama's Health Care Myths
John Lott has this interesting post about President Obama's health care myths. Here is the lead:
Two claims are made all the time in the health care debate: 1) that there is little competition among those providing health insurance and 2) that it is important to take the profit motive out of providing health insurance. Both are myths. It turns out that claims about too little competition are based on a misinterpretation of the data and that non-profit insurers are so abundant that the largest insurer in virtually every state is a non-profit.
Count the Errors:
Once in a while I come across an op-ed filled with so many errors, misstatements, and plainly weak claims that the mere number of those becomes far more interesting than the argument of the op-ed itself. A case in point is today's Wall Street Journal op-ed by Fox News Channel senior judicial analyst Andrew P. Napolitano, which argues that President Obama's health care proposals are unconstitutional because they exceed the commerce clause power. Here's an excerpt; how many errors, misstatements, and plainly weak claims can you count? The Supreme Court finally came to its senses when it invalidated a congressional ban on illegal guns within 1,000 feet of public schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states. The movement of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core, and school safety has historically been a state function.
Applying these principles to President Barack Obama's health-care proposal, it's clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century. There are also errors by omission, like the curious decision to ignore Gonzales v. Raich, but I think it's only sporting to stick to claims actually made.
Thanks to the WSJ Law Blog for the link.
American Jews, Liberalism, and the Democratic Party:
I may make a more detailed contribution to the debate soon, but for now I wanted to point out that Norman Podhoretz and others are conflating two separate issues: the first is why American Jews are generally more liberal than are other Americans, and the second is why American Jews are so attached to the Democratic Party, especially in presidential elections, such that even Jews who are moderate to moderately conservative are presumptive Democratic voters.
On the former issue, one obvious reason is that Jews tend to be much more secular than Americans as a whole, and that religious Jews tend not to be inclined to want to impose "Jewish values" on other Americans. But it's also true, and not widely appreciated, that on economic issues, at least, Jews have become much more conservative over time. Ilya has pointed out that American Jews are right in the mainstream on economic issues. This is a great change from the past. Very few American Jews were to the right of Franklin Roosevelt in the 1930s. About 1/3 of Jews in the 1930s were Socialists (including my maternal grandfather). You would be hard-pressed to find one-tenth that percentage today. A persistent myth is that most American Jewish immigrants were very religious, and only adopted radical politics when exposed to American working conditions. In fact, the most religiously committed Jews tended to stay in Europe, where they had a vast communal infrastructure. (My paternal grandfather's cousin's very religious family came to the U.S., and then, to their great misfortune, left the triefe medinah because of the lack of religiosity they found and returned home. There was one survivor.) A significant percentage of immigrants to the U.S. were young rebels who wanted to escape communal strictures. They brought their generally radical socialist politics with them.
On the issue of party identification, Ilya is clearly right that Jews fear/despise the Christian right, and that is a good part of the reason Jews are loyal to national Democratic candidates (local candidates like Rudy Giuliani have received a majority of Jewish votes). But I was surprised he didn't bring up political ignorance. In my experience, and I'm quite certain the data would back this up, American Jews tend to substantially overestimate anti-Semitism among evangelical Christians (who in fact are not any more anti-Semitic than the average, and are more likely to be philo-Semitic), even more substantially overestimate the (in fact very small) percentage of evangelicals who support Israel to hasten the end of days at which time Israel and the Jews will be destroyed. The vast majority of evangelicals who support Israel do so for other reasons.
Meanwhile, Jews substantially underestimate the level of anti-Semitism among core Democratic constituencies (among the most anti-Semitic groups in the country are African Americans, Latinos, Arab Americans, and high school dropouts, though I should add that most members of those groups are not anti-Semitic), and the hostility to Israel shown by various left-wing groups with influence in Democratic politics.
UPDATE: I should add that I'm a strong adherent to the theory that party identification among people who are not highly ideological or very interested in politics (most people, including most Jews) is at least as much a matter of cultural identification--which party represents people like me, is accepting of people like me, has active members who I'd feel comfortable socializing with, and the like--as policy-related. If Jews tend to think that the Republican Party is full of anti-Semites and the Democratic Party is not, they will tend to identify with the Democrats. Israel comes in as a cultural marker, as Jews tend to associate hostility to Israel with hostility to Jews, which is, in fact, a correlation backed up by studies showing that there is a significant correlation.
Bad Timing:
I'll leave the question of whether President Obama's decision to abandon a planned missile defense of Poland and the Czech Republic is good or bad policy. As a matter of timing, however, it's surely bad politics. There's surely a better day to make such an announcement than the 70th anniversary of Stalin's invasion of Poland.
UPDATE: The NYT reports on the unfortunate timing as well.
SECOND UPDATE: The NYT story linked above no longer makes reference to the timing, but this other NYT story does.
Wednesday, September 16, 2009
Sotomayor & Corporate Rights:
Should the law treat corporations as legal persons? The newest justice may think not — or at least that's the impression some have drawn from a comment she made at the Citizens United oral argument last week. From the WSJ:
During arguments in a campaign-finance case, the court's majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.
But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.
Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics." . . .
Justice Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg. "A corporation, after all, is not endowed by its creator with inalienable rights," Justice Ginsburg said, evoking the Declaration of Independence.
Sotomayor's remark cheered some, but not others.
"Progressives who think that corporations already have an unduly large influence on policy in the United States have to feel reassured that this was one of [her] first questions," said Douglas Kendall, president of the liberal Constitutional Accountability Center.
"I don't want to draw too much from one comment," says Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. But it "doesn't give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded."
UPDATE: Larry Ribstein has more. His bottom line: "In a nutshell, viewing the corporation as an entity for First Amendment purposes actually serves to push the speech rights of owners and managers under a rug. Abandoning entity reasoning would focus on what matters for the First Amendment analysis. . . . once you do that, and put the arguments for limiting speech rights under an analytical spotlight, they look pretty weak."
SECOND UPDATE: Still more from Professor Bainbridge here.
Illegal Aliens:
The National Association of Hispanic Journalists writes: As the heated debates over health care and immigration reform collide, the National Association of Hispanic Journalists calls on our nation’s news media to stop using the dehumanizing term “illegals” as a noun to refer to undocumented immigrants.
NAHJ has long advocated for accurate terminology in news media’s coverage of immigration. NAHJ is concerned with the increasing use of pejorative terms like “illegals” – which is shorthand for “illegal aliens”, another term NAHJ objects to using – to describe the estimated 12 million undocumented people living in the United States.
Using "illegals" in this way is grammatically incorrect and crosses the line by dehumanizing and criminalizing the person, not the action they are purported to have committed. NAHJ calls on the media to never use “illegals” in headlines and in television news crawls.
“We continue to see ‘illegals’ used as a noun seeping from the fringes into the mainstream media, and in turn, into the mainstream political dialogue,” said NAHJ Executive Director Iván Román. “Using these terms not only distorts the debate, but it takes away their identities as individuals and human beings. When journalists do that, it’s that much easier to treat them unfairly and not give them an equal voice in the controversy.”
By incessantly using metaphors like “illegals”, the news media is not only appropriating the rhetoric used by people on a particular side of the issue, but also the implication of something criminal or worthy of suspicion. That helps to predetermine the credibility or respect given to one of the protagonists of this debate, which is not conducive to good journalism and does a disservice to the principles of fairness and neutrality.
In addition, NAHJ has always denounced the use of the degrading terms “alien” and “illegal alien” to describe undocumented immigrants because it casts them as adverse, strange beings, inhuman outsiders who come to the U.S. with questionable motivations. “Aliens” is a bureaucratic term that should be avoided unless used in a quote.
NAHJ prefers using the term "undocumented immigrant" or "undocumented worker" rather than the term "illegal immigrant" which several media outlets have adopted.
NAHJ also calls on editors and journalists to follow generally accepted guidelines regarding race and ethnicity and refrain from reporting a person’s legal status unless it is relevant to the story in question. The public in certain regions of the country have pressured news media to publish the legal status of any Latino who appears in the newspaper or on television, regardless of the story’s subject.
Doing so contributes to the growing trend of profiling Latinos as non-Americans or foreigners and using them as scapegoats for a variety of society’s ills, a tone that has become more pervasive in the public dialogue over the past few years. Few now doubt that this helps create a fertile environment for hate speech which we have seen can lead to discrimination and a growing number of hate crimes in the U.S. against Latinos.
As the U.S. tackles immigration reform in the future, NAHJ believes that responsible, fair, and non-simplistic coverage of this complex issue is in order. The words used can be part of the problem or can contribute to fair coverage and a fruitful public debate.
NAHJ, a 1,500-member organization of reporters, editors and other journalists, addresses the use of these words and phrases by the news media in its Resource Guide for Journalists. For excerpts of some of the relevant entries in the resource guide, click here.
