Friday, June 30, 2006

The Precautionary Principle: Terrorism, Global Warming, and Health Care

(From the Centers for Disease Control, pdf.)

Over at DovBear, et al., my esteemed JAJC colleague Nephtuli refers to what's known as the Precautionary Principle, which is based on a statement by Dick Cheney:

We have to deal with this new type of threat in a way we haven’t yet defined... With a low-probability, high-impact event like this... If there’s a one percent chance that Pakistani scientists are helping al Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response.

Nephtuli goes on to argue that because the potential harm of nuclear terrorism is so great, we must take it much more seriously than a more probable but less damaging event.

This of course makes perfect sense. What's curious here is not the form of Cheney's argument, but its application. Or, more specifically, what's curious is not that he applies it to nuclear terrorism, which I think is appropriate, but that he does not apply it to other situations.

In the comments, Conservative Apikorus points out this discrepancy:

I find it amusing that the right-wingers are now advocating the Precautionary Principle when it can be used to justify their "war on terror," but they totally oppose the principle when it is used to justify strict environmental and safety regulations.

What a great point! What could the Precautionary Principle be more relevant to than the environmental debate? Even the most die-hard skeptic must admit that there's at least a 1% chance of at least a million deaths sometime in the next century if we don't curb global warming! By Cheney's logic, we must treat devastating global warming as a certainty! Why isn't Cheney campaigning for drastic environmental measures?

Similarly, if one looks at the causes of death for Americans, (see above table) some interesting things pop out:

More than 4% of people die from "accidents" each year. Therefore, every single decade, a million Americans die in accidents. Why isn't Cheney doing public service announcements and campaigning for safer cars and highways? Why isn't he fighting for greater OSHA regulations?

And what about heart and respiratory diseases? How many of those are preventable?

During 1995-1999, smoking caused approximately 440,000 premature deaths in the United States annually, leading to 13.2 years of potential life lost for male smokers, and 14.5 years lost for female smokers. (

Cheney believes that currently illegal drugs should remain illegal. Why isn't he campaigning against tobacco?

And let's not forget about health care! According to Americans for Healthcare, there were 45,000,000 uninsured Americans in 2003, including 8,000,000 children.

How many lives could be saved with universal health care? It's got to be more than a million in the next few decades -- probably much more.

So, Mr. Vice-President, I agree with your logic. Now why don't you please apply it to problems other than terrorism?

I'll leave you with one final thought. We've spent a couple hundred billion dollars in the War in Iraq. Was that the single most efficient way we could have spent that money to prevent preventable American deaths?

Tuesday, June 27, 2006

How Important is International Law?

To some people very. But as David Bernstein points out, international law has taken a place on a pedestal far higher than anyone should want it to be.

The question is whether international law should be considered in policy making. I would argue that in the US, treaties should have little bearing on our policies. The Constitution states in Article VI that all

treaties made... under the authority of the United States, shall be the supreme law of the land.

This clause has been read to give statutory weight to treaties, and apply the last in time rule. In other words, if a treaty is signed, it becomes law. But once the treaty is superseded by a statute, it is no longer operative. So some treaties are not applicable anymore.

Moreover for a treaty to be justiciable in the courts, it must be executed. Some treaties are self-executing, which means once they signed by the President and ratified by the Senate, they become law like anything else. Most however are not self-executing and were never executed. So in reality very few treaties can be used in the courts.

On top of that, much of international law isn't even treaty-oriented. International law has four recognized sources, as per Article 38 of the Statute of the International Court of Justice: treaties, customs, norms, and the opinions of learned scholars. Custom and norms are not sources to which the country has consented and the opinions of scholars cannot be law in any meaningful sense of the word. So I fail to see why the actions and statements of other countries (the sources for custom) should be relevant at all in what we do.

Norms, even Jus Cogens, are not subject to consent and are therefore no more relevant than custom. Why would we take them into consideration?

When it comes to a country like Israel, the utility of international law is even less clear. International law is notoriously left-leaning, since it is made for the most part by scholars and not politicians. Rarely is Israel charged with violating a treaty (which the exception of the Geneva Conventions) and it is usually blamed for not abiding by customs it refuses to take upon itself. Moreover, in some case Israel is even blamed for not following treaties it refused to sign!

International law has too much of a naturalist flavor (in contradistinction to positivism which requires consent for a law to be binding), and since what constitutes natural law for this purpose is decided by academics with no real world experience and no accountability, international law has little utility indeed.

