Saturday, May 31, 2003
Context:
Hmm. So a couple of people have told me that they've tried reading this blog and can't, because it's too involved, or too intense, or too prone to dropping into the middle of a conversation with no context. This is of course an eternal dilemma on behalf of the writer. On the one hand, I know that most of the people who read this thing read it regularly, and I don't want to simply rehash everything previously said all the time, since it's so easy to link to it. On the other hand, we want to be perfectly accomodating to people who just skim the blog occasionally.
I know I'm prone to getting caught up in legalese sometimes, (ironic, since I haven't actually studied that much law myself) and I'll try to work on mitigating that. If there are other things you can think of that would make the blog easier on the unattentative, the uninitiated, or anybody else, I'd love to hear them. Please drop me a line.
Hmm. So a couple of people have told me that they've tried reading this blog and can't, because it's too involved, or too intense, or too prone to dropping into the middle of a conversation with no context. This is of course an eternal dilemma on behalf of the writer. On the one hand, I know that most of the people who read this thing read it regularly, and I don't want to simply rehash everything previously said all the time, since it's so easy to link to it. On the other hand, we want to be perfectly accomodating to people who just skim the blog occasionally.
I know I'm prone to getting caught up in legalese sometimes, (ironic, since I haven't actually studied that much law myself) and I'll try to work on mitigating that. If there are other things you can think of that would make the blog easier on the unattentative, the uninitiated, or anybody else, I'd love to hear them. Please drop me a line.
Affirmative Action?:
Writing about the affirmative action teapot at IU has made me ponder the question a number of people have asked me-- what should the court do with affirmative action?
First of all, let me say that I think the court has interpreted the 14th Amendment all wrong. I'm particularly amazed at the Scalia-Thomas line of reasoning, that the 14th Amendment enshrines a principle of race blindness and very little else. After all, the 14th Amendment eschews use of the word race altogether (even though race is mentioned in the very next, nearly contemporary amendment, which grants suffrage to all races). Add to this pregnant textual omission the significant weight of history-- decades and decades of segregation indicate that nobody who adopted the 14th Amendment thought it meant colorblindness-- and the position becomes a little odd for originalists. (Add to that puzzlement the fact that Scalia and Thomas unquestioningly apply the 14th Amendment's guarantee of equal protection (which applies only to the states) also the Federal Government, under the "equal protection component of the due process clause" of the Fifth Amendment).
Of course, we don't live in an originalist world. As a policy matter, the color-blind position appeals to me, for exactly the reasons that Justice Thomas espouses it. If I only thought it was actually supported by text or history, I'd be on board. So where does that leave us? Possibly applying strict scrutiny, asking first whether "diversity" is compelling, and if so, whether Michigan's affirmative action programs are narrowly tailored to achieve it.
As to the first question, I think it depends on whether you mean "racial diversity" or "intellectual diversity." Racial Diversity would be a convenient answer, but unacceptably circular. (We should be granted an exemption to the general presumption against race-based laws. Why? Because, we . . . . want to alter our racial makeup.) So it must be Intellectual Diversity that the universities are after. Then to believe the narrow-tailoring prong, you'd have to believe that Race really did Matter, in some capital-letter sense (not just that these measures were necessary to achieve a desired racial makeup; of course they are). From the briefs that I did read (by no means all of them) this was the one step in the analysis I didn't see made explicit. It's not enough to show that without affirmative action, Michigan's black enrollment would be cut in half. One has to show that those non-blacks who replaced the blacks in the hypothetical, AA-free world, were not as "intellectually diverse" as the blacks whose spots they held. Of course, I think that's a claim that will make some of the court's moderates a little uncomfortable, so if they rely upon it, I think they're likely to gloss over it, or defer to the expertise of university admissions boards on it (which is not an entirely senseless thing to do).
Of course, I think that the race game isn't what "equal protection" should really focus on, or at least I think it's not what the court really cares about. Reading Romer v. Evans (a case about homosexuals in colorado) makes me think the court really wants to extend protection to "discrete and insular minorities," (a la Carolene Products). In other words, under the Constitution as I understand it, Michigan's policies probably ought to be constitutional; I like the colorblind world that Scalia and Thomas pitch, and I dislike strict scrutiny, but it's a giant leap from text, tradition, or precedent to get there. As a policy matter? That's a post for another day.
Writing about the affirmative action teapot at IU has made me ponder the question a number of people have asked me-- what should the court do with affirmative action?
First of all, let me say that I think the court has interpreted the 14th Amendment all wrong. I'm particularly amazed at the Scalia-Thomas line of reasoning, that the 14th Amendment enshrines a principle of race blindness and very little else. After all, the 14th Amendment eschews use of the word race altogether (even though race is mentioned in the very next, nearly contemporary amendment, which grants suffrage to all races). Add to this pregnant textual omission the significant weight of history-- decades and decades of segregation indicate that nobody who adopted the 14th Amendment thought it meant colorblindness-- and the position becomes a little odd for originalists. (Add to that puzzlement the fact that Scalia and Thomas unquestioningly apply the 14th Amendment's guarantee of equal protection (which applies only to the states) also the Federal Government, under the "equal protection component of the due process clause" of the Fifth Amendment).
Of course, we don't live in an originalist world. As a policy matter, the color-blind position appeals to me, for exactly the reasons that Justice Thomas espouses it. If I only thought it was actually supported by text or history, I'd be on board. So where does that leave us? Possibly applying strict scrutiny, asking first whether "diversity" is compelling, and if so, whether Michigan's affirmative action programs are narrowly tailored to achieve it.
As to the first question, I think it depends on whether you mean "racial diversity" or "intellectual diversity." Racial Diversity would be a convenient answer, but unacceptably circular. (We should be granted an exemption to the general presumption against race-based laws. Why? Because, we . . . . want to alter our racial makeup.) So it must be Intellectual Diversity that the universities are after. Then to believe the narrow-tailoring prong, you'd have to believe that Race really did Matter, in some capital-letter sense (not just that these measures were necessary to achieve a desired racial makeup; of course they are). From the briefs that I did read (by no means all of them) this was the one step in the analysis I didn't see made explicit. It's not enough to show that without affirmative action, Michigan's black enrollment would be cut in half. One has to show that those non-blacks who replaced the blacks in the hypothetical, AA-free world, were not as "intellectually diverse" as the blacks whose spots they held. Of course, I think that's a claim that will make some of the court's moderates a little uncomfortable, so if they rely upon it, I think they're likely to gloss over it, or defer to the expertise of university admissions boards on it (which is not an entirely senseless thing to do).
Of course, I think that the race game isn't what "equal protection" should really focus on, or at least I think it's not what the court really cares about. Reading Romer v. Evans (a case about homosexuals in colorado) makes me think the court really wants to extend protection to "discrete and insular minorities," (a la Carolene Products). In other words, under the Constitution as I understand it, Michigan's policies probably ought to be constitutional; I like the colorblind world that Scalia and Thomas pitch, and I dislike strict scrutiny, but it's a giant leap from text, tradition, or precedent to get there. As a policy matter? That's a post for another day.
Tempests, Teapots, and Scott Dillon: Affirmative Action at IU Law
This is a bit of a delicate matter to blog on, since both of my parents work at the Indiana University School of Law and are therefore privvy to plenty of conversation on the matter that isn't public knowledge, but the folks at The Hoosier Review need a bit of commentary, I think, and I won't quote anything here that isn't publicly available.
As Josh Claybourn notes, The Indianapolis Star has an article about a minor tempest-in-a-teapot that took place at IU Law school. IU-Law Graduate Scott Dillon distributed packets of information about IU's admissions policy into student mailboxes, and these packets then disappeared. The Dean, Lauren Robel, then circulated an email to all students, telling them what had happened and giving them Mr. Dillon's email address so they could get the data directly from him if they wanted it. (Incidentally, here's Mr. Dillon's email address so you can too.)
Dillon complained that police weren't taking the "theft of his data" seriously enough. The Indianapolis Star story uses the phrase "data theft," but doesn't attribute it to Dillon, and I hope that's because they made it up and not him. In common parlance, I think, data "theft" usually implies either that somebody took from you your main copy of the data (by sneaking into your computer, say) or acquired a copy of data that you had meant to keep secret. But if, for example, I print out a copy of one of my econ papers, write "for Peter N." on it, and leave it in the dorm lounge where it's taken by somebody else, it seems highly misleading to call that "data theft". This is not to say that nothing was stolen (though the IU police department is of the opinion that since mailslots are open to the public, no theft had occurred). But the theft was of non-unique copies of pieces of paper containing information. Calling that "data theft" is a little like calling it art theft when somebody swipes a computer printed picture off of my door.
All the same, I'm curious about what Mr. Dillon has to say. I've emailed him asking for a copy of his data, but no response as of yet (I'll update if there is; see UPDATE). I'm a little intrigued (and confused) by the Indianapolis Star's brief summary.
I'm confused. Indiana has not increased minority admissions in proportion to minority applications? If Dillon means to be showing that Indiana is discriminating against blacks, this would be an interesting bit of potential evidence. But as he is widely described as an affirmative action foe, I assume that he's trying to show that Indiana once admitted more blacks than were "qualified". Or maybe he's just trying to show that Indiana doesn't admit a constant percentage of each race (the article doesn't mention, by the way, whether there was an increase in the percentage of black applicants or only the total number (my LSAT skills showing off)).... Anyway, to me that looks like data Dillon ought to be applauding
Rereading the article, I think Dillon is arguing that this shows that the law school uses racial quotas. Which is possible, I suppose, though I'm not convinced that this couldn't be a "threshhold" system instead, like the one Michigan claims to use. Of course, I'm not sure about the functional difference between a quota and a threshhold. In any case, there are plenty of plausible and innocuous explanations, like the possibility that IU has pushed for more minority applicants in recent years but received mostly unqualified ones. Finally, here are a pair of op-eds on the matter by IU professors-- one by professor Robert Heidt and a response by professor Jeff Stake.
UPDATE: Mr. Dillon has sent me his data which I'm poring over now (early on the morning of 5/31/03). I'll blog thoughts if I have them.
UPDATE TWO: Paul Musgrave from The Hoosier Review points out that IU's campus newspaper, the IDS did a better job of carrying Ms. Robel's response.
This is a bit of a delicate matter to blog on, since both of my parents work at the Indiana University School of Law and are therefore privvy to plenty of conversation on the matter that isn't public knowledge, but the folks at The Hoosier Review need a bit of commentary, I think, and I won't quote anything here that isn't publicly available.
As Josh Claybourn notes, The Indianapolis Star has an article about a minor tempest-in-a-teapot that took place at IU Law school. IU-Law Graduate Scott Dillon distributed packets of information about IU's admissions policy into student mailboxes, and these packets then disappeared. The Dean, Lauren Robel, then circulated an email to all students, telling them what had happened and giving them Mr. Dillon's email address so they could get the data directly from him if they wanted it. (Incidentally, here's Mr. Dillon's email address so you can too.)
Dillon complained that police weren't taking the "theft of his data" seriously enough. The Indianapolis Star story uses the phrase "data theft," but doesn't attribute it to Dillon, and I hope that's because they made it up and not him. In common parlance, I think, data "theft" usually implies either that somebody took from you your main copy of the data (by sneaking into your computer, say) or acquired a copy of data that you had meant to keep secret. But if, for example, I print out a copy of one of my econ papers, write "for Peter N." on it, and leave it in the dorm lounge where it's taken by somebody else, it seems highly misleading to call that "data theft". This is not to say that nothing was stolen (though the IU police department is of the opinion that since mailslots are open to the public, no theft had occurred). But the theft was of non-unique copies of pieces of paper containing information. Calling that "data theft" is a little like calling it art theft when somebody swipes a computer printed picture off of my door.
All the same, I'm curious about what Mr. Dillon has to say. I've emailed him asking for a copy of his data, but no response as of yet (I'll update if there is; see UPDATE). I'm a little intrigued (and confused) by the Indianapolis Star's brief summary.
Dillon said data he obtained from the school on test scores from 1990 to 1999 showed the number of blacks admitted to the law school remained constant despite an increase in black applicants.
"To me, that looks like they're interested in maintaining a minimum level of minorities regardless of objective qualifications," Dillon said.
I'm confused. Indiana has not increased minority admissions in proportion to minority applications? If Dillon means to be showing that Indiana is discriminating against blacks, this would be an interesting bit of potential evidence. But as he is widely described as an affirmative action foe, I assume that he's trying to show that Indiana once admitted more blacks than were "qualified". Or maybe he's just trying to show that Indiana doesn't admit a constant percentage of each race (the article doesn't mention, by the way, whether there was an increase in the percentage of black applicants or only the total number (my LSAT skills showing off)).... Anyway, to me that looks like data Dillon ought to be applauding
Rereading the article, I think Dillon is arguing that this shows that the law school uses racial quotas. Which is possible, I suppose, though I'm not convinced that this couldn't be a "threshhold" system instead, like the one Michigan claims to use. Of course, I'm not sure about the functional difference between a quota and a threshhold. In any case, there are plenty of plausible and innocuous explanations, like the possibility that IU has pushed for more minority applicants in recent years but received mostly unqualified ones. Finally, here are a pair of op-eds on the matter by IU professors-- one by professor Robert Heidt and a response by professor Jeff Stake.
By Robert Heidt
By implication, the legal challenge to race discrimination in admissions at the Michigan Law School now before the Supreme Court of the United States also challenges the race discrimination in admissions at the Indiana University Law School in Bloomington.
As at Ann Arbor, we at Bloomington enforce a de facto quota of the minimum number of blacks and other minorities we are determined to enroll in each first-year law school class. And as at Ann Arbor, we engineer our admissions process to guarantee that when the first-year class shows up in late August, our de facto quota will once again be met. We differ in that to meet our de facto quota, we regularly lower our usual standards of admission more than our counterparts at Michigan lower theirs. For example, to meet our de facto quota of blacks in each first-year class, we deviate from our usual standards of admission more than any remotely comparable law school is willing to do. In fact, of all the law schools in the country approved by the American Bar Association, none regularly lowers its standards of admission for affirmative action purposes as much as we do. As a result, black applicants whose low grades, LSAT scores and extracurricular record would otherwise win admission only to Howard Law School in Washington, D.C., regularly win admission from us. And the overwhelming majority of applicants -- perhaps 80 percent -- for whom we lower our standards so drastically are from out of state.
Such is the affirmative action admissions policy we at the IU Bloomington Law School have followed for more than 30 years. We follow a similarly heavy-handed affirmative action policy for financial aid and faculty recruitment.
A policy however well-meaning in the abstract can feel foul to those given the job of implementing it. And in my four years on the admissions committee, routinely leapfrogging minority applicants over so many dramatically more qualified non-minority applicants, foul is how our affirmative action policy came to feel. Seeing the photographs and reading the record and personal statements of non-minority applicants whom we rejected in order to admit the far less qualified left me feeling as though I should wash. Eventually, I could not acquiesce in this policy any longer.
To be sure, every applicant has something positive in his or her record to which an admissions officer can point in order to justify admission. The great weight given race and ethnicity only becomes apparent when one sees the many positives in the records of those non-minority applicants denied admission.
Roughly speaking, to meet our de facto quotas, we must leapfrog less qualified minority applicants over approximately 330 more qualified non-minority applicants each year, many of whom, of course, will be Indiana residents.
Predictably, my opposition to our policy has been futile. Memos of my concerns -- concerns now taken up by the U.S. Supreme Court -- received no reply. As I said to the Indiana Policy Review in submitting a statistical report on our policy a few months ago, "On this subject the faculty and administration are entrenched in a Thermopylae of poor judgment and blocked imagination from which apparently no force on earth can dislodge us."
How entrenched we are in our policy may be revealed if the Supreme Court strikes down as unconstitutional Michigan's policy. Just recently, the IU administration, in an article published in our local newspaper, denied ever discriminating in favor of blacks and minorities in admissions. One cannot help but admire such brazenness. However, many fervent supporters of our policy are idealists, and, as the saying goes, the first thing an idealist will do for his ideals is lie.
Even if IU eventually 'fesses up, it still has left a host of technical claims about how the Supreme Court's decree does not apply to us, not to mention the options of delay and defiance. I believe that bringing a colorblind admissions policy to IU will require the determination of state legislators who are not afraid to use their control of our purse strings and who are savvy enough not to expect good-faith compliance from the faculty and administration.
But no court, not even the Supreme Court, can light such a fire under our state legislators. The match for that fire can only be struck by the people of Indiana.
Heidt, who teaches law at Indiana University in Bloomington and who has sat on the school's admissions committee, is an adjunct scholar of the Indiana Policy Review Foundation.
Professor Stake's Response:
A recent op-ed by a faculty member has seriously misinformed Star readers about admissions procedures at Indiana University School of Law - Bloomington. As Chair of the Admissions Committee, I would like to correct some of the regrettable misimpressions created by that op-ed.
IU Law does not use racial quotas in its admissions process. We do not assign a number or percentage to any racial group; nor do we establish any admissions goal for any such group; nor do we allot a specified number of seats based on race. We do not set a minimum, or a maximum, or an ideal. We do not "engineer" our admissions process to reach racial quotas. In short, we follow the dictates of the United States Supreme Court's Bakke decision.
In addition to our primary concerns for academic qualifications and integrity of character, the Admissions Committee strives to bring in a diverse class. Consistent with the Bakke decision, race is one of many diversity factors we consider. The diversity we seek also includes ethnicity, geography, viewpoint, undergraduate field of study, work experience, participation in community services and campus life, economic background, and military service.
All of those "plus" factors are considered when the Dean of Admissions and the Admissions Committee read the files of the applicants. All files are read holistically and the entire file is evaluated based on all considerations. We do not rank applicants on academic criteria and then look to see whether they belong to a minority group. All of the applicants we admit are wonderfully talented persons.
Along with others on the Committee and in the Administration, I view quotas to be illegal and I would never consider achieving diversity by breaking the law. I am absolutely confident that IU Law will not respond with either "defiance" or deception if the Supreme Court or the Legislature changes the law to prohibit race-conscious admissions. It is our obligation, as an institution of the State and especially as a law school, to obey the law. The suggestions, in print, that IU Law would defy the Supreme Court or respond in bad faith to the Legislature unfairly impugn what I know to be a faculty and institution of great integrity.
Professor Jeffrey E. Stake
Chair, Admissions Committee
Indiana University School of Law - Bloomington
UPDATE: Mr. Dillon has sent me his data which I'm poring over now (early on the morning of 5/31/03). I'll blog thoughts if I have them.
UPDATE TWO: Paul Musgrave from The Hoosier Review points out that IU's campus newspaper, the IDS did a better job of carrying Ms. Robel's response.
Curse the options:
[a link and quote-free post. sorry, don't have the time.]
I finally saw the admirably respectul recent film adaptation of Graham Greene's The Quiet American. The novel is set in the French Indochina as Vietnam struggles for independence from France, the Communists struggle to gain control within Vietnam, and the Americans -- well, I don't know the history to tell how far fact diverges from fiction in this recounting -- the Americans take sides. The main characters are Fowler, the 40ish British journalist; Pyle, the young quiet American; and Phong, the Vietnamese woman they both love. Fowler's policy is not to get involved, although that position is untenable. Pyle sees the French as fools and the Communists as, well, Commies, and presents himself as an agent of proper change.
But why are we--the Stranger, Other, Anglos--involved in the first place? Because we're there. If the Vietnamese chose to democratically elect themselves a Communist government -- a great fear of the Americans during this book -- what moral right do the rest of us of have to do anything other than send our economists over to lecture righteously at them? At one point, Fowler asks Pyle what it means for Vietnam "to go". He doesn't understand, he says, the American concern that countries will fall like dominos to Communism. As far as he can tell, even if it goes, it will still be there; its people and ways will outlast New York or Moscow.
It's . . . aie. . . how to put it. . . the novel indicts so many things. Neither Fowler nor Pyle''s approach to the Indochine situation survives the end of the story; indeed, Pyle does not survive the end. It attacks Pyle's presumption to understand the situation and to able to control anything, and then it attacks Pyle for actually gaining and using his control over the situation. Fowler wants to be able to care for Phuong the woman, her very corporeal self, let her interests fall where they may. His idea of separability fails. To have her, he must concern himself with her concerns, and to remain human in Vietnam, he must take action.
Here -- when Fowler finally does decide to act -- he choses the smallest amount of action possible, the most passive route he can take. It works, if accomplishing a discrete and isolated end constitutes working. [pardon some vagueness. Pyle's death is announced in the first chapter, so I don't think that's a spoiler.] But in a grander sense, does it work -- is there anything Fowler could do that would have worked? The Quiet American was published in 1955. As the movie makes clear with its ending shots of newspaper headlines through to the mid-1960s, America had no shortage of Pyles to carry on it missions of "aid".
And we, gentle readers, are left high and try with bad ideas laid out on the table, identified, and nothing approaching a solution. You can't even sleep contented for one night, temporarily believing that something propositioned might stand a chance of functioning. The End of the Affair left me with this feeling too -- the feeling that no amount of deus ex machina could create a happy ending (oddly, The Quiet American still manages to end a comedy).
I know I said I wouldn't, but... the epigraph comes from Canto I of Lord Bryon's "Don Juan".
[No. No. Now is not the time to read long poems.]
Sigh... questions for this summer when I have the time... how did Greene get to be so prophetic sounding -- where does he get his insight as a historical novelist? -- and what (why) does he think of Catholicism -- to be answered with more than "complicated" or "tortured" can explain.
[a link and quote-free post. sorry, don't have the time.]
I finally saw the admirably respectul recent film adaptation of Graham Greene's The Quiet American. The novel is set in the French Indochina as Vietnam struggles for independence from France, the Communists struggle to gain control within Vietnam, and the Americans -- well, I don't know the history to tell how far fact diverges from fiction in this recounting -- the Americans take sides. The main characters are Fowler, the 40ish British journalist; Pyle, the young quiet American; and Phong, the Vietnamese woman they both love. Fowler's policy is not to get involved, although that position is untenable. Pyle sees the French as fools and the Communists as, well, Commies, and presents himself as an agent of proper change.
But why are we--the Stranger, Other, Anglos--involved in the first place? Because we're there. If the Vietnamese chose to democratically elect themselves a Communist government -- a great fear of the Americans during this book -- what moral right do the rest of us of have to do anything other than send our economists over to lecture righteously at them? At one point, Fowler asks Pyle what it means for Vietnam "to go". He doesn't understand, he says, the American concern that countries will fall like dominos to Communism. As far as he can tell, even if it goes, it will still be there; its people and ways will outlast New York or Moscow.
It's . . . aie. . . how to put it. . . the novel indicts so many things. Neither Fowler nor Pyle''s approach to the Indochine situation survives the end of the story; indeed, Pyle does not survive the end. It attacks Pyle's presumption to understand the situation and to able to control anything, and then it attacks Pyle for actually gaining and using his control over the situation. Fowler wants to be able to care for Phuong the woman, her very corporeal self, let her interests fall where they may. His idea of separability fails. To have her, he must concern himself with her concerns, and to remain human in Vietnam, he must take action.
Here -- when Fowler finally does decide to act -- he choses the smallest amount of action possible, the most passive route he can take. It works, if accomplishing a discrete and isolated end constitutes working. [pardon some vagueness. Pyle's death is announced in the first chapter, so I don't think that's a spoiler.] But in a grander sense, does it work -- is there anything Fowler could do that would have worked? The Quiet American was published in 1955. As the movie makes clear with its ending shots of newspaper headlines through to the mid-1960s, America had no shortage of Pyles to carry on it missions of "aid".
And we, gentle readers, are left high and try with bad ideas laid out on the table, identified, and nothing approaching a solution. You can't even sleep contented for one night, temporarily believing that something propositioned might stand a chance of functioning. The End of the Affair left me with this feeling too -- the feeling that no amount of deus ex machina could create a happy ending (oddly, The Quiet American still manages to end a comedy).
I know I said I wouldn't, but... the epigraph comes from Canto I of Lord Bryon's "Don Juan".
"This is the patent age of new inventions
For killing bodies, and for saving souls,
All propagated with the best intentions."
[No. No. Now is not the time to read long poems.]
Sigh... questions for this summer when I have the time... how did Greene get to be so prophetic sounding -- where does he get his insight as a historical novelist? -- and what (why) does he think of Catholicism -- to be answered with more than "complicated" or "tortured" can explain.
Friday, May 30, 2003
Decisions and Revisions:
And another question of blogging philosphy: when should a blogger delete her posts?
After consulting technorati I was preplexed to discover that recent links to our page had disappeared, until I discovered what happened. Sara Butler, embarrassed by the error in her post on contraceptives, has deleted it. Obviously a blogger doesn't want to perpetuate mis-information. (Obviously? Well, a good-faith blogger) But is it better to delete or merely to flag with a note saying "oops! this is completely wrong." On the one hand, blogging already encourages off-the-cuff remarking so much it makes some sense to let people revise as they think more carefully. On the other hand, the whole point of blogging is to expose arguments and responses, and it can be disorienting if you link to a post in error only to have your link's target dry up and go away.
Thoughts?
(None of this, of course, is to criticize Sara's choice to take her post down, though I do wish I could remember what it said, and sadly Google didn't cache it recently enough).
And another question of blogging philosphy: when should a blogger delete her posts?
After consulting technorati I was preplexed to discover that recent links to our page had disappeared, until I discovered what happened. Sara Butler, embarrassed by the error in her post on contraceptives, has deleted it. Obviously a blogger doesn't want to perpetuate mis-information. (Obviously? Well, a good-faith blogger) But is it better to delete or merely to flag with a note saying "oops! this is completely wrong." On the one hand, blogging already encourages off-the-cuff remarking so much it makes some sense to let people revise as they think more carefully. On the other hand, the whole point of blogging is to expose arguments and responses, and it can be disorienting if you link to a post in error only to have your link's target dry up and go away.
Thoughts?
(None of this, of course, is to criticize Sara's choice to take her post down, though I do wish I could remember what it said, and sadly Google didn't cache it recently enough).
Schools:
The Chicago Maroon contains an opinion piece by yours truly on school choice. If you read my previous "monster post," there's not really much new material, but it's there if you're curious. And that's the last piece I needed to make staff, which is good because there aren't any more issues for the quarter that I can write for.
The Chicago Maroon contains an opinion piece by yours truly on school choice. If you read my previous "monster post," there's not really much new material, but it's there if you're curious. And that's the last piece I needed to make staff, which is good because there aren't any more issues for the quarter that I can write for.
Augustus Schultz:
If your name is Augustus Schultz and you sent me an email in the past six hours, please send it again. I deleted it on accident.
Thank you for your time.
If your name is Augustus Schultz and you sent me an email in the past six hours, please send it again. I deleted it on accident.
Thank you for your time.
Clinton and Clinton:
Hillary Clinton is being attacked by the left for "neglecting her base" and not taking up enough of a leftist agenda. They supposedly fear that she'll be like Bill Clinton. I dare to dream.
Bill Clinton, meanwhile, is suggesting that a two-term limit on presidents makes little sense.
Matthew Yglesias has conducted some sort of unspoken analysis and concluded that Clinton is right and that unlimited terms would make the world "a marginally better place." Maybe.
I think there's a lot of sense in worrying about the incumbency effect in a president, and so it might be wise to want to restrict the possibility of future F.D.R.-esque rulers-for-life, like mayors Daley, writ large. But I do think Clinton's vision, that a country might want to go back "to the good old days," might well be accurate, and I think he's a good case in point. So why not amend the constitution to allow presidents to serve only two consecutive terms? That way, every eight years we'd be sure to usher some new blood in the system, but we wouldn't be deprived of turning back to a Clinton or a Reagan if the intervening president had led us far astray.
Hillary Clinton is being attacked by the left for "neglecting her base" and not taking up enough of a leftist agenda. They supposedly fear that she'll be like Bill Clinton. I dare to dream.
Bill Clinton, meanwhile, is suggesting that a two-term limit on presidents makes little sense.
"There may come a time when we have elected a president at age 45 or 50 and then 20 years later, the country comes up with the same sorts of problems the president faced before, and the people would like to bring that man or woman back,"
Matthew Yglesias has conducted some sort of unspoken analysis and concluded that Clinton is right and that unlimited terms would make the world "a marginally better place." Maybe.
I think there's a lot of sense in worrying about the incumbency effect in a president, and so it might be wise to want to restrict the possibility of future F.D.R.-esque rulers-for-life, like mayors Daley, writ large. But I do think Clinton's vision, that a country might want to go back "to the good old days," might well be accurate, and I think he's a good case in point. So why not amend the constitution to allow presidents to serve only two consecutive terms? That way, every eight years we'd be sure to usher some new blood in the system, but we wouldn't be deprived of turning back to a Clinton or a Reagan if the intervening president had led us far astray.
Oh yes we do, redux:
It's an eternal dilemma. Blogger eats your post. (Which is to say, you clumsily click the wrong key and send the entire thing tumbling into cyber-oblivion). Do you retype the post or do you growl and stalk off? Personally, I can't rest unless I've retyped the post. Does that make me an addict?
The New York Times features a fascinating Ohio Case asking whether a woman can be convicted for violating a protective order protecting her. In this case, Ms. Lucas had been abused by her husband, got a protective order, then later "recklessly exposed herself to the offender from whom she has sought protection." The Ohio Supreme Court is trying to figure out whether her conviction makes any sense.
The practical and legal issues are intriguing here. My general belief is that we don't take domestic violence nearly serious enough, and so I'm wary of a legal rule that will discourage women even further from going to the police when they're being beaten up. (After all, it's easy to imagine the bad-faith mischief to which a state could get up, under this rule) On the other hand, granting a protective order creates a certain amount of "moral hazard" and I can see why a state might want to say, "yes, we'll protect you, but help us out here. Keep your head down."
The broader philosophical issue, though, is also interesting, especially to those (unlike me) who believe that it's sometimes okay to punish people for violating a law that exists "for their own good." Andrew Sanderson, Ms. Lucas's lawyer, argues that we shouldn't:
And yet, of course, we do things like this all the time. Drug use is the most obvious example, where we jail people for years even when they've done nothing more serious than smoke marijuana in their own homes, or grow some for their own use. If the laws are justified on the grounds of protecting people from drug dealers who would otherwise prey upon them, this is a little counter-intuitive. And, of course, there's the Glenbrook North hazing (can't you let it die?--ed. No!) where the school punished hazed juniors and not just hazing seniors. And William Saletan mentioned an interesting incest case in Tennessee, State v. Smith (Lexis access required) where the court upheld an incest law against a constitutional challenge from a young (and mentally injured) girl (named Ami Smith) who had been convicted of having sex with her uncle since the age of 16. (The case itself has interesting bearing on Lawrence v. Texas, the sodomy case currently before the Supreme Court. Tennessee upheld the incest law despite a previous decision by a higher appeals court that held as "fundamental" "an adult's right to engage in consensual and noncommercial sexual activities in the privacy of that adult's home," not because they said the incest wasn't consensual (how could they? they were prosecuting Ami) but because the previous decision "had swept too broadly," which is another way of saying, "they didn't mean it.")
There's obviously some sense in having laws like this-- the state punishes you for your own good because it knows you'll thank it later, or would if you were thinking "rationally" about the whole thing (so that's why they call them "paternalistic" . . .). On the other hand, it's not clear how effective paternalistic laws really are in some of these vice cases. If the problem is that people ignore risk and discount the future too highly, it's not clear how much they'll heed the risk of future prosecution. Rational drug users, on the other hand (if they exist), who properly weigh the drug's benefits against its harms, will be strongly deterred when the state adds a ten-year prison sentence to the list of harms. This isn't to say that paternalist drug laws don't affect the less rational as well as the rational, only that we shouldn't be surprised if they disproportionately help the very people who don't need them, while jailing (or ignoring) those who do.
Returning to the instant case, common sense might recognize the state's desire to say "we'll help you out, but don't make this difficult for us." After all, that's why the Chicago police are more sympathetic to a white college student's mugging complaint if she's mugged at 55th and Everett than if she's mugged at 102nd and Ashland. But then again, maybe it's unjust to require victims of wrongful violence to make sacrifices to prevent violence in the future. If the state is serious about stopping its citizens from beating one another up, (and I think it should be serious about that) then why shouldn't it stop them regardless of how "recklessly" they "expose" themselves to one another? Maybe those who are being "protected" should get just as much rights as anybody else who has done nothing wrong, and the violent should just learn to keep their hands to themselves.
I think both sides of this argument are compelling-- a protective order is a prophylactic rule designed to keep potential offenders away, and we don't want the holders of such orders to be able to make them almost impossible to enforce (by, for example, camping out just outside of your apartment so that you violate them by leaving home). But we should be wary of getting obsessed with prohibiting sometimes-harmful conduct (zero-tolerance) rather than focusing on protecting people from actual harm (harm reduction).
It's an eternal dilemma. Blogger eats your post. (Which is to say, you clumsily click the wrong key and send the entire thing tumbling into cyber-oblivion). Do you retype the post or do you growl and stalk off? Personally, I can't rest unless I've retyped the post. Does that make me an addict?
The New York Times features a fascinating Ohio Case asking whether a woman can be convicted for violating a protective order protecting her. In this case, Ms. Lucas had been abused by her husband, got a protective order, then later "recklessly exposed herself to the offender from whom she has sought protection." The Ohio Supreme Court is trying to figure out whether her conviction makes any sense.
The practical and legal issues are intriguing here. My general belief is that we don't take domestic violence nearly serious enough, and so I'm wary of a legal rule that will discourage women even further from going to the police when they're being beaten up. (After all, it's easy to imagine the bad-faith mischief to which a state could get up, under this rule) On the other hand, granting a protective order creates a certain amount of "moral hazard" and I can see why a state might want to say, "yes, we'll protect you, but help us out here. Keep your head down."
The broader philosophical issue, though, is also interesting, especially to those (unlike me) who believe that it's sometimes okay to punish people for violating a law that exists "for their own good." Andrew Sanderson, Ms. Lucas's lawyer, argues that we shouldn't:
"Women in abusive relationships are not always in a position where they're going to act in their own best interest," he said. "The analogy I continually draw is between girls who get involved with older men. We don't prosecute them for aiding and abetting in statutory rape, no matter how worldly and solicitous they may be."
And yet, of course, we do things like this all the time. Drug use is the most obvious example, where we jail people for years even when they've done nothing more serious than smoke marijuana in their own homes, or grow some for their own use. If the laws are justified on the grounds of protecting people from drug dealers who would otherwise prey upon them, this is a little counter-intuitive. And, of course, there's the Glenbrook North hazing (can't you let it die?--ed. No!) where the school punished hazed juniors and not just hazing seniors. And William Saletan mentioned an interesting incest case in Tennessee, State v. Smith (Lexis access required) where the court upheld an incest law against a constitutional challenge from a young (and mentally injured) girl (named Ami Smith) who had been convicted of having sex with her uncle since the age of 16. (The case itself has interesting bearing on Lawrence v. Texas, the sodomy case currently before the Supreme Court. Tennessee upheld the incest law despite a previous decision by a higher appeals court that held as "fundamental" "an adult's right to engage in consensual and noncommercial sexual activities in the privacy of that adult's home," not because they said the incest wasn't consensual (how could they? they were prosecuting Ami) but because the previous decision "had swept too broadly," which is another way of saying, "they didn't mean it.")
There's obviously some sense in having laws like this-- the state punishes you for your own good because it knows you'll thank it later, or would if you were thinking "rationally" about the whole thing (so that's why they call them "paternalistic" . . .). On the other hand, it's not clear how effective paternalistic laws really are in some of these vice cases. If the problem is that people ignore risk and discount the future too highly, it's not clear how much they'll heed the risk of future prosecution. Rational drug users, on the other hand (if they exist), who properly weigh the drug's benefits against its harms, will be strongly deterred when the state adds a ten-year prison sentence to the list of harms. This isn't to say that paternalist drug laws don't affect the less rational as well as the rational, only that we shouldn't be surprised if they disproportionately help the very people who don't need them, while jailing (or ignoring) those who do.
Returning to the instant case, common sense might recognize the state's desire to say "we'll help you out, but don't make this difficult for us." After all, that's why the Chicago police are more sympathetic to a white college student's mugging complaint if she's mugged at 55th and Everett than if she's mugged at 102nd and Ashland. But then again, maybe it's unjust to require victims of wrongful violence to make sacrifices to prevent violence in the future. If the state is serious about stopping its citizens from beating one another up, (and I think it should be serious about that) then why shouldn't it stop them regardless of how "recklessly" they "expose" themselves to one another? Maybe those who are being "protected" should get just as much rights as anybody else who has done nothing wrong, and the violent should just learn to keep their hands to themselves.
I think both sides of this argument are compelling-- a protective order is a prophylactic rule designed to keep potential offenders away, and we don't want the holders of such orders to be able to make them almost impossible to enforce (by, for example, camping out just outside of your apartment so that you violate them by leaving home). But we should be wary of getting obsessed with prohibiting sometimes-harmful conduct (zero-tolerance) rather than focusing on protecting people from actual harm (harm reduction).
Insomnia:
I can't sleep. So what do I do? I turn to Flannery O'Connor. At least I figure once I get to sleep the dreams will be wonderfully bizarre and disturbing.
"She meant to stand on that platform in August with the General sitting in his wheel chair on the stage behind her and she meant to hold up her head very high as if she were saying, "See him! See him! My kin, all you upstarts! Glorious upright old man standing for the old traditions! Dignity! Honor! Courage! See him!" One night in her sleep she screamed, "See him! See him!" and turned her head and found him sitting in his wheel chair behind her with a terrible expression on his face and with all his clothes off except the general's hat and she had waked up and had not dared to go back to sleep that night." -- from "A Late Encounter with the Enemy"
ah yes, be careful what you wish for. I always return to this passage from O'Connor, also with that same cautionary moral.
"Mr. Shiftlet was so shocked that for about a hundred feet he drove along slowly with the door still open. A cloud, the exact color of the boy's hat and shaped like a turnip, had descended over the sun, and another, worse looking, crouched behind the car. Mr. Shiftlet felt that the rottenness of the wrold was about to engulf him. He raised his arm and let it fall again to his breast. 'Oh Lord!' he prayed. 'Break forth and wash the slime from this earth!'
"The turnip continued slowly to descend. After a few minutes there was a guffawing peal of thunder from behind and fantastic raindrops, like tin-can tops, crashed over the rear of Mr. Shiftlet's car. Very quickly he stepped on the gas and with his stump sticking out the window he raced the galloping shower into Mobile." -- from "The Life You Save May Be Your Own"
sometimes I do wish I saw the world working in that way
I can't sleep. So what do I do? I turn to Flannery O'Connor. At least I figure once I get to sleep the dreams will be wonderfully bizarre and disturbing.
"She meant to stand on that platform in August with the General sitting in his wheel chair on the stage behind her and she meant to hold up her head very high as if she were saying, "See him! See him! My kin, all you upstarts! Glorious upright old man standing for the old traditions! Dignity! Honor! Courage! See him!" One night in her sleep she screamed, "See him! See him!" and turned her head and found him sitting in his wheel chair behind her with a terrible expression on his face and with all his clothes off except the general's hat and she had waked up and had not dared to go back to sleep that night." -- from "A Late Encounter with the Enemy"
ah yes, be careful what you wish for. I always return to this passage from O'Connor, also with that same cautionary moral.
"Mr. Shiftlet was so shocked that for about a hundred feet he drove along slowly with the door still open. A cloud, the exact color of the boy's hat and shaped like a turnip, had descended over the sun, and another, worse looking, crouched behind the car. Mr. Shiftlet felt that the rottenness of the wrold was about to engulf him. He raised his arm and let it fall again to his breast. 'Oh Lord!' he prayed. 'Break forth and wash the slime from this earth!'
"The turnip continued slowly to descend. After a few minutes there was a guffawing peal of thunder from behind and fantastic raindrops, like tin-can tops, crashed over the rear of Mr. Shiftlet's car. Very quickly he stepped on the gas and with his stump sticking out the window he raced the galloping shower into Mobile." -- from "The Life You Save May Be Your Own"
sometimes I do wish I saw the world working in that way
Oryx and Crake:
I've just finished Margaret Atwood's Oryx and Crake. (Sven Birkerts reviews it here, I respond here, Jeremy Reff here). It's very good. Yes, of course it has a leftist political message. Is it a good story? Absolutely. Is it ironclad political philosophy? Of course not. Is it literature with a capital "L"? Without a doubt.
It's good in the way that The Blind Assassin was good, without being tiresome in the way that A Handmaid's Tale was tiresome (even if good). That is, it paints a dystopia based on certain excesses, but it indicts in a purely literary manner, not a philosophical one. Atwood manages to instill both a chill sensation yet also eerie amazement that she has done so with such an ambiguous moral light. That is, she tars capitalism, nanotech, and child pornography, but with a strangely grey brush. The novel thus avoids Handmaid's "cautionary tale" trope in favor of the "inevitable tale" motif, which is much more effective in her hands.
And of course there's the rapidly shifting narrative style, which causes Atwood-lovers to swoon and Atwood-haters to reach for their air sickness bags, as modern day plot is mixed with past exposition-- like in Cat's Eye, Bodily Harm, Blind Assassin, and all the rest. But like the Blind Assassin, and unlike Cat's Eye, she manages to give more vitality to her modern day, even if the story is smoother and less surprising than Blind Assassin. In other words, Oryx and Crake is sort of like an Atwood table wine; it smooths out the major excesses and failings of her other works, even if it fails to make the mouth water quite as much as the best vintage. The narrative is a little easier to keep track of (there are only two timelines and one narrator), it has an ending (of sorts), it avoids being too preoccupied with its own premise, but also fleshes that premise out. The details make Crake's earth stand out from Handmaid's strangely generic world. I have always had psychological trouble with foie gras, but after ChickieNobs Nubbins . . . it will be a long time before I return to Chick-fil-A, (let alone these chicken rings!).
Of course, I also liked the book because of personal resonances. I'm tentatively working on a political theory piece called Reasoning Intelligently in a Post-Apocalyptic World, an activity at the center of Snowman's life. The thought of snats scuttling across the flooded basement floor makes me bring my feet up on the chair, especially given the losing battle my roommate and I are fighting with a rodent population. And as always, there's the Atwood take on love-- a little dirty and sickening, but strangely satisfing, like too many oreos late at night. Her narrator is male, which is vey unusual for her, but she writes him convincingly, which is impressive for an author whose books are all so soaked by gender and by sex.
As I said, the interplay between love and child pornography was particularly surprising to me (but I don't think I've spoiled anything), and the not unusual drama of love, friendship, duty, and all the rest happens to squarely strike my history. There's a strange echo of Chuck Palanhuik in this book. Maybe it's a Canadian thing.
And what of Birkerts' claim, that "what Atwood's inventive treatment of first and last things lacks is a plausible psychological basis. The man who would play God, who would rewrite creation, needs to be something more than a knowingly enigmatic figure conjured onto the page"? He wasn't reading carefully enough. Atwood makes it clear enough, though there is no Bond-like scene where the characters all recount their darkest plans to one another. "You can tell a lot about a person from their fridge magnets, not that he'd thought much about them at the time." Atwood's characters are subtle and her narrator decidedly limited. But Birkerts claim that backgrounds are "arbitrarily assigned" and "true complexity of character" lacking are absurd. I suspect that he skipped or skimmed the last third of the book, or failing that, didn't stop to think long and hard at the end of chapter 12.
And of course, there are also the curious touches that make this a book worth re-reading once or twice-- not on the weblike level of The Blind Assassin or Ada-- but the two digs (one explicit on page 196, one all but on page 151) at the Worst Case Scenario Handbooks are priceless. The misuse of "comprised" on page 109 is a little off-putting, though. And could this post be complete without quotes?
I've just finished Margaret Atwood's Oryx and Crake. (Sven Birkerts reviews it here, I respond here, Jeremy Reff here). It's very good. Yes, of course it has a leftist political message. Is it a good story? Absolutely. Is it ironclad political philosophy? Of course not. Is it literature with a capital "L"? Without a doubt.
It's good in the way that The Blind Assassin was good, without being tiresome in the way that A Handmaid's Tale was tiresome (even if good). That is, it paints a dystopia based on certain excesses, but it indicts in a purely literary manner, not a philosophical one. Atwood manages to instill both a chill sensation yet also eerie amazement that she has done so with such an ambiguous moral light. That is, she tars capitalism, nanotech, and child pornography, but with a strangely grey brush. The novel thus avoids Handmaid's "cautionary tale" trope in favor of the "inevitable tale" motif, which is much more effective in her hands.
And of course there's the rapidly shifting narrative style, which causes Atwood-lovers to swoon and Atwood-haters to reach for their air sickness bags, as modern day plot is mixed with past exposition-- like in Cat's Eye, Bodily Harm, Blind Assassin, and all the rest. But like the Blind Assassin, and unlike Cat's Eye, she manages to give more vitality to her modern day, even if the story is smoother and less surprising than Blind Assassin. In other words, Oryx and Crake is sort of like an Atwood table wine; it smooths out the major excesses and failings of her other works, even if it fails to make the mouth water quite as much as the best vintage. The narrative is a little easier to keep track of (there are only two timelines and one narrator), it has an ending (of sorts), it avoids being too preoccupied with its own premise, but also fleshes that premise out. The details make Crake's earth stand out from Handmaid's strangely generic world. I have always had psychological trouble with foie gras, but after ChickieNobs Nubbins . . . it will be a long time before I return to Chick-fil-A, (let alone these chicken rings!).
Of course, I also liked the book because of personal resonances. I'm tentatively working on a political theory piece called Reasoning Intelligently in a Post-Apocalyptic World, an activity at the center of Snowman's life. The thought of snats scuttling across the flooded basement floor makes me bring my feet up on the chair, especially given the losing battle my roommate and I are fighting with a rodent population. And as always, there's the Atwood take on love-- a little dirty and sickening, but strangely satisfing, like too many oreos late at night. Her narrator is male, which is vey unusual for her, but she writes him convincingly, which is impressive for an author whose books are all so soaked by gender and by sex.
As I said, the interplay between love and child pornography was particularly surprising to me (but I don't think I've spoiled anything), and the not unusual drama of love, friendship, duty, and all the rest happens to squarely strike my history. There's a strange echo of Chuck Palanhuik in this book. Maybe it's a Canadian thing.
And what of Birkerts' claim, that "what Atwood's inventive treatment of first and last things lacks is a plausible psychological basis. The man who would play God, who would rewrite creation, needs to be something more than a knowingly enigmatic figure conjured onto the page"? He wasn't reading carefully enough. Atwood makes it clear enough, though there is no Bond-like scene where the characters all recount their darkest plans to one another. "You can tell a lot about a person from their fridge magnets, not that he'd thought much about them at the time." Atwood's characters are subtle and her narrator decidedly limited. But Birkerts claim that backgrounds are "arbitrarily assigned" and "true complexity of character" lacking are absurd. I suspect that he skipped or skimmed the last third of the book, or failing that, didn't stop to think long and hard at the end of chapter 12.
And of course, there are also the curious touches that make this a book worth re-reading once or twice-- not on the weblike level of The Blind Assassin or Ada-- but the two digs (one explicit on page 196, one all but on page 151) at the Worst Case Scenario Handbooks are priceless. The misuse of "comprised" on page 109 is a little off-putting, though. And could this post be complete without quotes?
"Don't even think about it," he tells himself. Sex is like drink, it's bad to start brooding about it too early in the day.
"...You used to be so . . . you had ideals, then."
"Sure," said Jimmy's father in a tired voice. "I've still got them. I just can't afford them."
Why hyphenate, why parenthesize, unless absolutely necessary?
"You know I love you. You're the only one." She isn't the first woman he's ever said that to. He shouldn't have used it up so much earlier in his life, he shouldn't have treated it like a tool, a wedge, a key to open women. By the time he got around to meaning it, the words had sounded fraudulent to him and he'd been ashamed to pronounce them. "No, really . . ."
"You can't buy . . ." He wanted to say love, but he hesitated. It was too soppy.
"You can't buy it, but it has a price," said Oryx. "Everything has a price."
"Not me," said Jimmy, trying to joke. "I don't have a price."
Wrong, as usual.
He wasn't lying though, not all the time. He really did love these women, sort of. He really did want to make them feel better. It was just that he had a short attention span.
Thursday, May 29, 2003
Plus ca change...
Matthew Yglesias thinks that the Democrats need to get themselves some religion. He writes:
I find this particularly interesting since I wrote my B.A. on the development of absolutism in sixteenth century France, and one of the things I concluded was that the monarchy used piety as a means to convince the populace that it would limit its own exercise of power. On the one hand this makes a certain kind of intuitive sense. If it is very important to you that a politician always be honest, would you prefer a politician who believed that lying was usually of negative net utility, or one that believed his soul would rot in hell for all eternity were he to tell a lie? The problem with this sort of test, though, is that it makes it very difficult to catch the really big liars--the ones who are willing to lie not only about political matters, but also their beliefs as to the potential consequeses in the afterlife for lying. Much better to set up institutional checks that will ensure that lying really will be of negative net utility, and elect politicians that seem intelligent enough to recognize this fact. Sure this won't stop some liars from trying to beat the system, but it certainly is much better than one that only disadvantages ethical athiests.
There are thus two reasons why democrats would not want to buy into a system in which religious professions served as a proxy basis for judging the ethics of a candidate. The first is that, as the French people discovered, politicians are perfectly capable of making sincere protestations of piety at the same time as they trample your rights in the dust, making this an inherently bad proxy system. The second is that a test that provides the greatest disadvantage to ethical athiests will also provide more disadvantage to the Democrats that are more likely to be athiests than Republicans who are more likely to be Christians.
Matthew Yglesias thinks that the Democrats need to get themselves some religion. He writes:
A substantial portion of politics is about moral argument, and for most Americans morality and religion are closely tied together. This is not, in my opinion, an ideal situation, but it's the situation we've got so the Democrats might as well learn to live with it.
I find this particularly interesting since I wrote my B.A. on the development of absolutism in sixteenth century France, and one of the things I concluded was that the monarchy used piety as a means to convince the populace that it would limit its own exercise of power. On the one hand this makes a certain kind of intuitive sense. If it is very important to you that a politician always be honest, would you prefer a politician who believed that lying was usually of negative net utility, or one that believed his soul would rot in hell for all eternity were he to tell a lie? The problem with this sort of test, though, is that it makes it very difficult to catch the really big liars--the ones who are willing to lie not only about political matters, but also their beliefs as to the potential consequeses in the afterlife for lying. Much better to set up institutional checks that will ensure that lying really will be of negative net utility, and elect politicians that seem intelligent enough to recognize this fact. Sure this won't stop some liars from trying to beat the system, but it certainly is much better than one that only disadvantages ethical athiests.
There are thus two reasons why democrats would not want to buy into a system in which religious professions served as a proxy basis for judging the ethics of a candidate. The first is that, as the French people discovered, politicians are perfectly capable of making sincere protestations of piety at the same time as they trample your rights in the dust, making this an inherently bad proxy system. The second is that a test that provides the greatest disadvantage to ethical athiests will also provide more disadvantage to the Democrats that are more likely to be athiests than Republicans who are more likely to be Christians.
Gags:
Jacob Levy's New Republic piece is up (there's too much to quote; go read it; I'll wait), and it deals essentially with gag rules, discussing how conservatives insist that religious groups ought to be able to get money to enact social services even though they also espouse religious views, while liberals insist that international groups ought to be able to get money to distribute condoms even though they also want to enact U.S.-style abortion protections abroad.
He does a good job of teasing out the troubles behind the free speech subsidy/penalty question. On the one hand, there is certainly no right to receive federal money; not getting a handout is much different from getting thrown in jail. On the other hand, it's easy to imagine ways that prohibitive penalties can masquerade as subsidies. What if the government enacted a $500 annual head tax, but also offered a $500 subsidy to anybody who decided not to discuss abortion? What if the sum was $5000000?
Incidentally, the law on this is something of a legal morass. Professor Levy cites Rust v. Sullivan, which does establish the government's power in the abortion context, but a later case called Legal Services v. Velazquez (which said that a government program to provide free lawyers couldn't limit the kind of welfare cases they could work on) seems to fly in Rust's face (without explicitly overruling it), and nobody I've talked to yet can sort out what distinction the two draw, unless it's that lawyers are protected where doctors are not.
I think that the government ought to be allowed (constitutionally) to enact discriminatory subsidies but that it ought not do it often. There are classic thought experiments to support this intuition: if our government had erected the Statue of Liberty, it could hardly be required to erect the Statue of Oppression next to it. Indeed, the government funds the National Endowment for Democracy which hires people to pledge the virtues of democracy abroad, and I don't think the constitution should require it to provide equal funding to those who would rather preach the virtues of fascism.
The idea that underlies our dual intuitions is that the government shouldn't be kept out of the marketplace of ideas but also shouldn't be allowed oppressive power over the market. For this reason, we strictly scrutinize its attempts to criminalize or penalize disfavored content and viewpoints (is there a good distinction between content- and viewpoint- discrimination?--ed. a post for another day), because it is acting in ways that no other speaker can, gaining an unfair advantage out of its monopoly on force. Similarly, we grant the government broad leniency to actually promote messages it agrees with just as you or I or Bill Gates can, because we don't want to cripple our government by forcing it to be ideologically neutral all of the time. (Ambassadors, for example, express a specific viewpoint, and the government subsidizes their expression without subsidizing those who wish to undermine our foreign policy).
The tensions come when an issue is divisive in a way that abortion is but democracy is not. Our particular fear is that even when the government is doing nothing but spending money on those it agrees with, it's different because the government gets its money-- and it has a lot of it-- by taking it from us, somewhat against our will.
Of course, this is a problem not unique to speech. Wouldn't we be almost as troubled if the government decided to simply subsidize those who engaged in non-homosexual conduct (if it could find the "rational basis" under the 14th Amendment) or if it offered $1000 to anybody who waived his right to a trial by jury? The trouble, I think, is attempting a sophisticated analysis of the 1st Amendment uncoupled from a sophisticated analysis of taxation, takings, and givings under the neglected bit of the 5th amendment (which proscribes uncompensated takings). Richard Epstein has done a lot of work in this field which I've only started to understand, but I think his ideas offer a lot of promise, but they would force a fundamental rethinking of takings law. And sadly I'm not sure the court is willing to do that to settle a relatively minor point of its more-beloved 1st Amendment.
All of that, of course, concerns only the constitutional and not the political. I think that a democratic government generally ought to shy away from subsidizing one viewpoint in matters on which there is little consensus. Of course, no constitutional provision is needed to stop politicians from taking positions that are truly unpopular; elections do that just fine. Now if only some candidate would offer a rule that worked both ways, my vote for 2004 would be decided.
Jacob Levy's New Republic piece is up (there's too much to quote; go read it; I'll wait), and it deals essentially with gag rules, discussing how conservatives insist that religious groups ought to be able to get money to enact social services even though they also espouse religious views, while liberals insist that international groups ought to be able to get money to distribute condoms even though they also want to enact U.S.-style abortion protections abroad.
He does a good job of teasing out the troubles behind the free speech subsidy/penalty question. On the one hand, there is certainly no right to receive federal money; not getting a handout is much different from getting thrown in jail. On the other hand, it's easy to imagine ways that prohibitive penalties can masquerade as subsidies. What if the government enacted a $500 annual head tax, but also offered a $500 subsidy to anybody who decided not to discuss abortion? What if the sum was $5000000?
Incidentally, the law on this is something of a legal morass. Professor Levy cites Rust v. Sullivan, which does establish the government's power in the abortion context, but a later case called Legal Services v. Velazquez (which said that a government program to provide free lawyers couldn't limit the kind of welfare cases they could work on) seems to fly in Rust's face (without explicitly overruling it), and nobody I've talked to yet can sort out what distinction the two draw, unless it's that lawyers are protected where doctors are not.
I think that the government ought to be allowed (constitutionally) to enact discriminatory subsidies but that it ought not do it often. There are classic thought experiments to support this intuition: if our government had erected the Statue of Liberty, it could hardly be required to erect the Statue of Oppression next to it. Indeed, the government funds the National Endowment for Democracy which hires people to pledge the virtues of democracy abroad, and I don't think the constitution should require it to provide equal funding to those who would rather preach the virtues of fascism.
The idea that underlies our dual intuitions is that the government shouldn't be kept out of the marketplace of ideas but also shouldn't be allowed oppressive power over the market. For this reason, we strictly scrutinize its attempts to criminalize or penalize disfavored content and viewpoints (is there a good distinction between content- and viewpoint- discrimination?--ed. a post for another day), because it is acting in ways that no other speaker can, gaining an unfair advantage out of its monopoly on force. Similarly, we grant the government broad leniency to actually promote messages it agrees with just as you or I or Bill Gates can, because we don't want to cripple our government by forcing it to be ideologically neutral all of the time. (Ambassadors, for example, express a specific viewpoint, and the government subsidizes their expression without subsidizing those who wish to undermine our foreign policy).
The tensions come when an issue is divisive in a way that abortion is but democracy is not. Our particular fear is that even when the government is doing nothing but spending money on those it agrees with, it's different because the government gets its money-- and it has a lot of it-- by taking it from us, somewhat against our will.
Of course, this is a problem not unique to speech. Wouldn't we be almost as troubled if the government decided to simply subsidize those who engaged in non-homosexual conduct (if it could find the "rational basis" under the 14th Amendment) or if it offered $1000 to anybody who waived his right to a trial by jury? The trouble, I think, is attempting a sophisticated analysis of the 1st Amendment uncoupled from a sophisticated analysis of taxation, takings, and givings under the neglected bit of the 5th amendment (which proscribes uncompensated takings). Richard Epstein has done a lot of work in this field which I've only started to understand, but I think his ideas offer a lot of promise, but they would force a fundamental rethinking of takings law. And sadly I'm not sure the court is willing to do that to settle a relatively minor point of its more-beloved 1st Amendment.
All of that, of course, concerns only the constitutional and not the political. I think that a democratic government generally ought to shy away from subsidizing one viewpoint in matters on which there is little consensus. Of course, no constitutional provision is needed to stop politicians from taking positions that are truly unpopular; elections do that just fine. Now if only some candidate would offer a rule that worked both ways, my vote for 2004 would be decided.
Wednesday, May 28, 2003
Spam, continued:
I've finally gotten a rise out of the conservatism blog, although despite my arguments he still thinks I'm a "good-willed chap." Good. At any rate, he makes some arguments. He numbers them. So I'm going to use the same numbering system.
Argument One: Spam is indirect theft. Indirect theft is a very odd term, and I won't reflect on it too deeply. I think what Stephen means to say is that Spam imposes costs, which is to say that it imposes externalities. That is, Spam is no more "theft" than is littering, or shouting through a loudspeaker at a movie premiere, or throwing rocks with notes on them through the windows of an abortion clinic. It is behavior that imposes costs on other people, takes use of their private space, and annoys the hell out of everybody. The theft metaphor is strained, but also unimportant.
Argument Two: Free speech isn't absolute. (Stephen wonders. Am I liberal? Am I political?-- I'm sure political, but not exactly liberal. Not conservative, either. I'll keep him guessing). Yes, yes, free speech is not absolute, so they tell us at every turn. Of course, that's the argument that anybody trots out whenever they want to restrict speech and sometimes they're right and sometimes they're wrong. Incidentally, shouting "fire" in a crowded theater is probably protected speech under Brandenberg v. Ohio, (which pretty much overruled Schenck v. U.S., the case that Stephen is paraphrasing). The First Amendment analysis is actually pretty interesting, and deserves its own law review article. I'll just say in brief that Spam is probably constitutionally regulable because it is "commercial speech" but wouldn't be if it weren't. Whether this distinction makes any sense is another question. Judge Alex Kozinski and Volokite Stuart Banner suggest not. Think about it.
Argument Three: Private control methods would ruin the internet. The system I chiefly propose is a personal ability to charge for access to one's inbox. This is not a revolutionary new limit on communication. After all, I can already block correspondence to my inbox by whomever I wish. My yahoo account, for example, automatically blocks all email that doesn't contain the word "othello" in the subject line. All I'm proposing is the creation of an accounting system to create a more nuanced filter. In essence, you could presumptively filter out strangers, but also let in strangers who wanted to pay some money. Nobody proposes that blocking email addresses "ruins the spirit of the open nature of the Internet," and my solution is less restrictive than that. Incidentally, if one takes seriously "the spirit of the open nature of the Internet," I'm not sure how one can believe that the government ought to decide which emails are commercial and undesirable and inflict criminal sanctions on them.