Of course there's nothing "grammatically incorrect" about using "illegal" as a noun; adjectives often double as nouns, often with "the" ("the poor," "the rich," "the dead") and sometimes without a "the" ("Americans"). Dictionaries, including the Oxford English Dictionary, list "illegal" as a noun, though the Random House lists it as an informal usage.
Nor is "undocumented immigrant" or "undocumented worker" somehow more "fair" than "illegal alien." Illegal aliens' problem — perhaps it shouldn't be a problem, but it certainly is a problem for them — isn't just that they somehow lack documents. It's that they lack the legal right to be here. One can debate whether they should have the right to be here, but the fact is that under the current legal system their being here is not legal. Someone who owns a gun without a registration required by state law, because state law bars him from getting such a registration (because he's underage or a felon or what have you) isn't just an "undocumented gun owner." He's an illegal gun owner, and identifying him as such better expresses the reality of the situation, even if you think that the law should be different.
This leaves the question of whether the terms are unduly pejorative, in much the way that "abortionist" is unduly pejorative, to the point that using the term this way is unnecessarily argumentative, and distracting and credibility-reducing in an objective article. I'm actually inclined, based on my sense of how the term is used, to think that the noun "illegal" is, which is why I generally don't say "illegals." But that's in large part because there is an alternative that is not deliberately obfuscatory, and commonly used as simply descriptive — "illegal alien" (or, for "abortionist," "abortion provider").
As between "illegal alien" and "undocumented immigrant," it strikes me that the former is more reflective of what is actually going on, for better or worse, and the latter is an attempt to hide what is actually going on. If one is writing political advocacy, one may deliberately choose the latter term (though even then one risks losing credibility). But if one is trying to be an objective journalist, I think "illegal alien" or "illegal immigrant" is the more objective and more candid way of putting things.
National Constitution Center Poll:
The National Constitution Center released the results of its annual poll on public opinion about constitutional issues this week, and the results are quite interesting. Here is how the NCC described the results in a press release: Americans oppose giving the federal government more power to improve the economy, and strongly oppose government intervention in private enterprise, according to a new poll on constitutional issues released today by the National Constitution Center and the Associated Press. The Center commissioned a similar poll in 2008, and intends to poll annually to see how responses change over time.
The 2009 poll found that Americans strongly oppose allowing the government to take partial ownership of private enterprise, even if it would prevent them from going out of business (71%) or losing jobs (66%), or if the failure of the industry would seriously harm the economy (60%).
In addition, results were split as to whether health care was something the government should ensure for all Americans.
In other findings, the poll shows that Americans generally have a strong attachment to constitutional values and an overall commitment to the ideals laid out in the Preamble of the Constitution, including the separation of power, rule of law, and protection of individual rights. In particular, 61% of Americans believe the rule of law should be followed, even if it comes at the expense of public safety. This result is up from 54% in 2008. In addition, 75 percent of poll respondents agreed with the statement that “The United States Constitution is an enduring document that remains relevant today” (up from 70 percent in 2008); while only 23 percent indicated agreement with the alternative view that “The United States Constitution is an outdated document that needs to be modernized.” I also found it interesting that only 37 percent of respondents agreed with the statement “If a majority of people want something to happen, the rights of a few shouldn’t stand in the way,” while 57 percent preferred “The rights of everyone should be protected, even when that means saying no to something the majority of people want to happen.” Further, 75 percent opposed the idea of “giving the President more power at the expense of the power of Congress and the courts” even if “it would help improve the economy.”
This is just one poll, and there are plenty of reasons to be skeptical of the results. Nonetheless, I found it to be quite interesting. The full poll toplines are available here.
Is It Legal for Human Rights Watch to Suspend an Analyst for Collecting Nazi Paraphernelia?
The underlying story is linked to here; but what struck me is that New York -- the place where Human Rights Watch is headquartered, and where I take it Marc Garlasco is working -- has a statute that generally prohibits employers from discriminating against employees based on their lawful recreational activities:
[1.]b. “Recreational activities” shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material; ...
2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: ...
c. an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property; ....
3. The provisions of subdivision two of this section shall not be deemed to protect activity which:
a. creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest; ....
4. ... [A]n employer shall not be in violation of this section where the employer takes action based on the belief ... that: ... (iii) the individual's actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.
5. Nothing in this section shall apply to persons who, on an individual basis, have a professional service contract with an employer and the unique nature of the services provided is such that the employer shall be permitted, as part of such professional service contract, to limit the off-duty activities which may be engaged in by such individual....
So while Garlasco's collecting Nazi memorabilia might well cause serious public relations problems for Human Rights Watch, the organization may not suspend him (suspension surely qualifies as discrimination in terms, conditions, and privileges of employment) based on such collecting -- assuming Garlasco "received no compensation" for the collecting -- unless one of the exceptions applies. What are the possible exceptions?
Provision 5: Maybe Garlasco's contract qualifies as a "professional service contract" based on "the unique nature of [his] services," and the contract specifically provides that the employer may limit off-duty activities; I'm not sure, though, whether his services are "unique" enough that this would apply even if the contract has such a clause. If anyone knows more about this provision, or about the normal New York law or employment law definitions of "professional service contract" or "unique nature," I'd love to hear about it.
Provision 4.iii: I doubt that one would conclude that Garlasco's collecting would reasonably qualify as being "incompetency or misconduct," though of course the terms are quite vague, and one could argue that any employee action that could lead to the public's devaluing the employee's work for his employer is "incompeten[t]."
Provision 3.a: One could argue that Garlasco's conduct "creates a material conflict of interest related to the employer's ... business interest." In my experience, "conflict of interest" generally refers to some way in which an employee's activity potentially undermines his loyalty to the employer. But one case, Berg v. German National Tourist Office, 248 A.D.2d 297, 297 (1998), seemed to read the provision broadly enough to also cover actions that undermine the employee's utility to the employer, by exposing the employer to hostility stemming from public hostility to the employee's views. In Berg, the court found that the German National Tourist Office acted permissibly in firing an employee for becoming publicly known as the translator of some Holocaust revisionist articles. But is Berg, which is a single decision of the New York intermediate appellate court, not the state high court, correct? And would it also apply to the less incendiary -- though obviously still unpopular -- behavior of collecting Nazi memorabilia?
The First Amendment: Finally, it's possible that Human Rights Watch's First Amendment rights -- here, the rights to choose who writes and comments on its behalf -- might trump the New York statute in some situations. Compare Nelson v. McClatchy Newspapers, Inc., 936 P.2d 1123, 1127 (Wash. 1997) (holding, by a 5-4 vote, that the First Amendment trumped such a statute when a newspaper demands that its reporters not engage in politics; that specific scenario is exempted from the New York statute, but the Washington court's logic may apply to other situations as well) with Ali v. L.A. Focus Publication, 112 Cal. App. 4th 1477 (2003) (rejecting the claim that a newspaper "has the unfettered right to terminate an employee for any [outside-the-newspaper] speech or conduct that is inconsistent with the newspaper's editorial policies").
I'm inclined to say that employers should indeed have broad rights in such situations, and in most states they would. It's also possible that under Berg, Human Rights Watch may indeed fire employees for doing anything that might make them or Human Rights Watch seem less credible. Still, the matter is not as clear in New York as it would be in most states, because of the statute I quoted above.
Where American Jewish Opinon Differs from the National Average:
In my previous post, I argued that American Jews are overwhelmingly liberal primarily because of their opposition to the religious right. In 2005, the American Jewish Committee published Jewish Distinctiveness in America, a massive study of the ways in which Jewish political opinion (among other variables) differs from the national average. It turns out that Jews don't differ very much from gentiles on economic policy and government spending issues. But they are vastly more liberal on "social issues" such as abortion, sexual morality, and the role of religion in public life. Table 65 on pg. 269 in the AJC summarizes the extent to which Jewish opinion differs from the national average on a variety of issues (e.g. - if the difference is 5 points, that means that if the national average is 50% support for a given view, the Jewish average is either 45% or 55%). On a variety of questions relating to government spending and taxes, Jews diverge from the national mean by an averageof approximately 7 percent. The difference on "social welfare" policy questions is even smaller (a 4.4% average). And on some of these issues, Jews are actually a bit more conservative than the national average rather than more liberal. For example, only 38% of Jews support government efforts to "reduce income differences," compared to a national average of 43% (Table 42.A), and 70% of Jews believe that their income taxes are too high (compared to 64% of non-Jews). Most strikingly, only 41% of Jews (compared to 52% of gentiles) believe that the government spends "too little" on Social Security, despite the fact that a much higher percentage of Jews than gentiles are senior citizens (Table 38L).
There are, of course, some economic and social welfare issues where Jews are more liberal than the national average (e.g. - education and health care spending), but the differences are relatively small. Moreover, Jewish-gentile differences over economic and social welfare issues have actually narrowed slightly over the last 30 years, as Jews have grown a bit more conservative on these matters (Table 66). The average Jew is hardly a thoroughgoing free market advocate; but his or her views on economic issues are not much different from those of the average gentile.