Sunday, June 25, 2006

Originalism Explained

In a book review in the most recent edition of the Yale Law Journal, Michael Stokes Paulsen explains and defends originalism. In short originalism is

The enterprise of constitutional interpretation—of discerning the document’s meaning—consists of giving to the Constitution’s words and phrases the meaning they would have had, in context, to informed readers of the language at the time of their adoption as law, within the relevant political community.
Paulsen recognizes that sometimes the original meaning will be indeterminate, in that there will be a dispute over what best understanding of the clause was at the time it was written. What do we do then?

[I]f the meaning of the Constitution’s language fails to provide such a rule or standard—if it is actually indeterminate (or under-determinate) as to the specific question at hand—then a court has no basis for displacing the rule supplied by some other relevant source of law applicable to the case (typically, a rule supplied by political decisions made by an imperfect representative democracy).
In other words, it the Constitution is unclear, the statute stands. Paulsen is clearly combining his originalism (that is a search for original meaning) with a conservative bend that defers to the popular branches of government. The problem with that view is that almost all interpretations are subject to dispute (many of them good faith). There is rarely universal agreement about interpretation, and while the original meaning might be attainable in an epistemic sense, practically there will always be disputes. So Paulsen's methodology, if taken to its extreme, would render judicial review null in most cases.

Paulsen also adheres to a "weaker" form of stare decisis that calls for overturning cases that contradict the original understanding, no matter how established those cases. In that regard he agrees with Randy Barnett, but disagrees with Antonin Scalia and Robert Bork, who both have judicial experience and hold a slightly more pragmatic view of originalism.

Despite these problems, Paulsen's article is very strong. It lays out and defends the most common form of originalism and distinguishes it from the straw man version liberals propound. He also does a solid (although a slightly overreaching) job of showing how originalism will not lead to a parade of horribles by radically changing the constitutional landscape.

After reading this review, I have to get my hands on Akhil Reed Amar's America's Constitution : A Biography.

Texas Republicans don't seem to be originalists -- or conservatives

The Texas Republican platform, cited in the previous post, contains a number of items that are surprising to those of us who assumed that conservatives tend to take narrow positions regarding interpretation of the US Constitution. So it was to my great surprise that I see the following:

“We believe that parental rights and responsibilities are inherent and protected by the United States Constitution.”

They don’t, however, indicate exactly where they find this. Perhaps the attorneys who comment here can enlighten us – and as to how this can be consistent with an originalist interpretation of the Constitution. If it is found in one of the first ten amendments, such protection would be meaningless if the Texas Republicans have their way, as in another section of the platform they say:

" Congress should be urged to exercise its authority under Article III, Sections 1 and 2 of the United States Constitution, and should withhold appellate jurisdiction of the Supreme Court in such cases involving abortion, religious freedom, and all rights guaranteed under the Bill of Rights."

I think the last effective stripping of authority from the Supreme Court was during the post-Civil War reconstruction period. Stripping the authority of the Court in constitutional cases could create chaos as each local court would differ. And it ignores 200 years of precedent which is that the Court is the final arbiter at least for Constitutional cases. This is anything but a conservative approach. Ironically, with the new conservative majority on the Court, stripping it of jurisdiction would mean that precedents dating back to the Warren court would remain binding, forever.

Saturday, June 24, 2006

Texas Republican ignorance

Dovbear, in a recent post

complained that the Texas Republican Party, in their current platform

called the United States a “Christian nation”. While I do object to that, there is a lot more in that document that indicates their ignorance and misdirection. It will keep us liberal bloggers busy for months! So today I start with one of the relatively minor examples of ignorance:

On page 21, the Texas Republicans support “requiring naturalized citizens to renounce their native citizenship and surrender their foreign passport;”

Well, there are several problems with this. First of all, the naturalization oath currently required of all new citizens already requires that:

The oath says in part, “I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen.”

I guess the Texas Republicans either don’t use the Internet or didn’t have one minute for a Google search to find the current citizenship requirements.

A second problem is that the foreign passports are not the property of the would-be citizen; they are the property of that person’s country of origin. (Read your own passport if you don’t believe me.) Other countries will not likely be amused at the seizure of their property without their permission.

A third problem, which is probably what the Republicans are upset about, is that a lot of folks who become US Citizens retain citizenship in their country of origin despite taking the oath. How can this happen? The answer is that there are a lot of countries don’t allow their citizens to renounce their citizenship and consider the US citizenship oath to be irrelevant. For many, they consider it a way to dodge taxes or military service. I have actually met people who can not return to their countries of origin because they will be arrested as draft dodgers. Other countries, such as Canada, simply adopted a rule that once a citizen, always a citizen. Sort of like Judaism. Once a member of the Jewish people, by birth or conversion, you can’t get out of it! You are always a member of the tribe. And of course most US Citizens who make aliyah to Israel keep their US Citizenship and passports. I guess the Texas Republicans wouldn’t like that, either.