Furthermore, Stephen suggests, I just say this because I don't get that much spam. Actually, I get a lot of Spam, probably fifty-odd pieces a day to my uchicago account (what can I say? I'm promiscuous with my email account), and far more to my yahoo and hotmail accounts; I get another hundred-odd emails daily from various listservs and automatic email functions that I usually don't bother to read either. I am acquainted with my delete button, and we are happy together.
Argument Four: Spam is fraudulent, and this is not being content-biased. The traditional response to fraudulent commercial speech is to regulate it or ban it. I'm not going to argue about whether that's a bad idea. But the traditional response to non-fraudulent commercial speech is to permit it. If all Stephen proposes is liability for false Spam, more power to him. But I think he is proposing more than that. And the fact that SPAM works shouldn't be ignored. What that means is that a non-vanishing number of people respond to these emails, that the senders have proposed some commercial transaction that the consumer (the poor sap) would like to engage in. That's points in Spammers favor.
Stephen, of course, is far too savvy to ever buy anything from SPAM, and therefore would like to make them stop pestering him. And I, of course, am far too savvy to ever become a communist and would like them to stop pestering me. And my friend claims that he is far too savvy to ever be convinced by Jeff Wall and would like him to be regulated as subversive. Maybe. Then again, maybe an intelligent and principled response to annoying speech is to delete it or take private measures to keep it out of one's inbox. Weilding the oppressive arm of the state against it is a bit heavy-handed.
Having opened your inbox to the general public, you shouldn't come crying to the federal government when the general public has responded by saying things to you. If you don't like it, white list it.
(And what do I think of child pornography, Stephen asks? Ooh. No comment for now, but there are interesting issues at play there. What does Stephen think of videos that record acts of theft and murder?)
I've finally gotten a rise out of the conservatism blog, although despite my arguments he still thinks I'm a "good-willed chap." Good. At any rate, he makes some arguments. He numbers them. So I'm going to use the same numbering system.
Argument One: Spam is indirect theft. Indirect theft is a very odd term, and I won't reflect on it too deeply. I think what Stephen means to say is that Spam imposes costs, which is to say that it imposes externalities. That is, Spam is no more "theft" than is littering, or shouting through a loudspeaker at a movie premiere, or throwing rocks with notes on them through the windows of an abortion clinic. It is behavior that imposes costs on other people, takes use of their private space, and annoys the hell out of everybody. The theft metaphor is strained, but also unimportant.
Argument Two: Free speech isn't absolute. (Stephen wonders. Am I liberal? Am I political?-- I'm sure political, but not exactly liberal. Not conservative, either. I'll keep him guessing). Yes, yes, free speech is not absolute, so they tell us at every turn. Of course, that's the argument that anybody trots out whenever they want to restrict speech and sometimes they're right and sometimes they're wrong. Incidentally, shouting "fire" in a crowded theater is probably protected speech under Brandenberg v. Ohio, (which pretty much overruled Schenck v. U.S., the case that Stephen is paraphrasing). The First Amendment analysis is actually pretty interesting, and deserves its own law review article. I'll just say in brief that Spam is probably constitutionally regulable because it is "commercial speech" but wouldn't be if it weren't. Whether this distinction makes any sense is another question. Judge Alex Kozinski and Volokite Stuart Banner suggest not. Think about it.
Argument Three: Private control methods would ruin the internet. The system I chiefly propose is a personal ability to charge for access to one's inbox. This is not a revolutionary new limit on communication. After all, I can already block correspondence to my inbox by whomever I wish. My yahoo account, for example, automatically blocks all email that doesn't contain the word "othello" in the subject line. All I'm proposing is the creation of an accounting system to create a more nuanced filter. In essence, you could presumptively filter out strangers, but also let in strangers who wanted to pay some money. Nobody proposes that blocking email addresses "ruins the spirit of the open nature of the Internet," and my solution is less restrictive than that. Incidentally, if one takes seriously "the spirit of the open nature of the Internet," I'm not sure how one can believe that the government ought to decide which emails are commercial and undesirable and inflict criminal sanctions on them.
Furthermore, Stephen suggests, I just say this because I don't get that much spam. Actually, I get a lot of Spam, probably fifty-odd pieces a day to my uchicago account (what can I say? I'm promiscuous with my email account), and far more to my yahoo and hotmail accounts; I get another hundred-odd emails daily from various listservs and automatic email functions that I usually don't bother to read either. I am acquainted with my delete button, and we are happy together.
Argument Four: Spam is fraudulent, and this is not being content-biased. The traditional response to fraudulent commercial speech is to regulate it or ban it. I'm not going to argue about whether that's a bad idea. But the traditional response to non-fraudulent commercial speech is to permit it. If all Stephen proposes is liability for false Spam, more power to him. But I think he is proposing more than that. And the fact that SPAM works shouldn't be ignored. What that means is that a non-vanishing number of people respond to these emails, that the senders have proposed some commercial transaction that the consumer (the poor sap) would like to engage in. That's points in Spammers favor.
Stephen, of course, is far too savvy to ever buy anything from SPAM, and therefore would like to make them stop pestering him. And I, of course, am far too savvy to ever become a communist and would like them to stop pestering me. And my friend claims that he is far too savvy to ever be convinced by Jeff Wall and would like him to be regulated as subversive. Maybe. Then again, maybe an intelligent and principled response to annoying speech is to delete it or take private measures to keep it out of one's inbox. Weilding the oppressive arm of the state against it is a bit heavy-handed.
Having opened your inbox to the general public, you shouldn't come crying to the federal government when the general public has responded by saying things to you. If you don't like it, white list it.
(And what do I think of child pornography, Stephen asks? Ooh. No comment for now, but there are interesting issues at play there. What does Stephen think of videos that record acts of theft and murder?)
Sodomy, Liberty, etc.:
So I'm sorry my postings have been fairly scant today. I've spent about 4 hours this afternoon trying to figure out what the court should do with Lawrence v. Texas. On the one hand, there's a fairly straightforward substantive due process claim. On the other hand, it's substantive due process. (As Justice Scalia says, only lawyers could come up with a phrase like this. close your eyes and imagine it. Substantive process. The opposite of procedural substance.)
So anyway, I don't have anything new or coherent to write, and I'll spare you the long lecture on whether it is intellectually dishonest/morally indefensible to enforce as fundamental liberties mainstream privacy interests but not fringe ones ("where do you get off, Justice White . . ." the angry libertarian might begin, "getting cold feet just when my rights come to the table?")
I just want to link to and quote an amicus brief in the case from The Institute for Justice, one of the neater semi-Libertarian outfits, that does a lot of cool legal work. In an effort to show why one can believe that Texas is wrong without signing on to controversial (and possibly unhelpful) legal theories, they wrote:
Right or wrong? I don't know. But it does make me feel kind of warm inside.
So I'm sorry my postings have been fairly scant today. I've spent about 4 hours this afternoon trying to figure out what the court should do with Lawrence v. Texas. On the one hand, there's a fairly straightforward substantive due process claim. On the other hand, it's substantive due process. (As Justice Scalia says, only lawyers could come up with a phrase like this. close your eyes and imagine it. Substantive process. The opposite of procedural substance.)
So anyway, I don't have anything new or coherent to write, and I'll spare you the long lecture on whether it is intellectually dishonest/morally indefensible to enforce as fundamental liberties mainstream privacy interests but not fringe ones ("where do you get off, Justice White . . ." the angry libertarian might begin, "getting cold feet just when my rights come to the table?")
I just want to link to and quote an amicus brief in the case from The Institute for Justice, one of the neater semi-Libertarian outfits, that does a lot of cool legal work. In an effort to show why one can believe that Texas is wrong without signing on to controversial (and possibly unhelpful) legal theories, they wrote:
Substantive due process depends largely on whether the liberty interest at issue has historically been treated as a “fundamental” right . . . The problem with these approaches, and particularly with the fundamental rights inquiry, is that there are countless private activities that are protected by no tradition or express constitutional provision. It would be unimaginable that they could be prohibited in a free society, even if some objection could be raised to them – cooking unhealthy meals, staying up too late, spending a slothful day drinking coffee and doing puzzles instead of accomplishing something productive. Indeed, almost anything that an ordinary person might spend his or her weekend doing, from gardening to cleaning to touching up house paint, would probably not qualify as a “fundamental” right . . . Yet such private activities, in the aggregate, are the essence of ordered liberty.
Right or wrong? I don't know. But it does make me feel kind of warm inside.
Plagiarize
Let no one else's work evade your eyes
Remember why the good Lord made your eyes
So don't shade your eyes
But plagiarize, plagiarize, plagiarize
Only be sure always to call it please research
-Nicolai Ivanovich Lobachevsky, as reported by Tom Lehrer
Daniel Drezner has an interesting, if rather disconnected, post up about plagerism. He raises three separate, but interesting issues--the use of ghostwriters and research assistants by well-known columnists, the extent to which tough restictions on plagiarism inhibit the spread of ideas, and the attitude of the blogosphere on the plagiarism question. I'll be interested to see if the response is as he predicts.
Let no one else's work evade your eyes
Remember why the good Lord made your eyes
So don't shade your eyes
But plagiarize, plagiarize, plagiarize
Only be sure always to call it please research
-Nicolai Ivanovich Lobachevsky, as reported by Tom Lehrer
Daniel Drezner has an interesting, if rather disconnected, post up about plagerism. He raises three separate, but interesting issues--the use of ghostwriters and research assistants by well-known columnists, the extent to which tough restictions on plagiarism inhibit the spread of ideas, and the attitude of the blogosphere on the plagiarism question. I'll be interested to see if the response is as he predicts.
Not the Real Slippery Slope
As you might note from my previous post, the truly bothersome slippery slope argument in the morning-after pill debate is not from abortion to morning-after pill, but from morning-after pill to the pill. How many conservatives do you see owning up to that one? And speaking as a woman, I may have a fair degree of sympathy for anti-abortion measures, but when it comes to hormone-based contraception, "from my cold, dead hands!" say I.
As you might note from my previous post, the truly bothersome slippery slope argument in the morning-after pill debate is not from abortion to morning-after pill, but from morning-after pill to the pill. How many conservatives do you see owning up to that one? And speaking as a woman, I may have a fair degree of sympathy for anti-abortion measures, but when it comes to hormone-based contraception, "from my cold, dead hands!" say I.
Brief Shot:
From the fact that Shonda Werry sees fit to mention that Time calls the morning-after pill a contraceptive method, I assume she disagrees. My illustrious co-blogger Amy Lamboley has already given some good reasons I think this probably isn't so. But really, this position has always amazed me. Having failed to secure a right to regulate abortion, anti-abortion partisans are now arguing that even more things should be considered abortion.
It may be this is philosophically defensible, or even philosophically demanded, but it strikes me as a curious strategy, politically. One would almost expect it to be the liberals crying "If they can regulate abortion they can regulate the morning after pill!" So it's both baffling and pleasing to me when conservatives own up to their own slippery slopes.
From the fact that Shonda Werry sees fit to mention that Time calls the morning-after pill a contraceptive method, I assume she disagrees. My illustrious co-blogger Amy Lamboley has already given some good reasons I think this probably isn't so. But really, this position has always amazed me. Having failed to secure a right to regulate abortion, anti-abortion partisans are now arguing that even more things should be considered abortion.
It may be this is philosophically defensible, or even philosophically demanded, but it strikes me as a curious strategy, politically. One would almost expect it to be the liberals crying "If they can regulate abortion they can regulate the morning after pill!" So it's both baffling and pleasing to me when conservatives own up to their own slippery slopes.
Abortion... AGAIN.
Yeesh. Blog about SPAM, and nobody cares, but talk about abortion, and they beat a path to your door. At any rate, After Abortion has uncovered my response to Sara's (admittedly misnamed) post to end all posts.
She writes, in part:
And later,
Emily is making two entirely different claims and I think it's important to dis-entangle them. In reverse order. . . her second claim is that there's nothing wrong with women feeling emotional torment over abortion. Fine. If one thinks that one's own fetus might be entitled to moral weight (and whatever I think about abortion, it seems clear that there's nothing wrong with a woman refusing to abort her own fetus), then it's perfectly consistent to be hesitant to kill it, and even to perhaps feel regre it once you do. (Whether or not it seems good to celebrate this regret and pain as Emily generally seems inclined to, is a separate question not considered here).
Nonetheless, I don't think there's anything wrong with somebody who does feel only relief, and not guilt. If Emily has encountered people who think it's irrational to feel guilty for choosing an abortion, I'm not quite sure where they are, but they aren't me, but I also don't think it's irrational not to. I had thought that was the whole point of the "choice" bit.
But what about the political point that starts her rolling, "this frantic concern that if states choose to resent the murder of unborn babies that their mothers have chosen to bear, pretty soon there'll be no more Roe v Wade?"
Especially in the realm of substantive due process (probably the hook on which the right to an abortion is being hung), legal arguments are very vulnerable to slippery slopes. The court sometimes looks to state legislatures to determine what "national consensus" demands, which in turn can help it decide whether or not to override its tenuous doctrine of stare decisis. Recognizing this, those who want to keep abortion in the pantheon of "fundamental liberties," want to stop state legislatures from expressing a "consensus" that fetuses are entitled to significant moral weight, especially since it is a consensus that excludes their viewpoint.
Emily seems to be annoyed that people are applying pressure on democratically elected bodies to support the views with which they agree rather than the views with which the other side agree. Well, big surprise. What I think she ought to admit is that fetal-protection-laws do provide some threat to continued abortion jurisprudence and for the most part, both sides know this. Of course, there may be some independent moral reason to have such laws, but then, that's precisely what we're arguing about. How much weight does a fetus get?
If Emily disagrees, fine. But she shouldn't seem so appalled that people with moral views are petitioning the state to reflect their moral views. Of course they are!
Yeesh. Blog about SPAM, and nobody cares, but talk about abortion, and they beat a path to your door. At any rate, After Abortion has uncovered my response to Sara's (admittedly misnamed) post to end all posts.
She writes, in part:
So why this frantic concern that if states choose to resent the murder of unborn babies that their mothers have chosen to bear, pretty soon there'll be no more Roe v Wade?
In other words, the debate about abortion--as far as Ellen Goodman is concerned--simply IS a debate about the moral status of the fetus, and it is a debate where the state is obliged to affirmatively assert the non-personhood of the unborn.
That's pretty shaky ground, especially when many people are pro-choice not because they think unborn children aren't real people--they may be agnostic on that--but because they hesitate to force women who (rightly or wrongly) don't see an unborn child as a real human being to go through a pregnancy against her will. . . .
And later,
. . . if we are all to agree that the personhood of the fetus is not completely straightforward in the way that the personhood of a two-week-old baby is completely straightfoward unless you are Peter Singer, think of how strange it is that anyone can maintain with a straight face that the only emotion women feel after abortion is relief.
Does anyone seriously believe that it is in the nature of womankind as we know it to have an abortion as a frightened 17-year-old and then to never henceforward have thoughts cross your mind about whether what you aborted was a real baby? If people who haven't personally aborted a child struggle with this question, as they do, and often with passion and distress--is it such a stretch to suppose that these same questions might cross in a considerably more tormenting way the minds of those who have chosen abortion?
Emily is making two entirely different claims and I think it's important to dis-entangle them. In reverse order. . . her second claim is that there's nothing wrong with women feeling emotional torment over abortion. Fine. If one thinks that one's own fetus might be entitled to moral weight (and whatever I think about abortion, it seems clear that there's nothing wrong with a woman refusing to abort her own fetus), then it's perfectly consistent to be hesitant to kill it, and even to perhaps feel regre it once you do. (Whether or not it seems good to celebrate this regret and pain as Emily generally seems inclined to, is a separate question not considered here).
Nonetheless, I don't think there's anything wrong with somebody who does feel only relief, and not guilt. If Emily has encountered people who think it's irrational to feel guilty for choosing an abortion, I'm not quite sure where they are, but they aren't me, but I also don't think it's irrational not to. I had thought that was the whole point of the "choice" bit.
But what about the political point that starts her rolling, "this frantic concern that if states choose to resent the murder of unborn babies that their mothers have chosen to bear, pretty soon there'll be no more Roe v Wade?"
Especially in the realm of substantive due process (probably the hook on which the right to an abortion is being hung), legal arguments are very vulnerable to slippery slopes. The court sometimes looks to state legislatures to determine what "national consensus" demands, which in turn can help it decide whether or not to override its tenuous doctrine of stare decisis. Recognizing this, those who want to keep abortion in the pantheon of "fundamental liberties," want to stop state legislatures from expressing a "consensus" that fetuses are entitled to significant moral weight, especially since it is a consensus that excludes their viewpoint.
Emily seems to be annoyed that people are applying pressure on democratically elected bodies to support the views with which they agree rather than the views with which the other side agree. Well, big surprise. What I think she ought to admit is that fetal-protection-laws do provide some threat to continued abortion jurisprudence and for the most part, both sides know this. Of course, there may be some independent moral reason to have such laws, but then, that's precisely what we're arguing about. How much weight does a fetus get?
If Emily disagrees, fine. But she shouldn't seem so appalled that people with moral views are petitioning the state to reflect their moral views. Of course they are!
Tuesday, May 27, 2003
Laundry Lists:
Ask, and ye shall receive:
Ask, and ye shall receive:
LAUNDRY LIST, noun (1955-60) [so called from the listing of articles sent to the laundry]: a long list of items to be obtained, discussed, done, or not done; a lengthy, especially random list of items < the laundry list of new consumer-protection bills; a laundry list of hoped-for presents>(Random House, Merriam-Webster, Chapman’s Dictionary of American Slang)
Blog-Rolling:
As should be manifestly obvious, the little links on the sidebar have changed. I've now created an individualized section for each blogger, plus a general section for things used by three or more of us. Hopefully this will give you some idea of where each of the links might take you, and personalize things a bit more. Let me know what you think of this.
As should be manifestly obvious, the little links on the sidebar have changed. I've now created an individualized section for each blogger, plus a general section for things used by three or more of us. Hopefully this will give you some idea of where each of the links might take you, and personalize things a bit more. Let me know what you think of this.
?:
Why do we refer to 'laundry lists'? What is a laundry list? I know how it's used in speech, but what is one? I don't ever list anything in relation to my dirty (or clean) laundry. Is there a reason the term got adopted? Wouldn't it make more sense to call these long lists that you can't even finish a 'grocery list'?
Clearly, I need to be thinking more high-quality thoughts than I am at the moment, if this is what's in my mind.
Why do we refer to 'laundry lists'? What is a laundry list? I know how it's used in speech, but what is one? I don't ever list anything in relation to my dirty (or clean) laundry. Is there a reason the term got adopted? Wouldn't it make more sense to call these long lists that you can't even finish a 'grocery list'?
Clearly, I need to be thinking more high-quality thoughts than I am at the moment, if this is what's in my mind.
And after this, I too will end this topic:
"Do the Christians at issue think that they're propagating mis-information?" No, they don't. Nor do people who propagate the idea that the earth is flat, or that kissing and public toilets spreads the HIV virus. At what point do you draw the line and say, enough's enough, go educate yourself.
Ah, you say, but those are statements we can prove wrong with a few quick & ready facts. Well, how do you combat someone who claims to have found proof that Islam is "regressive, fradulent, and violent"? He'll produce his Christian with ears cut off, courtesy of some Muslims, and I'll produce Christians and Muslims living together without cutting off each others ears. At the end of the day, no one will be convinced, I still won't have seen this "proof" he's been talking about, and I'll continue to refer to a lot of what he says as "mis-information".
Do I want to go argue theology with a fundamentalist? I think I see a boulder with my name on it that needs rolling up a hill.
"Do the Christians at issue think that they're propagating mis-information?" No, they don't. Nor do people who propagate the idea that the earth is flat, or that kissing and public toilets spreads the HIV virus. At what point do you draw the line and say, enough's enough, go educate yourself.
Ah, you say, but those are statements we can prove wrong with a few quick & ready facts. Well, how do you combat someone who claims to have found proof that Islam is "regressive, fradulent, and violent"? He'll produce his Christian with ears cut off, courtesy of some Muslims, and I'll produce Christians and Muslims living together without cutting off each others ears. At the end of the day, no one will be convinced, I still won't have seen this "proof" he's been talking about, and I'll continue to refer to a lot of what he says as "mis-information".
Do I want to go argue theology with a fundamentalist? I think I see a boulder with my name on it that needs rolling up a hill.
Evil, one last time:
And here's my last post on the increasingly self-referential evangelist question. Amanda writes:
But that's the whole question. Do the Christians at issue think that they're propagating mis-information? (Leave aside for now the question of whether they should think it's worth it.) I think they probably don't. I think they think they're propagating God's Truth. (Leave aside the question of whether they're right, unless you want to go argue theology with a fundamentalist.)
And here's my last post on the increasingly self-referential evangelist question. Amanda writes:
Crescat scientia, vita excolatur, come on, Will, Crescat scientia. There's nothing logically necessary to Christianity or to the salvation of souls in an Evangelical Christian sense that needs the propagation of mis-information.
But that's the whole question. Do the Christians at issue think that they're propagating mis-information? (Leave aside for now the question of whether they should think it's worth it.) I think they probably don't. I think they think they're propagating God's Truth. (Leave aside the question of whether they're right, unless you want to go argue theology with a fundamentalist.)
Sorry, I didn't mean you to infer from "Satan's influence just isn't necessary" to a statement that "Satan isn't present here." [Pretend it's an LSAT question... not necessary doesn't mean non-existant.] Satan can cause bad things to happen. Free will can cause bad things to happen. And if someone can prove to me a means of distinguishing the two, I'll listen with interest; until that time, I'll consider them indistinguishable on the basis of whatever observations we mortals can make. [To be perfectly honest, I think it's all free will, but I'll allow the existence of Satan to serve as an example.]
Crescat scientia, vita excolatur, come on, Will, Crescat scientia. There's nothing logically necessary to Christianity or to the salvation of souls in an Evangelical Christian sense that needs the propagation of mis-information. The knowledge a person has not found Jesus is sufficient unto their ends.
Crescat scientia, vita excolatur, come on, Will, Crescat scientia. There's nothing logically necessary to Christianity or to the salvation of souls in an Evangelical Christian sense that needs the propagation of mis-information. The knowledge a person has not found Jesus is sufficient unto their ends.
Problems of Evil:
Amanda criticizes the gung-ho evangelists who think Islam is evil. Amy points out that they're just talking, offering cookies, and plotting strategy-- all the things we hope for in a society where people care deeply about things but also have to respect the rights of those who disagree. Amanda says the trouble is that these evangelists are wrong-- Islam isn't an evil, it's just been "hijacked by extremists." Peter replies, oh yes it is, at least from a fundamentalist Christian point of view. Amanda answers, no, the word is "incorrect," or "wrong."
I think the problem is a disagreement both about the assumptions that the Christians are operating under, and the degree to which people are theologically culpable for ignorance. From the evangelical (you're using "evangelical" and "fundamentalist" interchangeably. I hate that..--ed. But these guys are both fundamentalist and evangelical, I think) point of view, all those who do not accept Jesus Christ as their savior will burn in hell. Saving their souls is the ultimate good, and letting them perish the ultimate bad. Islam itself-- a religion-- is a tool that hinders the saving of souls. Therefore, it's bad. (Or so the logic goes).
Is it a tool of Satan? Is it an evil bad? Amanda thinks that "Satan's influence just isn't necessary". Maybe. First of all, (bold words added in light of Amanda's comment above) I question Amanda's intellectual right to tell the evangelists "no, you think Satan's necessarily at work here, but you're wrong, it's possibly just bad luck". (After all, what does she know of Satan and why should they listen to her?). Second of all, in a world of omnipotent God, one of the most plausible solutions to "The Problem of Evil" (If God is good and all-powerful, why do people suffer in the world? Why does he let their souls be led astray?) is the existence of Satan. So I think that the idea that all of the really bad things in the world are caused by Satan isn't just logical, it's logically necessary to Christianity.
But I also think most of that is fairly beside-the point. The Christian evangelicals aren't doing anything that we think is evil, are they? I don't mean to delve into the relative religious faiths on this blog, but the only people who should think that peaceful Christian evangelism is wrong are those who believe that Islam is the only way to salvation. Those who think one way or the other is the only way to heaven should cheer on mightily for our team, doing everything we can to help our side (we could distribute banners, like at a basketball game). And those who think this is just a matter of semantics, that both sides or neither side is right, or that professing opinions on the "truth" of centuries-old-literature is a mostly harmless and entirely trivial pastime, should laugh a little bit and thank our stars that they're using chocolate cookies and not broadswords. We've come a long way.
Amanda criticizes the gung-ho evangelists who think Islam is evil. Amy points out that they're just talking, offering cookies, and plotting strategy-- all the things we hope for in a society where people care deeply about things but also have to respect the rights of those who disagree. Amanda says the trouble is that these evangelists are wrong-- Islam isn't an evil, it's just been "hijacked by extremists." Peter replies, oh yes it is, at least from a fundamentalist Christian point of view. Amanda answers, no, the word is "incorrect," or "wrong."
I think the problem is a disagreement both about the assumptions that the Christians are operating under, and the degree to which people are theologically culpable for ignorance. From the evangelical (you're using "evangelical" and "fundamentalist" interchangeably. I hate that..--ed. But these guys are both fundamentalist and evangelical, I think) point of view, all those who do not accept Jesus Christ as their savior will burn in hell. Saving their souls is the ultimate good, and letting them perish the ultimate bad. Islam itself-- a religion-- is a tool that hinders the saving of souls. Therefore, it's bad. (Or so the logic goes).
Is it a tool of Satan? Is it an evil bad? Amanda thinks that "Satan's influence just isn't necessary". Maybe. First of all, (bold words added in light of Amanda's comment above) I question Amanda's intellectual right to tell the evangelists "no, you think Satan's necessarily at work here, but you're wrong, it's possibly just bad luck". (After all, what does she know of Satan and why should they listen to her?). Second of all, in a world of omnipotent God, one of the most plausible solutions to "The Problem of Evil" (If God is good and all-powerful, why do people suffer in the world? Why does he let their souls be led astray?) is the existence of Satan. So I think that the idea that all of the really bad things in the world are caused by Satan isn't just logical, it's logically necessary to Christianity.
But I also think most of that is fairly beside-the point. The Christian evangelicals aren't doing anything that we think is evil, are they? I don't mean to delve into the relative religious faiths on this blog, but the only people who should think that peaceful Christian evangelism is wrong are those who believe that Islam is the only way to salvation. Those who think one way or the other is the only way to heaven should cheer on mightily for our team, doing everything we can to help our side (we could distribute banners, like at a basketball game). And those who think this is just a matter of semantics, that both sides or neither side is right, or that professing opinions on the "truth" of centuries-old-literature is a mostly harmless and entirely trivial pastime, should laugh a little bit and thank our stars that they're using chocolate cookies and not broadswords. We've come a long way.
Children:
Amy calls to my attention a sort of super-disciplinarian school run in Costa Rica that just dissolved once the kids learned they had a legal right to leave. It's terrible, of course.
But what disturbs me the most about the New York Times piece is how little anybody seems to blame the parents. On the one hand, some of the schools appear to have been somewhat deceptive. On the other hand, sending your child off into the hands of strangers without investigating their backgrounds, taking the time to check on your child's health and well-being, and sometimes without even heeding their letters home isn't just being lied to. It's criminal neglect.
First of all, those schools that did truly egregious things and those that willfully defrauded parent and child about the nature of what was going on should be prosecuted. But we shouldn't stop there. Any parent who can't show that he was fairly seriously deceived about some of the things going on here . . . we should prosecute.
Parents deserve quite a bit of latitude in deciding how to raise their children. Indeed, for the past 80 years, it's been a constitutionally-protected right (it's not just the liberals who make use of a "living constitution"). But surely this oughtn't extend to the right to subject one's children to some forms of torture, to irrationally imprison them, and so on, and surely it's not much better to subcontract one's child abuse.
If a parent decides to hand off their kids to an abusive babysitting service they find on the internet and don't investigate, shouldn't the parents' conduct be punishable too? With the right to fairly severe tyrrany over one's offspring comes the obligation to look out for them. At least until I lead a juvenile-rights revolution.
Amy calls to my attention a sort of super-disciplinarian school run in Costa Rica that just dissolved once the kids learned they had a legal right to leave. It's terrible, of course.
But what disturbs me the most about the New York Times piece is how little anybody seems to blame the parents. On the one hand, some of the schools appear to have been somewhat deceptive. On the other hand, sending your child off into the hands of strangers without investigating their backgrounds, taking the time to check on your child's health and well-being, and sometimes without even heeding their letters home isn't just being lied to. It's criminal neglect.
First of all, those schools that did truly egregious things and those that willfully defrauded parent and child about the nature of what was going on should be prosecuted. But we shouldn't stop there. Any parent who can't show that he was fairly seriously deceived about some of the things going on here . . . we should prosecute.
Parents deserve quite a bit of latitude in deciding how to raise their children. Indeed, for the past 80 years, it's been a constitutionally-protected right (it's not just the liberals who make use of a "living constitution"). But surely this oughtn't extend to the right to subject one's children to some forms of torture, to irrationally imprison them, and so on, and surely it's not much better to subcontract one's child abuse.
If a parent decides to hand off their kids to an abusive babysitting service they find on the internet and don't investigate, shouldn't the parents' conduct be punishable too? With the right to fairly severe tyrrany over one's offspring comes the obligation to look out for them. At least until I lead a juvenile-rights revolution.
There are more words than just evil:
In response to Peter (directly below). He write,
I think within that logic it would be "incorrect" or "wrong."
"A tool of Satan?" No, sometimes Satan's influence just isn't necessary. Humans can mess up and posit incorrect conclusions about God perfectly well without his help.
Is dying a young baby, or in a place which no missionairies spreading the Gospel have reached an "evil" occurance, or is a travesty?
In response to Peter (directly below). He write,
" "Islam isn't an evil faith," Amanda writes. Isn't it? If one believes, as these missionaries do, that the only path to salvation is through Jesus Christ; if one adds to this a belief in eternal torment for those who are not saved, then how could a faith that leads billions away from Jesus be anything but a tool of Satan? How, within that logic, can Islan be anything but evil?"
I think within that logic it would be "incorrect" or "wrong."
"A tool of Satan?" No, sometimes Satan's influence just isn't necessary. Humans can mess up and posit incorrect conclusions about God perfectly well without his help.
Is dying a young baby, or in a place which no missionairies spreading the Gospel have reached an "evil" occurance, or is a travesty?
IF YOU REALLY CARED ABOUT ME, YOU'D SAVE ME FROM HELL: I'm afraid I must take issue with Amanda's reply regarding Christian evangelists' intolerance of Islam. Both the original New York Times article and Amanda's responses to it seem to me evidence of the extreme difficulty that secularists have understanding the internal logic of fundamentalism. "Islam isn't an evil faith," Amanda writes. Isn't it? If one believes, as these missionaries do, that the only path to salvation is through Jesus Christ; if one adds to this a belief in eternal torment for those who are not saved, then how could a faith that leads billions away from Jesus be anything but a tool of Satan? How, within that logic, can Islan be anything but evil?
Secularists need to really try to understand what people like Pat McEvoy, a high school secretary who sees Somali immigrant children as conversion opportunities, mean when they say things like this:
Of course, understanding fundamentalism doesn't mean we should tolerate all its logical extensions. Conversion by the sword is a rational response to the problem of unbelief; it is also unacceptable. I'm less worried about cookies and free meals. The problem, of course, lies in legitimating that line-drawing exercise. How big of a tent should we pitch? If we knew that, probabilistically speaking, parents indoctrinating their children with fundamentalist beliefs lead towards either violence or democraticly enacted restrictions in liberty, would that be grounds for taking action? (Note to self: read John Tomasi's and Stephen Macedo's books on the subject over the summer.)
Secularists need to really try to understand what people like Pat McEvoy, a high school secretary who sees Somali immigrant children as conversion opportunities, mean when they say things like this:
She says she felt an obligation to save them from an eternity in Hell.We need to understand that this isn't a crazy analogy. Wouldn't you, like Elaine in the classic Seinfeld episode, be hurt by a loved one's failure to care about your eternal damnation?
"If I had the answer for cancer, what sort of a human would I be not to share it?" Ms. McEvoy said.
Of course, understanding fundamentalism doesn't mean we should tolerate all its logical extensions. Conversion by the sword is a rational response to the problem of unbelief; it is also unacceptable. I'm less worried about cookies and free meals. The problem, of course, lies in legitimating that line-drawing exercise. How big of a tent should we pitch? If we knew that, probabilistically speaking, parents indoctrinating their children with fundamentalist beliefs lead towards either violence or democraticly enacted restrictions in liberty, would that be grounds for taking action? (Note to self: read John Tomasi's and Stephen Macedo's books on the subject over the summer.)
Ah, but would the the Evangelicals were better informed:
I admit, I have not attended these seminars at which Evangelical Christians learn to spread the Gospel to Muslims. Had I been there, I would have been able to learn for myself first hand what the Muslim faith is like from someone who has been a missionary in Lebanon, who can "prove[] Islam was regressive, fradulent, and violent." I would likely to continue to believe that most Muslims are, like most people, good at heart, but I would have learned -- the horror! the horror! -- that they are "deceived by a diabolical religion."
Alright, enough of that. Although my post earlier today didn't show it, I do actually have sympathies and respect for people who believe in a faith and, truly concerned for others who are not of their faith, attempt to mission to them. Particuarly in the more secular parts of American society, it's not an endeavour that's going to win you points in a popularity contest. However, I think there are better and worse ways of going about it. And yes, Amy, "kindness and courtesy" are good. My downstairs neighbors in my apartment building this summer were a pair of 19 year old Mormon missionaries. They introduced themselves, "Hi, we're from the Church of Jesus Christ of Latter-Day Saints, we're here to mission to the people of Chicago, we'd like to explain our faith to you, our door is always open." They were friendly fellows and I did end up talking to them, but about matters like why it was the landlord couldn't bothered to fix the broken screen doors and dryer. Importantly, though, their approach was not based on false knowledge or presumptions. They knew they were LDS and I was not; they did not assume rashly about me.
If these profiled Evangelical missionaries had based their rationale for conversion around the idea that Muslims do not accept Jesus Christ as their Lord and Saviour, the holy begotten Son of God, then I would not be troubled. It is true that Muslims accept Jesus as a prophet. This fact underscores a legitimate and significant theological difference. If you believe that accepting Jesus is necessary for salvation, then a person's non-acceptance of Jesus becomes a motive to convert them to Christianity.
What troubles me about these missionaries is that they teach and propagate what I believe are falsehoods. I don't question that some of the students truly believe what they have learned about Islam. Islam isn't an evil faith. I'd much rather hear Bush talk about is as "a peaceful religion that has been "hijacked" by extremists." I sigh in annoyed sadness to read, "The Koran's good verses are like the food an assassin adds to poison to disguise a deadly taste," writes Don Richardson, a well-known missionary who worked in Muslim countries, in "Secrets of the Koran" (Regal Books, 2003). "Better to find the same food, sans poison, in the Bible." The prostletizers are operating on mis-information. That bothers me. I can laugh at the tip "Don't bring them to your church, because they will misunderstand the singing and clapping as a party," because I find it ridiculous that one group of adults presumes another group can't distinguish between a religious ceremony and a party. But I can't laugh in general at well-intended ignorance. It reminds me of the pavement on the road to hell.
* an emailer notes: "A similar thing occurred all through the 1990s as evangelical Christians flew to Eastern Europe and Russia to convert the godless Orthodox Christians. The refuge of post-rational religion is fervor mixed with disdain for the religious beliefs of others."
I admit, I have not attended these seminars at which Evangelical Christians learn to spread the Gospel to Muslims. Had I been there, I would have been able to learn for myself first hand what the Muslim faith is like from someone who has been a missionary in Lebanon, who can "prove[] Islam was regressive, fradulent, and violent." I would likely to continue to believe that most Muslims are, like most people, good at heart, but I would have learned -- the horror! the horror! -- that they are "deceived by a diabolical religion."
Alright, enough of that. Although my post earlier today didn't show it, I do actually have sympathies and respect for people who believe in a faith and, truly concerned for others who are not of their faith, attempt to mission to them. Particuarly in the more secular parts of American society, it's not an endeavour that's going to win you points in a popularity contest. However, I think there are better and worse ways of going about it. And yes, Amy, "kindness and courtesy" are good. My downstairs neighbors in my apartment building this summer were a pair of 19 year old Mormon missionaries. They introduced themselves, "Hi, we're from the Church of Jesus Christ of Latter-Day Saints, we're here to mission to the people of Chicago, we'd like to explain our faith to you, our door is always open." They were friendly fellows and I did end up talking to them, but about matters like why it was the landlord couldn't bothered to fix the broken screen doors and dryer. Importantly, though, their approach was not based on false knowledge or presumptions. They knew they were LDS and I was not; they did not assume rashly about me.
If these profiled Evangelical missionaries had based their rationale for conversion around the idea that Muslims do not accept Jesus Christ as their Lord and Saviour, the holy begotten Son of God, then I would not be troubled. It is true that Muslims accept Jesus as a prophet. This fact underscores a legitimate and significant theological difference. If you believe that accepting Jesus is necessary for salvation, then a person's non-acceptance of Jesus becomes a motive to convert them to Christianity.
What troubles me about these missionaries is that they teach and propagate what I believe are falsehoods. I don't question that some of the students truly believe what they have learned about Islam. Islam isn't an evil faith. I'd much rather hear Bush talk about is as "a peaceful religion that has been "hijacked" by extremists." I sigh in annoyed sadness to read, "The Koran's good verses are like the food an assassin adds to poison to disguise a deadly taste," writes Don Richardson, a well-known missionary who worked in Muslim countries, in "Secrets of the Koran" (Regal Books, 2003). "Better to find the same food, sans poison, in the Bible." The prostletizers are operating on mis-information. That bothers me. I can laugh at the tip "Don't bring them to your church, because they will misunderstand the singing and clapping as a party," because I find it ridiculous that one group of adults presumes another group can't distinguish between a religious ceremony and a party. But I can't laugh in general at well-intended ignorance. It reminds me of the pavement on the road to hell.
* an emailer notes: "A similar thing occurred all through the 1990s as evangelical Christians flew to Eastern Europe and Russia to convert the godless Orthodox Christians. The refuge of post-rational religion is fervor mixed with disdain for the religious beliefs of others."
Rights for Kids
Given Will's attitude towards parents and education, I'm surprised he hasn't been all over this story about an uprising of mostly American teens at a harsh private school in Costa Rica. While I generally think that parents should have a fair degree of say in the education of their children, it disturbs me very much that parents can send children out of the country, and hence beyond the reach of American child abuse laws, if they so choose. It does seem that most of the parents were unaware of the severity of the school, but I'm not sure to what extent that should excuse them in these circumstances, or what is the best way to prevent such incidents in the future. Thoughts?
Given Will's attitude towards parents and education, I'm surprised he hasn't been all over this story about an uprising of mostly American teens at a harsh private school in Costa Rica. While I generally think that parents should have a fair degree of say in the education of their children, it disturbs me very much that parents can send children out of the country, and hence beyond the reach of American child abuse laws, if they so choose. It does seem that most of the parents were unaware of the severity of the school, but I'm not sure to what extent that should excuse them in these circumstances, or what is the best way to prevent such incidents in the future. Thoughts?
Evangelicals being Evangelical
Amanda seems upset that not everyone is as exquisitely culturally sensitive as she would like. Apparently it bothers her that groups of like-minded people are sharing advice on how to convince another group of people of the error of their ways. Now, if Evangelical Christians were proposing that Muslims be converted at the point of a gun, I too would be upset. But the methods they are proposing include conversation, hospitality, and chocolate chip cookies. What on earth is wrong with this? Isn't this exactly how we want people to go about persuading others of the potential error of their ways? Or does Amanda think there's something inherently coercive about chocolate chip cookies?
Perhaps it's the one-sided nature of these sessions that bothers her. But if a group of pro-choice activists gathered to discuss the various ways that the pro-life position could be refuted without also including a graphic description of the abortion procedure and a short presentation by an abortion survivor as to why getting an abortion was the greatest mistake of her life, would Amanda be upset? And if the presentation were to conclude with the advice that potential converts should not be taken to a pro-abortion rally, but rather invited over for dinner and discussion, would she think that made things better or worse?
Tolerance should mean exactly what is seems to mean to these Evangelicals--that all people should be treated with courtesy and respect, no matter how erroneous or detestable one finds there views. It should not mean that one is required by the PC police to shrug one's shoulders and get on with life rather than attempt to convince others of the error of their ways. What good, after all, is a marketplace of ideas if people don't visit it to hawk their wares? Be they the New York Times preaching evangelical urban liberalism, or the Southern Baptist Convention preaching evangelical Christianity, we should be pleased to see them addressing their opponents with kindness and courtesy, and displeased to see them doing so with coercion or contempt.
Amanda seems upset that not everyone is as exquisitely culturally sensitive as she would like. Apparently it bothers her that groups of like-minded people are sharing advice on how to convince another group of people of the error of their ways. Now, if Evangelical Christians were proposing that Muslims be converted at the point of a gun, I too would be upset. But the methods they are proposing include conversation, hospitality, and chocolate chip cookies. What on earth is wrong with this? Isn't this exactly how we want people to go about persuading others of the potential error of their ways? Or does Amanda think there's something inherently coercive about chocolate chip cookies?
Perhaps it's the one-sided nature of these sessions that bothers her. But if a group of pro-choice activists gathered to discuss the various ways that the pro-life position could be refuted without also including a graphic description of the abortion procedure and a short presentation by an abortion survivor as to why getting an abortion was the greatest mistake of her life, would Amanda be upset? And if the presentation were to conclude with the advice that potential converts should not be taken to a pro-abortion rally, but rather invited over for dinner and discussion, would she think that made things better or worse?
Tolerance should mean exactly what is seems to mean to these Evangelicals--that all people should be treated with courtesy and respect, no matter how erroneous or detestable one finds there views. It should not mean that one is required by the PC police to shrug one's shoulders and get on with life rather than attempt to convince others of the error of their ways. What good, after all, is a marketplace of ideas if people don't visit it to hawk their wares? Be they the New York Times preaching evangelical urban liberalism, or the Southern Baptist Convention preaching evangelical Christianity, we should be pleased to see them addressing their opponents with kindness and courtesy, and displeased to see them doing so with coercion or contempt.
Religion:
Responding mostly to Amanda's concerns about proselytizing in the middle east, but also to my brief concern about religious currency, Brian Ulrich emails to say (among other things):
Leaving aside the question of whether we ought to force secularism upon our occupied territory (and I think it's a very open question), I hope I didn't convey the impression that I think we "only tenuously follow" the dictates of the Establishment Clause of the U.S. Constitution. Far from it. Despite the fact that Establishment Clause jurisprudence is something of a mess (torn as it is between the aptly-named Lemon test, the Coercion test, and the Endorsement test), I think that it is too hostile to religion about as often as it is too accomodating. That is, the court makes what I think are mistakes, but in both directions. In my tentative view, Permitting legislative prayer ought to be impermissible but creating logical school districts ought to be permissible. If anything, both of those things ought to be permissible under a reasonable reading of the Establishment Clause (depending, I think, on the degree of originalism one thinks one ought to bring to bear).
In any case, in a country whose Constitution forbids a religious speaker at non-mandatory high school commencement, I think it's difficult to say that we "only tenuously follow (it) ourselves." We may interpret it wrongly, sometimes, but the Establishment clause definitely has Constitutional teeth in a way that the Second Amendment and the Takings Clause do not.
Responding mostly to Amanda's concerns about proselytizing in the middle east, but also to my brief concern about religious currency, Brian Ulrich emails to say (among other things):
Why can't we just let Iraqis develop strict secularism on their own if they so choose, rather than trying to shove down their throats a constitutional clause we only tenuously follow ourselves (In God We Trust, and all that.)
Leaving aside the question of whether we ought to force secularism upon our occupied territory (and I think it's a very open question), I hope I didn't convey the impression that I think we "only tenuously follow" the dictates of the Establishment Clause of the U.S. Constitution. Far from it. Despite the fact that Establishment Clause jurisprudence is something of a mess (torn as it is between the aptly-named Lemon test, the Coercion test, and the Endorsement test), I think that it is too hostile to religion about as often as it is too accomodating. That is, the court makes what I think are mistakes, but in both directions. In my tentative view, Permitting legislative prayer ought to be impermissible but creating logical school districts ought to be permissible. If anything, both of those things ought to be permissible under a reasonable reading of the Establishment Clause (depending, I think, on the degree of originalism one thinks one ought to bring to bear).
In any case, in a country whose Constitution forbids a religious speaker at non-mandatory high school commencement, I think it's difficult to say that we "only tenuously follow (it) ourselves." We may interpret it wrongly, sometimes, but the Establishment clause definitely has Constitutional teeth in a way that the Second Amendment and the Takings Clause do not.
"Justice" meted out:
So the mostly final punishments have now been meted out in the Glenbrook North hazing saga. The seniors are expelled but can graduate anyway, receiving their diplomas if they perform various amounts of community service. Juniors are suspended and still have to take their final exams. 31 seniors and 20 juniors were punished, and all but three of the seniors have signed waivers agreeing not to contest their punishments.
For the reasons I've already recounted in the Chicago Maroon and on this blog, I think that the school's choice to punish the seniors was probably misguided, and that its decision to punish the juniors definitely was. There may be some rationale to suspending out-of-school-bullies in order to allieve an in-school climate of intimidation. That offers little support to the choice to suspend those who were being bullied.
Schools often punish both people in a "fight" because they don't know who started it. But the school ought to decide whether what took place was a "fight" in which case it oughtn't exercise its dubious jurisdiction, or a more one-sided "intimidation" (regardless of who fought back), in which case it might be a good idea to punish the intimidators, (though I think more concern ought to be shown to ensuring they receive due process).
And a quote from the Chicago Tribune article:
So the mostly final punishments have now been meted out in the Glenbrook North hazing saga. The seniors are expelled but can graduate anyway, receiving their diplomas if they perform various amounts of community service. Juniors are suspended and still have to take their final exams. 31 seniors and 20 juniors were punished, and all but three of the seniors have signed waivers agreeing not to contest their punishments.
For the reasons I've already recounted in the Chicago Maroon and on this blog, I think that the school's choice to punish the seniors was probably misguided, and that its decision to punish the juniors definitely was. There may be some rationale to suspending out-of-school-bullies in order to allieve an in-school climate of intimidation. That offers little support to the choice to suspend those who were being bullied.
Schools often punish both people in a "fight" because they don't know who started it. But the school ought to decide whether what took place was a "fight" in which case it oughtn't exercise its dubious jurisdiction, or a more one-sided "intimidation" (regardless of who fought back), in which case it might be a good idea to punish the intimidators, (though I think more concern ought to be shown to ensuring they receive due process).
And a quote from the Chicago Tribune article:
He said the seniors who signed waivers were actually getting off easier than the juniors who were hazed. "The seniors get to skip finals and keep their grades," Soskin said. "The juniors are suspended, then have to be back in time for finals."
God:
Does U.S. Currency constitute an establishment of religion within the meaning of the First Amendment? If not, why not?
Does U.S. Currency constitute an establishment of religion within the meaning of the First Amendment? If not, why not?
Deciphering:
The Supreme Court released one of the cases I've been eager to see, Chavez v. Martinez. The case dealt with whether a defendant's right to be free from self-incrimination in a criminal case was violated if police questioned him without Miranda warnings, but never charged him with a crime
If you thought the lower court decision in BCRA or the web of opinions in Virginia v. Black was confusing, I bring you . . .
Got that? Then, as How Appealing notes, add in this: Justice Kennedy writes:
And Justice Ginsburg writes:
Whew. I feel like this could be the beginning of a good LSAT logic games question.
UPDATE: And Eugene Volokh explains what all of the concurring and dissenting actually amounts to.
The Supreme Court released one of the cases I've been eager to see, Chavez v. Martinez. The case dealt with whether a defendant's right to be free from self-incrimination in a criminal case was violated if police questioned him without Miranda warnings, but never charged him with a crime
If you thought the lower court decision in BCRA or the web of opinions in Virginia v. Black was confusing, I bring you . . .
THOMAS, J., announced the judgment of the Court and delivered an opinion, which was joined by REHNQUIST, C. J., in full, by O’CONNOR, J., as to Parts I and II–A, and by SCALIA, J., as to Parts I and II. SOUTER, J., delivered an opinion, Part II of which was for the Court and was joined by STEVENS, KENNEDY, GINSBURG, and BREYER, JJ., and Part I of which concurred in the judgment and was joined by BREYER, J. SCALIA, J., filed an opinion concurring in part in the judgment. STEVENS, J., filed an opinion concurring in part and dissenting in part. KENNEDY, J., filed an opinion concurring in part and dissenting in part, which was joined by STEVENS, J., in full and by GINSBURG, J., as to Parts II and III. GINSBURG, J., filed an opinion concurring in part and dissenting in part.
Got that? Then, as How Appealing notes, add in this: Justice Kennedy writes:
Accordingly, I would affirm the decision of the Court of Appeals that a cause of action under sec. 1983 has been stated. The other opinions filed today, however, reach different conclusions as to the correct disposition of the case. Were JUSTICE STEVENS, JUSTICE GINSBURG, and I to adhere to our position, there would be no controlling judgment of the Court. In these circumstances, and because a ruling on substantive due process in this case could provide much of the essential protection the Self-Incrimination Clause secures, I join Part II of JUSTICE SOUTER's opinion and would remand the case for further consideration.
And Justice Ginsburg writes:
Convinced that Chavez's conduct violated Martinez's right to be spared from self-incriminating interrogation, I would affirm the judgment of the Court of Appeals. To assure a controlling judgment of the Court, however, see ante, at 11 (KENNEDY, J., concurring in part and dissenting in part), I join Part II of JUSTICE SOUTER's opinion.
Whew. I feel like this could be the beginning of a good LSAT logic games question.
UPDATE: And Eugene Volokh explains what all of the concurring and dissenting actually amounts to.
Re-Paneling:
A few days ago I posted about appellate panels in the 7th circuit, asking why they kept the identity of the judges secret until the morning of the hearing, and whether other circuits had the same practice (Amy's responded with a Noble Lie theory, and I responded to that).
Stuart Buck writes to tell me that the 11th and 5th circuits do indeed release panel information ahead of time. This makes the "Noble Lie" theory even more curious, in my view. Or is it somehow a necessary response to having both Posner and Easterbrook on the circuit?
A few days ago I posted about appellate panels in the 7th circuit, asking why they kept the identity of the judges secret until the morning of the hearing, and whether other circuits had the same practice (Amy's responded with a Noble Lie theory, and I responded to that).
Stuart Buck writes to tell me that the 11th and 5th circuits do indeed release panel information ahead of time. This makes the "Noble Lie" theory even more curious, in my view. Or is it somehow a necessary response to having both Posner and Easterbrook on the circuit?
Disturbing: Can't you people just learn to respect each other?
The NYT has this report on evangelical Christians converting Muslims, "Seeing Islam as 'Evil' Faith, Evangelicals Seek Converts'. The courses train the missionaries to be nice, friendly, hand out copies of the New Testament and chocolate chip cookies. Right. What's the motive?
"Evangelicals have always believed that all other religions are wrong, but what is notable now is the vituperation.
"The Koran's good verses are like the food an assassin adds to poison to disguise a deadly taste," writes Don Richardson, a well-known missionary who worked in Muslim countries, in "Secrets of the Koran" (Regal Books, 2003). "Better to find the same food, sans poison, in the Bible." This month, he is scheduled to speak on Islam at churches in five American cities."
Yup. Perhaps if I believed the Southern Baptists and the other evangelical churches when they said that their way is the only way to salvation and all other paths lead to eternal torment, I'd be a bit more sympathetic to their cause. I just find it hard to respect their missionaries when some of the advice they learn in conversion school includes tips like "Don't bring them to your church, because they will misunderstand the singing and clapping as a party."
The NYT has this report on evangelical Christians converting Muslims, "Seeing Islam as 'Evil' Faith, Evangelicals Seek Converts'. The courses train the missionaries to be nice, friendly, hand out copies of the New Testament and chocolate chip cookies. Right. What's the motive?
"Evangelicals have always believed that all other religions are wrong, but what is notable now is the vituperation.
"The Koran's good verses are like the food an assassin adds to poison to disguise a deadly taste," writes Don Richardson, a well-known missionary who worked in Muslim countries, in "Secrets of the Koran" (Regal Books, 2003). "Better to find the same food, sans poison, in the Bible." This month, he is scheduled to speak on Islam at churches in five American cities."
Yup. Perhaps if I believed the Southern Baptists and the other evangelical churches when they said that their way is the only way to salvation and all other paths lead to eternal torment, I'd be a bit more sympathetic to their cause. I just find it hard to respect their missionaries when some of the advice they learn in conversion school includes tips like "Don't bring them to your church, because they will misunderstand the singing and clapping as a party."
Insufficient Cures:
Judge James Robertson has a suggestion for helping to mitigate the politicization of the judiciary:
This view of the process seems rather rosy to me. If district court judges are given the authority of appellate judges, it's more likely that the senate will apply considerations to the lot of them. Consider, after all, if Supreme Court appointments were determined by rotating ten year shifts from appellate judges. We wouldn't see an un-politicized Supreme Court; we'd see Congress being more careful who it let onto the appellate court. Or imagine that we create a position called "pre judge" from which appellate panels are randomly selected (pre-judges are otherwise given uninteresting bureaucratic duties) after a five-year waiting period. It should be clear that the political qualifications for being a pre-judge would be the same as those of being an appellate judge.
I think the argument rests on the assumption that the 90 district courts would create too many nominees for congress to police. Given the availability of interest group information and congressional staffs, this seems unlikely. If the president can figure out who to appoint, then a body of 100 high-ranking officials can probably figure out who it's in their interests to confirm.
Judge James Robertson has a suggestion for helping to mitigate the politicization of the judiciary:
It is time for Congress to consider amending the Judiciary Act to provide once more for just a single category of judges below the Supreme Court. Call all these jurists simply "Article III judges" or U.S. judges. Most of the time they would sit as trial judges, but for, say, three months a year they would be assigned to appellate panels. Congress could require a minimum of five years' trial court experience before an Article III judge became eligible to hear appeals.
The payoff, for Congress, for the judiciary and for the American people, would be the virtual elimination of partisan politics from the judicial appointment process -- or at least the dispersion of political fire across a broad field of nominees, none of whom could be assigned to an appellate case until after five years (and then only periodically). The concerns that have given rise to the political obstruction of judicial appointments in recent years would melt away.
This view of the process seems rather rosy to me. If district court judges are given the authority of appellate judges, it's more likely that the senate will apply considerations to the lot of them. Consider, after all, if Supreme Court appointments were determined by rotating ten year shifts from appellate judges. We wouldn't see an un-politicized Supreme Court; we'd see Congress being more careful who it let onto the appellate court. Or imagine that we create a position called "pre judge" from which appellate panels are randomly selected (pre-judges are otherwise given uninteresting bureaucratic duties) after a five-year waiting period. It should be clear that the political qualifications for being a pre-judge would be the same as those of being an appellate judge.
I think the argument rests on the assumption that the 90 district courts would create too many nominees for congress to police. Given the availability of interest group information and congressional staffs, this seems unlikely. If the president can figure out who to appoint, then a body of 100 high-ranking officials can probably figure out who it's in their interests to confirm.
SPAM Crusade:
The Conservatism Blog continues its tirade against Spam. He simultaneously applauds an email-confirmation adopted by Earthlink and applauds California's Spam liability rules. As I think I've said before (but will continue to harp for a little while), private methods of controlling access to one's own email address seem immensely preferable over content-based government regulations on what email may be sent to whom. The fact that the former methods (Earthlink's email-confirmation) are becoming both popular and effective should just drive the point home.
The Conservatism Blog continues its tirade against Spam. He simultaneously applauds an email-confirmation adopted by Earthlink and applauds California's Spam liability rules. As I think I've said before (but will continue to harp for a little while), private methods of controlling access to one's own email address seem immensely preferable over content-based government regulations on what email may be sent to whom. The fact that the former methods (Earthlink's email-confirmation) are becoming both popular and effective should just drive the point home.
Monday, May 26, 2003
'Till Death Do Us:
A reader submits this rather troubling report, that the US is floating plans to create a death row in Guantanamo. If it's true, I think it's a bad idea. While we usually give governments some limited latitude to kill people during war, part of that is by necessity. It's difficult to hold a fair trial on a battlefield; the robes keep catching on fire and the wigs get shot off. Once the terrorists are in custody and time is less of the essence, principled reasons for short-cuts become less convincing. I don't mean to say there's anything unconstitutional about the whole mess-- I have no idea-- but I do think it's a pretty bad idea. And it would be nice if the government, having "accomplished" its supposed "mission" (if one believes Bush over Lugar) showed at least some interest in convincing the rest of the world that it cares what they thought. It may not be true, but it would be sort of a polite lie.
All that said, I think the story misses the point a little bit. Of course killing people is bad and all of that, and the death penalty often raises consciences that might otherwise have remained blissfully blithe, but I think the Guantanamo stuff should be almost as troubling death-penalty-or-not. The tendency to villify the death penalty sometimes goes along with a tendency to trivialize wrongful imprisonment. We should avoid that. So if it's wrong to kill off the folks at Guantanamo (and they'll get a trial first), we should think about whether it's wrong to lock them up there too.
A reader submits this rather troubling report, that the US is floating plans to create a death row in Guantanamo. If it's true, I think it's a bad idea. While we usually give governments some limited latitude to kill people during war, part of that is by necessity. It's difficult to hold a fair trial on a battlefield; the robes keep catching on fire and the wigs get shot off. Once the terrorists are in custody and time is less of the essence, principled reasons for short-cuts become less convincing. I don't mean to say there's anything unconstitutional about the whole mess-- I have no idea-- but I do think it's a pretty bad idea. And it would be nice if the government, having "accomplished" its supposed "mission" (if one believes Bush over Lugar) showed at least some interest in convincing the rest of the world that it cares what they thought. It may not be true, but it would be sort of a polite lie.
All that said, I think the story misses the point a little bit. Of course killing people is bad and all of that, and the death penalty often raises consciences that might otherwise have remained blissfully blithe, but I think the Guantanamo stuff should be almost as troubling death-penalty-or-not. The tendency to villify the death penalty sometimes goes along with a tendency to trivialize wrongful imprisonment. We should avoid that. So if it's wrong to kill off the folks at Guantanamo (and they'll get a trial first), we should think about whether it's wrong to lock them up there too.
Abortion. . . :
Sara Butler's promised abortion post is out. She rightly points out that I've wasted plenty of space on this blog sniping at her sometimes circular logic, when there's little more one can expect from either side of the debate. Abortion is wrong because a fetus is a human being. Abortion is right because a woman should have the right to control her body. This is about as helpful as a libertarian and a socialist discussing the proper attitude toward government regulation (note: the libertarian is right, but nobody's convincing anybody).
And so, she says, she's giving up.
[Note also that Sara's suggested reasons for her own pro-life beliefs are not entirely persuasive. (Of course, you ninny, they're her own beliefs! She's not trying to persuade you.--eds. Geez, you've been getting peevish lately. Hear me out.) She isn't sure whether or when a fetus is a human being but this sort of feels right and she wants to err on the side of caution-- better to have protected something one didn't have to than to have killed something one shouldn't have. That's well and good as personal philosophy (and that's what it is) but makes clear what's missing as social policy. After all, caution works both ways. If women do have a right to control their own bodily functions, then it's also bad to infringe upon that liberty unless one has to. Of course, now there are costs and benefits on both sides of the scale, so the calculus gets trickier. (What are the odds a fetus is a human being before viability? What are the odds it's a human being after viability? What sense does this question make?) So I tentatively support some abortion for precisely the same reason that Sara doesn't-- humility. I don't know if a fetus is a human being, and I can't subject unwilling women to hours of misery (years sometimes-- it isn't fun to bring up a child one does not want, not for the mother nor for the child) for a creature I wasn't even sure was human. In essence we're weighing a grave harm against a maybe-human on one hand and a milder but serious harm against a definitely-human on the other hand. Which way you tilt is a function of your own predilections. (and this helps explain the appeal of the viability line).]
But this brings us to the bigger problem. We can't just give up on the argument. Well, Sara can, and I can, and so can many people individually, but we as a society have to have an answer. Either abortion is proscribable by law or it is not. Either it is proscribed by law or it is not. There's no ducking the question. Either the million fetuses killed every year should be permitted or stopped. And that's why pro-abortion and anti-abortion folks will continue protesting, writing, talking and screaming at one another-- because there's no settling this issue and there shouldn't be. Sara Butler can preach to her choir if she prefers, and my feminist friends can preach to theirs, but in the end somebody has to preach to the legislature, and indirectly, to everybody.