In sum, if conservatives and the Republican Party were primarily focused on economic and size of government issues [i.e. - if those where the main issues where they differed from the Democrats], they might attract almost as much support from Jews as among gentiles.
By contrast, there are huge gaps between Jewish opinion and the national average on social issues (also from Table 65). In each case, Jews are much more liberal than gentiles (there are virtually no social issue questions where Jewish opinion differs from gentiles in a more conservative direction):
Abortion: 29%
Sexual Morality: 21%
Suicide: 18%
Civil liberties: 13%
Each of these totals averages data from several different questions in the relevant issue area. Some of the results on individual questions are also striking. For example 77% of Jews favor legalized abortion on demand, compared to only 40% of non-Jews (Table 12.G). Similarly, only 18% of Jews believe that homosexual sex is "always wrong" compared to a national average of 59% (Table 16.C). The data also shows that 84% of Jews approve of the Supreme Court's rulings forbidding government-sanctioned prayer in public schools, compared to only 38% of non-Jews (Table 9.C).
Overall, the areas where Jewish opinion differs greatly from the national average are overwhelmingly social issues emphasized by the religious right. As I argued in my last post, it is likely that more Jews would be willing to identify as conservative and/or vote Republican if conservatism and the Republican Party were not so closely identified with right-wing stances on social issues.
The data in the AJC study is derived from General Social Survey questions conducted from 1991 to 2002. I highly doubt that the distribution of Jewish-gentile gap has radically altered over the last few years, but I can't rule out that possibility without analyzing more recent GSS data (which I don't have time to do right now). However, if anyone has done such an analysis, I would be happy to link to it.
For now though, the AJC data strongly support my view that the overwhelming liberalism of American Jews is largely driven by differences with the religious right over social issues. A related factor, of course, is a cultural distaste for the religious right that leads many secular Jews to fear and dislike them over and above the specific details of the disagreements between the two groups.
UPDATE: Some commenters on this and the previous post misinterpret my point, thinking that I am arguing that it would be good political strategy for the Republican Party to give up its ties to the religious right in order to attract more Jewish votes. While I would love to see a more libertarian Republican Party, there is a big difference between my personal preferences and what would be politically wise. There are many more Religious Right voters (perhaps 15-20% of the population) than Jewish ones (about 2%), out there. Alienating the Religious Right in order to increase the party's Jewish vote by 10-20% would be poor strategy. Moreover, Jewish voters are concentrated in states like New York and Massachusetts that would be overwhelmingly Democratic even if the Jews were more evenly divided between the two parties. Even if the percentage of New York Jews who vote Republican doubled, the state would still be heavily blue.
Thus, I don't at all suggest that it would be good political strategy for the Republicans to break with the Religious Right to the extent necessary to attract significantly more Jews. To the contrary, it would probably be a net political loss for them to do so. A more modest downplaying of social conservatism could be politically advantageous, in so far as it might attract more non-Jewish middle class suburbanites without antagonizing the religious right too much. But such incremental moves are unlikely to to make much of a difference with Jews because the latter are so strongly liberal on social issues.
UPDATE #2: Some other commenters misinterpret me as suggesting that Jews have adopted liberal stances on social issues merely because the Religious Right adopts conservative ones. That isn't my argument at all. Rather, I suggest that most Jews strongly dislike the Religious Right because the two groups differ greatly on social issues, as well as because of the massive cultural differences between the two. And they associate conservatism and the Republican Party with the Religious Right. As a result, even many Jews who hold conservative views on economic and foreign policy issues are unwilling to think of themselves as conservatives or to vote Republican, because doing so means supporting a group associated with the Religious Right. The Religious Right did not, in my view, cause Jews to hold liberal views on social issues. But it does explain why so few identify as conservative overall or vote Republican, despite the fact that Jewish and gentile views on many other issues don't differ very much.
Things Economists Agree and Disagree About:
Robert Whaples publishes the summary of the latest available (2007) survey of the views of the economics profession in the US, via a random sample of members of the American Economics Association. As ever, fascinating reading, particularly for its scope - questions deal with things from Walmart to trade to the size of Americans' houses. Professor Whaples's introduction and summary are very well written, and the whole report - it's not overwhelmingly long - is easily read and digested by students. There are a lot of things where economists largely agree, something that sometimes gets lost in translation in the wider culture; certainly many of my students seem to be under the impression that, particularly these days, economists disagree about everything and that there is no consensus, let alone a demonstrably 'correct', view on anything.
Senate votes to allow guns in checked Amtrak baggage:
Today the Senate voted 68-30 to require that Amtrak allow passengers to transport unloaded firearms in checked luggage, in the same manner as currently allowed for airline passengers. The vote for was for an amendment (SA 2366) to the Transportation Housing and Urban Development appropriations bill. The amendment was sponsored by Sen. Roger Wicker. If the amendment becomes law, it will undo a policy change which Amtrak imposed in 2001.
Middle District of Georgia Rejects Birther Lawsuit:
Decision in Rhodes v. MacDonald, dismissal for failure to state a claim. It seems to me to be a well-reasoned opinion.
"Attorneys, Academics Sort Through Landmark Case on Computer Searches":
The Bureau of National Affairs Criminal Law Reporter has an in-depth story on the Ninth Circuit's remarkable computer search and seizure decision in United States v. Comprehensive Drug Testing. I have posted it with the permission of BNA. To clarify one comment I make at the end of the article, I think the Supreme Court will grant cert if DOJ files a petition. My concern about waiting for another case is about whether the SG's Office might try to wait for another case, not whether the Justices would.
Mustn't Offend the Communists:
From the Ottawa Citizen:
A new monument in Ottawa to commemorate the victims of some sort of oppression was approved by the National Capital Commission’s board of directors Thursday, but the decision has left those proposing the monument confused as to what, exactly, was approved....
The NCC board passed a motion supporting the concept of the commemoration, “but perhaps with a different title,” after objections about the title were raised by nearly all members who spoke.
The title — “monument to the victims of totalitarian communism” — has already been changed once. In the first proposals, ... it was to be called “monument to the victims of communism.”
After beginning discussions with the NCC in March 2008, the groups had back-and-forth discussions with a committee of experts who suggested that the title be changed because it could be perceived as “unduly critical of Canadians who might associate themselves with communism,” Egan said.
The group then changed the name to include the word “totalitarian.” The title still did not sit well with the board.
“I was unsettled by this name, and other members of the committee agreed with me,” said Hélène Grand-Maître, speaking in French. “We should make sure that we are politically correct in this designation.”
Board member Adel Ayad said the name was troubling for its “very tight definition” and for the presence of the word “communism” in the title, as Canada has a communist party.
“It’s not communism itself that we should be fighting here. It is rather totalitarianism we are against in any form,” he said....
The monument aims to honour the 100 million people who died under communist regimes across the world .... The monument will also thank Canada for its role in providing a homeland for those coming from communist regimes.
The monument has a $1.5-million budget, all of which will come from private-sector fundraising, according to the proposal....
The National Post [UPDATE: link fixed] also adds:
One commissioner questioned whether Canadians could even legitimately point fingers at the brutality of Stalin or Pol Pot, given that our own federal government had put Japanese-Canadians in internment camps during the Second World War.
Perhaps, suggested another [Richard Jennings, judging from a reference in the Ottawa Citizen article -EV], the best route would be to be avoid specifics, strike "communism" from the proposed name altogether, and dedicate the memorial to "victims of oppressive regimes," so as not to single any particular ideologies out.
As always with these things, I should caution that news accounts may omit important context for the quotes; if anyone has a pointer to a fuller account, or a transcript, audio, or video of the board meeting, I'd love to see it.
OLC Opinion in the News:
Charlie Savage has an article in the New York Times today about an OLC opinion released in late August addressing the constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act. The opinion concluded that the provision unconstitutionally infringes the President's foreign affairs powers and thus the President can disregard it. Savage writes:
The Justice Department has declared that President Obama can disregard a law forbidding State Department officials from attending United Nations meetings led by representatives of nations considered to be sponsors of terrorism.
Based on that decision, which echoes Bush administration policy, the Obama administration sent State Department officials to the board meetings of the United Nations’ Development Program and Population Fund in late spring and this month, a department spokesman said. The bodies are presided over by Iran, which is on the department’s terror list, along with Cuba, Sudan and Syria.
The article quotes an occasional Conspirator (uh, me).
The opinion supported one of President Obama's signing statements. It read, in relevant part:
Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.
Why (Native-Born American) Jews Are Liberal:
Norman Podhoretz's recent book Why Are Jews Liberals? argues that Jews are overwhelmingly liberal because they have become secular and have turned to political liberalism as a substitute for religion. This Wall Street Journal Podhoretz op ed summarizes his argument.
Podhoretz rejects claims that Jews are liberal because this is required by Jewish religious values; as he points out, the most religious Jews are often the least liberal. He also denies (correctly in my view) that political liberalism advances the self-interest of American Jews, and also notes that in recent decades the right has generally been more supportive of Israel than the left.