Tuesday, June 20, 2006

New Term Needed

I propose that we do away with the phrase "activist judge". It's a loaded term that those on the left are trying to co-op. The NY Times often tries to claim that conservative judges are the most "activist", once noting that Justice Thomas has voted to overturn more laws than anyone else on the Court. In an editorial today, the Time wailed about Rapanos/Carabell and the fact that the Conservative wing was substituting its judgment for the elected branches.

Sorry, but that's not how I define activism, and I highly doubt the Times really wants the Court to play a completely passive role. Say for example, the government passes a law that says blacks and Jews can't vote. When the Supreme Court strikes that down, would the Times classify the judges as "activists"? Of course not.

What activism means is when a judge decides to interject his personal views on a subject and then tries to conform the law or the Constitution around it. An activist judge is someone who tries set policy. Here's the test: If a judge thinks a law violates a penumbra or an emanation of the Constitution, that's a pretty good indicator that he's stepping into a policy argument.

So I'm looking for a new word or phrase to replace "activist judges", one that clearly indicates that the judge in question is substituting his personal opinion for the law.

Dishonesty, Incompetence, and Torture: A Profile of the Bush Administration

The Washington Post has a good review of Ron Suskind's new book The One Percent Doctrine.

Excerpts from the review:

The book's opening anecdote tells of an unnamed CIA briefer who flew to Bush's Texas ranch during the scary summer of 2001, amid a flurry of reports of a pending al-Qaeda attack, to call the president's attention personally to the now-famous Aug. 6, 2001, memo titled "Bin Ladin Determined to Strike in US." Bush reportedly heard the briefer out and replied: "All right. You've covered your ass, now." Three months later, with bin Laden holed up in the Afghan mountain redoubt of Tora Bora, the CIA official managing the Afghanistan campaign, Henry A. Crumpton (now the State Department's counterterrorism chief), brought a detailed map to Bush and Cheney. White House accounts have long insisted that Bush had every reason to believe that Pakistan's army and pro-U.S. Afghan militias had bin Laden cornered and that there was no reason to commit large numbers of U.S. troops to get him. But Crumpton's message in the Oval Office, as told through Suskind, was blunt: The surrogate forces were "definitely not" up to the job, and "we're going to lose our prey if we're not careful."

One example out of many comes in Ron Suskind's gripping narrative of what the White House has celebrated as one of the war's major victories: the capture of Abu Zubaydah in Pakistan in March 2002. Described as al-Qaeda's chief of operations even after U.S. and Pakistani forces kicked down his door in Faisalabad, the Saudi-born jihadist was the first al-Qaeda detainee to be shipped to a secret prison abroad. Suskind shatters the official story line here.

Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries "in the voice of three people: Hani 1, Hani 2, and Hani 3" -- a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail "what people ate, or wore, or trifling things they said." Dan Coleman, then the FBI's top al-Qaeda analyst, told a senior bureau official, "This guy is insane, certifiable, split personality."

Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics -- travel for wives and children and the like. That judgment was "echoed at the top of CIA and was, of course, briefed to the President and Vice President," Suskind writes. And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States." And over the months to come, under White House and Justice Department direction, the CIA would make him its first test subject for harsh interrogation techniques.

How could this have happened? Why are we learning about it only now? Those questions form the spine of Suskind's impressively reported book.


Which brings us back to the unbalanced Abu Zubaydah. "I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You're not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?" Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety -- against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, "thousands of uniformed men and women raced in a panic to each . . . target." And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."

(via Metafilter.)

Friday, June 16, 2006

Prolonged Detention of Illegal Aliens Upheld

Eric Muller has a post critiquing the District Court's decision in Turkmen v. Ashcroft. Judge Gleeson ruled that the government can selectively enforce immigration rules on the basis of national origin and ethnicity, and incarcerate Arabs who could be used for intelligence gathering. The decision is based on the distinction in Equal Protection jurisprudence between citizens and aliens, with the latter not being afforded the same protections under the Constitution. Muller criticizes the Court's distinction based on the historical precedent of the "issei" who were people of Japanese descent that were interned during WWII. The government apologized for this behavior in the The Civil Liberties Act of 1988. Nevertheless Gleeson ignored the issei precedent, and drew an artificial distinction between aliens and citizens.