Should abortion be regulable by the states? Should abortion be regulable by the federal government? If abortion can be regulated by the states or the feds, what should they do about it? There's no getting around these questions for those in politics, and also no getting around the fact that in order to win political debates in a democratic society one has to convince people, often those from outside of one's flock.
So originally I was going to propose a truce to the conservative folks who I sometimes target (but sometimes applaud) on this blog. If we can't reason it out let's agree to disagree, right? Wrong. So long as we're arguing about what each other ought to be allowed to do, then there's no way we can just return to our corners. Unless Sara means that she's giving up on trying to outlaw abortion among the non-believers (not all by herself, of course, but championing political movements that do), then she hasn't really given up. She's just decided to try to convince some different folks.
So I'm not proposing a truce after all, at least not until we've worked out a way to agree to disagree. If this is all just a philosophical game (and for some of us it is), then that's easy. But if it's a political battle, then in the end something gets done, and unless a compromise is struck, somebody wins and somebody loses. The question may have to be fudged, but it has to be answered. "The stakes," as Sara says, "are too high."
Endnote: Of course, I'm not a strong-willed partisan myself, since I don't have an answer to the fundamental question, but I'm in search of one. At any rate, I think it's important that bright conservatives like Sara remember that the political question isn't just about our individual choices, but about which doctrine of choice (save the fetus or spare the mother) will rule everybody else. Ahh, democracy.
UPDATE: If you came here via after abortion, responses to Emily's concerns are here.
Sara Butler's promised abortion post is out. She rightly points out that I've wasted plenty of space on this blog sniping at her sometimes circular logic, when there's little more one can expect from either side of the debate. Abortion is wrong because a fetus is a human being. Abortion is right because a woman should have the right to control her body. This is about as helpful as a libertarian and a socialist discussing the proper attitude toward government regulation (note: the libertarian is right, but nobody's convincing anybody).
And so, she says, she's giving up.
[Note also that Sara's suggested reasons for her own pro-life beliefs are not entirely persuasive. (Of course, you ninny, they're her own beliefs! She's not trying to persuade you.--eds. Geez, you've been getting peevish lately. Hear me out.) She isn't sure whether or when a fetus is a human being but this sort of feels right and she wants to err on the side of caution-- better to have protected something one didn't have to than to have killed something one shouldn't have. That's well and good as personal philosophy (and that's what it is) but makes clear what's missing as social policy. After all, caution works both ways. If women do have a right to control their own bodily functions, then it's also bad to infringe upon that liberty unless one has to. Of course, now there are costs and benefits on both sides of the scale, so the calculus gets trickier. (What are the odds a fetus is a human being before viability? What are the odds it's a human being after viability? What sense does this question make?) So I tentatively support some abortion for precisely the same reason that Sara doesn't-- humility. I don't know if a fetus is a human being, and I can't subject unwilling women to hours of misery (years sometimes-- it isn't fun to bring up a child one does not want, not for the mother nor for the child) for a creature I wasn't even sure was human. In essence we're weighing a grave harm against a maybe-human on one hand and a milder but serious harm against a definitely-human on the other hand. Which way you tilt is a function of your own predilections. (and this helps explain the appeal of the viability line).]
But this brings us to the bigger problem. We can't just give up on the argument. Well, Sara can, and I can, and so can many people individually, but we as a society have to have an answer. Either abortion is proscribable by law or it is not. Either it is proscribed by law or it is not. There's no ducking the question. Either the million fetuses killed every year should be permitted or stopped. And that's why pro-abortion and anti-abortion folks will continue protesting, writing, talking and screaming at one another-- because there's no settling this issue and there shouldn't be. Sara Butler can preach to her choir if she prefers, and my feminist friends can preach to theirs, but in the end somebody has to preach to the legislature, and indirectly, to everybody.
Should abortion be regulable by the states? Should abortion be regulable by the federal government? If abortion can be regulated by the states or the feds, what should they do about it? There's no getting around these questions for those in politics, and also no getting around the fact that in order to win political debates in a democratic society one has to convince people, often those from outside of one's flock.
So originally I was going to propose a truce to the conservative folks who I sometimes target (but sometimes applaud) on this blog. If we can't reason it out let's agree to disagree, right? Wrong. So long as we're arguing about what each other ought to be allowed to do, then there's no way we can just return to our corners. Unless Sara means that she's giving up on trying to outlaw abortion among the non-believers (not all by herself, of course, but championing political movements that do), then she hasn't really given up. She's just decided to try to convince some different folks.
So I'm not proposing a truce after all, at least not until we've worked out a way to agree to disagree. If this is all just a philosophical game (and for some of us it is), then that's easy. But if it's a political battle, then in the end something gets done, and unless a compromise is struck, somebody wins and somebody loses. The question may have to be fudged, but it has to be answered. "The stakes," as Sara says, "are too high."
Endnote: Of course, I'm not a strong-willed partisan myself, since I don't have an answer to the fundamental question, but I'm in search of one. At any rate, I think it's important that bright conservatives like Sara remember that the political question isn't just about our individual choices, but about which doctrine of choice (save the fetus or spare the mother) will rule everybody else. Ahh, democracy.
UPDATE: If you came here via after abortion, responses to Emily's concerns are here.
Sunday, May 25, 2003
Defending SPAM, or "Welcome to the flea-market of ideas":
And now let us turn to the conservatism blog. He has a post on unsolicited commercial email (spam) here. As I have already made clear, there is a simple, effecient solution for SPAM that is better than any of the regulatory schemes that I have heard proposed. But let us not dwell on that.
Let us also not start with the other potential problems of SPAM regulation, like the fact that it is a pretty blatant restriction on speech (but see below), (ah, but it's commercial speech!--ed. Who's afraid of commercial speech? Oh let's leave that for another day), or the fact that one has to actually figure out what Spam is. (Is all email which is not specifically requested and proposes a commercial transaction spam? What about when you click the "Yes, send me special offers!" box? Who can send you those special offers? What if the email links to a website that proposes a commercial transaction? What if the email is just soliciting money for charity? And so on. Let's ignore these questions.)
Instead, let's first just deal with one of Stephen's assertions (he does get worked up about things): "It's not an annoyance: it's theft."
No, it's really not. It is said (perhaps apocryphally) that Alexandre Dumas had a bowl full of coins sitting in his entryway, so that his friends could take whatever they needed without having to mortify themselves by asking for money. Needless to say, he lost all of his many fortunes at various points in his life, but he had lots of friends (some of the time, anyway). At any rate, an unfiltered email account is a bowl of coins in your front hall-- your time and inbox space is there for the taking, and it's a little apalling how shocked people are when industrious money-making scoundrels decide to take it.
Simply put, theft is taking somebody's property by fraud or by force. Leaving aside fraudulent spam (a separate and more difficult case), Spam does not lie, and it does not take anything from you that you do not offer it. Think of how ludicrous it is to accuse somebody who calls you on the telephone of theft. Indeed "annoyance" is precisely the word for it. Annoyances of this sort do not become theft merely by being writ large.
It's also not clear what Stephen thinks spammers "Steal." Your time? Unlikely-- it takes no longer to delete Spam email than it does any other email, and surely not every unwanted communication is a theft, (no more than a passerby who you do not like "steals" your time by saying "hello, sir," as he passes) Your bandwidth? Again, each Spam email is no more bandwidth-costly than any other email you don't want, and it's you who lay yourself out to be taken. If you don't wish to receive emails from those who you do not know, you can treat your inbox as you treat your living room and only open the door to callers you have invited. But it's hardly fair to throw open your doors and indiscriminately tell people to "come in," and then demand Federal regulation when they do, even if they do in droves. And as somebody who definitely writes far more emails than he receives, I hardly think I'm a thief or even a moocher. . . .
_______________________
The real thing that bothers Stephen is not an individual piece of Spam, which is indistinguishable (as a philosophical matter) from any other individual piece of email that one does not wish to read or receive. And I certainly receive plenty of notes from uninteresting people, many of whom are addressing me specifically and proposing no transaction. What bothers Stephens and other anti-SPAMmers is that mass-mailing and random email generation have made it profitable for people to send undesirable emails in large quantities. These complainers are like the delicate lady who wanders into a flea market, and then declares that the resulting din is insufferable and should be made to stop. The lady should go home and receive visitors on her own terms. (See, for example, my solution here).
And finally, there's the elephant in the corner that nobody likes to talk about-- Spam works. Spammers don't send you offers to naturally increase your breast size because they are malicious, or get some perverse pseudo-sexual kick out of "stealing" your precious bandwidth. They send you offers because some small but non-vanishing portion of their recipients respond. That is why I mentioned the flea-market. I have no doubt that plenty of people are annoyed by the din, but our typical solution to being annoyed by somebody else's speech is to either counter-speak or go elsewhere. So if you wish to use your email account to communicate with your friends and intimates, set up a filter to keep out the dross. But if you find that the dross sometimes has something useful to say to you, then you take upon yourself the obligation to decide for yourself who is useful to you and who is not (and the further obligation to let other people decide on their own who is useful to them). Asking the Federal government (or the state government for that matter, or even the mayor) to make categorical pronouncements about whose speech is useless and whose you would rather keep around is precisely the sort of majoritarian tyranny that I had thought the First Amendment was designed to proscribe.
If Spam were truly value-less, nobody would bother to send it. But I see no reason why your dislike of unsolicited email should stop me from receiving some, let alone stop me from sending some. And now a confession: I have bought something through Spam, just as Stephen insists that I should not (is this why you've been consigned to the ninth circle of hell?--eds. No, I think that was because of my libertine libertarianism). (Some of the famous Iraqi-playing cards, if you're curious). The email proposed a transaction I hadn't been able to find elsewhere at a price I was happy to pay, and I did it and haven't regretted it. Welcome to the flea-market.
If you've got better things to do with your bandwidth, fine. I certainly understand, and sometimes when I delete my fifth offer of the hour to naturally increase my breast size, I see what drives anti-Spammers to temptation. But for the sake of free speech and the chaotic marketplace of pretty crappy ideas, resist this temptation. Leave the rest of us alone to send and receive our unsolicited commercial email in peace. Spam is a giant tragedy of the commons, of that I have no doubt. But the solution, then, is to either properly impose costs where they belong (as by a miniscule email tax), or to fence off one's own yard to keep out errant livestock. One ought not simply slaughter everybody else's black cows on the grounds that the commons should be kept safe for sheep.
And now let us turn to the conservatism blog. He has a post on unsolicited commercial email (spam) here. As I have already made clear, there is a simple, effecient solution for SPAM that is better than any of the regulatory schemes that I have heard proposed. But let us not dwell on that.
Let us also not start with the other potential problems of SPAM regulation, like the fact that it is a pretty blatant restriction on speech (but see below), (ah, but it's commercial speech!--ed. Who's afraid of commercial speech? Oh let's leave that for another day), or the fact that one has to actually figure out what Spam is. (Is all email which is not specifically requested and proposes a commercial transaction spam? What about when you click the "Yes, send me special offers!" box? Who can send you those special offers? What if the email links to a website that proposes a commercial transaction? What if the email is just soliciting money for charity? And so on. Let's ignore these questions.)
Instead, let's first just deal with one of Stephen's assertions (he does get worked up about things): "It's not an annoyance: it's theft."
No, it's really not. It is said (perhaps apocryphally) that Alexandre Dumas had a bowl full of coins sitting in his entryway, so that his friends could take whatever they needed without having to mortify themselves by asking for money. Needless to say, he lost all of his many fortunes at various points in his life, but he had lots of friends (some of the time, anyway). At any rate, an unfiltered email account is a bowl of coins in your front hall-- your time and inbox space is there for the taking, and it's a little apalling how shocked people are when industrious money-making scoundrels decide to take it.
Simply put, theft is taking somebody's property by fraud or by force. Leaving aside fraudulent spam (a separate and more difficult case), Spam does not lie, and it does not take anything from you that you do not offer it. Think of how ludicrous it is to accuse somebody who calls you on the telephone of theft. Indeed "annoyance" is precisely the word for it. Annoyances of this sort do not become theft merely by being writ large.
It's also not clear what Stephen thinks spammers "Steal." Your time? Unlikely-- it takes no longer to delete Spam email than it does any other email, and surely not every unwanted communication is a theft, (no more than a passerby who you do not like "steals" your time by saying "hello, sir," as he passes) Your bandwidth? Again, each Spam email is no more bandwidth-costly than any other email you don't want, and it's you who lay yourself out to be taken. If you don't wish to receive emails from those who you do not know, you can treat your inbox as you treat your living room and only open the door to callers you have invited. But it's hardly fair to throw open your doors and indiscriminately tell people to "come in," and then demand Federal regulation when they do, even if they do in droves. And as somebody who definitely writes far more emails than he receives, I hardly think I'm a thief or even a moocher. . . .
_______________________
The real thing that bothers Stephen is not an individual piece of Spam, which is indistinguishable (as a philosophical matter) from any other individual piece of email that one does not wish to read or receive. And I certainly receive plenty of notes from uninteresting people, many of whom are addressing me specifically and proposing no transaction. What bothers Stephens and other anti-SPAMmers is that mass-mailing and random email generation have made it profitable for people to send undesirable emails in large quantities. These complainers are like the delicate lady who wanders into a flea market, and then declares that the resulting din is insufferable and should be made to stop. The lady should go home and receive visitors on her own terms. (See, for example, my solution here).
And finally, there's the elephant in the corner that nobody likes to talk about-- Spam works. Spammers don't send you offers to naturally increase your breast size because they are malicious, or get some perverse pseudo-sexual kick out of "stealing" your precious bandwidth. They send you offers because some small but non-vanishing portion of their recipients respond. That is why I mentioned the flea-market. I have no doubt that plenty of people are annoyed by the din, but our typical solution to being annoyed by somebody else's speech is to either counter-speak or go elsewhere. So if you wish to use your email account to communicate with your friends and intimates, set up a filter to keep out the dross. But if you find that the dross sometimes has something useful to say to you, then you take upon yourself the obligation to decide for yourself who is useful to you and who is not (and the further obligation to let other people decide on their own who is useful to them). Asking the Federal government (or the state government for that matter, or even the mayor) to make categorical pronouncements about whose speech is useless and whose you would rather keep around is precisely the sort of majoritarian tyranny that I had thought the First Amendment was designed to proscribe.
If Spam were truly value-less, nobody would bother to send it. But I see no reason why your dislike of unsolicited email should stop me from receiving some, let alone stop me from sending some. And now a confession: I have bought something through Spam, just as Stephen insists that I should not (is this why you've been consigned to the ninth circle of hell?--eds. No, I think that was because of my libertine libertarianism). (Some of the famous Iraqi-playing cards, if you're curious). The email proposed a transaction I hadn't been able to find elsewhere at a price I was happy to pay, and I did it and haven't regretted it. Welcome to the flea-market.
If you've got better things to do with your bandwidth, fine. I certainly understand, and sometimes when I delete my fifth offer of the hour to naturally increase my breast size, I see what drives anti-Spammers to temptation. But for the sake of free speech and the chaotic marketplace of pretty crappy ideas, resist this temptation. Leave the rest of us alone to send and receive our unsolicited commercial email in peace. Spam is a giant tragedy of the commons, of that I have no doubt. But the solution, then, is to either properly impose costs where they belong (as by a miniscule email tax), or to fence off one's own yard to keep out errant livestock. One ought not simply slaughter everybody else's black cows on the grounds that the commons should be kept safe for sheep.
Have no fear, Will:
Your brief pro-Republican tendencies have a rational explanation. It's because, as Garrison Keillor explains, "In the past, when times were simpler, we could afford the luxury of disagreement. But we can't anymore. Today, it's important that we all be Republicans. Your friends are. Your true friends. Why not you?"
come on, sing with me now
"We're all Republicans now,
We've all come around somehow
We are one land
One old party that's grand,
We're all Republicans now.
Affirmative action must go,
Unless you're somebody we know.
We'll get conservative judges back on the bench,
Cut government spending and down with the French
No more arguments, we've taken a vow.
No more dissent, just smile and bow,
We're all Republicans
We're all Republicans
We're all Republicans now"
[if you haven't been listening to A Prairie Home Companion well, tsk tsk, your loss]
Your brief pro-Republican tendencies have a rational explanation. It's because, as Garrison Keillor explains, "In the past, when times were simpler, we could afford the luxury of disagreement. But we can't anymore. Today, it's important that we all be Republicans. Your friends are. Your true friends. Why not you?"
come on, sing with me now
"We're all Republicans now,
We've all come around somehow
We are one land
One old party that's grand,
We're all Republicans now.
Affirmative action must go,
Unless you're somebody we know.
We'll get conservative judges back on the bench,
Cut government spending and down with the French
No more arguments, we've taken a vow.
No more dissent, just smile and bow,
We're all Republicans
We're all Republicans
We're all Republicans now"
[if you haven't been listening to A Prairie Home Companion well, tsk tsk, your loss]
Saturday, May 24, 2003
Copyright infringement blog returns:
from Graham Greene's The Heart of the Matter
the first (semi-)affair begins:
"'Henry doesn't love me,' she said gently, as though she were teaching a child, using the simplest words to explain a difficult subject, simplifying . . . She leant her head back against the guichet and smiled at him as to say, it's quite easy really when you get the hang of it. 'He'll be happier without me,' she repeated. An ant moved from the woodwork on to her neck and he leant close to flick it away. He had no other motive. When he took his mouth away from hers the ant was still there. He let it run on his finger. The taste of lipstick was like something he'd never tasted before and that he would always remember. It seemed to him that an act had been committed which altered the whole world."
- Book I, Part 2, Ch. 2
the second affair (first real) begins:
"The word 'pity' is used as loosely as the word 'love': the terrible promiscuous passion which so few experience. . . .
. . . She turned suddenly to him and said, 'It's so good to talk to you. I can say anything I like. I'm not afraid of hurting you. You don't want anything out of me. I'm safe.'
'We're both safe.' The rain surrounded them, falling regularly on the iron roof.
She said, 'I have a feeling that you'd never let me down.' The word came to him like a command he would have to obey however difficult. . . .
She pressed against him with her hand on his side. When the sound of Bagster's feet retreated, she raised her mouth and they kissed. What they both had thought was safety proved to have been the camouflage of an enemy who works in terms of friendship, trust, and pity."
- Book II, Part 1, Ch. 3
from Graham Greene's The Heart of the Matter
the first (semi-)affair begins:
"'Henry doesn't love me,' she said gently, as though she were teaching a child, using the simplest words to explain a difficult subject, simplifying . . . She leant her head back against the guichet and smiled at him as to say, it's quite easy really when you get the hang of it. 'He'll be happier without me,' she repeated. An ant moved from the woodwork on to her neck and he leant close to flick it away. He had no other motive. When he took his mouth away from hers the ant was still there. He let it run on his finger. The taste of lipstick was like something he'd never tasted before and that he would always remember. It seemed to him that an act had been committed which altered the whole world."
- Book I, Part 2, Ch. 2
the second affair (first real) begins:
"The word 'pity' is used as loosely as the word 'love': the terrible promiscuous passion which so few experience. . . .
. . . She turned suddenly to him and said, 'It's so good to talk to you. I can say anything I like. I'm not afraid of hurting you. You don't want anything out of me. I'm safe.'
'We're both safe.' The rain surrounded them, falling regularly on the iron roof.
She said, 'I have a feeling that you'd never let me down.' The word came to him like a command he would have to obey however difficult. . . .
She pressed against him with her hand on his side. When the sound of Bagster's feet retreated, she raised her mouth and they kissed. What they both had thought was safety proved to have been the camouflage of an enemy who works in terms of friendship, trust, and pity."
- Book II, Part 1, Ch. 3
O'Connor:
Justice Sandra Day O'Connor thinks that the court did "the best it could" in the case of Bush v. Gore. Far be it from me to seriously critique the judgment of a Supreme Court Justice on a case that she knows far more about than I do, but I am skeptical. I don't understand why the court took the case, why having taken the case it stayed the vote-counting, or why Kennedy and O'Connor didn't go with the Rehnquist opinion or the Breyer opinion rather than the curious middle ground that they carved out for themselves. O'Connor suggests that it was time pressure, and I think she may be right that the court could reach no better decision in that time period. So why did it make a decision at all?
Justice Sandra Day O'Connor thinks that the court did "the best it could" in the case of Bush v. Gore. Far be it from me to seriously critique the judgment of a Supreme Court Justice on a case that she knows far more about than I do, but I am skeptical. I don't understand why the court took the case, why having taken the case it stayed the vote-counting, or why Kennedy and O'Connor didn't go with the Rehnquist opinion or the Breyer opinion rather than the curious middle ground that they carved out for themselves. O'Connor suggests that it was time pressure, and I think she may be right that the court could reach no better decision in that time period. So why did it make a decision at all?
Conservatism:
And while I'm (briefly) being pro-Republican, here's a New York Times magazine article about conservatives on college campuses (though they seem to have inexcusably passed over Sara Butler). It's a very even and pretty interesting piece, though the professors that the author talked to at the end are a little disturbing. Their fear is that now that conservative groups are on campus, "Students are much more willing to write off something as 'liberal talk'." Let me say that I am skeptical.
That is, I think it's likely that the presence of a few conservative groups on campuses (they are still, let us be clear, in the overwhelming minority) will cause students to write things off as "liberal talk" when those things are, in fact, "liberal talk." But it's really implausible that the presence of a few overwhelmed Sara Butlers is going to cause those of moderate political bent to dismiss well-reasoned arguments, or to stop "thinking, in a complex way, about all of the different ideas and evaluating them." If anything, it's the liberals who will have to think a little more complexly.
And while I'm (briefly) being pro-Republican, here's a New York Times magazine article about conservatives on college campuses (though they seem to have inexcusably passed over Sara Butler). It's a very even and pretty interesting piece, though the professors that the author talked to at the end are a little disturbing. Their fear is that now that conservative groups are on campus, "Students are much more willing to write off something as 'liberal talk'." Let me say that I am skeptical.
That is, I think it's likely that the presence of a few conservative groups on campuses (they are still, let us be clear, in the overwhelming minority) will cause students to write things off as "liberal talk" when those things are, in fact, "liberal talk." But it's really implausible that the presence of a few overwhelmed Sara Butlers is going to cause those of moderate political bent to dismiss well-reasoned arguments, or to stop "thinking, in a complex way, about all of the different ideas and evaluating them." If anything, it's the liberals who will have to think a little more complexly.
Well Said, Sir!:
Continuing to confirm my belief that not all senior Republican Senators are like Santorum and Lott, Richard Lugar (who I can proudly say is from Indiana) has an opinion piece in the Washington Post, admonishing the Bush administration for declaring "Mission Accomplished" when the mission is so very far from accomplished. Nation-building, he reminds us, is precisely what we ought to be engaged in here.
I read someplace (but have forgotten the source) that Indiana often houses Foreign Relations giants (like Lee Hamilton) because Indiana is so backward that so long as they perform their usual duties in securing benefits for the state, the congressmen are left alone by the electorate, and thus freed to do what is right without worrying about "how it will play." Whether this claim has any true merit is left as an exercise for the political scientist, but I offer Richard Lugar as anecdotal case in point.
Continuing to confirm my belief that not all senior Republican Senators are like Santorum and Lott, Richard Lugar (who I can proudly say is from Indiana) has an opinion piece in the Washington Post, admonishing the Bush administration for declaring "Mission Accomplished" when the mission is so very far from accomplished. Nation-building, he reminds us, is precisely what we ought to be engaged in here.
The administration should state clearly that we are engaged in "nation-building." We are constructing the future in Iraq. It's a complicated and uncertain business, and it's not made any easier when some in the Pentagon talk about quick exit strategies or say dismissively that they don't do nation-building. The days when Americans could win battles and then come home quickly for a parade are over.
President Bush should make clear to one and all that he will declare "Mission accomplished" in Iraq not on the basis of our military victory or the date of our withdrawal but on what kind of country we leave behind.
I read someplace (but have forgotten the source) that Indiana often houses Foreign Relations giants (like Lee Hamilton) because Indiana is so backward that so long as they perform their usual duties in securing benefits for the state, the congressmen are left alone by the electorate, and thus freed to do what is right without worrying about "how it will play." Whether this claim has any true merit is left as an exercise for the political scientist, but I offer Richard Lugar as anecdotal case in point.
Bated Breath:
And it's been over 24 hours and Sara Butler still hasn't produced her promised pronouncement on abortion. (sigh). Does she have something better to do with a 3-day weekend than blog?
And it's been over 24 hours and Sara Butler still hasn't produced her promised pronouncement on abortion. (sigh). Does she have something better to do with a 3-day weekend than blog?
Girls:
Nick Tarasen has eliminated his comments, and I approve of that choice, but he has sadly also eliminated his permalinks in the process. Anyway, I'm referencing the Friday post called "The Squirrels Are Smarter Than The Guys".
Nick writes: "Why is it that schools like Caltech are comfortable being 60% male, but no school is comfortable being 60% female?"
Ahem: How about Vassar?
UPDATE: Nick complains that that's not the same, because Vassar used to be a girl's school. Well, yes I know that. But Caltech used to be a boy's school. That's my point. Both started admitting people of the opposite gender at about the same time, and both now have about equal-and-opposite percentages of gender. And nobody seems to care that deeply about either one, though both are reaching out to even their balance. That, I think, is good anecdotal evidence (a contradition in terms) that there's no double-standard.
And why would schools want gender balance? Because a lot of students care about sex and romance when they pick a school, and it thus behooves a school to balance things out. I'm not going to discuss whether Vassar's "drunkenness and destructiveness" in dormitories is appreciably less than Caltech's or MIT's or CMU's.
Nick Tarasen has eliminated his comments, and I approve of that choice, but he has sadly also eliminated his permalinks in the process. Anyway, I'm referencing the Friday post called "The Squirrels Are Smarter Than The Guys".
Nick writes: "Why is it that schools like Caltech are comfortable being 60% male, but no school is comfortable being 60% female?"
Ahem: How about Vassar?
UPDATE: Nick complains that that's not the same, because Vassar used to be a girl's school. Well, yes I know that. But Caltech used to be a boy's school. That's my point. Both started admitting people of the opposite gender at about the same time, and both now have about equal-and-opposite percentages of gender. And nobody seems to care that deeply about either one, though both are reaching out to even their balance. That, I think, is good anecdotal evidence (a contradition in terms) that there's no double-standard.
And why would schools want gender balance? Because a lot of students care about sex and romance when they pick a school, and it thus behooves a school to balance things out. I'm not going to discuss whether Vassar's "drunkenness and destructiveness" in dormitories is appreciably less than Caltech's or MIT's or CMU's.
Nerd-Nivana, take 2:
Women's Wear Daily (no, I never heard of it before in my life) has published a list of the top 10 most fashionably dressed universities.
Guess whose university doesn't make the cut? I have chosen. . . wisely.
[this link courtesy of my mother, who attended #6. So kind and quick she is to point out whenever any place she attended (Arkansas; Illinois)] beats mine.]
Women's Wear Daily (no, I never heard of it before in my life) has published a list of the top 10 most fashionably dressed universities.
Guess whose university doesn't make the cut? I have chosen. . . wisely.
[this link courtesy of my mother, who attended #6. So kind and quick she is to point out whenever any place she attended (Arkansas; Illinois)] beats mine.]
Terrorism:
Jeremy Reff on terrorism. He raises good questions while acknowledging he doesn't have all the answers. What definition of terrorism can exclude military bombings while including "state-sponsored" terrorism against army posts and all the rest? (there are more fixed points to be accomodated but these seem like two of the more stubborn ones to me. and where do all the punctuation marks go when one uses large parentheticals? i've pretty much given up).
My initial suggestion is that terrorism is violence, state-sponsored or not, for political aims, which is carried out by those with no official connection to a government. That saves espionage agents but nor Al-Qaeda. And forces us to withhold judgment on the Yale pipe-bombing until we know the motivations.
Jeremy Reff on terrorism. He raises good questions while acknowledging he doesn't have all the answers. What definition of terrorism can exclude military bombings while including "state-sponsored" terrorism against army posts and all the rest? (there are more fixed points to be accomodated but these seem like two of the more stubborn ones to me. and where do all the punctuation marks go when one uses large parentheticals? i've pretty much given up).
My initial suggestion is that terrorism is violence, state-sponsored or not, for political aims, which is carried out by those with no official connection to a government. That saves espionage agents but nor Al-Qaeda. And forces us to withhold judgment on the Yale pipe-bombing until we know the motivations.
Blogrolling:
In a meagre attempt at housekeeping, I've added Lawrence Solem's truly excellent blog to our list of links, and updated the address for the folks at Volokh.
In a meagre attempt at housekeeping, I've added Lawrence Solem's truly excellent blog to our list of links, and updated the address for the folks at Volokh.
Miss Manners:
Sorry blogging has been light today; I've been consumed by reading a book by Miss Manners (Judith Martin). An example:
I've only recently begun to realize how game-theoretic the task Miss Manners engages in is (ackward, reword!-- ed.) On the one hand she's trying to shape societal norms (and rekindle and preserve existing norms) so that inconsiderate behavior is not rewarded. But more broadly, she's attempting to provide co-ordination and focus for a gigiantic Nash equilibrium. This is most obvious in her endorsement of various social untruths: (Guest: Oh, I'm terribly sorry! Let me replace it! Host: Oh no! I couldn't possibly . . . Guest: No, please, let me . . . etc.), but is writ large across the (highly sensible) system of etiquette she expounds and defends. Of course being Mannerly isn't always the best response to all forms on unMannerliness (which is why Manners sometimes makes allowances for highly extreme circumstances, while also trying to curb the discretion of its participants in figuring out which circumstances are sufficiently extreme, but Miss Manners's goal, I believe, is to convince people that other people (people with whom they would like to get along) would like them to act Mannerly, and that so long as everybody else is doing it, it's best to go along, whatever one's personal predilections.
Whether Miss Manners recognizes the vastly economic aspect to her work, I don't know, but I do think that if she ever published an explanation of her task in the JEPP, she ought to be in the running for a medal.
Sorry blogging has been light today; I've been consumed by reading a book by Miss Manners (Judith Martin). An example:
DEAR MISS MANNERS: I have a friend who visits me in my apartment. After urinating in my toilet, he refuses to flush it. He says this is a waste of water and that one should wait for additional urinations before flushing. I have assured him that there is no water shortage here and that I consider his behavior unsanitary and disgusting. What can I do? I do not want him urinating off my balcony nor do I want to lose his friendship by having him evicted.
GENTLE READER: What a charming choice you offer Miss Manners. But then, you move in charming circles. What third solution you might conceive of, other than tolerating or evicting a defiant houseguest, she cannot imagine. She certainly hopes you don't think that she is going to march over there and make him flush the toilet or do it for him.
I've only recently begun to realize how game-theoretic the task Miss Manners engages in is (ackward, reword!-- ed.) On the one hand she's trying to shape societal norms (and rekindle and preserve existing norms) so that inconsiderate behavior is not rewarded. But more broadly, she's attempting to provide co-ordination and focus for a gigiantic Nash equilibrium. This is most obvious in her endorsement of various social untruths: (Guest: Oh, I'm terribly sorry! Let me replace it! Host: Oh no! I couldn't possibly . . . Guest: No, please, let me . . . etc.), but is writ large across the (highly sensible) system of etiquette she expounds and defends. Of course being Mannerly isn't always the best response to all forms on unMannerliness (which is why Manners sometimes makes allowances for highly extreme circumstances, while also trying to curb the discretion of its participants in figuring out which circumstances are sufficiently extreme, but Miss Manners's goal, I believe, is to convince people that other people (people with whom they would like to get along) would like them to act Mannerly, and that so long as everybody else is doing it, it's best to go along, whatever one's personal predilections.
Whether Miss Manners recognizes the vastly economic aspect to her work, I don't know, but I do think that if she ever published an explanation of her task in the JEPP, she ought to be in the running for a medal.
Friday, May 23, 2003
Nerd-Nirvana:
The Wall Street Journal bears this editorial on the University of Chicago (focusing mostly on the law school).
Aww. . .
The Wall Street Journal bears this editorial on the University of Chicago (focusing mostly on the law school).
The University of Chicago isn't for everyone. The library is still full on Saturday nights, though now students are sometimes studying for offbeat seminars on sci-fi novels or the law in Shakespeare's plays. But those who study or teach there routinely say they wouldn't trade the experience for anything else. Small wonder that John D. Rockefeller, who put up the money to open the school, once called the University of Chicago "the best investment I ever made." It is still paying dividends today.
Aww. . .
Do we lie, even nobly?
In response to my original question, about why we don't tell lawyers who their appellate panel will be, Amy suggests that it might be because we do not "want to admit, or even endorse, (the) fact" that the outcome of a case depends on the judge which hears it.
But our justice system seems to acknowledge this fact all the time-- en banc panels the results of the original three-judge panel which in turn reviews the results of the district court. And the Supreme Court reviews the results of the Appellate court, too. If we thought that the judgment reached in each of these situations was completely independent of the judges involved, there wouldn't be much need to rehear the cases.
Given that our justice system does acknowledge its own failings (as any just system of justice must, I think), it doesn't seem likely that there's any value to perpetuating the "noble lie" that Amy suggests, when the system makes pretty plain that it thinks there is strong variation among its judges.
In response to my original question, about why we don't tell lawyers who their appellate panel will be, Amy suggests that it might be because we do not "want to admit, or even endorse, (the) fact" that the outcome of a case depends on the judge which hears it.
But our justice system seems to acknowledge this fact all the time-- en banc panels the results of the original three-judge panel which in turn reviews the results of the district court. And the Supreme Court reviews the results of the Appellate court, too. If we thought that the judgment reached in each of these situations was completely independent of the judges involved, there wouldn't be much need to rehear the cases.
Given that our justice system does acknowledge its own failings (as any just system of justice must, I think), it doesn't seem likely that there's any value to perpetuating the "noble lie" that Amy suggests, when the system makes pretty plain that it thinks there is strong variation among its judges.
Thursday, May 22, 2003
Shaker drinking songs:
I kid you not. Oddly, they aren't as popular as "Simple Gifts".
"Ho, ho I've been a-drinking out o Mothers good wine lunkin
Lo it takes my every feeling, sets me turning, twisting, reeling,
See it takes my head in earnest, hands, feet too at its service,
Lo lo this wine o Mohter makes both bone and muscle quiver.
Cramp and stiff it will dissolve them, bend you down again twill straighten,
Try it, try it, drink it hearty, it will give you joints a-plenty."
--A "drinking" song from New Gloucester, n.d.
The songs were part of the Shaker's dance-and-song filled worship services. Some songs had very complex coordinated marches and some were rather freeform, such as this one, which ended with everyone feigning drunkeness. [Sigh... There go my mental images of an elegantly built Shaker neighborhood tavern...]
The Shakers did drink cider -- since it was pasturized, it was often healthier than water or milk -- but the wine in the drinking songs is a metaphorical wine and not a beverage of any kind. I don't know if it represents a symbolic Eucharist. It doesn't seem entirely implausible; the Shakers believed in a water-less baptism through the Holy Spirit.
"Drink ye of Mother's wine,
Drink drink drink ye freely,
Drink ye of Mother's wine
It will make you limber.
If it makes you reel around,
If it makes you fall down
If it lays you on the floor
Rise and take a little more."
[Source of songs: Edward D. Andrew's The Gift to be Simple: Songs, Dances and Rituals of the American Shakers (New York: Augustin, 1940)]
I kid you not. Oddly, they aren't as popular as "Simple Gifts".
"Ho, ho I've been a-drinking out o Mothers good wine lunkin
Lo it takes my every feeling, sets me turning, twisting, reeling,
See it takes my head in earnest, hands, feet too at its service,
Lo lo this wine o Mohter makes both bone and muscle quiver.
Cramp and stiff it will dissolve them, bend you down again twill straighten,
Try it, try it, drink it hearty, it will give you joints a-plenty."
--A "drinking" song from New Gloucester, n.d.
The songs were part of the Shaker's dance-and-song filled worship services. Some songs had very complex coordinated marches and some were rather freeform, such as this one, which ended with everyone feigning drunkeness. [Sigh... There go my mental images of an elegantly built Shaker neighborhood tavern...]
The Shakers did drink cider -- since it was pasturized, it was often healthier than water or milk -- but the wine in the drinking songs is a metaphorical wine and not a beverage of any kind. I don't know if it represents a symbolic Eucharist. It doesn't seem entirely implausible; the Shakers believed in a water-less baptism through the Holy Spirit.
"Drink ye of Mother's wine,
Drink drink drink ye freely,
Drink ye of Mother's wine
It will make you limber.
If it makes you reel around,
If it makes you fall down
If it lays you on the floor
Rise and take a little more."
[Source of songs: Edward D. Andrew's The Gift to be Simple: Songs, Dances and Rituals of the American Shakers (New York: Augustin, 1940)]
Noble Lie?
Will asks why we don't let lawyers know ahead of time which judge will be hearing their argument. The answer is, I think, that it is a principle of our justice system that it should not matter which judge hears the case--the outcome should nevertheless be the same. Obviously this is not the case. But do we want to admit, or even endorse, this fact? It seems to me that while ideological judges are currently a fact of life, they are not a particularly desirable fact. I have no idea how to do away with this current judicial malaise of which partisan squabbles over confirmation seem to be a symptom--I'm no legal scholar to be sure. Nevertheless, I can see that it would be desirable, and certainly it is desirable that we continue to hold justice as application of interpretive rules above justice as judgement as our judicial standard, and therefore that we would want it not to be important who hears what cases.
That being true, I recognize that pretending there is no problem--that who hears your case isn't important--is not the same thing as solving the problem. Nevertheless, these sorts of salutary lies can help remind people what their ideals are, even if they are failing to live up to them. Giving lawyers the ability to prepare for the biases of a particular judge might make for better justice under our current system, but it also represents a step away from the system we would most like to have.
Will asks why we don't let lawyers know ahead of time which judge will be hearing their argument. The answer is, I think, that it is a principle of our justice system that it should not matter which judge hears the case--the outcome should nevertheless be the same. Obviously this is not the case. But do we want to admit, or even endorse, this fact? It seems to me that while ideological judges are currently a fact of life, they are not a particularly desirable fact. I have no idea how to do away with this current judicial malaise of which partisan squabbles over confirmation seem to be a symptom--I'm no legal scholar to be sure. Nevertheless, I can see that it would be desirable, and certainly it is desirable that we continue to hold justice as application of interpretive rules above justice as judgement as our judicial standard, and therefore that we would want it not to be important who hears what cases.
That being true, I recognize that pretending there is no problem--that who hears your case isn't important--is not the same thing as solving the problem. Nevertheless, these sorts of salutary lies can help remind people what their ideals are, even if they are failing to live up to them. Giving lawyers the ability to prepare for the biases of a particular judge might make for better justice under our current system, but it also represents a step away from the system we would most like to have.
Plan B, take two
The Prolifeguy has graciously responded to my earlier questions. I appreciate the clarification of several of his points, but I'm still very confused on something. I pointed out that all hormonal birth control methods could work in some cases by preventing implantation, and asked if he thus supported banning them along with the morning after pill. He responds:
Given the culture in which we live, I fear OCPs are a lesser evil that we must simply accept, even given the risk of abortion they entail. Better to prevent the abortions that would occur without OCP usage, than to simply eliminate OCPs, thus increasing the number of fertilizations and implantations, and ultimately, abortions. So my answer is no. Lesser of two evils.
What I don't understand is why the lesser of two evils reasoning does not also apply to the morning after pill. Given its unplesant side effects (nausea, cramps, and disruption of the menstrual cycle) it hardly seems poised to replace other methods of birth control. And if we also accept that the group that most uses it (largely young, single women) is also the group most likely to consider abortion as a response to pregnancy, it seems therefore that unless the morning after pill always or almost always works by preventing implantation, its net effect will be to reduce the number of abortions performed--something that just about everyone would agree is a social good.
The Prolifeguy has graciously responded to my earlier questions. I appreciate the clarification of several of his points, but I'm still very confused on something. I pointed out that all hormonal birth control methods could work in some cases by preventing implantation, and asked if he thus supported banning them along with the morning after pill. He responds:
Given the culture in which we live, I fear OCPs are a lesser evil that we must simply accept, even given the risk of abortion they entail. Better to prevent the abortions that would occur without OCP usage, than to simply eliminate OCPs, thus increasing the number of fertilizations and implantations, and ultimately, abortions. So my answer is no. Lesser of two evils.
What I don't understand is why the lesser of two evils reasoning does not also apply to the morning after pill. Given its unplesant side effects (nausea, cramps, and disruption of the menstrual cycle) it hardly seems poised to replace other methods of birth control. And if we also accept that the group that most uses it (largely young, single women) is also the group most likely to consider abortion as a response to pregnancy, it seems therefore that unless the morning after pill always or almost always works by preventing implantation, its net effect will be to reduce the number of abortions performed--something that just about everyone would agree is a social good.
Panels:
On the Seventh Circuit Appellate Court (and other circuits, I presume, but don't know), the lawyers are not told until argument day which three judges ("the panel") are going to be hearing their case out of the "banc" of available judges. I had never questioned the wisdom of this, but . . . now I am.
Is this a good idea? On the one hand, lawyers can't prepare their case based on their knowledge of which judges will hear the case (against a Judge Posner you might mount a fairly policy-heavy argument; against a Judge Wood, something else entirely). This increases some intuitive sense of fairness, I think. On the other hand, if the choice of judge makes a difference (and I think there's strong reason to think it does) then keeping the panel selection secret from lawyers doesn't decrease the randomness of the appellate decisions, and it may increase it, since lawyers are forced to take their best guess about what type of judges they will get, and the guess may frequently be wrong.
So what are the potential harms in letting lawyers write briefs that cater to a particular group of judges? I suppose it disadvantages those lawyers and law firms without some sense of the judges' predilections, but this information is relatively easy to acquire, especially for those practicing appellate law. It also might lead to strategic bringing-and-dropping of one's case based on the panel selection, though I don't know enough about the rules of federal procedure to tell for sure. But at the very least, would it be more harmful than helpful to let the lawyer's know a day in advance what kind of questions they will be likely to face? Or possibly even to let them know early enough that they could choose counsel for oral argument wisely?
On the Seventh Circuit Appellate Court (and other circuits, I presume, but don't know), the lawyers are not told until argument day which three judges ("the panel") are going to be hearing their case out of the "banc" of available judges. I had never questioned the wisdom of this, but . . . now I am.
Is this a good idea? On the one hand, lawyers can't prepare their case based on their knowledge of which judges will hear the case (against a Judge Posner you might mount a fairly policy-heavy argument; against a Judge Wood, something else entirely). This increases some intuitive sense of fairness, I think. On the other hand, if the choice of judge makes a difference (and I think there's strong reason to think it does) then keeping the panel selection secret from lawyers doesn't decrease the randomness of the appellate decisions, and it may increase it, since lawyers are forced to take their best guess about what type of judges they will get, and the guess may frequently be wrong.
So what are the potential harms in letting lawyers write briefs that cater to a particular group of judges? I suppose it disadvantages those lawyers and law firms without some sense of the judges' predilections, but this information is relatively easy to acquire, especially for those practicing appellate law. It also might lead to strategic bringing-and-dropping of one's case based on the panel selection, though I don't know enough about the rules of federal procedure to tell for sure. But at the very least, would it be more harmful than helpful to let the lawyer's know a day in advance what kind of questions they will be likely to face? Or possibly even to let them know early enough that they could choose counsel for oral argument wisely?
Punishing juries who get it wrong:
Evidently English common law once provided a whole host of punishments for juries who "got it wrong" as determined by a jury of 24 men. It wasn't a fine per se, but it was economic destruction. Eugene Volokh has the details. And there's longer Blackstonian quotes over at Statutory Construction Zone, from which Volokh gets his summary (click here, scroll down to the bottom of that section).
Evidently English common law once provided a whole host of punishments for juries who "got it wrong" as determined by a jury of 24 men. It wasn't a fine per se, but it was economic destruction. Eugene Volokh has the details. And there's longer Blackstonian quotes over at Statutory Construction Zone, from which Volokh gets his summary (click here, scroll down to the bottom of that section).
Schools Redux:
Craig Barker has found my post on education and he doesn't like it. He has four points, which are:
1: "The school you attend, if you go to a public school, it should look like the community you are from."
2: " ...just because you have been a consumer of public education in the past does not mean you automatically and fundamentally understand what is wrong with it"
3: "more federal money for schools is a really bad idea, because the further away the money comes from, the less accountibility to the community there is."
4: "people need to always remember that public schools are not run for profit for a reason. They would fail miserably."
In order:
Re: 1: Why should it? I won't get into public choice theory too deeply, but there's a theorem called the "Tiebout Theorem" that suggests that when given a choice people often like to be with others like them and that this isn't such a bad thing. Of course there are countervailing considerations-- some amount of intellectual diversity is definitely worthwhile and all the rest. But I don't know very many people who would seriously propose that Harvard and Wheaton Colleges ought to trade half of their faculties and student bodies to better look like the college-bound community at large. And I can't think of a good reason why we should stop effecient self-segregation in our high schools that we don't stop in our universities.
Re: 2: Totally agreed. Good.
Re: 3: Ahh, but who should a school be accountable to? In my model, the school is definitely accountable to its students, since they can always go elsewhere and the school depends on them for its very existence. Mr. Barker is right, however, that it removes a school's accountability to the community at large. In the days of old, I think, the argument was that the school was a part of a community since it educated that community's future citizens. Now, however, that post-high-school and post-college movement is becoming much more common, it's not at all clear that a school should be accountable to the community writ small as opposed to the community writ large (outside of the normal rules imposed by democratic processes). Maybe federal money helps represent the growing fundamental interconnectedness of all things.
Re: 4: Two possible responses here. To the extent that public schools can be made to provide highly useful services at relatively competitive costs, my market system will force them to. And cost does not just mean the price of tuition. Think of all the rotten and unreasonable things your school did (but see point 2). Maybe it had a "zero-tolerance" policy for advil, or maybe the in-school suspension teacher was lecherous, or maybe they banned backpacks and tank-tops from the hallways. Mine did all of these things, and yours probably did others. To the extent that these policies are worth the benefits they bring (I'm doubtful, on all counts), they'll continue. But if students (and their parents, whoever makes the choice) value liberty at school as well as order, you will see a push for schools to develop the rest of our free society has.
Secondly, it might be true that education just isn't "worth it" in any little-picture sense even though it's "worth it" in a big-picture sense, because the benefits of an educated citizenry are wide and diffuse. But nothing about my proposal demands that the schools be financed by willingly paying students. I'm agnostic on whether it makes sense to require that children attend school, and definitely in favor of the government providing some money for it to happen, to help internalize the positive externalities so disbursed.
Craig Barker has found my post on education and he doesn't like it. He has four points, which are:
1: "The school you attend, if you go to a public school, it should look like the community you are from."
2: " ...just because you have been a consumer of public education in the past does not mean you automatically and fundamentally understand what is wrong with it"
3: "more federal money for schools is a really bad idea, because the further away the money comes from, the less accountibility to the community there is."
4: "people need to always remember that public schools are not run for profit for a reason. They would fail miserably."
In order:
Re: 1: Why should it? I won't get into public choice theory too deeply, but there's a theorem called the "Tiebout Theorem" that suggests that when given a choice people often like to be with others like them and that this isn't such a bad thing. Of course there are countervailing considerations-- some amount of intellectual diversity is definitely worthwhile and all the rest. But I don't know very many people who would seriously propose that Harvard and Wheaton Colleges ought to trade half of their faculties and student bodies to better look like the college-bound community at large. And I can't think of a good reason why we should stop effecient self-segregation in our high schools that we don't stop in our universities.
Re: 2: Totally agreed. Good.
Re: 3: Ahh, but who should a school be accountable to? In my model, the school is definitely accountable to its students, since they can always go elsewhere and the school depends on them for its very existence. Mr. Barker is right, however, that it removes a school's accountability to the community at large. In the days of old, I think, the argument was that the school was a part of a community since it educated that community's future citizens. Now, however, that post-high-school and post-college movement is becoming much more common, it's not at all clear that a school should be accountable to the community writ small as opposed to the community writ large (outside of the normal rules imposed by democratic processes). Maybe federal money helps represent the growing fundamental interconnectedness of all things.
Re: 4: Two possible responses here. To the extent that public schools can be made to provide highly useful services at relatively competitive costs, my market system will force them to. And cost does not just mean the price of tuition. Think of all the rotten and unreasonable things your school did (but see point 2). Maybe it had a "zero-tolerance" policy for advil, or maybe the in-school suspension teacher was lecherous, or maybe they banned backpacks and tank-tops from the hallways. Mine did all of these things, and yours probably did others. To the extent that these policies are worth the benefits they bring (I'm doubtful, on all counts), they'll continue. But if students (and their parents, whoever makes the choice) value liberty at school as well as order, you will see a push for schools to develop the rest of our free society has.
Secondly, it might be true that education just isn't "worth it" in any little-picture sense even though it's "worth it" in a big-picture sense, because the benefits of an educated citizenry are wide and diffuse. But nothing about my proposal demands that the schools be financed by willingly paying students. I'm agnostic on whether it makes sense to require that children attend school, and definitely in favor of the government providing some money for it to happen, to help internalize the positive externalities so disbursed.
Wednesday, May 21, 2003
Roads Travelled:
Lawrence Solem defends himself in the latest debate between him and Jack Balkin. Maybe I'm silly, but I find the following passage actually moving. (And much of the rest of the piece convincing).
Lawrence Solem defends himself in the latest debate between him and Jack Balkin. Maybe I'm silly, but I find the following passage actually moving. (And much of the rest of the piece convincing).
Neither Left nor Right
And so I find that I can turn neither left nor right. On the one hand, I find that I cannot endorse the reasoning of many of the Warren Court decisions. It is tempting. Certainly, there is cover. One can always slip on the coat of law as integrity or don the fedora of a New Deal constitutional moment. And even if one suspects that these garments are the emperor's new clothes, one can take comfort in the company one keeps. On the other hand, I cannot endorse a neoformalism that incorporates textualism and originalism but leaves out the doctrine of stare decisis. There is temptation on that path as well. There may be fewer at the party, but the companionship is all the warmer when one is a member of the brave few. Neoformalism is a lonely road. I have been going that way for a while, and if you are like me, you know that there is not much company. Balkin thinks that neoformalism is the easy path, but he does not see beyond the first curve in the road.
Homosexuality I:
We're reviewing some of the homosexuality cases in one of my classes now, beginning with Bowers v. Hardwick, we moved on to Romer v. Evans, and will next consider Lawrence v. Texas. A major question at issue in these cases: Can a state's moral judgment about what is right and wrong constitute a "Rational Basis" for purposes of the 14th Amendment?
If so, then no statute will ever fail Rational Basis review. "Why are we prohibiting swimming? Because we think swimming is wrong and wish to express our disapproval of it." If not, then no statute will ever pass Rational Basis review. "Why are we prohibiting murder? Because murder leads to death. Why is death bad? Ummm . . . well, murder leads to disorder. Why is order good? Umm . . . . and so on."
There is some argument that "morality" isn't really that plastic. But it's hard to figure out how the court will tell an ad hoc moral judgment from an emerging social trend, or even from a not-so-emerging social trend. After all, legislatures are perfectly free to embody the moral views of small vocal minorities if they wish, rather than the views of the majority. One way to salvage rational basis review is to anchor it to history. But it's not clear whether that is A: Constitutionally helpful, or B: particularly desirable. It's potentially unhelpful because it succeeds only at constitutionalizing the status quo, and fails to take account of plenty of new developments (airplanes, after all, are a relatively recent invention). It's also a strange choice because the Rational Basis test itself is no place to be found in the Constitution, and was created as a way of sensibly interpreting vague provisions, so it's a little ironic that our method of interpretation needs its own method of interpretation.
It's not particularly *desirable* to peg Rational Basis to history because morals and mores change. Societies rot, but they also mature. It seems bizarre to fabricate a rule that forbids states from finding things immoral just because they haven't found them immoral before. Aren't we allowed to become enlightened?
What's to be done? I'm thinking of throwing out the Rational Basis test (and strict scrutiny), and replacing them with per se permission and per se proscription, but I'm willing to take other suggestions.
We're reviewing some of the homosexuality cases in one of my classes now, beginning with Bowers v. Hardwick, we moved on to Romer v. Evans, and will next consider Lawrence v. Texas. A major question at issue in these cases: Can a state's moral judgment about what is right and wrong constitute a "Rational Basis" for purposes of the 14th Amendment?
If so, then no statute will ever fail Rational Basis review. "Why are we prohibiting swimming? Because we think swimming is wrong and wish to express our disapproval of it." If not, then no statute will ever pass Rational Basis review. "Why are we prohibiting murder? Because murder leads to death. Why is death bad? Ummm . . . well, murder leads to disorder. Why is order good? Umm . . . . and so on."
There is some argument that "morality" isn't really that plastic. But it's hard to figure out how the court will tell an ad hoc moral judgment from an emerging social trend, or even from a not-so-emerging social trend. After all, legislatures are perfectly free to embody the moral views of small vocal minorities if they wish, rather than the views of the majority. One way to salvage rational basis review is to anchor it to history. But it's not clear whether that is A: Constitutionally helpful, or B: particularly desirable. It's potentially unhelpful because it succeeds only at constitutionalizing the status quo, and fails to take account of plenty of new developments (airplanes, after all, are a relatively recent invention). It's also a strange choice because the Rational Basis test itself is no place to be found in the Constitution, and was created as a way of sensibly interpreting vague provisions, so it's a little ironic that our method of interpretation needs its own method of interpretation.
It's not particularly *desirable* to peg Rational Basis to history because morals and mores change. Societies rot, but they also mature. It seems bizarre to fabricate a rule that forbids states from finding things immoral just because they haven't found them immoral before. Aren't we allowed to become enlightened?
What's to be done? I'm thinking of throwing out the Rational Basis test (and strict scrutiny), and replacing them with per se permission and per se proscription, but I'm willing to take other suggestions.
Of note recently in the NYT:
Has the NYT recently changed its policy on recipes? Their recipes have shifted more towards my taste, my desired length time spent in the kitchen, and my grocery store's supply (or things for which I can fake substitutes -- I don't really need to use applewood smoked bacon).
A recipe and story on pork burgers.
American farm-raised catfish are defended, along with a recipe for catfish courtboullion.
A Minimalist piece and two recipes (here and here) on fried chicken (the last is almost my mother's Ritz chicken).
And yaks: I'd like to try those. I'm not about to go make my own ragu, bechamel, and noodles for lasagna, though. I would be saddened, or at least less entertained, if the NYT quit carrying such stories and recipes.
Has the NYT recently changed its policy on recipes? Their recipes have shifted more towards my taste, my desired length time spent in the kitchen, and my grocery store's supply (or things for which I can fake substitutes -- I don't really need to use applewood smoked bacon).
A recipe and story on pork burgers.
American farm-raised catfish are defended, along with a recipe for catfish courtboullion.
A Minimalist piece and two recipes (here and here) on fried chicken (the last is almost my mother's Ritz chicken).
And yaks: I'd like to try those. I'm not about to go make my own ragu, bechamel, and noodles for lasagna, though. I would be saddened, or at least less entertained, if the NYT quit carrying such stories and recipes.
Tuesday, May 20, 2003
So I'm trying to figure what classes I'll take autumn quarter. I'm getting tired of taking English classes. I've met my quota, and I should be working on my BA during that time, anyway. The choices I've thought of so far are:
[OR represents time conflicts]
Michael Green's Intro to Ethics OR Nathan Tarcov's The Prince [20800]
Melissa Harris-Lacewell's Intro to American Gov't [20500] OR Jason Yost's The Bible in English Lit [ok, so it's a grad student-taught English class. perhaps I've had enough of those.]
Charles Larmore's The Meaning of Life [20900] OR Charles Lipson's World Politics in the 20th Century OR Mark Hansen's Politics of U.S. Congress [24810]
I think I'll take 3 regular classes plus independent BA prep. Both Intro to American Gov't and Poli of US Congress would probably be too much in that area; both Intro to Ethics and Meaning of Life might be too much philosophy (although perhaps not). Any thoughts or comments or other suggestions?
[OR represents time conflicts]
Michael Green's Intro to Ethics OR Nathan Tarcov's The Prince [20800]
Melissa Harris-Lacewell's Intro to American Gov't [20500] OR Jason Yost's The Bible in English Lit [ok, so it's a grad student-taught English class. perhaps I've had enough of those.]
Charles Larmore's The Meaning of Life [20900] OR Charles Lipson's World Politics in the 20th Century OR Mark Hansen's Politics of U.S. Congress [24810]
I think I'll take 3 regular classes plus independent BA prep. Both Intro to American Gov't and Poli of US Congress would probably be too much in that area; both Intro to Ethics and Meaning of Life might be too much philosophy (although perhaps not). Any thoughts or comments or other suggestions?
Plan B
Diotima referred readers to a prolifeguy blog post on the morning after pill. He doesn't like it because it may work by preventing implantation of the fertilized egg rather than preventing fertilization. But actually, the same thing is true, albeit to a much lesser extent, for all types of hormonal contraceptives. Does he thus propose that we should ban all of these also? Furthermore, certain tests, such as amniocentesis carried out during pregnancy increase the chance of a miscarriage. Should we ban these as well?
However, my main bone of contention is with this claim:
Any embryologist worth his or her salt would call Plan B "post-conception contraception," aka abortion. Be pro-choice if you want, but for G-d's sake, pick up a science textbook and see how they define life...For anyone unfamiliar with basic human embryology, a fertilized egg is a unique, growing, living member of our species. Just like you, just like me, just like Gloria Feldt (although her humanity remains somewhat in doubt), only at our most vulnerable moment.
Now, it's been a while since I picked up a science textbook, but I seem to remember that the definition of life involved demonstrating that the substance in question grew, took in nutrients, maintained homeostasis, responded to stumuli, and reproduced. So yes, a fertilized egg (which does all of these things) is obviously alive. But so are the cells that line your cheeks, so that according to science, whenever you perform the basic high school biology experiment of taking a scraping of cheek cells, staining them, and looking at the nuclei under a microscope you kill human life. Is this really what he means to say?
It's not that I think defining life at conception is obviously wrong, as I've said before. Rather, it is that there is nothing in the biological definition of life that mandates a certain response to what is ultimately a moral and philosophical question.
Diotima referred readers to a prolifeguy blog post on the morning after pill. He doesn't like it because it may work by preventing implantation of the fertilized egg rather than preventing fertilization. But actually, the same thing is true, albeit to a much lesser extent, for all types of hormonal contraceptives. Does he thus propose that we should ban all of these also? Furthermore, certain tests, such as amniocentesis carried out during pregnancy increase the chance of a miscarriage. Should we ban these as well?
However, my main bone of contention is with this claim:
Any embryologist worth his or her salt would call Plan B "post-conception contraception," aka abortion. Be pro-choice if you want, but for G-d's sake, pick up a science textbook and see how they define life...For anyone unfamiliar with basic human embryology, a fertilized egg is a unique, growing, living member of our species. Just like you, just like me, just like Gloria Feldt (although her humanity remains somewhat in doubt), only at our most vulnerable moment.
Now, it's been a while since I picked up a science textbook, but I seem to remember that the definition of life involved demonstrating that the substance in question grew, took in nutrients, maintained homeostasis, responded to stumuli, and reproduced. So yes, a fertilized egg (which does all of these things) is obviously alive. But so are the cells that line your cheeks, so that according to science, whenever you perform the basic high school biology experiment of taking a scraping of cheek cells, staining them, and looking at the nuclei under a microscope you kill human life. Is this really what he means to say?
It's not that I think defining life at conception is obviously wrong, as I've said before. Rather, it is that there is nothing in the biological definition of life that mandates a certain response to what is ultimately a moral and philosophical question.
Brilliant Idea
Much as I like Steven Landsburg's article over at Slate about incentives for juries to get their verdicts right, he's missed the American group that is most in need of incentives--voters. That's right. Besides fining jurors who get it wrong, we should fine voters who get it wrong.
As the recent spate of scandals has shown, as well as the recent spate of terrible legislation, our representatives as a whole are a pretty undistinguished bunch. Yet voters seem content, year in and year out, to keep electing the same tired batch of nobodies. It's not that our voters intend to ruin government. It's only that weighing candidates is a difficult job. It too requires much attention and energy. Letting the same old same old coast to victory in the primaries is much simpler than determining whether the new crop of candidates has actual promise. If we wish voters to perform this task successfully we need a better system of incentives. When states elect a John McCain or a Daniel Patrick Moynihan, send them a big fat reward. When they elect a Trent Lott or a Rick Santorum, hit them with a big fat fine. And so as not to discourage them from voting, pay them for doing that also.