While Podhoretz effectively criticizes alternative explanations for Jewish liberalism, his own theory is equally unpersuasive. A key flaw is that it lacks comparative perspective. Jews in other English-speaking democracies, including Britain, Australia, and (more recently) Canada, often either support right of center parties or at least split their vote between right and left in roughly the same proportions as the gentile population. Margaret Thatcher represented a London district with a large Jewish population, and routinely won the nationwide Jewish vote in her three electoral victories.Some of the conservative politicians supported by British and Australian Jews were more moderate than their US Republican counterparts. But that certainly wasn't true of Thatcher, among others. Australian, British, and Canadian Jews are, on average, roughly as secular as American ones. So it isn't necessarily true that secular Jews trend towards the political left as part of their search for an alternative to religion.
Right here in the United States, Podhoretz's analysis ignores the political leanings of Russian immigrant Jews, who constitute up to 12% of the total US Jewish population, are overwhelmingly secular (far more so than native-born Jews), and just as overwhelmingly Republican. The Russian Jewish case also undercuts Podhoretz's theory.
Once one recognizes that lopsided adherence to liberalism is not a universal trait of secular Jews but is largely confined to native-born American ones, Podhoretz's theory collapses. If it were true, British and Australian Jews should be just as left-wing as American ones, and Russian immigrant Jews should be even more liberal than their native-born counterparts.
What then explains the liberalism of native-born American Jews? A key factor that Podhoretz mistakenly downplays is the association between American conservatism and the Christian religious right. That is the main difference between American conservatism and right of center political movements in other English-speaking democracies, which have comparatively weaker Religious Right connections. Most secular American Jews dislike and fear the Religious Right, which they suspect of anti-Semitism and of seeking to impose Christianity as a quasi-official religion. I think such fears are overblown, but not totally off-base. It also does not help that some prominent Religious Right leaders - such as Pat Robertson - continue to flirt with anti-Semitic conspiracy theories.
Podhoretz may be correct in claiming that the Religious Right ultimately poses only a minor threat to American Jews, and is certainly right to point out that many religious conservatives are strongly pro-Israel and have broken with their churches' anti-Semitic past. However, secular Jews' distaste for the Religious Right is a matter of clashing cultural values, not just calculations about threats to specific Jewish interests. Many secular Jews simply don't want to support a political movement that they associate with a group whose values seem alien and threatening. Ironically, Podhoretz's own book inadvertently confirms the importance of the Religious Right as a cause of American Jewish liberalism. He recounts various incidents when he tried to persuade Jewish audiences to vote for the Republicans on the basis of their economic and foreign policy stances, but was met with the response that Jews cannot possibly vote for the Republicans because they support school prayer. On Podhoretz's own account, even many of those Jews who sympathize with Republican positions on economic or foreign policy issues are repelled by the Religious Right factor.
The Religious Right explanation for the liberalism of native-born American Jews also helps explain why Russian immigrant Jews are different. While the latter tend to be highly secular, they have little experience with or knowledge of the US Religious Right and don't tend to focus on them as a crucial historic and cultural enemy. The main recent oppressor of Russian Jews was, of course, the officially atheistic Soviet government.
I am certainly not suggesting that American Jews would be overwhelmingly conservative or Republican if it were not for the Religious Right. But they would be much less overwhelmingly liberal than they are today.
UPDATE: I should note that in my view the Religious Right factor is what explains the overwhelming dominance of liberalism among American Jews today. It does not explain their support for the Democratic Party in earlier periods (e.g. - from the 1930s to the 1950s), when the political situation was very different and Jews themselves were much poorer then they became later. Many other groups were overwhelmingly Democratic at the high point of the New Deal coalition (e.g. - Catholics, "white ethnics," etc.) but became far less so as they became more affluent and the political landscape changed. Strikingly, the Jews did not change similarly, and I believe that the Religious Right factor is a crucial reason why they didn't.
Rational Basis and Constitutional Line Drawing in the Same-Sex Marriage Debate:
I am not an expert in the constitutional debate on same-sex marriage, but I was thinking recently about the relationship between the rational basis test and the need for line-drawing, and how that might impact the constitutional arguments in the same-sex marriage debate. My pondering led me to a tentative argument that I haven't seen directly in the opinions I've read, so I wanted to offer it up and see what folks think. Here's the argument: When the state takes on the task of defining who should receive a government benefit, and that definition requires a great deal of complicated linedrawing, it is presumptively rational for a legislature to draw lines in ways that match traditions or common contemporary practices. As the amount of required linedrawing increases, and it becomes harder to justify one specific line over another, it becomes rational for a legislature to simply mirror the status quo rather than craft a new approach.
I was thinking about this in the context of the same-sex marriage debate because state recognition of marriage seems to require a lot of linedrawing. It is widely agreed that the state has to impose limits on the number of people who can get married (2? 3? more?), the age of the couples (with or without parental consent), consanguinity (whether cousins can marry), etc. It can be hard to justify the exact lines that get drawn. For example, in many states, couples can get married at 18 without their parents' consent but 16 with their parents' consent. The exact line here seems pretty arbitrary. Why 18 years, and not 17 years and 323 days? Why 16 years if a parent consents, and not 16 years, 4 months, and 19.5 seconds? No matter who draws the lines required to define marriage, some parts of the definition are going to be rather arbitrary.
My claim — albeit only a very tentative claim, as this isn't my area and I haven't looked closely at the cases — is that the fact that some line needs to be drawn, and the legislature unimaginatively drew it in some relatively traditional way, itself helps provide a rational basis for the legislature's approach. It seems sensible for a state legislature tasked with all the line-drawing of defining marriage to stick with the common answers to the problem. Put another way, deference to preexisting practices in areas that require complicated line-drawing is a sensible default even if we lack a clear argument for why those preexisting practices are normatively preferable to other ways of drawing the lines.
Again, consider the case of age. Drawing the line at 16 instead of 16 years, 4 months, and 19.5 seconds isn't rational because we think the age of 16 is actually better. Rather, it's rational because some line is needed and there is a tradition of using integer years since birth as a yardstick for entitlement to government benefits that we rationally confer based on age. (It might also be rational because it is easier to calculate, but I think the point stands.)
In the context of the same-sex marriage debate, then, it seems to me that the need to draw lines and the traditional limitation of marriage to opposing sex couples itself helps provide a rational basis for using the traditional definition of marriage as between a man and a woman. A legislature trying to answer the many questions and line-drawing exercises required by any definition of marriage could reasonably adopt the traditional way of doing things rather than have to justify new lines. Adopting the traditional definition in the face of the significant uncertainty of the best way to draw all the lines required by state recognition of marriage becomes a reasonable means -- perhaps not the best means, but a reasonable means -- of achieving the legitimate state interest of all the traditional benefits of the institution of marriage.
Two caveats apply. First, this argument is only in play if the constitutional standard is mere rational basis scrutiny. If you believe that heightened scrutiny should apply, I don't think this argument is relevant. Second, I should emphasize that this is a constitutional argument, not a policy argument. From a standpoint of policy, I am in favor of laws permitting same-sex marriage. The constitutional question is not whether I favor the law, however, but only whether such a definition of marriage is a reasonable means of achieving a legitimate government interest.
Anyway, that's my tentative argument. I'm interested in your responses, especially if you disagree.
Tuesday, September 15, 2009
Small Beer:
I've just had an inquiry from an editor asking what I meant by the expression "small beer" and asking if it was a common expression and whether others would know what I was referring to. As in the following sentence:
When the questions of war and peace were on the table in ways that involved directly the world’s great powers, then the NGOs and global civil society seemed small beer indeed.
Does this use of "small beer" seem too obscure? My understanding is that the expression is British and dates back to at least the 18th century in the meaning of persons or matters of no account of little consequence. At least, that's how I've always used it. Am I right and even if I am, is the phrase nowadays overly obscure?
"Johns Hopkins Med Student Kills Thief With Samurai Sword,"
reports NBC Washington:
[T]he student said that he heard a commotion in the house and went downstairs with the samurai sword. The student said he told the man to leave, but the suspected burglar lunged at him instead. That's when, according to [a police spokesman's account of the student's statement], the student defended himself, cutting off the man's hand and causing a severe laceration to the man's upper body.
A student asked me whether the student would be criminally or civilly liable. My quick look suggests that in Maryland, one may only use deadly force — even in one’s home --– if one reasonably believes that one is in imminent danger of death or serious bodily injury. (That's the rule for both the criminal law self-defense defense and the tort law defense.) If the student is accurately reporting that the burglar lunged at him, while the student was holding a sword, that might be enough to reasonably fear imminent danger of serious bodily injury. If someone attacked me when I was visibly armed with a deadly weapon, I think I could reasonably believe that he must be very dangerous himself. To be sure, I wouldn't know it with complete certainty, but the law only requires reasonably belief.