I believe Muller's criticism is misplaced, partly because no case decided that the internment was unconstitutional and the judge's job is to base his decision on precedent, not political statements by the executive or legislative branches.

I'm not well-versed in the historical understanding of the Equal Protection Clause vis-a-vis aliens. I would assume the original understanding of the clause did not protect noncitizens to the same extent, and Supreme Court precedent has refused to apply the Constitution across the board to aliens. So the court's decision here would seem correct, despite the issei precedent.

Moreover the cases could be distinguished on practical grounds. A Pragmatic judge like Posner might view the threat posed by Islamist terrorists and determine that even if it isn't as great as the Japanese threat in WWII, the chances of an illegal alien committing an act of terrorism in 2006 is greater than a Japanese noncitizen helping Japan in WWII. Moreover, each terrorist would cause much more harm than a single saboteur in WWII. Those distinctions (the greater chance an individual might commit an act of terror and the greater harm caused by each individual) might justify applying the alien/citizen distinction. That is especially true in this case where the harm is merely selective application (a failure of procedural justice) instead of a substantive harm. The harm is less severe and benefits possibly greater.

Wednesday, June 14, 2006

Bush Halves Deficit - Three Years Early

Heh. (via Instapundit)

The Investor's Business Daily reported yesterday that
Aided by surging tax receipts, President Bush may make good on his pledge to cut the deficit in half in 2006 — three years early.

Tax revenues are running $176 billion, or 12.9%, over last year, the Treasury Department said Monday. The Congressional Budget Office said receipts have risen faster over the first eight months of fiscal '06 than in any other such period over the past 25 years — except for last year's 15.5% jump.

The 2006 deficit through May was $227 billion, down from $273 billion at this time last year. Spending is up $130 billion, or 7.9%.
There is much to write about in this piece, but rather than quote the whole article I recommend reading it yourself.

What's interesting to note is that this deficit cut is despite a huge spending increase: If the President would actually work harder on cutting out the pork and wasteful spending that is so prevalent the past few years, perhaps the deficit would be even closer to disappearing, though the article says that only amounts to about $10 billion/year.

The article also notes that this does not help solve the long-term problems that Social Security and other programs will bring. I think it's about time the government acted to fix it: It's a shame that Democrats obstructed it when it was brought up a few years ago, and it's a shame that Bush let them. The time has come to fix Social Security.

Who's More Activist?

In a recent law review article, Max Huffman reviews Stephen Breyer's Active Liberty and compares it with Antonin Scalia's A Matter of Interpretation. Although Huffman claims the gulf between the two ideologies is not as great as it seems, I believe the ideologies are systematically different in that the former's focuses on the real world outcome of his decision and the latter looks only to the text and history.

Scalia is a well-known Textualist-Originalist, which means he looks for the most reasonable interpretation of the text, and when that is not available, he searches for how reasonable people interpreted the text when it was written and ratified. The practical effects of the decision are mainly irrelevant.

Breyer is more of a pragmatist, or as Huffman puts it, he looks

to ensure that the consequences of the interpretation accord with the purposes of the text.
He focuses on both the text and other real-world considerations, such as how the purpose of the text would interplay with the consequences of his decision. If the purpose of the text is negated by effects of a decision, the pragmatist would render a different decision.

Interestingly, Huffman argues that Scalia is the greater "judicial activist." Defining activist -- or actually using Harriet Mier's definition -- as someone who intends that the judiciary oversee and infringe on the responsibilities of the other coequal branches, he states:

The undisguised import of Justice Scalia’s discussion of legislative history is that by ignoring it, the Court hopefully will cause Congress to stop creating it and instead legislate in some more appropriate fashion. If any judicial endeavor is susceptible to being labeled “problem solution” or “oversight,” it is that one. Justice Breyer’s stated goal of determining the purposes of the text being interpreted and considering whether the consequences of a particular interpretation, meet those purposes, must be thought the less activist approach.
I would define activism differently. A judge whose ideology makes it likely that his decisions will overstep the bounds of the court is an activist. Now obviously that definition begs the question of what decision is out of bounds. But I think we could all agree that some decisions are unreasonable and out of bounds. Those decisions are generally cases where the judge decided to act as a legislator. Textualist-Originalist decisions are less likely to be unreasonable because Textualism-Originalism provides a guidepost to review judges and therefore makes it less probable that they would decide cases as legislators. Originalism's greatest quality is objectivity, which mitigates activism.

Huffman's article is worth a read, especially if you have read either Scalia's or Breyer's book.