Consider the benefits. Currently, our voters are an apathetic, careless bunch. Even should they decide to vote, they seldom take the trouble to inform themselves of the issues, they allow themselves to be influenced by transparent political propoganda, and they don't even take the time to determine accurately which box on their punch card corresponds to which candidate. Would they still behave this carelessly if they knew next year's tax refund was on the line?
With an independent review board composed of government bureaucrats and connected academics in place to tell voter when they've gotten it wrong, there would be a lot fewer Congressional embarassments running around Washington. Sure the occasional charming liar will still slip through the system. But by hitting voters where it matters most--in their pocketbooks--when they elect bad officials, we'll get better legistators on average.
Much as I like Steven Landsburg's article over at Slate about incentives for juries to get their verdicts right, he's missed the American group that is most in need of incentives--voters. That's right. Besides fining jurors who get it wrong, we should fine voters who get it wrong.
As the recent spate of scandals has shown, as well as the recent spate of terrible legislation, our representatives as a whole are a pretty undistinguished bunch. Yet voters seem content, year in and year out, to keep electing the same tired batch of nobodies. It's not that our voters intend to ruin government. It's only that weighing candidates is a difficult job. It too requires much attention and energy. Letting the same old same old coast to victory in the primaries is much simpler than determining whether the new crop of candidates has actual promise. If we wish voters to perform this task successfully we need a better system of incentives. When states elect a John McCain or a Daniel Patrick Moynihan, send them a big fat reward. When they elect a Trent Lott or a Rick Santorum, hit them with a big fat fine. And so as not to discourage them from voting, pay them for doing that also.
Consider the benefits. Currently, our voters are an apathetic, careless bunch. Even should they decide to vote, they seldom take the trouble to inform themselves of the issues, they allow themselves to be influenced by transparent political propoganda, and they don't even take the time to determine accurately which box on their punch card corresponds to which candidate. Would they still behave this carelessly if they knew next year's tax refund was on the line?
With an independent review board composed of government bureaucrats and connected academics in place to tell voter when they've gotten it wrong, there would be a lot fewer Congressional embarassments running around Washington. Sure the occasional charming liar will still slip through the system. But by hitting voters where it matters most--in their pocketbooks--when they elect bad officials, we'll get better legistators on average.
When is a Library not a Public Library?
Shonda Werry links to this interesting article from Waco, Texas. Planned Parenthood had been excluding former pro-life protesters from its Audre Rapoport Library. Some of the protesters sued under the First Amendment arguing that their constitutional rights had been violated.
If this were a public library, the pro-lifers' rights would probably be violated. The government may not visit punishments upon people because of the views they have expressed. It especially may not do so in a content- and viewpoint- based fashion, which this is. (Of course, if it prohibited only those who had illegally or violently protested, it might have some traction).
But the Audre Rapoport Library, is not-- so far as I can tell-- public. This previous article sheds some further light on the relationship the library had with the Waco government. It appears that the extent of the government's role in the library was a sort of book-exchange. It got some use of the government's catalogs and the government got some use of its books. In light of the suit, risk-averse Planned Parenthood has cut their ties with the government, but I think it's far from clear that they would have lost in the end.
When the government gives subsidies to or enters a relationship with an institution, that institution doesn't necessarily become a government agency. Private universities, for example, that receive government funds, must follow various rules not because of the Constitution, but because the Federal government chooses to impose them.
Of course, the case raises an interesting question-- when does the entanglement become severe enough that an institution ceases to be independent and becomes a government agent? What's (if anything) to stop a speech-hostile government from privatizing its libraries (and roads and parks, and who knows what else) so as to allow private agents to do what the government can't manage to?
Shonda Werry links to this interesting article from Waco, Texas. Planned Parenthood had been excluding former pro-life protesters from its Audre Rapoport Library. Some of the protesters sued under the First Amendment arguing that their constitutional rights had been violated.
If this were a public library, the pro-lifers' rights would probably be violated. The government may not visit punishments upon people because of the views they have expressed. It especially may not do so in a content- and viewpoint- based fashion, which this is. (Of course, if it prohibited only those who had illegally or violently protested, it might have some traction).
But the Audre Rapoport Library, is not-- so far as I can tell-- public. This previous article sheds some further light on the relationship the library had with the Waco government. It appears that the extent of the government's role in the library was a sort of book-exchange. It got some use of the government's catalogs and the government got some use of its books. In light of the suit, risk-averse Planned Parenthood has cut their ties with the government, but I think it's far from clear that they would have lost in the end.
When the government gives subsidies to or enters a relationship with an institution, that institution doesn't necessarily become a government agency. Private universities, for example, that receive government funds, must follow various rules not because of the Constitution, but because the Federal government chooses to impose them.
Of course, the case raises an interesting question-- when does the entanglement become severe enough that an institution ceases to be independent and becomes a government agent? What's (if anything) to stop a speech-hostile government from privatizing its libraries (and roads and parks, and who knows what else) so as to allow private agents to do what the government can't manage to?
Walking Out:
Stephen at the Conservatism Blog has another intemperate post. He indicts students at St. Joseph's University for being "intolerant" and walking out on Senator Santorum's commencement address.
Tolerance is over-rated. When one finds an elected official politically or morally opprobrious, the walk-out seems like the perfect way to express that disapproval (writing him a letter is another good option). If the Republican Party hopes to capture the hearts (and votes) of moderate voters like me (Moderate? Hah!--ed. Shut up. I'm an extremist, but not on the left-right scale), it would do well to show intolerance for the bigotry that has scarred its past. Trent Lott was well handled. Should Santorum be handled similarly? I'm not sure, but I certainly respect people for whom freedom of sexual orientation is important enough that they want nothing to do with him.
Stephen at the Conservatism Blog has another intemperate post. He indicts students at St. Joseph's University for being "intolerant" and walking out on Senator Santorum's commencement address.
Tolerance is over-rated. When one finds an elected official politically or morally opprobrious, the walk-out seems like the perfect way to express that disapproval (writing him a letter is another good option). If the Republican Party hopes to capture the hearts (and votes) of moderate voters like me (Moderate? Hah!--ed. Shut up. I'm an extremist, but not on the left-right scale), it would do well to show intolerance for the bigotry that has scarred its past. Trent Lott was well handled. Should Santorum be handled similarly? I'm not sure, but I certainly respect people for whom freedom of sexual orientation is important enough that they want nothing to do with him.
Eugene Volokh:
Professor Volokh is clearly reading the same things I am. Independently we've both resonded to jury incentive structures (him: here, me: here, Amanda: here), and Kozinski's Consumer Reports dissent (him: here, me: here).
I would, however, like to take a bit of issue with the good professor's indictment of hasty economics. He writes:
The problem with Landsburg's Slate article isn't that its model is oversimplified. The model works on the assumption that juries are vulnerable to incentives, and that a government program could encourage them to think more differently about the case-- I don't know if Professor Volokh disagrees with that, but he doesn't seem to. (The article also acknowledges, as I note below, that these incentives could be modified to get different results. Indeed, Landsburg writes, "It's easy to adjust incentives to get whatever results you want.")
It seems to me that the point at issue is not whether the model is oversimplified to the point of uselessness, but whether it correctly identifies the normative goals of the jury system. (This is probably the second chief complaint about economic arguments, and on these grounds, Professor Volokh's critique is completely on-target). We don't want to maximize the jury's tendency to conform with the decision we "want". If we wanted that, we wouldn't bother to try by juries (constitutional requirements notwithstanding). That's the point that Landsburg ignores. But the model seems perfectly realistic to me.
Professor Volokh does note that there are other problems with the proposal, but doesn't mention what they are. Maybe one of them takes issue with the actual model.
Professor Volokh is clearly reading the same things I am. Independently we've both resonded to jury incentive structures (him: here, me: here, Amanda: here), and Kozinski's Consumer Reports dissent (him: here, me: here).
I would, however, like to take a bit of issue with the good professor's indictment of hasty economics. He writes:
The chief complaint about attempts to apply economic arguments to real life -- and especially to law -- is that economists create models that ignore too much about the real world. In their haste to try to create a simple and therefore useful model, they create a radically oversimplified and therefore useless model. If the Slate argument is serious, then it's an excellent example of this phenomenon.
The problem with Landsburg's Slate article isn't that its model is oversimplified. The model works on the assumption that juries are vulnerable to incentives, and that a government program could encourage them to think more differently about the case-- I don't know if Professor Volokh disagrees with that, but he doesn't seem to. (The article also acknowledges, as I note below, that these incentives could be modified to get different results. Indeed, Landsburg writes, "It's easy to adjust incentives to get whatever results you want.")
It seems to me that the point at issue is not whether the model is oversimplified to the point of uselessness, but whether it correctly identifies the normative goals of the jury system. (This is probably the second chief complaint about economic arguments, and on these grounds, Professor Volokh's critique is completely on-target). We don't want to maximize the jury's tendency to conform with the decision we "want". If we wanted that, we wouldn't bother to try by juries (constitutional requirements notwithstanding). That's the point that Landsburg ignores. But the model seems perfectly realistic to me.
Professor Volokh does note that there are other problems with the proposal, but doesn't mention what they are. Maybe one of them takes issue with the actual model.
Monday, May 19, 2003
Science Fiction and Margaret Atwood:
I haven't yet read Margaret Atwood's new novel, Oryx and Crake, and may not get a chance to until after my exams, so I can't say whether Sven Birkerts's review is particularly accurate. But some of his other claims in the review seem fairly odd, and may help decide whether the rest of his review should be taken with or without salt.
He writes:
Why must psychological nuance rather than conceptual nuance be the hallmark of literature? As a die-hard devotee of Vladimir Nabokov's Ada, I beg to differ. (Of course, Ada has both psychological nuance and conceptual nuance, but it definitely "elevates scenario over sensibility." Help me out, Jeremy.)
Obviously, paper-thin characters rarely stock true "L"iterature, but that isn't really the claim that Birkerts makes about Atwood's book. I should think it clear that many wonderful tales of far off places can draw their life from the worlds they create. Brave New World (Modern Library #5) is one such example, 1984 (#13) of course is another. The Lord of the Rings, of course, is another (unless Birkerts wants to being the fantasy/sci-fi argument, which I doubt he does. His "reasoning" seems to apply to both). Now, one can disagree with the Modern Library's assessments (as I do), but it seems hard to claim that their top 25 picks aren't "L"iterature without further argument.
And as further argument goes, "because I say so," doesn't really cut it. So why can't Literature draw life from the world it creates?
As I've noted, I haven't yet read Oryx and Crake, so I have no idea if this criticism is correct as applied to Atwood's book. But The Blind Assassin was so wonderful that I intend to read Oryx and Crake soon.
UPDATE: And here's Jeremy Reff, in a brilliant/brilliantly written post, telling me why I'm wrong. He rightly disentangles the two claims that Birkerts makes, which I failed to do.
Claim one: Science Fiction is always based on concept rather than character.
Claim two: Novels based on concept rather than character are bad.
As we seem to agree, the first claim is simply untrue (unless, of course, one defines Science Fiction so as to make it true by definition) by counterexample. But what of claim two? It seems to me that this depends on what one means by "premise" or "scenario". You won't find me defending the "Literature of Ideas". But you will find me defending the literature of worlds.
Certainly a novel cannot succeed without at least some nuance and intrigue from its inhabitants, but literature breathes (writhes, lives) with examples of novels elevated to "L"iterature because of their setting and style, their "scenario". Marquez's Cien Anos de Soledad is one example. Calvino's if on a winter's night a traveller is another.
So whether Reff and Birkerts and I disagree probably depends on what precisely we're talking about. If Birkerts is claiming that true "L"iterature must affect as well as amuse, then I am with him. If he is claiming that art and not philosophy must provide a "L"iterary text with its motive force, than I am with him. But if he thinks that "moral and psychological nuance" are the only true sources of that power, then he and I part company, and I think that he impoverishes himself of a world of wonders.
I haven't yet read Margaret Atwood's new novel, Oryx and Crake, and may not get a chance to until after my exams, so I can't say whether Sven Birkerts's review is particularly accurate. But some of his other claims in the review seem fairly odd, and may help decide whether the rest of his review should be taken with or without salt.
He writes:
I am going to stick my neck out and just say it: science fiction will never be Literature with a capital ''L,'' and this is because it inevitably proceeds from premise rather than character. It sacrifices moral and psychological nuance in favor of more conceptual matters, and elevates scenario over sensibility. . . If we can put Huxley's ''Brave New World'' in that category -- and I do -- then we are safe in setting this, Atwood's 17th book of fiction, beside it on the shelf.
Why must psychological nuance rather than conceptual nuance be the hallmark of literature? As a die-hard devotee of Vladimir Nabokov's Ada, I beg to differ. (Of course, Ada has both psychological nuance and conceptual nuance, but it definitely "elevates scenario over sensibility." Help me out, Jeremy.)
Obviously, paper-thin characters rarely stock true "L"iterature, but that isn't really the claim that Birkerts makes about Atwood's book. I should think it clear that many wonderful tales of far off places can draw their life from the worlds they create. Brave New World (Modern Library #5) is one such example, 1984 (#13) of course is another. The Lord of the Rings, of course, is another (unless Birkerts wants to being the fantasy/sci-fi argument, which I doubt he does. His "reasoning" seems to apply to both). Now, one can disagree with the Modern Library's assessments (as I do), but it seems hard to claim that their top 25 picks aren't "L"iterature without further argument.
And as further argument goes, "because I say so," doesn't really cut it. So why can't Literature draw life from the world it creates?
As I've noted, I haven't yet read Oryx and Crake, so I have no idea if this criticism is correct as applied to Atwood's book. But The Blind Assassin was so wonderful that I intend to read Oryx and Crake soon.
UPDATE: And here's Jeremy Reff, in a brilliant/brilliantly written post, telling me why I'm wrong. He rightly disentangles the two claims that Birkerts makes, which I failed to do.
Claim one: Science Fiction is always based on concept rather than character.
Claim two: Novels based on concept rather than character are bad.
As we seem to agree, the first claim is simply untrue (unless, of course, one defines Science Fiction so as to make it true by definition) by counterexample. But what of claim two? It seems to me that this depends on what one means by "premise" or "scenario". You won't find me defending the "Literature of Ideas". But you will find me defending the literature of worlds.
Ada's letters breathed, writhed, lived; Van's Letters from Terra, "a philosophical novel," showed no sign of life whatsoever. (I disagree, it's a nice, nice little book! Ada's note.)
Certainly a novel cannot succeed without at least some nuance and intrigue from its inhabitants, but literature breathes (writhes, lives) with examples of novels elevated to "L"iterature because of their setting and style, their "scenario". Marquez's Cien Anos de Soledad is one example. Calvino's if on a winter's night a traveller is another.
So whether Reff and Birkerts and I disagree probably depends on what precisely we're talking about. If Birkerts is claiming that true "L"iterature must affect as well as amuse, then I am with him. If he is claiming that art and not philosophy must provide a "L"iterary text with its motive force, than I am with him. But if he thinks that "moral and psychological nuance" are the only true sources of that power, then he and I part company, and I think that he impoverishes himself of a world of wonders.
Ah, economists:
Steven Landsburg has an essay over at Slate. In "We Find Ourselves. . . Guilty -- Should we punish juries that get it wrong?" he posits an incentive-based system of rewards and fines for juries based on their performance.
For his first example of a "jury that blew it" he provides a case that began twelve years ago in New York. The first time Lemrick Nelson was tried for stabbing Yankel Rosenbaum (presumably to death), he was acquitted. Earlier this week, another jury decided that Nelson did stab Rosenbaum. To be precise, "a federal jury convicted him of violating Rosenbaum's civil rights (though they also seem to have concluded that the stab wounds did not cause Rosenbaum's death)."
I have removed that quote from its important context. The second jury's was preceded by "Nelson's stunning confession that he had in fact stabbed Rosenbaum." In Landsburg's opinion, as he judges by accepted facts, the acquittal was wrong and the conviction right. Juries operate within a world of imperfect information, a concept with which economists are quite familiar. Without the aid of a confession, the first jury did not find Nelson guilty beyond reasonable doubt of the stabbing. Confessions are not foolproof, though. The five boys convicted of raping and beating the Central Park jogger also confessed to the crime? Can Landsburg be so confident that the first jury had sufficient evidence on which to base their decision?
The problem as he sees it, is that "the members of those juries will never be punished for their errors. That means they never had the right incentive to get their verdicts right in the first place." Sigh. Trust an economist to zip right to the equation incentive = $. I don't suppose Landsburg likes senses of public duty, of 'there but for the grace of God go I' (with either the defendant or the victim), or of a love of truth and doing the right thing. Money. That's the ticket. "When subsequent evidence reveals that jurors got the verdict right, send each of them a big fat check. When subsequent evidence reveals they got it wrong, hit each of them with a big fat fine. And if you worry the associated risk will discourage people from serving on juries, pay them each a big fat fee for serving in the first place."
Right. I don't think this is a practical solution [does anyone remember those poor Alabama and Georgia counties that were having great trouble affording defense lawyers? the jury system isn't flooded with cash]. As a policy matter, I think it's even worse. The jury is already making one gamble that they have decided the case correctly. The verdict that they present is a weight upon their conscience -- was the accused really guilty like we said he was? is the person we didn't convict really a dangerous felon who, emboldened, will commit another crime? Under this proposal, the jury has a second gamble to make -- how likely is my verdict to come back and haunt me? Or, how likely is this verdict to be the one that makes me the big bucks? [I hope there would be a statue of limitations, especially on the fine.] Those who like gambling have an additional incentive to serve on juries. On the other side, could a less-bold person chose to opt-out of the entire reward/fine system, or plead the $ as reason why he is not fit to serve on a jury? I'm not sure anyone currently has an incentive to serve on juries, which at least removes one strange bias from the system. I'm also not sure if the pro-gamblers bias affects how likely juries are to be right or wrong, because the ends of gambling and a "correct" verdict are linked. Anyway, as Landsburg admits --
"There would still be some manifest unfairness -- cases where jurors do the best possible job, still get the verdict wrong, and are punished despite their good efforts. But manifest unfairness is part of any good incentive system. You can spend years learning the restaurant business, carefully line up your investors and decorators and kitchen staff, brilliantly fill a market niche -- and still fail because of a stray rat, a random terrorist attack, or a sudden fad for cooking at home." Well, yes, but you *chose* to enter the restaurant business and its risks. Had you ranked job security higher, you might have become a public school teacher. It's rather hard to chose to not accept the burden of serving on a jury. [I suppose you could by chosing to move out of a country with an incentive pay-based jury system. . .]. Also, does the dissenter who couldn't convince the rest of the jury share in their reward or penalty, despite his stated disagreement? I pity the person on a jury of fools.
Sigh... fortunately, Landsburg's only an academic, and willing to put forth ideas, entertaining in theory and frightening in practice.
Update: Eugene Volokh has also added his criticism of Landsburg's proposal to the fire. So too did Will, as I was writing mine, almost directly below this.
Steven Landsburg has an essay over at Slate. In "We Find Ourselves. . . Guilty -- Should we punish juries that get it wrong?" he posits an incentive-based system of rewards and fines for juries based on their performance.
For his first example of a "jury that blew it" he provides a case that began twelve years ago in New York. The first time Lemrick Nelson was tried for stabbing Yankel Rosenbaum (presumably to death), he was acquitted. Earlier this week, another jury decided that Nelson did stab Rosenbaum. To be precise, "a federal jury convicted him of violating Rosenbaum's civil rights (though they also seem to have concluded that the stab wounds did not cause Rosenbaum's death)."
I have removed that quote from its important context. The second jury's was preceded by "Nelson's stunning confession that he had in fact stabbed Rosenbaum." In Landsburg's opinion, as he judges by accepted facts, the acquittal was wrong and the conviction right. Juries operate within a world of imperfect information, a concept with which economists are quite familiar. Without the aid of a confession, the first jury did not find Nelson guilty beyond reasonable doubt of the stabbing. Confessions are not foolproof, though. The five boys convicted of raping and beating the Central Park jogger also confessed to the crime? Can Landsburg be so confident that the first jury had sufficient evidence on which to base their decision?
The problem as he sees it, is that "the members of those juries will never be punished for their errors. That means they never had the right incentive to get their verdicts right in the first place." Sigh. Trust an economist to zip right to the equation incentive = $. I don't suppose Landsburg likes senses of public duty, of 'there but for the grace of God go I' (with either the defendant or the victim), or of a love of truth and doing the right thing. Money. That's the ticket. "When subsequent evidence reveals that jurors got the verdict right, send each of them a big fat check. When subsequent evidence reveals they got it wrong, hit each of them with a big fat fine. And if you worry the associated risk will discourage people from serving on juries, pay them each a big fat fee for serving in the first place."
Right. I don't think this is a practical solution [does anyone remember those poor Alabama and Georgia counties that were having great trouble affording defense lawyers? the jury system isn't flooded with cash]. As a policy matter, I think it's even worse. The jury is already making one gamble that they have decided the case correctly. The verdict that they present is a weight upon their conscience -- was the accused really guilty like we said he was? is the person we didn't convict really a dangerous felon who, emboldened, will commit another crime? Under this proposal, the jury has a second gamble to make -- how likely is my verdict to come back and haunt me? Or, how likely is this verdict to be the one that makes me the big bucks? [I hope there would be a statue of limitations, especially on the fine.] Those who like gambling have an additional incentive to serve on juries. On the other side, could a less-bold person chose to opt-out of the entire reward/fine system, or plead the $ as reason why he is not fit to serve on a jury? I'm not sure anyone currently has an incentive to serve on juries, which at least removes one strange bias from the system. I'm also not sure if the pro-gamblers bias affects how likely juries are to be right or wrong, because the ends of gambling and a "correct" verdict are linked. Anyway, as Landsburg admits --
"There would still be some manifest unfairness -- cases where jurors do the best possible job, still get the verdict wrong, and are punished despite their good efforts. But manifest unfairness is part of any good incentive system. You can spend years learning the restaurant business, carefully line up your investors and decorators and kitchen staff, brilliantly fill a market niche -- and still fail because of a stray rat, a random terrorist attack, or a sudden fad for cooking at home." Well, yes, but you *chose* to enter the restaurant business and its risks. Had you ranked job security higher, you might have become a public school teacher. It's rather hard to chose to not accept the burden of serving on a jury. [I suppose you could by chosing to move out of a country with an incentive pay-based jury system. . .]. Also, does the dissenter who couldn't convince the rest of the jury share in their reward or penalty, despite his stated disagreement? I pity the person on a jury of fools.
Sigh... fortunately, Landsburg's only an academic, and willing to put forth ideas, entertaining in theory and frightening in practice.
Update: Eugene Volokh has also added his criticism of Landsburg's proposal to the fire. So too did Will, as I was writing mine, almost directly below this.
Kozinski:
Dissenting from denial of rehearing, Judge Alex Kozinski writes for many of the 9th circuit's most liberal judges. The case is an interesting one about libel-- the 9th circuit upheld a libel judgment against Consumer Reports, which test-drove a Suzuki Samurai that kept rolling over. They wrote up the rollovers and Suzuki sued, arguing that the testing method (which CR disclosed in the article), was biased, somehow adding up to false statements made with actual malice. Kozinski does a good job of explaining why the ruling should have been overturned, especially since CR's statement (that they ran the Samurai through a tough obstacle course and it tipped over a lot) was true. He also includes his usual-but-good free speech rhetoric:
Dissenting from denial of rehearing, Judge Alex Kozinski writes for many of the 9th circuit's most liberal judges. The case is an interesting one about libel-- the 9th circuit upheld a libel judgment against Consumer Reports, which test-drove a Suzuki Samurai that kept rolling over. They wrote up the rollovers and Suzuki sued, arguing that the testing method (which CR disclosed in the article), was biased, somehow adding up to false statements made with actual malice. Kozinski does a good job of explaining why the ruling should have been overturned, especially since CR's statement (that they ran the Samurai through a tough obstacle course and it tipped over a lot) was true. He also includes his usual-but-good free speech rhetoric:
We don’t hold participants in public debate to Article III standards of impartiality. Nor do we second-guess their investigations as if we were reviewing administrative action under the APA. So long as they don’t lie or recklessly disregard the truth, they can be as unfair and one-sided as they want.
The appropriate response to a poorly designed experiment is to conduct a better one and then convince people that your method is more accurate—not to sue the other guy into silence.
Tampering:
The always-provocative Steven Landsburg suggests that we ought to pay juries for getting correct verdicts and punish them for getting it wrong. Landsburg ought to win the "Unofficial Baude Economic Imperialism Award," for being the only mainstream intellectual I've seen who's even more pro-market than I am. Anyway, he does the prize credit here.
As I'm reading this article, which rehearses the reasons we ought to give juries an incentive to do a good job just like we do to other professionals, I'm thinking to myself, "but who will decide how much the jury ought to get paid for wrong answers versus right ones?" After all, I thought part of the protection that trial by jury afforded was that it was an ultimate check on the vicissitudes of executive, legislature, and judiciary. And just as I'm beginning to think about all the terrible potential abuses this system could suffer as various pols manipulate the incentive system to get tougher on crime as they like (not by catching more guilty people but convicting more, regardless of their guilt), Landsburg comes out and mentions this flaw in his proposal, while audaciously hyping it as a benefit.
Think about this for a minute. The Constitution forbids us from docking a judge's salary if he regularly gets the case "wrong". The pay provision exists for a reason-- because the cost of embracing monetary jury/judge tampering is far greater than the potential benefit of a "better" jury, whatever that means.
The always-provocative Steven Landsburg suggests that we ought to pay juries for getting correct verdicts and punish them for getting it wrong. Landsburg ought to win the "Unofficial Baude Economic Imperialism Award," for being the only mainstream intellectual I've seen who's even more pro-market than I am. Anyway, he does the prize credit here.
As I'm reading this article, which rehearses the reasons we ought to give juries an incentive to do a good job just like we do to other professionals, I'm thinking to myself, "but who will decide how much the jury ought to get paid for wrong answers versus right ones?" After all, I thought part of the protection that trial by jury afforded was that it was an ultimate check on the vicissitudes of executive, legislature, and judiciary. And just as I'm beginning to think about all the terrible potential abuses this system could suffer as various pols manipulate the incentive system to get tougher on crime as they like (not by catching more guilty people but convicting more, regardless of their guilt), Landsburg comes out and mentions this flaw in his proposal, while audaciously hyping it as a benefit.
...it's easy to adjust incentives to get whatever results you want. If there's a general sense that juries are too quick to convict, we can either raise the penalty for a false conviction or lower the penalty for a false acquittal. If they're too quick to acquit, do the opposite. In fact, that's one of the hallmarks of a good incentive system—it's easily tweaked when you want it to work a little differently.
Think about this for a minute. The Constitution forbids us from docking a judge's salary if he regularly gets the case "wrong". The pay provision exists for a reason-- because the cost of embracing monetary jury/judge tampering is far greater than the potential benefit of a "better" jury, whatever that means.
Sex:
Even to libertines like me, this is pretty shocking. One in five teens have had sex before their fifteenth birthday. (Now that I think about it, though, this number does accord with what we discovered using random-answer anonymity in my Stat class last year.) Furthermore, of those teens, two in three kept their parents in the dark about it. On the bright side, "only" one in seven of these teens had gotten pregnant. The older the teen's romantic partner, the more likely he/she was to have sex. On the other hand, about half of these "precocious" teens were not sexually active any more. Whether you interpret that as a good thing or a bad thing depends on the story you tell. On the one hand, for those who think it's bad for young teens to have sex, surely it's better if they have less sex. On the other hand, it seems likely that some had negative sexual experiences that turned them off of sex for a while.
So is that good or bad?
Even to libertines like me, this is pretty shocking. One in five teens have had sex before their fifteenth birthday. (Now that I think about it, though, this number does accord with what we discovered using random-answer anonymity in my Stat class last year.) Furthermore, of those teens, two in three kept their parents in the dark about it. On the bright side, "only" one in seven of these teens had gotten pregnant. The older the teen's romantic partner, the more likely he/she was to have sex. On the other hand, about half of these "precocious" teens were not sexually active any more. Whether you interpret that as a good thing or a bad thing depends on the story you tell. On the one hand, for those who think it's bad for young teens to have sex, surely it's better if they have less sex. On the other hand, it seems likely that some had negative sexual experiences that turned them off of sex for a while.
So is that good or bad?
Childhood desires:
This past Sunday, as I was waiting for the Jeffrey at 57th and Stony Island, I saw a monster truck pull out of a parking lot and gingerly merge onto Cornell Drive. A second monster truck then pulled out, following close behind Grave Digger. All this was cool, but raised many questions: is it legal to drive those in Hyde Park? where, why, how? can I try? is there clearance for that to pull into the parking garage under the MSI?
The Museum of Science and Industry has a special exhibit on monster trucks this summer. It starts Friday and lasts through September 1. When I was in preschool, ads for monster truck rallys were often broadcast during Saturday morning cartoons. I wanted to go, but my parents never took me. So, I'll just check out the MSI's version instead.
This past Sunday, as I was waiting for the Jeffrey at 57th and Stony Island, I saw a monster truck pull out of a parking lot and gingerly merge onto Cornell Drive. A second monster truck then pulled out, following close behind Grave Digger. All this was cool, but raised many questions: is it legal to drive those in Hyde Park? where, why, how? can I try? is there clearance for that to pull into the parking garage under the MSI?
The Museum of Science and Industry has a special exhibit on monster trucks this summer. It starts Friday and lasts through September 1. When I was in preschool, ads for monster truck rallys were often broadcast during Saturday morning cartoons. I wanted to go, but my parents never took me. So, I'll just check out the MSI's version instead.
The Wrong Originalist:
Matthew Yglesias is barking up the wrong originalist, in my opinion. Weighing in on Solum v. Balkin. He criticizes Scalia's approach to formalist judging on the groudns that Scalia isn't sufficiently deferential to precedent. I think this is misguided. Justice Scalia is quite deferential to precedent, except in extreme cases (when nobody is, even Chief Justice Rehnquist) or when the rule established by precedent is "unworkable" (also known as "unintelligible"). Thus Justice Scalia refuses to uphold Planned Parenthood v. Casey because he has no legal test to determine when a burden is "undue". (Try to make one up yourself). Justice Thomas, on the other hand, takes a much dimmer view of stare decisis (which is the doctrine at issue in this argument), and often annoucnes in dissent or concurrence that he thinks the entire line of cases at issue is misguided and should be done over.
The clearest elucidation of this difference is in the recent case Ewing v. California, which dealt with the question of whether a California three-strikes-you're-out law violated an implied guarantee of proportionality in the Eight Amendment.
Justice Scalia wrote, in concurrence:
Justice Thomas, on the other hand, wrote:
Mr. Yglesias acknowledges that he hasn't read enough Supreme Court cases to be able to speak to the practice of Justice Scalia's judging rather than its theory. I assure him that if he did, he would find that Justice Thomas is the one who practices the theory he describes, not Justice Scalia.
Yglesias goes on to explain his critique by writing:
But as principled originalists, students of principled originalists, and regular readers of this blog know, there are two other reasons to be a formalist (which I'll try to rephrase more clearly in a later post responding to Jack Balkin). If justices are making policy choices rather than textual/legal ones, why should they be entitled to overturn congressional statutes? Marshall's opinion in Marbury v. Madison relied upon the Court interpreting the Constitution as if it were an uber-statute, not a charter for making the world a better place. Indeed, I had thought that was what Congress and the President were supposed to do. And furthermore, if justices are making moral and political choices rather than legal ones, why leave the job to lawyers? The American people are not fools. If high-politics is the game, it is quickly going to become low-politics.
Put another away: Formalism is not valuable only for its predictability. You get predictability by a rock-hard view of stare decisis. The appeals of formalism include the institutional legitimacy of the Court and the attempt to keep the Court free from low political politics. You can argue, as Yglesias perhaps will, that the Court's institutional legitimacy at this point is not much in question, and that it's not so bad if the Court begins to be filled with the likes of Bill Clinton and George W. Bush (popular national political figures, both are still lawyers). But think about the decision in Bush v. Gore; a single decision which seemed to be a case of nothing but low politics scarred the credibility of the Court for a long time. If it started doing that on a regular basis, I suspect people would stop listening to the court. People didn't use to line up outside of the court protesting its decisions.
Matthew Yglesias is barking up the wrong originalist, in my opinion. Weighing in on Solum v. Balkin. He criticizes Scalia's approach to formalist judging on the groudns that Scalia isn't sufficiently deferential to precedent. I think this is misguided. Justice Scalia is quite deferential to precedent, except in extreme cases (when nobody is, even Chief Justice Rehnquist) or when the rule established by precedent is "unworkable" (also known as "unintelligible"). Thus Justice Scalia refuses to uphold Planned Parenthood v. Casey because he has no legal test to determine when a burden is "undue". (Try to make one up yourself). Justice Thomas, on the other hand, takes a much dimmer view of stare decisis (which is the doctrine at issue in this argument), and often annoucnes in dissent or concurrence that he thinks the entire line of cases at issue is misguided and should be done over.
The clearest elucidation of this difference is in the recent case Ewing v. California, which dealt with the question of whether a California three-strikes-you're-out law violated an implied guarantee of proportionality in the Eight Amendment.
Justice Scalia wrote, in concurrence:
In my concurring opinion in Harmelin v. Michigan, 501 U. S. 984, 985 (1991), I concluded that the Eighth Amendment’s prohibition of “cruel and unusual punishments” was aimed at excluding only certain modes of punishment, and was not a “guarantee against disproportionate sentences.” Out of respect for the principle of stare decisis, I might nonetheless accept the contrary holding of Solem v. Helm, 463 U. S. 277 (1983)—that the Eighth Amendment contains a narrow proportionality principle— if I felt I could intelligently apply it.
Justice Thomas, on the other hand, wrote:
I agree with Justice Scalia’s view that the proportionality test announced in Solem v. Helm, 463 U. S. 277 (1983), is incapable of judicial application. Even were Solem’s test perfectly clear, however, I would not feel compelled by stare decisis to apply it. In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle.
Mr. Yglesias acknowledges that he hasn't read enough Supreme Court cases to be able to speak to the practice of Justice Scalia's judging rather than its theory. I assure him that if he did, he would find that Justice Thomas is the one who practices the theory he describes, not Justice Scalia.
Yglesias goes on to explain his critique by writing:
This critique, of course, depends on an instrumental account of why one should be a formalist (namely, that it enhances predictability), but I'm not sure what other kind of account could be offered. The main alternative to an instrumental defense would, it seems to me, be a Platonist that says "you should be a formalist of type X because X-formalism uniquely reveals what The Law really is." If you defend formalism and Platonistic grounds, however, then I think a thorough-going instrumentalism starts to look attractive. . . One could, of course, offer an instrumental defense of formalism that didn't apply to the value of predictability and therefore didn't generate the conclusion that adherence to precedent should be paramount. But this, I think, would have to take the form of saying that you should be a formalist of type X because X-formalism will, on the whole, produce better policy outcomes than the alternatives.
But as principled originalists, students of principled originalists, and regular readers of this blog know, there are two other reasons to be a formalist (which I'll try to rephrase more clearly in a later post responding to Jack Balkin). If justices are making policy choices rather than textual/legal ones, why should they be entitled to overturn congressional statutes? Marshall's opinion in Marbury v. Madison relied upon the Court interpreting the Constitution as if it were an uber-statute, not a charter for making the world a better place. Indeed, I had thought that was what Congress and the President were supposed to do. And furthermore, if justices are making moral and political choices rather than legal ones, why leave the job to lawyers? The American people are not fools. If high-politics is the game, it is quickly going to become low-politics.
Put another away: Formalism is not valuable only for its predictability. You get predictability by a rock-hard view of stare decisis. The appeals of formalism include the institutional legitimacy of the Court and the attempt to keep the Court free from low political politics. You can argue, as Yglesias perhaps will, that the Court's institutional legitimacy at this point is not much in question, and that it's not so bad if the Court begins to be filled with the likes of Bill Clinton and George W. Bush (popular national political figures, both are still lawyers). But think about the decision in Bush v. Gore; a single decision which seemed to be a case of nothing but low politics scarred the credibility of the Court for a long time. If it started doing that on a regular basis, I suspect people would stop listening to the court. People didn't use to line up outside of the court protesting its decisions.
Saturday, May 17, 2003
Judicial Review:
Matthew Yglesias thinks that judicial review is undesirable because it gives us messy confirmation battles without necessarily securing us more rights.
Two thoughts:
First, he ignores the possibility of a middle ground, a middle ground which the judiciary occupied for many years. Our judiciary engaged in judicial review without engaging in broad, liberal, readings of the constitution. This did not protect as many individual rights, but it certainly protected some, and people certainly weren't lining up outside of the Supreme Court to protest. Only the relatively recent era has changed that. So it's not necessary to give up judicial review to avoid confirmation battles, though it is necessary to give up fairly un-predictable enforcements of substantive due process. Of course, maybe Yglesias thinks it isn't worth keeping judicial review around without substantive due process, or maybe he thinks that there's no incentive-compatible way to stop errant judges without taking their power away altogether.
But is this even the right way to approach the question? Does it make sense to ask which branch has been "protecting our rights" the most, and take away the power to do so from the one that hasn't been? I had thought that the idea of the courts was that they were supposed to figure out "the law," in whatever objective sense that it existed. The framers of the Constitution certainly envisioned that our constitution was going to need more teeth than England's had, for example. That's why they wrote the thing down. Does it make sense to ask the court to engage in political theory as well as legal theory? Maybe, but maybe they don't have the institutional capacity to do that well.
All of this comes on the heels of Jeffrey Rosen's article in the New Republic, complaining that courts have been cowardly and failed to protect privacy rights in a fit of flag-waving. But he also acknowledges that the courts don't really have a constitutional hook to hang their hats upon. I'm not sure what really bothers Rosen and Yglesias here. There's a desirable liberty, not specifically mandated by the constitution, and Congress-- though it has the power to trample on that liberty if it wants to, just like the court does-- has wisely chosen to give that liberty some respect.
When a legislature respects a right by, for example, not prohibiting abortion, people often feel insecure that their right may disappear at the next majority vote. But when the court protects a right merely on "substantive due process" groudns, the right is just as insecure. And when the court decides to reconsider your rights, you don't even get to vote..
Matthew Yglesias thinks that judicial review is undesirable because it gives us messy confirmation battles without necessarily securing us more rights.
Two thoughts:
First, he ignores the possibility of a middle ground, a middle ground which the judiciary occupied for many years. Our judiciary engaged in judicial review without engaging in broad, liberal, readings of the constitution. This did not protect as many individual rights, but it certainly protected some, and people certainly weren't lining up outside of the Supreme Court to protest. Only the relatively recent era has changed that. So it's not necessary to give up judicial review to avoid confirmation battles, though it is necessary to give up fairly un-predictable enforcements of substantive due process. Of course, maybe Yglesias thinks it isn't worth keeping judicial review around without substantive due process, or maybe he thinks that there's no incentive-compatible way to stop errant judges without taking their power away altogether.
But is this even the right way to approach the question? Does it make sense to ask which branch has been "protecting our rights" the most, and take away the power to do so from the one that hasn't been? I had thought that the idea of the courts was that they were supposed to figure out "the law," in whatever objective sense that it existed. The framers of the Constitution certainly envisioned that our constitution was going to need more teeth than England's had, for example. That's why they wrote the thing down. Does it make sense to ask the court to engage in political theory as well as legal theory? Maybe, but maybe they don't have the institutional capacity to do that well.
All of this comes on the heels of Jeffrey Rosen's article in the New Republic, complaining that courts have been cowardly and failed to protect privacy rights in a fit of flag-waving. But he also acknowledges that the courts don't really have a constitutional hook to hang their hats upon. I'm not sure what really bothers Rosen and Yglesias here. There's a desirable liberty, not specifically mandated by the constitution, and Congress-- though it has the power to trample on that liberty if it wants to, just like the court does-- has wisely chosen to give that liberty some respect.
When a legislature respects a right by, for example, not prohibiting abortion, people often feel insecure that their right may disappear at the next majority vote. But when the court protects a right merely on "substantive due process" groudns, the right is just as insecure. And when the court decides to reconsider your rights, you don't even get to vote..
Oh Dear Me:
(Via Diotima) The Independent Women's Forum has decided to take its fights to the courts, on the grounds that "liberal feminist groups 'have been smart' in recent years about avoiding legislative fights and instead have focused on advancing their agenda through the courts and in colleges and universities."
Sara Butler thinks this is "cool". I think this is awful. Now, I know that in an adversarial court system it's to be expected, and once one branch of interest groups have taken to the courts, it's unreasonable to expect the other branch not to. But at some point it would be great to call a cease-fire, so the court can get back to doing lawyers' work, rather than politicians'. Justice Scalia's words apply to both sides:
(Via Diotima) The Independent Women's Forum has decided to take its fights to the courts, on the grounds that "liberal feminist groups 'have been smart' in recent years about avoiding legislative fights and instead have focused on advancing their agenda through the courts and in colleges and universities."
Sara Butler thinks this is "cool". I think this is awful. Now, I know that in an adversarial court system it's to be expected, and once one branch of interest groups have taken to the courts, it's unreasonable to expect the other branch not to. But at some point it would be great to call a cease-fire, so the court can get back to doing lawyers' work, rather than politicians'. Justice Scalia's words apply to both sides:
In truth, I am as distressed as the Court is . . . about the political pressure directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today's opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls "reasoned judgment," which turns out to be nothing but philosophical predilection and moral intuition. . . . What makes all this relevant to the bothersome application of "political pressure" against the Court are the twin facts that the American people love democracy and the American people are not fools.
As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here--reading text and discerning our society's traditional understanding of that text--the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text . . . if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school--maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.
Why Bother?:
Matthew Yglesias defends Charles Schumer from Instapundit's charge of hypocrisy, attracting himself a good 52 comments in the process. Schumer, it turns out, has an armed bodyguard to protect him, and Yglesias points out that this guy is an NYPD detective, so wouldn't be covered by gun control laws.
Does that matter? I think both Yglesias and Schumer ignore the general principle of mutual disarmament. Maybe Schumer wouldn't need a gunman to protect himself if other people's guns weren't so prevalent. It seems to me that asking for a gun control measure is no more hypocritical than when the U.S. and Russia sign nuclear non-proliferation treaties (if we only followed them!).
Indeed, the fact that the guy is an NYPD detective makes it a little worse, in my opinion. Now Schumer is not saying "I need a guy with a gun to protect me and I wish I didn't," but rather, "my guy's gun can be trusted. you can't." Now, in general Schumer is more pro-gun than many Democrats are, but he's inconsistent on this point, so I don't know exactly what kind of gun measures he supports.
But in general, there's nothing hypocritical about trying to get a law to stop conduct that you also engage in. Indeed, it's a classic way of solving the tragedy of the commons.
Matthew Yglesias defends Charles Schumer from Instapundit's charge of hypocrisy, attracting himself a good 52 comments in the process. Schumer, it turns out, has an armed bodyguard to protect him, and Yglesias points out that this guy is an NYPD detective, so wouldn't be covered by gun control laws.
Does that matter? I think both Yglesias and Schumer ignore the general principle of mutual disarmament. Maybe Schumer wouldn't need a gunman to protect himself if other people's guns weren't so prevalent. It seems to me that asking for a gun control measure is no more hypocritical than when the U.S. and Russia sign nuclear non-proliferation treaties (if we only followed them!).
Indeed, the fact that the guy is an NYPD detective makes it a little worse, in my opinion. Now Schumer is not saying "I need a guy with a gun to protect me and I wish I didn't," but rather, "my guy's gun can be trusted. you can't." Now, in general Schumer is more pro-gun than many Democrats are, but he's inconsistent on this point, so I don't know exactly what kind of gun measures he supports.
But in general, there's nothing hypocritical about trying to get a law to stop conduct that you also engage in. Indeed, it's a classic way of solving the tragedy of the commons.
Friday, May 16, 2003
Okay, Okay:
Jeremy Reff pretty effectively dismantles any grammatical opposition to the PSAT Toni Morrison sentence.
Jeremy Reff pretty effectively dismantles any grammatical opposition to the PSAT Toni Morrison sentence.
No Chance:
Matthew Yglesias asks how we can be more like other countries when it comes to judicial appointments. My understanding of comparative constitutional law is relatively incomplete, but my understanding is that nowhere else gives The Court the same vast power that we do to overturn regulations that violate the Constitution. That power of judicial review is, of course, the best argument for originalist/textualist interpretations of the Constitution.
Matthew Yglesias asks how we can be more like other countries when it comes to judicial appointments. My understanding of comparative constitutional law is relatively incomplete, but my understanding is that nowhere else gives The Court the same vast power that we do to overturn regulations that violate the Constitution. That power of judicial review is, of course, the best argument for originalist/textualist interpretations of the Constitution.
I hate blogger:
I had a long post about hazing, but blogger ate it. Here we go:
1: My op-ed in today's maroon called "Courts should punish hazers"
2: A story in today's Chicago Tribune called "Criminal charges set in Glenbrook North hazing"
3: Eric Zorn's column from yesterday.
4: A story from yesterday's Tribune called "Judge refuses to block suspensions over hazing".
The school is only pressing charges on half of the people it suspended. For reasons I discuss in my op-ed, I think it ought not suspend anybody at all, but if it's going to suspend people, it shouldn't suspend anybody it isn't willing to press charges against. The list of prohibited conduct that includes hazing also includes "public displays of affection," and mentions nothing about jurisdiction. Can the school punish me for kissing a girl in the movie theater? The school is planning to suspend some of the juniors-- the victims-- involved. That's about as sensical as The Air Force giving "marie" "sex in the dorm" demerits for being raped. Finally, the claim that students were on fair notice that their out-of-school conduct would be punished under school rules is pretty strange. Riggle himself didn't think that their conduct could be punished until last week. If the school is under any requirement to make sure that students understand its strange jurisdictional games, it has failed to meet that requirement.
It's wrong to beat people up and throw blood and pig intestines at them. But the school's urge to "do something" has caused it to do everything wrong.
I had a long post about hazing, but blogger ate it. Here we go:
1: My op-ed in today's maroon called "Courts should punish hazers"
2: A story in today's Chicago Tribune called "Criminal charges set in Glenbrook North hazing"
3: Eric Zorn's column from yesterday.
4: A story from yesterday's Tribune called "Judge refuses to block suspensions over hazing".
The school is only pressing charges on half of the people it suspended. For reasons I discuss in my op-ed, I think it ought not suspend anybody at all, but if it's going to suspend people, it shouldn't suspend anybody it isn't willing to press charges against. The list of prohibited conduct that includes hazing also includes "public displays of affection," and mentions nothing about jurisdiction. Can the school punish me for kissing a girl in the movie theater? The school is planning to suspend some of the juniors-- the victims-- involved. That's about as sensical as The Air Force giving "marie" "sex in the dorm" demerits for being raped. Finally, the claim that students were on fair notice that their out-of-school conduct would be punished under school rules is pretty strange. Riggle himself didn't think that their conduct could be punished until last week. If the school is under any requirement to make sure that students understand its strange jurisdictional games, it has failed to meet that requirement.
It's wrong to beat people up and throw blood and pig intestines at them. But the school's urge to "do something" has caused it to do everything wrong.
Don't cave in to modern fashion, dear Brits:
According to this report from the NYT, for the next few months the British public can vote in a poll on whether lawyers and judges should continue wearing the gown and wigs. The Lord Chancellor's Office has the survey questions, followed by an appendix with photos, available as a pdf here ["Public Opinion Survey -- Public Perceptions of Working Court Dress in England and Wales (ORC International)" under the header "Court Working Dress Consultation Paper"]. I won't comment on the survey, since it's late and I didn't bother reading it, but the wigs do seem to look the best on an Inspector Rumpole or Ruth Ginsburg figure. Ah well. No one expects them to look natural (yes, but do they distract from the dignity of the court?).
According to this report from the NYT, for the next few months the British public can vote in a poll on whether lawyers and judges should continue wearing the gown and wigs. The Lord Chancellor's Office has the survey questions, followed by an appendix with photos, available as a pdf here ["Public Opinion Survey -- Public Perceptions of Working Court Dress in England and Wales (ORC International)" under the header "Court Working Dress Consultation Paper"]. I won't comment on the survey, since it's late and I didn't bother reading it, but the wigs do seem to look the best on an Inspector Rumpole or Ruth Ginsburg figure. Ah well. No one expects them to look natural (yes, but do they distract from the dignity of the court?).
Thursday, May 15, 2003
Commodities:
On treating housewives as workforce, Sara Butler writes:
I'm not saying that I think commodification is bad (I don't). But the proposition that doesn't make sense to Sara seems logical to me. It's often perfectly logical, even right, to criticize a system while simultaneously acknowledging that it's useless to buck the system in this small way. Many politicans who voted for McCain-Feingold accepted soft money, for example. And Clarence Thomas, who probably benefitted from affirmative action (this is up for debate), has expressed quite a bit of hostility to it.
In other words, commodification is a problem. But non-commodification is an even bigger problem if the world moves in commodities. Communist newspapers buy paper on the market.
On treating housewives as workforce, Sara Butler writes:
It just doesn't make sense to me that you would basically criticize our society as only valuing money, and then offer as a solution putting a monetary value on something like motherhood. If the problem is commodification, how is making motherhood just another commodity solving anything?
I'm not saying that I think commodification is bad (I don't). But the proposition that doesn't make sense to Sara seems logical to me. It's often perfectly logical, even right, to criticize a system while simultaneously acknowledging that it's useless to buck the system in this small way. Many politicans who voted for McCain-Feingold accepted soft money, for example. And Clarence Thomas, who probably benefitted from affirmative action (this is up for debate), has expressed quite a bit of hostility to it.
In other words, commodification is a problem. But non-commodification is an even bigger problem if the world moves in commodities. Communist newspapers buy paper on the market.
Morrison & grammar:
"Toni Morrison's genius enables her to create novels that arise from and express the injustices African Americans have endured."
Volokh asks if the above sentence is actually grammatically incorrect.
It seems that whether or not this sentence is grammatically correct depends on the context in which it is found.
On the PSAT, the sentence stood alone. If the sentence came at the end of the following short passage, I *think* it would have been unquestionably correct:
"Toni Morrison has won both the 1993 Nobel Prize for Literature and the Pulitzer Prize for Beloved. Her other works include Sula, The Bluest Eye, and Song of Solomon. Toni Morrison's genius enables her to create novels that arise from and express the injustices African Americans have endured."
Within this hypothetical passage, the third sentence's suspect her refers to an antecedent from the first sentence. There are no problems with clarity because only one woman is mentioned, and she was mentioned and referred to sufficiently recently that the reader does not need to be reminded of her name.
As the sentence was written on the PSAT. . . aie. . . I'm torn between my desire to retain strict rules of grammar and my gut reaction that the sentence was both perfectly clear and grammatical in many circumstances.
UPDATE: After reading some other posts on this matter, it seems perfectly illogical that a sentence's correctness would depend on its context -- as the purported rule suggested. Nor is this a case of a dangling modifier ("Thanks to her genius, she can..." would be incorrect). I remove any doubt that the sentence was correct as written.
"Toni Morrison's genius enables her to create novels that arise from and express the injustices African Americans have endured."
Volokh asks if the above sentence is actually grammatically incorrect.
It seems that whether or not this sentence is grammatically correct depends on the context in which it is found.
On the PSAT, the sentence stood alone. If the sentence came at the end of the following short passage, I *think* it would have been unquestionably correct:
"Toni Morrison has won both the 1993 Nobel Prize for Literature and the Pulitzer Prize for Beloved. Her other works include Sula, The Bluest Eye, and Song of Solomon. Toni Morrison's genius enables her to create novels that arise from and express the injustices African Americans have endured."
Within this hypothetical passage, the third sentence's suspect her refers to an antecedent from the first sentence. There are no problems with clarity because only one woman is mentioned, and she was mentioned and referred to sufficiently recently that the reader does not need to be reminded of her name.
As the sentence was written on the PSAT. . . aie. . . I'm torn between my desire to retain strict rules of grammar and my gut reaction that the sentence was both perfectly clear and grammatical in many circumstances.
UPDATE: After reading some other posts on this matter, it seems perfectly illogical that a sentence's correctness would depend on its context -- as the purported rule suggested. Nor is this a case of a dangling modifier ("Thanks to her genius, she can..." would be incorrect). I remove any doubt that the sentence was correct as written.
Morrison:
A David Skinner piece takes the PSAT board to task for a badly worded question on Toni Morrison. But then he needlessly decides to take shots at Morrison's work.
The move to equate "Toni Morrison" with "Beloved" is pretty unwarranted-- especially since he announces that the work is her "most pretentious and self-indulgent." Skinner essentially takes a bad argument, then puts it into his opponent's mouth. Straw men may make for good sophistry, but they make for pretty lousy argument. He entirely fails to consider, for example, Song of Solomon, or Jazz, or The Bluest Eye, all of which explore interesting themes about black life. My tolerance for leftist literature is probably lower than most and even I have enjoyed reading much of her work.
Skinner's claim is like saying that Beethoven can't be any good because his Fifth Symphony is trite, overplayed, sterile, and lacks subtlety. It's a mistake to even bother to debate the claim on its own terms. Just like Beethoven, Morrison has her Ninth, her Sixth, her Seventh. Once could even, perhaps, craft a new PSAT question out of Skinner's critique.
I'm not saying that you can't have a theory of literary interpretation that demands that geniuses never produce bad books. But if you do, you should be explicit that that's what you're doing. And then you should try to defend Shakespeare's Pericles.
A David Skinner piece takes the PSAT board to task for a badly worded question on Toni Morrison. But then he needlessly decides to take shots at Morrison's work.
Is Toni Morrison a genius? The argument that she is rests almost entirely on the qualities of "Beloved," her most celebrated work, but also her most pretentious and self-indulgent. Incidentally, even as an evocation of the injustices of slavery, it is thoroughly incoherent.
There are many other strikes against the novel. The prose is often impenetrable; the story's digressions, unfollowable; the governing metaphor of the story, tortured to within an inch of its life. The elevation of Beloved to the status of great modern novel represents just the kind of faddish, racialist, wishful thinking that our educational institutions should be guarding against, rather than enshrining as conventional wisdom in national aptitude exams.
The move to equate "Toni Morrison" with "Beloved" is pretty unwarranted-- especially since he announces that the work is her "most pretentious and self-indulgent." Skinner essentially takes a bad argument, then puts it into his opponent's mouth. Straw men may make for good sophistry, but they make for pretty lousy argument. He entirely fails to consider, for example, Song of Solomon, or Jazz, or The Bluest Eye, all of which explore interesting themes about black life. My tolerance for leftist literature is probably lower than most and even I have enjoyed reading much of her work.
Skinner's claim is like saying that Beethoven can't be any good because his Fifth Symphony is trite, overplayed, sterile, and lacks subtlety. It's a mistake to even bother to debate the claim on its own terms. Just like Beethoven, Morrison has her Ninth, her Sixth, her Seventh. Once could even, perhaps, craft a new PSAT question out of Skinner's critique.
Find the flaw(s), if any, in this pseudo-syllogism:
1: ETS says nothing about Beloved, but says that Toni Morrison is a genius.
2: Beloved is Toni Morrison's most pretentious work.
3: Beloved is incoherent.
4: Therefore (1, 2, and 3)ETS is wrong, and Toni Morrison is not a genius.
I'm not saying that you can't have a theory of literary interpretation that demands that geniuses never produce bad books. But if you do, you should be explicit that that's what you're doing. And then you should try to defend Shakespeare's Pericles.
Here, Here!:
I also agree with Amy's other post. So long as we're making up Constitutional provisions (an exercise with much to recommend it, I confess), why not drag some economic rights back into it? But the problem isn't just unbalanced budgets. Our government can probably take on a lot more debt than most of us realize, and it may not be entirely unreasonable to assume that human technological progress will provide an almost endless series of life supports for tax-and-spend policies.
All the same, eventually one does have to pay the piper. The tech-boom of the nineties is exacting its toll now, although the toll is probably dwarfed by the boons of the boom. Balanced budgets are only part of the problem, and it's not clear we'd want to encourage congress to declare war on somebody whenever there was a financial crisis (would Congress do this? Don't bet against it. There are a lot of wars of choice out there in the world, and if the only way to save 500 million dollars of pork is to liberate Syria, we very well might). At the same time, I do agree that the wartime exception is probably necessary.
So I'll argue that nothing is that bad about government debt-- after all, it only happens when people think the government is a worthwhile investment. But the fact that it's impossible to run on a "cut spending" platform is. What about a constitutional amendment, posited a while back at the Volokh Conspiracy, that put a seven-year sunset provision on all spending programs?
I also agree with Amy's other post. So long as we're making up Constitutional provisions (an exercise with much to recommend it, I confess), why not drag some economic rights back into it? But the problem isn't just unbalanced budgets. Our government can probably take on a lot more debt than most of us realize, and it may not be entirely unreasonable to assume that human technological progress will provide an almost endless series of life supports for tax-and-spend policies.
All the same, eventually one does have to pay the piper. The tech-boom of the nineties is exacting its toll now, although the toll is probably dwarfed by the boons of the boom. Balanced budgets are only part of the problem, and it's not clear we'd want to encourage congress to declare war on somebody whenever there was a financial crisis (would Congress do this? Don't bet against it. There are a lot of wars of choice out there in the world, and if the only way to save 500 million dollars of pork is to liberate Syria, we very well might). At the same time, I do agree that the wartime exception is probably necessary.
So I'll argue that nothing is that bad about government debt-- after all, it only happens when people think the government is a worthwhile investment. But the fact that it's impossible to run on a "cut spending" platform is. What about a constitutional amendment, posited a while back at the Volokh Conspiracy, that put a seven-year sunset provision on all spending programs?
Some Meager Common Ground:
I'm glad to be travelling in Ms. Lamboley's esteemed ideological company once again. (Erp. Was that post a monster? Apologies.) I agree that my proposition doesn't do a white about apathy and may make it worse, though I think (empirical question) it might have some effect on the "lack of opportunities," in certain areas, since it gives at least some incentive to create those opportunities.
As to parents . . . I ignored them on purpose. I have no idea who-- on balance-- ought to make education decisions. The standard answer is that the parents do until the kid is 18, at least within some extremely wide limits. Frankly, I'm not entirely comfortable with this, but not for any reason unique to schools. This really gets at a larger question-- one of the three or four that pretty regularly keeps me up nights. What ought to be the legal relationship between parent and child? Does it make sense to have our clear-cut if utterly arbitrary system? Would a more striated system make more sense, with different choices and rights becoming available at different ages? What is our system of child law designed to protect? And from what?
Frankly, I don't have answers. Just a lot of questions.
I'm glad to be travelling in Ms. Lamboley's esteemed ideological company once again. (Erp. Was that post a monster? Apologies.) I agree that my proposition doesn't do a white about apathy and may make it worse, though I think (empirical question) it might have some effect on the "lack of opportunities," in certain areas, since it gives at least some incentive to create those opportunities.
As to parents . . . I ignored them on purpose. I have no idea who-- on balance-- ought to make education decisions. The standard answer is that the parents do until the kid is 18, at least within some extremely wide limits. Frankly, I'm not entirely comfortable with this, but not for any reason unique to schools. This really gets at a larger question-- one of the three or four that pretty regularly keeps me up nights. What ought to be the legal relationship between parent and child? Does it make sense to have our clear-cut if utterly arbitrary system? Would a more striated system make more sense, with different choices and rights becoming available at different ages? What is our system of child law designed to protect? And from what?
Frankly, I don't have answers. Just a lot of questions.
Wednesday, May 14, 2003
Schools
Having read Will's monster post on schools, I do not disagree with him. In fact, I would be pleased to see what he suggests become national policy. I just don't think it will solve the problem of inner-city, poor students largely attending, through apathy, convenience, or lack of access to truly good options, substandard schools.
Also, I notice that not once in his lengthy discourse does Will mention parents, people generally considered to play a crucial role in the succss of a child's education. I would be curious indeed to know what role Will envisions for them.
Having read Will's monster post on schools, I do not disagree with him. In fact, I would be pleased to see what he suggests become national policy. I just don't think it will solve the problem of inner-city, poor students largely attending, through apathy, convenience, or lack of access to truly good options, substandard schools.
Also, I notice that not once in his lengthy discourse does Will mention parents, people generally considered to play a crucial role in the succss of a child's education. I would be curious indeed to know what role Will envisions for them.