On the other hand, if the prosecutor concludes that the student didn’t reasonably fear death or serious bodily injury, but feared only slight injury or loss of property, then the prosecutor might well charge the student with murder or manslaughter, and if a jury agrees then it might convict. (The crime might be manslaughter, even if the student didn't reasonably fear death or serious bodily injury, either if the student was so angered by the lunge that he acted under provocation of the sort that might lead a reasonable person to kill, or if the student sincerely but unreasonably believed that he was in danger of death or serious bodily injury.)
In some states, special statutes provide that one may categorically use deadly force against unlawful intruders, without having the prosecutor and jury decide whether one actually feared serious bodily injury. But I believe Maryland is not one of those states.
Would Defunding ACORN Be an Unconstitutional Bill of Attainder?
A colleague asked me this, and a Google search suggests others have been asking the same question as well. Here's a short summary:
1. The Constitutions bans both the federal and state legislatures from enacting "bills of attainder."
2. This is understood as barring "a legislative act which inflicts punishment without a judicial trial." ("If the punishment be less than death, the act [was historically] termed a bill of pains and penalties," but "[w]ithin the meaning of the Constitution, bills of attainder include bills of pains and penalties.") So if Congress says, "We conclude that Eugene Volokh is guilty of treason, and we order him to be executed," that would be a classic bill of attainder.
3. According to the Court, permanent exclusion of named people -- or even a class of people, such as Communist Party members or people who had given help to the Confederacy -- from government office may constitute "punishment" and be treated as an unconstitutional Bill of Attainder. See U.S. v. Lovett (1946), U.S. v. Brown (1965), and Cummings v. Missouri (1866).
4. This may apply to punishment of corporations and other entities, and not just of individuals, at least according to Consolidated Edison Co. v. Pataki (2d Cir. 2002); I think that has to be right, but the issue is not clearly settled.
5. At the same time, even legislation that singles out individuals is not a Bill of Attainder if "the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes." See Nixon v. Administrator of General Services (1977); SeaRiver Maritime Financial Holdings Inc. v. Mineta (9th Cir. 2002) (upholding the legislative exclusion of "any vessel that spilled more than one million gallons of oil into the marine environment after March 22, 1989" -- a class that includes only the Exxon Valdez -- from Prince William Sound, because it has the legitimate nonpunitive purpose of "reduc[ing] the environmental risk to the Sound" by excluding "a vessel with a history of substantial spillage, and encourag[ing] SeaRiver and other tank vessel owners to take greater steps to avoid a similar spill in any marine environment").
But the trouble, of course, is that most laws, including punitive ones, also further nonpunitive legislative purposes. The hypothetical Eugene Volokh Execution Act of 2009 would further nonpunitive legislative purposes of preventing future bad acts by me (as well as punishing me for all my manifold past sins). Likewise, the permanent exclusion of certain people from federal employment, struck down in Lovett and Brown, was likely aimed at preventing bad behavior by the named employees (Lovett) and Communist employees (Brown).
So would defunding ACORN be an unconstitutional bill of attainder? My rereading of the precedents leads me to confidently and unambiguously say, "I don't know." The distinction between "punishment" and actions that "reasonably can be said to further nonpunitive legislative purposes" strikes me as generally elusive and perhaps even illusory, and especially so here. But I thought I'd lay out the basic questions and precedents, and see what the rest of you think.
Taking the Right Seriously:
Interesting essay in the Chronicle of Higher Education by Mark Lilla here and some commentary here.
Hurray for President Obama, our Armed Forces, and the Huffington Post:
1. Calling Kanye West a "jackass"--in what was supposed to be an off-air private comment but which was widely reported. It would have been inappropriate for him to use the word in an official statement, but the reporting of his comment sends a good message about the importance of appropriate personal conduct. As did his speech to schoolchildren last week.
2. Acting pursuant to a presidential order, U.S. forces have killed the Somali terrorist Ali Nabhan. He is believed to be an al Qaeda commander responsible for the 1998 bombings of the U.S. embassies in Kenya and Tanzania.
3. The Huffington Post, in its new Rocky Mountain section, is now publishing my Independence Institute colleague Jessica Corry (and her husband Rob) to offer some intellectual diversity.
Devices "Useful Primarily for the Stimulation of Human Genital Organs" Going to the Supreme Court?
Friday, the Alabama Supreme Court upheld (by a 7-2 vote, in 1568 Montgomery Highway, Inc. v. City of Hoover) a state statute that criminalizes, among other things, "knowingly distribut[ing] ... any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value." (The "for any thing of pecuniary value," I take it, modifies "knowingly distribut[ing].")
It's quite possible that the issue will now go to the Supreme Court. There was already a split on whether such statutes are constitutional in the wake of Lawrence v. Texas. The Eleventh Circuit upheld the Alabama statute in Williams v. Morgan (2007), but last year the Fifth Circuit struck down a similar Texas statute in Reliable Consultants, Inc. v. Earle. Texas decided not to ask the U.S. Supreme Court to review the Fifth Circuit decision, despite the circuit split. But presumably the losers in the Alabama case will likely ask for review, and the split creates a decent chance of the Court's agreeing to hear the case. Last year, when I was assuming that Texas would indeed ask the Court to review the Reliable Consultants decision, I predicted that:
(1) The Supreme Court will agree to hear the case.
(2) The Supreme Court will conclude the statute is constitutional.
(3) The vote will be at least 6-3, because even some of the liberals on the Court — especially Justice Breyer — and moderate conservative Justice Kennedy will think that the courts' power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers' lives. And this is so even though the government's arguments for the practical benefits of the law seem comparatively weak, or as to the supposed immorality of the conduct, largely conclusory. The majority on the Court will likely conclude that such conclusory moral arguments are adequate except when something more important to most people's lives is at stake (since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right).
I think the chances for cert (i.e., the Supreme Court's granting certiorari and thereby agreeing to hear the case) are less here, because there's no decision of a state legislature being struck down by a federal court -- a sort of inter-governmental-entity split that I think the Court itself sees as a pointer towards review. True, the Texas law remains invalidated, but Texas itself chose not to fight that battle. Moreover, here as before the case is both of comparatively minor practical importance and the sort of thing that some Justices might see as beneath the Court's dignity. Still, there seems to be a decent chance of cert here.
Digitized Brains:
Kenneth's post reminds me of a conversation I once had with Robert Nozick. I was at a week-long conference that Nozick happened to be at. Pete Boettke and I were sitting at lunch with Nozick one day and finally Pete asks, "Have you ever seen 'The Matrix'?" And Nozick says, "No, why?" And Pete proceeds to explain how the Matrix is essentially Nozick's experience machine from Anarchy, State, and Utopia made into a movie. I don't know whether Nozick ever ended up seeing the movie, but he did seem intrigued (I have no idea whether the makers of The Matrix had read Nozick).
As an aside, Nozick struck me as probably the smartest person I ever met. Utterly brilliant.
Monday, September 14, 2009
HRW's Garlasco Suspended:
N.Y. Times:"A leading human rights group has suspended its senior military analyst following revelations that he is an avid collector of Nazi memorabilia."
As has become its practice with controversies that don't fit its narrative, the New York Times is extremely late to the controversy over HRW, and its analysis is more than a dollar short. The Times puts the Garlasco controversy in the context of a battle between human rights groups and the Israeli government, as if the government is somehow pulling the strings of dozens of bloggers who've been investigating HRW.
And instead of quoting any of HRW's manifold respectable critics, the reporter quotes a Hebrew U. professor, Yaron Ezrahi, who says that "Human Rights Watch’s credibility might have been wounded because Mr. Garlasco’s hobby 'has armed the right-wing fanatics' who 'work day and night to demonize any individual or organization that raises questions about the military practices of Israel when they end up even with unintended civilian casualties.'"
The recent controversy over HRW and Israel started with my piece in OpinionJournal.com, based on a blog post here at the V.C., over HRW's fundraising trip to Saudi Arabia, in which Middle East director Sarah Leah Whitson sought support from the Saudi elite by demonizing Israel. My views on Israeli war/peace politics are probably somewhere between Ehud Barak's and Tzipi Livni's [in other words, between Israel's center-left and center], though of course I approach things from an American, not Israeli perspective. And my connection to the Israeli government is approximately zero.
The yeoman's work on HRW, including the information that I used for the Saudi Arabia post, has been done by NGO Monitor. I understand from mutual acquaintances that Prof. Gerald Steinberg of Bar-Ilan University, who runs NGO Monitor, is a moderate in Israeli political terms.
Plenty of other non-right-wing-fanatics have raised questions regarding HRW's objectivity and accuracy when it reports on Israel. Perhaps the Times could have found out these facts before quoting Professor Ezrahi's nonsense. Of course, that's assuming, probably incorrectly, that reporter John Schwartz didn't go trolling for a quote that supported his pre-conceived story line. (Exactly how did Schwartz get this story, anyway? Fed to him by folks at HRW who recognize a friendly reporter, perhaps? No other news outlets seem to have it.)