Friday, June 09, 2006

More on the Estate Tax

In the comments of my previous post about the estate tax, there was some skepticism about my claim that repealing the estate tax would benefit only the super-rich. One anonymous commenter in particular seemed to believe that a relatively typical college graduate would have enough to be taxed under current law.

This is not the case.

Here (.pdf) is a report by the Congressional Budget Office. Money quote:

In recent years, fewer than 2 percent of all estates have had to pay estate taxes.

Harold Meyerson refers to that study:

A decades-long campaign by right-wing activists (brilliantly documented by Yale professors Michael Graetz and Ian Shapiro in their book "Death by a Thousand Cuts") has convinced many Americans that the estate tax poses a threat to countless hardworking families. That was always nonsense, and under the estate tax revisions that almost all Democrats support -- raising the threshold for eligibility to $3.5 million for an individual and $7 million for a couple -- it becomes more nonsensical still. Under the $3.5 million exemption, the number of family-owned small businesses required to pay any taxes in the year 2000 would have been just 94, according to a study by the Congressional Budget Office. The number of family farms that would have had to sell any assets to pay that tax would have been 13.

According to an article about the defeat (yay!) of the bill yesterday, the Post reports:

According to the staff of the congressional Joint Committee on Taxation, repealing the estate tax would cost the government $71.6 billion a year by 2015. The Treasury Department estimated the revenue loss at $65.8 billion that year.

Our government is already deeply, deeply in the red. So why were the Republicans trying to repeal the estate tax to begin with? Who are the 2% of people who benefit?

On the other hand, an estate tax repeal would save the estate of Vice President Cheney between $13 million and $61 million, according to the publicly available data on his net worth. It would save the estate of Defense Secretary Donald Rumsfeld between $32 million and $101 million. The estate of retired Exxon Mobil chairman Lee Raymond would pocket a cozy $164 million.

Those are the kind of people your Republican representatives fight for.

Sometimes The Experts Are Just Way Off

Dr. Maya Steinitz, on the new blog International Law, Legal Theory and More, deals with the question of the International Criminal Court's relevance to the Israeli-Palestinian conflict. She argues that in some (remote) situations, she could envision the Court being relevant. On those points I don't disagree. It's interesting how she starts off her post.

Like the US, Israel has signed, but has not ratified, the Rome Treaty establishing the permanent International Criminal Court (ICC). The main reason is that, following the Geneva Conventions of 1945 the Rome Statue which governs the ICC criminalized the Jewish settlements in the Occupied Palestinian Territories.

Ok first of all the Geneva Conventions were promulgated in 1949, not 1945 (they were a response to Nazi barbarity in WWII, so it made sense that they were authored after the war). But that's a minor quibble.

She argues that the Rome Statute "follows" the criminalization of the settlements in the Geneva Convention. She's referring to Article 49(6) of the 4th Geneva Convention which states:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

Israel has argued for decades that this clause does not prohibit voluntary settlement by individuals in the territory. And in fact the argument has some credence because the Rome Treaty contains a modified wording:

The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (Article 8(b)(vii))

Notice the difference. The addition of the term "indirectly" was purposely placed there by the Egyptians to cover the Israeli settlements, since Israel argues that it is not transferring its population directly, but at worst is indirectly motivating settlement by providing benefits. The added word negates Israel's argument.

Naturally I oppose the inclusion of the clause in the Statute because settlement, in its worst manifestation, is not comparable to the other crimes listed in the section. But people should not confuse the Geneva Convention, which sought to prohibit the Nazi transfers, with the Rome Statute, which is a political attack on Israel.

Some Liberals Don't Get It

Dahlia Lithwick's recent piece in Slate on the "unremitting scorn and abuse" poured on Justice Kennedy misunderstands why Conservatives attack him. Well, I shouldn't use the word attack, so I'll call it strong disagreement.

She cites two cases that were the basis for criticisms of Kennedy: Roper v. Simmons and Lawrence v. Texas. An Alabama Supreme Court judge ran on a platform calling for the Alabama Court to ignore the "activist" Roper decision that was based on foreign law. Now, I strongly disagree with state courts ignoring precedent (just like I disagree with the Ninth Circuit's refusal to construe precedent reasonably, which is why it is overturned all the time). And Roper was not based entirely on foreign law.

But criticism of Roper is apt if one believes the Constitution should be interpreted according to its original understanding. Kennedy presumed that the meaning of the Cruel and Unusual Punishments Clause evolves with time, and deigned himself worthy to determine what the clause means today. Now, if you ask me, that's not a crazy position, but it is one worthy of criticism. And the decision was weaker because of its reliance of foreign law (although foreign law was a secondary basis).