The Bank of Our Children's Future
Matthew Yglesias has pointed out a gimmick by Senator Lautenberg to draw attention to the danger of Bush's deficit spending, and complains that the Democrats haven't done enough to appeal to people's self-interest by pointing out that deficit spending will result in problems in many of their lifetimes also. It's not the lack of appeal to self-interest that dooms this appeal, rather it's the classic boy who cried wolf problem. I remember back in 1992 when the deficit was only $4 trillion and Ross Perot was warning of dire consequences by the year 2000 if spending continued unabated. Then the tech boom came along, and none of his predictions came true. People who have been politically conscious for longer than I have probably remember more examples of warnings of dire financial meltdowns in store for our country that have all been averted due to clever policies and fortuitious economic upturns. Hence, while they recognize that the deficit is a problem, they believe that next time, just like all the other times, the economy will turn around, or some politician will come up with a clever plan to put off the day of reckoning, and that this patter can continue indefinitely.
Obviously this is sheer lunacy, but who wants to run on a platform of tax increases and spending cuts? It's almost enough to make one wish that somehow the Supreme Court could rule unbabanced peacetime budgets unconstitutional.
Matthew Yglesias has pointed out a gimmick by Senator Lautenberg to draw attention to the danger of Bush's deficit spending, and complains that the Democrats haven't done enough to appeal to people's self-interest by pointing out that deficit spending will result in problems in many of their lifetimes also. It's not the lack of appeal to self-interest that dooms this appeal, rather it's the classic boy who cried wolf problem. I remember back in 1992 when the deficit was only $4 trillion and Ross Perot was warning of dire consequences by the year 2000 if spending continued unabated. Then the tech boom came along, and none of his predictions came true. People who have been politically conscious for longer than I have probably remember more examples of warnings of dire financial meltdowns in store for our country that have all been averted due to clever policies and fortuitious economic upturns. Hence, while they recognize that the deficit is a problem, they believe that next time, just like all the other times, the economy will turn around, or some politician will come up with a clever plan to put off the day of reckoning, and that this patter can continue indefinitely.
Obviously this is sheer lunacy, but who wants to run on a platform of tax increases and spending cuts? It's almost enough to make one wish that somehow the Supreme Court could rule unbabanced peacetime budgets unconstitutional.
Double-Life:
My Brother appears to be jumping ship for another group-blog. At least for the time being, he will hopefully continue to muse here as well.
My Brother appears to be jumping ship for another group-blog. At least for the time being, he will hopefully continue to muse here as well.
Completing the Picture:
Kathleen points out that " there are only so many 'working' schools and if they're not full they may require putting your 8-year-old daughter on the subway for an hour and a half." Amy notes that "Nevertheless, the two best schools were among the smallest, and the worst schools the largest, and the best schools worked quite hard to keep it that way," and "No matter what program we enact, so long as "failing" is defined relatively, the incentive will always be merely to stay off the very bottom of the list." Amanda chimes in that "Elementary and secondary public schools have far more constraints when it comes to increasing enrollment. . . There's only a fixed number of classrooms, large-sized closets, and auditorium stages that can be used to house classes."
Anecdotal evidence is interesting, and can even be informative. But it's a tool to understanding the larger picture. It's certainly not the larger picture in and of itself. It's very difficult to make a coherent policy recommendation just by thinking about a couple of examples that one has at hand. At any rate, here's my modest proposal for how to make school choice work, which picks up the link missing from my previous post-- market entry (which is to say, school creation).
Step One: Allow students to choose their school, subject to whatever constraints-- maybe you require integrated schools, maybe you require schools to accept all comers, maybe you require students to pick a school with certain characteristics. We can debate this.
Step Two: Apportion school funding largely based on student enrollment. One can make allowances here-- if one school has a program that provides a significant benefit to the other ones, like an expansive open library, a set of rare AP classes with transfer rights, or a district-wide sports team, maybe it gets some extra funding. Of course, the Coase Theorem suggests that the government probably doesn't need to provide the funding, and the schools could work out such deals among themselves.
Step Three: Allow people other than the government to set up accredited schools at which students can enroll, subject to the funding and apportionment rules above. Again, this could be subject to various regulations and restrictions-- new schools could also be required to racially integrate, or to accept all comers perhaps, or maybe install a neutral selection mechanism.
Step Four: Create some mechanism that independent media organizations can use to assess schools; allow them to issue tests, perhaps, and make searches and do interviews of staff and students. Let them publish their results, possibly subsidize the publication.
Step Five: Let the market work.
Before you dismiss the idea, please think about it. Once you've decided I'm crazy, ask yourself if there's some small flaw, some detail I've missed, that could placate you. Maybe not. If not, let me know and let me know why.
The idea is this-- "failing" must be defined not only relatively, but subjectively. Some kids want AP Chem class. Some don't. Some kids want a lot of classes on industrial design, and don't really want to go far from their house, because they don't want to take calculus. Some kids will trade caving ceiling tiles for a football team. Other kids have asthma, so have to avoid the tiles, and couldn't make the cut for the football team anyway. In this system, children transfer from "undesirable" schools to "desirable" ones, and schools compete for students not only because they crave institutional respect (no school wants to be labeled as "failing") but also because the students bring government funds with them wherever they go. What happens when the good schools are full and a neighborhood only has failing schools? If it seems likely that a lot of kids in the neighborhood would be willing to switch to a "better" school (This is not obvious, incidentally. Different people want different things out of their schools. The kids I grew up with who planned to get factory or farm work didn't care about our school's college admission rates. They wanted a school with flexible hours and a few practical classes), then some enterprising soul (maybe me) sets up a new school, a decent (but maybe not "great") school, and the students flock to it. I rake in the money, hire teachers, and the world is a nicer place. Some of the failing schools may have to shut down, or else find some way to attract enough students to make themselves worthwhile again.
Does this system have flaws? Of course. To name a few: Schools are unlikely to cater to rare talents/desires unless those talents/desires have some greater use, like being coveted by elite colleges, or appealing to the high school community at large. There's a potential antitrust problem because so few schools exist in a given neighborhood, and each one may be tempted to leverage its abilities undesirably. Schools might compete to do things that students like but communities don't-- like covert non-prosecution of cigarette- and marijuana- smoking (of course, lots of schools do that anyway, and there's something to be said for it). Entry costs are non negligible, so on the margin, efficient schools may not be created by risk-averse actors. But is the system better than our current mess? I think so. Most of the people reading this blog probably don't, but the vast majority of our readers went to decent high schools. Finally, you can't beat somebody with nobody. If you think this system shows why Chicago Economists shouldn't be let near the real world, offer a counter-system, or an improvement on this one. Or explain why the status quo is a good thing.
Obviously this system tracks some of the successes of the American college/university system, plus vast government subsidies. But I hope the economic ideas-- supply and demand and the non-static nature of markets-- are fairly obvious. I'm happy to explain them more completely if they're not. So. There you have it. Demolish. [Pssst. How is this different from a gigantic voucher system?-- ed. Hush, you!]
Kathleen points out that " there are only so many 'working' schools and if they're not full they may require putting your 8-year-old daughter on the subway for an hour and a half." Amy notes that "Nevertheless, the two best schools were among the smallest, and the worst schools the largest, and the best schools worked quite hard to keep it that way," and "No matter what program we enact, so long as "failing" is defined relatively, the incentive will always be merely to stay off the very bottom of the list." Amanda chimes in that "Elementary and secondary public schools have far more constraints when it comes to increasing enrollment. . . There's only a fixed number of classrooms, large-sized closets, and auditorium stages that can be used to house classes."
Anecdotal evidence is interesting, and can even be informative. But it's a tool to understanding the larger picture. It's certainly not the larger picture in and of itself. It's very difficult to make a coherent policy recommendation just by thinking about a couple of examples that one has at hand. At any rate, here's my modest proposal for how to make school choice work, which picks up the link missing from my previous post-- market entry (which is to say, school creation).
Step One: Allow students to choose their school, subject to whatever constraints-- maybe you require integrated schools, maybe you require schools to accept all comers, maybe you require students to pick a school with certain characteristics. We can debate this.
Step Two: Apportion school funding largely based on student enrollment. One can make allowances here-- if one school has a program that provides a significant benefit to the other ones, like an expansive open library, a set of rare AP classes with transfer rights, or a district-wide sports team, maybe it gets some extra funding. Of course, the Coase Theorem suggests that the government probably doesn't need to provide the funding, and the schools could work out such deals among themselves.
Step Three: Allow people other than the government to set up accredited schools at which students can enroll, subject to the funding and apportionment rules above. Again, this could be subject to various regulations and restrictions-- new schools could also be required to racially integrate, or to accept all comers perhaps, or maybe install a neutral selection mechanism.
Step Four: Create some mechanism that independent media organizations can use to assess schools; allow them to issue tests, perhaps, and make searches and do interviews of staff and students. Let them publish their results, possibly subsidize the publication.
Step Five: Let the market work.
Before you dismiss the idea, please think about it. Once you've decided I'm crazy, ask yourself if there's some small flaw, some detail I've missed, that could placate you. Maybe not. If not, let me know and let me know why.
The idea is this-- "failing" must be defined not only relatively, but subjectively. Some kids want AP Chem class. Some don't. Some kids want a lot of classes on industrial design, and don't really want to go far from their house, because they don't want to take calculus. Some kids will trade caving ceiling tiles for a football team. Other kids have asthma, so have to avoid the tiles, and couldn't make the cut for the football team anyway. In this system, children transfer from "undesirable" schools to "desirable" ones, and schools compete for students not only because they crave institutional respect (no school wants to be labeled as "failing") but also because the students bring government funds with them wherever they go. What happens when the good schools are full and a neighborhood only has failing schools? If it seems likely that a lot of kids in the neighborhood would be willing to switch to a "better" school (This is not obvious, incidentally. Different people want different things out of their schools. The kids I grew up with who planned to get factory or farm work didn't care about our school's college admission rates. They wanted a school with flexible hours and a few practical classes), then some enterprising soul (maybe me) sets up a new school, a decent (but maybe not "great") school, and the students flock to it. I rake in the money, hire teachers, and the world is a nicer place. Some of the failing schools may have to shut down, or else find some way to attract enough students to make themselves worthwhile again.
Does this system have flaws? Of course. To name a few: Schools are unlikely to cater to rare talents/desires unless those talents/desires have some greater use, like being coveted by elite colleges, or appealing to the high school community at large. There's a potential antitrust problem because so few schools exist in a given neighborhood, and each one may be tempted to leverage its abilities undesirably. Schools might compete to do things that students like but communities don't-- like covert non-prosecution of cigarette- and marijuana- smoking (of course, lots of schools do that anyway, and there's something to be said for it). Entry costs are non negligible, so on the margin, efficient schools may not be created by risk-averse actors. But is the system better than our current mess? I think so. Most of the people reading this blog probably don't, but the vast majority of our readers went to decent high schools. Finally, you can't beat somebody with nobody. If you think this system shows why Chicago Economists shouldn't be let near the real world, offer a counter-system, or an improvement on this one. Or explain why the status quo is a good thing.
Obviously this system tracks some of the successes of the American college/university system, plus vast government subsidies. But I hope the economic ideas-- supply and demand and the non-static nature of markets-- are fairly obvious. I'm happy to explain them more completely if they're not. So. There you have it. Demolish. [Pssst. How is this different from a gigantic voucher system?-- ed. Hush, you!]
Winging It:
[Thanks to Nick Tarasen: Spoiler Alert! If you haven't seen the season finale of the West Wing and intend to, I'm telling you what happened.] (For what it's worth, Matt Yglesias did it too.)
For those of you who care about the West Wing. The season finale just finished, and Aaron Sorkin has decided to get in on the 25th Amendment action. In response to the abduction of his daughter, the president has abdicated his power upon unanimous (if strongarmed) vote of his cabinet, as per the 25th Amendment. Because the Vice-President resigned a couple of weeks ago amid his sex scandal with a Washington gossip columnist, the power has passed to the Republican speaker of the house, John Goodman. This concludes the season, with the first daughter still missing, and the Republicans in control of the White House.
Interesting questions: Under what circumstances should a President abdicate power on grounds of conflict of interest? (In this case, the fear is that it's a terrorist attack and we need to respond as a nation, not as a wounded father.) Should we create a Constitutional power of temporary self-recusal, like Judges have? Finally, is this the right thing to do in the circumstances? If so, what past Presidents do we think would have had the honor to do it?
[Thanks to Nick Tarasen: Spoiler Alert! If you haven't seen the season finale of the West Wing and intend to, I'm telling you what happened.] (For what it's worth, Matt Yglesias did it too.)
For those of you who care about the West Wing. The season finale just finished, and Aaron Sorkin has decided to get in on the 25th Amendment action. In response to the abduction of his daughter, the president has abdicated his power upon unanimous (if strongarmed) vote of his cabinet, as per the 25th Amendment. Because the Vice-President resigned a couple of weeks ago amid his sex scandal with a Washington gossip columnist, the power has passed to the Republican speaker of the house, John Goodman. This concludes the season, with the first daughter still missing, and the Republicans in control of the White House.
Interesting questions: Under what circumstances should a President abdicate power on grounds of conflict of interest? (In this case, the fear is that it's a terrorist attack and we need to respond as a nation, not as a wounded father.) Should we create a Constitutional power of temporary self-recusal, like Judges have? Finally, is this the right thing to do in the circumstances? If so, what past Presidents do we think would have had the honor to do it?
Back to schools:
Kathleen has weighed in with some comments, which are well worth reading. I particuarly agree with her on a tracking system.
I have to admit, I'm a bit baffled by the way people often tend to unquestioningly accept neighborhood schools as necessarily a good thing. One emailer noted "At the dawn of my education, my neighborhood K-3 school was doing away with gifted stuff under pressure from parents who saw it as a waste of resources, so my parents and a few others threatened to go to private school if they weren't put back." If I were a parent, I'd want a reasonable length busride for my kids -- 30 or 45 minutes. Assuming busses arrive at school a half hour before classes begin to allow time for recess and bad traffic, the busride gives me additional time to commute to my job and start working.
But my views are heavily colored by my own non-typical experiences in the non-typical East Baton Rouge Parish School System. To be brief, the EBRPSS is in its 47th year of attempting to comply with Brown v. Board, in 1998 voters agreed to increase school taxes for the first time in three decades, and despite the city's significant growth, only one new school has been built in that same time frame (rebuilding on essentially the same site). Chances are, if you live in a new area, there is no neighborhood school where you live, and were you attend to school with children from your neighborhood and the surrounding subdivisions, it wouldn't meet deseg requirements. I was in the gifted program from preschool to 8th grade, and at a magnet high school.
Cry me a river that your neighborhood elementary school didn't offer gifted. There is no requirement that it be offered at the most convenient location (there is a requirement that a child who qualifies for gifted receive it if the parents request it -- gifted is special ed, just as much as programs for the blind are). It's perfectly reasonable for a school system to use gifted as a carrot to attract bright children with active parents to poorly-performing schools. Gifted parents tend to be involved, even pushy when it comes to getting schools new playground equipment or computers (I'd be quite interested in any empirical evidence on whether parents who bribed private psychologists to rule their children "gifted" become more or less involved, or if they view it as a good investment, but that's another story). I doubt my parents would have wanted me at Buchannan Elementary if it weren't for the gifted program -- it wasn't the best of schools and it wasn't in the best of neighborhoods, as the gun we found on the playground in 3rd grade and the bullet holes in the "no guns on campus" sign revealed. Still, the education I got from it was great, and taught a far more advanced level than the "good" school I attended for a semester of 2nd grade in Alexandria, VA. My family volunteered at the school while my sister and I were there, and my sister even went back to do a year-long after school enrichment project there for her Gold Award.
Strategic locating of gifted and magnet (academic, arts, foreign language immersion) programs is a useful tool for school systems. However, while these programs may improve the facilities that all students share at a school and it may improve the overall test scores, they don't address the problems within the non-program classrooms. I volunteered one summer in a first grade classroom at a mandatory summer school for students who didn't pass. The kids in my class liked school, generally seemed to be enjoying themselves, and learned to read by the end of the summer. They came from severe socioeconomic disadvantages. 11 of the 12 children had seen at least one Bride of Chucky movie; none had ever tried honey until we brought some in after reading story about a bear who loved honey; one child had borderline Down's; one boy reguarly babysat his toddler brother while his mother gambled the riverboats; another girl kept coming to school tired because she didn't have a bed, but just slept in a box at the foot of the bed her mother shared with her noisy boyfriends. . . . In a previous year, the teacher taught a student who dropped his baby sister off a third floor balcony, leaving her with severe brain damage. The school I'd attended in wealthy suburban Alexandria, VA didn't share these problems (instead, one classmate was the daughter of a congressman from Montana). I agree that all schools have a mandate to educate, but to apply the same type of national (or state) standards of "failing" and "succeeding" to both substitutes a better ideal world for the one that actually exists.
UPDATE: By Louisana state law, gifted is a part of special ed. This is not true in all states.
Kathleen has weighed in with some comments, which are well worth reading. I particuarly agree with her on a tracking system.
I have to admit, I'm a bit baffled by the way people often tend to unquestioningly accept neighborhood schools as necessarily a good thing. One emailer noted "At the dawn of my education, my neighborhood K-3 school was doing away with gifted stuff under pressure from parents who saw it as a waste of resources, so my parents and a few others threatened to go to private school if they weren't put back." If I were a parent, I'd want a reasonable length busride for my kids -- 30 or 45 minutes. Assuming busses arrive at school a half hour before classes begin to allow time for recess and bad traffic, the busride gives me additional time to commute to my job and start working.
But my views are heavily colored by my own non-typical experiences in the non-typical East Baton Rouge Parish School System. To be brief, the EBRPSS is in its 47th year of attempting to comply with Brown v. Board, in 1998 voters agreed to increase school taxes for the first time in three decades, and despite the city's significant growth, only one new school has been built in that same time frame (rebuilding on essentially the same site). Chances are, if you live in a new area, there is no neighborhood school where you live, and were you attend to school with children from your neighborhood and the surrounding subdivisions, it wouldn't meet deseg requirements. I was in the gifted program from preschool to 8th grade, and at a magnet high school.
Cry me a river that your neighborhood elementary school didn't offer gifted. There is no requirement that it be offered at the most convenient location (there is a requirement that a child who qualifies for gifted receive it if the parents request it -- gifted is special ed, just as much as programs for the blind are). It's perfectly reasonable for a school system to use gifted as a carrot to attract bright children with active parents to poorly-performing schools. Gifted parents tend to be involved, even pushy when it comes to getting schools new playground equipment or computers (I'd be quite interested in any empirical evidence on whether parents who bribed private psychologists to rule their children "gifted" become more or less involved, or if they view it as a good investment, but that's another story). I doubt my parents would have wanted me at Buchannan Elementary if it weren't for the gifted program -- it wasn't the best of schools and it wasn't in the best of neighborhoods, as the gun we found on the playground in 3rd grade and the bullet holes in the "no guns on campus" sign revealed. Still, the education I got from it was great, and taught a far more advanced level than the "good" school I attended for a semester of 2nd grade in Alexandria, VA. My family volunteered at the school while my sister and I were there, and my sister even went back to do a year-long after school enrichment project there for her Gold Award.
Strategic locating of gifted and magnet (academic, arts, foreign language immersion) programs is a useful tool for school systems. However, while these programs may improve the facilities that all students share at a school and it may improve the overall test scores, they don't address the problems within the non-program classrooms. I volunteered one summer in a first grade classroom at a mandatory summer school for students who didn't pass. The kids in my class liked school, generally seemed to be enjoying themselves, and learned to read by the end of the summer. They came from severe socioeconomic disadvantages. 11 of the 12 children had seen at least one Bride of Chucky movie; none had ever tried honey until we brought some in after reading story about a bear who loved honey; one child had borderline Down's; one boy reguarly babysat his toddler brother while his mother gambled the riverboats; another girl kept coming to school tired because she didn't have a bed, but just slept in a box at the foot of the bed her mother shared with her noisy boyfriends. . . . In a previous year, the teacher taught a student who dropped his baby sister off a third floor balcony, leaving her with severe brain damage. The school I'd attended in wealthy suburban Alexandria, VA didn't share these problems (instead, one classmate was the daughter of a congressman from Montana). I agree that all schools have a mandate to educate, but to apply the same type of national (or state) standards of "failing" and "succeeding" to both substitutes a better ideal world for the one that actually exists.
UPDATE: By Louisana state law, gifted is a part of special ed. This is not true in all states.
Dredging Up Old Muck:
One of my teachers (who I will not praise extensively here only because he's previously reprimanded me for being too fulsome in my praise), tells me I was too quick to give up the ship in response to Ms. Lamboley's attack on historical analysis of the constition. I went back to look, and I think he's right. For those who've moved on with their lives, it's here. Much of the post is a just indictment of the "what can we learn from history?" trope, but I think, in retrospect, that it misses the constitutional boat. She writes:
The goal of originalist history is not to try to shade modern goals based on historical understandings, or anything of the sort. But a certain amount of originalism is unavoidable by any judge who wants to engage in judicial review. The entire justification for judicial review is that the court is merely interpreting a super-statute (the constitution) which sometimes contravenes later statutes. So why do we have to look at original intent?
The foudners could have given us a common law constitution, like some other countries have. But they thought that would be insufficient about guaranteeing individual liberties. That's why they wrote the thing down. Now, we have to give meaning to the text, however possible. Isn't the right question to ask-- what did the founders think they were enacting? Of course, you can argue that the founders didn't know what they were enacting. Okay. That's an originalist argument on originalist principles, and we can go look at the evidence about a particular provision and see if there was a clear consensus. (What is consensus?-- ed. According to Justice Stevens, 47%.) With some clauses, it should be obvious-- the qualifications clause, for example. It's clear what it meant for the president to be over 35 years of age. When it's not clear, what do we do? Why not take our best historical guess?
Anyway, the above is an example of a legitimate criticism of an originalist interpretation-- it didn't mean this, it meant that. And all the rest. Interestingly, constitutional historians usually are not in the school of people who say that it's mostly a wash. But let's leave aside the empirical argument.
What's illegitimate is this-- you can't attack an originalist interpretation of the Constitution on the grounds that our values and goals have changed. The Founders weren't stupid. They knew our values and goals would change. That's why they gave us some rules. If they had intended for us to be guided by our own enlightened views, values, and goals, there would have been no need to give us a written constitution in the first place. But just as societies mature, they can also rot. The Constitution has some give in it, but it was written to set down some fairly restrictive rules about what could and could not be done by later generations. To the extent that our values and goals change, we are also empowered to change the law-- the Constitution-- by amendment. If you can't get the political momentum to get a Constitutional amendment passed, it lacks the necessary consensus to be in the Constitution.
So, to take more precise issue with Ms. Lamboley's quote above: Originalists (good originalists, at least), don't want to take "the understanding of the Constitution our Founding Fathers in order to apply it to our current world." They want to take the common understanding of the Constitution, as it was written, in order to apply it to . . . the Constitution itself-- a two-hundred-year-old legal text. Of course, the "problem" is that the Constitution, a two-centuries-old piece of paper, then applies "to our current world." But that's the whole point about Constitutions. You don't need a bunch of unelected elite law professors (one Columbia grad; two from Stanford; one from Northwestern; one from Yale; four from Harvard. One Rhodes Scholar. One Marshall Scholar.) to tell you how to apply our current understandings to our current problems. That's what legislatures do. They legislate. Judges judge.
Put another way: Of course the world has changed in 214 years. But Constitutions are inherently conservative things-- they tell the people of the future that they can't do certain things because the people of the past say so. If they didn't accord some power to the people of the past (the power is not absolute; you can always amend the thing), the people of the past wouldn't bother writing them. And if debate on modern morals, mores, and necessities is the game, it should be left to the experts-- the guys who have to answer to democratic elections and stuff.
One of my teachers (who I will not praise extensively here only because he's previously reprimanded me for being too fulsome in my praise), tells me I was too quick to give up the ship in response to Ms. Lamboley's attack on historical analysis of the constition. I went back to look, and I think he's right. For those who've moved on with their lives, it's here. Much of the post is a just indictment of the "what can we learn from history?" trope, but I think, in retrospect, that it misses the constitutional boat. She writes:
The problem is that there is no way to interpret the constitution according to original intent without doing gross insult to history. America in 1789 is different than America in 2003. Our instututions are different, our values are different, our goals are different, our words even mean different things now than they did then. Trying to reconstruct the understanding of the Constitution our Founding Fathers in order to apply it to our current world would be like trying to recreate the Colonial system of roads to serve the needs of today's automotive society.
The goal of originalist history is not to try to shade modern goals based on historical understandings, or anything of the sort. But a certain amount of originalism is unavoidable by any judge who wants to engage in judicial review. The entire justification for judicial review is that the court is merely interpreting a super-statute (the constitution) which sometimes contravenes later statutes. So why do we have to look at original intent?
The foudners could have given us a common law constitution, like some other countries have. But they thought that would be insufficient about guaranteeing individual liberties. That's why they wrote the thing down. Now, we have to give meaning to the text, however possible. Isn't the right question to ask-- what did the founders think they were enacting? Of course, you can argue that the founders didn't know what they were enacting. Okay. That's an originalist argument on originalist principles, and we can go look at the evidence about a particular provision and see if there was a clear consensus. (What is consensus?-- ed. According to Justice Stevens, 47%.) With some clauses, it should be obvious-- the qualifications clause, for example. It's clear what it meant for the president to be over 35 years of age. When it's not clear, what do we do? Why not take our best historical guess?
Anyway, the above is an example of a legitimate criticism of an originalist interpretation-- it didn't mean this, it meant that. And all the rest. Interestingly, constitutional historians usually are not in the school of people who say that it's mostly a wash. But let's leave aside the empirical argument.
What's illegitimate is this-- you can't attack an originalist interpretation of the Constitution on the grounds that our values and goals have changed. The Founders weren't stupid. They knew our values and goals would change. That's why they gave us some rules. If they had intended for us to be guided by our own enlightened views, values, and goals, there would have been no need to give us a written constitution in the first place. But just as societies mature, they can also rot. The Constitution has some give in it, but it was written to set down some fairly restrictive rules about what could and could not be done by later generations. To the extent that our values and goals change, we are also empowered to change the law-- the Constitution-- by amendment. If you can't get the political momentum to get a Constitutional amendment passed, it lacks the necessary consensus to be in the Constitution.
So, to take more precise issue with Ms. Lamboley's quote above: Originalists (good originalists, at least), don't want to take "the understanding of the Constitution our Founding Fathers in order to apply it to our current world." They want to take the common understanding of the Constitution, as it was written, in order to apply it to . . . the Constitution itself-- a two-hundred-year-old legal text. Of course, the "problem" is that the Constitution, a two-centuries-old piece of paper, then applies "to our current world." But that's the whole point about Constitutions. You don't need a bunch of unelected elite law professors (one Columbia grad; two from Stanford; one from Northwestern; one from Yale; four from Harvard. One Rhodes Scholar. One Marshall Scholar.) to tell you how to apply our current understandings to our current problems. That's what legislatures do. They legislate. Judges judge.
Put another way: Of course the world has changed in 214 years. But Constitutions are inherently conservative things-- they tell the people of the future that they can't do certain things because the people of the past say so. If they didn't accord some power to the people of the past (the power is not absolute; you can always amend the thing), the people of the past wouldn't bother writing them. And if debate on modern morals, mores, and necessities is the game, it should be left to the experts-- the guys who have to answer to democratic elections and stuff.
Insanity:
How Appealing points out this Easterbrook opinion, which is a treasure. It begins as a discussion of the defendant's attempt to assert a $500,000 dollar royalty interest in the use of his name (he claims to be a member of the moorish state) and ends with a discourse on hats. Quotes follow:
How Appealing points out this Easterbrook opinion, which is a treasure. It begins as a discussion of the defendant's attempt to assert a $500,000 dollar royalty interest in the use of his name (he claims to be a member of the moorish state) and ends with a discourse on hats. Quotes follow:
One person with a fantastic view may be suspected of delusions; two people with the identical view are just oddballs.
One additional matter requires comment. Several spectators came to court wearing hats. The judge directed them to uncover their heads:
THE COURT: I note there are quite a few people here. As a matter of respect for the Court, the dignity of the Court does not allow any headdresses, so individuals wearing any type of headdresses
will be asked to leave now or remove them. Also, no hats, no skull caps, nothing like that is permitted. Did you folks hear me in the back?
UNIDENTIFIED SPEAKER: This is my national headdress and also a part of my religion.
THE COURT: Ma’am, that is not allowed in this courtroom. You are welcome without it, so please leave until you can take it off.
UNIDENTIFIED SPEAKER: If Jews were to come in here—
THE COURT: Jews will not wear yarmulkes. I am Catholic and the Pope would not wear a miter. Please leave, take it off and come back in, or do not come back in, the choice is yours.
Tolerance usually is the best course in a pluralistic nation. Accommodation of religiously inspired conduct is a token of respect for, and a beacon of welcome to, those whose beliefs differ from the majority’s. The best way for the judiciary to receive the public’s respect is to earn that respect by showing a wise appreciation of cultural and religious diversity. Obeisance differs from respect; to demand the former in the name of the latter is selfdefeating. It is difficult for us to see any reason why a Jew may not wear his yarmulke in court, a Sikh his turban, a Muslim woman her chador, or a Moor his fez. Most spectators will continue to doff their caps as a sign of respect for the judiciary; those who keep heads covered as a sign of respect for (or obedience to) a power higher than the state should not be cast out of court or threatened with penalties. Defendants are entitled to trials that others of their faith may freely attend, and spectators of all faiths are entitled to see justice being done.
Googlewatch:
You know, sometimes I think I just don't want to know. I've already become vaguely worried about the large number of people (and variety of domain names) that bring people to this site googling "Amy Lamboley," (though of course I'm glad to share a blog with her). Today, though, within ten minutes of either, we were foud by two Google searches: "the difference between a campaign contribution and a bribe is at most a hairline's difference," and "bigamy XXX stories." Make what you will of that.
You know, sometimes I think I just don't want to know. I've already become vaguely worried about the large number of people (and variety of domain names) that bring people to this site googling "Amy Lamboley," (though of course I'm glad to share a blog with her). Today, though, within ten minutes of either, we were foud by two Google searches: "the difference between a campaign contribution and a bribe is at most a hairline's difference," and "bigamy XXX stories." Make what you will of that.
Educational Standards
There's been a lot of talk tossed back and forth about good schools versus bad schools when it comes to educational choice. However, we need to be careful what we mean by a good school and a bad school. In California, at least, schools are ranked by percentage of students scoring at or above the 50th percentile on standardized tests. Proof of the sheer idiocy of this standard will be left to the reader.
In point of fact, the California Department of Education does not actually seem to be using percentiles to score their tests, since they seem to believe that the percentage of students scoring at or above the 50th percentile has increase in the past few years, something that should be impossible. Nevertheless, the problem with any sort of relative standards--those that rank schools according to the performace of other schools--is that in order to increase their rankings, the incentive for schools is to dump their worst-performing students on neighboring schools, thereby increasing their percentage of high-scoring students and decreasing their neighbors'. What results, in a medium-sized city like Santa Barbara at least, is a disgraceful game of hot-potato played with the poorest neighborhoods, with each local school lobbying to make sure that this potential group of underperformers doesn't end up in their district. Meanwhile, the better-performing schools jealously guard their stranglehold on the upper-middle-class neighborhoods chock full of PTA moms. The gerrymandered districts that result would be funny, if they weren't also a sad reflection of the extent to which good schools no longer see their mission as teaching, but as protecting the interests of the already advantaged.
Would school choice have stopped the problem? I doubt it. Our elementary school district had a fairly liberal transfer policy, but its major effect was merely to increase the concentration of upper-middle-class students in a few schools. Insofar as this rewarded those parents who were willing to invest a bit of effort in obtaining a good education for their children, this was a good thing. And insofar as most parents seemed to believe that their children were getting adequate educations in their home school district, perhaps there was nothing about which to complain. Nevertheless, the real problem remained that the good schools stayed good, and the bad schools devoted large amounts of effort to not coming out at the bottom of the heap.
Nor do I think Will's solution of apportioning money based upon students would solve the problem. To a large extent (though I'm not sure how much) money in the Goleta school district already was apportioned to schools based upon number of students. Nevertheless, the two best schools were among the smallest, and the worst schools the largest, and the best schools worked quite hard to keep it that way. For these schools, when the rest of the district saw their science, music, and art programs cut, the PTA stepped in to raise the tens of thousands of dollars necessary to maintain them. In fact, while the rest of the district faced overcrowding during my sixth grade year, my school had a classroom that was turned into an underseas kelp forest one semester, and an Egyptian tomb the next, with the contribution of much volunteer labor on the part of the parents. Keeping the school small meant, to a large degree, keeping down the number of slacking parents whose weight the others would have been required to pull.
No matter what program we enact, so long as "failing" is defined relatively, the incentive will always be merely to stay off the very bottom of the list. What is truly necessary for any progress to be possible is to define failure absolutely, which means specifying just what a school is supposed to teach children, and then judging whether or not they do so based upon whether or not the children know the material, not whether or not they know it better than some other group of children. However, were this to be done, I suspect we'd see the real problem--either the standards would have to be embarassingly low, or an embarassingly large number of schools would be classed as failing.
There's been a lot of talk tossed back and forth about good schools versus bad schools when it comes to educational choice. However, we need to be careful what we mean by a good school and a bad school. In California, at least, schools are ranked by percentage of students scoring at or above the 50th percentile on standardized tests. Proof of the sheer idiocy of this standard will be left to the reader.
In point of fact, the California Department of Education does not actually seem to be using percentiles to score their tests, since they seem to believe that the percentage of students scoring at or above the 50th percentile has increase in the past few years, something that should be impossible. Nevertheless, the problem with any sort of relative standards--those that rank schools according to the performace of other schools--is that in order to increase their rankings, the incentive for schools is to dump their worst-performing students on neighboring schools, thereby increasing their percentage of high-scoring students and decreasing their neighbors'. What results, in a medium-sized city like Santa Barbara at least, is a disgraceful game of hot-potato played with the poorest neighborhoods, with each local school lobbying to make sure that this potential group of underperformers doesn't end up in their district. Meanwhile, the better-performing schools jealously guard their stranglehold on the upper-middle-class neighborhoods chock full of PTA moms. The gerrymandered districts that result would be funny, if they weren't also a sad reflection of the extent to which good schools no longer see their mission as teaching, but as protecting the interests of the already advantaged.
Would school choice have stopped the problem? I doubt it. Our elementary school district had a fairly liberal transfer policy, but its major effect was merely to increase the concentration of upper-middle-class students in a few schools. Insofar as this rewarded those parents who were willing to invest a bit of effort in obtaining a good education for their children, this was a good thing. And insofar as most parents seemed to believe that their children were getting adequate educations in their home school district, perhaps there was nothing about which to complain. Nevertheless, the real problem remained that the good schools stayed good, and the bad schools devoted large amounts of effort to not coming out at the bottom of the heap.
Nor do I think Will's solution of apportioning money based upon students would solve the problem. To a large extent (though I'm not sure how much) money in the Goleta school district already was apportioned to schools based upon number of students. Nevertheless, the two best schools were among the smallest, and the worst schools the largest, and the best schools worked quite hard to keep it that way. For these schools, when the rest of the district saw their science, music, and art programs cut, the PTA stepped in to raise the tens of thousands of dollars necessary to maintain them. In fact, while the rest of the district faced overcrowding during my sixth grade year, my school had a classroom that was turned into an underseas kelp forest one semester, and an Egyptian tomb the next, with the contribution of much volunteer labor on the part of the parents. Keeping the school small meant, to a large degree, keeping down the number of slacking parents whose weight the others would have been required to pull.
No matter what program we enact, so long as "failing" is defined relatively, the incentive will always be merely to stay off the very bottom of the list. What is truly necessary for any progress to be possible is to define failure absolutely, which means specifying just what a school is supposed to teach children, and then judging whether or not they do so based upon whether or not the children know the material, not whether or not they know it better than some other group of children. However, were this to be done, I suspect we'd see the real problem--either the standards would have to be embarassingly low, or an embarassingly large number of schools would be classed as failing.
School choice:
Will asks, "So why not proportion school funding completely based on student enrollment?"
Let's assume the government has created a new program that gives significant amount of money to colleges and universities based on student enrollment. The University of Chicago decides to chase this money by increasing enrollment substantially. What does it do? It buys up more land around campus, kicks some of these random committees and what-nots out of the Hyde Park houses they currently occupy, quits guaranteeing housing in the dorms after the second year, tells the grad students teaching intro calc and econ that it's decided to be sensitive to their sleeping schedules and schedule their classes for the new 7pm timeslot, if having students leaning in through the first floor windows works for Strategy then O-chem can be taught to the same overpacked audience....
Elementary and secondary public schools have far more constraints when it comes to increasing enrollment. State boards of education place caps on the number of students may be in a class (often between 18 and 30); the geography and school boards of many city schools prevent them from erecting T-buildings, the fire marshal prohibits more than a certain number of students from attending a school. After a certain point, school enrollment is indicative of nothing. There's only a fixed number of classrooms, large-sized closets, and auditorium stages that can be used to house classes.
I have complained again and again about the assumption that parents of children in lousy schools even have a choice. There are school districts in eastern Arkansas and south Texas (and, I'm sure, plenty of other states that don't resemble New Jersey) where there's only one high school, one middle school, and one or two elementary schools. All the schools are failing. Where are you going to transfer. Perhaps there's only one school district for your country. Where is your choice now?
Perhaps you're in a city. On a 1 to 100 scale, any school at 80 or higher is failing. There is one school at 30, 75, and 90. The children at 90 are able to transfer out. 30 is far away, but the majority of them are willing to accept the ride in exchange for all the wonderful programs. However, there aren't many slots at 30 because families flock in droves to the neighborhood just around the school. 30 accepts all the students it can, 1/4 of 90's enrollment, and falls slightly to 33 because of the stress the numbers place on it. Another 1/3 of 90 (now risen slightly to 87) apply for slots at 75. They get in, but their numbers drag 75 down to 81. It's still an improvement, but now both schools are failing. 87 (old 90) now has half its original enrollment, but is getting far less funding. Fixed costs haven't changed, so it now opperates on a serious diseconomy of scale. Thanks to these ineffeciencies, it now falls to a 95. There is some small good: more students are getting a good education, fewer students are getting worse than 90, and a smaller number are getting the absolute worst possible here.
However, all this shuffling has done nothing to solve the problem of failing schools. The naive economist's argument does fail: this "solution" *can* make you worse off. Will suggest this program will encourage bad schools to improve so that they can attract more students. Maybe I'm being naive now, but I don't think many schools that are failing want to be failing; I think they just haven't figured out how to succeed (and may be in circumstances where success comes harder).
And as one final concern, what happens when these transfers disrupt the racial balances of the schools? Do majority-minority transfers get priority? What if what was a maj-min transfer continues flowing until it becomes a min-maj transfer -- are students permitted to transfer in ways that thwart a school district's attempts at attaining the unitary status required for desegregation?
Will asks, "So why not proportion school funding completely based on student enrollment?"
Let's assume the government has created a new program that gives significant amount of money to colleges and universities based on student enrollment. The University of Chicago decides to chase this money by increasing enrollment substantially. What does it do? It buys up more land around campus, kicks some of these random committees and what-nots out of the Hyde Park houses they currently occupy, quits guaranteeing housing in the dorms after the second year, tells the grad students teaching intro calc and econ that it's decided to be sensitive to their sleeping schedules and schedule their classes for the new 7pm timeslot, if having students leaning in through the first floor windows works for Strategy then O-chem can be taught to the same overpacked audience....
Elementary and secondary public schools have far more constraints when it comes to increasing enrollment. State boards of education place caps on the number of students may be in a class (often between 18 and 30); the geography and school boards of many city schools prevent them from erecting T-buildings, the fire marshal prohibits more than a certain number of students from attending a school. After a certain point, school enrollment is indicative of nothing. There's only a fixed number of classrooms, large-sized closets, and auditorium stages that can be used to house classes.
I have complained again and again about the assumption that parents of children in lousy schools even have a choice. There are school districts in eastern Arkansas and south Texas (and, I'm sure, plenty of other states that don't resemble New Jersey) where there's only one high school, one middle school, and one or two elementary schools. All the schools are failing. Where are you going to transfer. Perhaps there's only one school district for your country. Where is your choice now?
Perhaps you're in a city. On a 1 to 100 scale, any school at 80 or higher is failing. There is one school at 30, 75, and 90. The children at 90 are able to transfer out. 30 is far away, but the majority of them are willing to accept the ride in exchange for all the wonderful programs. However, there aren't many slots at 30 because families flock in droves to the neighborhood just around the school. 30 accepts all the students it can, 1/4 of 90's enrollment, and falls slightly to 33 because of the stress the numbers place on it. Another 1/3 of 90 (now risen slightly to 87) apply for slots at 75. They get in, but their numbers drag 75 down to 81. It's still an improvement, but now both schools are failing. 87 (old 90) now has half its original enrollment, but is getting far less funding. Fixed costs haven't changed, so it now opperates on a serious diseconomy of scale. Thanks to these ineffeciencies, it now falls to a 95. There is some small good: more students are getting a good education, fewer students are getting worse than 90, and a smaller number are getting the absolute worst possible here.
However, all this shuffling has done nothing to solve the problem of failing schools. The naive economist's argument does fail: this "solution" *can* make you worse off. Will suggest this program will encourage bad schools to improve so that they can attract more students. Maybe I'm being naive now, but I don't think many schools that are failing want to be failing; I think they just haven't figured out how to succeed (and may be in circumstances where success comes harder).
And as one final concern, what happens when these transfers disrupt the racial balances of the schools? Do majority-minority transfers get priority? What if what was a maj-min transfer continues flowing until it becomes a min-maj transfer -- are students permitted to transfer in ways that thwart a school district's attempts at attaining the unitary status required for desegregation?
Enough Guys:
Shonda Werry and Sara Butler and Shonda Werry are something bordering outraged at DC Comics's new communist Superman. Now, I'm no fan of communism or Soviet oppression either, so let's not play the "who hates the commies more?" game. But I do think both of them have gone overboard.
First, what of Shonda's claim that, "a more realistic CCCP Superman would be under-nourished, exhausted, and trying to escape. His friends would likely have been sent to a Gulag, and a close relative would have been murdered by Stalin"? Well, maybe. My reading of Superman has been incomplete, but I'm not sure to what degree he's vulnerable to normal problems of sleep and diet. Unless the Soviets sow the collectivized fields with Kryptonite, I'm pretty sure even Communist Superman could be okay. Furthermore, the Soviet regime was perfectly capable of treating some of its citizens well when it felt like it. And if you had a super-strong, nearly invulnerable, flying superhero helping you maintain your deathgrip on the world, wouldn't you nourish him, and probably even keep his friends out of the Gulag? (After all, how would the Soviet Union keep them there if Red-Superman wanted them out?). Nitpicking, but okay.
But what about Sara's charge that Soviet Superman is far worse than making a Princess Diana joke at her funeral? She writes, "Soviet Superman isn't merely in poor taste, but is a trivialization of the horrors of communism." First, is that particularly true? Is it a "trivialization of the horrors" of one's moral opponents to cast them in ambiguous moral light? This is a question we often confront here with respect to the Civil War. But a large portion of the population thinks it's possible to talk about Southern Civil War heroes without "trivializing the horror" of slavery. Second, what's so bad about trivializing horrible things? Isn't that what comics do, all the time? Is it wrong for a comic book to show a hero of ambiguous moral character, simply because the premise is actually pretty fascinating? If so, then Sara and Shonda are only getting started. A lot of the comic books I used to enjoy are going to have to come under fire. Finally, even if Communist Superman is a "trivialization of the horrors of communism," and even if that's bad, why isn't that precisely poor taste? To the extent that it's bad to trivialize great world catastrophes where millions of people died the error is in taste, nothing more. My guess is that Sara finds communism abhorrent and soviet superman in such terrible taste, that she feels the need to add some sort of moral opprobrium.
As I said, don't get me wrong. I think communism is one of the great evils of human history (don't you love those grandiose claims?). But I don't think writing a comic book with a communist superhero-- even a superherp typically associated with all that is good and right-- is a crime against morals, or against taste. No more than having Harrison Ford play a Russian submarine officer . . .
Shonda Werry and Sara Butler and Shonda Werry are something bordering outraged at DC Comics's new communist Superman. Now, I'm no fan of communism or Soviet oppression either, so let's not play the "who hates the commies more?" game. But I do think both of them have gone overboard.
First, what of Shonda's claim that, "a more realistic CCCP Superman would be under-nourished, exhausted, and trying to escape. His friends would likely have been sent to a Gulag, and a close relative would have been murdered by Stalin"? Well, maybe. My reading of Superman has been incomplete, but I'm not sure to what degree he's vulnerable to normal problems of sleep and diet. Unless the Soviets sow the collectivized fields with Kryptonite, I'm pretty sure even Communist Superman could be okay. Furthermore, the Soviet regime was perfectly capable of treating some of its citizens well when it felt like it. And if you had a super-strong, nearly invulnerable, flying superhero helping you maintain your deathgrip on the world, wouldn't you nourish him, and probably even keep his friends out of the Gulag? (After all, how would the Soviet Union keep them there if Red-Superman wanted them out?). Nitpicking, but okay.
But what about Sara's charge that Soviet Superman is far worse than making a Princess Diana joke at her funeral? She writes, "Soviet Superman isn't merely in poor taste, but is a trivialization of the horrors of communism." First, is that particularly true? Is it a "trivialization of the horrors" of one's moral opponents to cast them in ambiguous moral light? This is a question we often confront here with respect to the Civil War. But a large portion of the population thinks it's possible to talk about Southern Civil War heroes without "trivializing the horror" of slavery. Second, what's so bad about trivializing horrible things? Isn't that what comics do, all the time? Is it wrong for a comic book to show a hero of ambiguous moral character, simply because the premise is actually pretty fascinating? If so, then Sara and Shonda are only getting started. A lot of the comic books I used to enjoy are going to have to come under fire. Finally, even if Communist Superman is a "trivialization of the horrors of communism," and even if that's bad, why isn't that precisely poor taste? To the extent that it's bad to trivialize great world catastrophes where millions of people died the error is in taste, nothing more. My guess is that Sara finds communism abhorrent and soviet superman in such terrible taste, that she feels the need to add some sort of moral opprobrium.
As I said, don't get me wrong. I think communism is one of the great evils of human history (don't you love those grandiose claims?). But I don't think writing a comic book with a communist superhero-- even a superherp typically associated with all that is good and right-- is a crime against morals, or against taste. No more than having Harrison Ford play a Russian submarine officer . . .
Bitter Choices:
(Via Kathleen): Kathleen and The New York Times point out that school-choice programs aren't always all that they're cracked up to be. In many cases, parents of children in lousy schools have two choices-- send the kid to a nearby school that's almost as lousy, or send the kid far away to a good school. As many people-- including Supreme Court Justices-- have argued, the "market-based" mechanism of school choice seems like a market failure.
But what's really going on here? My first response is the naive economist's argument: Sorry your choice is bitter, but at least you have a choice. The program can't be making you worse off, because it offers you choices you didn't have before, though it's true it may not fix the problem by itself. But of course, that's not a complete response. I think the problem with school-choice is that it doesn't introduce enough of a market.
For the effecient-markets hypothesis to swing into gear, schools need to respond to the incentives that the state is trying to instill. Specifically, the government needs to make sure that schools are rewarded based on the number of students that they have. If that happens, then not only will the good schools be willing to expend some resources to bringing in more students, but the bad schools will want to work harder to attract students, which is the ultimate goal of the plan. As I understand the plan, it's this incentive step which is incomplete. A school has some incentive to get off the "failing school" list, and some incentive to get onto the "hot school" informal list, but very little incentive to try to climb up inbetween.
So why not proportion school funding completely based on student enrollment?
(Via Kathleen): Kathleen and The New York Times point out that school-choice programs aren't always all that they're cracked up to be. In many cases, parents of children in lousy schools have two choices-- send the kid to a nearby school that's almost as lousy, or send the kid far away to a good school. As many people-- including Supreme Court Justices-- have argued, the "market-based" mechanism of school choice seems like a market failure.
But what's really going on here? My first response is the naive economist's argument: Sorry your choice is bitter, but at least you have a choice. The program can't be making you worse off, because it offers you choices you didn't have before, though it's true it may not fix the problem by itself. But of course, that's not a complete response. I think the problem with school-choice is that it doesn't introduce enough of a market.
For the effecient-markets hypothesis to swing into gear, schools need to respond to the incentives that the state is trying to instill. Specifically, the government needs to make sure that schools are rewarded based on the number of students that they have. If that happens, then not only will the good schools be willing to expend some resources to bringing in more students, but the bad schools will want to work harder to attract students, which is the ultimate goal of the plan. As I understand the plan, it's this incentive step which is incomplete. A school has some incentive to get off the "failing school" list, and some incentive to get onto the "hot school" informal list, but very little incentive to try to climb up inbetween.
So why not proportion school funding completely based on student enrollment?
The Morality of Law and the problem of the grudge Ba'athist:
Some forty years ago, Lon Fuller published The Morality of Law, in which he laid out his theory of what might be called procedural natural law. Law isn't something that either exists or doesn't, but rather the process of ordering human society by rules. As such, there are a number of conditions that must hold for there to be "law," and thus many ways to *fail* in making law.
Fuller's eight failures of law are: (1) failure to enact rules at all; (2) failure to publicize the rules; (3) ex post facto rules; (4) incomprehensible rules; (5) contradictory rules; (6) impossible rules; (7) changing the rules too frequently; (8) failing to administer the rules as declared.
Fuller includes, in an appendix, "The Problem of the Grudge Informer," which he notes is a useful example to consider when puzzling over the existence, or lack, of a legal system. In this problem, we have a nation that has recently emerged from a reign of terror at the hands of the Purple Shirts. This political party, through thuggery and propaganda, came to control the government--at which point they promptly began to disregard the laws and the old constitution, jailing and executing their opponents at will (including those judges who refused to go along).
Now, because it was very easy to be "guilty" of a hanging offense under Purple Shirtism (not having one's papers in order, etc.), a number of people took the opportunity to satisfy personal grudges by ratting out their enemies. Now that the Purple Shirts have been deposed, many people want to mete out justice to those who collaborated with the regime. You have recently been appointed Minister of Justice of the new, democratic government, and your first task is to address the question of these grudge informants. What do you do?
Fuller presents five potential responses.
First, do nothing--Purple Shirtism was abhorrent, yes, but it was the legal regime at the time. Obviously we disagree with the system, but if we start picking and choosing which laws of the period we consider valid, then our new regime will be founded on a disregard for the rule of law.
Second, also do nothing, but for the opposite reason--contrary to #1, the ascendence of Purple Shirtism meant the abrogation of law altogether. *Nothing* done during that dark era, therefore, was illegal, and our proper response is to put the whole miserable period behind us--no punishment without law, after all.
Third, we condemn the truly guilty--obviously there was *some* law; marriages and commerce continued, life went on; so we must try to separate the cases where Purple Shirtism perverted the law to serve its own ends, and grudge informants used it as a weapon against others, from those cases where people were just doing what they had to in order to get by. This will be hard, but possible.
Fourth, we get the same result, but through law--since the picking and choosing described in #3 is just what we hated about Purple Shirtism, we legitimize our cleansing by *passing a law* to separate the truly guilty from the bystanders.
Fifth, we let the problem sort itself out--argument #4 would mean the use of ex post facto laws, the worst corruption of law; instead, recognizing that the criminal law serves to safely channel the necessary instinct for revenge, we ought to simply let the problem take care of itself, one case at a time, in the dark alleys of our fair city, rather than sully the law with it.
As is obvious, none of these solutions is fully satisfactory. All demonstrate the conflict between preserving law and satisfying competing societal demands--retributive justice, harmony, etc.
Why do I bring this up? Because I would hope that those in the Administration in charge of the reconstruction of Iraq are thinking long and hard about this sort of thing. In his post dated 1/5, Salam Pax says:
Some forty years ago, Lon Fuller published The Morality of Law, in which he laid out his theory of what might be called procedural natural law. Law isn't something that either exists or doesn't, but rather the process of ordering human society by rules. As such, there are a number of conditions that must hold for there to be "law," and thus many ways to *fail* in making law.
Fuller's eight failures of law are: (1) failure to enact rules at all; (2) failure to publicize the rules; (3) ex post facto rules; (4) incomprehensible rules; (5) contradictory rules; (6) impossible rules; (7) changing the rules too frequently; (8) failing to administer the rules as declared.
Fuller includes, in an appendix, "The Problem of the Grudge Informer," which he notes is a useful example to consider when puzzling over the existence, or lack, of a legal system. In this problem, we have a nation that has recently emerged from a reign of terror at the hands of the Purple Shirts. This political party, through thuggery and propaganda, came to control the government--at which point they promptly began to disregard the laws and the old constitution, jailing and executing their opponents at will (including those judges who refused to go along).
Now, because it was very easy to be "guilty" of a hanging offense under Purple Shirtism (not having one's papers in order, etc.), a number of people took the opportunity to satisfy personal grudges by ratting out their enemies. Now that the Purple Shirts have been deposed, many people want to mete out justice to those who collaborated with the regime. You have recently been appointed Minister of Justice of the new, democratic government, and your first task is to address the question of these grudge informants. What do you do?
Fuller presents five potential responses.
First, do nothing--Purple Shirtism was abhorrent, yes, but it was the legal regime at the time. Obviously we disagree with the system, but if we start picking and choosing which laws of the period we consider valid, then our new regime will be founded on a disregard for the rule of law.
Second, also do nothing, but for the opposite reason--contrary to #1, the ascendence of Purple Shirtism meant the abrogation of law altogether. *Nothing* done during that dark era, therefore, was illegal, and our proper response is to put the whole miserable period behind us--no punishment without law, after all.
Third, we condemn the truly guilty--obviously there was *some* law; marriages and commerce continued, life went on; so we must try to separate the cases where Purple Shirtism perverted the law to serve its own ends, and grudge informants used it as a weapon against others, from those cases where people were just doing what they had to in order to get by. This will be hard, but possible.
Fourth, we get the same result, but through law--since the picking and choosing described in #3 is just what we hated about Purple Shirtism, we legitimize our cleansing by *passing a law* to separate the truly guilty from the bystanders.
Fifth, we let the problem sort itself out--argument #4 would mean the use of ex post facto laws, the worst corruption of law; instead, recognizing that the criminal law serves to safely channel the necessary instinct for revenge, we ought to simply let the problem take care of itself, one case at a time, in the dark alleys of our fair city, rather than sully the law with it.
As is obvious, none of these solutions is fully satisfactory. All demonstrate the conflict between preserving law and satisfying competing societal demands--retributive justice, harmony, etc.
Why do I bring this up? Because I would hope that those in the Administration in charge of the reconstruction of Iraq are thinking long and hard about this sort of thing. In his post dated 1/5, Salam Pax says:
The people are doing their own filtering anyway. After many have been called to go back to their jobs some are refusing to work under certain people whom they know are too Ba'athist to tolerate now. A friend was telling me when the bus came to take him to his work place one of them turned around to one of the Ba'athists who worked there telling him that if he is coming in the bus he will have shoes thrown at him and kicked out of it, there were other Ba'ath party members on the bus but everybody knows who was the bad apple. Generalizations, like al-Chalabi's deba’athification plans don’t solve problems.This is solution #5, from above. It has obvious attractions. Vigilantism "solves problems" in a way that de-Ba'athification plans (solutions #3 or 4, depending on how implemented--probably #3, knowing our Administration) don't. But there are costs. It means throwing up your hands and failing to make law in the most basic way: by avoiding rules entirely. And are we so confident in the justice of the streets? From the same post:
There are stories in southern governorates of Ba’athists making “pre-emptive strikes” at people they are scared might come and kill them.There's no such thing as avoiding a choice, here. Delay, or equivocation, is simply Solution #5. It needs to be argued for, not merely accepted.
Vaster Conspiracies:
Sensing, I think, that we were hot on his heels, Eugene Volokh has added another blogger to his Volokh Conspiracy. Russel Korobkin will try to take on the yellow mantle that Clayton Cramer held previously. I do hope he's a better fit.
Sensing, I think, that we were hot on his heels, Eugene Volokh has added another blogger to his Volokh Conspiracy. Russel Korobkin will try to take on the yellow mantle that Clayton Cramer held previously. I do hope he's a better fit.
He's Alive!:
My brother has returned. Hurrah! Hope he stays.
Crescat Sententia, for the un-pretentious, means something on the order of "Let opinions grow/be increased." It's borrowed from the University of Chicago's motto, Crescat Scientia, Vita Excolatur. Yes, I know not everybody on this blog is at the U of C, but it was either that or the Baude-Borg-Blog.
My brother has returned. Hurrah! Hope he stays.
Crescat Sententia, for the un-pretentious, means something on the order of "Let opinions grow/be increased." It's borrowed from the University of Chicago's motto, Crescat Scientia, Vita Excolatur. Yes, I know not everybody on this blog is at the U of C, but it was either that or the Baude-Borg-Blog.
Tuesday, May 13, 2003
Wow... I... wow. It's been a long time.
Probably a silly question, but: what does "Crescat Sententia" mean?
Probably a silly question, but: what does "Crescat Sententia" mean?
Posting:
I am preparing some post(s) for tomorrow. After all, I can't let Peter post more frequently than me. Besides... this was my horoscope:
"Some people tend to make mountains out of molehills. Currently, you're likely to feel as though you're surrounded by people who exaggerate problems. You, on the other hand, have a loftier perspective. You are a visionary who can foresee future social trends. This gift would serve you well as a political speechwriter, should you want to take on that sort of job."
We'll see if I can fulfill the prophecy soon enough.
I am preparing some post(s) for tomorrow. After all, I can't let Peter post more frequently than me. Besides... this was my horoscope:
"Some people tend to make mountains out of molehills. Currently, you're likely to feel as though you're surrounded by people who exaggerate problems. You, on the other hand, have a loftier perspective. You are a visionary who can foresee future social trends. This gift would serve you well as a political speechwriter, should you want to take on that sort of job."
We'll see if I can fulfill the prophecy soon enough.
Hazing:
Most Chicago-ans have kept tabs on this story, but now the New York Times is in on the act. In a nutshell, a bunch of suburban high-school girls engaged in an infathomably violent hazing girl-fight. I'm posting on this really because I'm struck by the coincidence that the principal here was the principal of my high school for two years while I was there, and a great man who we were sorry to lose.
I was sort of surprised to read in the local papers that Dr. Riggle wasn't going to suspend anybody since it had taken place out of school. Now I learn that he's talked to his lawyer, learned he can suspend them, and given them all ten-day suspensions and a recommended expulsion. That seems harsh to me.
To what extent should schools impose discipline for crimes committed outside of school or recognized school activities? Don't assault charges make more sense than school expulsions, if anything?
Most Chicago-ans have kept tabs on this story, but now the New York Times is in on the act. In a nutshell, a bunch of suburban high-school girls engaged in an infathomably violent hazing girl-fight. I'm posting on this really because I'm struck by the coincidence that the principal here was the principal of my high school for two years while I was there, and a great man who we were sorry to lose.
I was sort of surprised to read in the local papers that Dr. Riggle wasn't going to suspend anybody since it had taken place out of school. Now I learn that he's talked to his lawyer, learned he can suspend them, and given them all ten-day suspensions and a recommended expulsion. That seems harsh to me.
To what extent should schools impose discipline for crimes committed outside of school or recognized school activities? Don't assault charges make more sense than school expulsions, if anything?
Reff Surfaces:
Jeremy Reff is posting again. You can download an Excel spreadsheet of the Iraqi playing-card leaders at his site here.
Jeremy Reff is posting again. You can download an Excel spreadsheet of the Iraqi playing-card leaders at his site here.
Monday, May 12, 2003
Two Responses to Peter:
The argument for viability strikes me as a good one. It does dodge the "when is a fetus human" question, I think, but might well answer the "when is abortion objectionable" question all the same. So that's nice.
But as to the anti-personhood gun, I'd maintain that it's not that troubling of a concept. In the sense of "person-hood" that I mean, we already have them. They're called pistols. After all, once you're dead, you're not really a person any more (barring some conception of the afterlife, wholly outside the realm of my consideration here). Most people think you have basically no legal/moral rights at all once you're dead, except for whatever "honoring of your memory" people choose to indulge you with. The American and British legal systems recognize this too-- something called the rule of perpetuities essentially makes it very difficult to express one's preference from the grave, even if you're very explicity about those preferences before you make it to the grave.