The Times somehow manages to avoid mentioning the controversy over the Saudi Arabia trip, the controversy over the vociferously anti-Israel pre-HRW histories of various HRW Middle East staffers which have recently come to light, and the controversy over the inaccuracies and distortion in various recent HRW reports on Israel, particularly its recent reports on white phosphorous and white flags. (You can find the critiques at NGO Monitor's website.) These issues were covered in the news and op-ed pages of newspapers around the world, but not in the "paper of record."
And while falsely portraying HRW's critics as fanatical right-wingers, the Times manages to omit mention of the fact that HRW's top people are, by any objective standard, not simple "human rights advocates" but far leftists in either Israeli or American political terms. So the story is played as "human rights groups vs. right-wing government," and it's obvious despite Mr. Garlasco's suspension which side the reader is supposed to favor.
I've had several requests to open comments to one of these HRW posts, but unfortunately I'll be unavailable for moderating over the next two days, and I just don't do unmoderated comments.
Scott Adams's Big Plan, or, Goodnight Moon:
From the Scott Adams blog at the Dilbert site. It's actually called "Killer Moon," but I liked my title better. I'm very, very surprised Glenn Reynolds hasn't already linked to it (update: Glenn responds in the first comment). Very, very, very surprised - moon, robots, digitized brains, asteroid collision, space colonization, end of the world, hot robot wife? It (verily) cries out, Glenn Reynolds! Glenn Reynolds! Consider:
Perhaps you think you would miss being human, but that's a subroutine we'd leave out of the robot mind. You would be designed for happiness. And I'm not talking about ordinary happiness. I'm talking about the kind that makes you scream and curl your robot toes. It will be a happy robot planet.
Although it probably counts as Too Much Information, I often find myself reading myself to sleep with old Dilbert collections. I used to read philosophy, then economics, but now ... Dilbert. However. The first paragraph (the block quote below, that is, not above) and its last two sentences particularly amused me sufficiently that I'm thinking of using them as a pop quiz in corporate finance class, something like, "Consider ways in which this paragraph might be taken as an ironic commentary on efficient market theory in the really strong, Panglossian-necessitarian sense (I made that term up, slightly ironically, so no need to comment on it in the comments) - or might not. Discuss." Which, dear readers, I leave to you in the comments. Would the Great Greg Mankiw have thought of that for his freshman seminar?
Lately I have been looking at the moon and wondering if it will someday kill me. If I live another 50 years (which is entirely possible) I assume I will eventually be a robot, having shed my old skin and bones body and uploaded a scanned and digitized version of my brain to a machine. My fellow robots and I will live among the meat people for eons until the moon's orbit degrades, either gradually or because a meteor gives it a nudge, and Earth is annihilated in the collision. You might say I worry too much. But I've successfully avoided death so far, so I say I worry just enough.
Because of this impending moon problem I have been planning an exit strategy. By the time the moon starts heading our way I imagine we'll have the technology to send me into space in an escape rocket, searching for a habitable planet. I could power down my robot brain so the trip isn't so boring.
But even if this plan works it will be lonely when I find my new planet. And then there is the issue of the 400 billion meat people and fellow robots I leave behind, including my hot robot wife, Shelly, and the rest of my robot family. I want a solution for them too. Sure, I could reprogram my brain to not care, but that's not how I roll.
Unfortunately, I assume there would be no practical way to build and launch enough rockets for everyone to escape, at least not in time. So sending the entire population of Earth to the new planet isn't going to work.
We need a better plan than that, and it goes like this ...
(Two additional things: No snark about Glenn or anyone else in the comments, please; I want to hear about 'Panglossian Necessitarianism', as I'm sure you do, too. Also, this post is not actually for Glenn, but for ... Martha Minow, who alas probably has less time than anyone in academia these days for this kind of goofiness, but I wonder whether the Power of the Internet will bring this post to her? Okay, that was my study break; I have to go back to writing about proportionality, military necessity, civilian harm and the laws of war, and correct the page proofs for a Revista de Libros (Madrid) essay on Philip Bobbitt's Terror and Consent. Adieu.)
Outdoor technology bleg:
What is the best GPS for use in outdoor activities such as hiking, hunting, or fishing?
Protectionist Threat Level: Orange:
Daniel Drezner has resisted the temptation to label the Obama Administration "protectionist," but now he's finding it more difficult. He's particularly concerned about the recent tire tariffs, announced Friday, because it's not "your garden-variety protectionism" and China's response has been particularly strong and swift. He also thinks the Obama Administration will have difficulty reversing course and (rightly) fears the protectionist elements within the Obama's base: "If I knew this was where the Obama administration would stop with this sort of nonsense, I'd feel a bit queasy but chalk it up to routine trade politics. When I look at Obama's base, however, queasiness starts turning into true nausea."
More from noted right-wing Obama critic Brad DeLong.
The Text of President Obama's Wall Street Speech:
I'm afraid I don't have time to comment on it at the moment, but in case you are interested in reading the as-released text of President Obama's September 15, 2009 speech on Wall Street, on financial regulation reform, it is here at the New York Times.
Overall, and despite the large amount of stuff sent by the administration to Congress since the release of the Treasury White Paper, I am disappointed that financial regulation reform is not really moving very far, very fast, and is subject to three enormous weakeners - the speed with which fear that gripped everyone a year ago at this time recedes into a mere memory mostly of catastrophes avoided and hence discounted, the lobbying force of the financial services industry when it deals with Congress, and the fact that long term financial services reform - while always, of political necessity, on a backseat from dealing with the recession - is actually farther down the list of the Obama administration's domestic policy issues than I would like, after health care reform, and issues related to the recession and stimulus, bailout of the auto unions, etc..
Everyone seems agreed, so far as I can tell, that not only will Fannie and Freddie not be addressed until next year, other fundamental reform issues will not be dealt with by Congress, either. And when they finally do, the sense, not so much of urgency, but instead that fundamental changes are needed, has largely evaporated. Yet the incentives remain as perverse as they were before; the question is whether there is a supply of funds and a market of sufficient opacity, short-termism, and too-big-to-fail-icity that it can do what the mortgage markets did mid-decade. Greed is rapidly replacing - has already replaced - fear in all the wrong places. Those places are principally, of course (a) Wall Street, for whom externalized risk and moral hazard are back, without fundamental changes in the regulatory or compensation rules and with an ever-firmer belief in the USG-put, and (b) Congress, making its rent-seeking calculations, meaning, how much its members will be able to benefit from making available the USG-put.
(Update: The NYT economix blog has a good series of short reactions to the speech. And the NYT room for debate blog (in which I sometimes participate on national security matters) has a discussion of why financial reform has stalled, as I indicate above.)
Kampeas on Greenwald on Podhoretz:
Ron Kampeas of the Jewish Telegraphic Agency (who I think is rather politically liberal himself, and whose posts are generally very mild-mannered):
So [Glenn] Greenwald is either infuriated into delusion or is willfully lying when he [claims that Podhoretz wrote that]"even though Obama shares most of their views on political matters. . . American Jews should have nonetheless voted for McCain because of McCain's 'alleged long history of sympathy with Israel'".... This is the kind of misreading that would get Greenwald booted out of a suburban weekly (or might otherwise earn Greenwald an excoriation from, well, himself), and the same is true of his sloppy ellisions, from Podhoretz to the entire neoconservative movement."
Kampeas goes on, in a post well worth reading, especially if you've been persuaded by Greenwald's attacks on neoconservatives.
Let me add that I am not a neoconservative, but I find worse than distasteful the consistent willful distortion by the likes of Greenwald of the neocon's general belligerent, militaristic, pro-democracy, pro-Western, anti-radical Islam views into a Jewish cabal dedicated to the promotion of Israel. (Joe Klein memorably described neoconservatism as "unilateral bellicosity cloaked in the utopian rhetoric of freedom and democracy;" accurate, except I would say it's not a cloak, it's what they believe they are fighting for.) For my previous posts on related matters, see here and here.
I'll reiterate what I said in the latter post: "The purpose, then, of associating 'neocons' with Jews, and neoconservatism exclusively or primarily with concern for Israel, is to delegitimize conservative Jews, just as conservative blacks are called 'Uncle Toms' and whatnot."
Can the Police Get a Warrant to Force a Drunk Driving Suspect to Submit to a BAC Test
after he has refused to give one voluntarily in violation of the state implied consent statute? The Supreme Court of Washington says yes (Hat tip: FourthAmendment.com).
How Cavalier Yale Was About Security:
I'm saddened to read about the apparent murder of a Yale Medical student. It reminds me that when I was at Yale, I found the university to be incredibly cavalier about security. I spent 5 semesters living in the law school dorm, and therefore walking around the immediate campus area. In that entire time, I saw exactly one police car patrolling one time. By contrast, when I attended Brandeis as an undergraduate and lived on campus, I saw campus police patrolling our much safer campus all the time.