The Wall Street Journal attacked Kennedy's decision in Lawrence as the reason why some people support the FMA. Lawrence opened the door to SSM by "finding" a broad right to privacy in the Constitution. That argument is not unreasonable and Justice Scalia himself made it in dissent. Since the right of privacy is not found in the Constitution, and that right as construed in Griswold does not protect same-sex sodomy, Kennedy's opinion was weak (and overly expansive), and something that could easily be used as a basis for requiring same-sex marriage (as was done in Goodridge).

Is it so ridiculous for conservatives to find disappointment with a man who was nominated in place of the "borked" Robert Bork? Conservatives went from someone who was a sure thing, to a judge who has supported a right to abortion and same-sex sodomy. It's not hard to understand why they might criticize Kennedy, especially since his opinions sometimes warrant as much. Conservatives don't attack Justice Ginsburg because we never expected her to do better.

Tuesday, June 06, 2006

Diversity and Racism: Two Sides of the Same Coin

Today most schools justify giving an extra boost to minorities under the guise of having a diverse student body. Federal courts have concurred with this reasoning. The Supreme Court in Gratz found that diversity is a compelling state interest and if the preference scheme is narrowly tailored, granting benefits solely on the basis of race or ethnicity is not a violation of the Equal Protection Clause.

I just finished reading Richard Posner's The Economics of Justice. The book deals with a number of issues, and the last fifty pages focus on discrimination and affirmative action, which he properly terms "reverse discrimination." Posner is not completely against affirmative action, but argues strongly against the diversity rationale.

His primary premise is that discrimination today is mainly the result of high information costs, which causes rational actors to use proxies as a basis for judgments. Put into English, his argument is that people are racist because it involves too much energy to determine if someone has the favorable or unfavorable trait that one is looking for. For example, let's say someone doesn't like loud people. I don't think anyone would call him a bigot for not wanting to be around loud people. Now, let's say he assumes Black people are loud because he's seen a few loud Blacks in the past. That would be stereotyping and wrong.

Now the diversity argument works the same way. Schools aren't arguing they want a certain percentage of Blacks because of their skin color; that would make as much sense as giving preference to people with buck teeth. What they are assuming is that Blacks have special qualities or experiences, and those attributes would contribute to the educational experience of the student body. They also use race as a proxy, because it involves too much time and energy to find out if each Black individual fits the mold.

Let's use an example. School A wants to weed out lazy people. That's a perfectly legitimate interest, both constitutionally and morally. Based on previous experience they've determined (incorrectly) that Blacks are more prone to laziness and decide to limit the number of Blacks allowed admission into the school. School B wants a diverse student body, with some having been the victims of discrimination. Based on history they decide to grant preferences to Blacks.

What's the difference? In both cases the underlying trait they wish to focus on is perfectly acceptable. In both cases the school stereotypes for administrative reasons (to save time, money, etc.). So why is one form of discrimination acceptable (even laudable) and the other evil?

One difference might be that many Blacks were the victims of discrimination and the stereotype is therefore more legitimate. If 75% of Blacks were discriminated against while only 5% of Blacks are lazy, one stereotype would seem to be legitimate while the other irrational. But are we really going to hang the justness of an action on these numbers? If one could prove beyond a shadow of a doubt that 51% of Blacks are lazy, no one would have a problem with discriminating against the other 49%? I doubt that. So the distinction must be more than just numbers.

So I don't understand how, using the diversity rationale, affirmative action is justifiable, or at least morally superior to discrimination that stems not from bigotry, but from convenience.

Monday, June 05, 2006

Reward for the Hereditary Elite . . .

Great op-ed in the WaPo, by Sebastian Mallaby.

For most of the past century, the case for the estate tax was regarded as self-evident. People understood that government has to be paid for, and that it makes sense to raise part of the money from a tax on "fortunes swollen beyond all healthy limits," as Theodore Roosevelt put it. The United States is supposed to be a country that values individuals for their inherent worth, not for their inherited worth. The estate tax, like a cigarette tax or a carbon tax, is a tool for reducing a socially damaging phenomenon -- the emergence of a hereditary upper class -- as well as a way of raising money.


If the abolitionists succeed, some other tax will eventually be raised to make up for the lost revenue. So which tax does Congress favor? The income tax, which discourages work? A consumption tax, which hits the poor hardest? The payroll tax, which is both anti-work and anti-poor? Really, which other tax out there is better?