So, yes, it's nasty to have one's person-hood revoked, and terribly immoral to go about revoking somebody's personhood without their permission, but it's not exactly rare. Hundreds of people every year become non-people on the streets of Chicago alone. I don't find anything philosophically troubling in that.
I'm expecting a complaint here that it's not that dead people aren't people, it's just that they're not living people. But it seems to me that for the purposes of the present discussion, a "person" is somebody who is currently entitled to moral weight. While live people are entitled to moral weight, which makes it wrong to kill them, I know of very few non-animistic belief systems that require one to give weight to dead people per se, rather than to their acheivements, culture, and all the rest.
The argument for viability strikes me as a good one. It does dodge the "when is a fetus human" question, I think, but might well answer the "when is abortion objectionable" question all the same. So that's nice.
But as to the anti-personhood gun, I'd maintain that it's not that troubling of a concept. In the sense of "person-hood" that I mean, we already have them. They're called pistols. After all, once you're dead, you're not really a person any more (barring some conception of the afterlife, wholly outside the realm of my consideration here). Most people think you have basically no legal/moral rights at all once you're dead, except for whatever "honoring of your memory" people choose to indulge you with. The American and British legal systems recognize this too-- something called the rule of perpetuities essentially makes it very difficult to express one's preference from the grave, even if you're very explicity about those preferences before you make it to the grave.
So, yes, it's nasty to have one's person-hood revoked, and terribly immoral to go about revoking somebody's personhood without their permission, but it's not exactly rare. Hundreds of people every year become non-people on the streets of Chicago alone. I don't find anything philosophically troubling in that.
I'm expecting a complaint here that it's not that dead people aren't people, it's just that they're not living people. But it seems to me that for the purposes of the present discussion, a "person" is somebody who is currently entitled to moral weight. While live people are entitled to moral weight, which makes it wrong to kill them, I know of very few non-animistic belief systems that require one to give weight to dead people per se, rather than to their acheivements, culture, and all the rest.
An anti-personhood gun?
Below, Will expresses his discomfort with the idea that personhood might be a exogenously defined by technological change. On the other hand, he seems less troubled by the possibility that a fetus' personhood could change as a result of "things that are done to it." I'd like to suggest that the relative levels of concern here are precisely backwards.
In reverse order: quite frankly, the idea that an already-existing entity can have its personhood granted or revoked by things that are done to it is open to lots of really scary scenarious. It seems to me that if personhood is a morally relevant category, we would prefer to prevent others from changing our personhood for us, especially given that the revocation of personhood generally precedes really nasty actions that shock us when they are performed on persons.
Regarding the technological question: another way to think of it is to realize that the definition of personhood is, in fact, remaining constant in the scenario of fluctuating medical technology: a fetus post-viability. All that changes is the number of days after sperm and egg unite at which this milestone is reached. Why is this so problematic? An analogy: a nice young man, John, steps on a nail and gets tetanus. He goes to the local doctor, who happens to be a very skilled doctor, well-known for his abilities. The doctor looks him over, says that if anyone can help John, he can--no need for a second opinion--but admits that the situation looks grim. He fails to prescribe antibiotics, and John dies. Is the doctor morally culpable for contributing to John's death by negligence?
Clearly, this depends on whether John is living in the 12th century or the 21st century. I am quite willing to say that 12th-century John has no right to blame the doctor, while 21st century John does. Indeed, I am willing to parallel Will's hypotheticals: if aliens gave antibiotics to us in the 12th century, the doctor's inaction would quickly become culpable negligence; members of those cultures right now who lack knowledge of antibiotics cannot blame their healers for failing to cure tetanus; if a nuclear apocalypse shattered civilization and we lost all knowledge of antibiotics, dying of tetanus would once again fail to give anyone the right to blame their doctors. I don't see how any variant of morality that cares one whit about consequences and/or forgone opportunities can avoid the fact that exogenous technological change is morally relevant. And this isn't a bad thing.
Below, Will expresses his discomfort with the idea that personhood might be a exogenously defined by technological change. On the other hand, he seems less troubled by the possibility that a fetus' personhood could change as a result of "things that are done to it." I'd like to suggest that the relative levels of concern here are precisely backwards.
In reverse order: quite frankly, the idea that an already-existing entity can have its personhood granted or revoked by things that are done to it is open to lots of really scary scenarious. It seems to me that if personhood is a morally relevant category, we would prefer to prevent others from changing our personhood for us, especially given that the revocation of personhood generally precedes really nasty actions that shock us when they are performed on persons.
Regarding the technological question: another way to think of it is to realize that the definition of personhood is, in fact, remaining constant in the scenario of fluctuating medical technology: a fetus post-viability. All that changes is the number of days after sperm and egg unite at which this milestone is reached. Why is this so problematic? An analogy: a nice young man, John, steps on a nail and gets tetanus. He goes to the local doctor, who happens to be a very skilled doctor, well-known for his abilities. The doctor looks him over, says that if anyone can help John, he can--no need for a second opinion--but admits that the situation looks grim. He fails to prescribe antibiotics, and John dies. Is the doctor morally culpable for contributing to John's death by negligence?
Clearly, this depends on whether John is living in the 12th century or the 21st century. I am quite willing to say that 12th-century John has no right to blame the doctor, while 21st century John does. Indeed, I am willing to parallel Will's hypotheticals: if aliens gave antibiotics to us in the 12th century, the doctor's inaction would quickly become culpable negligence; members of those cultures right now who lack knowledge of antibiotics cannot blame their healers for failing to cure tetanus; if a nuclear apocalypse shattered civilization and we lost all knowledge of antibiotics, dying of tetanus would once again fail to give anyone the right to blame their doctors. I don't see how any variant of morality that cares one whit about consequences and/or forgone opportunities can avoid the fact that exogenous technological change is morally relevant. And this isn't a bad thing.
Viability as a guidepost in abortion debates: inevitable, yet unacceptable?
Let me weigh in a bit on the discussion about the coherency of viability versus birth/conception (links here, here, and here.
Viability remains compelling to many people because it address two of the crucial concerns in the debate: "how similiar is the fetus to me?" and "what are the costs to the mother?" The ability of the fetus to live outside the womb captures an important part of one widely-held conception of humanity: autonomy. It's clearly not simply a malignant growth inside the mother if it can be removed and still live. More importantly, if it can live outside the womb, it's hard to make the Judith Jarvis Thomson argument that the mother should not be required to suffer to support something attached to her. Indeed, the first response to those who argue for the acceptability of post-viability abortions is simply, "Why kill it? Even if it's probably not a person, or only half a person, or one-tenth of a person, why not just extract it and offer it for adoption?" The Thomson argument is a self-defense one, but self-defense only justifies deadly force when lesser alternatives are impracticable. Viability means there are alternatives.
The reason that viability is, to my mind, an almost inevitable line to draw is that most people acknowledge that the personhood question is hard. Even the most fervent pro-choice activists probably acknowledge the possibility that the fetus is, in fact, fully human, and such small doubts are then vulnerable to the question above: "why deadly force, when extraction and adoption will serve the same purpose?" Unless one is willing to defend a version of parental despotism that insists on a mother's absolute (and general) right to not merely alienate but destroy her progeny (Hobbes?), post-viability abortions are hard to square, at least in an abstract sense, with even small metaphysical uncertainty.
I say "in the abstract" because I'm (mis)using "viability" here to mean something a little stronger than is really proper; I'm picturing a utopia in which fetuses labeled "viable" can be extracted from the mother by a procedure no more invasive or costly than an abortion, and in which those fetuses will suffer no adverse developmental consequences as a result of this. This neat definitional trick means that post-viability abortions can't be justified by the costs to the mother, either physical or monetary; it obviously departs vastly from the real world. I nevertheless think it captures part of why so few attempt to argue for post-viability abortions.
Let me weigh in a bit on the discussion about the coherency of viability versus birth/conception (links here, here, and here.
Viability remains compelling to many people because it address two of the crucial concerns in the debate: "how similiar is the fetus to me?" and "what are the costs to the mother?" The ability of the fetus to live outside the womb captures an important part of one widely-held conception of humanity: autonomy. It's clearly not simply a malignant growth inside the mother if it can be removed and still live. More importantly, if it can live outside the womb, it's hard to make the Judith Jarvis Thomson argument that the mother should not be required to suffer to support something attached to her. Indeed, the first response to those who argue for the acceptability of post-viability abortions is simply, "Why kill it? Even if it's probably not a person, or only half a person, or one-tenth of a person, why not just extract it and offer it for adoption?" The Thomson argument is a self-defense one, but self-defense only justifies deadly force when lesser alternatives are impracticable. Viability means there are alternatives.
The reason that viability is, to my mind, an almost inevitable line to draw is that most people acknowledge that the personhood question is hard. Even the most fervent pro-choice activists probably acknowledge the possibility that the fetus is, in fact, fully human, and such small doubts are then vulnerable to the question above: "why deadly force, when extraction and adoption will serve the same purpose?" Unless one is willing to defend a version of parental despotism that insists on a mother's absolute (and general) right to not merely alienate but destroy her progeny (Hobbes?), post-viability abortions are hard to square, at least in an abstract sense, with even small metaphysical uncertainty.
I say "in the abstract" because I'm (mis)using "viability" here to mean something a little stronger than is really proper; I'm picturing a utopia in which fetuses labeled "viable" can be extracted from the mother by a procedure no more invasive or costly than an abortion, and in which those fetuses will suffer no adverse developmental consequences as a result of this. This neat definitional trick means that post-viability abortions can't be justified by the costs to the mother, either physical or monetary; it obviously departs vastly from the real world. I nevertheless think it captures part of why so few attempt to argue for post-viability abortions.
Chatter:
Slate's Chatterbox recently characterized Bush as doing nothing but cutting taxes and fighting wars. Shocked to discover this is what Republicans claim they want in a president, he has changed his mind. Bush doesn't really do just those two things, he assures us now.
Well . . . yes. He's right this time. And this is why I'm not sure it's worth a libertarian's while to support President Bush. But would it really be so terrible if Republicans practiced what they seem to preach to Chatterbox?
Slate's Chatterbox recently characterized Bush as doing nothing but cutting taxes and fighting wars. Shocked to discover this is what Republicans claim they want in a president, he has changed his mind. Bush doesn't really do just those two things, he assures us now.
The problem with this strategy is that not even Republicans really want to limit government action to tax-cutting and war-fighting. Like Schiffren pondering a quickie with the commander in chief, they just want to daydream about it. It isn't even true that Republicans reject all new spending programs. Many senior citizens who vote Republican can't understand why Medicare won't cover pharmaceutical costs, which is why Bush has proposed a new (if insufficient) program to do so.
Well . . . yes. He's right this time. And this is why I'm not sure it's worth a libertarian's while to support President Bush. But would it really be so terrible if Republicans practiced what they seem to preach to Chatterbox?
A Losing Battle:
I feel obligated to report on these. Slate has posted another Bushism of the day:
Woo-hoo. He said exploit instead of explore. Does anybody even care?
I feel obligated to report on these. Slate has posted another Bushism of the day:
"We've got hundreds of sites to exploit, looking for the chemical and biological weapons that we know Saddam Hussein had prior to our entrance into Iraq."
Woo-hoo. He said exploit instead of explore. Does anybody even care?
Err...:
Being one of the only two bloggers here from Indiana, I'd better post this before anybody else here manages to. The Elkhart County Administration Building has been displaying the Indiana Constitution, only they got it wrong. The Indiana Constitution does not grant Hoosiers the "indefeasible right to worship almighty God according to the dictates of their own conscience." That's actually from Tennessee's Constitution. Indiana's preamble reads:
The Elkhart Posters replaced the preamble with part of the Tennessee Constitution's Article 3:
I'm just confused. How did this happen?
Being one of the only two bloggers here from Indiana, I'd better post this before anybody else here manages to. The Elkhart County Administration Building has been displaying the Indiana Constitution, only they got it wrong. The Indiana Constitution does not grant Hoosiers the "indefeasible right to worship almighty God according to the dictates of their own conscience." That's actually from Tennessee's Constitution. Indiana's preamble reads:
TO THE END, that justice be established, public order maintained, and liberty perpetuated; WE, the People of the State of Indiana, grateful to ALMIGHTY GOD for the free exercise of the right to choose our own form of government, do ordain this Constitution.
The Elkhart Posters replaced the preamble with part of the Tennessee Constitution's Article 3:
That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any minister against his consent; that no human authority can, in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given, by law, to any religious establishment or mode of worship.
I'm just confused. How did this happen?
Quickie
Juan Non-Volokh has a post on whether immigrants are sufficiently black. Good, but I think he misses a major point, which is the immigrants are not a random sample of the population of their country. Rather immigrants are the ones with sufficient drive, resources, connections, adventurousness or creativity to migrate. One would expect these same traits to help them succeed out of proportion to a random sample of the population.
Juan Non-Volokh has a post on whether immigrants are sufficiently black. Good, but I think he misses a major point, which is the immigrants are not a random sample of the population of their country. Rather immigrants are the ones with sufficient drive, resources, connections, adventurousness or creativity to migrate. One would expect these same traits to help them succeed out of proportion to a random sample of the population.
Lines Redux:
Amy attempts to spoil my sport by arguing that "life at birth" and "life at conception" lines are just as fuzzy as "life at viability". To counter my thought-experiment of increasing/decreasing fetus support technology she offers womb-implantation and cloning technologies. I think that these examples aren't all the same.
It doesn't seem troubling to me to have a definition of human that affords the possibility of a human becoming non-human and then human again over the course of his life. If we ever invent resurrection technology, for example, this problem will be with us regardless of where we stand on feticide/abortion. What's particularly troubling to me about the "live at viability" thought experiments is that they grade a fetuses's human-ness based on things that haven't been done to it at all, and things that sometimes could be entirely secret from it. With womb-implantation, on the other hand, the fetus becomes human and non-human because things are done to it. To me, at least, this makes much more philosophical sense.
This distinction is part of the larger debate, as well, so I think it's only fair to open up the bigger question that underlies this. Should a thing's humanity be based on its qualities or on its potential qualities? My own intuition is to say that a things humanities should be determined by the things about it, not by the exogenous state of OB/GYN technology. But one could plausibly argue the other way-- just as babies are valuable because they will one day become free-thinking adults, upright citizens, or mass-murderers, fetuses are valuable because they will one day become babies. Maybe so. On the other hand, the "potential" argument may prove too much. After all, fertilized eggs may one day become fetuses, and unfertilized eggs may one day become fertilized eggs. For that matter, free-floating carbon, oxygen, and all the rest may one day become human egg cells. And so on.
So what's needed here is a sensible balance between these two measuring sticks, or else a sensible stopping point to one of them. I presume most pro-abortion people would be against infanticide, and I presume most anti-abortion people are willing to tolerate the wanton dissipation of carbon atoms (well, not too wanton), and probably even sperm. These limiting principles constrain the debate, but they do not make it impossible to draw sensible lines. I'll remain agnostic about where the proper place to draw that line actually is though I hope I've made clear that the "viability" line, based as it is in hypotheticals and potentials, is significantly squisier than the birth line, and possibly even the conception line (if one demands at least one reproductive duplication).
Whew. But all of this underscores the broader point which ought to underlie the abortion debate but does not. Behind a veil of ignorance, what body--legislative of judicial-- would we trust/want to make these judgments about the definition of humanity?
Amy attempts to spoil my sport by arguing that "life at birth" and "life at conception" lines are just as fuzzy as "life at viability". To counter my thought-experiment of increasing/decreasing fetus support technology she offers womb-implantation and cloning technologies. I think that these examples aren't all the same.
It doesn't seem troubling to me to have a definition of human that affords the possibility of a human becoming non-human and then human again over the course of his life. If we ever invent resurrection technology, for example, this problem will be with us regardless of where we stand on feticide/abortion. What's particularly troubling to me about the "live at viability" thought experiments is that they grade a fetuses's human-ness based on things that haven't been done to it at all, and things that sometimes could be entirely secret from it. With womb-implantation, on the other hand, the fetus becomes human and non-human because things are done to it. To me, at least, this makes much more philosophical sense.
This distinction is part of the larger debate, as well, so I think it's only fair to open up the bigger question that underlies this. Should a thing's humanity be based on its qualities or on its potential qualities? My own intuition is to say that a things humanities should be determined by the things about it, not by the exogenous state of OB/GYN technology. But one could plausibly argue the other way-- just as babies are valuable because they will one day become free-thinking adults, upright citizens, or mass-murderers, fetuses are valuable because they will one day become babies. Maybe so. On the other hand, the "potential" argument may prove too much. After all, fertilized eggs may one day become fetuses, and unfertilized eggs may one day become fertilized eggs. For that matter, free-floating carbon, oxygen, and all the rest may one day become human egg cells. And so on.
So what's needed here is a sensible balance between these two measuring sticks, or else a sensible stopping point to one of them. I presume most pro-abortion people would be against infanticide, and I presume most anti-abortion people are willing to tolerate the wanton dissipation of carbon atoms (well, not too wanton), and probably even sperm. These limiting principles constrain the debate, but they do not make it impossible to draw sensible lines. I'll remain agnostic about where the proper place to draw that line actually is though I hope I've made clear that the "viability" line, based as it is in hypotheticals and potentials, is significantly squisier than the birth line, and possibly even the conception line (if one demands at least one reproductive duplication).
Whew. But all of this underscores the broader point which ought to underlie the abortion debate but does not. Behind a veil of ignorance, what body--legislative of judicial-- would we trust/want to make these judgments about the definition of humanity?
My Other Hobby
Due to an upcoming ballet performance, my posting volume will continue to remain light for the rest of the week. But for those of you in Chicago, University Ballet is putting on a Tribute to the Great Ballets at International House may 16th and 17th. Tickets will be on sale at the Reynold's Club Marketplace between 11 and 2 all of this week, and after this weekend's rehearsals I can confidently say that it promises to be a great show.
Due to an upcoming ballet performance, my posting volume will continue to remain light for the rest of the week. But for those of you in Chicago, University Ballet is putting on a Tribute to the Great Ballets at International House may 16th and 17th. Tickets will be on sale at the Reynold's Club Marketplace between 11 and 2 all of this week, and after this weekend's rehearsals I can confidently say that it promises to be a great show.
Drawing Lines in Shifting Sand
Will has complained about the "fetus as human when viable" argument because it gets us into all sorts of philosophical tangles. The problem is that the "life begins at birth" position doesn't really get us out of them. If the fact that humanity results merely from moving from point a (the womb) to point b (the hospital bassinet) doesn't strike you as bothersome, or that a fetus born prematurely at seven months and unable to breathe for itself is human while a nine month old fetus that will be born tomorrow is not isn't problematic, consider this thought experiment. Suppose we could develop a technology that would allow us to put prematurely born babies back inside their mothers. Would they be human when they were born for the first time, then become not-human again when they went back inside the womb? And while we're on the subject, what about identical twins? When one is born and other has not yet, is one human and the other not?
And to be an equal-opportunity spoilsport, for those who say that life begins at conception, suppose we perfect our cloning technology so that any cell in a person's body is only a few laboratory processes away from becoming a zygote, capable of developing into a fully-grown human, eighteen years down the road. Is each of a person's cells then an independent human life? Obviously not. Now suppose we started cloning humans. We want to give the clones human status, but we don't want to give single cells human status. So where do we draw the line? The first cell division? Implantation in the womb? Viability? Birth?
The reason that abortion remains such a divisive issue is not because half the country in incapable of understanding a reasoned argument. It's because no matter where you draw the line, you're trying to find a sharp distinction in a process that is inherently gradual.
Will has complained about the "fetus as human when viable" argument because it gets us into all sorts of philosophical tangles. The problem is that the "life begins at birth" position doesn't really get us out of them. If the fact that humanity results merely from moving from point a (the womb) to point b (the hospital bassinet) doesn't strike you as bothersome, or that a fetus born prematurely at seven months and unable to breathe for itself is human while a nine month old fetus that will be born tomorrow is not isn't problematic, consider this thought experiment. Suppose we could develop a technology that would allow us to put prematurely born babies back inside their mothers. Would they be human when they were born for the first time, then become not-human again when they went back inside the womb? And while we're on the subject, what about identical twins? When one is born and other has not yet, is one human and the other not?
And to be an equal-opportunity spoilsport, for those who say that life begins at conception, suppose we perfect our cloning technology so that any cell in a person's body is only a few laboratory processes away from becoming a zygote, capable of developing into a fully-grown human, eighteen years down the road. Is each of a person's cells then an independent human life? Obviously not. Now suppose we started cloning humans. We want to give the clones human status, but we don't want to give single cells human status. So where do we draw the line? The first cell division? Implantation in the womb? Viability? Birth?
The reason that abortion remains such a divisive issue is not because half the country in incapable of understanding a reasoned argument. It's because no matter where you draw the line, you're trying to find a sharp distinction in a process that is inherently gradual.
Judges:
So I'm linking to a Bob Herbert column. There. You're warned. This is a liberal complaint about nominee Carolyn Kuhl, and it resembles a lot of the complaints against Deborah Cook. I think the format is very dangerous-- it's usually of the form: here's a case in which a woman or a minority or disadvantaged person lost. Here's our nominee writing the opinion making them lose. The alternative version, as Herbert's column is, is: here's a case where a woman won. Here's our nominee dissenting.
Argument by anecdote is usually specious. It is especially specious when done for judges. I would be deeply worried about any judicial nominee, from either side of the aisle, who had judicial experience but had never ruled against an underprivileged person. For that matter, I'd be deeply worried about any nominee who'd never done anything that Bob Herbert disapproved of. Herbert criticizes the ruling, but doesn't delve into the law. So Kuhl ruled that a woman could not sue her doctor for letting a stranger stare at her breasts because she hadn't complained at the time. Judge Kuhl applied a legal rule, and according to the 9th circuit, applied it wrongly (of course, had she gotten a different panel, or been in a different circuit, she might well have been affirmed, and then I don't know where Herbert's argument would be).
But so what? An example doesn't make a pattern, and even if there were a pattern, it would show Judge Kuhl as a very rules-boud judge, who tends to apply fairly strict and inflexible rules. She may not be warm and fuzzy, but there's no case to be made that she isn't fair and even-handed.
I don't mind the criticism of judges or partisan battles over appointments. But to snipe at Kuhl because she believed the "humiliation of a seriously ill woman in the supposed sanctity of her doctor's office was quite O.K." in one circumstance is unfair. Judges, especially District Judges, have to rule on technicalities all the time. Papers are filed wrongly, rights are unknowingly waved, and statutes of limitations run out. Consider this recent opinion by Judge Diane Wood of the seventh circuit, for example. Sometimes they get the technicalities wrong, but they shouldn't ever get them wrong on purpose.
One last thing. If Herbert thinks that being overturned by a 9th-circuit Appellate panel is a sign that a judge is "way out of the mainstream," he should examine the 9th circuit's Supreme Court reversal rate.
So I'm linking to a Bob Herbert column. There. You're warned. This is a liberal complaint about nominee Carolyn Kuhl, and it resembles a lot of the complaints against Deborah Cook. I think the format is very dangerous-- it's usually of the form: here's a case in which a woman or a minority or disadvantaged person lost. Here's our nominee writing the opinion making them lose. The alternative version, as Herbert's column is, is: here's a case where a woman won. Here's our nominee dissenting.
Argument by anecdote is usually specious. It is especially specious when done for judges. I would be deeply worried about any judicial nominee, from either side of the aisle, who had judicial experience but had never ruled against an underprivileged person. For that matter, I'd be deeply worried about any nominee who'd never done anything that Bob Herbert disapproved of. Herbert criticizes the ruling, but doesn't delve into the law. So Kuhl ruled that a woman could not sue her doctor for letting a stranger stare at her breasts because she hadn't complained at the time. Judge Kuhl applied a legal rule, and according to the 9th circuit, applied it wrongly (of course, had she gotten a different panel, or been in a different circuit, she might well have been affirmed, and then I don't know where Herbert's argument would be).
But so what? An example doesn't make a pattern, and even if there were a pattern, it would show Judge Kuhl as a very rules-boud judge, who tends to apply fairly strict and inflexible rules. She may not be warm and fuzzy, but there's no case to be made that she isn't fair and even-handed.
I don't mind the criticism of judges or partisan battles over appointments. But to snipe at Kuhl because she believed the "humiliation of a seriously ill woman in the supposed sanctity of her doctor's office was quite O.K." in one circumstance is unfair. Judges, especially District Judges, have to rule on technicalities all the time. Papers are filed wrongly, rights are unknowingly waved, and statutes of limitations run out. Consider this recent opinion by Judge Diane Wood of the seventh circuit, for example. Sometimes they get the technicalities wrong, but they shouldn't ever get them wrong on purpose.
One last thing. If Herbert thinks that being overturned by a 9th-circuit Appellate panel is a sign that a judge is "way out of the mainstream," he should examine the 9th circuit's Supreme Court reversal rate.
Drawing Lines:
Susan Ferrari stakes out her own opinion on "the line" at which a fetus becomes a human. She also announces that the fetus-as-semi-benevolent-parasite characterization "is so biologically naive that it really makes me angry." She does not, however, disclose what she thinks of the Connecticut court's ruling that a fetus is a body part.
She does raise an interesting problem with the "human when viable" line. Advances in medicine make it more and more possible to support younger fetuses outside of the womb. From a philosophical point of view, it seems odd that an external medical development can affect the humanity of the thing in the womb. Thought experiments, for those of you who think a fetus is human when it can survive outside of the mother:
Suppose aliens landed and gave a new technology to the world, allowing 14-week-old fetusesto be supported outside of the womb by doctors. Would all of those babies suddenly become human?
Now suppose the aliens had landed and given the technology only to the Dalai Lama and a select group of Tibetan monks. Would 14-week-old Tibetan fetuses be human, while 16-week-old American fetuses were not? Or would the American babies be human without anybody knowing it? What implications would that have for the morality of American abortions?
The toughie: Suppose that the aliens came to earth and bestowed the technology to all, turning 14-week-old fetuses into humans. Now suppose that something terrible happened throughout all major hospitals, and the technology was destroyed. Would those fetuses that were formerly humans become inhuman? What if some nuclear apocalypse struck, and all hospitals and doctors were destroyed altogether? Would any fetuses be human?
The human-when-viable argument has a nice ring to it, and strikes many people (I think) as a nice compromise between "life begins at birth" and "life begins at conception." All the same, to quote Richard Epstein (from an entirely different topic), the human-when-viable line is "...trying to draw a sharp line in the sand when in fact the wind and the water are blowing and you have no idea where it is."
Susan Ferrari stakes out her own opinion on "the line" at which a fetus becomes a human. She also announces that the fetus-as-semi-benevolent-parasite characterization "is so biologically naive that it really makes me angry." She does not, however, disclose what she thinks of the Connecticut court's ruling that a fetus is a body part.
She does raise an interesting problem with the "human when viable" line. Advances in medicine make it more and more possible to support younger fetuses outside of the womb. From a philosophical point of view, it seems odd that an external medical development can affect the humanity of the thing in the womb. Thought experiments, for those of you who think a fetus is human when it can survive outside of the mother:
Suppose aliens landed and gave a new technology to the world, allowing 14-week-old fetusesto be supported outside of the womb by doctors. Would all of those babies suddenly become human?
Now suppose the aliens had landed and given the technology only to the Dalai Lama and a select group of Tibetan monks. Would 14-week-old Tibetan fetuses be human, while 16-week-old American fetuses were not? Or would the American babies be human without anybody knowing it? What implications would that have for the morality of American abortions?
The toughie: Suppose that the aliens came to earth and bestowed the technology to all, turning 14-week-old fetuses into humans. Now suppose that something terrible happened throughout all major hospitals, and the technology was destroyed. Would those fetuses that were formerly humans become inhuman? What if some nuclear apocalypse struck, and all hospitals and doctors were destroyed altogether? Would any fetuses be human?
The human-when-viable argument has a nice ring to it, and strikes many people (I think) as a nice compromise between "life begins at birth" and "life begins at conception." All the same, to quote Richard Epstein (from an entirely different topic), the human-when-viable line is "...trying to draw a sharp line in the sand when in fact the wind and the water are blowing and you have no idea where it is."
Somebody Understands:
So I'm currently trying to imagine how I'm going to get all of these books home-- they're in boxes all over my living room. Currently I have 17 boxes, and it's definitely less than half done. If only the post office would pick them up . . . But I am comforted with the discovery that Gabriel Garcia Marquez understands:
So I'm currently trying to imagine how I'm going to get all of these books home-- they're in boxes all over my living room. Currently I have 17 boxes, and it's definitely less than half done. If only the post office would pick them up . . . But I am comforted with the discovery that Gabriel Garcia Marquez understands:
The bookcases in the various houses he lived in were always crammed full, and the bedrooms and hallways were turned into narrow passes between steep cliffs of books and mountains of errant documents that proliferated as he passed and pursued him without mercy in their quest for archival peace. He never was able to read all the books he owned. When he moved to another city he left them in the care of his most trustworthy friends, although he never heard anything about them again, and his life of fighting obliged him to leave behind a trail of books and papers stretching over four hundred leagues from Bolivia to Venezuela.
. . . he unleashed a string of Carthaginian curses at the railroad inspectors who tried to ship (his papers) as freight until he finally succeeded in keeping them with him in the passenger coach. “The world must be all fucked up,” he said then, “when men travel first class and literature goes as freight.
Sunday, May 11, 2003
New Guard v. Old Guard:
In response to the Jayson Blair debacle, Instapundit has now taken down the quote declaring him "The New York Times of the bloggers." [Wow. Two Instapundit links in one weekend. You're shaking our faith.--eds. Yeah, yeah.]
On the one hand, I think the Times's front page coverage of its own great failure speaks fairly well of it. On the other hand, it makes me worry about trusting it again. And this quote from the end of the article doesn't make me feel any fuzzier: Tom Rosenstiel, director of the Project for Excellence in Journalism, questioned how much a newspaper can guard against willful fraud by deceitful reporters.
Well, fine. It may be difficult to catch deliberate deceivers, but it seems to me to be tremendously important. A lot is at stake with New York Times coverage (though perhaps less will be if this happens again). The Times ought to recognize that and protect its integrity accordingly, even if that means that "creativity" has to suffer for "accuracy".
In response to the Jayson Blair debacle, Instapundit has now taken down the quote declaring him "The New York Times of the bloggers." [Wow. Two Instapundit links in one weekend. You're shaking our faith.--eds. Yeah, yeah.]
On the one hand, I think the Times's front page coverage of its own great failure speaks fairly well of it. On the other hand, it makes me worry about trusting it again. And this quote from the end of the article doesn't make me feel any fuzzier: Tom Rosenstiel, director of the Project for Excellence in Journalism, questioned how much a newspaper can guard against willful fraud by deceitful reporters.
"It's difficult to catch someone who is deliberately trying to deceive you," Mr. Rosenstiel said. "There are risks if you create a system that is so suspicious of reporters in a newsroom that it can interfere with the relationship of creativity that you need in a newsroom — of the trust between reporters and editors."
Well, fine. It may be difficult to catch deliberate deceivers, but it seems to me to be tremendously important. A lot is at stake with New York Times coverage (though perhaps less will be if this happens again). The Times ought to recognize that and protect its integrity accordingly, even if that means that "creativity" has to suffer for "accuracy".
Deconstructing The Criterion:
A reader emails to tell me that Matthew Yglesias and I are wrong to be confused by Sara Butler's Criterion essay which she explains for herself here. The reader writes:
A reader emails to tell me that Matthew Yglesias and I are wrong to be confused by Sara Butler's Criterion essay which she explains for herself here. The reader writes:
dude-- sarah butler's article in the criterion was brilliant. what are you so confused about? she's taking the conservative view and parodying it. that she also happens to agree with it doesn't preclude her taking the general strategy to its hilarious extreme. you also have to understand the dynamic of the criterion-- people who are "serious" about that publication have mastered the art of telling the truth and lying at the same time-- whoever understands their prose as *either* one *or* the other is missing the fun.
i'm not sure if i'll stand by the claim that this *is* in fact the criterion's dynamic-- but i think it's the only way to read that rag and maintain one's sanity. it's definitely what sarah's doing. i'm pretty sure that's what justin's doing. i can't tell about dan sullivan. and this is nels frye's active philosophy to life (as far as i can tell), whether he knows it or not.
Mannerly Devotion:
Miss Manners has been interviewed by the American Enterprise Institute, and the results are charming. Excerpts:
Miss Manners has been interviewed by the American Enterprise Institute, and the results are charming. Excerpts:
Miss Manners: The higher the Southern family pretensions, the more likely the children were to be receiving daily etiquette instruction from someone whose strict sense of the fitting came from her own cultural background--the house slave who occupied the position known as Mammy. Charles Dickens was among those who noticed that Southern ladies spoke like their black nurses.
Miss Manners: Parents and clergy often deplore the manners depicted on TV and they blame it for bad behavior in society. Well, for goodness' sake, TV is supposed to be entertainment. If it consisted only of people behaving themselves there wouldn't be anything to watch.
Miss Manners: A busy signal is a quick, efficient, and free way of notifying people that one's line is busy. Why anyone would pay extra for the privilege of offending current callers while having to make this explanation himself, I can't imagine.
AEI: When you reviewed movies for the Washington Post, you gave negative critiques to more than 30 films in a row. Were they really that bad?
Compensation:
So for the first time, I'm going to link to an Instapundit post. He joins the New York Times in complaining that wrongfully convicted criminals later released get paltry compensation-- a max of ten thousand dollars in California. I agree that that's disgraceful. Seems to me that one deserves at least all lost wages plus 1-2 hundred thousand dollars a year in damages. After all, ask yourself . . . how much would somebody have to pay you to get you to live in jail for a year? What about prison? Even once you discount that because we're all willing to accept some risk of being wrongfully convicted in exchange for a safer society, I think you arrive at very large sums, or should. While we're fixing the death penalty, can we fix this too?
So for the first time, I'm going to link to an Instapundit post. He joins the New York Times in complaining that wrongfully convicted criminals later released get paltry compensation-- a max of ten thousand dollars in California. I agree that that's disgraceful. Seems to me that one deserves at least all lost wages plus 1-2 hundred thousand dollars a year in damages. After all, ask yourself . . . how much would somebody have to pay you to get you to live in jail for a year? What about prison? Even once you discount that because we're all willing to accept some risk of being wrongfully convicted in exchange for a safer society, I think you arrive at very large sums, or should. While we're fixing the death penalty, can we fix this too?
Filibusters:
Steven Jens, admitting that the proposed filibuster amendments filled him with expletives, suggests that Bill Frist's decreasing filibuster " will suffice, provided it diminishes sufficiently slowly."
I don't think so. Frist's proposal is that the number of votes required to acheive cloture decrease by three every time the vote is taken, with votes taken a maximum of every three days. So after nine days, any filibuster can be broken by 51 votes. Even if the time limit were dobule or triple that, I think that this completely obliterates the purpose of the filibuster rule.
Let us be clear about something. The filibuster was not designed to ensure "full and fair debate". The folks in the Senate have pretty much got their minds made up, pretty much most of the time-- if not by their own ideologies, then by some party leader or important contributor or constituent base. The purpose of the filibuster is to allow the minority party to get its way so long as it is willing to make a big stink about it. Just like the ability of committee chairmen to kill bills in committee, the House Speaker to suppress opposing motions, or the ability of home-state Senators to "blue slip" a judicial nominee. These are not subversions of congressional rules; these are congressional rules in action.
Recognizing that they are sometimes in and sometimes out, Senators decided a long time ago to create a system to stabilize power relations, to some degree. A diminishing filibuster will allow plenty of debate, it is true, but it fails to serve the true purpose of the filibuster, which is to allow minority check against majority rule. What is the check against the minority, you ask? Elections in November.
And what of "The Goat"'s doubt that the filibuster is constitutional? An avowed textualist should note that the constitution does not forbid the Senate from establishing its own rules of procedure. A filibuster is at least as constitutional as the rule of lenity.
Steven Jens, admitting that the proposed filibuster amendments filled him with expletives, suggests that Bill Frist's decreasing filibuster " will suffice, provided it diminishes sufficiently slowly."
I don't think so. Frist's proposal is that the number of votes required to acheive cloture decrease by three every time the vote is taken, with votes taken a maximum of every three days. So after nine days, any filibuster can be broken by 51 votes. Even if the time limit were dobule or triple that, I think that this completely obliterates the purpose of the filibuster rule.
Let us be clear about something. The filibuster was not designed to ensure "full and fair debate". The folks in the Senate have pretty much got their minds made up, pretty much most of the time-- if not by their own ideologies, then by some party leader or important contributor or constituent base. The purpose of the filibuster is to allow the minority party to get its way so long as it is willing to make a big stink about it. Just like the ability of committee chairmen to kill bills in committee, the House Speaker to suppress opposing motions, or the ability of home-state Senators to "blue slip" a judicial nominee. These are not subversions of congressional rules; these are congressional rules in action.
Recognizing that they are sometimes in and sometimes out, Senators decided a long time ago to create a system to stabilize power relations, to some degree. A diminishing filibuster will allow plenty of debate, it is true, but it fails to serve the true purpose of the filibuster, which is to allow minority check against majority rule. What is the check against the minority, you ask? Elections in November.
And what of "The Goat"'s doubt that the filibuster is constitutional? An avowed textualist should note that the constitution does not forbid the Senate from establishing its own rules of procedure. A filibuster is at least as constitutional as the rule of lenity.
Saturday, May 10, 2003
Not all odd on campus comes from Scavhunt:
The laminated leaves that Will notes hanging on the trees are courtesy of FOTA, Festival of the Arts, a giant exhibit of student artwork that has invaded the libraries and other public places. The party held underneath that tree for which I sewed mesh and pipecleaner mermaid fins -- that was Scavhunt.
The laminated leaves that Will notes hanging on the trees are courtesy of FOTA, Festival of the Arts, a giant exhibit of student artwork that has invaded the libraries and other public places. The party held underneath that tree for which I sewed mesh and pipecleaner mermaid fins -- that was Scavhunt.
Activity:
Sara Butler is inexplicably miffed at the Washington Post's characterizing James Kopp as an activist. I don't know why. He's been "active" in supporting the anti-abortion cause. Granted, he obviously has different principles from much (most, I hope) of the anti-abortion movement, but I don't think that gives the anti-abortionists permission to write him out. No more than it gives, say, leftist feminists the right to declare that conservatives aren't feminists . . .
Sara Butler is inexplicably miffed at the Washington Post's characterizing James Kopp as an activist. I don't know why. He's been "active" in supporting the anti-abortion cause. Granted, he obviously has different principles from much (most, I hope) of the anti-abortion movement, but I don't think that gives the anti-abortionists permission to write him out. No more than it gives, say, leftist feminists the right to declare that conservatives aren't feminists . . .
Diotimawatch:
Shonda Werry writes:
Now, I think Bush has appointed a lot of qualified men and women to the bench. But even when a president's judicial nominees have to elicit support from the opposing party, it seems clear to me that they lean more towards his ideology than to his opponent's. And... last time I checked, the Constitution contained an advice and consent clause. And the Senate has full prerogative to figure out for itself what rules it wants to use when determining "consent".
Shonda Werry writes:
What's the point of having a conservative in the White House if we have to get permission from the ACLU before he can appoint conservative judges?
Now, I think Bush has appointed a lot of qualified men and women to the bench. But even when a president's judicial nominees have to elicit support from the opposing party, it seems clear to me that they lean more towards his ideology than to his opponent's. And... last time I checked, the Constitution contained an advice and consent clause. And the Senate has full prerogative to figure out for itself what rules it wants to use when determining "consent".
Scavhunt:
Jacob Levy gives his blessings to the scavhunters, now nearing the final stretch. Laminated leaves on trees, scantily clad men in weird grass bikinis, John Ashcroft's phone number, a burning bra, rickshaws, student-run mail services, and reports of my math T.A. wearing pipe-cleaner rabbit ears mark that very special time of spring quarter. Across the country, everybody else is finishing class. We're . . . just losing it.
Jacob Levy gives his blessings to the scavhunters, now nearing the final stretch. Laminated leaves on trees, scantily clad men in weird grass bikinis, John Ashcroft's phone number, a burning bra, rickshaws, student-run mail services, and reports of my math T.A. wearing pipe-cleaner rabbit ears mark that very special time of spring quarter. Across the country, everybody else is finishing class. We're . . . just losing it.
Copyright:
Sadly, I can't print excerpts of the book I'm reading because it's not yet published, or even ready for printing. All the same, it's sparked some general questions in me about intellectual property. How much do newspapers, for example, benefit from copyright law? Since much of the advantage of getting a newspaper story is in the timing, and the exact wording of most articles (opinion pieces excepted perhaps) is far from precious, and the sale costs are so low anyway (how elastic is newspaper demand), it might well be that copyright favors book production over periodical production. Is that desirable?
Later I may post some thoughts about the relationship between copyright and rentseeking.
Sadly, I can't print excerpts of the book I'm reading because it's not yet published, or even ready for printing. All the same, it's sparked some general questions in me about intellectual property. How much do newspapers, for example, benefit from copyright law? Since much of the advantage of getting a newspaper story is in the timing, and the exact wording of most articles (opinion pieces excepted perhaps) is far from precious, and the sale costs are so low anyway (how elastic is newspaper demand), it might well be that copyright favors book production over periodical production. Is that desirable?
Later I may post some thoughts about the relationship between copyright and rentseeking.
From the most recent issue of The Southern Review comes this piece on the King James Bible and the South.
"A kid who grows up on the KJV has no problem with Shakespeare. Or with Faulkner. Eudora Welty wrote: "How many of us, the South's writers-to-be of my generation, were blessed in one way or another, if not blessed alike, in not having gone deprived of the King James Version of the Bible. Its cadence entered our ears and our memories for good. The evidence, or the ghost of it, lingers in all our books."
Southern writers, yes, and southern preachers, too.
The sword of him that layeth at him cannot hold:
the spear, the dart, nor the habergeon.
Thou shalt not lend upon usury to thy brother,
usury of money, usury of victuals, usury of any thing
that is lent upon usury.
And if a woman have an issue, and her issue in her
flesh be blood, she shall be put apart seven days;
and whosoever toucheth her shall be unclean until
the even.
The habergeon? No worries. You tend to figure it out as you go. Or not."
- excerpt from "Habergeons, Victuals, and Wizards That Peep: Travels with the King James Bible" by Webb Harris Jr.
- OED: Habergeon: Worn as a rough garment for penance. Obs
"A kid who grows up on the KJV has no problem with Shakespeare. Or with Faulkner. Eudora Welty wrote: "How many of us, the South's writers-to-be of my generation, were blessed in one way or another, if not blessed alike, in not having gone deprived of the King James Version of the Bible. Its cadence entered our ears and our memories for good. The evidence, or the ghost of it, lingers in all our books."
Southern writers, yes, and southern preachers, too.
The sword of him that layeth at him cannot hold:
the spear, the dart, nor the habergeon.
Thou shalt not lend upon usury to thy brother,
usury of money, usury of victuals, usury of any thing
that is lent upon usury.
And if a woman have an issue, and her issue in her
flesh be blood, she shall be put apart seven days;
and whosoever toucheth her shall be unclean until
the even.
The habergeon? No worries. You tend to figure it out as you go. Or not."
- excerpt from "Habergeons, Victuals, and Wizards That Peep: Travels with the King James Bible" by Webb Harris Jr.
- OED: Habergeon: Worn as a rough garment for penance. Obs
Rest in peace, Senator Russell Billiu Long:
He was a Democrat from Louisiana and former chairman of the Finance Commission:
The NYT, Washington Post, and Baton Rouge Advocate all remember him. He had served for 37 years, elected to the Senate when just 29, forced to wait for a few days for his birthday to take the oath of office.
From the NYT: "In the heyday of the Southern chairmen, Russell was at the top of the list of big, strong figures representing the South, who were national leaders that every president had to deal with," said Representative Billy Tauzin, a Republican of Louisiana who is chairman of the House Energy and Commerce Committee. 'Nothing could happen without them.'
He was also one of the great storytellers, with a family history that provided an anecdote to match any mood. When tempers flared during especially bitter debates on the finance committee, Mr. Long would break the mood with a story of the escapades of his father or his equally colorful uncle, the former governor Earl Long.
He was also a master of political aphorism whose most memorable line, skewering his colleagues when they sought changes in his tax bills, is a perennial favorite in Washington: 'Don't tax you, don't tax me, tax that man behind the tree.'
But that was just one of his many insouciances that still seem timely.
'The distinction between a campaign contribution and a bribe is almost a hairline's difference,' he said in 1971.'"
His father was the governor and Senator Huey Pierce Long -- originally he was "III", but his father changed his name for fear it would hurt his career. He combined populism, a support of big business, and concern for state interests. His own legacy includes his support of the Earned Income Tax Credit and employee stock options.
It's the end of an era. I think I have the vaguest memories of him.
He was a Democrat from Louisiana and former chairman of the Finance Commission:
The NYT, Washington Post, and Baton Rouge Advocate all remember him. He had served for 37 years, elected to the Senate when just 29, forced to wait for a few days for his birthday to take the oath of office.
From the NYT: "In the heyday of the Southern chairmen, Russell was at the top of the list of big, strong figures representing the South, who were national leaders that every president had to deal with," said Representative Billy Tauzin, a Republican of Louisiana who is chairman of the House Energy and Commerce Committee. 'Nothing could happen without them.'
He was also one of the great storytellers, with a family history that provided an anecdote to match any mood. When tempers flared during especially bitter debates on the finance committee, Mr. Long would break the mood with a story of the escapades of his father or his equally colorful uncle, the former governor Earl Long.
He was also a master of political aphorism whose most memorable line, skewering his colleagues when they sought changes in his tax bills, is a perennial favorite in Washington: 'Don't tax you, don't tax me, tax that man behind the tree.'
But that was just one of his many insouciances that still seem timely.
'The distinction between a campaign contribution and a bribe is almost a hairline's difference,' he said in 1971.'"
His father was the governor and Senator Huey Pierce Long -- originally he was "III", but his father changed his name for fear it would hurt his career. He combined populism, a support of big business, and concern for state interests. His own legacy includes his support of the Earned Income Tax Credit and employee stock options.
It's the end of an era. I think I have the vaguest memories of him.
Friday, May 09, 2003
???:
And now I'm confused (as I often am). Sara Butler has this baffling essay in the Chicago Criterion. She suggests that our high divorce rate comes from the fact that we now expect marriage and love to go together, and that we ought to go back to the good old days, by which she means the 1200s. I discussed the article at length with one of my co-bloggers, and we finally decided we just couldn't tell whether she was serious or not, and if not, what she was actually advocating. Then along comes Matthew Yglesias, who decides the thing is serious, and takes Sara to task over it.
But then, Sara comes back, and without telling anybody what she actually meant, tells Matt that he got her all wrong. Since Sara Butler is busy with scavhunt, she says she can't explain what she actually meant (and at this point, I have to confess, I'm really starting to wonder), but does tell us that commenter Seth Gordon, "comes closest". Well, he says:
Well, okay. So she's not serious? This is where I get confused. Last time I checked, Sara was conservative, and did believe that a high divorce rate was bad. So perhaps she's displaying an admirable degree of self-mockery, in which case I'm impressed, but confused. Otherwise she's doing . . . something else, and I'm . . . just confused.
And now I'm confused (as I often am). Sara Butler has this baffling essay in the Chicago Criterion. She suggests that our high divorce rate comes from the fact that we now expect marriage and love to go together, and that we ought to go back to the good old days, by which she means the 1200s. I discussed the article at length with one of my co-bloggers, and we finally decided we just couldn't tell whether she was serious or not, and if not, what she was actually advocating. Then along comes Matthew Yglesias, who decides the thing is serious, and takes Sara to task over it.
But then, Sara comes back, and without telling anybody what she actually meant, tells Matt that he got her all wrong. Since Sara Butler is busy with scavhunt, she says she can't explain what she actually meant (and at this point, I have to confess, I'm really starting to wonder), but does tell us that commenter Seth Gordon, "comes closest". Well, he says:
If there's an Alan Sokal Award for "best parody that snuck into print past ideological editors who didn't see that the joke was on them", I'd like to nominate this essay. Shame on you all for not laughing.
There's a standard format for conservative screeds against various facets of modern culture: (1) The world sucks. (2) Back in the Good Old Days, it didn't. (3) Here is a characteristic of the Good Old Days which, due to the corruption of modernity, has been lost. (4) To restore the purity of the world, we must restore this characteristic of the Good Old Days.
Butler's essay is a brilliant parody of this format. While most conservatives locate the Good Old Days in the 1950s and tell a story of corruption that begins with women's lib, Butler's Good Old Days started decaying in the fifteenth century.
A sixteenth-century writer justifies the marriage of lovers from the Bible -- and Butler quotes him as a symptom of the problem. Clinton, the conservatives' paragon of vice, is held up as a role model.
Butler started the essay with a common conservative trope, decrying the high rate of divorce; she ends by saying it would be better to have a society with a high rate of socially acceptable adultery.
And she submitted all this to a conservative campus magazine! And they printed it!
Well, okay. So she's not serious? This is where I get confused. Last time I checked, Sara was conservative, and did believe that a high divorce rate was bad. So perhaps she's displaying an admirable degree of self-mockery, in which case I'm impressed, but confused. Otherwise she's doing . . . something else, and I'm . . . just confused.
Maroon Misquotes:
The University of Chicago Maroon, the best (sad to say) of our campus papers, bears a report on Justice Scalia's talk here. You can access my earlier report here and also Amanda's here.
The Maroon story is riddled with mis-quotations. Most of them are just clumsy paraphrasings of the things Justice Scalia actually said, but two of the misquotes, it seems to me, are serious enough to warrant correction. In no particular order:
Moesel quotes Justice Scalia as lamenting "It's become the view of the people on the street that if they were fed up with something, then let's make a law," Scalia said. "If you care passionately about something has become the only test to determine if something is constitutional."
The first part of this paragraph completely misrepresents what Scalia was saying (and the jumping verb tenses make it nearly incomprehensible in the bargain). He said that it used to be the view that if something was rotten "there oughtta be a law!" and that now that view is "it oughtta be unconstitutional!". Moesel's misquote pretty completely obscures that point.
Less importantly, but more amusingly, the article also has Scalia saying "You could fire a grapefruit out of a cannon over the best law schools in the country and not hit an originalist." (emphasis added).
As a minor point, Scalia suggested that you fire the cannon, not "over the best law schools in the country" but into their faculty lounges. More importantly, though, Scalia did not advocate firing grapefruit, but rather grapeshot. God only knows how one would ever hit an originalist with a grapefruit.
The University of Chicago Maroon, the best (sad to say) of our campus papers, bears a report on Justice Scalia's talk here. You can access my earlier report here and also Amanda's here.
The Maroon story is riddled with mis-quotations. Most of them are just clumsy paraphrasings of the things Justice Scalia actually said, but two of the misquotes, it seems to me, are serious enough to warrant correction. In no particular order:
Moesel quotes Justice Scalia as lamenting "It's become the view of the people on the street that if they were fed up with something, then let's make a law," Scalia said. "If you care passionately about something has become the only test to determine if something is constitutional."
The first part of this paragraph completely misrepresents what Scalia was saying (and the jumping verb tenses make it nearly incomprehensible in the bargain). He said that it used to be the view that if something was rotten "there oughtta be a law!" and that now that view is "it oughtta be unconstitutional!". Moesel's misquote pretty completely obscures that point.
Less importantly, but more amusingly, the article also has Scalia saying "You could fire a grapefruit out of a cannon over the best law schools in the country and not hit an originalist." (emphasis added).
As a minor point, Scalia suggested that you fire the cannon, not "over the best law schools in the country" but into their faculty lounges. More importantly, though, Scalia did not advocate firing grapefruit, but rather grapeshot. God only knows how one would ever hit an originalist with a grapefruit.
In Other News:
Today's Chicago Maroon features a story about weblogging that discusses this blog. A few minor points:
Our "Rust" question was answered by a number of smart people, but none of them, so far as I am aware, is a physics PhD candidate.
Looking back through the archives, while Rust was one of our first posts, it doesn't appear to have been the first.
Re: "Levy, whose blogs can be found on a Web site called the Volokoh Conspiracy"... As a minor point of blog grammar, individual quanta within a blog are called posts. A blog is the whole thing. Levy, as it happens, does indeed have multiple blogs, but one can be found at Volokh, and the other one is at jacobtlevy.blogspot.com
But other than that, it's a nice article. And I'm not saying that just because it mentions me and Levy in the same sentence.
Today's Chicago Maroon features a story about weblogging that discusses this blog. A few minor points:
Our "Rust" question was answered by a number of smart people, but none of them, so far as I am aware, is a physics PhD candidate.
Looking back through the archives, while Rust was one of our first posts, it doesn't appear to have been the first.
Re: "Levy, whose blogs can be found on a Web site called the Volokoh Conspiracy"... As a minor point of blog grammar, individual quanta within a blog are called posts. A blog is the whole thing. Levy, as it happens, does indeed have multiple blogs, but one can be found at Volokh, and the other one is at jacobtlevy.blogspot.com
But other than that, it's a nice article. And I'm not saying that just because it mentions me and Levy in the same sentence.
Kozinskiwatch Redux:
Since I'm on a Judge Kozinski kick, here are a few Kozinski-isms.
Since I'm on a Judge Kozinski kick, here are a few Kozinski-isms.
Leaving for others the question of how we got here, let's see if we can figure out where we are. Think of our judicial system as a large snake. It feeds largely on field mice, an occasional squirrel, maybe a game hen here and there. Then, one day, it sees a moose, and ravenously swallows it. For a long time thereafter, it lies immobilized, as the bulge slowly works its way toward the part of the snake opposite its mouth. In this metaphor, our capital cases are a herd of caribou.
Abolitionists often start by noting that no other "civilized"--meaning European--country has maintained the death penalty. But what exactly is it about the morality in Western European countries that we should emulate? Within living memory, Germany and its allies sent millions of people to die in gas chambers. Long after World War II, France was still fighting wars to maintain its colonies in Africa and Asia. And, reaching back another generation, England allowed millions of Irishmen to starve to death in the Great Famine.
Of course, even judges can't make both sides lose; I know, I've tried.
Now, there is an unspoken premise to what I have said, namely that there are more or less objective principles by which the law operates, principles that dictate the reasoning and often the result in most cases. I know you are taught to doubt this in law school, as I was; it is nevertheless true. Now, these principles are not followed by every judge in every case, and even when followed, there is frequently some room for the exercise of personal judgment.
You can take with you the cynical view, spawned in the halls of academia, that anything goes. Or you can use your considerable talents to defeat that view. I urge you to do the latter. Cynicism is as dangerous as it is easy. It is far more difficult to argue in support of reason and principle, but it is vital that you do so.
Thursday, May 08, 2003
Scav
Of all people, Matt Yglesias is in on the ScavHunt shenanigans. I would also suggest calling those numbers, but do it on behalf of the Lush Puppies: FIST team.
Of all people, Matt Yglesias is in on the ScavHunt shenanigans. I would also suggest calling those numbers, but do it on behalf of the Lush Puppies: FIST team.
Doing Justice:
Howard Bashman says he can't do this Easterbrook opinion justice without quoting the whole thing. Well, it's only 8 pages, so maybe there's no point, but I'll try:
Howard Bashman says he can't do this Easterbrook opinion justice without quoting the whole thing. Well, it's only 8 pages, so maybe there's no point, but I'll try:
Here is the first paragraph of the “more definite statement,” right under the caption “SPECIFIC FALSE OR FRAUDULENT CLAIMS FOR PAYMENT (SFCFP)” (a caption that shows Garst’s love of inscrutable acronyms):
Claim for $2,584,926.04, MDS Ex. 1, TAC Ex. 47, submitted on August 9, 1993 and related payments by T.A. Sieverson, Vice-President of Lockheed Integrated Solutions Company, Lockheed Corporation to VA Contracting Officer Steve Stapleton for equipment and service provided during Phase I and Phase II of the OA&MM/ISMS LAN/WAN PROJECT. See TAC ¶¶ 141-181, 217-243, 252, 280-282, 291-295.
The acronyms alone force readers to look elsewhere. MDS means “More Definite Statement” and “TAC” means “Third Amended Complaint.” LAN is local area network, WAN is wide-area network, and PROJECT appears to be the word “project” masquerading as an acronym. What “OA&MM/ISMS” might mean, we have not endeavored to discover. . .
The second section of the “more definite statement” begins with the caption “SPECIFIC FALSE STATEMENTS OR RECORDS MADE IN ORDER TO OBTAIN PAYMENT”. The first paragraph in this section reads:
The total claims for the OA&MM LAN/WAN are fraudulent or false because Lockheed’s cost estimate given to the VA’s Stapleton was false because, to obtain the project task order, Lockheed told the VA that it could accomplish the OA&MM LAN/WAN statement of work for $1.2 million, a savings of $700,000 over the previously selected Banyan VINES configuration. Lockheed billed the VA for at least $2.6 million and never delivered a working LAN/WAN that met the contract requirements. Lockheed submitted the false cost statement to the NOAVA Contracting Officer (Stapleton). TAC ¶ 141, Ex. 41.
“NOAVA” stands for “National Office Automation for Veterans Affairs.” VINES expands to “Virtual Integrated Network Services” but used in this paragraph is the name of a competitor’s product rather than an acronym for a family of network protocols. What “the OA&MM LAN/WAN statement of work” might be is a mystery . . .
We could go on with other paragraphs of the complaint and statement, but there would be little point to the exercise. . . even if it were possible to navigate through these papers to a few specific instances of fraud, why should the court be obliged to try? Rule 8(a) requires parties to make their pleadings straightforward, so that judges and adverse parties need not try to fish a gold coin from a bucket of mud. Federal judges have better things to do, and the substantial subsidy of litigation (court costs do not begin to cover the expense of the judiciary) should be targeted on those litigants who take the preliminary steps to assemble a comprehensible claim. . .
A concise statement of the claim illustrated by 400 concrete examples of fraud would be one thing, but 400 variations on the kind of paragraph we have quoted are quite another. Complaints like this are pestilential, and the district court showed great restraint in wading through four iterations plus one “more definite statement” before giving up. Garst received more judicial attention than his pleadings deserved.
Scavhunt:
From the rickshaws riddling the quads and the fact that my classes are half-empty (half-full?) I deduce that it's scavhunt. This is a difficult tradition to explain. It is, simply, an immense scavenger hunt, full of items that sound utterly impossible, but sometimes the contestants surprise. Like the time that some kids in BJ built the small self-contained nuclear reaction . . . Anyway, the mania will be gripping the campus for the next few days, and also other parts of the country as kids go on a road trip for some of the items or tasks. The list is here, and it's much more math-oriented than usual. A few choice excerpts follow.
And so on.
From the rickshaws riddling the quads and the fact that my classes are half-empty (half-full?) I deduce that it's scavhunt. This is a difficult tradition to explain. It is, simply, an immense scavenger hunt, full of items that sound utterly impossible, but sometimes the contestants surprise. Like the time that some kids in BJ built the small self-contained nuclear reaction . . . Anyway, the mania will be gripping the campus for the next few days, and also other parts of the country as kids go on a road trip for some of the items or tasks. The list is here, and it's much more math-oriented than usual. A few choice excerpts follow.
5: Prove conclusively that you are not a kangaroo. Hint: What is something we all do but kangaroos don't? [2 points]
18: A 1-1 scale fully-functional hoopak. [67 points]
21: A 500-word essay on what Kurt Hahn has done for the Magic community and why the DCI should end his suspension.[13 points. 20 bonus points if he tells us in person.]
30: SHAT. Where "SHAT" is short for "ScavHunt Authority for Transit." Your public rickshaw service has two lines: The 1, which runs from 3h75 and 6h25 from Cobb to Kent, and the 2, which runs during the same hours from BioMal to Harper. Runs should be at least smi-hourly during weekdays. [171 points. 35 bonus points if you notice that the acronym should be SHAfT and, as such, deck our your 'shaw accordingly. 10 bonus points if, on top of that, you have a Rick James shaw. 10 bonus points if your sha doubles as a Thurn und Taxi.]
46: Mobius stripper. Must be non-orientable. Must not emphasize the one-dimensionality of the stripper's personality. [28 points].
57: Shock and awe the Lincoln Pilgrims by preaching Marx from atop his resting place. [25 points. 15 bonus points for a 56th Annual Lincoln pilgrimage shirt]
66: A UofC-themed pr0n website, or, at least, its gateway. Include UofCers in compromising positions, as tantalizing, covered teasers for the "members only" section. We want photogalleries and some movies, and cheesy premises, like "will you install my Ethernet card in my slot," or "Resident Head, Dorm Munch." [69 points. 25 bonus points if you get a tenured professor to pose. 10 bonus points if you get a xxx.uchicago.edu domain name, where xxx is some sexy string. -45 bonus points if the site is not correctly viewable using Net+]
76: A #1 pencil.
97: In honor of our newfound Freedom of Information, inform as many people as you can of the home phone numbers of John Poindexter, John Ashcroft, and Tom Ridge in a massive publicity campaign. [66 points]
122: Infect the College with a self-propagating meme. you must declare this meme at Captains' Ice Cream Social. [58 points]
184: A freedom kiss. [2 points]
206: Break all Ten Commandments in one, damning action. [10 points]
241: Elrond Hubbard. [9 points]
And so on.
Self-Defense:
Gadfly Nick Tarasen challenges my Libertarian creds. Largely because I don't think there is, or should be, a constitutional prohibition against moral legislation.
Let me reiterate: I think it's bad, bad, bad, for the government to criminalize a lot of the conduct that it does, especially in the realm of consensual adult "sin". But nothing in the constitution forbids it from doing so, for the most part. Yes, of course, "(w)e do lots of things the framers would never have pulled out of the constitution," but I'm not certain that we should. I think it's hard for constitutional interpretation to take itself seriously if the Supreme Court becomes a mere shadow legislature.
That said, there are some coherent theories of constitutional interpretation that hold some sin regulation unconstitutional, and maybe that isn't a bad thing. But the constitution really shouldn't be where we turn to win our political battles-- the liberal court eager to read privacy into the constitution may be just as eager to read gun rights, or even hate speech, out of it. And as the court itself has acknowledged, "liberty can find no refuge in a jurisprudence of doubt."
Gadfly Nick Tarasen challenges my Libertarian creds. Largely because I don't think there is, or should be, a constitutional prohibition against moral legislation.
Let me reiterate: I think it's bad, bad, bad, for the government to criminalize a lot of the conduct that it does, especially in the realm of consensual adult "sin". But nothing in the constitution forbids it from doing so, for the most part. Yes, of course, "(w)e do lots of things the framers would never have pulled out of the constitution," but I'm not certain that we should. I think it's hard for constitutional interpretation to take itself seriously if the Supreme Court becomes a mere shadow legislature.
That said, there are some coherent theories of constitutional interpretation that hold some sin regulation unconstitutional, and maybe that isn't a bad thing. But the constitution really shouldn't be where we turn to win our political battles-- the liberal court eager to read privacy into the constitution may be just as eager to read gun rights, or even hate speech, out of it. And as the court itself has acknowledged, "liberty can find no refuge in a jurisprudence of doubt."
Chicago Tribune Roundup:
A lonely sheet of newsprint I found on the table in the Law School yesterday contained a wealth of interesting stories. (registration required, I think).
Exhibit One, a column by Clarence Page that defends Bill Bennett's gambling. The defense is that gambling is legal, while the vices Bennett condemns are illegal. Well, fine. But that begs the question. Why is gambling legal and marijuana smoking not? This is not to say I think it's wrong to obey the law, once it exists, but Bennett is charged with making more than just a legal argument. He has to make a moral argument, which shouldn't presuppose that law-drawn-lines are right. Now, there does seem to be a widespread consensus that gambling is better than pot-smoking, but if the law-distinction boils down to "lots of people think so" without anything futher. . . I'm unsatisfied.
For that matter, Page baffles me with:
Well . . . what does make an illegal crap game so much worse than a legal bingo game?
Exhibit Two: Another defense of Bennett, this one by Kathleen Parker. She focuses more on the risk that moralists face if they start demanding that anybody who dishes it out be able to take it. She writes:
Well . . . maybe. Or we could demand that people stop moralizing about certain kinds of behavior, unless they can hold true to their own standards. Now I know that there's much debate over whether Bennett is actually a hypocrite, and I don't particularly want to go into it myself, but the basic proposition, that moralizers need not be morally perfect, is far from clear. Very few people are perfect. Fine. But does that mean that anybody should be able to righteously fulminate about things that we all do, or that nobody should?
Exhibit Three: A profoundly chilling news story about Udai Hussein's abuses as chairman of Iraq's National Olympic Committee. "Who cares?" I hear you cry. Well Udai's abuses weren't on the order of taking bribes or sketchy medal-dealings. He lashed, beat, tortured, and imprisoned players who didn't perform up to his expectations, regardless of who won the game. He spent hours scrutinizing videos of every soccer match, including domestic games, searching for mistakes . . . or chewing gum
A lonely sheet of newsprint I found on the table in the Law School yesterday contained a wealth of interesting stories. (registration required, I think).
Exhibit One, a column by Clarence Page that defends Bill Bennett's gambling. The defense is that gambling is legal, while the vices Bennett condemns are illegal. Well, fine. But that begs the question. Why is gambling legal and marijuana smoking not? This is not to say I think it's wrong to obey the law, once it exists, but Bennett is charged with making more than just a legal argument. He has to make a moral argument, which shouldn't presuppose that law-drawn-lines are right. Now, there does seem to be a widespread consensus that gambling is better than pot-smoking, but if the law-distinction boils down to "lots of people think so" without anything futher. . . I'm unsatisfied.
For that matter, Page baffles me with:
Comparing sex acts between consenting adults in the privacy of one's own home to bigamy, polygamy, incest and adultery is about as odious as comparing an illegal crap game to a church bingo night.
Well . . . what does make an illegal crap game so much worse than a legal bingo game?
Exhibit Two: Another defense of Bennett, this one by Kathleen Parker. She focuses more on the risk that moralists face if they start demanding that anybody who dishes it out be able to take it. She writes:
In any case, we can ill afford to demand that people who speak publicly in favor of moral behavior be morally perfect themselves. Not only would we perish of boredom, but we'd so limit the field of political candidates that we might as well skip the discussion and insert our feeding tubes.
Well . . . maybe. Or we could demand that people stop moralizing about certain kinds of behavior, unless they can hold true to their own standards. Now I know that there's much debate over whether Bennett is actually a hypocrite, and I don't particularly want to go into it myself, but the basic proposition, that moralizers need not be morally perfect, is far from clear. Very few people are perfect. Fine. But does that mean that anybody should be able to righteously fulminate about things that we all do, or that nobody should?
Exhibit Three: A profoundly chilling news story about Udai Hussein's abuses as chairman of Iraq's National Olympic Committee. "Who cares?" I hear you cry. Well Udai's abuses weren't on the order of taking bribes or sketchy medal-dealings. He lashed, beat, tortured, and imprisoned players who didn't perform up to his expectations, regardless of who won the game. He spent hours scrutinizing videos of every soccer match, including domestic games, searching for mistakes . . . or chewing gum
The worst punishment came after he was caught on camera chewing gum during the playing of the Iraqi national anthem at an Asian Nations Cup match in 2000. The team lost the game 4-1, and Aziz, the goalkeeper and the center forward were all taken directly to Radwaniyah upon their return to the country.
For the next 24 days, they were subjected to a bizarre routine of punishments. They were dragged on their backs across a pavement of sharp stones. They were immersed in raw sewage. At night, while dropping with sleep, Aziz and the other prisoners were required to count the flecks in the flagstones over and over; no matter what number he came up with, the guards told him he was wrong and ordered him to start again.
A fetus is:
(via How Appealing) An odd Connecticut ruling declares that a fetus is a body part.
But, of course, a concurring opinion goes farther, holding that a fetus, in addition to being a body part, may be an independently existing body part:
Umm. Right. Make what you will of all that.
UPDATE: Reader Dan Suberviola emails to chastise me for not going into the contradictions engendered by the concurring opinion, and then proceeds to do so himself, so I'll simply quote what he says:
I think all of those criticisms of the concurrence are fair; I don't know why Sullivan elected to concur in the opinion rather than merely in the judgment. I would like to note, though, the first OED definition of "independent":
Since this seems like largely a legalistic definition, I think that no metaphysical concern forbids a judge from believing both that a fetus is a part of the mother's body, and that she is not entitled to any authority or rule over it, or at least not to the point of being able to kill it. I will leave it to somebody else to work out the logical consequences of not having a right to control one's errant body parts.
(via How Appealing) An odd Connecticut ruling declares that a fetus is a body part.
We are persuaded that a five week old fetus consti-tutes a part of the mother’s body and, therefore, is a ‘‘member’’ of her body within the meaning of §§ 53a-70a (a) (2) and 53a-59 (a) (2). First, as with any bodily part, a fetus constitutes physically identifiable tissue. Second, implantation of the fetus occurs within the mother’s uterus, and the fetus is attached to the mother via the umbilical cord and placenta. See, e.g., A. Guy-ton & J. Hall, Textbook of Medical Physiology (10th Ed. 2002) pp. 945–46. Finally, the fetus is nourished and sustained by the mother; indeed, at five weeks of age, the fetus is incapable of survival outside the mother.
But, of course, a concurring opinion goes farther, holding that a fetus, in addition to being a body part, may be an independently existing body part:
I write separately only to emphasize that the mere fact that we have determined that a fetus, under the circumstances of this case, is a ‘‘member’’ of a woman’s body for purposes of §§ 53a-59 (a) (2) and 53a-70a (a) 2) does not suggest that either the majority or I have concluded that a fetus may not have its own indepen-dent existence. In other words, the fetus may both be a part of its mother as well as its own individual being. Indeed, this property is among the unique characteris-tics of a fetus that make it truly sui generis. The fact that a fetus has exceptional attributes that may entitle it to legal protections in its own right, however, does not mean that a fetus is not also a member of a woman’s body.
Umm. Right. Make what you will of all that.
UPDATE: Reader Dan Suberviola emails to chastise me for not going into the contradictions engendered by the concurring opinion, and then proceeds to do so himself, so I'll simply quote what he says:
Sullivan's concurring statement . . . is a terribly damaging violation of metaphysics. He concurs with the ruling, thereby also endorsing "Finally, the fetus is nourished and sustained by the mother; indeed, at five weeks of age, the fetus is incapable of survival outside the mother." Yet he writes that a fetus "may have its own independent existence."
Lacking a law dictionary, I turned to the OED for a definition of "independent." The third definition reads, "Not depending on something else for its existence, validity, efficiency, operation, or some other attribute; not contingent on or conditioned by anything else." Yet a fetus (especially in the early and middle stages) is entirely dependent upon the mother for all of these things, and hence it is ludicrous to posit that a fetus may have an independent existence. . .
I fear for the state of Connecticut if metaphysical and epistemological travesties -- assaults on the very roots of philosophy -- are the judicial norm.
I think all of those criticisms of the concurrence are fair; I don't know why Sullivan elected to concur in the opinion rather than merely in the judgment. I would like to note, though, the first OED definition of "independent":
1. a. Not depending upon the authority of another, not in a position of subordination or subjection; not subject to external control or rule; self-governing, autonomous, free.
Since this seems like largely a legalistic definition, I think that no metaphysical concern forbids a judge from believing both that a fetus is a part of the mother's body, and that she is not entitled to any authority or rule over it, or at least not to the point of being able to kill it. I will leave it to somebody else to work out the logical consequences of not having a right to control one's errant body parts.
?:
I don't mean to be snide, I'm really just wondering. The Washington Post bears this story about how nude art school models in Philadelphia have voted to unionize.
Heat and air, I understand, but why do nude models need private changing areas? And what are they changing into? If anybody who knows more about nude modeling than I do can help me out here, I'd appreciate it.
I don't mean to be snide, I'm really just wondering. The Washington Post bears this story about how nude art school models in Philadelphia have voted to unionize.
The Moore models said that disrobing for art school classes is hard work that requires them to hold a pose for long periods under sometimes difficult conditions. The studios at Moore and other art schools often lack private changing areas, adequate heaters and outside air, Hankins said.
Heat and air, I understand, but why do nude models need private changing areas? And what are they changing into? If anybody who knows more about nude modeling than I do can help me out here, I'd appreciate it.
Looting:
So the good news is that almost allof the Iraqi artifacts weren't stolen after all. The bad news, is that Saddam and Qusay looted about a billion dollars from the Iraqi central bank. William Safire writes about it the most cleverly.
A billion dollars. Remember that an attache case can fit 2 million dollars, if you pack it really tight. Now imagine carrying out 500 attache cases of cash. Where would you put it? Safire writes:
So the good news is that almost allof the Iraqi artifacts weren't stolen after all. The bad news, is that Saddam and Qusay looted about a billion dollars from the Iraqi central bank. William Safire writes about it the most cleverly.
A billion dollars. Remember that an attache case can fit 2 million dollars, if you pack it really tight. Now imagine carrying out 500 attache cases of cash. Where would you put it? Safire writes:
Fact No. 1: the Fed tells me that $312 billion in $100 bills is floating around the world, twice as much as exists in the U.S. of that denomination of our currency. (That "float" amounts to an interest-free loan from the world to us.)
Fact No. 2: each bill has a serial number, which requires the thief of a huge run to route it through a variety of cutouts lest it be traced back.
Fact No. 3: trucks don't have wings.
Since I know my insurance company won't give me what I really want:
The Student Care Center is an Ergonomics: Reducing Back, Neck, and Shoulder Pain workshop next Wednesday night, May 14th, from 7:00 to 8:00pm at Henry Crown.
What is it my insurance company won't give me? It's this device that looks like an adult-sized EMS backboard suspended, pivoting by an A-frame. You swing the backboard until it's vertical, strap your feet in their ski-boot restraints, fasten some more straps elsewhere around your body, and slowly raise your hands above your head, shifting your center of gravity, until gradually you're horizontal and then a full 180 degrees, dangling from your feet. If I said it's like the rack, only comfortable, you wouldn't believe me. But it is marvelous. You just bounce carefully from your feet until everything pops that needs popping. It's also good if you're studying late at night and tired -- hang until all the blood flows to your head. You come out of it awake and feeling re-energized.
Anyway, to get back to the purported point of this post rather than hoping that some kind reader, out of the goodness of his heart and depths of his wallet. . . who am I kidding?. . . go to Henry Crown, learn what SCC has to tell you, see if I show up after mentioning it.
The Student Care Center is an Ergonomics: Reducing Back, Neck, and Shoulder Pain workshop next Wednesday night, May 14th, from 7:00 to 8:00pm at Henry Crown.
What is it my insurance company won't give me? It's this device that looks like an adult-sized EMS backboard suspended, pivoting by an A-frame. You swing the backboard until it's vertical, strap your feet in their ski-boot restraints, fasten some more straps elsewhere around your body, and slowly raise your hands above your head, shifting your center of gravity, until gradually you're horizontal and then a full 180 degrees, dangling from your feet. If I said it's like the rack, only comfortable, you wouldn't believe me. But it is marvelous. You just bounce carefully from your feet until everything pops that needs popping. It's also good if you're studying late at night and tired -- hang until all the blood flows to your head. You come out of it awake and feeling re-energized.
Anyway, to get back to the purported point of this post rather than hoping that some kind reader, out of the goodness of his heart and depths of his wallet. . . who am I kidding?. . . go to Henry Crown, learn what SCC has to tell you, see if I show up after mentioning it.
Wednesday, May 07, 2003
Gilmore Girls
Slate just posted an article on the Gilmore Girls, a show much beloved by much of this blog. It's a good article, but there are several points with which I have to take issue. Heffernan writes:
While it's true that Gilmore Girls is lacking in vice by the standards of modern television, it's hardly a throwback to the fifties. The only character who is truly anti-sex and anti-rock is portrayed as amusingly out of synch with the world around her, and her daughter's inevitable rebellion as a positive step in her development. Nevertheless, she is also portrayed as motivated by a genuine concern for her daughter's welfare.
This, ultimately, is what makes the show so good. Instead of relying on stereotypes, or creating characters with problems beyond the ken of most ordinary mortals, the show recognizes that the fodder for drama in the lives of ordinary people--family fights, breakups, concerns over money--can also make compelling television.
Slate just posted an article on the Gilmore Girls, a show much beloved by much of this blog. It's a good article, but there are several points with which I have to take issue. Heffernan writes:
Like other WB producers, Amy Sherman-Palladino, the creator and executive producer of Gilmore Girls, has meticulously created a world so protected and old-fashioned that people's minor transgressions (listening to rock 'n' roll, having sex before marriage) still count as transgressions, and still have compelling moral consequences.
While it's true that Gilmore Girls is lacking in vice by the standards of modern television, it's hardly a throwback to the fifties. The only character who is truly anti-sex and anti-rock is portrayed as amusingly out of synch with the world around her, and her daughter's inevitable rebellion as a positive step in her development. Nevertheless, she is also portrayed as motivated by a genuine concern for her daughter's welfare.
This, ultimately, is what makes the show so good. Instead of relying on stereotypes, or creating characters with problems beyond the ken of most ordinary mortals, the show recognizes that the fodder for drama in the lives of ordinary people--family fights, breakups, concerns over money--can also make compelling television.
Well of course...
If you're going to put lemon in your tea, of course you're going to kill all of the tea flavor. A good cup of tea should be subtly perfumed. A good squirt of lemon juice should be assertively sour. Lemon only belongs in iced tea, which is brewed to be about twice as strong, and hence needs the acidity to counteract the bitterness that results. To learn how to brew a sublime cup of tea, go here. (Yes, I realize the site is in French. If there is demand, I will post a translation of the pertinent information.)
If you're going to put lemon in your tea, of course you're going to kill all of the tea flavor. A good cup of tea should be subtly perfumed. A good squirt of lemon juice should be assertively sour. Lemon only belongs in iced tea, which is brewed to be about twice as strong, and hence needs the acidity to counteract the bitterness that results. To learn how to brew a sublime cup of tea, go here. (Yes, I realize the site is in French. If there is demand, I will post a translation of the pertinent information.)
Six/half-dozen:
The Curmudgeonly Clerk has mixed feelings about my defense of Kozinski's dissent (don't you love how referential blogs get?).
He disagrees with "In a world of activist Supreme Court Justices, no type of argument is out of bounds.", but finds this appealing: "As to the relevance of the policy argument, if Kozinski believes that his colleagues are letting their policy preferences get away from them, I don't see what's wrong with trying to convince them that their policy preferences might be shortsighted as well."
Perhaps I wasn't clear, but the latter is merely a special case of the former. Kozinski's dissent is written with the knowledge that cases-- especially constitutional cases-- are not always divorced from first principles. Even if the argument over the Second Amendment (in the lower court) should be based entirely on interpreting Miller, that's simply not the way the game is played, and Judge Kozinski knows that. Some judges are persuaded by policy considerations, and some by rhetoric. Some admit this, and some do not. One approach, of course, is to steadfastly refuse to play that game on their terms. But another approach is to chide them into looking the case over again. Kozinski's already written a dissent in the case, and there's another solid dissent on the legal issue. He's simply trying to play the majority's own game at them a little bit.
For another great example of this exact approach, read Scalia's dissent in Planned Parenthood v. Casey.
The Curmudgeonly Clerk has mixed feelings about my defense of Kozinski's dissent (don't you love how referential blogs get?).
He disagrees with "In a world of activist Supreme Court Justices, no type of argument is out of bounds.", but finds this appealing: "As to the relevance of the policy argument, if Kozinski believes that his colleagues are letting their policy preferences get away from them, I don't see what's wrong with trying to convince them that their policy preferences might be shortsighted as well."
Perhaps I wasn't clear, but the latter is merely a special case of the former. Kozinski's dissent is written with the knowledge that cases-- especially constitutional cases-- are not always divorced from first principles. Even if the argument over the Second Amendment (in the lower court) should be based entirely on interpreting Miller, that's simply not the way the game is played, and Judge Kozinski knows that. Some judges are persuaded by policy considerations, and some by rhetoric. Some admit this, and some do not. One approach, of course, is to steadfastly refuse to play that game on their terms. But another approach is to chide them into looking the case over again. Kozinski's already written a dissent in the case, and there's another solid dissent on the legal issue. He's simply trying to play the majority's own game at them a little bit.
For another great example of this exact approach, read Scalia's dissent in Planned Parenthood v. Casey.
Opposing:
In response to Matt's call below for an explanation of BCRA, it's far beyond my limited knowledge of the District Court's opinion. Rick Hasen has a pretty good summary here, and I do think I can answer some questions about the Club for Growth.
The ad at issue may or may not be an "Electioneering Communication," which BCRA, as written (and as interpreted) prohibits the Club for Growth from running it, I think because they are financed with corporate or union funds. But what is an Electioneering Communication? Before BCRA, it was mostly defined by a list of "magic words" like "vote for," "vote against," and all the rest. BCRA created a new definitio, which was anything that fell within a certain time period and "refers to a clearly identified candidate for Federal Office". This definition was struck down by the court as unconsitutitonal.
Forseeing this possibility, BCRA provided a "fallback" definition, which appears to be any ad which "promotes or supports a candidate for office, or attacks or opposes a candidate for that office," and which also is "suggestive of no plausible meaning other than an exhortation to vote for or vote against." (My little course packet doesn't say that the second provision has a time-range, but I'm not sure. That should be obvious to interpret, whatever it says, so I'll leave it out).
The court didn't uphold the second definition either. One judge ruled it was constitutional, one judge ruled it was unconstitutional, and the third judge ruled that the first half was constitutional, but not the second half (because it was "vague"). So the operative question is whether the Club for Growth's ad "attacks or opposes a candidate for office (regardless of whether the communication expressly advocates a vote for or against a candidate)." I have no idea what that means in this context. I don't think anybody else does either. Does that mean that it is now illegal to public complain about one's Congressman in any broadcast communication? That a satellite phone call to your representative saying "I think you're wrong on tax cuts" is prohibited? (Chopping off the second half of the definition seems to make it clear, but also clearly unconstitutional). I don't know.
In reality, the district court opinion doesn't much matter. It will have great short-term shake-up effects, like now, which will face the court with a lot of tough decisions, but have no bearing whatever on the ultimate decision of the court.
In response to Matt's call below for an explanation of BCRA, it's far beyond my limited knowledge of the District Court's opinion. Rick Hasen has a pretty good summary here, and I do think I can answer some questions about the Club for Growth.
The ad at issue may or may not be an "Electioneering Communication," which BCRA, as written (and as interpreted) prohibits the Club for Growth from running it, I think because they are financed with corporate or union funds. But what is an Electioneering Communication? Before BCRA, it was mostly defined by a list of "magic words" like "vote for," "vote against," and all the rest. BCRA created a new definitio, which was anything that fell within a certain time period and "refers to a clearly identified candidate for Federal Office". This definition was struck down by the court as unconsitutitonal.
Forseeing this possibility, BCRA provided a "fallback" definition, which appears to be any ad which "promotes or supports a candidate for office, or attacks or opposes a candidate for that office," and which also is "suggestive of no plausible meaning other than an exhortation to vote for or vote against." (My little course packet doesn't say that the second provision has a time-range, but I'm not sure. That should be obvious to interpret, whatever it says, so I'll leave it out).
The court didn't uphold the second definition either. One judge ruled it was constitutional, one judge ruled it was unconstitutional, and the third judge ruled that the first half was constitutional, but not the second half (because it was "vague"). So the operative question is whether the Club for Growth's ad "attacks or opposes a candidate for office (regardless of whether the communication expressly advocates a vote for or against a candidate)." I have no idea what that means in this context. I don't think anybody else does either. Does that mean that it is now illegal to public complain about one's Congressman in any broadcast communication? That a satellite phone call to your representative saying "I think you're wrong on tax cuts" is prohibited? (Chopping off the second half of the definition seems to make it clear, but also clearly unconstitutional). I don't know.
In reality, the district court opinion doesn't much matter. It will have great short-term shake-up effects, like now, which will face the court with a lot of tough decisions, but have no bearing whatever on the ultimate decision of the court.
Legalize... LSD?:
An interesting, if slightly edgy, piece in Slate today on why we should legalize hallucinogens. In general it comports with a lot of my (very limited!) medical understanding of hallucinogens-- that they're bad for you, of couse, but not really that bad, in the scheme of things. Still, some more research into the likelihood of "flashbacks" and the like is probably in order. Of course, regardless of the medical effects of the drug, I think it ought to be legal for relatively rational adults.
The case also discusses efforts of a religious group in New Mexico to win the drug battle in the courts (where it is, in my opinion, mostly a lost cause):
I haven't read the District Judge's opinion, but if the facts of the case are even close to they are stated here, I think UDV's case is flat-out lost. Employment Division v. Smith, one of Justice Scalia's less intellectually-honest decsisions, holds that there is no free-excercise exemption to neutral criminal laws. In that case, Native Americans were denied the right to use peyote in religious ceremonies. I think UDV will be denied the right to drink ayahuasca on the exact same grounds.
An interesting, if slightly edgy, piece in Slate today on why we should legalize hallucinogens. In general it comports with a lot of my (very limited!) medical understanding of hallucinogens-- that they're bad for you, of couse, but not really that bad, in the scheme of things. Still, some more research into the likelihood of "flashbacks" and the like is probably in order. Of course, regardless of the medical effects of the drug, I think it ought to be legal for relatively rational adults.
The case also discusses efforts of a religious group in New Mexico to win the drug battle in the courts (where it is, in my opinion, mostly a lost cause):
The case dates to 1999, when federal agents seized 30 gallons of ayahuasca that the UDV group had imported from Brazil. Last August, a federal judge in Albuquerque ruled in favor of the UDV worshippers. The judge contended that the Justice Department had not shown that ayahuasca poses enough of a health risk to warrant restricting the UDV members' right to practice their religion.
I haven't read the District Judge's opinion, but if the facts of the case are even close to they are stated here, I think UDV's case is flat-out lost. Employment Division v. Smith, one of Justice Scalia's less intellectually-honest decsisions, holds that there is no free-excercise exemption to neutral criminal laws. In that case, Native Americans were denied the right to use peyote in religious ceremonies. I think UDV will be denied the right to drink ayahuasca on the exact same grounds.
Political Advertising Hijinks
I blogged not too long ago on the Club for Growth's attempts to beat Sen. Olympia Snowe into submission over Bush's tax breaks. Sen. Snowe (R-ME) and Sen. Voinovich (R-OH) are two of Bush's key opponents in his quest to bankrupt the United States. The Club for Growth supports Bush in his quest. And, despite a new poll in which over 70% of Mainers expressed their disapproval with Bush's tax cut plan, the Club is at it again. However, they're running into some interesting legal issues.
This is where the new political advertising limits become relevant. Being entirely unaware of the legal ramifications of all this, I defer to Will on his interpretation. My assumption is that ruling in question is the recent one by a special federal panel striking down certain parts of the McCain-Feingold bill. Anyway... see the Bangor Daily News article for more info on the differing interpreations at work here. Is it possible that the Club for Growth could be reprimanded if it turns out that the court agrees with Mr. McCain's interpreation of the ruling? That would be nice. Will, what you got to say?
Ignoring the conservative French-bashers for a moment, some Republican has proposed a compromise between Bush's $550B tax cuts and the $350B cuts supported by Snowe and Voinovich. However, the $450B proposal has lost another supporter in Sen. Susan Collins, the other Maine Senator. This is going to be a difficult fight. How about we just scrap these tax cuts entirely... after all, they are the primary reason this country is about to run even heavier deficits.
I blogged not too long ago on the Club for Growth's attempts to beat Sen. Olympia Snowe into submission over Bush's tax breaks. Sen. Snowe (R-ME) and Sen. Voinovich (R-OH) are two of Bush's key opponents in his quest to bankrupt the United States. The Club for Growth supports Bush in his quest. And, despite a new poll in which over 70% of Mainers expressed their disapproval with Bush's tax cut plan, the Club is at it again. However, they're running into some interesting legal issues.
This is where the new political advertising limits become relevant. Being entirely unaware of the legal ramifications of all this, I defer to Will on his interpretation. My assumption is that ruling in question is the recent one by a special federal panel striking down certain parts of the McCain-Feingold bill. Anyway... see the Bangor Daily News article for more info on the differing interpreations at work here. Is it possible that the Club for Growth could be reprimanded if it turns out that the court agrees with Mr. McCain's interpreation of the ruling? That would be nice. Will, what you got to say?
Ignoring the conservative French-bashers for a moment, some Republican has proposed a compromise between Bush's $550B tax cuts and the $350B cuts supported by Snowe and Voinovich. However, the $450B proposal has lost another supporter in Sen. Susan Collins, the other Maine Senator. This is going to be a difficult fight. How about we just scrap these tax cuts entirely... after all, they are the primary reason this country is about to run even heavier deficits.
Murder in Maine
I have indeed been following the events in New Sweden, Maine. I had planned to post on the series of mysteries at some point, but since Will beat me to the punch... Being a Mainer, I recognize that, while this would be big news anywhere, it is particularly huge in a state that only had 19 murders last year, and 11 the year before that. The shock and awe of the situation is exacerbated by the small size of the town. New Sweden is a town of 621 people... er, 619 now. (The town is roughly 280 miles north of my hometown of Lewiston/Auburn) The story progressed as such...
On April 27, the Gustaf Adolph Evangelical Lutheran Church held its typical after-service reception in the basement of the church. But something was amiss! The churchgoers were served arsenic-laced coffee on that morning, and the result was 15 ill and 1 dead. Residents were shocked. How could something like this happen in a small, close-knit community? After all, this is the type of place which is supposed to have, and which appeared to have, exactly the type of social trust which I have previously spoken about at length. The distress was recounted in detail by an article from Sat, May 3, in the Bangor Daily News:
Another account of the social aspects can be found in an article titled 'We have lost our innocence,' from the May 4 edition of the Portland Press-Herald.
The arsenic death was ultimately ruled a homicide, and the investigation took off. But the mystery doesn't end there; the ink had yet to dry on Saturday morning's newspaper before another man was dead. Daniel Bondeson had died in his New Sweden area home from gunshot wounds on Friday, May 2. Investigators initally had been silent on whether there was a suicide note but did say that the gunshot wounds appeared to be self-inflicted. On Sunday, it became clear that there was a suicide note, and that Bondeson's death was indeed related to the poisoning incident. The questions are: did he do it, and if so, did he act alone? Police have been sketchy on the details of the note, but they say Bondeson apologized for the poisoning. What exactly this apology entails, I am unaware. Police believe more than one person may be behind the tragedies, while an FBI profiling believes Bondeson acted alone.
Even after determining just who was behind all this is discovered, there will be many more questions for New Swedenites. For instance: why? What possible motivation could Mr. Bondeson have had to poison his fellow parishioners? Bondeson's family is unable to believe the accusations against him. Also, how does a town recover from having it's social foundation rocked so heavily? Can innocence be regained for New Sweden? Another woman had died in New Sweden of natural causes on the same day as Mr. Bondeson. Three deaths and 15 illnesses is a lot for a town to overcome. But there are signs that trust will be rebuilt, as seen in this Press-Herald article:
In today's midday report of the Press-Herald online, there are some encouraging words from one of the victims:
Social trust can return to New Sweden, and I'm confident that rebuilding it will not take an exorbitant amount of time either. After all, if the victims can forgive and forget, they're well on their way.
I have indeed been following the events in New Sweden, Maine. I had planned to post on the series of mysteries at some point, but since Will beat me to the punch... Being a Mainer, I recognize that, while this would be big news anywhere, it is particularly huge in a state that only had 19 murders last year, and 11 the year before that. The shock and awe of the situation is exacerbated by the small size of the town. New Sweden is a town of 621 people... er, 619 now. (The town is roughly 280 miles north of my hometown of Lewiston/Auburn) The story progressed as such...
On April 27, the Gustaf Adolph Evangelical Lutheran Church held its typical after-service reception in the basement of the church. But something was amiss! The churchgoers were served arsenic-laced coffee on that morning, and the result was 15 ill and 1 dead. Residents were shocked. How could something like this happen in a small, close-knit community? After all, this is the type of place which is supposed to have, and which appeared to have, exactly the type of social trust which I have previously spoken about at length. The distress was recounted in detail by an article from Sat, May 3, in the Bangor Daily News:
"To hear Dan Rather saying to the whole nation that this could be poison ... when he said the M-word, I just started to cry," [Brenda Nasberg Jepson] said.
"We're left with no choice but to realize there's someone among us who could be a murderer. You realize that you might have sat by someone at a church service, you might have exchanged potluck dishes, and the whole time, they were capable of something like this," she said. "I can't tell you what a sinister feeling that is."
[...]
"We were hoping that some terrorist in another country had put something in the coffee [grounds]," agreed Elaine Jepson, who has lived on a 280-acre potato farm in town since she married her husband, Floyd, 55 years ago. "The fear is that it's going to be somebody that we know."
Another account of the social aspects can be found in an article titled 'We have lost our innocence,' from the May 4 edition of the Portland Press-Herald.
The arsenic death was ultimately ruled a homicide, and the investigation took off. But the mystery doesn't end there; the ink had yet to dry on Saturday morning's newspaper before another man was dead. Daniel Bondeson had died in his New Sweden area home from gunshot wounds on Friday, May 2. Investigators initally had been silent on whether there was a suicide note but did say that the gunshot wounds appeared to be self-inflicted. On Sunday, it became clear that there was a suicide note, and that Bondeson's death was indeed related to the poisoning incident. The questions are: did he do it, and if so, did he act alone? Police have been sketchy on the details of the note, but they say Bondeson apologized for the poisoning. What exactly this apology entails, I am unaware. Police believe more than one person may be behind the tragedies, while an FBI profiling believes Bondeson acted alone.
Even after determining just who was behind all this is discovered, there will be many more questions for New Swedenites. For instance: why? What possible motivation could Mr. Bondeson have had to poison his fellow parishioners? Bondeson's family is unable to believe the accusations against him. Also, how does a town recover from having it's social foundation rocked so heavily? Can innocence be regained for New Sweden? Another woman had died in New Sweden of natural causes on the same day as Mr. Bondeson. Three deaths and 15 illnesses is a lot for a town to overcome. But there are signs that trust will be rebuilt, as seen in this Press-Herald article:
[The Swedish] Club leaders decided to hold the meeting at the Evangelical Covenant Church. It was a low turnout, about 15 people. Some members had wondered if anyone would drink any coffee at all, but they drank more than usual that night. ...
The video and the pamphlets provided a much-needed diversion, Nasbert Jepson said.
"It was quite calming, something that helps you get through," she said. "We are just trying to show that we are not going to let these tragedies ruin our lives."
In today's midday report of the Press-Herald online, there are some encouraging words from one of the victims:
[Erich] Margeson knew Daniel Bondeson well, and it is difficult for him to grasp that Bondeson could be linked to the poisonings, as police have said.
"He was a person that was always there to lend a helping hand if needed," Margeson said.
[...]
Margeson said he is not angry about Bondeson's alleged role, only "mildly curious."
"I just don't have any reason to be upset with him," Margeson said. "No one knows enough about what happened that I should be upset. . . . Later on, as more information comes out, I might have some peace of mind about why things happened, but I'm really more interested in seeing all of us involved go back home and get out of the hospital and get back to normal."
Social trust can return to New Sweden, and I'm confident that rebuilding it will not take an exorbitant amount of time either. After all, if the victims can forgive and forget, they're well on their way.
Just so We're Clear:
Thanks to Amy for her post below on why no self-respecting historian would try the sort of historical analysis that many originalists do. The simple, if annoying, truth is that the Constitution probably meant different things to different people, just as it does to us. Relying upon the text and structure of the Constitution is the only intellectually honest path, so far as that takes us, but once we're out of textual clues, we're adrift, whether we like it or not. The strict originalist attempt to find more tethering than that is no more helpful than the drowning man who lashes himself to a sinking ship.
Thanks to Amy for her post below on why no self-respecting historian would try the sort of historical analysis that many originalists do. The simple, if annoying, truth is that the Constitution probably meant different things to different people, just as it does to us. Relying upon the text and structure of the Constitution is the only intellectually honest path, so far as that takes us, but once we're out of textual clues, we're adrift, whether we like it or not. The strict originalist attempt to find more tethering than that is no more helpful than the drowning man who lashes himself to a sinking ship.
No Thanks
Will, speaking on originalism, (perhaps somewhat facetiously) writes:
But if history is supposed to be the guide to constitutional interpretation, then I must ask the Justice the same question he asked the audience. Why have it done by lawyers? There's an army of underappreciated history scholars out there, some of them on this very blog. I'm sure they'd be happy to accept the task.
Actually, out of my great respect for the discipline of history, I have no desire to accept this task at all, and I would hope that no reasonable historian would wish to either. (Unfortunately, there is no shortage of unreasonable historians studying American history, so I suspect Will would have to beat back the volunteers, but that's a complaint for another day.) The problem is that there is no way to interpret the constitution according to original intent without doing gross insult to history. America in 1789 is different than America in 2003. Our instututions are different, our values are different, our goals are different, our words even mean different things now than they did then. Trying to reconstruct the understanding of the Constitution our Founding Fathers in order to apply it to our current world would be like trying to recreate the Colonial system of roads to serve the needs of today's automotive society.
Fredrich Nietzsche wrote on the pitfalls in applying the lessons of history to contemporary life in On the Use and Abuse of History for Life:
Now, what purpose is served for contemporary man by the monumental consideration of the past, busying ourselves with the classics and rarities of earlier times? He derives from that the fact that the greatness which was once there at all events once was possible and therefore will really be possible once again. He goes along his path more bravely, for now the doubt which falls over him in weaker hours, that he might perhaps be wishing for the impossible, is beaten back from the field. Let us assume that somebody believes it would take no more than a hundred productive men, effective people brought up in a new spirit, to get rid of what has become trendy in German culture right now , how must it strengthen him to perceive that the culture of the Renaissance raised itself on the shoulders of such a crowd of a hundred men.
Nevertheless, to learn right away something new from the same example, how fleeting and weak, how imprecise that comparison would be! If the comparison is to carry out this powerful effect, how much of the difference will be missed in the process. How forcefully must the individuality of the past be wrenched into a general shape, with all its sharp corners and angles broken off for the sake of the correspondence! In fact, basically something that once was possible could appear possible a second time only if the Pythagoreans were correct in thinking that with the same constellations of the celestial bodies the same phenomena on the Earth had to repeat themselves, even in the small single particulars, so that when the stars have a certain position relative to each other, a Stoic and an Epicurean will, in an eternal recurrence, unite and assassinate Caesar, and with another stellar position Columbus will eternally rediscover America.
Only if the Earth were always to begin its theatrical performance once again after the fifth act, if it were certain that the same knot of motives, the same deus ex machina, the same catastrophe returned in the same determined interval, could the powerful man desire monumental history in complete iconic truth, that is, each fact in its precisely described characteristics and unity, and probably not before the time when astronomers have once again become astrologers. Until that time monumental history will not be able to produce that full truthfulness. It will always bring closer what is unlike, generalize, and finally make things equal. It will always tone down the difference in motives and events, in order to set down the monumental effectus [effect], that is, the exemplary effect worthy of imitation, at the cost of the causae [cause]. Thus, because monumental history turns away as much as possible from the cause, we can call it a collection of "effects in themselves" with less exaggeration than calling it events which will have an effect on all ages. What is celebrated in folk festivals and in religious or military remembrance days is basically such an "effect in itself." It is the thing which does not let the ambitious sleep, which for the enterprising lies like an amulet on the heart, but it is not the true historical interconnection between cause and effect, which fully recognized, would only prove that never again could anything completely the same fall out in the dice throw of future contingency.
But Nietzsche also recognizes that there are times when it is desirable to do bad history. The Founding Fathers represent a certain ideal in our society, no less powerful for its inaccuracy. It's not stupidity or historical illiteracy that cause originalists to seek smaller government and laws that promote virtue, despite the vast gulf that separates our our way of life from theirs. Rather, it is the seductiveness, the usefulness, of this vision that leads them to gloss over the impossibility of any meaningful return to the days of yore. The question is not really what values we held in the past. Historians are kidding themselves mightily if they believe that their recreation of the past, in and of itself, is valuable to anyone save themselves. The real question is what values, what principles, will guide us into the future. Only when we have found these can we cull the past for the stories, the heroes, that will inspire us to move forward.
Yes, historians might be more qualified than lawyers to say what the constitution meant to the founders. Honest historians will also say that the constitution did not mean the same thing to all the founders. Other historians--Marxians or Freudians, for instance--will be willing to argue that the constitution actually meant something different to the founders than they even thought it meant. But to make any of these interpretations general enough to apply also to contemporary society, one must strip away all of the specifics, all of the nuances, that gave it value in the first place. And having done this, one must rebuild the nuance, the specificity, on a framework no more meaningful than an historian's best guess as to how the Founding Fathers, on aggregate, would have responded to a telephone survey question, "Should we have a weak federal government? Press one if you strongly agree, two if you agree, three if you have no opinion, four if you disagree and five if you strongly disagree."
Thank you very much, but I'll take government by the lawyers instead.
Will, speaking on originalism, (perhaps somewhat facetiously) writes:
But if history is supposed to be the guide to constitutional interpretation, then I must ask the Justice the same question he asked the audience. Why have it done by lawyers? There's an army of underappreciated history scholars out there, some of them on this very blog. I'm sure they'd be happy to accept the task.
Actually, out of my great respect for the discipline of history, I have no desire to accept this task at all, and I would hope that no reasonable historian would wish to either. (Unfortunately, there is no shortage of unreasonable historians studying American history, so I suspect Will would have to beat back the volunteers, but that's a complaint for another day.) The problem is that there is no way to interpret the constitution according to original intent without doing gross insult to history. America in 1789 is different than America in 2003. Our instututions are different, our values are different, our goals are different, our words even mean different things now than they did then. Trying to reconstruct the understanding of the Constitution our Founding Fathers in order to apply it to our current world would be like trying to recreate the Colonial system of roads to serve the needs of today's automotive society.
Fredrich Nietzsche wrote on the pitfalls in applying the lessons of history to contemporary life in On the Use and Abuse of History for Life:
Now, what purpose is served for contemporary man by the monumental consideration of the past, busying ourselves with the classics and rarities of earlier times? He derives from that the fact that the greatness which was once there at all events once was possible and therefore will really be possible once again. He goes along his path more bravely, for now the doubt which falls over him in weaker hours, that he might perhaps be wishing for the impossible, is beaten back from the field. Let us assume that somebody believes it would take no more than a hundred productive men, effective people brought up in a new spirit, to get rid of what has become trendy in German culture right now , how must it strengthen him to perceive that the culture of the Renaissance raised itself on the shoulders of such a crowd of a hundred men.
Nevertheless, to learn right away something new from the same example, how fleeting and weak, how imprecise that comparison would be! If the comparison is to carry out this powerful effect, how much of the difference will be missed in the process. How forcefully must the individuality of the past be wrenched into a general shape, with all its sharp corners and angles broken off for the sake of the correspondence! In fact, basically something that once was possible could appear possible a second time only if the Pythagoreans were correct in thinking that with the same constellations of the celestial bodies the same phenomena on the Earth had to repeat themselves, even in the small single particulars, so that when the stars have a certain position relative to each other, a Stoic and an Epicurean will, in an eternal recurrence, unite and assassinate Caesar, and with another stellar position Columbus will eternally rediscover America.
Only if the Earth were always to begin its theatrical performance once again after the fifth act, if it were certain that the same knot of motives, the same deus ex machina, the same catastrophe returned in the same determined interval, could the powerful man desire monumental history in complete iconic truth, that is, each fact in its precisely described characteristics and unity, and probably not before the time when astronomers have once again become astrologers. Until that time monumental history will not be able to produce that full truthfulness. It will always bring closer what is unlike, generalize, and finally make things equal. It will always tone down the difference in motives and events, in order to set down the monumental effectus [effect], that is, the exemplary effect worthy of imitation, at the cost of the causae [cause]. Thus, because monumental history turns away as much as possible from the cause, we can call it a collection of "effects in themselves" with less exaggeration than calling it events which will have an effect on all ages. What is celebrated in folk festivals and in religious or military remembrance days is basically such an "effect in itself." It is the thing which does not let the ambitious sleep, which for the enterprising lies like an amulet on the heart, but it is not the true historical interconnection between cause and effect, which fully recognized, would only prove that never again could anything completely the same fall out in the dice throw of future contingency.
But Nietzsche also recognizes that there are times when it is desirable to do bad history. The Founding Fathers represent a certain ideal in our society, no less powerful for its inaccuracy. It's not stupidity or historical illiteracy that cause originalists to seek smaller government and laws that promote virtue, despite the vast gulf that separates our our way of life from theirs. Rather, it is the seductiveness, the usefulness, of this vision that leads them to gloss over the impossibility of any meaningful return to the days of yore. The question is not really what values we held in the past. Historians are kidding themselves mightily if they believe that their recreation of the past, in and of itself, is valuable to anyone save themselves. The real question is what values, what principles, will guide us into the future. Only when we have found these can we cull the past for the stories, the heroes, that will inspire us to move forward.
Yes, historians might be more qualified than lawyers to say what the constitution meant to the founders. Honest historians will also say that the constitution did not mean the same thing to all the founders. Other historians--Marxians or Freudians, for instance--will be willing to argue that the constitution actually meant something different to the founders than they even thought it meant. But to make any of these interpretations general enough to apply also to contemporary society, one must strip away all of the specifics, all of the nuances, that gave it value in the first place. And having done this, one must rebuild the nuance, the specificity, on a framework no more meaningful than an historian's best guess as to how the Founding Fathers, on aggregate, would have responded to a telephone survey question, "Should we have a weak federal government? Press one if you strongly agree, two if you agree, three if you have no opinion, four if you disagree and five if you strongly disagree."
Thank you very much, but I'll take government by the lawyers instead.
Mysteries:
I don't know if anybody else has been following this, or cares, but there's been a really interesting chain of stories in the New York Times about a mass poisoning in a small town in Maine. To watch the story unfold, click
May 1,
May 2,
May 3 (one),
May 3 (two),
May 4, and
May 7.
I don't know if anybody else has been following this, or cares, but there's been a really interesting chain of stories in the New York Times about a mass poisoning in a small town in Maine. To watch the story unfold, click
May 1,
May 2,
May 3 (one),
May 3 (two),
May 4, and
May 7.
One more Brief Defense:
Curmudgeonly Clerk takes aim at Kozinski's dissent from the denial for rehearing in Silveira, complaining particularly that Kozinski is working from the assumption that the individual-rights view has been proven, and that he makes irrelevant policy arguments.
Well, maybe. If Kozinski's dissent from denial were a majority opinion, it would be a lousy one. But, if I understand appellate practice correctly, one need not actually decide the case entirely in the dissent from denial, especially when one joins another dissent that does the legal heavy lifting. Indeed, such additional dissents were, I had thought, the place one was supposed to raise additional thoughts.
As to the relevance of the policy argument, if Kozinski believes that his colleagues are letting their policy preferences get away from them, I don't see what's wrong with trying to convince them that their policy preferences might be shortsighted as well. And I don't see that there's anything unprofessional, or unjudicial about accusing other Judges of failing to separate out their personal biases from the law. Justice Scalia does it all the time, as has Justice Ginsburg (in Bush v. Gore), and many more.
At any rate, I didn't mean to suggest that Kozinski's piece is a determinative Second Amendment argument. But then, it isn't meant to be. It is, however, moving, eloquent, and darn persuasive about why this congressional mis-interpretation is a problem, not just an unimportant verbal trick to achieve what we all want anyway. In a world of activist Supreme Court Justices, no type of argument is out of bounds.
Curmudgeonly Clerk takes aim at Kozinski's dissent from the denial for rehearing in Silveira, complaining particularly that Kozinski is working from the assumption that the individual-rights view has been proven, and that he makes irrelevant policy arguments.
Well, maybe. If Kozinski's dissent from denial were a majority opinion, it would be a lousy one. But, if I understand appellate practice correctly, one need not actually decide the case entirely in the dissent from denial, especially when one joins another dissent that does the legal heavy lifting. Indeed, such additional dissents were, I had thought, the place one was supposed to raise additional thoughts.
As to the relevance of the policy argument, if Kozinski believes that his colleagues are letting their policy preferences get away from them, I don't see what's wrong with trying to convince them that their policy preferences might be shortsighted as well. And I don't see that there's anything unprofessional, or unjudicial about accusing other Judges of failing to separate out their personal biases from the law. Justice Scalia does it all the time, as has Justice Ginsburg (in Bush v. Gore), and many more.
At any rate, I didn't mean to suggest that Kozinski's piece is a determinative Second Amendment argument. But then, it isn't meant to be. It is, however, moving, eloquent, and darn persuasive about why this congressional mis-interpretation is a problem, not just an unimportant verbal trick to achieve what we all want anyway. In a world of activist Supreme Court Justices, no type of argument is out of bounds.
Enough Already:
Now, I think I've made clear what I think are the problems with originalism as a doctrine, but now I think I'm going to have to defend Justice Scalia's jurisprudence (when here I assumed it spoke for itself and needed no defending). Criticisms come from my co-blogger (decrying his "it's originalist or it's living" binary (but see UPDATE)), from the semi-anonmyous Another 1L (see also his "comments" section), and this report via How Appealing. Warning: the following post is a fairly meandering defense of originalism, in direct opposition to my previous arguments against originalism.
One of the chief complaints against Justice Scalia seems to be that (somehow) stare decisis and originalism conflict with each either. I think this is true, as far as it goes, but the problem of stare decisis is one that any theory of interpretation must face. And Justice Thomas offers a good glimpse of originalism much without stare decisis at all, and while it's different, it's not radically different. So I'll cede the point on this one.
But what of Amanda's claim, that our pocket is being picked when Scalia says it's either originalism or it's a living constitution (but see UPDATE)? She offers legal pragmatism as a counter-example. Of course, legal pragmatism, like all unoriginal theories of interpretation, is based on the presumption that the constitution's meaning can change-- what is pragmatic today may not be pragmatic forever. The living constitutionalists are a diverse bunch indeed-- some will just blatantly read values into the constitution, but others will do so a little more subtly. Maybe they will assemble penumbras of rights, or substantiate due process, or use arguments about public policy. But they still are working under the assumption that what we think, what we reason now, can change what is demanded by the constitution.
Now, there are reasons why that could be an OK thing. It might even be a good thing. After all, who doesn't want the law to be just? Who doesn't like rights? The trouble, of course, is twofold. Firstly, not every right is a good one. Scalia tried to scare the audience with the violation of the confrontation clause, but I think a child sex offender fails to elicit the requisite constitutional sympathy from this crowd. But what happens if the vastly expanding penumbra of rights suddenly extends onto a fetus too? (At which point Roe would be not overturned but flip-flopped entirely). Secondly, it doesn't give the arguing lawyers much to do. What legal test can be applied to the First Amendment to decide when a restriction on speech is pragmatic? Originalists have a flawed method, but it's a method, and that deserves some points. Only when you're arguing with an originalist do you have any confidence that you can convince him to side against his personal predilections. I haven't studied this carefully, but I do note that while Scalia often upholds the rights of the scruffy political protester, or sides with the liberal Justices in Ring, that I rarely see the liberal Justices right, "Gee, this is a hard case, but I'm going to have to go against my instincts here."
Here's another advantage originalism offers-- it's replicable. One goal of a theory of constitutional interpretation, I think, ought to be that other people can interpret the constitution the way you would. That is, it ought to be predictable and non-arbitrary. After all, the bulk of interpretation is done by the lower courts on cases that never reach the High Court. If I were a Federal Appellate Judge (dare to dream!), I think I would know how to determine whether a statute violated an originalist constitution. But unless I had the brilliance of Richard Posner, I doubt I could guess where Stephen Breyer would come down. That's fine if you're Stephen Breyer (or Richard Posner), but not so great for the majority of judges, or the poor lawyers who have to argue before them.
This is the seductive simplicity of originalism. Anybody can do it. There are hard cases, sure, and plenty of expostulation and interpretation is still necessary-- do libel laws violate the First Amendment? How strict can they be? Can the government condition health care funding on an abortion gag-rule? But the lure of originalism is that it's a pretty tight leash, and since the court can police less than 1% of the appellate cases that rage on out of its reach, it doesn't have the room to let out a lot of slack.
And what of Another1L's complaints that Scalia is inconsistent in applying his own originalism? That's fair and on-target. The cases he cites seem off-base. Lopez represented a fairly textualist/originalist reading of the commerce clause, though not, as Thomas argued, nearly original enough. Bush v. Gore was a lousy decision, I think, but having agreed to hear it (a mistake by Scalia, I think), neither decision was going to look particularly good. Better critcism, for example, would be Employment Division v. Smith, where Scalia effectively eviscerated much of the Free Excercise of Religion (because of his hatred of unclear tests). Okay. He makes mistakes. But at least he leaves behind a coherent system-- a way to judge when he's wrong. How can you ever tell Stevens that he's violated his own theory of interpretation?
Originalism is a system. It's an almost-complete system for interpreting the Constitution. You go look at the document, you assume the Founders said what they meant and meant what they said, and that (for the most part) when they didn't include a clause, it was because they couldn't agree on what to put there. Where there are ambiguities, you look for the common understanding at the time, and in the time since. Maybe it strikes you as an odd thing to do-- like fishing for newt legs and bat guano-- but it's a philosophy, and it has a lot to recommend it. If you think it's important to have a way of knowing whether your interpretation of the constitution is right or not, originalism's the game in town.
Finally, Justice Scalia upsets a lot of people, I think, who went into law because they thought it was cleaner than politics. He wants to push fights about what is "just" or "right" back to the province of the democratically elected, and I think that bothers a lot of people (like me, on my unoriginalist days) who really do hope that the right-to-privacy behemoth will keep expanding. A hundred years ago, we used to amend the constitution when we needed vast social change (as we did for the 17th, 18th, and 19th amendments, among others). We've stopped doing that, you'll notice. Even the moribund Equal Rights Amendment doesn't really say much. Well that's fine, but as judicial nominees-- left and right-- can see, the jig is up. A senator tells Clarence Thomas that if he believes a word of Epstein's takings textbook, he shouldn't be on the court. Another senator won't confirm somebody who thinks Roe is wrong. Another won't confirm anybody who thinks Roe is right. Battles over the legality of abortion, and homosexuality are unpleasant, and when the debate becomes one not about some arcane point of law or text, but one about "fundamental (but conveniently unmentioned) liberty" and the like, the court's will soon stop being the bulwark against interest group politics, but another victim of it.
UPDATE: Amanda complains that a quote, especially a metaphorical quote, is not a claim, and that she didn't mean to be offering legal pragmatism as a counter-example to originalism, but rather that "it's worth looking into." Fair enough. I didn't mean to mis-characterize her as a pragmatist. But I do mean this post to give some idea of why I think legal pragmatism is no more helpful than living constitutionalism in general, and why there is, to some extent, an unoriginalism-organic constitution binary.
Now, I think I've made clear what I think are the problems with originalism as a doctrine, but now I think I'm going to have to defend Justice Scalia's jurisprudence (when here I assumed it spoke for itself and needed no defending). Criticisms come from my co-blogger (decrying his "it's originalist or it's living" binary (but see UPDATE)), from the semi-anonmyous Another 1L (see also his "comments" section), and this report via How Appealing. Warning: the following post is a fairly meandering defense of originalism, in direct opposition to my previous arguments against originalism.
One of the chief complaints against Justice Scalia seems to be that (somehow) stare decisis and originalism conflict with each either. I think this is true, as far as it goes, but the problem of stare decisis is one that any theory of interpretation must face. And Justice Thomas offers a good glimpse of originalism much without stare decisis at all, and while it's different, it's not radically different. So I'll cede the point on this one.
But what of Amanda's claim, that our pocket is being picked when Scalia says it's either originalism or it's a living constitution (but see UPDATE)? She offers legal pragmatism as a counter-example. Of course, legal pragmatism, like all unoriginal theories of interpretation, is based on the presumption that the constitution's meaning can change-- what is pragmatic today may not be pragmatic forever. The living constitutionalists are a diverse bunch indeed-- some will just blatantly read values into the constitution, but others will do so a little more subtly. Maybe they will assemble penumbras of rights, or substantiate due process, or use arguments about public policy. But they still are working under the assumption that what we think, what we reason now, can change what is demanded by the constitution.
Now, there are reasons why that could be an OK thing. It might even be a good thing. After all, who doesn't want the law to be just? Who doesn't like rights? The trouble, of course, is twofold. Firstly, not every right is a good one. Scalia tried to scare the audience with the violation of the confrontation clause, but I think a child sex offender fails to elicit the requisite constitutional sympathy from this crowd. But what happens if the vastly expanding penumbra of rights suddenly extends onto a fetus too? (At which point Roe would be not overturned but flip-flopped entirely). Secondly, it doesn't give the arguing lawyers much to do. What legal test can be applied to the First Amendment to decide when a restriction on speech is pragmatic? Originalists have a flawed method, but it's a method, and that deserves some points. Only when you're arguing with an originalist do you have any confidence that you can convince him to side against his personal predilections. I haven't studied this carefully, but I do note that while Scalia often upholds the rights of the scruffy political protester, or sides with the liberal Justices in Ring, that I rarely see the liberal Justices right, "Gee, this is a hard case, but I'm going to have to go against my instincts here."
Here's another advantage originalism offers-- it's replicable. One goal of a theory of constitutional interpretation, I think, ought to be that other people can interpret the constitution the way you would. That is, it ought to be predictable and non-arbitrary. After all, the bulk of interpretation is done by the lower courts on cases that never reach the High Court. If I were a Federal Appellate Judge (dare to dream!), I think I would know how to determine whether a statute violated an originalist constitution. But unless I had the brilliance of Richard Posner, I doubt I could guess where Stephen Breyer would come down. That's fine if you're Stephen Breyer (or Richard Posner), but not so great for the majority of judges, or the poor lawyers who have to argue before them.
This is the seductive simplicity of originalism. Anybody can do it. There are hard cases, sure, and plenty of expostulation and interpretation is still necessary-- do libel laws violate the First Amendment? How strict can they be? Can the government condition health care funding on an abortion gag-rule? But the lure of originalism is that it's a pretty tight leash, and since the court can police less than 1% of the appellate cases that rage on out of its reach, it doesn't have the room to let out a lot of slack.
And what of Another1L's complaints that Scalia is inconsistent in applying his own originalism? That's fair and on-target. The cases he cites seem off-base. Lopez represented a fairly textualist/originalist reading of the commerce clause, though not, as Thomas argued, nearly original enough. Bush v. Gore was a lousy decision, I think, but having agreed to hear it (a mistake by Scalia, I think), neither decision was going to look particularly good. Better critcism, for example, would be Employment Division v. Smith, where Scalia effectively eviscerated much of the Free Excercise of Religion (because of his hatred of unclear tests). Okay. He makes mistakes. But at least he leaves behind a coherent system-- a way to judge when he's wrong. How can you ever tell Stevens that he's violated his own theory of interpretation?
Originalism is a system. It's an almost-complete system for interpreting the Constitution. You go look at the document, you assume the Founders said what they meant and meant what they said, and that (for the most part) when they didn't include a clause, it was because they couldn't agree on what to put there. Where there are ambiguities, you look for the common understanding at the time, and in the time since. Maybe it strikes you as an odd thing to do-- like fishing for newt legs and bat guano-- but it's a philosophy, and it has a lot to recommend it. If you think it's important to have a way of knowing whether your interpretation of the constitution is right or not, originalism's the game in town.
Finally, Justice Scalia upsets a lot of people, I think, who went into law because they thought it was cleaner than politics. He wants to push fights about what is "just" or "right" back to the province of the democratically elected, and I think that bothers a lot of people (like me, on my unoriginalist days) who really do hope that the right-to-privacy behemoth will keep expanding. A hundred years ago, we used to amend the constitution when we needed vast social change (as we did for the 17th, 18th, and 19th amendments, among others). We've stopped doing that, you'll notice. Even the moribund Equal Rights Amendment doesn't really say much. Well that's fine, but as judicial nominees-- left and right-- can see, the jig is up. A senator tells Clarence Thomas that if he believes a word of Epstein's takings textbook, he shouldn't be on the court. Another senator won't confirm somebody who thinks Roe is wrong. Another won't confirm anybody who thinks Roe is right. Battles over the legality of abortion, and homosexuality are unpleasant, and when the debate becomes one not about some arcane point of law or text, but one about "fundamental (but conveniently unmentioned) liberty" and the like, the court's will soon stop being the bulwark against interest group politics, but another victim of it.
UPDATE: Amanda complains that a quote, especially a metaphorical quote, is not a claim, and that she didn't mean to be offering legal pragmatism as a counter-example to originalism, but rather that "it's worth looking into." Fair enough. I didn't mean to mis-characterize her as a pragmatist. But I do mean this post to give some idea of why I think legal pragmatism is no more helpful than living constitutionalism in general, and why there is, to some extent, an unoriginalism-organic constitution binary.
Tuesday, May 06, 2003
Shocking enough:
I am apparently in the fourth circle of hell with the prodigal and avaricious. (Not all that surprising, really). You and Satan are on your own down there in the ninth, Will. And yes, I'll be posting substantive things soon.
I am apparently in the fourth circle of hell with the prodigal and avaricious. (Not all that surprising, really). You and Satan are on your own down there in the ninth, Will. And yes, I'll be posting substantive things soon.
Happy Birthday:
Howard Bashman answers questions for How Appealing's birthday, revealing in the course of things "if the opportunity ever arose to become an appellate judge -- state or federal -- it would be very difficult to turn that down."
Howard Bashman answers questions for How Appealing's birthday, revealing in the course of things "if the opportunity ever arose to become an appellate judge -- state or federal -- it would be very difficult to turn that down."
Hell Redux:
Honestly! Second Circle, Second Circle, Limbo! Either everybody else around here fibs to their computers, or I am alarmingly depraved (in that computer-survey kind of way). Peter! Please! Help me out!
Honestly! Second Circle, Second Circle, Limbo! Either everybody else around here fibs to their computers, or I am alarmingly depraved (in that computer-survey kind of way). Peter! Please! Help me out!
I too will be joining the incontinents in the second circle.
Level 2, with Cleopatra (unfortunately, the server is too busy at the moment for me to describe my fate in greater detail).
Just back from the mandatory meeting for English majors considering doing a B.A. project. I'm torn -- do I like my topic sufficiently? do I actually want to write a B.A? I'm probably one of the biggest B.A. teases the department's ever had -- from working with Ken Warren on Ida B. Well's autobiography (there's surprising deviations and obfuscations of the truth); to working with William Veeder on authorial presence in Robert Penn Warren's Brother to Dragons, World Enough and Time, and All the King's Men; to working with Eric Slauter on words (or a word, singular, such as 'liberty) with deliberately non-fixed meanings in American revolutionary political texts. The current (final?) BA proposal has several significant virtues: it's not on fiction, and it will hopefully allow me to either agree with the originalists or to refute them with style because I, like Justice Scalia, would know the founders.
Or I will instead devote myself to the Great Sleep.
Just back from the mandatory meeting for English majors considering doing a B.A. project. I'm torn -- do I like my topic sufficiently? do I actually want to write a B.A? I'm probably one of the biggest B.A. teases the department's ever had -- from working with Ken Warren on Ida B. Well's autobiography (there's surprising deviations and obfuscations of the truth); to working with William Veeder on authorial presence in Robert Penn Warren's Brother to Dragons, World Enough and Time, and All the King's Men; to working with Eric Slauter on words (or a word, singular, such as 'liberty) with deliberately non-fixed meanings in American revolutionary political texts. The current (final?) BA proposal has several significant virtues: it's not on fiction, and it will hopefully allow me to either agree with the originalists or to refute them with style because I, like Justice Scalia, would know the founders.
Or I will instead devote myself to the Great Sleep.
Miscellaneous & Missing Weapons:
I will be interning with the Green Independent Party in Portland, Maine this summer. And I'm headed for Limbo. The Libertarians are not faring well on the Hell test. Is it any question where Peter will end up? I'm more interested in Amy and Amanda's results.
Thanks to Amy for the link to Matt Yglesias' post on missing weapons in Iraq. I agree with both Amy and Matt's sentiments here. My worry from the beginning was that we would go into Iraq without letting the inspectors finish their job, leaving us with an incomplete account of just what Saddam had under his command. My second worry, which never seemed to be addressed by anyone, was that taking Saddam out leaves whatever weapons he had scattered all over the place. It would've been obviously stupid for Saddam to keep all his weapons in one pile under his bed, and taking him out leaves a slew of military commanders with control over weapons. (Of course, this is all assuming that they had weapons in the first place). Regardless, as I learned from John Mearsheimer, Saddam Hussein would have never sold or used WMDs. Why? Israel and America would've both responded immediately, possibly axiomatically, against Iraq had any WMDs been used in the Middle East. There certainly would not have been a long investigation into 'who bombed us.' Saddam must have known that letting WMDs out of the bag would have been virtual suicide. But... cut the big head off the monster, and what are you left with? Answer: a bunch of generals with control of WMDs who are not guided by the same principles of international relations. I'm sure there were some in the Iraqi military who support the idea of terrorist action against Israel and the US, and I'm sure they would have no qualms whatsoever of selling dangerous items to terrorist organizations. With Saddam out of the picture, whoever controls the weapons is able to do with them what they wish, and the rule of suicidal ensured destruction doesn't necessarily apply to them.
Now that there are missing weapons out there, a new threat has risen. Say some Iraqi General sold a nuke or a biological/chemical weapons to a terrorist group and that group attacks the US or Israel, who do we bomb then?
I will be interning with the Green Independent Party in Portland, Maine this summer. And I'm headed for Limbo. The Libertarians are not faring well on the Hell test. Is it any question where Peter will end up? I'm more interested in Amy and Amanda's results.
Thanks to Amy for the link to Matt Yglesias' post on missing weapons in Iraq. I agree with both Amy and Matt's sentiments here. My worry from the beginning was that we would go into Iraq without letting the inspectors finish their job, leaving us with an incomplete account of just what Saddam had under his command. My second worry, which never seemed to be addressed by anyone, was that taking Saddam out leaves whatever weapons he had scattered all over the place. It would've been obviously stupid for Saddam to keep all his weapons in one pile under his bed, and taking him out leaves a slew of military commanders with control over weapons. (Of course, this is all assuming that they had weapons in the first place). Regardless, as I learned from John Mearsheimer, Saddam Hussein would have never sold or used WMDs. Why? Israel and America would've both responded immediately, possibly axiomatically, against Iraq had any WMDs been used in the Middle East. There certainly would not have been a long investigation into 'who bombed us.' Saddam must have known that letting WMDs out of the bag would have been virtual suicide. But... cut the big head off the monster, and what are you left with? Answer: a bunch of generals with control of WMDs who are not guided by the same principles of international relations. I'm sure there were some in the Iraqi military who support the idea of terrorist action against Israel and the US, and I'm sure they would have no qualms whatsoever of selling dangerous items to terrorist organizations. With Saddam out of the picture, whoever controls the weapons is able to do with them what they wish, and the rule of suicidal ensured destruction doesn't necessarily apply to them.
Now that there are missing weapons out there, a new threat has risen. Say some Iraqi General sold a nuke or a biological/chemical weapons to a terrorist group and that group attacks the US or Israel, who do we bomb then?
Gambling:
A not-always-on-point op-ed in The New York Times does remind us why it's just sort of silly to think of gambling as a sin:
A not-always-on-point op-ed in The New York Times does remind us why it's just sort of silly to think of gambling as a sin:
All of us gamble. Air travel, dating, investments, education, even driving or walking to work are not for the risk-averse. Vastly more is at stake when conceiving a child than when Mr. Bennett plays video poker, yet married couples are treated to no finger-jabbing sermons when they roll the dice on reproduction. As a finger-jabber himself on some subjects, Mr. Bennett should perhaps be more alert to such ironies.
Priorities?
So we can't track down missing radioactive material, but we do have the resources to go looking for missing zoo animals?
It's stories like these that remind me why I was dubious about our involvement in Iraq in the first place.
So we can't track down missing radioactive material, but we do have the resources to go looking for missing zoo animals?
It's stories like these that remind me why I was dubious about our involvement in Iraq in the first place.
Historical Interpretation:
No, this post isn't actually about the constitution, but just to note that according to Kathleen, I am a 10th-century monk.
In all seriousness, her post is a really good one about the importance of mathematics. Read it.
No, this post isn't actually about the constitution, but just to note that according to Kathleen, I am a 10th-century monk.
In all seriousness, her post is a really good one about the importance of mathematics. Read it.
Hell:
Want to find out where in Hell you belong? Take the test. As for me? Well, umm . . .
The Dante's Inferno Test has banished you to the Ninth Level of Hell - Cocytus!
Here is how you matched up against all the levels:
Take the Dante's Inferno Hell Test
UPDATE: And Zach Wendling over at the Hoosier Review only ended up in Purgatory! In case you were trying to pin down the difference between Republicans and Libertarians, there you have it.
Want to find out where in Hell you belong? Take the test. As for me? Well, umm . . .
Ninth Level of Hell - Cocytus
This is the deepest level of hell, where the fallen angel Satan himself resides. His wings flap eternally, producing chilling cold winds that freeze the thick ice found in Cocytus. The three faces of Satan, black, red, and yellow, can be seen with mouths gushing bloody foam and eyes forever weeping, as they chew on the three traitors, Judas, Brutus, and Cassius. This place is furthest removed from the source of all light and warmth. Sinners here are frozen deep in the ice, faces out, eyes and mouths frozen shut. Traitors against God, country, family, and benefactors lament their sins in this frigid pit of despair.
The Dante's Inferno Test has banished you to the Ninth Level of Hell - Cocytus!
Here is how you matched up against all the levels:
| Level | Score |
|---|---|
| Purgatory (Repenting Believers) | Very Low |
| Level 1 - Limbo (Virtuous Non-Believers) | Very Low |
| Level 2 (Lustful) | Very High |
| Level 3 (Gluttonous) | High |
| Level 4 (Prodigal and Avaricious) | Very High |
| Level 5 (Wrathful and Gloomy) | Very High |
| Level 6 - The City of Dis (Heretics) | Extreme |
| Level 7 (Violent) | Very High |
| Level 8- the Malebolge (Fraudulent, Malicious, Panderers) | Very High |
| Level 9 - Cocytus (Treacherous) | Extreme |
Take the Dante's Inferno Hell Test
UPDATE: And Zach Wendling over at the Hoosier Review only ended up in Purgatory! In case you were trying to pin down the difference between Republicans and Libertarians, there you have it.
Kozinskiwatch:
(Via How Appealing, The Volokh Conspiracy, and half of the blogosphere): As usual, 9th Cicuirt Judge Alex Kozinski has a brilliant and eloquent dissent, this time from a denial of rehearing en banc regarding the Second Amendment. The decision is here (sometimes hard to open, so be warned), and some lengthy excerpts are to follow. It's so nice that judicial opinions aren't copyrighted.
UPDATE: A brief response to Curmudgeonly Clerk is here.
(Via How Appealing, The Volokh Conspiracy, and half of the blogosphere): As usual, 9th Cicuirt Judge Alex Kozinski has a brilliant and eloquent dissent, this time from a denial of rehearing en banc regarding the Second Amendment. The decision is here (sometimes hard to open, so be warned), and some lengthy excerpts are to follow. It's so nice that judicial opinions aren't copyrighted.
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases. —or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
The majority falls prey to the delusion—popular in some circles—that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth—born of experience—is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. . . In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. . . . As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble. . . .
My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once. . . .
The sheer ponderousness of the panel’s opinion—the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text—refutes its thesis far more convincingly than anything I might say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it—and is just as likely to succeed.
UPDATE: A brief response to Curmudgeonly Clerk is here.
More on Originalism:
One last thought I have about the problem with originalism as constitutional doctrine. This is the thing I'm the least sure about, but I'll try to flesh it out here. It is sometimes said of President Franklin Roosevelt that he is the savior of capitalism because without the modifications he made to capitalism, the entire system would have collapsed in popular revolution. I wonder if the same can be said of non-originalism, which (I submit) started to come to the fore during the New Deal, specifically as a threat of Roosevelt's court-packing plan (which probably wouldn't have gone anywhere) but also of the general popular outcry that the Supreme Court, via the constitution, was binding the hands of a populace that sorely needed its hands freed.
Justice Scalia pointed out that Stare Decisis in a case sometimes provides an excuse for ignoring the originalist outcome in that case (as, for example, in the case of the incorporation of the Bill of Rights). After all, who knows how the Seventeenth Amendment would have been different, or whether we would have clamored for an incorporation amendment anyway, and all the rest. But this same argument may apply to an unoriginal interpretation of the constitution. We accept interest group influence in politics, a system of (often tyrannical) majority rule, broad deference to congress, a massive police force, and the criminalization of large numbers of activities that many of us commit daily, partially because we now rest on the assumption that the Supreme Court now also enforces some free-floating notion of justice, not entirely tethered to the Constitution.
Even unoriginalists have some shame, of course. Few Libertarians (though some do) think that the Constitution enshrines a right to drug use, and few socialists find a right to universal medical care there. So even unoriginalist interpretations bear at least some relationship to the text of the Constitution. But the broader question, the one for which I have no answer, is this: Could an originalist court have survived into the 21st century? Given that Congress has various powers to strip the jurisdiction of the court, that the executive can enforce his own law, and that this country has been uncomfortably close to the edge of existence more than once since the victory of the American Revolution, what would have happened?
If one believes in Stare Decisis (and not all do), one can argue that American society and politics have been proceeding on the widely-accepted assumption that the Court sometimes decides what is just or right, not merely what is written-- whether this is Scalia ruling that tobacco is not a drug, Thomas ruling that cross-burning is not expression, or Kennedy ruling that a state's laws cannot manifest particular animus towards a class of its citizens. So does it make sense to suddenly turn back the clock, now that the crisis is passed, or is the compromise of constant constitutional interpretation a necessary scar of our previous times-- like the lamentable compromise of laissez-faire capitalism?
Maybe it does. I don't know.
One last thought I have about the problem with originalism as constitutional doctrine. This is the thing I'm the least sure about, but I'll try to flesh it out here. It is sometimes said of President Franklin Roosevelt that he is the savior of capitalism because without the modifications he made to capitalism, the entire system would have collapsed in popular revolution. I wonder if the same can be said of non-originalism, which (I submit) started to come to the fore during the New Deal, specifically as a threat of Roosevelt's court-packing plan (which probably wouldn't have gone anywhere) but also of the general popular outcry that the Supreme Court, via the constitution, was binding the hands of a populace that sorely needed its hands freed.
Justice Scalia pointed out that Stare Decisis in a case sometimes provides an excuse for ignoring the originalist outcome in that case (as, for example, in the case of the incorporation of the Bill of Rights). After all, who knows how the Seventeenth Amendment would have been different, or whether we would have clamored for an incorporation amendment anyway, and all the rest. But this same argument may apply to an unoriginal interpretation of the constitution. We accept interest group influence in politics, a system of (often tyrannical) majority rule, broad deference to congress, a massive police force, and the criminalization of large numbers of activities that many of us commit daily, partially because we now rest on the assumption that the Supreme Court now also enforces some free-floating notion of justice, not entirely tethered to the Constitution.
Even unoriginalists have some shame, of course. Few Libertarians (though some do) think that the Constitution enshrines a right to drug use, and few socialists find a right to universal medical care there. So even unoriginalist interpretations bear at least some relationship to the text of the Constitution. But the broader question, the one for which I have no answer, is this: Could an originalist court have survived into the 21st century? Given that Congress has various powers to strip the jurisdiction of the court, that the executive can enforce his own law, and that this country has been uncomfortably close to the edge of existence more than once since the victory of the American Revolution, what would have happened?
If one believes in Stare Decisis (and not all do), one can argue that American society and politics have been proceeding on the widely-accepted assumption that the Court sometimes decides what is just or right, not merely what is written-- whether this is Scalia ruling that tobacco is not a drug, Thomas ruling that cross-burning is not expression, or Kennedy ruling that a state's laws cannot manifest particular animus towards a class of its citizens. So does it make sense to suddenly turn back the clock, now that the crisis is passed, or is the compromise of constant constitutional interpretation a necessary scar of our previous times-- like the lamentable compromise of laissez-faire capitalism?
Maybe it does. I don't know.
Mr. Baude has cried "sex discrimination" because at Justice Scalia's speech today, no bags were allowed into the auditorium as a security precaution. I had with me my purse, in which was a copy of The Heart of the Matter, in which was a random sheet of paper, near which were several pens. He had no means of taking notes. I submitted that he could have slipped paper and pen in his pants pockets.
Scalia's speech was purportedly on the doctrine of originalism. Actually, it was mostly on why the theory of a living constitution makes him cringe. His defense of originalism did dwell some on that doctrine, but focused primarily on showing that since the living constitution was not a viable alternative to originalism and since he could think of no other doctrines of constitutional interpretation, then originalism is the clear winner ["Alright, class, what do you do when someone hands you a binary?" "Reach for your wallet because you're about to be taken."].
His arguments against the idea of a living constitution were quite well made and convincing. Flexibility, he claimed, is frequently touted as the blessing of a living constitution. But note: the people who are want to change to this flexibility really want rigidity. Each time a flexible interpretation reads a new right into the Constitution -- eg, abortion -- the document loses its ability to vary, an ability preserved under legislative laws and statutes. Of the living constitutionalists, he said "they want the entire country to do things their way, now and forever, from coast to coast."
Another failing of the living constitution is that it offers little restraint upon judges. Scalia was in the 5-4 majority of Texas v. Johnson, overturning the conviction of a man who had burned an American flag because the statute forbidding flagburning was unconstitutional. He would have loved to throw into jail that scruffy, bearded guy, just the kind of guy conservatives like him hate. But the 1st Amendment's freedoms of speech and press clearly mean freedom of expression -- handwritten, sephamore code, morse code, flag burning. The morning after the Court announced its decision in that case, when Scalia came down for breakfast the Washington Post lay on the table, the article on the case visible. His wife was scrambling eggs and humming "Stars and Stripes Forever." "I don't need this," Scalia complained to the audience.
Throughout, Scalia repeatedly referred to non-originalist judges as ones 'who come home from work happy that the Constitution says what they want it to say'. He does not distinguish within the category of "non-originalist judges" and, in response to a question from the audience, claims that the judges never discuss philosophy in their chambers; he has heard no good defenses of any theory of constitutional interpretation save originalism. [I hope you'll pardon me when I say I don't entirely believe the good Justice. He is a brilliant man, and I am shocked that in his years as a law professor and on the bench, he did not hear any arguments for other interpretations -- say this 'legal pragmatism' that comes up from time to time -- that are worth his time to consider (and likely refute).]
Finally, Scalia blamed 50 years of the living constitution doctrine for the contributing to the current battles over judicial nominations. The question used to be, he says, whether the guy was a good lawyer. Now the question, is this a moderate judge? "What is a moderate interpretation of the text," he asked. "Half-way between what it says and what you'd like it to say?"
Will quotes below Scalia's quip, "I am a textualist; I am an originalist; I am not a nut." I believe this line was the end of his discussion on (two) forms of constitutional interpretation. "Any theory of interpretation, if it is practical, has to believe in stare decisis." Thomas does not believe in stare decises. [Draw what conclusions you may, but be aware that the two times Thomas's name came up, it was always as 'Brother Thomas.' Justice Stevens never received the familiar term.] He then gave the three-prong test for stare decisis.
After that, he faced a Q&A:
- In response to a question correllating the downswing of originalism's popularity with the Court's more active role in combatting segregation, "undoubtedly we are paying for the sins of our past," thanks to the Court's ability to eradicate those sins more promptly than the judicial processs. Scalia both repeatedly called for the democratic process to be used to effect change -- convince a majority that the death penality should be abolished and passed a law -- and noted, after flagrantly non-originalist decisions, that 'maybe we think the end result is good.'
- In response to whether the founders intended us to use originalism, but it's difficult for us to know who they were or what they thought, "I don't know who told you the founders--believe me, I know the founders." [yessir, Mr. Judge, sir.]
Sometimes, when Scalia mumbles, his voice begins to resemble Garrison Keillor's.
Scalia's speech was purportedly on the doctrine of originalism. Actually, it was mostly on why the theory of a living constitution makes him cringe. His defense of originalism did dwell some on that doctrine, but focused primarily on showing that since the living constitution was not a viable alternative to originalism and since he could think of no other doctrines of constitutional interpretation, then originalism is the clear winner ["Alright, class, what do you do when someone hands you a binary?" "Reach for your wallet because you're about to be taken."].
His arguments against the idea of a living constitution were quite well made and convincing. Flexibility, he claimed, is frequently touted as the blessing of a living constitution. But note: the people who are want to change to this flexibility really want rigidity. Each time a flexible interpretation reads a new right into the Constitution -- eg, abortion -- the document loses its ability to vary, an ability preserved under legislative laws and statutes. Of the living constitutionalists, he said "they want the entire country to do things their way, now and forever, from coast to coast."
Another failing of the living constitution is that it offers little restraint upon judges. Scalia was in the 5-4 majority of Texas v. Johnson, overturning the conviction of a man who had burned an American flag because the statute forbidding flagburning was unconstitutional. He would have loved to throw into jail that scruffy, bearded guy, just the kind of guy conservatives like him hate. But the 1st Amendment's freedoms of speech and press clearly mean freedom of expression -- handwritten, sephamore code, morse code, flag burning. The morning after the Court announced its decision in that case, when Scalia came down for breakfast the Washington Post lay on the table, the article on the case visible. His wife was scrambling eggs and humming "Stars and Stripes Forever." "I don't need this," Scalia complained to the audience.
Throughout, Scalia repeatedly referred to non-originalist judges as ones 'who come home from work happy that the Constitution says what they want it to say'. He does not distinguish within the category of "non-originalist judges" and, in response to a question from the audience, claims that the judges never discuss philosophy in their chambers; he has heard no good defenses of any theory of constitutional interpretation save originalism. [I hope you'll pardon me when I say I don't entirely believe the good Justice. He is a brilliant man, and I am shocked that in his years as a law professor and on the bench, he did not hear any arguments for other interpretations -- say this 'legal pragmatism' that comes up from time to time -- that are worth his time to consider (and likely refute).]
Finally, Scalia blamed 50 years of the living constitution doctrine for the contributing to the current battles over judicial nominations. The question used to be, he says, whether the guy was a good lawyer. Now the question, is this a moderate judge? "What is a moderate interpretation of the text," he asked. "Half-way between what it says and what you'd like it to say?"
Will quotes below Scalia's quip, "I am a textualist; I am an originalist; I am not a nut." I believe this line was the end of his discussion on (two) forms of constitutional interpretation. "Any theory of interpretation, if it is practical, has to believe in stare decisis." Thomas does not believe in stare decises. [Draw what conclusions you may, but be aware that the two times Thomas's name came up, it was always as 'Brother Thomas.' Justice Stevens never received the familiar term.] He then gave the three-prong test for stare decisis.
After that, he faced a Q&A:
- In response to a question correllating the downswing of originalism's popularity with the Court's more active role in combatting segregation, "undoubtedly we are paying for the sins of our past," thanks to the Court's ability to eradicate those sins more promptly than the judicial processs. Scalia both repeatedly called for the democratic process to be used to effect change -- convince a majority that the death penality should be abolished and passed a law -- and noted, after flagrantly non-originalist decisions, that 'maybe we think the end result is good.'
- In response to whether the founders intended us to use originalism, but it's difficult for us to know who they were or what they thought, "I don't know who told you the founders--believe me, I know the founders." [yessir, Mr. Judge, sir.]
Sometimes, when Scalia mumbles, his voice begins to resemble Garrison Keillor's.
Lesser Evils:
Pursuant to his visit to the U of C, Justice Scalia gave a talk this afternoon to the Law School on constitutional interpretation. I took my last excused P.E. absence and went.
Having surrendered my backpack to the powers-that-be, I don't have the usual laundry list of quotes. I do remember one, though, which Scalia issued in response to the question about why he respected the doctrine of incorporation of the bill of rights, which is not to be found in the original understanding of the constitution anywhere.
The speech was, I understand, Justice Scalia's usual defense of originalism. Firstly, he told us, a constitution is not, in fact, alive any more than the Dow is literally resting for an assault on 9000. The stock market is not a mountain climber and the constitution is merely a legal text.
That said, the chief advantage of originalism is that it restrains judges from voting their personal preference. If (and it seems to me that this "if" is particularly important) you believe it is undesirable that the constitution should always mean what we want for it to mean, then you must have some rule of law to guide Justices other than their own consciences.
Furthermore, Scalia argues, "you can't beat somebody with nobody." A cogent argument against originalism has to provide a better laternative as a method of interpretation, and "anything five Justices say" simply will not do.
Why not? Because now the game is up. After about half a century of judicial activism (though personally I think the activism started during the New Deal), judicial nominations have become incredibly politicized. Fine, says Justice Scalia, but if the work we are doing is moral work, is political work, why entrust it to lawyers?
(Justice Scalia also took some potshots at "substantive due process," where I think he was at his best. "Only lawyers can use a word like this," he said. Imagine it. Try. Close your eyes. Substantive process. What is that? Process is not substance, that's the whole point. Substantive process. It's the opposite of procedural substance, if that helps you any.)
Of course my rehearsal of the Justice's remarks is far from complete, but this seems to be the meat of it. During the question-and-answer session, I developed a few responses. Full Disclosure: I think that Justice Scalia's arguments are painfully persuasive, ("coercive philosophical activity," as Nozick would have it), but while I am a textualist with regard to the constitution, I am not always an originalist.
The first problem that Scalia's (though not Thomas's) originalism seems to encounter is Stare Decisis, the doctrine that the court is bound by its previous rulings. Scalia intimated that he had a three-prong test for Stare Decisis, consisting of how widely accepted the decision is, how wrong (and how willfully wrong) it was in the first place, and whether he can coherently apply the test.
The trouble with this test, of course, is that it is not particularly arguable. How wrong does a decision have to be? How widely accepted? What opinion poll would satisfy the Justice that Roe (if not Casey) is now settled law? The comfort of originalism is that it provides a cogent philosophical system of interpretation. But Justice Scalia's Stare Decisis or not? test doesn't seem to offer the same completeness, and indeed, almost gives up the game. Incorporation? Brown v. Board? Roe v. Wade? Where does it end?
There are options, of course, for a more objective Stare Decisis test-- a fifty-year time limit, a unanimous reversal rule, for example. Or one could chop off the first two prongs of the test, and reverse a previous decision only when its test cannot be reasonably applied. The trouble, I think, with Scalia's originalism is that he is "not a nut." To some degree, a belief that the democratic will of 1790 should trump the democratic will of 2003 is a bit of a nutty philosophy. It's not a bad philosophy, and it might be the only defensible one, but originalism is not for the faint of heart.
A second problem that Scalia encountered, though he managed to evade the worst of it, was to what extent one ought to respect "original intent". Having disparaged legislative history, he couldn't defend original intent, but he did defend the use of the Federalist Papers, since they represent an intelligent understanding of the meaning of the document at that time.
Yet as anybody who reads the Papers knows, Madison thought that the Bill of Rights was redundant and unnecessary to the enumerated powers of the government. But the Bill of Rights exist. Any originalist reading of the Federalist Papers must also consider the mythical Anti-Federalist Papers, and what they would say if they existed.
It is this mess of historical intepretation that causes my originalist impulses to be quelled while my textual impulses rage on unabated. I know how to interpret a text. I can consult dictionaries, ask Wittgensteinian hypothetical questions, analogize and cross-reference and arrive at answers, where the text is clear. But where the text is unclear, and one must consult history, I worry.
Why? Firstly, because winners often write history books. Secondly, because the founders did not always agree, even on the meaning of the Constitution. My suspicion is that certain ambiguities in the document are not the product of imprecise drafting, but are intentional. When the founders couldn't quite agree, they punted. Finally, there is the trouble of rationale vs. practice. Consider the death penalty. It is reasonably argued that the founders never considered the death penalty unconstitutional because the Fifth Amendment specifically provides that life cannot be taken without due process of law. The implication, not logically, but probably, is that with due process of law, one can be deprived of life. Fine. As a textualist, I like that argument. The argument that troubles me is that the historical popularity of the death penalty proves that it is not now cruel and unusual.
This is problematic, I think, for several reasons. First, there's little definitive evidence that the founders intended cruel in an objective sense rather than a subjective one. Second, the realities of legal practice, of argumentation, of lawyers, of constitutional interpretation, and of incorporation provide plenty of scenarios in which an unconstitutional practice could nonetheless avoid being wrongfully litigated in the court. (I know of no cases from before 1900, and perhaps I am simply ignorant in this area, that held the death penalty was constitutional.) There are plenty of practices that may well be unconstitutional, but go on nonetheless, even in large numbers. The use of sentencing factors by judges is one example, and one close to Justice Scalia's heart.
So I don't mind textualists at all, but the text only goes so far. But if history is supposed to be the guide to constitutional interpretation, then I must ask the Justice the same question he asked the audience. Why have it done by lawyers? There's an army of underappreciated history scholars out there, some of them on this very blog. I'm sure they'd be happy to accept the task.
UPDATE: Reader Alex Ignatiev emails to write:
Thanks! This is the problem with trying to figure out the original understanding . . .
Pursuant to his visit to the U of C, Justice Scalia gave a talk this afternoon to the Law School on constitutional interpretation. I took my last excused P.E. absence and went.
Having surrendered my backpack to the powers-that-be, I don't have the usual laundry list of quotes. I do remember one, though, which Scalia issued in response to the question about why he respected the doctrine of incorporation of the bill of rights, which is not to be found in the original understanding of the constitution anywhere.
To put it succinctly, I am a textualist, I am an originalist, I am not a nut.
The speech was, I understand, Justice Scalia's usual defense of originalism. Firstly, he told us, a constitution is not, in fact, alive any more than the Dow is literally resting for an assault on 9000. The stock market is not a mountain climber and the constitution is merely a legal text.
That said, the chief advantage of originalism is that it restrains judges from voting their personal preference. If (and it seems to me that this "if" is particularly important) you believe it is undesirable that the constitution should always mean what we want for it to mean, then you must have some rule of law to guide Justices other than their own consciences.
Furthermore, Scalia argues, "you can't beat somebody with nobody." A cogent argument against originalism has to provide a better laternative as a method of interpretation, and "anything five Justices say" simply will not do.
Why not? Because now the game is up. After about half a century of judicial activism (though personally I think the activism started during the New Deal), judicial nominations have become incredibly politicized. Fine, says Justice Scalia, but if the work we are doing is moral work, is political work, why entrust it to lawyers?
(Justice Scalia also took some potshots at "substantive due process," where I think he was at his best. "Only lawyers can use a word like this," he said. Imagine it. Try. Close your eyes. Substantive process. What is that? Process is not substance, that's the whole point. Substantive process. It's the opposite of procedural substance, if that helps you any.)
Of course my rehearsal of the Justice's remarks is far from complete, but this seems to be the meat of it. During the question-and-answer session, I developed a few responses. Full Disclosure: I think that Justice Scalia's arguments are painfully persuasive, ("coercive philosophical activity," as Nozick would have it), but while I am a textualist with regard to the constitution, I am not always an originalist.
The first problem that Scalia's (though not Thomas's) originalism seems to encounter is Stare Decisis, the doctrine that the court is bound by its previous rulings. Scalia intimated that he had a three-prong test for Stare Decisis, consisting of how widely accepted the decision is, how wrong (and how willfully wrong) it was in the first place, and whether he can coherently apply the test.
The trouble with this test, of course, is that it is not particularly arguable. How wrong does a decision have to be? How widely accepted? What opinion poll would satisfy the Justice that Roe (if not Casey) is now settled law? The comfort of originalism is that it provides a cogent philosophical system of interpretation. But Justice Scalia's Stare Decisis or not? test doesn't seem to offer the same completeness, and indeed, almost gives up the game. Incorporation? Brown v. Board? Roe v. Wade? Where does it end?
There are options, of course, for a more objective Stare Decisis test-- a fifty-year time limit, a unanimous reversal rule, for example. Or one could chop off the first two prongs of the test, and reverse a previous decision only when its test cannot be reasonably applied. The trouble, I think, with Scalia's originalism is that he is "not a nut." To some degree, a belief that the democratic will of 1790 should trump the democratic will of 2003 is a bit of a nutty philosophy. It's not a bad philosophy, and it might be the only defensible one, but originalism is not for the faint of heart.
A second problem that Scalia encountered, though he managed to evade the worst of it, was to what extent one ought to respect "original intent". Having disparaged legislative history, he couldn't defend original intent, but he did defend the use of the Federalist Papers, since they represent an intelligent understanding of the meaning of the document at that time.
Yet as anybody who reads the Papers knows, Madison thought that the Bill of Rights was redundant and unnecessary to the enumerated powers of the government. But the Bill of Rights exist. Any originalist reading of the Federalist Papers must also consider the mythical Anti-Federalist Papers, and what they would say if they existed.
It is this mess of historical intepretation that causes my originalist impulses to be quelled while my textual impulses rage on unabated. I know how to interpret a text. I can consult dictionaries, ask Wittgensteinian hypothetical questions, analogize and cross-reference and arrive at answers, where the text is clear. But where the text is unclear, and one must consult history, I worry.
Why? Firstly, because winners often write history books. Secondly, because the founders did not always agree, even on the meaning of the Constitution. My suspicion is that certain ambiguities in the document are not the product of imprecise drafting, but are intentional. When the founders couldn't quite agree, they punted. Finally, there is the trouble of rationale vs. practice. Consider the death penalty. It is reasonably argued that the founders never considered the death penalty unconstitutional because the Fifth Amendment specifically provides that life cannot be taken without due process of law. The implication, not logically, but probably, is that with due process of law, one can be deprived of life. Fine. As a textualist, I like that argument. The argument that troubles me is that the historical popularity of the death penalty proves that it is not now cruel and unusual.
This is problematic, I think, for several reasons. First, there's little definitive evidence that the founders intended cruel in an objective sense rather than a subjective one. Second, the realities of legal practice, of argumentation, of lawyers, of constitutional interpretation, and of incorporation provide plenty of scenarios in which an unconstitutional practice could nonetheless avoid being wrongfully litigated in the court. (I know of no cases from before 1900, and perhaps I am simply ignorant in this area, that held the death penalty was constitutional.) There are plenty of practices that may well be unconstitutional, but go on nonetheless, even in large numbers. The use of sentencing factors by judges is one example, and one close to Justice Scalia's heart.
So I don't mind textualists at all, but the text only goes so far. But if history is supposed to be the guide to constitutional interpretation, then I must ask the Justice the same question he asked the audience. Why have it done by lawyers? There's an army of underappreciated history scholars out there, some of them on this very blog. I'm sure they'd be happy to accept the task.
UPDATE: Reader Alex Ignatiev emails to write:
[The anti-federalist papers], monsieur, are not mythic. They are merely not canonical, or more correctly, their canon is not yet established. There were many anti-federalist papers published at the time, although they were not, to the best of my recollection, collected in a single-volume work called The Anti-Federalist.
I would invite you to peruse the following for a mere smattering of anti-federalist material.
Thanks! This is the problem with trying to figure out the original understanding . . .
And the Winner is:
Jeff Wall (my Current Constitutional Law teacher) and Nate Smith won yesterday's moot court competition in front of Justice Scalia, Judge McKeown of the Ninth Circuit, and Mr. Kendall of Williams & Connolly. I will simply say that Mr. Wall was absolutely amazing, though I have, perhaps, no right to be amazed by his eloquence or intelligence since I have him for class twice a week.
Jeff Wall (my Current Constitutional Law teacher) and Nate Smith won yesterday's moot court competition in front of Justice Scalia, Judge McKeown of the Ninth Circuit, and Mr. Kendall of Williams & Connolly. I will simply say that Mr. Wall was absolutely amazing, though I have, perhaps, no right to be amazed by his eloquence or intelligence since I have him for class twice a week.
Talent
Nick at Le Taon is feeling a lack of Eco in his life. With the goal of helping him remedy this deficiency, I've linked to an Eco piece that appeared a while ago in The Guardian on Alexandre Dumas. Eco wants to know why, of all the light fiction published during the ninteenth century in France, why do the works of Alexandre Dumas remain popular? He writes:
I discovered Dumas in junior high and devoured him. I loved the casual insoucance of the musketeers in the faces of danger, the bons mots as deft as their parries. I loved the contrast between Raoul's youthful innocence, and Athos' jaded cynicism--between D'Argatnon's early enthusiasm and later allegiance to the bureaucracy, between Milady's scheming manipulations, and the equally poisonous helplessness of Louise de la Valliere. But femme fatales, tragic beauties, young idealists, scheming councillers, and witty swordsmen proliferate like rabbits in popular fiction. It's a certain something--an ear for a turn of phrase, an intuitive flair for the dramatic, a mysterious ability to make the cliche seem new and dramatic--that lifts Dumas (and certain other popular writers) into the realm of the literary. I call it talent, and wish that I had it. Eco calls it "narrative strategy" and wants to dissect it, understand it, and recreate it. This is why I worship him.
The contrast between science and alchemy appears in several of Eco's books, such as The Island of the Day Before, and Foucault's Pendulum. Literature as it is practiced now is a lot like alchemy. The great authors have their systems, their inscrutable sourcebooks, their devil's pantry of talent and quintessence--and the rest of us see magic. Eco, however, sees methodologies to be stripped of their mystique and laid out for the benefit of us lead-footed writers. Reproducibility is the gold standard of science, and the philosopher's stone of Eco's literary criticism, and this can only be good. For even knowing there is no such thing as action at a distance, even finding the sleight-of-hand that keeps us coming back to the pages of The Three Musketeers, we will still accept the story, and we will still return. Such is the beauty of fiction.
Nick at Le Taon is feeling a lack of Eco in his life. With the goal of helping him remedy this deficiency, I've linked to an Eco piece that appeared a while ago in The Guardian on Alexandre Dumas. Eco wants to know why, of all the light fiction published during the ninteenth century in France, why do the works of Alexandre Dumas remain popular? He writes:
Therefore, are there virtues in writing which are not necessarily identified with linguistic creation, but are part of rhythm and shrewd dosage, and cross the boundary, albeit infinitesimally, between literature and light fiction?...Does the novel have to deepen the psychology of its heroes? Certainly the modern novel does, but the ancient legends did not do the same. Oedipus' psychology was deduced by Aeschylus or Freud, but the character is simply there, fixed in a pure and terribly disquieting state.
I discovered Dumas in junior high and devoured him. I loved the casual insoucance of the musketeers in the faces of danger, the bons mots as deft as their parries. I loved the contrast between Raoul's youthful innocence, and Athos' jaded cynicism--between D'Argatnon's early enthusiasm and later allegiance to the bureaucracy, between Milady's scheming manipulations, and the equally poisonous helplessness of Louise de la Valliere. But femme fatales, tragic beauties, young idealists, scheming councillers, and witty swordsmen proliferate like rabbits in popular fiction. It's a certain something--an ear for a turn of phrase, an intuitive flair for the dramatic, a mysterious ability to make the cliche seem new and dramatic--that lifts Dumas (and certain other popular writers) into the realm of the literary. I call it talent, and wish that I had it. Eco calls it "narrative strategy" and wants to dissect it, understand it, and recreate it. This is why I worship him.
The contrast between science and alchemy appears in several of Eco's books, such as The Island of the Day Before, and Foucault's Pendulum. Literature as it is practiced now is a lot like alchemy. The great authors have their systems, their inscrutable sourcebooks, their devil's pantry of talent and quintessence--and the rest of us see magic. Eco, however, sees methodologies to be stripped of their mystique and laid out for the benefit of us lead-footed writers. Reproducibility is the gold standard of science, and the philosopher's stone of Eco's literary criticism, and this can only be good. For even knowing there is no such thing as action at a distance, even finding the sleight-of-hand that keeps us coming back to the pages of The Three Musketeers, we will still accept the story, and we will still return. Such is the beauty of fiction.
Circular Logic:
Even I am getting tired of harping on abortion to the Diotimans (since I suspect that absent a biological or philosophical breakthrough, we will not see eye to eye). That said, Shonda Werry writes: "Doling out harsher punishments for attacks on pregnant women would still not deal with the real issue - if two murders are committed, shouldn't the charge be double murder?"
This, of course, doesn't deal with the real issue either. Are two murders committed? Is a fetus a human being? Is it entitled to all of the rights that implies?
Even I am getting tired of harping on abortion to the Diotimans (since I suspect that absent a biological or philosophical breakthrough, we will not see eye to eye). That said, Shonda Werry writes: "Doling out harsher punishments for attacks on pregnant women would still not deal with the real issue - if two murders are committed, shouldn't the charge be double murder?"
This, of course, doesn't deal with the real issue either. Are two murders committed? Is a fetus a human being? Is it entitled to all of the rights that implies?
Amy has chimed in on Bennett. She asserts that hypocrisy is not unethical.
Well, it certainly is not considered ethical. The best status hypocrisy can achieve is ethically/morally neutral. I would suggest that hypocrisy is a form of lying. It's the concept of saying one thing and doing another. There certainly was a reason Dante put the hypocrites deep in the thick of the Malebolge.
Bennett is saying that he, and everyone else for that matter, should follow traditional morals (he's against gambling, more specifically, through Empower America). However, he doesn't act in accordance with his words. Somehow, holding a public belief that one should act a certain way, while holding a private belief with contrary applications, seems dishonest and unethical.
Good words from the Private Intellectual below, as well.
Well, it certainly is not considered ethical. The best status hypocrisy can achieve is ethically/morally neutral. I would suggest that hypocrisy is a form of lying. It's the concept of saying one thing and doing another. There certainly was a reason Dante put the hypocrites deep in the thick of the Malebolge.
Bennett is saying that he, and everyone else for that matter, should follow traditional morals (he's against gambling, more specifically, through Empower America). However, he doesn't act in accordance with his words. Somehow, holding a public belief that one should act a certain way, while holding a private belief with contrary applications, seems dishonest and unethical.
Good words from the Private Intellectual below, as well.
Hypocrisy v. Shallowness.
In response to Amy's suggestion below, that attacks on Bennett's gambling are "spurious ad hominem reasoning," I don't have much of my own to reply. But the Private Intellectual has interesting thoughts:
In response to Amy's suggestion below, that attacks on Bennett's gambling are "spurious ad hominem reasoning," I don't have much of my own to reply. But the Private Intellectual has interesting thoughts:
People, like me, who have indulged in schadenfreude over this episode are not really harping on hypocrisy. We're harping, deep down, on the fact that Bennett is not a very good or noble person. He showed a contemptible zeal for imprisoning harmless people when he was the drug czar (full disclosure: I am not a pot smoker). We don't, by and large, object to his moral views per se. We object to their shallowness, their ostentatiousness, and their utterly mercenary quality. He has made "virtue" and its necessary concomitant, moral disapproval, into an industry. If he were as pure as the driven snow, he would still be a blight on public discourse.
Now, it turns out, he has all along been engaging in an activity that some people view as immoral and many others (including me) view as socially destructive. He must know that casinos are intimately linked with the drug trade and organized crime. His actions are egregiously immoderate. By any standard that he so unstintingly applies to others, both groups and individuals, he has been doing wrong. And he has invoked the power of social disapproval to influence behavior. We owe it to him either to disapprove, or to force him into retirement from the virtue racket.
X2
Despite all of the blogspace given to the new X-Men sequel, nobody seems to have pointed out something that I found significant—that X2 demonstrates one of the positive sides to Hollywood’s love of franchises. Knowing that they will have several movie in which to tell their story, action directors seem more willing to create and develop complex characters to drive their effects-laden plots. If the fourth Austin Powers movie is the price one has to pay for finding out in X3 if there’s any more of a common cause to be had between Magneto and Xaviar, this does not strike me as a particularly bad deal.
And on a completely unrelated note: attending the 12:01 premier of X2 was the only time I have ever seen longer lines for the men’s restrooms at a movie theater than for the women’s.
Despite all of the blogspace given to the new X-Men sequel, nobody seems to have pointed out something that I found significant—that X2 demonstrates one of the positive sides to Hollywood’s love of franchises. Knowing that they will have several movie in which to tell their story, action directors seem more willing to create and develop complex characters to drive their effects-laden plots. If the fourth Austin Powers movie is the price one has to pay for finding out in X3 if there’s any more of a common cause to be had between Magneto and Xaviar, this does not strike me as a particularly bad deal.
And on a completely unrelated note: attending the 12:01 premier of X2 was the only time I have ever seen longer lines for the men’s restrooms at a movie theater than for the women’s.
Decisions and Revisions:
So a couple months ago, I had an interview for a scholarship (which I did not win) which I thought went quite well at the time, especially given the rapid-fire hostile nature of the questioning. But as weeks go by, I keep thinking of better answers than the ones I gave, which must have seemed appalling naive. It's a wonder to me I was called back for a second interview.
Example: What do you think of the proposition that the First Amendment ought to trump the other ones?
Old answer: Well, to some extent, I think that it has to. It's difficult to make sense of the First Amendment if it has to give way to the war power, for example, or the commerce power...
New answer: On the one hand, there's some argument that the First Amendment ought to trump the parts of the constitution that aren't in the Bill of Rights. It makes little sense to limit congressional power unless the limit takes precedence over the power. On the other hand, there's little textual support for the Court's doctrinal decision to privilege First Amendment claims over Fourth Amendment claims, for example. The doctrine of "overbreadth" is the worst offender. Why does the court decide to overthrow statutes so much more often when they implicate speech, rather than the privacy of one's home (let alone one's right-- individual or collective-- to bear arms)?
(sigh). And don't even get me started on the ball I missed on the American Family and Medical Leave Act.
So a couple months ago, I had an interview for a scholarship (which I did not win) which I thought went quite well at the time, especially given the rapid-fire hostile nature of the questioning. But as weeks go by, I keep thinking of better answers than the ones I gave, which must have seemed appalling naive. It's a wonder to me I was called back for a second interview.
Example: What do you think of the proposition that the First Amendment ought to trump the other ones?
Old answer: Well, to some extent, I think that it has to. It's difficult to make sense of the First Amendment if it has to give way to the war power, for example, or the commerce power...
New answer: On the one hand, there's some argument that the First Amendment ought to trump the parts of the constitution that aren't in the Bill of Rights. It makes little sense to limit congressional power unless the limit takes precedence over the power. On the other hand, there's little textual support for the Court's doctrinal decision to privilege First Amendment claims over Fourth Amendment claims, for example. The doctrine of "overbreadth" is the worst offender. Why does the court decide to overthrow statutes so much more often when they implicate speech, rather than the privacy of one's home (let alone one's right-- individual or collective-- to bear arms)?
(sigh). And don't even get me started on the ball I missed on the American Family and Medical Leave Act.
Constitutional Sin:
Blogger/born-again Gore Vidal groupie Nick Tarasen cites Vidal's demand for the court to finally recognize our alleged constitutional right to sin. Quoting Vidal, Tarasen posts:
If the Supreme Court ever makes such a decision, I won't be deeply unhappy about it. The trouble is that Vidal isn't actually right. Regulation of morality probably isn't unconstitutional, at least not in the way the founders understood the thing when they wrote it, or in the way that any other court has understood it since. He suggests that this libertarian silver bullet is "implicit" in the constitution, but I can't really find any evidence of it. One can make the general enumerated-powers argument (that the list of powers granted to the Federal Government does not include "morality"), but that just replaces a tyrant in Washington for a tyrant at home.
Don't get me wrong. I think that sin, where it does not disturb the public order, is not the concern of the state. But most people disagree with me, including nearly all of the Supreme Court, present or past, and the framers of our Constitution; I have no delusions on this matter. The Constitution doesn't forbid every rotten thing the government can do to you. Maybe it should, but it doesn't.
Blogger/born-again Gore Vidal groupie Nick Tarasen cites Vidal's demand for the court to finally recognize our alleged constitutional right to sin. Quoting Vidal, Tarasen posts:
What is needed, specifically, is a test case before the Supreme Court which would establish in a single decision that "sin," where it does not disturb the public order, is not the concern of the state. This conception is implicit in our Constitution. But since it has never been tested, our laws continue to punish the sinful as though the state were still an arm of the Church Militant. Although a Great Society is more easily attained in rhetoric than in fact, a good first step might be the removal from our statue books of that entirely misplaced scarlet letter.
If the Supreme Court ever makes such a decision, I won't be deeply unhappy about it. The trouble is that Vidal isn't actually right. Regulation of morality probably isn't unconstitutional, at least not in the way the founders understood the thing when they wrote it, or in the way that any other court has understood it since. He suggests that this libertarian silver bullet is "implicit" in the constitution, but I can't really find any evidence of it. One can make the general enumerated-powers argument (that the list of powers granted to the Federal Government does not include "morality"), but that just replaces a tyrant in Washington for a tyrant at home.
Don't get me wrong. I think that sin, where it does not disturb the public order, is not the concern of the state. But most people disagree with me, including nearly all of the Supreme Court, present or past, and the framers of our Constitution; I have no delusions on this matter. The Constitution doesn't forbid every rotten thing the government can do to you. Maybe it should, but it doesn't.
Is Hypocrisy Unethical?
In general, I am against people who advocate having the government tell you how to live your life. Hence, I have never been much of a fan of Bill Bennett. However, I cannot say that the exposure of his gambling habit has made me any less of a fan than I was previously. Yes, his personal habits are rather ironic, and I certainly enjoyed reading Kinsey’s gleeful denunciation, but I do not see how this is anything more than spurious ad hominem reasoning. Who wrote something should not affect our judgment of what is written. Whether Bill Bennett’s books are written by a candidate for sainthood, a man with a predilection for slot machines, or a drug addict who supports his habit through a life of crime, the validity of the argument remains the same.
For a political figure, the calculus is somewhat different since voters elect a person, not a book, and it is at least not entirely unreasonable to believe that a person who shows poor judgment in one area of their life may show the same quality of judgment in other areas at other times. Nevertheless, I fail to see how hypocrisy alone, absent other violations such as lying, constitutes an ethical violation. If Bennett gambled illegally, or if Bennett claimed he did not gamble, these would be ethical violations. But the gist of Bennett’s arguments, as I understand them, is not that people should live like him, but that the government should make people live closer to the manner in which he thinks ideal people ought to live. Were one so inclined, one could even advance Bennett himself as the best argument for his case—absent government prohibitions, even upright, well-intentioned individuals such as himself can be led into rationalizing and embracing vice. Given political realities, Bennett’s gambling habit is unwise, but hardly unethical.
Update: The Private Intellectual has weighed in, and I remain unconvinced. Bennett's arguments are bad whether or not he himself is as virtuous as he wants us to be. However the proper response to Bennett's private vice is no more a public shaming than the proper response to someone who believes that property is theft is to remove their property from their possession. Bennett's fellow virtuecrats will probably administer such a shaming, but for anyone who believes in the desirability of a right to private sin to join them in doing so is gross inconsistency.
In general, I am against people who advocate having the government tell you how to live your life. Hence, I have never been much of a fan of Bill Bennett. However, I cannot say that the exposure of his gambling habit has made me any less of a fan than I was previously. Yes, his personal habits are rather ironic, and I certainly enjoyed reading Kinsey’s gleeful denunciation, but I do not see how this is anything more than spurious ad hominem reasoning. Who wrote something should not affect our judgment of what is written. Whether Bill Bennett’s books are written by a candidate for sainthood, a man with a predilection for slot machines, or a drug addict who supports his habit through a life of crime, the validity of the argument remains the same.
For a political figure, the calculus is somewhat different since voters elect a person, not a book, and it is at least not entirely unreasonable to believe that a person who shows poor judgment in one area of their life may show the same quality of judgment in other areas at other times. Nevertheless, I fail to see how hypocrisy alone, absent other violations such as lying, constitutes an ethical violation. If Bennett gambled illegally, or if Bennett claimed he did not gamble, these would be ethical violations. But the gist of Bennett’s arguments, as I understand them, is not that people should live like him, but that the government should make people live closer to the manner in which he thinks ideal people ought to live. Were one so inclined, one could even advance Bennett himself as the best argument for his case—absent government prohibitions, even upright, well-intentioned individuals such as himself can be led into rationalizing and embracing vice. Given political realities, Bennett’s gambling habit is unwise, but hardly unethical.
Update: The Private Intellectual has weighed in, and I remain unconvinced. Bennett's arguments are bad whether or not he himself is as virtuous as he wants us to be. However the proper response to Bennett's private vice is no more a public shaming than the proper response to someone who believes that property is theft is to remove their property from their possession. Bennett's fellow virtuecrats will probably administer such a shaming, but for anyone who believes in the desirability of a right to private sin to join them in doing so is gross inconsistency.
Attacking Straw Lions:
A Hoosier Review piece by Gloria Graham attempts to snipe at the court's ruling in Virginia v. Black. She knows that she wants to argue that the government should worry about actual violence, not cross burning, but can't find the First Amendment hook to get there. So rather than argue that the statute is an unconstitutional content- and viewpoint- based statute prohibited even as applied to unprotected speech by R.A.V. v. St. Paul, she brings in religion. Graham suggests that cross burning statutes unconstitutionally protect a religious symbol, that of Christianity.
The trouble is that there is no evidence, and little reason to believe, that the Klan is anti-Christian, or that anybody enacting a cross-burning statute does so because of the harm Christians feel by it. Indeed, cross-burnings are often used to target Jewish enemies of the Klan, not Christian ones. That the cross happens to be used by a couple billion people for spiritual purposes ought not preclude the state from making otherwise constitutional regulations concerning crosses, if its purpose and effect is secular.
Of course, the cross-burning statute shouldn't be constitutional on free speech grounds, even though it applies only to intimidating speech. (With limited exceptions for which this should not qualify) the government cannot pick and choose which types of intimidation are permitted and which forbidden. For whatever reason, Graham is unable or unwilling to say that.
A Hoosier Review piece by Gloria Graham attempts to snipe at the court's ruling in Virginia v. Black. She knows that she wants to argue that the government should worry about actual violence, not cross burning, but can't find the First Amendment hook to get there. So rather than argue that the statute is an unconstitutional content- and viewpoint- based statute prohibited even as applied to unprotected speech by R.A.V. v. St. Paul, she brings in religion. Graham suggests that cross burning statutes unconstitutionally protect a religious symbol, that of Christianity.
The trouble is that there is no evidence, and little reason to believe, that the Klan is anti-Christian, or that anybody enacting a cross-burning statute does so because of the harm Christians feel by it. Indeed, cross-burnings are often used to target Jewish enemies of the Klan, not Christian ones. That the cross happens to be used by a couple billion people for spiritual purposes ought not preclude the state from making otherwise constitutional regulations concerning crosses, if its purpose and effect is secular.
Of course, the cross-burning statute shouldn't be constitutional on free speech grounds, even though it applies only to intimidating speech. (With limited exceptions for which this should not qualify) the government cannot pick and choose which types of intimidation are permitted and which forbidden. For whatever reason, Graham is unable or unwilling to say that.
Eugene Volokh thinks William Bennett is probably more sinned against than sinning, and my co-blogger Matt Reading disagrees. Volokh (rightly) makes the point that Bennett doesn't condemn gambling, and that his distinction between the two is one that a lot of people believe in. All the same, I agree with Matt that it's tough to work up much of a moral lather when a few people decide to expose a moralizer as "immoral" in the eyes of many.
But while the casinos' decision may not have been unethical, I do think it was undesirable. Casinos make a whole lot of their money off of people who don't want to be glaringly public about their gambling habits. Indeed, the bigger the loser (and some sources say Bennett is a big loser) the more likely he is to crave to keep the price of his gambling quiet. So casinos risk quite a bit when they expose the habits of those who use them. Then again, Bennett probably used enough casinos that it will be difficult to figure out which casinos betrayed him.
Anyway, I think it's dangerous for those in the vice business to start fighting back against people ashamed of their vices.
Geekwatch:
Matt Yglesias has attracted a huge storm of commenters (including several intelligent posts from Jacob Levy) on realism in movies, specifically X2. Those interested in these things should skim through the comments; I really don't have much to add except that I thought a movie that did a particularly good job of thinking out the consequences of its characters' abilities was Blade 2.
Matt Yglesias has attracted a huge storm of commenters (including several intelligent posts from Jacob Levy) on realism in movies, specifically X2. Those interested in these things should skim through the comments; I really don't have much to add except that I thought a movie that did a particularly good job of thinking out the consequences of its characters' abilities was Blade 2.
Monday, May 05, 2003
Into the Fray:
Well, like Sara and Amanda, I'm done with my law exam, so now let's see if I have anything to say . . .
Well, like Sara and Amanda, I'm done with my law exam, so now let's see if I have anything to say . . .
Kathleen has a nice bit of copyright infringement herself (see 5.5.03), but notes I haven't done any for a while.
A few weeks ago, someone emailed me an English translation of a poem by Paul Celan. Somewhere around here I had at one time a volume of his in facing pages of German and English. Unfortunately, all I can really remember is buying it at the Sem Co-op. That was when I thought I'd keep up my reading so I wouldn't lose what little I had of the language. yeah. Anyway, demonstrating a very seductive use of repetition, here is Todesfuge, or Death Fugue.
Black milk of daybreak we drink it at sundown
we drink it at noon in the morning we drink it at night
we drink and we drink it
we dig a grave in the breezes there one lies unconfined
A man lives in the house he plays with the serpents he writes
he writes when dusk falls to Germany your golden hair
Margarete
he writes it and steps out of doors and the stars are flashing he
whistles his pack out
he whistles his Jews out in earth has them dig for a grave
he commands us strike up for the dance
Black milk of daybreak we drink you at night
we drink in the morning at noon we drink you at sundown
we drink and we drink you
A man lives in the house he plays with the serpents he writes
he writes when dusk falls to Germany your golden hair
Margarete
your ashen hair Shulamith we dig a grave in the breezes there
one lies unconfined
He calls out jab deeper into the earth you lot you others sing now
and play
he grabs at the iron in his belt he waves it his eyes are blue
jab deeper you lot with your spades you others play on for the
dance
Black milk of daybreak we drink you at night
we drink you at noon in the morning we drink you at sundown
we drink and we drink you
a man lives in the house your golden hair Margarete
your ashen hair Shulamith he plays with the serpents
He calls out more sweetly play death death is a master from
Germany
he calls out more darkly now stroke your strings then as smoke
you will rise into air
then a grave you will have in the clouds there one lies unconfined
Black milk of daybreak we drink you at night
we drink you at noon death is a master from Germany
we drink you at sundown and in the morning we drink and we
drink you
death is a master from Germany his eyes are blue
he strikes you with leaden bullets his aim is true
a man lives in the house your golden hair Margarete
he sets his pack on to us he grants us a grave in the air
he plays with the serpents and daydreams death is a master from
Germany
your golden hair Margarete
your ashen hair Shulamith
A few weeks ago, someone emailed me an English translation of a poem by Paul Celan. Somewhere around here I had at one time a volume of his in facing pages of German and English. Unfortunately, all I can really remember is buying it at the Sem Co-op. That was when I thought I'd keep up my reading so I wouldn't lose what little I had of the language. yeah. Anyway, demonstrating a very seductive use of repetition, here is Todesfuge, or Death Fugue.
Black milk of daybreak we drink it at sundown
we drink it at noon in the morning we drink it at night
we drink and we drink it
we dig a grave in the breezes there one lies unconfined
A man lives in the house he plays with the serpents he writes
he writes when dusk falls to Germany your golden hair
Margarete
he writes it and steps out of doors and the stars are flashing he
whistles his pack out
he whistles his Jews out in earth has them dig for a grave
he commands us strike up for the dance
Black milk of daybreak we drink you at night
we drink in the morning at noon we drink you at sundown
we drink and we drink you
A man lives in the house he plays with the serpents he writes
he writes when dusk falls to Germany your golden hair
Margarete
your ashen hair Shulamith we dig a grave in the breezes there
one lies unconfined
He calls out jab deeper into the earth you lot you others sing now
and play
he grabs at the iron in his belt he waves it his eyes are blue
jab deeper you lot with your spades you others play on for the
dance
Black milk of daybreak we drink you at night
we drink you at noon in the morning we drink you at sundown
we drink and we drink you
a man lives in the house your golden hair Margarete
your ashen hair Shulamith he plays with the serpents
He calls out more sweetly play death death is a master from
Germany
he calls out more darkly now stroke your strings then as smoke
you will rise into air
then a grave you will have in the clouds there one lies unconfined
Black milk of daybreak we drink you at night
we drink you at noon death is a master from Germany
we drink you at sundown and in the morning we drink and we
drink you
death is a master from Germany his eyes are blue
he strikes you with leaden bullets his aim is true
a man lives in the house your golden hair Margarete
he sets his pack on to us he grants us a grave in the air
he plays with the serpents and daydreams death is a master from
Germany
your golden hair Margarete
your ashen hair Shulamith
Eugene Volokh has an interesting post on the Bill Bennett scandal. He asks which is worse: Bennett's gambling or the divulgence of private information by casino employees? For Volokh, the direct harm caused to Bennett by the violation of his privacy is more unethical than Bennett's actions, provided that he had not lied to the public or his family.
I am somewhat unconvinced by this. Indeed, sometimes private details must be exposed for a higher reason. Pres. Clinton rightfully vetoed a bill that would have criminalized the disclosure of classified information by government officials. I think we would al
I am somewhat unconvinced by this. Indeed, sometimes private details must be exposed for a higher reason. Pres. Clinton rightfully vetoed a bill that would have criminalized the disclosure of classified information by government officials. I think we would al