After a law student's face was slashed right in front of the law school my first year there, Yale hired a security guard to sit inside the law school building at night. Most of the time he was asleep. This was literally the only security I ever saw in the entire law school campus.
I've visited the campus several times since then, and security seems vastly improved (from a very low threshold) following several tragic incidents involving Yale students. But given my experiences there, I wouldn't be surprised if security nevertheless remains inadequate.
Previewing OT 2009:
In this NRO column I preview the coming Supreme Court term (and say a tiny bit about that little case left over from last term). In short, even without a new justice, this term could be particularly significant and revealing due to the cases on the Court's docket.
Destructive Toy Story:
Walter Olson explains the problems of the Consumer Product Safety Improvement Act in today's WSJ:
This law has saddled businesses with billions of dollars in losses on T-shirts, bath toys and other items that were lawful to sell one day and unlawful the next. It has induced thrift and secondhand stores to trash mountains of outgrown blue jeans, bicycles and board games for fear there might be trivial, harmless—but suddenly illegal—quantities of lead in their zippers and valves or phthalates in their plastic spinners. (Phthalates are substances that add flexibility to plastic.) Even classic children's books are at risk: Because lead was not definitively removed from printing inks until 1985, the CPSC has advised that only kids' books printed after that date should be considered safe to resell.
Yielding to a business outcry, the agency postponed until next February the law's highly onerous product-testing requirements, which many small manufacturers have said will impose costs exceeding their annual profit or even revenue. It also has postponed enforcement of the law's effective ban on kids' bikes and power vehicles, which unavoidably contain leaded brass or similar alloys in certain components.
Nevertheless, the law's latest shock hit businesses on Aug. 14. That's when the law's tracking-label mandate went into effect, requiring that makers of childrens' goods "place permanent, distinguishing marks on the product and its packaging, to the extent practicable." The idea is to facilitate recalls and make it easier to trace safety problems. The result will be to capsize yet more small businesses.
Creationist Belief in Europe:
The theory of evolution may face greater resistance in the United States than most of Europe, but creationist belief is strong in European nations than many might think. From the February 27, 2009 Science: News coverage of the creationism-versus-evolution debate tends to focus on the United States, where surveys consistently show that less than half of Americans accept the theory of evolution. But in the past 5 years, political clashes over the issue have also occurred in countries all across Europe. In Italy, Silvio Berlusconi's government briefly tried to halt the teaching of evolution in schools in 2004. In 2006, a deputy Polish education minister called the theory of evolution "a lie." In 2007, the education minister of a major German state courted controversy by advocating that creationism and evolution be taught together in biology classes. . . .
Even the birthplace of Charles Darwin is struggling with evolution, despite the myriad celebrations for the 150th anniversary of his On the Origin of Species. "Creationism is on the rise in the U.K.," says James Williams, a lecturer in science education at the University of Sussex. "Creationists have adopted the attitude that if you get to children young and early, you can indoctrinate them before they even start talking about evolution in schools." Williams cited a December 2008 Ipsos Mori poll of 923 primary and secondary school-teachers in England and Wales: 37% of the respondents agreed that creationism should be taught in schools alongside evolution. Even among biology and science teachers, the number was 30%. Survey data also shows that anti-evolution sentiment is particularly strong among Muslims in Europe.
While Europe has its share of anti-evolution sentiment, what it seems to lack is the organized, active resistance to evolution. Is this simply because European nations tend to be less religious than the United States? Are Europeans, as a whole, just more scientifically literate? Or is there some other reason Americans have been more likely to accept the (erroneous) notion that evolutionary theory is inherently incompatible with religious belief?
Does Wind Get Off Easy?
When birds die due to oil or chemical exposure at an oil company's storage or waste-water facility, the company may be prosecuted for violating the Migratory Bird Treaty Act. Exxon-Mobil, for example, recently pled guilty to killing 85 birds protected under the MTBA. The oil giant will pay $600,000 in fines, and several million more to implement a compliance plan to prevent bird deaths in the future.
Exxon-Mobil's not alone. Electric utilities are also prosecuted when protected birds are killed by poorly insulated transmission lines. And yet not all power produces are prosecuted for the accidental killing of protected birds.
As the Entergy Tribune's Robert Bryce detailed in the Wall Street Journal, wind power kills more protected birds than Exxon-Mobil's refineries, and yet gets a free pass. A July 2008 study of the wind farm at Altamont Pass, Calif., estimated that its turbines kill an average of 80 golden eagles per year. The study, funded by the Alameda County Community Development Agency, also estimated that about 10,000 birds—nearly all protected by the migratory bird act—are being whacked every year at Altamont.
Altamont's turbines, located about 30 miles east of Oakland, Calif., kill more than 100 times as many birds as Exxon's tanks, and they do so every year. But the Altamont Pass wind farm does not face the same threat of prosecution, even though the bird kills at Altamont have been repeatedly documented by biologists since the mid-1990s.
The number of birds killed by wind turbines is highly variable. And biologists believe Altamont, which uses older turbine technology, may be the worst example. But that said, the carnage there likely represents only a fraction of the number of birds killed by windmills. Michael Fry of the American Bird Conservancy estimates that U.S. wind turbines kill between 75,000 and 275,000 birds per year. Yet the Justice Department is not bringing cases against wind companies. The problem of bird kills from wind power are well documented. A 2001 report on avian mortality by the National Wind Coordinating Council estimated wind power was responsible for 33,000 bird kills per year, the vast majority of which are protected under federal law. The American Wind Energy Association estimates bird mortality rates are, on average, "one to six per year or less" per megawatt of wind power capacity in the United States. Given the U.S. had 25,000 megawatts of installed wind capacity in the U.S., wind power could be responsible for as many as 150,000 bird kills per year. How many will die if wind production increases ten-fold or more to meet proposed renewable energy mandates? (And will we consider that actual wind output can be far less than installed capacity.)
Wind power is hardly the only thing that kills birds. Bird kills are a problem with many tall structures, and other energy sources are hardly without their problems. All things considered, wind may be preferable to available alternatives (even if it cannot provide base load capacity) and could be an important part of America's energy supply in the future. Yet it seems clear that when it comes to killing protected birds, traditional energy companies face federal prosecution, while wind energy gets a pass.
One reason for the special treatment is that it is easier to reduce bird kills at traditional energy facilities than a wind farm. In Exxon-Mobil's case, netting can keep birds away from potential contamination sources. There's no comparably easy fix for wind farms -- at least not yet. So federal prosecutors may target enforcement efforts where they can maximize the environmental results. It's also possible that there's no political benefit to going after "green" energy.
Lombard Street on the CFPA:
Lombard Street has a special issue on the proposed Consumer Financial Protection Agency here with contributions from a bunch of people, including one I co-authored with Josh Wright.
Update:
Whoops, it looks my article with Josh has not yet been posted but will be later today.
Sunday, September 13, 2009
Washington Post Loses $1.10 Per Copy?
Virginia Postrel remarks concerning the results of the Washington Post Company:
“Per @Romenesko, Washpo lost $143 million through the first six months of this year.” Which means they lose $1.10 PER COPY. Yikes.”
That makes sense to me, but I do not hold myself out as an accounting expert or financial analyst. Question to professional analysts or accountants out there ... is that a fair way of representing the results of the newspaper division? I'm not disputing it, but would like a second opinion on whether that's a fair methodology for characterizing financial results, from someone who is pretty close to doing this for a living. Romenseko, writing at Poynter Online, says:
Graham tells investors: "We're not at all satisfied with results at The Post and Newsweek
Washington Post Co. chairman Don Graham, however, is thrilled with the results at Kaplan, which provides more than half of all Post Co. revenue, which has surged from $258 million in 1999 to more than $2 billion today. WP publisher Katharine Weymouth told shareholders that the newspaper division lost $143 million through the first six months of this year. In response to a question, she said that Post doesn't have a plan to start charging for its online content.
I'm not so concerned with finding the exact number of papers in question - assume if you like that the division works. My basic question is whether it is a fair way to represent results for a newspaper company or division like the Post.
Darwin Too Controversial for Hollywood?
This report is surprising and, if true, quite depressing.
Creation, starring Paul Bettany, details Darwin's "struggle between faith and reason" as he wrote On The Origin of Species. It depicts him as a man who loses faith in God following the death of his beloved 10-year-old daughter, Annie.
The film was chosen to open the Toronto Film Festival and has its British premiere on Sunday. It has been sold in almost every territory around the world, from Australia to Scandinavia.
However, US distributors have resolutely passed on a film which will prove hugely divisive in a country where, according to a Gallup poll conducted in February, only 39 per cent of Americans believe in the theory of evolution.
What good is Hollywood's liberal bias if film distributors won't carry a film about Charles Darwin? Personally, I think a film starring Jennifer Connelly is a great way to improve scientific literacy. Related Posts (on one page): - Creationist Belief in Europe:
- Darwin Too Controversial for Hollywood?
Ayn Rand Tidbit:
I'm reading a review copy of Anne Heller's forthcoming biography of Ayn Rand, which so far appears to be meticulously researched and fairminded. One tidbit I'll share with Rand-watchers: Heller surmises that the the most likely source for Rand's adopted first name (Rand was born Alice Rosenbaum in Russia, Ayn Rand was the name she adopted in the U.S.) is the Hebrew word "Ayin" ("eye"). Rand's father apparently had a Russian/Hebrew/Yiddish pet name for her which started with "Ayin" and meant "bright eyes." And everyone who met Rand remarks that the first thing you noticed about her was her eyes, so it makes sense.
HRW's Garlasco Responds, Making Matters Worse:
In response to concerns expressed about Human Rights Watch's Marc Garlasco's obsessive Nazi medal collecting, he claims that it didn't occur to him that anyone might question his "hobby." "Precisely because it's so obvious that the Nazis were evil, I never realized that other people, including friends and colleagues, might wonder why I care about these things."
Yet here's a post of his under his pseudonym Flak88 from September 2007:
Need advice
So I am trying to figure out what to do. My book [on Nazi war medals] is clsoe [sic] to done, but I am not sure if I should put my name on it. If folks at work found out I might very well lose my job. That is the reality, so don't dwell on it - ok? But this is a small group of people - should I worry? And shouldn't I stand up for myself? And if I use a psyeudonym [sic] isn't that worse, like I am trying to hide something?
I wonder whether this untruth is Garlasco's alone, or whether, as seems likely, HRW officials vetted his response, and were either too incompetent to discover his prevarication, or too dishonest to care. I also wonder what kind of person is so obsessed with German World War II medals that he publishes what amounts to a vanity press book on the subject, knowing it could cost him his job and reputation.
UPDATE: Another interesting Garlasco quote, from the same thread: "I will talk quietly to some at work that I trust - a small group indeed." Assuming he followed through, some at HRW knew about all this two years ago, though HRW bigwig Iain Levine says he only found out about it last week.
FURTHER UPDATE: While HRW's official response is that Garlasco collects World War II memorabilia from both sides, no evidence has surfaced of his significant interest in non-German memorabilia, and it turns out he refers to his fellow collectors as those in the "Nazi collecting field." And more from blogger Aussie Dave.
UPDATE re "Flak88": Several readers have emailed me to note that "88" is neo-nazi code for "Heil Hitler." I've mentioned this before, but Flack88 is also the name of a feared 88mm German anti-aircraft weapon. I'm quite sure that Garlasco chose his pseudonym based on this weapon, but I agree that choosing a name with 88 in it means that either (a) despite traveling in Nazi memorabilia collector circles, which includes a certain number of Nazi admirers, Garlasco somehow was oblivious to the fact that 88 is neo-Nazi code, or (b) Garlasco displayed at best an indifference to the possibility that people not well-versed in German weaponry would surmise that he's a Nazi sypathizer.
Tire Trade War?
This isn't good. From the FT:
A full-blown trade row erupted on Sunday night between the US and China after Beijing accused Washington of “rampant protectionism” for imposing heavy duties on imported Chinese tyres and threatened action against imports of US poultry and vehicles.
Trade relations between two of the world’s biggest economies deteriorated after Barack Obama, US president, signed an order late on Friday to impose a new duty of 35 per cent on Chinese tyre imports on top of an existing 4 per cent tariff.
More on the Tire Tariff:
Irwin Stelzer thinks the tire tariff decision is a portent of bad trade policies to come.
Obama's decision on tires makes it clear that he has no intention of supporting efforts to revive the almost 8-year-old Doha trade-opening negotiations. Some 36 nations met in New Delhi earlier this month and professed interest in completing a deal by the end of next year. Not likely: the recession has made jobs, jobs, jobs politicians' central concern, and few are prepared to take the flak that will surely arise if they open their markets, and expose even a few domestic companies or farmers to job-destroying competition. The talks collapsed in July of 2008 precisely for that reason. Obama has been sitting on proposals for bilateral free trade agreements with Colombia and Korea, among others, and sees no reason to antagonize the strong, protectionist wing of his party, already unhappy with his failure -- so far - to throw his weight behind a bill that would end the secret ballot in union-recognition elections, and require compulsory arbitration when union-management negotiations break down. . . .
Almost every country is seeking to export its way out of the recession. Germany is relying on its exporters to create jobs; China is depending on its export machine to keep its economy growing fast enough to create millions of jobs and avoid social unrest; Japan's new government, no longer reflexively pro-American, also needs exports to end a decade of stagnation. But Obama, in charge of the world's consumer-of-last-resort, has decided to eschew that role in the future. Indeed, he has had his Trade Representative, Ron Kirk, announce that America will no longer allow its trade partners to "run roughshod over us." Some of the president's reasons for pushing exports and tightening up on imports are purely political -- he needs the trade unions and his party's left. Others are more fundamental -- he has to cut the U.S. trade deficit lest the value of the dollar continue its descent and add to the inflationary pressures created by his enormous deficits.
Meanwhile, he has sent a signal to the Sino-Franco-Russian et al. anti-dollar bloc that for all his talk about international cooperation to fight the recession, he is in the end willing to go it alone if domestic politics so dictate. That will increase their resolve to find some replacement for the dollar as the world's reserve currency. Obama might indeed turn out to be the "transformative" president he intends to be, but not quite in the way he intends.
Meanwhile, Josh Wright points to some Orwellian doublespeak on the tire decision:
The three-year remedies, consisting of an additional tariff of 35 percent ad valorem in the first year, 30 percent ad valorem in the second, and 25 percent ad valorem in the third year, are being imposed after a finding by the United States International Trade Commission that a harmful surge of imports of Chinese tires disrupted the U.S. market for those products. . . .
"This Administration is doing what is necessary to enforce trade agreements on behalf of American workers and manufacturers. Enforcing trade laws is key to maintaining an open and free trading system."
Politicizing the Economy:
Tyler Cowen has an important column in today's NYT. It begins:
FOR years now, many businesses and individuals in the United States have been relying on the power of government, rather than competition in the marketplace, to increase their wealth. This is politicization of the economy. It made the financial crisis much worse, and the trend is accelerating.
Well before the financial crisis erupted, policy makers treated homeowners as a protected political class and gave mortgage-backed securities privileged regulatory treatment. Furthermore, they allowed and encouraged high leverage and the expectation of bailouts for creditors, which had been practiced numerous times, including the precedent of Long-Term Capital Management in 1998. Without these mistakes, the economy would not have been so invested in leverage and real estate and the financial crisis would have been much milder.
But we are now injecting politics ever more deeply into the American economy, whether it be in finance or in sectors like health care. Not only have we failed to learn from our mistakes, but also we’re repeating them on an ever-larger scale.
Read the whole thing.
New Procedures for Afghan Detainees:
From today's Washington Post:
Hundreds of prisoners held by the U.S. military in Afghanistan will for the first time have the right to challenge their indefinite detention and call witnesses in their defense under a new review system being put in place this week, according to administration officials.
The new system will be applied to the more than 600 Afghans held at the Bagram military base, and will mark the first substantive change in the overseas detention policies that President Obama inherited from the Bush administration. . . .
Under the new rules, each detainee will be assigned a U.S. military official, not a lawyer, to represent his interests and examine evidence against him. In proceedings before a board composed of military officers, detainees will have the right to call witnesses and present evidence when it is "reasonably available," the official said. The boards will determine whether detainees should be held by the United States, turned over to Afghan authorities or released. For those ordered held longer, the process will be repeated at six-month intervals.
The Bagram system is similar to the annual Administrative Review Boards used for suspected terrorists at the U.S. military prison at Guantanamo Bay, Cuba. Officials said the review proceedings at Bagram will mark an improvement in part because they will be held in detainees' home countries -- where witnesses and evidence are close at hand.
The NYT also reports here.
Sunday Song Lyric:
Apparently I haven't posted enough Gershwin lyrics, even though Ira's lyrics (and George's music) are among the few to have appeared more than once. Of course, they're responsible for more than a few classics. Here's one: Someone to Watch Over Me. Originally from the musical Oh, Kay!, the song has been performed by everyone from Ella Fitzgerald and Frank Sinatra to Linda Ronstadt and Amy Winehouse. The lyrics begin: There's a saying old says that love is blind
Still we're often told "seek and ye shall find"
So I'm going to seek a certain lad I've had in mind
Looking everywhere, haven't found him yet
He's the big affair I cannot forget
Only man I ever think of with regret
I'd like to add his initials to my monogram
Tell me where's the shepherd for this lost lamb
There's a somebody I'm longing to see
I hope that he turns out to be
Someone to watch over me
Taking "Cleanliness is Next to Godliness" A Bit Too Far:
From Van Wyhe v. Reisch:
Sisney states that while Torah study is foremost and cannot be exchanged for the Hebrew study, his religion considers learning Hebrew to be a "mikvah," or "good deed."
Compare "mikvah" and "mitzvah". Thanks to Religion Clause for the pointer.
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