The abolitionists don't respond to this question because there is no convincing answer. Paul Volcker, the former Federal Reserve chairman, has written that "we would be hard-pressed to find evidence that, compared with the alternatives, a reasonable estate tax significantly discourages work or innovation or savings." In other words, killing the estate tax and raising some other tax instead would damage the economy. And that's before you take into account the positive distortions introduced by the estate tax, such as more social mobility and higher charitable giving. Charitable bequests will fall by at least a fifth if the estate tax is repealed permanently.


People often remark on the perversity of popular support for estate-tax repeal. A majority wants to abolish the tax, even though only the richest 2 percent of households have ever had to pay it. Yet this shoot-your-own-foot weirdness is easily explained: Most people just don't know that, under the law's current provisions, a couple can bequeath $4 million without paying a penny to the government.

So with ballooning deficits, millions of American men, women and children without health care, a War on Terror that's likely to continue throughout our lifetimes, and rising oil prices, what's the Republicans' answer?

That's right -- they boldly stand up for those who want to bequeath more than four million dollars to their children without being taxed on it.

Saturday, June 03, 2006

Flag Burning: A Hot Issue

Note: The following is a guest post from fellow J-Blogger and ex-frum guy SL Aronovitz of Mishlei Shlomo.

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Once again, right-wing members of our Congress are attempting to push through a constitutional amendment prohibiting the burning and/or desecration of the American flag. Here are a few of my thoughts in the issue.
For starters, Republicans might have a much easier time selling their amendment proposal if they would add a restriction requiring the production of all American flags be performed exclusively by American citizens, within America’s borders, and made of American grown or manufactured materials. If one is going to make such a big deal over a dyed strip of cloth, it makes sense to require that symbol to be made, sold, and handled by those who live by its values and under its jurisdiction. It cheapens the symbolism of the flag to have it mass produced of cheap materials with the profits going to foreign nationals who do not share our core values.

If anyone wishes to whine about desecration of a national symbol, maybe we should be taking a serious look at the commercialization of the flag. Drive by any auto dealership or sports outfitter and you will see rows of large American flags flying out front, suggesting to passersby that this particular retailer is somehow so unbelievably uber-American that he deserves your business more than other establishments because buying from him is nothing less than patriotic heroism. It should likewise become illegal to make underwear, socks, a tea cozy, bathing suit, or any other item depicting the ‘stars and bars’ in a mundane manner. If we are to attribute some holiness to the American flag, then it seems we should not treat it lightly or cheapen it by overuse and misuse as well.

Allegiance to symbolisms without genuine commitment to ideals is just a meaningless gesture. Why are we proposing to treat the banner representing our values with greater reverence than for those who live under or by the sentiment which it evokes? Three nations considered most hostile (at least as they are portrayed as hostile) to American values are China, Cuba, and Iran. All three of these nations ban the burning of their national symbol. As Americans we view these nations as human rights violators of the highest degree and if, in fact, they are as bad as we are told, what does that say about our nation when we begin to enact the exact same restrictions on free speech and expression?

In addition, if stopping the destruction of nationalistic symbols was so vital to our democracy, then why didn’t Adams, Jefferson, or Madison (not to mention a few dozen other presidents since) ever consider it a priority? I am sure that there were any number of Tories, Barbary pirates, Confederates, and Native Americans who, in the heat of battle or moral outrage, found various ways to desecrate that precious symbol of the American Union, yet no one in government (that I know of) ever proposed altering the Constitution to prevent it.

I understand why many aren’t worried about such a law. Most probably agree that flag burning (or the burning of effigies as well) appears a bit extreme when we consider what ‘burning’ itself implies i.e. the complete annihilation of the thing or idea under protest. One has to be pretty mad to set something ablaze. Yet, history also tells us that where we see burning flags we can also envision the burning of books and, soon enough, the burning of human beings, as all those images commingle in fertile and (I believe) rightfully suspicious imaginations. Personally, I have little faith in the ability of the masses to exercise restraint, and if there is a ‘slippery slope’ to avoid, it is the one that creates a mob mentality set to run amok. Maybe, some would argue, we need to ‘nip this in the bud’ before it gets out of control.

In all fairness, however, not all protestation via combustion leads to utter societal conflagration. Vietnam Era draftees burned their Selective Service cards and the Women’s movement cremated more than few bras in their day without the entire nation going up in smoke or feeling threatened by their respective messages. Somehow I think that America can withstand a few well placed smolderings here and there without falling into utter chaos. We’ve been there before and survived. Some people don’t even remember it happening, let alone have their lives irrevocably altered for the worse by said events.

Certainly, we all imagine that these pyro-prone protestors can find more meaningful, productive, and peaceful ways to get their message across to others, but those methods aren’t always effective. We live in a media age where only the most outrageous acts receive any attention. If you wish to be seen or heard, you must rise above and beyond the norm or shatter the common paradigms of others just enough to piss them off. If you want to be on the evening news, set an American flag on fire in front of a military recruiting office. Unfortunately, your message probably won’t ever be heard since it would be completely obscured by the news of the fire itself and your subsequent arrest. Yet, you will get noticed, and in the mind of the guy holding the matches and gasoline, his mission is accomplished simply by making others angry.

One has to remember that the ‘slippery slope’ argument runs in both directions. As reluctant as I may be to endorse flag burning as a form of positive dissent, to outlaw such protest offers a new license for government to, in the spirit of protecting the ideal, prohibit other types of protest where fire may or may not be involved. I have to yet to see a government take back or even restrain itself when granted new powers. The 'slippery-slope' the angry mob tumbles onto ends as quickly as it comes, but when governments takes that plunge the effects are expanding and everlasting. Governments, unlike the unwashed rabble, also tend to be better organized and heavily armed. So in this case, in spite of my initial fears, I’ll take my chances with the raging masses and allow them start a campfire here and there.

That being said, I am equally reluctant to offer support for any law restricting our 1st Amendment right to Free Speech. Free Speech is not meant to only protect the speech and ideas that most citizens like or agree to. In fact, it is intended to allow a relatively unrestricted forum for ideas that most may find offensive or even treasonous. Just as we ignore, become repulsed, or even debate for or against various ideas, actions taken to promote those ideas can be argued or rejected like any other. If those who burn American flags to send a particular message are duly ignored, then they will no longer have any reason to keep doing it. Their right to speak out is the very same right I must preserve so that when I have something to say, the liberty to speak my conscience remains unabridged.

Let’s not make an issue out of something that doesn’t occur very often, doesn’t really garner much support, or would lead, should we begin to prohibit such acts, to greater restrictions on our ability to seek redress from government through peaceful protest. Exactly how many flags are burned across our nation in recent years? Is this a solution seeking a problem that doesn’t exist? My suggestion is to tread with deliberate and patient caution.

The magic of the 1st Amendment is the universality of its scope. The right of the people to speak out is not based upon the likes, dislikes, or sensitivities of a majority opinion. If you are part of that majority, then having once in a while to tolerate some free speech you don’t like is not a high price to pay and you shouldn’t feel put out having heard it. Let it go in one ear and out the other as you do most things you hear these days.

“Free speech is intended to protect the controversial and even outrageous word; and not just comforting platitudes too mundane to need protection.” (General Colin Powell)

Thursday, June 01, 2006

The Ten Commandments and the Jews

It's no secret that many on the Christian Right want monuments of the Ten Commandments in schools, courts, and other public places. But I wonder how many of my fellow Jews realize how many of them are posting the wrong ten commandments! And no, I'm not talking about shamor vs. zachor.

Let's look at the one that Judge Roy Moore refused to take down from the Alabama Supreme Court Building:

Notice anything? (Hint: try counting them.) It turns out that most Protestants use a different set of commandments. What Jews think of as the first commandment, they think of as some sort of preamble. What Jews think of as the second commandment, they separate into the first and second. This monument does a pretty good job of splitting the difference. By using eleven commandments rather than ten, they manage to appease both groups. Notice though how "Honor thy father and mother" gets pushed to the second tablet.

The distinction is a little clearer on the monument at the Texas State Capitol:

And even more obvious on this plaque from a Pennsylvania courthouse. It's hard to make out, but it skips "I am the Lord..." entirely:

And it doesn't get much more obvious than this display at the Cambridge Public Library in Massachusets:

Granted, it's not a big difference, but I hope it may serve as a small wake-up call to Orthodox Jews who've been supporting the erosion of the wall between church and state. I wonder which commandments Senator Lieberman displays in his office:

In addition to the group’s ministry to people one-on-one, Faith in Action has presented more than 300 stone tablets of the Ten Commandments to officials and asked them to display and obey them.

“I’ll never forget the day I ran into Sen. Joseph Lieberman while riding the underground subway between the Senate offices and the Capitol,” Schenck recalls. “I had the opportunity to speak to him about several issues. He later became the first senator to accept and display the Ten Commandments plaque in his office. He even asked for one in Hebrew for his home office.”

Here's a picture of Schenck with one of the plaques: