Just Another Jewish Conspiracy

Conservative Hypocracy on Eminent Domain

2006-12-22T11:31:00.000-05:00

The New York Post extols the approval of the Atlantic Yards redevelopment in Brooklyn:

"Think jobs. Customers for businesses. Housing. Office space. Tax revenue. "

Of course, there is the little technicality that this project requires the use of government eminent domain power to take property from private individuals (the landowners there) and give it to other private individuals (the developers, especially Nets owner Bruce Ratner).

Conservatives had gone ballistic over the Supreme Court's 2005 Kelo vs. City of New London decision that basically said that the government can do exactly the above in the name of economic development. So what is a conservative paper (Rupert Murdoch's News Corp. is the Post's owner) doing expressing support of big government intervention? For once, even they admit that there is a bit of a problem here:

'Ever since the Supreme Court's ruling last year in Kelo vs. New London, we, too, have had concerns about eminent domain, which lets public officials seize private property (and compensate owners) for "public" purposes, including economic development.'

But the Post's editorial writer rationalizes away this concern by showing that big government knows best:

'But this project will benefit far more than Forest City Ratner; indeed, its positive ripples will cross the East River and be felt by all New Yorkers.'

Right. As the left has been saying for decades, big government projects have positive effects. The difference between liberals and conservatives is to whom they wish the benefits of big govement to reach. In this case, the biggest beneficiaries are the wealthy developers.

And no wonder that there was no serious move to reverse Kelo with a clarifying Constitutional Amendment. The K Street lobbyists would not have stood for it.

Unfit for Leadership

2006-12-11T20:56:00.000-05:00

(Hat tip: EditCopy)

That would be Silvestre Reyes (D), of Texas - the incoming Chair of the House Intelligence Committee.

Two recent statements of Reyes:

WASHINGTON, Dec 11 (Reuters) - Is al Qaeda a Sunni organization, or Shi'ite?

The question proved nettlesome for Rep. Silvestre Reyes of Texas, incoming Democratic chairman of the House of Representatives Permanent Select Committee on Intelligence.

"Predominantly -- probably Shi'ite," he said in a recent interview with Congressional Quarterly, a periodical that covers political and legislative issues in Congress.

Unfortunately for Reyes, the al Qaeda network led by Osama bin Laden is comprehensively Sunni and subscribes to a form of Sunni Islam known for not tolerating theological deviation.

In fact, U.S. officials blame al Qaeda's former leader in Iraq, the late Abu Musab al Zarqawi, for the surge in sectarian violence between Sunnis and Shi'ites.

But Reyes' problems in the interview didn't end with al Qaeda.

Asked to describe the Lebanese militant group Hezbollah, Congressional Quarterly said Reyes responded: "Hezbollah. Uh, Hezbollah," and then said, "Why do you ask me these questions at five o'clock?"

Perhaps it is because you're the incoming Chair of the HOUSE INTELLIGENCE COMMITTEE?! Ugh. Reyes then put out a statement which included this brilliant comment:

"The report's [Iraq Study Group's] conclusions about the state of our intelligence capabilities in Iraq are troubling," said Reyes.

The report states that '[t]he Department of Defense and the intelligence community have not invested sufficient people and resources to understanding the political and military threat to the American men and women in the armed forces.'

Because Reyes understands it so much better! CopyEditor's last line sums it up perfectly:

Reyes has lost the political, moral and intellectual authority to conduct oversight in these matters.

The most silly article I've seen in years

2006-12-10T00:26:00.000-05:00

Steve Lipman tries to make a big deal about the politics of the founders of Hasgen-Dazs and Ben and Jerry's ice creams in this article in the Jewish Week:

http://www.thejewishweek.com/news/newscontent.php3?artid=13380

He argues that one should look at the politics of companies before making purchases. I have no problem with that idea. But it doesn't apply to ice cream: both Hasgen-Dazs and Ben and Jerry's are now owned by apolitical international agribusiness conglomerates: 1983 the founders of Hagen Dazs sold their company to Pillsbury, which merged with General Mills in 2001. And in 2000, Ben and Jerry's was sold to Unilever. Jews can enjoy ice cream produced by these and other brands without being concerned about the political impact of their sweet tooth.

Published

2006-12-06T20:17:00.000-05:00

David Kirschner's series, on the NSA Surveillance Program's legality, the first two parts of which were published here on JAJC, is being published in the upcoming edition of The Prosecutor. The Prosecutor is a quarterly publication of the National District Attorney's Association.

Congratulations to David on this wonderful accomplishment!

He thanks the blogworld for encouraging him to spend the time to actually sit down and write the piece - I know he's often told me that he particularly enjoys the insights of everyone on this blog, especially Charlie and JA who bring great arguments from the "other side" that he might otherwise not hear.

Republicans Got Shellacked

2006-11-08T11:49:00.000-05:00

OK, by now that's pretty obvious. If Montana and Virginia hold up, the Democrats will control both the House and the Senate. I'm actually happy that the Democrats got the House (although the margin is a little disconcerting) but Democrats controlling the Senate will make it much more difficult for the President to nominate reasonable judges and that's something to be afraid of.

Why did the Republicans get hit so hard? I think there are two major reasons: Iraq and corruption. Iraq is all over the news and every day we hear how the country is falling into civil war, how the region is becoming more unstable, how American power in the region is waning, and how the war is making us less safe. The average American doesn't care about spreading democracy in the Middle East or about ousting dictators. Americans want to know they are safe and that the wars we wage will be successes. Iraq certainly doesn't appear to be one.

Corruption is obvious. Even if Joe Schmo can't name his Congressman, he understands kickbacks and bribes. And he wants his representative to represent him and not some guy with deep pockets.

I think the key point is that most voters are woefully uninformed and vote based on intuition, party identification, ads on TV, or a specific issue. How many Americans care about limited government or big deficits? How many understand the difference between an originalist and moralist? How many care?

They want to know they are safe (and at this point they already feel like they are because we haven't had an attack on US soil in years). They want to see less of their income going to the government. Some care about abortion, others about minimum wage. Very few care about both. Some vote Democrat because their family always has. Some vote for Republicans because the Democrats seem soft on terror. The list goes on.

Democrats want to claim this election was about repudiating Bush's policies. Conservatives want to claim the election was not about that. I think both are wrong. Americans don't know or care about Bush's policies on Social Security, immigration, and free trade. What they care about is whether their representatives are being bribed and if America is stuck in another Vietnam. The Republican party failed to deliver and honestly, I don't see the Democrats being much better.

Arab Zionist in America?

2006-11-07T11:13:00.000-05:00

The Jewish Week reports on the recent visit of Imam Omar Abu Namous of the Islamic Cultural Center of New York to an Orthodox synagogue. He is reported to have "stunned" the Jews there by saying,

“Why shouldn’t Israel agree to a one-state solution and incorporate the West Bank and Gaza into that state? There would be two administrations, one for Jewish affairs and one for Christian and Muslim affairs. No one will take a Jewish person’s property and [Palestinian refugees] will not return to Haifa and Jaffa.”

The article reports that this was not received favorably. But isn't the dream of Religious Zionists to have one state between the Jordan and the Meditteranean? Aren't monotheists permitted by Torah law to live in Eretz Yisrael by accepting the Noachide laws? Don't Moslems (according to almost all opinions) and Christians (according to many opinions) have the staus of monotheists? And aren't non-Jewish monotheists supposed to set up their own courts under the Noachide laws?

In this particular encounter, it was the orthodox Rabbi who supported a "two state solution" -- dividing the Land of Israel. Could it be that an Arab Muslim is more Zionist?

The Jewish Press -- a Democratic paper?

2006-11-02T12:15:00.000-05:00

Did anyone notice the Jewish Press list of endorsements for this coming Tuesday's election? The paper, which endorsed Republicans George W. Bush and Mike Bloomberg, and often takes right wing positions on many issues, gave endorsements to (if I count correctly) 4 Democrats and no Republicans in statewide elections, 32 Democrats and no Republicans in State Assembly races, 3 Democrats and 1 Republicans (Martin Goldin) in State Senate races, and 8 Democrats and a single Republican (Peter King) in races for the U.S. House of Representatives. The paper also endorsed Sen. Joe Lieberman, a Democrat running for re-election as an Independent, in his race.

http://www.jewishpress.com/page.do/19812/Endorsements.html

If I count correctly, that is 47-2 in favor of Democrats if you don't count Lieberman.

So at least one loud and influential voice in the Orthodox Jewish community agrees that Democrats are on the right side regarding Jewish issues.

Arab Zionists?

2006-10-26T23:44:00.000-05:00

Arab members of Israel's Labor Party are up in arms over the possibility of Avigdor Lieberman's Israel Our Home party joining the government:

http://www.haaretz.com/hasen/spages/779489.html

I won't comment on the merits or lack thereof of this expansion of the coalition. But I will comment on another aspect of this situation: there exist Arab members of a mostly Jewish, yes Zionist, political party. In other words, Arab Zionists! There are actually Arabs who support the existence of a Zionist state in the Land of Israel!!!

How many are there? Well, the voting in Israel contains roughly twice as many Arabs as the so-called "Arab parties" have seats in the Knesset. So a substantial fraction of Israel's Arab citizens are voting either for Jewish parties -- either Zionist or Charedi. Would that there be more! But their very existence puts to bed the idea that all Arabs want to drive all Jews into the Great Sea.

I am under no illusions as to the political leanings of most Arabs in Judea, Samaria, and Gaza -- the recent elections in which terrorist organizations (Hamas and Fatah) received the overwhelming majority of votes should have convinced anyone not already convinced. But for Israel's Arab citizens, that does not appear to be the case. Both Israel, and Jews around the world, should express appreciation for this non-Jewish support even more than we express appreciation for the support of non-Jews here in America. If all Arabs could become Zionists, we would have peace -- and maybe Mashiach as well.

Pro-life?

2006-10-26T23:37:00.000-05:00

The actions of Nicaragua's legislature should cause Jews who identify with the so-called "pro-life" movement to pause and reflect as to what their allies are up to. It just banned all abortions. Period. If continuing a pregancy means death for the mother, it doesn't matter -- she has to die:

http://www.nytimes.com/2006/10/27/world/americas/27nicaragua.html

This of course is in conflict with halachah, which gives priority to the mother's life. And my Catholic friends tell me that this actually isn't consistent even with Catholic teaching, which treats the mother's life as equal to that of a newly fertilized embryo, not inferior to it. If Roe v. Wade is overturned, it is entirely possible that so-called "pro-life" activists will outdo themselves to pass the strictest prohibitions possible and they will likely suceed in the majority of states. And this is not good.

New Jersey Court's Decision Not As Bad As It Seems

2006-10-26T12:24:00.000-05:00

For gay rights activists, the New Jersey Supreme Court's decision yesterday might seem like a positive development. For those who haven't read the decision, the court decided that the state cannot deny benefits to same-sex couples if it affords those benefits to opposite-sex couples. However, the court stopped short of requiring an expansion of the definition of marriage to include gay couples, and only forced the legislature to create a legal regime that would provide equal benefits to all couples, regardless of sexual orientation. Gay rights activists won a victory without having to convince the legislature or the people of anything.

However, the decision is not as favorable as it seems. Remember that New Jersey's courts are notoriously liberal, probably more than New York. If any court outside of Massachusetts was going to require same-sex marriage, it was going to be New Jersey.

Supporters of SSM often make a number of arguments and the court rejected most of them:

First they argue that due process requires recognizing a right of marriage broad enough to encompass SSM. While the NJ court recognized a right to marriage (a right also found in the federal Constitution according to the Supreme Court), it did not find a right to SSM. In other words the court viewed the question at a lower level of generality, viewing the right as a narrow right of same-sex couples to marry, a right obviously not found in any American constitution.

Second, they also argue that bans on SSM are inherently discriminatory on the basis of gender. The argument goes like this: Tom can marry Sally but Jane cannot, and the only reason why Jane cannot is because of her gender. Therefore the discrimination is on the basis of gender.

In my mind this is the best argument gay activists have. I only skimmed the decision, but the court seems to have ignored this entire construction and considered the issue one of discrimination on the basis of sexual orientation.

Third, the court also rejected the argument that denying same-sex couples the right to marry is discriminatory. They severed the benefits of marriage from marriage itself and allowed other arrangements to rectify the discrimination.

At most they recognized that same-sex and opposite-sex couples are similarly situated and cannot be distinguished on traditional grounds. Obviously I disagree, but this ruling is fairly narrow.

Moreover the political ramifications might be negative for gay rights activists. Legislatures don't like being told what to do and NJ's will probably just do the minimal amount to fulfill the court's ruling. In other words, they'll probably create civil unions but not allow SSM. In the absence of a court decision requiring them to fix this problem, they might have allowed SSM, considering how a majority of the state supports it. This ruling might create a backlash in a fairly liberal state.

Lastly, this ruling is really just another arrow in the heart of the gay rights movement's attempt to get the courts to impose SSM. Despite lawsuits in numerous states, only one has recognized SSM and only Vermont and NJ will have civil unions because of their courts. Only one court accepted the gender discrimination argument (and Hawaii then passed an amendment to ban SSM), and none has recognized a due process right to marry. Since Goodridge, two large liberal states have rejected their arguments totally (New York and Washington) and only one has accepted their weakest argument. Things seem to be moving backwards for them.

I hope they realize that the litigation strategy is failing and try to move through more democratic means.

Government aid could require Jewish schools to admit non-Jews

2006-10-18T09:33:00.000-05:00

A Jerusalem Post article reports that the British government is considering instituting a requirement that religious schools that receive public funding reserve some of their spaces for children from other religions.

The major governmental lobbying effort, mostly unsuccessful, of Orthodox institutions in the US over the past 40 years has been to obtain government aid for our day schools. This situation in Britain shows that there would be a potential downside if such efforts ever succeed. There is absolutely nothing that would prevent a government agency from attaching strings to aid in the US that would require Jewish schools here to accept non-Jews, probably on an equal access basis rather than with a quota. This is an issue that does not affect Christians and Muslims because they WANT to teach non-Christians and non-Muslims about their religion in order to get people to convert. Judaism, however, does not actively seek converts and in fact sets limits on teaching torah to non-Jews. This is a serious issue and I don't understand why it has not received more attention; maybe we are just resigned to the fact that we will never get such aid in the first place?

UPDATE: Haaretz reports that the British government approved this proposal. A Haredi principal, Rabbi Abraham Pinter, says he will drop government funding rather than accept the government's mandate. Interestingly, he says that his school is a an example "successful inclusion of the Haredi community in British society", which shows that not all haredim are isolationist (which I knew already).

FURTHER UPDATE: The British government has reversed itself and dropped the plan, but the debate isn't over yet. Details from the BBC.

Is Liberalism A More Pragmatic Approach?

2006-09-14T16:06:00.000-05:00

In the comments to CA’s post about the relative qualities of moonbats and wingnuts, DB argued the common liberal refrain that liberals are more open to empirical evidence than conservatives. This argument was made famous in an article by Jonathan Chait in the New Republic, which led to a debate between Chait and National Review’s Jonah Goldberg on opinionduel.com (no longer available). Chait contended that liberalism is more pragmatic, while conservativism is more dogmatic.

As a theoretical matter, Chait is probably right. Modern liberalism, which is basically progressivism, is by definition more open to policies that would change society for the better. Conservativism is primarily interested in preserving our current practices and traditions, while progressives propose making changes that would allow society to progress in a favorable direction. They support experimenting via government (top-down) and analyzing the outcomes to see if the programs are effective.

Conservatives (I’m parroting Hayek here) oppose this ideology because they presume that traditions that have lasted this long have a presumption of correctness and changes could have unforeseen deleterious effects that are not easily reversed. They therefore support allowing changes to be made organically (bottom-up), without imposition from the government.

So in fact conservatives are certainly are less open to empirical evidence that might point to favorable government programs because they are not willing to risk forcing adverse effects on society. Liberals, on the other hand, tend to look at the evidence and ignore possible, but unforeseen, negative effects.

Nevertheless I believe DB and Chait are wrong for two reasons. First, the argument ignores the evolution of conservative doctrine over the last 30 years – partly spurred by the influence of neoconservative doctrine – from an ideological movement to a more pragmatic governing philosophy. While fifty years ago most conservatives might have opposed high taxes on ideological grounds (that people should be allowed to keep their own money), today conservatives generally oppose high taxation for pragmatic reasons. Supply side economics and the Laffer curve are in vogue in the conservative movement not because they provide justification for low taxation, but because they provide the reasoning behind the idea that high taxation harms our economy. Conservatives oppose high taxes because it negatively affects the economy, and if the evidence would show that high taxes were beneficial, many conservatives would shift their policy preferences accordingly.

Other examples abound. Irving Kristol strongly opposes welfare because it creates a sense of dependence and generates disincentives for work. Many conservatives oppose SSM because they believe it harms families. They oppose rent control and stabilization because it decreases available housing on the market. They support moral legislation because they believe it makes a better society.

Obviously not all conservatives are pragmatists. The religious right and the paleoconservatives are far less likely to allow empirical evidence to change their mind. They usually have ideological positions, and are not going to change because of evidence. The religious right is not going to support SSM no matter how much evidence shows that gay couples are just as likely to have stable families as straights. Paleos are going to support isolationism even if the preponderance of the evidence points to the conclusion that staying out of world politics harms our national interest.

But that just gets me to my second reason: the assumption that liberals are more pragmatic only makes sense from the liberal perspective. The proposition is only sustainable once one assumes that liberal ideology is correct. Let me explain.

Chait’s argument presumes that both liberals and conservatives have ideological positions that are not subject to empirical analysis, but liberals are more willing to subject the methods used to further those positions to empirical analysis. For example, liberals support wealth distribution because it makes society as a whole better off. Conservatives, however, oppose it even if the evidence shows that wealth distribution improves society.

But this analysis begs the question. Conservatives disagree over what constitutes a better society. To better frame the issue, liberals presume that a more equal society is a better society. Conservatives assume that a society that allows people to keep the proceeds of their hard work is a more fair society. When liberals “prove” that wealth distribution makes society better, they mean more equal. Conservatives might agree that wealth distribution makes society more equal, but not that it makes society better. Basically the disagreement is over values, not methods.

Affirmative action is another example that might better shine light on my argument. Liberals argue that society should act affirmatively to ensure that everyone has equal access to society. This argument by nature is an argument for equality. Conservatives disagree. One source of disagreement is that the evidence does not show that affirmative action works (i.e., that it affords disenfranchised minorities equal access to society). But even if the evidence showed that affirmative action was successful to the extent that it fulfilled its objections, conservatives would still oppose it because they believe a better society is one that rewards people for hard work.

Basically conservatives are willing to subject the methods to reach their ideological objectives to empirical testing, but not their ideology itself. In that way liberals and conservatives are no different.

The Next President of the United States

2006-09-14T14:50:00.000-05:00

I saw him on TV last week. Details back at SerandEz.

[Sorry - I wrote it there, then realized it was more fit for JAJC.]

Princeton University Exposes Diebold Flaws

2006-09-14T14:12:00.000-05:00

This is a non-partisan issue which every American should be aware of.

The main findings of our study are:

1. Malicious software running on a single voting machine can steal votes with little if any risk of detection. The malicious software can modify all of the records, audit logs, and counters kept by the voting machine, so that even careful forensic examination of these records will find nothing amiss. We have constructed demonstration software that carries out this vote-stealing attack.

2. Anyone who has physical access to a voting machine, or to a memory card that will later be inserted into a machine, can install said malicious software using a simple method that takes as little as one minute. In practice, poll workers and others often have unsupervised access to the machines.

3. AccuVote-TS machines are susceptible to voting-machine viruse! s - computer viruses that can spread malicious software automatically and invisibly from machine to machine during normal pre- ! and post-election activity. We have constructed a demonstration virus that spreads in this way, installing our demonstration vote-stealing program on every machine it infects.

4. While some of these problems can be eliminated by improving Diebold's software, others cannot be remedied without replacing the machines' hardware. Changes to election procedures would also be required to ensure security.

Paperless voting machines should be illegal.

Between Revolution and Insanity

2006-09-13T18:03:00.000-05:00

I am not going to venture a guess as to the results of the midterms, but I concede that Republicans stand a very a good chance of losing their majority. Having said that, the difference between the 1994 Contract with America and the current Democratic effort is huge.

Republicans came to power because they had a platform of strengthening an individual’s capacity for self-reliance by reducing government excess. The GOP ran on an idea and won. But what do Democrats have to offer? Their election strategy seems to be solely about one man- George Bush.

After my blogging hiatus, I was compelled to write this piece after seeing a clip from Death of a President, a British film portraying President Bush’s future assassination. Not content to rely on a lookalike or fictional president, the filmmakers actually digitally placed George Bush’s face on an actor.

The degree of personal hatred and cheapening of political discourse is sickening. To be fair, the GOP attempted to gain mileage from bashing President Clinton. But this is different. American foreign policy has been greatly harmed by the left wing’s hate for President Bush. Foreigners gleefully exploit this weakness in the American government and we are all the poorer.

The illness that has captured the fringe of the Democratic party also captures headlines. Recent news stories related to the fifth anniversary of the attacks on the World Trade Center and the Pentagon have started the process of mainstreaming the mentally ill or hopelessly stupid proponents of conspiracy theories, most of which portray President Bush as the mastermind of these attacks, or the hapless puppet of his neocon (read Jews) masters.

It is convenient to think that these views are in the mainstream. I am more comfortable with the idea that my political opponents are unemployed college kids with a computer and a low intelligence to creativity ratio. I hope this is not the case, although recent events have to make you wonder. Ned Lamont ran against the Democratic Party’s nominee for Vice President and won on a platform that was mostly centered on Joe Lieberman’s Great Crime—he received a kiss on the cheek from President Bush following the 2005 State of the Union Address. Apparently comity with the other party is treason to the Democrats’ new horde of mentally ill devotees.

I’m generally against compelled speech, but for the good of the country, Democratic leaders ought to publicly agree with and espouse the following platform:

The World Trade Center was brought down by Islamic terrorists flying hijacked commercial aircraft.

The Pentagon was struck by a hijacked commercial aircraft.

Although there were fundamental errors made by the national intelligence community, there was no conspiracy, nor willful blindness, by the U.S. government.

The War on Terror is a serious struggle between America’s security and Islamic terrorists who want nothing more than global empire and dead Americans. While there are legitimate and divergent viewpoint on the best method for prosecuting this war, it is a war both parties agree is critical.

This list is simple enough, but I doubt the Democratic leadership will ever embrace it and publicly espouse it. There is too much cheap mileage out there for Bush bashing. And we are all the poorer.

Amnesty International: As Clueless As Ever

2006-09-12T10:47:00.000-05:00

In JPost today, Amnesty International responds to Alan Dershowitz's critique of their report condemning Israel for committing war crimes. Dershowitz accuses them of being anti-Israel, and AI offers evidence that they are evenhanded and merely interested in criticizing the conduct of both parties.

I disagree with Dershowitz that AI is anti-Israel. AI, like the ACLU, has an extreme position on human rights law and defines any "gray" conduct as illegitimate. But even more, it focuses more on states than terrorist groups. This trend is not limited to Israel, but applies in all cases of war and hostilities.

But AI is clueless. Here are some examples:

1) Amnesty cites the Additional Protocols to the Geneva Conventions as a source for the proportionality requirement. That argument is meaningless because Israel has never signed the Protocols. AI has the burden of proof to show that the proportionality requirement (as laid out by Protocol) is either a norm or custom. The latter requires a mix of state statements (opino juris) to that effect and state conduct following the custom. The former requires that the norm be imbedded in the international legal system. I have yet to see proof that the Protocol's understanding of proportionality is either custom or a norm.

2) Dershowitz argues that if roads are used for military means, then they are legitimate targets. AI makes the shocking flawed argument that

If Dershowitz's interpretation were correct, Hizbullah's indiscriminate bombardment of Israel would be lawful, since roads in Israel are used both by military and civilians. But Hizbullah's bombing was not lawful. It was criminal.

Um, hello?!! If Hizbullah had merely targeted roads, most of us wouldn't have called it war crimes (although hopefully AI would have). But Hizbullah shot thousands of rockets indiscriminately at populated cities, intending to maximize civilian causalities.

3) AI admits that it will condemn Hizbullah in its "forthcoming report." Uh, under AI's definition of international humanitarian law, Hizbullah clearly committed war crimes by targeting civilians. We know where the missiles landed and there's absolutely zero evidence that Hizbullah intended to only target civilian infrastructure. How long does it take write a report on Hizbullah's conduct?

To repeat: I don't think AI or Human Rights Watch is anti-Israel or anti-Semitic. Those terms are often bandied around by people with little understanding of the complexities and nuances of the issues involved. But to use AI as a moral compass is simply to stick one's head into the sand.

Affirmative Action and Racial Profiling: One And The Same?

2006-09-12T10:01:00.000-05:00

Ilya Somin, a prominent libertarian law professor, argues that racial profiling and affirmative action are similar in method and fails to understand why conservatives and liberals support one but oppose the other. His argument in short is that the basis for racial profiling is that information costs are high, so the government uses race as a imperfect proxy to find possible terrorists.

The underlying logic of affirmative action is similar, in that the admissions officer cannot undergo the costly research process to figure out if the applicant was a victim of discrimination and therefore uses race as a proxy. In other words, in both cases, proxies are used as substitutes because information costs are impossibly high.

At least in the case of affirmative action I think the analogy is flawed because conservatives generally oppose affirmative action not because race is used as a proxy but because (among other reasons) of the ineffectiveness of the program, because the diversity rationale is flawed (and is racist), and because of the divisive effects generated by society's focus on race. Whether the proxy is a generally effective substitute for individualized review is immaterial to these arguments.

Olbermann on Don Rumsfeld

2006-08-31T10:32:00.000-05:00

Wow, you don't see speeches like this too often.

Watch the video at the above link or read the transcript below:

The man who sees absolutes, where all other men see nuances and shades of meaning, is either a prophet, or a quack.

Donald S. Rumsfeld is not a prophet.

Mr. Rumsfeld’s remarkable comments to the Veterans of Foreign Wars yesterday demand the deep analysis - and the sober contemplation - of every American.

For they do not merely serve to impugn the morality or intelligence - indeed, the loyalty — of the majority of Americans who oppose the transient occupants of the highest offices in the land; Worse, still, they credit those same transient occupants - our employees — with a total omniscience; a total omniscience which neither common sense, nor this administration’s track record at home or abroad suggests they deserve.

Dissent and disagreement with government is the life’s blood of human freedom; And not merely because it is the first roadblock against the kind of tyranny the men Mr. Rumsfeld likes to think of as "his" troops still fight, this very evening, in Iraq.

It is also essential. Because just every once in awhile… it is right — and the power to which it speaks, is wrong.

In a small irony, however, Mr. Rumsfeld’s speechwriter was adroit in invoking the memory of the appeasement of the Nazis.

For, in their time, there was another government faced with true peril - with a growing evil - powerful and remorseless.

That government, like Mr. Rumsfeld’s, had a monopoly on all the facts. It, too, had the secret information. It alone had the true picture of the threat. It too dismissed and insulted its critics in terms like Mr. Rumsfeld’s - questioning their intellect and their morality.

That government was England’s, in the 1930’s.

It knew Hitler posed no true threat to Europe, let alone England. It knew Germany was not re-arming, in violation of all treaties and accords. It knew that the hard evidence it received, which contradicted policies, conclusions - and omniscience — needed to be dismissed.

The English government of Neville Chamberlain already knew the truth.

Most relevant of all - it "knew" that its staunchest critics needed to be marginalized and isolated. In fact, it portrayed the foremost of them as a blood-thirsty war-monger who was, if not truly senile - at best… morally or intellectually confused.

That critic’s name… was Winston Churchill.

Sadly, we have no Winston Churchills evident among us this evening. We have only Donald Rumsfelds, demonizing disagreement, the way Neville Chamberlain demonized Winston Churchill.

History - and 163 million pounds of Luftwaffe bombs over England - taught us that all Mr. Chamberlain had was his certainty - and his own confusion. A confusion that suggested that the office can not only make the man, but that the office can also make the facts.

Thus did Mr. Rumsfeld make an apt historical analogy.

Excepting the fact that he has the battery plugged in backwards. His government, absolute - and exclusive - in its knowledge, is not the modern version of the one which stood up to the Nazis. It is the modern version of the government… of Neville Chamberlain.

But back to today’s Omniscients.

That about which Mr. Rumsfeld is confused… is simply this: This is a Democracy. Still. Sometimes just barely. And as such, all voices count — not just his. Had he or his President perhaps proven any of their prior claims of omniscience - about Osama Bin Laden’s plans five years ago - about Saddam Hussein’s weapons four years ago - about Hurricane Katrina’s impact one* year ago - we all might be able swallow hard, and accept their omniscience as a bearable, even useful recipe, of fact, plus ego.

But, to date, this government has proved little besides its own arrogance, and its own hubris. Mr. Rumsfeld is also personally confused, morally or intellectually, about his own standing in this matter. From Iraq to Katrina, to the entire "Fog of Fear" which continues to enveloppe this nation - he, Mr. Bush, Mr. Cheney, and their cronies, have - inadvertently or intentionally - profited and benefited, both personally, and politically.

And yet he can stand up, in public, and question the morality and the intellect of those of us who dare ask just for the receipt for the Emporer’s New Clothes.

In what country was Mr. Rumsfeld raised? As a child, of whose heroism did he read? On what side of the battle for freedom did he dream one day to fight? With what country has he confused… the United States of America?

—–

The confusion we — as its citizens - must now address, is stark and forbidding. But variations of it have faced our forefathers, when men like Nixon and McCarthy and Curtis LeMay have darkened our skies and obscured our flag. Note - with hope in your heart - that those earlier Americans always found their way to the light… and we can, too.

The confusion is about whether this Secretary of Defense, and this Administration, are in fact now accomplishing what they claim the terrorists seek: The destruction of our freedoms, the very ones for which the same veterans Mr. Rumsfeld addressed yesterday in Salt Lake City, so valiantly fought.

—-

And about Mr. Rumsfeld’s other main assertion, that this country faces a "new type of fascism."

As he was correct to remind us how a government that knew everything could get everything wrong, so too was he right when he said that — though probably not in the way he thought he meant it.

This country faces a new type of fascism - indeed.

—-

Although I presumptuously use his sign-off each night, in feeble tribute… I have utterly no claim to the words of the exemplary journalist Edward R. Murrow. But never in the trial of a thousand years of writing could I come close to matching how he phrased a warning to an earlier generation of us, at a time when other politicians thought they (and they alone) knew everything, and branded those who disagreed, "confused" or "immoral."

Thus forgive me for reading Murrow in full: "We must not confuse dissent with disloyalty," he said, in 1954. "We must remember always that accusation is not proof, and that conviction depends upon evidence and due process of law.

"We will not walk in fear - one, of another. We will not be driven by fear into an age of un-reason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men;

"Not from men who feared to write, to speak, to associate, and to defend causes that were - for the moment - unpopular."

More On Balkin And Originalism

2006-08-28T14:35:00.000-05:00

Jack Balkin adds to his argument against expectation originalism, which he earlier defined as being bound to the original expected applications as well as the original public meaning of the Constitution.

Balkin makes an interesting distinction between the search for the proper meaning of the Constitution and how specific actors should interpret the Constitution. In other words, he separates the question of how the Constitution should be interpreted from the question of how judges should interpret it.

His analysis is a response to a standard originalist argument that the Constitution must be interpreted according to the original meaning because otherwise the judges are given too much leeway to decide cases. In essence originalism serves a pragmatic function, constraining judges and protecting democracy.

I believe the pragmatic argument is reasonable, but must take into account that other methods of constraining judges might be more effective. If those methods work better and the sole function of originalism is to limit judges' discretion, then the underpinnings of originalism come crashing down.

Of course I believe there are normative reasons for adhering to the original public meaning of the text, so in my eyes Balkin's argument is not as forceful. But his separation between the normative and pragmatic basis for any form of constitutional interpretation is important to note.

A Sensible Middle Ground?

2006-08-24T16:48:00.000-05:00

Peter S. Wenz, in an article titled "Dworkin's Wishful-Thinkers Constitution," argues for a middle ground jurisprudence that eschews the extremes of Dworkin and Scalia.

Dworkin, as he correctly notes, favors a liberal interpretation of the Constitution, where he interprets the clauses broadly (as principles) and the judge is obligated to ascertain the moral reading of the clause. Since morality shifts from generation to generation, the judge will interpret the clauses based on his best interpretation of the current moral climate. Wenz doesn't support the judge finding unremunerated rights based on morality, and argues that such a jurisprudence leaves too much open to the judge's discretion and circumvents democracy.

Scalia, on the other hand, views the clauses as rules and favors a more narrow interpretation. However, his narrow interpretation leaves the Constitution static and not relevant to the modern world.

He therefore proposes another form of interpretation based on jurisprudence of Justice Hugo Black. Black was the quintessential textualist. He refused to "find" rights based on "ordered liberty" or within the Due Process Clause. Black was a textualist, and if it isn't in the text, then it doesn't matter.

Wenz, however, does not consider Black an originalist, so his jurisprudence would not relegate the Constitution to the 18th Century. It eschews both extremes and draws a sensible line.

I do not agree with his conclusion for a few reasons:

1) He misunderstands both originalism and Scalia's version of it. Scalia does not interpret the Constitution as a set of rules. Everyone admits that some clauses are abstract and cannot be defined narrowly. What people like Wenz fail to comprehend is that abstractness is not synonymous with progressiveness. Scalia's response to Larry Tribe in a Matter of Interpretation argued that just because a clause is abstract, it does not follow that the clause must change over time. It simple means that the clause must be interpreted broadly based on the 18th century understanding of the term.

2) While Black was not an originalist, he would not have agreed with Wenz's caricature of his position. Wenz chides Dworkin for not recognizing that everything Dworkin argues for can be textually based. Prohibitions against abortion could be unconstitutional simply because their sole basis is religious (!) and the Constitution requires a separation of church and state. Moreover laws proscribing contraceptives are similarly rooted in religious tenets and would also run afoul of the 1st Amendment.

But Black himself dissented in Griswold! He did not support the religion argument, simply because (if I may guess) textualism requires interpreting the text according to its plain meaning and an interpretation that reads the 1st Amendment to outlaw bans on contraceptives would twist the wording beyond all recognition. That's not textualism; it's Dworkinism in a new set of clothing.

While I respect Black's interpretive methodology, my position is more similar to Scalia's. But Wenz's version of textualism has nothing to do with Hugo Black and is just another effort to make the Constitution say whatever we want it to mean.

Intellectual Gymnastics

2006-08-23T22:44:00.000-05:00

INTELLECTUAL GYMNASTICS

David J. Kirschner^{^[i]}

Last week, Anna Diggs Taylor, a United States District Judge for the Eastern District of Michigan, issued a forty-three page opinion in the case of the American Civil Liberties Union (ACLU), the Council on American Islamic Relations (CAIR), the National Association of Criminal Defense Lawyers, Christopher Hitchens and others against the National Security Agency (NSA) and the Central Security Service (CSS), permanently enjoining the NSA from “directly or indirectly utilizing the Terrorist Surveillance Program (hereinafter “TSP”) in any way, including but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter “FISA”) and Title III.”^{^[ii]} The government immediately sought, and obtained, a “stay” pending an appeal of her decision to the Sixth Circuit Appellate Court which effectively permits the NSA to continue the TSP, at least for the time being.

At the outset, it should be noted that as I and many others have pointed out, the legality of TSP is far from clear. In fact, it may very well be that the program is indeed illegal. That, of course, will inevitably be decided the Supreme Court. However, what struck me as particularly bizarre about Taylor’s opinion is that she summarily concluded the TSP violates the Constitution and, in so doing, disregarded applicable precedent. Regardless of what the Supreme Court may eventually decide about the program’s legality relative to FISA and Title III, it is not likely to determine it unconstitutional. And it most assuredly will not permit her contorted reasoning.

Article III of the Constitution only permits courts to hear actual cases or controversies, not hypothetical or imaginary ones. So before a court entertains a claim seeking judicial relief, a party must demonstrate that direct and discernible harm has been sustained. Such harm, or injury, must constitute an invasion of a legally protected interest which is concrete, particularized and imminent, not conjectural, hypothetical or speculative. Otherwise, judges would be regularly called on to issue advisory opinions on what the law may be in a case that may never occur.

In support of her decision, Judge Taylor strangely relied on Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,^{^[iii]} a case which has nothing to do with electronic surveillance. In Friends of the Earth, the court granted standing to environmental groups who sued a polluter under the Clean Water Act because environmental damage allegedly cause by the defendant had deterred members of the plaintiff organization from using and enjoying certain lands and rivers. The court held that plaintiffs established a sufficient concrete injury based on their conditional statements indicating they would use the nearby river for recreation if the defendant was not discharging pollutants into it. Aside from having nothing to do with electronic surveillance, reliance on Friends of the Earth is entirely inappropriate and inapplicable. There, the plaintiffs themselves were directly affected by being deterred from using the river. Not so here. As even Judge Taylor noted, “[t]he plaintiffs in this case are not claiming simply that the defendant’s surveillance has ‘chilled’ them from making international calls to sources and clients. Rather, they claim that defendant’s surveillance has chilled their sources, clients and potential witnesses from communicating with them.”^{^[iv]}

Interestingly, none of the Plaintiffs claimed to have been subjected to the TSP or have any of their telephone conversations intercepted. All the Plaintiffs were able to demonstrate is that the “TSP has caused clients, witnesses and sources to discontinue their communication with plaintiffs out of fear that their communications will be intercepted.”^{^[v]} Predictably, and accurately, the Defendants argued that the program merely “has a chilling effect based on purely speculative fears that the TSP subjects Plaintiffs to surveillance.”^{^[vi]} Their argument was based on the sound authority of Laird v. Tatum,^{^[vii]} in which the Supreme Court stated, “Jurisdiction of a federal court may [not] be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity.”^{^[viii]} In Laird, the plaintiffs alleged merely that they could conceivably have become subject to the army’s domestic surveillance program, not that they actually suffered as a consequence of it. Logically then, it would appear that since the TSP is indeed an investigative and data-gathering program to thwart terrorism and terrorist activities, Laird’s precedent is directly on point.

Taylor, however, elected not to follow Laird. Instead, Taylor disregarded the Plaintiffs’ admission that none of their telephone conversations or email communications had been intercepted and instead decided that the program indeed damaged them. The basis for her decision was not that they “could conceivably” have become subject to surveillance, but rather that they in fact suffered a “concrete, actual inability to communicate with witnesses, sources, clients, and others without great expense which has significantly crippled Plaintiffs, at a minimum, in their ability to report the news and competently and effectively represent their clients.”^{^[ix]} Simply put, Taylor accepted plaintiffs’ assertion that “the TSP has interfered with their ability to . . . talk with sources, locate witnesses, conduct scholarship, engage in advocacy, and communicate with persons who are outside of the United States, including in the Middle East and Asia.”^{^[x]} Are we to believe that Constitution guarantees journalists, reporters and attorneys the right to “communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations?”^{^[xi]} Isn’t this precisely the type of communication that should be overheard? Apparently, Taylor doesn’t think so. Why? Because plaintiffs “must discuss confidential information over the phone and email with their international clients”^{^[xii]} or else incur “great expense” which will “significantly cripple” them. And this is a problem because?

Following this logic, person A, who is neither a citizen nor a resident and is afraid to talk on the telephone to person B, a citizen and a resident, because person A’s status as a terrorist or terrorist associate subjects their conversation to being overheard violates person B’s right to free speech? And her rationale that “[t]he President indeed has publicly acknowledged that the types of calls plaintiffs are making are the types of conversations that would be subject to the TSP,”^{^[xiii]} combined with the “continuation” of the TSP, they could become subject to interception damages the plaintiff’s? As a well respected and highly esteemed justice before whom I was honored to appear asked a lawyer who moved for a mistrial because a reporter was inside the courtroom, “Are you serious?” Sadly, it appears she is. It’s a good thing this isn’t the law, otherwise I would have a problem listening to conversations between organized crime “wiseguys” operating their criminal enterprise. Unless I missed something in law school, I am unaware of any constitutional or otherwise fundamental right that guarantees persons located in other countries First Amendment or any other constitutional rights. I am also unaware of any precedent establishing “vicarious protection” to one person because of another person’s protected rights.

In support of her “reasoning,” Taylor relies on Zweibon v. Mitchell.^{^[xiv]} Zweibon held that it was illegal to wiretap an organization’s office telephone since it would inevitable provide the membership roster of that organization, “thereby causing members to leave that organization, and thereby chilling the organization’s First Amendment rights.”^{^[xv]} But in Zweibon, all the parties resided in the United States, the organization itself had its First Amendment rights directly violated, and there was no issue involving national security. Is there an analogy here? It is more than well-established that governmental action to regulate, restrict or impinge speech may be justified only upon a showing the existence of a compelling governmental interest. Well, I can think of at least one. But I cannot fathom any government interest protecting the speech of suspected terrorist or terrorist sympathizers who are neither citizens nor residents of the United States.

The opinion, provides at best a cursory review of the history of the case law involving electronic surveillance, Title III and FISA, but conspicuously omits any discussion or reference to the Patriot Act. And although Taylor “analyzes” the TSP, she does so exclusively in terms of domestic criminal matters which are governed by the Fourth Amendment Search and Seizure provision and its dearth of precedent. Nowhere does she even attempt to draw the inevitable distinction between conducting electronic surveillance to obtain evidence for use in criminal prosecution and gathering intelligence in the interest of national security and thwarting acts of terrorism. As I have discussed in previous writings, the crux of the TSP issue rests squarely on this distinction. Perhaps both her and her law clerk missed it. However, her sweeping assertion that, “the President of the United States, a creature of the same Constitution which gave us these amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well,”^{^[xvi]} constrains me to think she just chose to ignore it.

Undoubtedly, anticipating a challenge to her “analysis” granting plaintiffs standing, Taylor wrote, “Although this court is persuaded that plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions (emphasis added) drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. . . . Because of the very secrecy of the activity involved here challenged, Plaintiff’s each must be and are given standing to challenge it. In other words, I’m conferring standing because I want to, precedent be damned. That’s sure to help unmuck the already mucky the waters of stare decisis.

In concluding her decision, Taylor transparently clarifies the entirety of her cryptic opinion by stating, “The irreparable injury necessary to warrant injunctive relief is clear as the First and Fourth Amendments rights of plaintiffs are violated by the TSP. The irreparable injury conversely sustained by the defendants under this injunction may be rectified by compliance with the Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our constitution.”^{^[xvii]} She then quotes former Chief Justice Earl Warren who said, “[I]mplicit in the term ‘national defense’ is the notion of defending those values and ideas which set this nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile.”

Isn’t that like saying implicit in the term “public interest” is the notion of defending those values and ideas which set this nation apart: the safety and security to live in freedom. It would be ironic if, in the name of “public interest,” we would sanction the extension of “those values” to persons outside the country who are committed to our death and destruction.

^{^[i]} David J. Kirschner is an Assistant District Attorney in Bronx County, New York, where he supervises covert investigations involving the use of electronic surveillance. As a senior member of the Investigations Division’s Rackets Bureau, Mr. Kirschner has successfully litigated cases relying upon evidence obtained through electronic eavesdropping and regularly prosecutes white collar crimes including racketeering, enterprise corruption, extortion, usury, gambling, fraud and public corruption. In addition, he frequently supervises the office’s arrest, intake and arraignment process. Mr. Kirschner also teaches trial advocacy at Hofstra Law School’s National Institute for Trial Advocacy, Cardozo Law School’s Intensive Trial Advocacy Program, and is an Adjunct Assistant Professor of Business Law with the City University of New York at Queens College and the Lander College for Men, an affiliate of Touro College. The views expressed herein are exclusively those of the author and do not represent or reflect the views of the Bronx County District Attorney.

^{^[ii]} Judgment and Permanent Injunction Order, p. 1-2.

^{^[iii]} 528 U.S. 167 (2000).

^{^[iv]} Memorandum Opinion, p. 20.

^{^[v]} Memorandum Opinion, p. 17-18.

^{^[vi]} Memorandum Opinion, p. 18.

^{^[vii]} 408 U.S. 1 (1972).

^{^[viii]} Id. at 3

^{^[ix]} Memorandum Opinion, p. 20.

^{^[x]} Memorandum Opinion, p. 17.

^{^[xi]} Memorandum Opinion, p. 17.

^{^[xii]} Memorandum Opinion, p. 17.

^{^[xiii]} Memorandum Opinion, p. 19.

^{^[xiv]} 516 F.2d 594 (D.C. Cir. 1975).

^{^[xv]} Id., See also, Bates v. City of Little Rock, 361 U.S. 516 (1960).

^{^[xvi]} Memorandum Opinion, p. 33.

^{^[xvii]} Memorandum Opinion, p. 43.

The Never Ending Originalism Debate

2006-08-23T10:05:00.000-05:00

If like me you're a law blog geek, you've noticed that another debate over the primacy of originalism has been brewing for the last week. If you have better things to do with your life than read complex arguments about the "semantic meaning" of the words of a document written over 200 years ago, then you might have missed it, but if that's the case, what are you doing reading this blog anyway?

It started on Volokh when Orin Kerr offered (what little evidence there is for) the original meaning of the 4th Amendment. Randy Barnett, originalist par excellance, responded with the Akhil Amar's (whose excellent book on the Constitution I'm almost done reading) article on the original meaning and then it just blew up (see here and here).

Larry Solum offered the best defense of originalism in his response to Brain Leiter's contention that an interpretive method that places primacy on the plain meaning has no normative foundations (or more accurately that those foundation have not been explicated by originalists). Leiter states,

Why, in other words, is an originalist way of fixing meaning authoritative? Why not the plain meaning? Why not the morally best sense we can make of the plain meaning or the original intent at a suitable level of abstraction? Why not the accumulated meanings that have accreted to the text over the course of its institutional history as it is interpreted, debated, amended, and applied?

In others words, we assume that the Constitution binds us and therefore some meaning of the words must bind us as well. But why the original meaning of the document?

Now, if you ask me, the answer seems obvious. The Constitution must have had some meaning when it was signed and ratified. Since original intent is generally not considered a successful way of interpretation (and was impossible with the Founders since we did not have access to their notes for decades), the people in the late 18th Century could not have used original intent as a method. So there must have been some method that interpreted the Constitution and that is as Solum puts it "sentence meaning" or "clause meaning" which is how a reasonable person would have understood the clause at the time. That's called plain meaning.

To argue that the meaning changes with time is to ignore our obligation to constitutionalism. If we are bound by a Constitution's meaning and that meaning changes, what are we bound to? The interpretation of judges (or other officials) in various centuries? What's the point of the Constitution in that case?

Jack Balkin argued that we need to distinguish between original public meaning and original expected application. The difference is what people understood the clause to mean and how they expected it to be applied.

Let's go through the three possibilities of "original" interpretation: original intent (largely discredited), original public meaning, and original expected application. The former relies on the subjective intentions of the promulgators of the clause, the middle looks to the objective interpretation a reasonable listener would attach to the clause, and the latter points to how that reasonable listener would expect the clause to be applied.

As an example, let's take an ordinance passed a municipality: No one shall be allowed to walk their dog between 10 P.M. and 2 A.M. Let's assume the ordinance is passed after a rise in dog bites between those hours. Using original intent we would look to see what the members of the municipality intended when they passed the ordinance, which would probably be to eliminate dog bites. Perhaps though they only intended to limit the ordinance to big dogs, which statistics have shown are more prone to biting. Using this interpretative methodology one could argue that a chihuahua is not covered by the ordinance.

Under the plain meaning, it would mean "dogs" and no exceptions. Intent is irrelevant. (As an aside originalists look to the statements by the founders not because we care what they thought, but because their speeches are evidence of what the words were understood to mean in their era). Under the expected application method, we'd assume the ordinance would be interpreted to cover the all dogs.

In this limited example original public meaning and original expected application converge. So let's use a better example: the 8th Amendment prohibits "cruel and unusual punishments." Balkin argues that the original expected application methodology would require interpreting this clause in the same way as the people in 1791 and applying it the same way. That means they had a conception of cruelty and they would apply it to a negate a statute if it was cruel. This is a position he (correctly) ascribes to Scalia.

Someone who abides by the original public meaning would recognize that a concept of "cruelty" existed in 1791, but it must be reevaluated in each generation to see how it should be applied. In other words, there's a broad concept called "cruelty." The Founder's generation might not have considered flogging cruel, but given what we know today we believe that it is. So the meaning of the term "cruelty" doesn't change but we now know the founders were wrong about what was and wasn't cruel (meaning they misinterpreted what was cruel, not what cruelty was.

This is a fascinating argument. For some reason the Founders did not have as a good an understanding of certain terms ("cruel", "equal", "due", etc.) as we do today. As society's understanding of the term improves, we interpret the Constitution to reflect that improvement. Note that Balkin is not arguing that was constitutes "cruelty" has changed, just that the meaning that is locked into the Constitution is applied differently based on how society moves in the right direction. I'm not sure I agree with this argument, but it is compelling.

Are Terrorists Rational?

2006-08-22T14:46:00.000-05:00

In this paper, Bryan Caplan argues that majority of terrorists are mostly rational. He disaggregates terrorists into three discrete categories: sympathizers, active terrorists, and suicidal terrorists.

He further distinguishes three different types of rationality, but mostly concludes that under all three forms, sympathizers are completely rational, active terrorists are mostly rational, and suicidal terrorists are mostly irrational.

We can understand why sympathizers are rational. Generally terrorism is the means used by the weaker power in a conflict. The costs of actively participating in a war against a stronger enemy are high and since the chance of success is likely low, majority of people have an incentive to free-ride. Terrorists try to minimize freeriding by rewarding friends and punishing enemies, thereby increasing the benefits for actively helping and the costs for opposing them.

Active terrorists are fairly rational as well. The costs of being in a conflict at high, but often the opportunity costs are low because not fighting isn't really beneficial (for example the GDP in the territories is so low that forgoing the amount of wages they could earn is not costly). Often the psychological benefits are high as well, because the extremist doctrine that spawns terrorist groups usually gives the holder of that belief a sense of security (and even if those beliefs themselves are irrational, there is a sense of rational irrationality, which Caplan posits, where the costs of believing an irrational belief is low since believing, for example, that Allah will destroy the infidels is costless).

Suicidal terrorists are generally irrational. But they are a small number. If 1% of the Muslims worldwide believed the Islamist idea that killing infidels would lead to eternal bliss, we'd have over a million suicide bombers. But we don't. The reason is not necessarily because they truly don't believe it. They might. But if we assume that a such a belief is irrational, the costs of that belief are low until the time when the terrorist leader asks for volunteers. Then the costs shoot up. Rational irrationality would predict most active terrorists would not turn suicidal and the ones who do are irrational. And that's generally what happens.

The problem is that a single suicide bomber can cause a lot of damage. Is there any way to deter him? Probably not. But in my mind since the active terrorists, who are the ones who are in charge and the ones who are rational, can be deterred a method of attacking the leaders of terrorist groups would seem the most apt. We probably cannot deter the suicidal maniacs who blow up buses but we sure can increase the costs for the people who send them.

The NSA's Terrorist Surveillance Program: Is It Worth The Risk? [Part II]

2006-08-22T13:07:00.001-05:00

The following is the second in a series of posts discussing the NSA wiretap program. The notes will appear as footnotes at the end of each portion rather than at the end. There will likely be 3 parts in total, plus a summary. David Kirschner is a good friend whose bio is in the second footnote of Part I. Two members of this blog had him as a professor as well - myself and CWY.

Whether the President’s authorization of the National Security Agency’s terrorism wiretap program is within his constitutional powers necessitates an analysis of the language contained in the Constitution, which is always the primary source of law. Article II of the U. S. Constitution provides that, “The executive Power shall be vested in a President of the United states of America. . . . shall be Commander in Chief of the army and navy of the Unites States . . . [and] shall take Care that the Laws be faithfully executed.”[3] In 1936, the U. S. Supreme Court, relying on this language, stated that it established the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.”[4] It appears then, that according to both the language in the Constitution and the Supreme Court’s interpretation, matters of national security are well within the presidential powers.

Indeed, presidential authority to conduct warrantless eavesdropping against spies and foreign enemy powers, particularly in matters of national security, is far from contemporary. President Franklin Roosevelt first authorized the use of wiretaps on national security grounds during World War II.[5] In 1967, the Supreme Court in Katz v. United States,[6] held that the Fourth Amendment required issuance of a court order authorizing the overhearing of the content of telephone conversations since the participants had an “expectation of privacy.”[7] However, the Court refused to extend the same protection to wiretap applications “involving the national security.”

On the heels of the Katz opinion, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968.[8] This Act expressly excluded Title III orders, as they became known, from national security matters. That Act provided, as follows:

Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities (emphasis added). Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.

Until 1972, the Supreme Court had not directly addressed the lawfulness of national security wiretaps. In the “Keith”[9] case, the defendant, Plamondon, was charged with the bombing of a Central Intelligence Agency office in Michigan.[10] During pretrial proceedings, the defendant moved to compel the United States to disclose electronic surveillance information that had been obtained without a warrant.[11] The Government, opposing disclosure of the surveillance materials, claimed that the surveillance was a reasonable exercise of the President’s power (exercised through the Attorney General) “to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government (emphasis added).”[12] The Supreme Court rejected the Government’s claim unanimously holding that Title III, by its terms, did not apply to the protection of “national security information” and that the statute did not limit “the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means . . . (emphasis added).”[13]

[3] U.S. CONST., art. II, §§ 1, 2 & 3.

[4] United States V. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

[5] Comment: Extremism in the Defense of Liberty?: The Foreign Intelligence Surveillance Act and the Significance of the USA PATRIOT ACT, 77 TUL. L. REV. 465, 468 (2002).

[6] Katz v. United States, 389 U.S. 347, 358 n.23 (1967).

[7] Id.

[8] 18 U.S.C. §§§ 2510-2520.

[9] United States v. United States Dist. Ct., 407 U.S. 297 (1972) [hereinafter referred to as “Keith”].

[10] Id. at 299.

[11] Id. at 299-300. See also Id. at 300 n.2.

[12] See id. at 301.

[13] Id.

The ACLU Defends Religious Liberties

2006-08-18T11:13:00.000-05:00

In response to a recent post on my main blog, I received a lot of skepticism that the ACLU would defend people's religious rights, particularly if the religion in question is the majority one, Christianity.

People have this impression because those on the right demonize the ACLU with no regard to the facts. The best example of this is the infamous story where some students were suspended for handing out candy canes with religious messages in a public school after being told not to. The right-wing Christian media were of course up in arms about this, and many couldn't resist swiping at the ACLU.

In an article still up at WorldNetDaily about the candy cane incident, Jerry Falwell (see bolded sentence below for delicious irony) implies that the ACLU would have sided against the students:

The fact is, students have the right to free speech in the form of verbal or written expression during non-instructional class time. And yes, students have just as much right to speak on religious topics as they do on secular topics – no matter what the ACLU might propagate.

The truth?

The American Civil Liberties Union of Massachusetts today asked a federal district court in Springfield to protect the First Amendment rights of high school students who were disciplined by school officials for distributing candy canes with religious messages just before Christmas.

Here are some recent examples of the ACLU's defending religious freedom from their site:

September 20, 2005: ACLU of New Jersey joins lawsuit supporting second-grader's right to sing "Awesome God" at a talent show.

August 4, 2005: ACLU helps free a New Mexico street preacher from prison.

May 25, 2005: ACLU sues Wisconsin prison on behalf of a Muslim woman who was forced to remove her headscarf in front of male guards and prisoners.

February 2005: ACLU of Pennsylvania successfully defends the right of an African American Evangelical church to occupy a church building purchased in a predominantly white parish.

December 22, 2004: ACLU of New Jersey successfully defends right of religious expression by jurors.

November 20, 2004: ACLU of Nevada supports free speech rights of evangelists to preach on the sidewalks of the strip in Las Vegas.

November 9, 2004: ACLU of Nevada defends a Mormon student who was suspended after wearing a T-shirt with a religious message to school.

August 11, 2004: ACLU of Nebraska defends church facing eviction by the city of Lincoln.

July 10, 2004: Indiana Civil Liberties Union defends the rights of a Baptist minister to preach his message on public streets.

June 9, 2004: ACLU of Nebraska files a lawsuit on behalf of a Muslim woman barred from a public pool because she refused to wear a swimsuit.

June 3, 2004: Under pressure from the ACLU of Virginia, officials agree not to prohibit baptisms on public property in Falmouth Waterside Park in Stafford County.

May 11, 2004: After ACLU of Michigan intervened on behalf of a Christian Valedictorian, a public high school agrees to stop censoring religious yearbook entries.

March 25, 2004: ACLU of Washington defends an Evangelical minister's right to preach on sidewalks.

February 21, 2003: ACLU of Massachusetts defends students punished for distributing candy canes with religious messages.

October 28, 2002: ACLU of Pennsylvania files discrimination lawsuit over denial of zoning permit for African American Baptist church.

July 11, 2002: ACLU supports right of Iowa students to distribute Christian literature at school.

April 17, 2002: In a victory for the Rev. Jerry Falwell and the ACLU of Virginia, a federal judge strikes down a provision of the Virginia Constitution that bans religious organizations from incorporating.

January 18, 2002: ACLU defends Christian church's right to run "anti-Santa" ads in Boston subways.

Yes, not only did the ACLU support Christian students' right to religious expression in public schools, they supported JERRY FALWELL.

Ed, over at Dispatches from the Culture Wars, a blog I recommend, points out that the ACLU has actually defended Falwell twice, as well as giving some other examples of the ACLU defending religion.

I almost always agree with the ACLU, whether they are defending religious people whose rights are unfairly restricted or when they're defending the separation of church and state. I urge you all to do some research on their actual cases before passing judgement on them.

The NSA's Terrorist Surveillance Program: Is It Worth The Risk? [Part I]

2006-08-17T21:47:00.000-05:00

The following is the first in a series of posts discussing the NSA wiretap program. The notes will appear as footnotes at the end of each portion rather than at the end. There will be four or five posts in total, spread out over the next week or so. David Kirschner is a good friend whose bio is in the second footnote. Two members of this blog had him as a professor as well - myself and CWY.

THE NSA’s TERRORIST SURVEILLANCE PROGRAM: IS IT WORTH THE RISK?[1]

David J. Kirschner[2]

For years, the United States Government has engaged in covert surveillance and intelligence gathering. Among the most effective methods of conducting such surveillance is through electronic eavesdropping, which is the wiretapping of a telephone or “bugging” of a geographical location. Historically, the government has used electronic surveillance to spy on the former Soviet Union, China and a host of other countries presenting a threat or a perceived threat to our national security. However, the government has also used it against domestic political opponents who posed no national security threat. Administrations from Franklin D. Roosevelt to Richard Nixon permitted, and sometimes encouraged, government agencies to engage in gathering political intelligence. Electronic surveillance methods have also been used on members Congress, numerous non-mainstream and some mainstream political figures, and even Supreme Court Justices. In fact, in the 1960’s, the FBI created a counterintelligence program known as “COINTELPRO,” which was intended to disrupt groups and neutralize individuals deemed to be threats to national security. Targets included the Klu Klux Klan, the Black Panthers and Martin Luther King, Jr.

Obviously, such use, or rather misuse, is categorically unacceptable and unjustifiable. Traditionally, there exists a clear distinction between domestic criminal investigations and matters of involving issues of national security. The former guarantee’s protection to citizens, lawful permanent residents, and even in many cases even illegal aliens, from having evidence obtained in violation of the Fourth, Fifth and Sixth Amendments used against them in domestic criminal prosecutions. Conversely, foreign intelligence gathering has had little, if anything, to do with criminal domestic matters.

With the advent of terrorism and terrorist-related activities, however, exclusive reliance on such a distinction became problematic. Domestic terrorist activities could easily appear to be little more than another criminal case while simultaneously emblematic of an ongoing terrorist campaign against the United States on its soil. The obvious question, then, is whether proscribed conduct is a matter of national security or within the purview of the criminal justice system. If a person, citizen, permanent resident or nonresident, is charged with having violated a domestic criminal statute, they would be entitled to all constitutionally protected rights. When that person and his activities threaten our national security, however, it is an entirely different matter. Arguably then, intrusion of any constitutional safeguards, otherwise taboo in the prosecution of domestic crimes, might well be justified and may even be absolutely necessary to thwart terrorism. And so the pressing question is to what extent, if any, must we afford a foreign power or its agent’s constitutional protections who intend to bring unimaginable death and destruction to us on our soil? Before analyzing this question, however, consider how we are to handle agents of those foreign powers who are also citizens or permanent residents? Should the Justice Department’s criminal justice system have jurisdiction or the National Security Agency?

[1] This article is adapted from a lengthier work which, outlines the United States government’s historical and traditional use of electronic surveillance, analyzes the legal issues surrounding its use in matters of national security and examines some of the legal and practical issues presented by the Foreign Intelligence Surveillance Act (FISA) and its progeny, The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT) Act. I extend my sincerest appreciation to the following law school professors whose scholarly works on this topic provided me with a comprehensive review of these issues and greatly assisted me in preparing the background and foundation of this article: Orin S. Kerr, Associate Professor of Law at George Washington University Law School and former counsel with the Computer Crime and Intellectual Property Section of the U.S. Department of Justice’s Criminal Division. Internet Surveillance Law after the USA Patriot Act: The Big Brother That Isn’t, 97 Nw. U. L. Rev 607 (2003); Peter Swire, Professor, Moritz College of Law of the Ohio State University and John Glenn Scholar in Public Policy Research. Professor Swire also served as Chief Counselor for Privacy in the U.S. Office of Management and Budget during President Clinton’s Administration and was asked by Chief of Staff John Podesta to chair a fifteen-agency White House Working Group on how to update wiretap and other electronic surveillance law for the Internet age. The System of Foreign Intelligence Surveillance Law, 72 Geo. Wash. L. Rev. (2004). Lastly, I wish to express appreciation to my former student, Desiree Cameron, for her research assistance. The views expressed herein are exclusively those of the author and do not represent or reflect the views of the Bronx County District Attorney.

[2] David J. Kirschner is an Assistant District Attorney in Bronx County, New York, where he supervises covert investigations involving the use of electronic surveillance. As a senior member of the Investigations Division’s Rackets Bureau, Mr. Kirschner has successfully litigated cases relying upon evidence obtained through electronic eavesdropping and regularly prosecutes white collar crimes including racketeering, enterprise corruption, extortion, usury, gambling, fraud and public corruption. In addition, he frequently oversees the office’s arrest, intake and arraignment process. Mr. Kirschner also teaches trial advocacy at Hofstra Law School’s National Institute for Trial Advocacy, Cardozo Law School’s Intensive Trial Advocacy Program, and is an Adjunct Assistant Professor of Business Law with the City University of New York at Queens College and Touro College.

Party, Party, Party II

2006-08-17T18:12:00.000-05:00

As somewhat of a follow-up to the previous post, here's a piece from today's Best of the Web (recommended reading for all our readers on a regular basis):

Dem vs. Dem
The sectarian strife within the Democratic Party is moving closer to civil war, the Hill reports:

A group of Senate Democrats is growing increasingly angry about Sen. Joe Lieberman's (D-Conn.) campaign tactics since he lost the Democratic primary last week. If he continues to alienate his colleagues, Lieberman could be stripped of his seniority within the Democratic caucus should he defeat Democrat Ned Lamont in the general election this November, according to some senior Democratic aides. . . . "I think there's a lot of concern," said a senior Democratic aide who has discussed the subject with colleagues. "I think the first step is if the Lieberman thing turns into a side show and hurts our message and ability to take back the Senate, and the White House and the [National Republican Senatorial Committee] manipulate him, there are going to be a lot of unhappy people in our caucus."

This sounds to us like a bluff. If Lieberman wins re-election as an independent, his party will have every reason to make nice with him--not only to ensure that the seat stays Democratic, but also to ensure that the party isn't captured by the Angry Left, the limited political appeal of which would have been demonstrated by a Ned Lamont defeat.
...
Also curiously, we have received two messages from the John Kerry* campaign in as many days raising funds for three Senate candidates. Here's a passage from today's:

If the Bush administration could plan and execute the war on terror as well as it executes its shameless pre-election fear-mongering, we'd all be a lot safer.

That's what strong, principled Senate candidates like Ned Lamont, Bob Menendez, and Dan Akaka are making clear to voters in three of America's closest, high-stakes Senate contests.

What these three have in common is that all support Kerry's cut-and-run approach to Iraq. What Lamont and Akaka have in common is that they are running against Democrats; only Menendez has a serious Republican opponent. Kerry's efforts are less about furthering the Democratic Party than about furthering the Angry Left within the party.

* Who as of Sept. 10 will have served in the Senate for 66 times as long as he served in Vietnam.

That last little paragraph is the juice of this piece: The far-left fringe in this country is not only not focusing on substance all that much, but rather on defeating the "enemy" - in this case, anyone who is not as far to the left as themselves. It will be interesting to see how mainstream Democrats react. Will they be able to take that power and push it against the Republicans, or will they be too busy or forced to fight within their own party? I think it's the latter, hence the previous post.

On a related note, look around the blogosphere to see the reaction to today's [likely to be overturned] court ruling against the NSA wiretaps. The far-left is literally jumping for joy and celebrating that the NSA cannot - according to this liberal Carter appointee who was a Democrat before becoming a judge - tap conversations between terrorists and people within the United States. While it is of utmost importance that the law be followed [and I will put up the series from David Kirschner as soon as I can], it is pathetic to be "thrilled" and "overjoyed" that terrorists are being given increased ability to carry out attacks in this country. The hatred for this President among the far-left is greater than that for those who wish to kill us. Let's repeat that: The hatred for this President among the far-left is greater than that for those who wish to kill us.

It's time to look at our priorities, and it's time mainstream Democrats and liberals took a long look at who their friends are.

Party Party Party

2006-08-15T04:15:00.000-05:00

As the polarization of American politics grows deeper, I've often wondered whether the American political system would finally make a change. Single-issue voters, particularly on the hard left, have seemingly taken over the political landscape and have caused an upheaval of sorts; Ned Lamont defeating Joe Lieberman in the Democratic primary in Connecticut merely the latest, and strongest, example of this.

Though the fringe left has yet to realize it, they simply can't win on a national scale - in fact, it's doubtful that they could win even on a local scale, as Lieberman is expected to defeat Lamont come November. While Lamont won a primary, he did so by less than 4% in a vote that tends to bring out more hardcore supporters than moderates; in a full election that includes independents and conservatives, he will likely get crushed. While the KosKids and their supporters are loud, energetic, and gaining power, their actual stances scare even many Democrats - their full support covers maybe 15-20% of the country, if that. However, because they are vocal and have no qualms blasting even Democrats such as Lieberman and Hillary Clinton, they are slowly tearing apart the Democratic Party. Moderates - and even not-so-moderates - are forced to cater to the KosKids line or risk being blasted from their base; but, having done so, lose all ability to attract moderate voters from either side of the aisle.

So what will happen over the next few years to the Democratic Party? Either it will nominate candidates who cater to the far-left, and then get crushed repeatedly when elections come around; or, they will try and nominate moderates, and hope that they survive their own primaries with enough remaining energy, clout, and money to beat a Republican nominee - and without a base to support them. Whichever direction it chooses is party suicide. As a liberal blogger wrote a few months ago,

"This is something Democrats just can't figure out. It is without a doubt better for the party and the country to have Bob Casey in the Senate than Rick Santorum. It's better to have John Dingell in the House than the Republican alternative (Dingell, a pro-business moderate from Michigan, was challenged in the 2004 Democratic primary by an EMILY's List-supported Liberal).

Our party leaders MUST learn to defy the single-issue groups that define us and realize that the success of the party, and therefore the success of the nation as a whole, depends on supporting candidates who agree with the party base 80% of the time but not 100%."

Unfortunately, it seems too late for this. The single-issue factions have taken the Democratic Party by the throat and they're not letting up.

So what happens from here on? It seems that an incredible change may be on the horizon for American politics. The fringe left may have just blown their chance at gaining a 51-49 advantage in the Senate; as James Taranto noted, this may hurt even more in November:

Suppose the Democrats do win all contested Senate races on Nov. 7, and Lieberman beats Lamont in Connecticut. That would, as we said, give Democrats a 51-49 advantage in the Senate. In order to be elected majority leader, Reid would need every single Democratic vote--including Lieberman's.

Assuming that the Democrats do not get the majority, partly due to a Lieberman win, we'll see a stronger push by the fringe to swing the party even further to the left. This would likely result in any Presidential candidate in 2008 to either be from the far left (Russ Feingold, for example) or someone who will have just barely won their own party's nomination and have spent almost a year trying to defend attack ads (say, Clinton or someone like Ben Nelson). They will also go in without any base support come November '08. The Republicans need to merely put up a half-decent "clean" candidate - who need not even be a moderate - to walk to an easy victory.

The in-fighting that will then occur among Democrats will be loud and unpleasant. 15-20% of the country will be on the far left; 20-30% more "moderate" Democrats. The Democratic Party may realize that winning elections as things stand is simply impossible... and we will finally see what this country could probably have used for a while: A third party.

Moderate Democrats, sick of the direction of the party, will leave it - once and for all. Together with Republicans who are on the fence, they will open up a third, 'middle-of-the-road' centrist party, dedicated to compromise on serious issues. If one assumes that the current demographics imply 20% far left, 25% moderate Democrats, 25% moderate Republicans, and 30% staunch conservatives, a moderate party could expect to draw up to 40% of a national vote - about the same as conservatives. Meanwhile, the fringe left would be a strong 20%, but unable to actually win in almost any election, save a few token Congressmen.

This three-party system could prove to be the best thing to happen in US politics in decades. A moderate party that does its best to distance itself from the fringe will not only strengthen moderate viewpoints around the country, but force the growing conservative chunk of the country to better examine its own opinions. With a strong center, decisions that are better for a large majority will reign for the first time in over 50 years. Compromises on large issues will finally be able to be achieved - with the fringe opinions being quickly excluded and larger issues narrowed down into smaller ones.

It would be wonderful to see... here's hoping it happens. This country is in need of a political makeover - a third party just might be the trick. There needs to be at least 2 viable parties to choose from in an election, and right now, there's just one. May the change begin...

Party, party, party.

In A Parallel Universe....

2006-08-09T15:34:00.000-05:00

Imagine it's December 2000 all over again. The Florida Supreme Court just decided that the recount can continue. Now imagine the U.S. Supreme Court refused to grant certiorari (meaning they don't take the case), and the Florida court's decision stands. What might have happened?

Richard Posner paints (not available online) a picture of what might have happened: The recount continues and Gore wins (Posner actually argues that Gore probably would not have won statistically, but that assumes impartial counters, who don't exist). The Florida Supreme Court authorizes the governor, Jeb Bush, to certify the votes of the electors (who would vote for Gore) are to be submitted to Congress. Bush refuses, as does Florida's legislature under the Electoral Count Act which authorizes the legislature to choose the electors if normal elections procedures fail. The legislature then appoints its own slate of electors. Because the opposing slates are submitted after December 18, which is the cutoff date listed in the Constitution, it's unclear if either slates counts.

Next the ECA requires Congress to meet jointly to count the votes. The two houses do that, and they are later required to certify the votes, but because the House is Republican and the Senate is Democrat by virtue of the 50-50 tie and Gore's tiebreaker until January 20. When the two houses cannot agree the ECA requires the slate certified by the state governor to be authoritative. Bush would likely support his brother's slate, but the state court would hold him in contempt.

The two houses cannot agree which slate to accept, and are unsure what to do if both slates are not accepted. Gore would have more electoral votes, but he would not have a majority. If the Supreme Court stayed out until now, it's likely it would invoke the "political question" doctrine and stay out of this mess too. So Congress is deadlocked.

January 20 comes around and an acting president is appointed. No vice-president has been elected yet, so next in line is the Speaker of the House and the Senate President pro Tempore. Neither would accept because they cannot serve unless they resign their seats and politically that would be a bad move especially for Strom Thurmond, because it would give the Democrats control of the Senate. Next is Madeline Albright, but she can't serve because she's foreign born. Lawrence Summers is next in line as Secretary of the Treasury (guess he wouldn't have been president of Harvard). So Summers, as a weak acting President, controls the country.

The US Constitution provides that the President be able act quickly. As opposed to the legislature or the courts, the President must be on call all the time because a crisis does not take vacations. How effective would our executive branch be with an unelected President Summers and a deadlocked Congress? Imagine if 9/11 happened on January 21. How effective would our response be?

At some point the deadlock would be resolved. But the President would be weak, have no transition, and would come into power after months of partisan bickering. The executive branch would be weak for four years.

In essence Posner argues that the decision was poor but necessary. Pragmatic issues required Supreme Court intervention to stave off the possible crisis. We couldn't have a long transition period without a President because we need a President. Gore v. Bush, in that light, is defensible on pragmatic grounds.

One Advantage Of Big Government Conservativism

2006-08-08T16:33:00.000-05:00

Many conservatives (especially the ones on this blog) decry the expansion of the federal government under the Bush administration. From No Child Left Behind to Ashcroft attempting to use drug laws to override a democratic decision by a state to allow physician assisted suicide, the Bush administration's (and the Republican Congress') greatest flaw has been the massive increase in nonmilitary spending.

But perhaps one big benefit of this policy has been the shift on the left towards federalism. Since Bush's policies are anathema to the left, they are pushing for more state decision making on many issues, especially the marriage realm. John Kerry and most of the Democratic contenders for President in 2004 supported allowing each state to decide marriage policy and therefore whether to marry same-sex couples. A forceful argument proffered by liberals against the Federal Marriage Amendment is that it would impinge on the states' right to decide marriage policy for itself. Listening to Barney Frank speak of state's rights is bewildering and something we could not have possibly expected ten years ago.

Another example is the push by some for a more progressive federalism, a federalism that would deny the government plenary power on all matters. Conservatives have been supporting that for years, and the Rehnquist Court's revival was seen as a triumph (although the "federalist revolution" was scaled back the last few years). Liberals (although not all) always opposed state's rights because the federal government was a better mechanism for achieving their political goals and because the concept was usually supported by racists and bigots who wished to use the Constitution in service of their nefarious goals. Now that the federal government opposes liberal policies, it makes sense that they would shift away from a strong centralized government to one that affords states greater power.

Is the liberal push for federalism merely a tool to push forth their political goals or is the sift more ideological? Liberals argue that their ideology is pragmatic, which would imply that their support for a central government was not ideological. Conservatives, on the other hand, are ideological and support federalism as an end in and of itself (amazingly the Constitution does the same thing). So would a shift by liberals merely mean that pragmatically they've recognized that federalism is a better means to their ends, or does it portend a shift in liberal ideology? Because if it's the latter than all the crazy spending that has characterized the Bush administration is worth it.

(Sources taken from Ilya Somin: Gonzalez v. Raich and the Future of Federalism)

Republicans Support Israel; Democrats Prefer "Neutrality"

2006-08-03T23:59:00.000-05:00

From today's Best of the Web:

A Los Angeles Times poll finds, not surprisingly, that Americans are highly sympathetic to Israel in the Jewish state's conflict with Hezbollah. But there are partisan differences:

The poll results suggested that the Middle East conflict could have domestic political consequences in the 2006 midterm elections and beyond, due in part to a growing partisan divide over Israel and its relationship with the United States. Republicans generally expressed stronger support for Israel, while Democrats tended to believe the United States should play a more neutral role in the region.

Overall, 50% of the survey's respondents said the United States should continue to align with Israel, compared with 44% who backed a more neutral posture. But the partisan gap was clear: Democrats supported neutrality over alignment, 54% to 39%, while Republicans supported alignment with the Jewish state 64% to 29%.

When John Kerry* ran for president, one of his chief talking points was that, as he put in in the first debate, he would "build strong alliances," in contrast with President Bush, whom he accused of having "pushed our allies aside." Yet Democrats are far more likely than Republicans to want to sell out a U.S. ally that faces a threat to its existence.

Ezzie: I think this is important for Jewish voters to keep in mind for the future.

ADDENDUM: To be clear, I sometimes support neutrality when it comes to Israel, depending on what the other option is - for instance, I prefer Bush's "stay out of the way" approach to Clinton's "let's see how we can help". However, the choice here was not in terms of what we should do, but who we should be aligned with. To that, the answer should be "with Israel".

Support from Canadian Opposition

2006-07-26T17:15:00.000-05:00

Other bloggers have been examining the support that Israel has received from around the world in the current crisis. So far, President Bush, the majority Republicans, and the opposition Democrats, have been almost 100% united in their support. But it is worthwhile to see how Israel is faring outside the US.

In Canada, Prime Minster Stephen Harper has been very supportive and has been criticized for that support, especially after Canada was unable to rapidly evacuate the 40,000 Canadian citizens from Lebanon as rapidly as some desired. However, Harper has a weak minority government and it is also worthwhile looking at what the opposition is saying. So I surfed to the opposition Liberal party web site and found that they are currently having what amounts to a primary election for their leadership.

I surfed through each of the candidates web sites and was happy to find statements from six of the eleven candidates that I would consider to be pro-Israel: Joe Volpe, Bob Rae, Scott Brison, Ken Dryden, Carolyn Bennett (with a later clarification), and Maurizio Bevilacqua. Less supportive were statements from Gerard Kennedy and Hedy Fry. I found nothing on the issue from Michael Ignatieff, Stephane Dion, or Martha Hall Findlay.

I am completely unfamiliar with most of these candidates. I remember Rae from his term as Premier of Ontario during the early 1990s (as a member of a different party) and Dryden as a great hockey player (Joe Schick, are you reading this?) but had never heard of any of the others. Any Canadians reading this able to clue us in?

Their convention is November 28-December 3.

UPDATE: 10 of the 11 candidates responded to an interview in today' s Toronto Star:

http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&c=Article&pubid=968163964505&cid=1154037039215&call_page=TS_Mideast_Crisis&call_pageid=1153490686657&call_pagepath=Special/Mideast%20Crisis

Comments after Shabat.

Natural coalitions finally starting to evolve

2006-07-25T11:57:00.000-05:00

The Washington Post today reported that environmental groups are finally starting to realize that they have a lot in common with outdoor recreation enthusiasts in much of the US:

http://www.washingtonpost.com/wp-dyn/content/article/2006/07/24/AR2006072400951.html

I have never understood why environmental groups have ignored this natural common interest. My guess is that the typical Sierra Club member just can't imagine that he has anything in common with someone who belongs to the National Rifle Association. As a result, we now have the most anti-environment President in many decades. Note that even some Republicans in the mountain states are having second thoughts on Bush's develop-energy-at-any-cost policies.

Meanwhile, David Kinghoffer shows cluelessness in yet another area, associating some kinds of environmental concern with godlessness:

http://www.forward.com/articles/8154

Does Mr. Kinghoffer really think that the Rabbinical Council of America is in bed with atheists when they call for reduced oil consumption in part because of the threat of climate change?

http://www.rabbis.org/news/article.cfm?id=100766

Or in their call for environmental education:

http://www.rabbis.org/news/article.cfm?id=100776

What does he think of the Orthodox Jewish organization Canfei Nesharim?

http://canfeinesharim.org

Or the Israeli Shomera organization

http://www.shomera.org

Which has developed curricula for charedi schools

http://www.shomera.org/articles/jpost_16-3-06_sanctifyingtheenvironment.mht

Mr. Kinghoffer works with evangelical Christians; he must know about Sir John Houghton, described as a "senior scientist who is also a devout Christian":

http://www.creationcare.org/resources/climate/houghton_qa.php

Evangelical Christian leaders indeed see that the problem is real:

http://www.commondreams.org/headlines05/0310-05.htm

There are plenty of reasons to blast secularists. Concern for the environment is not one of them; it is a biblical value in both Christianity and Judaism. And when even secular environmentalists teach that there are things more important than the pursuit of material wealth at all cost, it is one that we can agree with even though we may disagree with how they got there.

The New York Times is Biased!!!

2006-07-24T13:12:00.000-05:00

But which way?

Against Israel:

CAMERA has repeatedly demonstrated the deeply entrenched editorial bias against Israel at the New York Times. Whether Israel employs military tactics to protect itself from terrorist attacks, or the peace process is stalled, or it is simply not progressing as quickly as the editorialists would like, even while Israeli civilians are being blown up by Palestinian terrorists, New York Times editorial writers stick to their consistent messageÂblame Israel and whitewash Palestinian responsibility. (Source)

Towards Israel:

A little over a week ago, some members of our organization, If Americans Knew, met with New York Times Public Editor Daniel Okrent to discuss the findings of a detailed study we had completed of two years worth of Times news stories on the Israeli-Palestinian conflict. Okrent was going to be writing a column discussing the paper's coverage of Israel/Palestine, and we felt our study would be an important resource.

...

Our statistical analysis of their coverage, however, showed that there was startling disparity in how deaths were reported, depending on the ethnicity of the victim.

For example, we found that in 2004, at a time when 8 Israeli children and 176 Palestinian children were killed - a ratio of 1 to 22 - Times headlines and lead paragraphs reported on Israeli children's deaths at a rate almost seven times greater than Palestinian children's deaths.

...

Overall, we found that in every single category Times coverage reported Israeli deaths at rates three or more times greater than Palestinian deaths. (Source)

I just picked one example from each side because of the immense quantity of complaining from both sides. To one side, the Times is completely anti-Israel, overly sympathetic to the Palestinians, and leans towards anti-semitism. To the other, the Times is a Zionist propaganda machine devoted to maintaining the illusion that Israel's no more at fault than the Palestinians. And then there are the real hate groups like Storm Front (who I won't link to) with their babblings about the "Jew York Times."

Here's the deal, folks. If you're all the way on one side of a debate, a close-to-the-middle story is going to seem biased against you. The farther from center you are, the more biased it will look.

So please stop writing about how this word or the placement of that picture reveals a deep-seated bias on the part of the Times. Most probably, you're only showing your own bias.

Israel at War

2006-07-16T14:44:00.000-05:00

Plame Sues Libby, Rove, Cheney

2006-07-13T17:37:00.000-05:00

I'm only writing about this because I think it should (but won't) be thrown out out of court. Reading through the court documents, it looks like a calmer Kos posting than a normal lawsuit; it seems that this lawsuit is far more about scoring political points and trying to overshadow the recent statements of Robert Novak which demonstrate that in fact, the administration was not doing anything wrong and was only trying to refute the Op-Ed of Joe Wilson. (It is especially interesting to file this just a few months before the midterm elections, but I don't know enough about it to determine whether or not that hinged on the case Fitzgerald was making.)

What will be interesting is if this case is thrown out of court. The slap to the left will be large and loud, and the reprecussions immense. Another interesting outcome will be the forced testimony of reporters, from Judith Miller to Matt Cooper to Chris Matthews, and how that affects the freedom of the press. As many have pointed out before this, the left has placed themselves into a situation where reporters are no longer going to be able to get away with false allegations from "unnamed sources" - those sources will be revealed and sued. I agree with those that feel this is a terrible outcome, and that the fault for this lies with reporters who are too intent on both getting out a story (and specifically certain stories with certain agendas) and not intent enough on finding out more information. It's a shame, and I hope that those responsible are held accountable.

I'm Married, and The New York Court Got It Right

2006-07-13T14:29:00.000-05:00

Thanks for all the mazel tovs everyone. I'm glad to see my co-bloggers are keeping this blog active in my absence. Maybe one of these days we'll all start blogging at the same time.

Two weeks ago the Court of Appeals of New York ruled that New York is not obligated to extend marriage recognition to same-sex couples. I blogged about these issues extensively as related to the U.S. Constitution (here, here, here, here, and here), and I'm glad to see the court more or less agreed with my Equal Protection argument.

I'm going to summarize my basic arguments in this post, because thanks to the fast day I'm too tired to write up anything original.

The constitutional argument for SSM generally rests on two clauses of the Constitution: the Equal Protection Clause and Due Process Clause of the 14th and 5th Amendments. The Due Process argument is weaker (although under the NY Constitution it is stronger).

The Due Process Clause of the US Constitution has been interpreted to protect fundamental rights, which are rights that are fundamental and deeply rooted in our history (don't ask how a clause that talks about process can be substantive). In this case the question is whether this clause protects SSM. The Supreme Court has already ruled that the clause protects the right to marry. So the question depends on how one characterizes the right involved: should we view the right as a right to marry that is broad enough to include marriages to someone of the same sex or is it a right to marry a member of the same sex? The latter construction would fail the due process test because no one could argue with a straight face that the right to marry someone of the same sex is deeply rooted in our history. If the right is a broad right to marry, then that right would probably be protected.

State courts have split on this question. I've argued that the proper construction is a narrow right because the concept of marriage is inherently linked to its central purpose, which historically was child-bearing (yes, that purpose might be different today). Since two members of the same sex cannot procreate, it would make no sense for the institution of marriage to cover their union. Therefore SSM would not even fall within the definition of marriage, and would have to be characterized as a separate right and would probably not be protected.

The Equal Protection argument is better. In short it goes like this: Jane can marry Bob but Billy can't. The sole reason why Billy can't is because he's male. Hence the law discriminates against Billy on the basis of his gender.

I would construe the situation differently. While Billy cannot marry Bob because they are the same sex, Jane cannot marry Cindy for the same reason. So what the law does is prohibit people from marrying people who are the same sex, and that isn't a classification on the basis of gender. Similarly situated people are being treated equally.

The primary response to this argument is that it ignores Loving v. Virginia where the Court ruled that Virginia's miscegenation laws were unconstitutional because it wasn't enough that both Whites and Blacks were prohibited from marrying people outside their race (as defined by the law). Mere equal application of a law does not suffice to save it.

I believe the situations are distinct. First, Loving is a case about race; the Court has been much more willing to smoke out racial classifications, because they are usually based on an idea of racial superiority. Moreover, the law was intended to discriminate against Blacks. While some Whites were harmed, the law was primarily aimed at keeping Blacks from "infecting" the White blood line. There was a clear intent to classify based on race.

That is not the case with SSM. Both men and women are equally affected by prohibitions against SSM, and the law was not designed to keep either gender in its place (unless you think marriage was designed to keep women in a gender role, which is an argument I do not buy). In fact when the law was written, the authors probably never even thought this issue would arise. There was no intent to classify based on gender.

Last, one could argue that the law discriminates on the basis of sexual orientation. That's probably a good argument after O'Connor's concurrence in Lawrence v. Texas, but sexual orientation is not a protected class and therefore the state only needs a rational basis for classifying. This test is extremely deferential, and is easily passed.

For more, check out Dale Carpenter's series of interesting posts on the decision.

Bush administration makes no changes to America's largest welfare program

2006-07-11T16:43:00.000-05:00

This New York Times article describes the unchanging nature of the defense procurement system. The United States continues to purchase unneeded weapons systems that were designed to fight a no-longer existent enemy.

Many of the weapons systems that are causing the problem were planned back in the Reagan years to fight the Cold War. But there is today no enemy with anything near the technological capabilities of the US and its allies. (Even the former Soviet Union's weapons systems had been well behind the US in capability in most areas by the 1970s.)

Consider the Joint Strike Fighter. There is in fact no combat aircraft anywhere in the world that is a match for the F-15. The Joint Strike Fighter is therefore no better, and much more expensive. And the F-16, much cheaper than the F-15 and still in production, may be a better bargain. In any case, the US can't afford to replace all the F-15s and F-16s with the Joint Strike Fighter.

The last President to try to do something about this system was Jimmy Carter, and he did not succeed. It is almost impossible to stop a new weapons system once it has advanced past the concept phase. Politicians who raise questions can have their commitment to national defense or even their patriotism questioned. But a revolving door of military officers who have to keep the system alive or have their careers ended, the promise of well paying defense contractor jobs in the districts of influential congressmen, and an unwillingness by the last four presidents to do anything condemns our children and grandchildren to pay the bills for this corporate welfare program for generations to come.

If it all resulted in a stronger defense, it might be worth it. But how is a Joint Strike Fighter going to help in the war on terrorism in a way that an F-16 would not?

Why Conservatives Can't Govern

2006-07-05T22:24:00.000-05:00

Unable to shrink government but unwilling to improve it, conservatives attempt to split the difference, expanding government for political gain, but always in ways that validate their disregard for the very thing they are expanding. The end result is not just bigger government, but more incompetent government.

Great article in The Washington Monthly. Via Arts & Letters Daily.

Search hard enough and you might find a pundit who believes what George W. Bush believes, which is that history will redeem his administration. But from just about everyone else, on the right as vehemently as on the left, the verdict has been rolling in: This administration, if not the worst in American history, will soon find itself in the final four. Even those who appeal to history's ultimate judgment halfheartedly acknowledge as much. One seeks tomorrow's vindication only in the context of today's dismal performance.

...

Eager to salvage conservatism from the wreckage of conservative rule, right-wing pundits are furiously blaming right-wing politicians for failing to adhere to right-wing convictions. Libertarians such as Bruce Bartlett fret that under Republican control, government has not shrunk, as conservatives prescribe, but has grown. Insiders like Peggy Noonan complain that Republicans have become--well, insiders; they are too focused on retaining power and too disconnected from the base whose anger pushed them into power. Idealistic younger conservatives bewail the care and feeding of the K Street beast. Paleocons Pat Buchanan and Robert Novak blame neocons William Kristol and Charles Krauthammer for the debacle that is Iraq. Through all these laments there pulsates a sense of desperation: A conservative president and an even more conservative Congress must be repudiated to enable genuine conservatism to survive. Sure, the Bush administration has failed, all these voices proclaim. But that is because Bush and his Republican allies in Congress borrowed big government and foreign-policy idealism from the left. The ideas of Woodrow Wilson and John Maynard Keynes, from their point of view, have always been flawed. George W. Bush and Tom DeLay just prove it one more time.

Conservative dissidents seem to have done an admirable job of persuading each other of the truth of their claims. Of course, many of these dissidents extolled the president's conservative leadership when he was riding high in the polls. But the real flaw in their argument is akin to that of Trotskyites who, when confronted with the failures of communism in Cuba, China and the Soviet Union, would claim that real communism had never been tried. If leaders consistently depart in disastrous ways from their underlying political ideology, there comes a point where one has to stop just blaming the leaders and start questioning the ideology.

The collapse of the Bush presidency, in other words, is not just due to Bush's incompetence (although his administration has been incompetent beyond belief). Nor is it a response to the president's principled lack of intellectual curiosity and pitbull refusal to admit mistakes (although those character flaws are certainly real enough). And the orgy of bribery and special-interest dispensation in Congress is not the result of Tom DeLay's ruthlessness, as impressive a bully as he was. This conservative presidency and Congress imploded, not despite their conservatism, but because of it.

Contemporary conservatism is first and foremost about shrinking the size and reach of the federal government. This mission, let us be clear, is an ideological one. It does not emerge out of an attempt to solve real-world problems, such as managing increasing deficits or finding revenue to pay for entitlements built into the structure of federal legislation. It stems, rather, from the libertarian conviction, repeated endlessly by George W. Bush, that the money government collects in order to carry out its business properly belongs to the people themselves. One thought, and one thought only, guided Bush and his Republican allies since they assumed power in the wake of Bush vs. Gore: taxes must be cut, and the more they are cut--especially in ways benefiting the rich--the better.

But like all politicians, conservatives, once in office, find themselves under constant pressure from constituents to use government to improve their lives. This puts conservatives in the awkward position of managing government agencies whose missions--indeed, whose very existence--they believe to be illegitimate. Contemporary conservatism is a walking contradiction. Unable to shrink government but unwilling to improve it, conservatives attempt to split the difference, expanding government for political gain, but always in ways that validate their disregard for the very thing they are expanding. The end result is not just bigger government, but more incompetent government.

"Ideas," a distinguished conservative named Richard Weaver once wrote, "have consequences." Americans have learned something about the consequences of conservative ideas during the Bush years that they never had to confront in the more amiable Reagan period. As a way of governing, conservatism is another name for disaster. And the disasters will continue, year after year, as long as conservatives, whose political tactics are frequently as brilliant as their policy-making is inept, find ways to perpetuate their power.

There's a lot more. It's a long article.

Another 1/6 Bites The Dust...

2006-07-04T00:41:00.000-05:00

This should have been posted yesterday, but... I didn't really think of it then. Anyways...

All the members of JAJC would like to wish our dear contributor Nephtuli a hearty Mazel Tov on his marriage!! May you share a lifetime of health, happiness, and blessing.

Romach wrote a short post about all the bloggers who were there, too... I actually thought about crashing, but we had previous plans.

Sin Taxes & Hybrid Cars

2006-07-03T22:40:00.000-05:00

Fellow JAJC member Charlie Hall made a side comment in the discussion on the previous post that brought to mind an interesting topic: "Sin" taxes. Sin taxes, briefly, are taxes that are placed on so-called "sinful" acquisitions, such as alcohol or tobacco. According to Wikipedia, they are most often used in cities to raise money for large projects, such as a football stadium.

I think sin taxes are wonderful, and should be utilized more often, albeit carefully. Large sin taxes cause black markets to pop up, much like large income taxes do. When Russia had an extremely large income tax rate, black markets flourished; when it lowered the rate by a large chunk, suddenly more businesses were reporting more of their activities.

But sin taxes are a bit of the best of all worlds: They encourage people to not waste money on goods or activities that are unhealthy for them and for others, and they discourage people from getting involved in those activities in the first place, which may help curb future addicts. However, they still leave people with the choice and ability to buy the goods they wish to if they so choose, retaining the rights of the individual.

I view it as a slight variation on the way the government treats hybrid cars. [For the sake of argument, I am assuming that people view smoking and drinking as unhealthier and more dangerous than using a regular car (as opposed to a hybrid vehicle).] In the case of hybrid cars, the government offers a tax incentive for people to buy a hybrid car over a regular car, by allowing a small tax deduction for those who own a hybrid car. It would be unfair to "punish" everyone who owns a regular car by raising taxes on gasoline or on regular cars, especially gasoline: It is not the "fault" of car owners that almost all cars are made to run on gasoline, that hybrids are so expensive, that alternative transportation is not nearly as convenient, that this has been the standard since cars were invented, etc. Even if one would argue that people could 'do more', and it is nowhere near ideal, I doubt many would feel that people should be forced to pay an extra tax for using gasoline.

However, it does make sense for the government to offer incentives to those who are willing to sacrifice somewhat for a hybrid car. Hybrid cars are still far more expensive than regular cars, with similar models costing between $7,000 and $10,000 more than their non-ecological twins. They also haven't completely cut out the need for gasoline. A relative who worked in the Department of Defense who is quite the conservative (here's a blow to stereotypes) was considering getting a hybrid car last year; after figuring out all the extra costs versus the gas savings and tax incentives, the difference was still so high he simply could not do it. While the tax incentives in this case are not enough to completely make up for the difference (and larger incentives would likely prove to be too costly to the government), at least the small incentives encourage more people to consider hybrids and likely help a few make that leap.

Along the same vein, the government should consider more - but slight - "sin" taxes. I must emphasize that these taxes should be used very carefully... But they should be used. The amount of money people waste and the negative effect smoking and drinking have on the general public (drunk drivers, SIDS, lung cancer, etc.) is astounding. Taxes will force people to think a bit more carefully about what they are doing to themselves and their families. Were marijuana to become legal, that may also be a good candidate for a sin tax; perhaps a compromise could be reached to make it legal (something I have no opinion on) as long as there were a large tax on it to help discourage casual use. Gambling could be another target, though the nature of gambling might preclude the tax having much of an effect. Most of all, the savings to the people who decide not to smoke or drink would be a tremendous step in helping many families get out of poverty, and could provide even further savings to the government in terms of health care and the like.

The difference between hybrids and cigarettes is obvious. In the case of hybrid cars, the government needs to try and help convince people to drive hybrids over the current status quo of gas guzzlers via incentives. In the case of cigarettes, the government should no longer have to "convince" people to stop smoking. Those who are choosing to smoke are doing so despite knowledge of the health risks involved. Instead, the government should help create a disincentive to smoke - by hitting people where it counts, in the wallet. Those who still wish to do so may - but they are going to pay for it now, not just later.

The government should not be in the habit of 'forcing' people to get healthier or take on certain lifestyles; but they should be in the habit of helping to encourage those lifestyles which help everyone and discouraging those which do not. There is definitely precedent for this, such as tax breaks for married couples, and the incentives already in place for homeowners and hybrid buyers, and this is a practice the government should continue to expand.

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

2006-06-30T10:13:00.000-05:00

(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 havenÂt yet defined... With a low-probability, high-impact event like this... If thereÂs 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. (about.com)

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?

How Important is International Law?

2006-06-27T23:39:00.000-05:00

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.

Originalism Explained

2006-06-25T17:00:00.000-05:00

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

2006-06-25T00:14:00.000-05:00

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.

Texas Republican ignorance

2006-06-24T23:54:00.000-05:00

Dovbear, in a recent post

http://dovbear.blogspot.com/2006/06/im-not-christian-can-i-still-be.html

complained that the Texas Republican Party, in their current platform

http://www.n5gar.info/2006-Texas-GOP-Platform.pdf

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:

http://www.uscis.gov/graphics/aboutus/history/teacher/oath.htm

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.

New Term Needed

2006-06-20T13:22:00.000-05:00

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

2006-06-20T10:10:00.000-05:00

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.)

Prolonged Detention of Illegal Aliens Upheld

2006-06-16T13:52:00.000-05:00

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.

Bush Halves Deficit - Three Years Early

2006-06-14T15:58:00.000-05:00

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?

2006-06-14T01:14:00.000-05:00

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.

More on the Estate Tax

2006-06-09T09:37:00.000-05:00

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

2006-06-09T02:20:00.000-05:00

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

2006-06-09T01:23:00.000-05:00

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.

Diversity and Racism: Two Sides of the Same Coin

2006-06-06T09:47:00.000-05:00

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.

Reward for the Hereditary Elite . . .

2006-06-05T09:00:00.000-05:00

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.

Flag Burning: A Hot Issue

2006-06-03T20:48:00.000-05:00

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)

The Ten Commandments and the Jews

2006-06-01T14:51:00.000-05:00

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:

Christian Zionism is NOT a Jewish position

2006-05-28T10:37:00.000-05:00

The Jewish Press featured a front page essay by Kathryn Jean Lopez, not on Judiasm, but endorsing a particular minority viewpoint within Christianity:

http://www.jewishpress.com/page.do/18155/Understanding_Christian_Zionism.html

Rov Soloveitchik, in his famous essay, "Confrontation", warned Jews against theological diaglogue with non-Jewish religions:

http://www.bc.edu/research/cjl/meta-elements/texts/center/conferences/soloveitchik/

The Jewish Press itself had recently criticized Rabbi Avi Weiss for actions that they claim cross the line set by the Rov:

http://www.jewishpress.com/page.do/17888/Warm_And_Fuzzy_%22Halacha%22.html

So I was particularly surprised to see something that went far beyond dialogue, but an open endorsement of a particular theological position that is a subject of major disagreement among Christian sects today. Indeed, it is this theological dispute that is related to interpretation of end times prophesies, rather than anti-Semitism, that may be at the root of the divestment movements within some Christian sects; here is a position paper from one.

http://www.pcusa.org/worldwide/israelpalestine/christianzionism.htm

In addition, Ms. Lopez brushes off the fact that many of those same Christian Zionists are spending huge amounts of money to convert Jews to Christianity and have not rejected the idea that Christianity has replaced Judaism in God's eyes. The largest Protestant sect in the United States, the Southern Baptist Convention, has through its International Mission Board targeted over five million Jews for conversion just outside North America and openly admits such on its internet site. The sect supports "messianic" congregations and publishes aids to help missionaries. Ms. Lopez also defends Pat Robertson, a Southern Baptist minister whose statements can at best be described as bigoted, as pointed out by blogger DovBear:

http://dovbear.blogspot.com/2006/05/casual-anti-semitism.html

In addition, Ms. Lopez blurs the differences between evangelical and Jewish positions on abortion, a point described in detail by Rabbi Barry Freundel as quoted by Rabbi Gil Student:

http://hirhurim.blogspot.com/2005/03/abortion.html

We do ourselves no good by taking positions on Christian theological positions, particularly when they are held by people whose institutions are actively trying to destroy the Jewish people. There are Christian Zionists who disavow such; I blogged about one, Pastor John Hagee, recently:

http://charliehall.blogspot.com/2006/05/evangelical-leader-accepts-jews-as.html

I see no reason not to accept Pastor Hagee's support. But I see no reason to get involved in the intra-Christianity arguments between evangelicals Christian Zionists and their opponents by taking a position. There have been many liberal Protestants in the past who were very supportive of Israel and Zionism such as Rev. Reinhold Niebuhr, Rev. Dr. Martin Luther King, Jr. and Bishop John Shelby Spong. Open endorsement of their theological opponents is a slap in their face as well as a violation of Rov Soloveitchik's strong admonitions to keep out of such disputes.

Restrictive immigration is NOT in the interests of Jews

2006-05-28T09:59:00.000-05:00

In this week's Forward, David Klinghoffer, who identifies as an Orthodox Jew, uses an assimilationist argument to endorse "high hurdles" for immigrants to the United States:

http://www.forward.com/articles/7856

He objects to immigrants flying Mexican flags, not wanting to speak English, and he supports the idea that a "self-respecting culture" make strong demands upon those who wish to join it.

This is an argument for assimilation into the broad fabric of American society. As Jews, to do so means extinction. I regularly attend religious services that are held in Hebrew, not in English, where the flag of the state of Israel and not the flag of the United States is flown, where we recite prayer for the state of Israel, but not the United States, where we say prayers for the IDF but not the United States military, and Hatikvah, and not the Star Spangled Banner, is said. And I know Jews who continue to speak Yiddish or Hebrew at home, rather than English. Does Mr. Klinghoffer really think that we need to give up these customs in order to be good US citizens? Or does he argue for a double standard, one in which Jews ought to be different but not Mexicans?

One of the great things about the United States is that it does not require minorities to give up their identity. Jews have benefitted tremedously from this; there is no place in the world where we are more free to practice traditional Judaism. I currently live in a mostly-Irish neighborhood; many homes and businesses proudly display their green, white, and orange. Until a year ago I lived in a mostly-Italian neighborhood and it was very common to see red, white, and green and to hear Italian spoken on the street. Next week, many Jews will march in the Salute to Israel parade wearing blue and white and waving the flag of Medinat Yisrael. How can Mr. Klinghoffer object to the red, white, and green of Mexico?

And Jews, who have been kicked out of most of the countries that once welcomed us, benefit from open borders! Had there been ANY country with truly open borders in 1940, we would not lost six million. Mr. Klinghoffer's advocacy of restrictive immigration is another example of the misidentification of Jewish interests with that of the non-Jewish majority, another example of the dangers of galut.

Something Rotten in the USA

2006-05-25T10:02:00.000-05:00

(via Crooked Timber.)

Here's what they're in for (as of 1996):

(source: Bureau of Justice Statistics Bulletin: Prisoners in 1996 pdf)

We're failing somewhere.

I believe that a large part of it is due to conservative policies. Conservatives tend to see social issues as moral ones. They emphasize "personal responsibility" and decry any attempt at understanding criminals as justification for their behavior. Just as many conservatives push "abstinence-only" sex education despite evidence that it's less effective than comprehensive sex ed, they push what I'll call "incarceration-only" social policy despite its ineffectiveness.

The prime example of this "incarceration only" social policy is the way we have been fighting (and losing) the so-called "War on Drugs." Whereas liberals would like to focus on providing education and opportunity to at-risk teens and treatment for users, conservatives focus on just locking people up. Politicians who disagree with the War on Drugs or even suggest that what we're doing isn't working are labeled "soft on crime."

Liberal policies of helping the poor through education and economic opportunity (for many youngsters, selling drugs is one of few economic opportunities currently available) combined with drug decriminalization, drug treatment programs, mental health care, and sensible gun control would do a much better job at reducing crime -- and probably for much less money. I'm no pollyanna that thinks we can cure all addicts just by sending them through a treatment program, but we can do better than just locking them up for a decade with a bunch of violent felons and then releasing them with no money, no job, and no prospects.

Why Conservatives Should Oppose the Federal Marriage Amendment

2006-05-24T17:04:00.000-05:00

In June, the House will again revisit the Federal Marriage Amendment. What the Amendment does, in essence, is define marriage nationally as a union between a man and a woman and clarify the Constitution so it does not require granting marital benefits to same-sex couples.

Is the FMA a good idea from a conservative perspective? I believe not. Conservative thought assumes that fundamental social questions ought to be left to the legislatures of each of the fifty states (which is why most conservatives opposed the Supreme Judicial Court of Massachusetts imposing same-sex marriage on the citizens of Massachusetts).

Federalism assumes that each state is better equipped to determine the desires of its inhabitants. If a minority of that state disagrees with a policy, they are always free to "vote with their feet" and go to a state with a different policy. For example, if Kansas passes a law restricting abortion, women in that state can go to New York, where abortion laws are probably less onerous (I am assuming these laws to be facts; I don't really know much about the abortion laws in those states).

The FMA defines marriage nationally, denying each state its opportunity to fulfill the wishes of its inhabitants. If in California they want full recognition of same-sex marriages, why not allow it? People who are opposed to same-sex marriages can always move to Texas, a state that amended its constitution to prohibit gay marriage. Why not give individual states the choice to decide?

One argument in favor of a constitutional amendment is that states are obligated to recognize other state's marriages. So if New York recognizes same-sex marriage, Hawaii might be required to recognize that marriage under the Full Faith and Credit Clause of the Constitution. Even worse, residents of New York might go to Hawaii and get married, basically circumventing the whole idea of federalism. One state could decide marriage policy for the whole nation.

This argument fails for two reasons. First, the Full Faith and Credit Clause has been interpreted to include a public policy exception, where a state could deny recognition because the marriage strongly runs counter to the state's interests.

Moreover, even if the public policy exception would not be applicable in this case, that only leads one to conclude that the Constitution should be amended to give states the ability to pick and choose which marriages they wish to recognize. The Defense of Marriage Act purports to do that, but DOMA is on shaky legal grounds. A constitutional amendment that constitutionalizes DOMA would seem more apt. Each state could then decide the definition of marriage and no other state would be bound by that state's marriages.

Some principled conservatives might support the FMA because they feel the judiciary will step in and find a right to marriage in the Constitution (or that the right of marriage in the Constitution is broad enough to include SSM). That is a fair point. But given the Supreme Court's current structure, I fail to see any way the Court would force SSM on all the states. That just seems implausible right now. That concern is not strong enough to override the principles of federalism, something every conservative should support.

Death & Taxes... Or Both

2006-05-24T14:23:00.000-05:00

There is an old famous line that there are only two guarantees in life: Death and taxes. Then, of course, there is the combination of all that is cruel: The estate tax.

Another blog, DovBear, recently had a series of posts regarding the estate tax. The best arguments were not from the posts, however, but rather from the comments section, in a debate between Michael [who is pro the estate tax] and Moshe Potemkin and myself [who are against it, or at least feel it should be limited].

Near the (current) end, Michael made an interesting comment: [edited and split for clarity]

As I explained, the right way for government to tax people is to figure out how much the government needs to spend, and divide that amount by the amount that each individual benefits from that expenditure, and tax each individual accordingly.

This can be done in any number of ways. Consumption tax, wealth tax, income tax, etc. In our society, we have a mixed system.

To this I responded:

I'm most in favor of a consumption tax, which is the closest to actual measurable gain that a person gets.

This would be an interesting aside, particularly for accountants and economists, but the main points in this discussion are on a different tack and were still to come. Michael also argued...

So, the only relevant arguments with regard to taxes are ones that relate to the question of

a) Is the citizen being taxed more than the benefits he gets from government? and
b) (if a is true) Is it moral for the majority to decide to take this citizen's money for the expenditure on which it is being spent? and
c) Is the tax going to have a negative impact on revenue by creating disincentives to wealth building from which the tax is drawn?

I thought these were interesting points, and I responded:

a) Impossible to tell. Always. And it's even harder to weigh individual gains of one person against the other: For some, welfare/WIC/whatever is literally keeping them alive. Should they then pay more taxes? Therefore, this factor cannot be used.

b) Even if you disagree with my conclusion on (a), I don't think so, though obviously DovBear does. There's an old joke: If a man would point a gun at someone in a parking lot and take all their money, that's called a mugging. If he first explains to the other people in the parking lot how he's going to divide it up among the rest of them, that's called democracy in action.

c) Irrelevant, once the first two reasons are not applicable. Though in response, the disincentives do exist, even if at a lesser scale than (say) raising income taxes.

Obviously, we need a fair tax system in this country in order for it to run properly. But is an estate tax a fair [or necessary] tax? Many people pointed out the obvious "double taxation" that exists on [most] portions of an estate, though Michael argued that the concept of double taxation is meaningless. It is fair to say that most people disagree with Michael on that, though he did bring an intriguing argument.

Michael did make a strong argument against another idea many were pushing: That an estate tax creates a disincentive to work. In fairness, the disincentive is far less than (say) typical income taxes, and Michael acknowledged that in those cases there is a clear disincentive to work when taxes are high. But the economic gains from the estate tax, he argued, are greater than that which is lost because of the disincentives from an estate tax. This is debateable and not truly measureable, as it is hard to determine whether some businesses are adversely affected by early retirement and similar occurences.

But one aspect which is very important that was not taken into consideration is how the taxes must be paid. Estates are not made up of pure liquidable money. They are made up of businesses, stocks, investments, real estate, and the like. In order to pay a 40-50% tax on an estate, the heirs may be required to sell off major portions of a business. This would likely result in a terrible economic effect, as the stability of both large and small companies which have majority owners would be shaken. Investors would be less willing to invest in companies with older CEO's, afraid that a death may result in the company having to sell itself, and companies would not be able to produce nearly as much. Workers would be laid off as some companies would simply decide to shut down portions of its operations in order to pay the taxes.

It will not be the tax itself that has an adverse effect on the economy, it will be the payment of those taxes. A large estate tax is certainly not wise, in addition to the arguments above that it simply is not a fair tax. Even if one disagrees and feels it is a fair tax, the tax should be as minimal as possible so as to ensure businesses do not suffer from a lack of stability. Otherwise, the tax hurts far more than it helps.

EDIT: Reading this post again an hour later, I realize that this was not the most clearly written post. I apologize, but I'm going to leave it as is. If you are having trouble understanding any of the points I was trying to make, please note as much in the comments. Thanks.

Democracy and Originalism

2006-05-23T13:35:00.000-05:00

For decades scholars, judges, and legislators have debated how to properly interpret the Constitution. In the mid-80's conservatives scholars started pushing an approach called "originalism" or more accurately "textualism-originalism" The current (and best) understanding of the term is that judges should look at the plain meaning of the text and if the text is unclear they should interpret it based on the original understanding of the people who lived at the time. For example, the Eighth Amendment prohibits "Cruel and Unusual Punishments." Originalists interpret that clause according to the general understanding of what was cruel and unusual in 1791.

The most common justification for originalism is that it constrains judicial discretion. The Constitution is fairly vague and open-ended and subject to a multitude of interpretations. When reviewing a statute to see if it comports with the Constitution, courts are looking to see if they should overturn the will of the democratically elected legislature. If a judge does not have a methodology, he will substitute his own judgment for the legislature's and that is a form of judicial lawmaking. If one believes that the people's representatives should make laws and not nine men in black robes, he should support some form of judicial methodology.

Why originalism then? Laws are made for their time. While a Constitution is supposed to be designed for future generations, it is a public act of that time and is best understood based on the time it was enacted. So originalism both limits judicial activism and interprets the Constitution according to its most proper understanding.

Originalism is not perfect. It is difficult to ascertain how people living well over two hundred years ago understood a specific clause. It does not completely solve the judicial activism problem because judges are still able to frame the question on a higher level of abstraction and avoid the whole question. It does little for us when the phrase is ambiguous. But despite all these problems, no other mode of constitutional interpretation is as effective in protecting democracy from judicial oligarchy.

Polygamy, Incest, And Bestality

2006-05-23T09:39:00.000-05:00

The Parade of Horribles (also known as the slippery slope) is often invoked as a reason not to permit X, as allowing it will eventually lead towards permitting Y and Z. Currently, the most frequent use of the Parade of Horribles is in defense of laws prohibiting sodomy or gay marriage. If it is unconstitutional to criminalize sodomy (as the Supreme Court said in Lawrence v. Texas) then why end there? Will polygamy, bestiality and incest be found to be a Constitutional right as well? Lawrence said that it is unconstitutional to criminalize the private actions of two consenting adults. So why not three consenting adults? Or two adults that happen to be related to each other? Or a man and his pet?

Not to worry, say many legal experts. There are valid reasons to prohibit them, while there was none for sodomy. There are strong social reasons to ban polygamy, even all the parties are acting under their own free will. Polygamy often involves marring girls at a young age, while they are still teenagers, where they have little say in their arranged marriage to a man much older than them. Also, polygamy results in a glut of single males, as for every man who takes an additional wife, another man must remain a bachelor. Incest obviously raises health issues, genetics get all screwed up when relatives have children. As for bestiality, the animal can’t consent, so it would be considered animal abuse, so it could remain prohibited.

I agree with the reasoning of polygamy and incest, but I think may people miss the point when it comes to bestiality and animal abuse in general.

Prohibiting bestiality can not rest on the lack of “consent” from the animal. We don’t require consent from a cow when we slaughter it and carve it into roasts and steaks. We don’t ask for consent from a snake when we kill it and use its skin to make shoes and handbags. We ban bestiality because of what it says about a person who engages in the activity.

The same is true for laws prohibiting animal abuse. We allow pharmaceutical companies to test their products on animals. We allow hunters to shoot animals just for the sport of it. There are some activities that hurt and harm animals, and yet we permit them, because they don’t indicate anything wrong with the person doing the harming and killing.

But we don’t allow people to torture animals just for the fun of it- not because it hurts the animals, but because it says something is wrong with the human. Society has decided that this kind of activity is not to be tolerated, not for the animals sake, but for humanity’s sake. And there’s no difference between hurting an animal for fun, and having sex with it for pleasure.

But under the reasoning of Lawrence, what a person does in his bedroom is none of the government’s business. The government has no right to pass laws that dictate morality in how a person seeks sexual satisfaction. I don’t see how, based on the understandings of bestiality and animal abuse laws, how banning bestiality can still be Constitutional. And that is the problem with Lawrence v. Texas, where the Parade of Horribles may actually come true.

Why Bush isn’t as out of line as most liberals think

2006-05-22T12:48:00.000-05:00

Much has been written about the Bush administration’s supposed infringements of civil liberties in the name of the War on Terrorism. In a future post I will discuss that so-called War. However, I think it is useful to compare Bush’s actions with the actions of other wartime presidents.

Consider what the Bush administration has done:

Electronic eavesdropping

Collection of telephone records

Suspension/elimination of civil liberties for “enemy combatants”, a legal category that no one had ever heard of before the Bush administration

The Patriot Act (which was actually passed by Congress)

Much of this are of dubious legality.

However, consider what other Presidents did in time of war. First, Abraham Lincoln suspended habeas corpus. Not even Bush dared do that – when the Supreme Court ruled against him, he dared not defy its ruling. But Lincoln did just that! The Supreme Court’s final word on that issue set a very high barrier to any President ever to try that again.

Now fast forward to the 20^th century. During World War I, Woodrow Wilson jailed dissidents such as Eugene Debs under the Espionage Act of 1917, the very same law that is today being used to prosecute two former employees of AIPAC. Debs had been one of Wilson’s opponents in the 1912 Presidential election. Could you imagine Bush prosecuting Ralph Nader today? And what immediately followed the war was the worst Red Scare in U.S. history. Under the direction of then-Attorney General A. Mitchell Palmer and his assistant J. Edgar Hoover, warrantless searches, confiscation of mail, destruction of property, deportations of legal immigrants (many to Soviet Russia where they were eventually shot by Stalin), and mass roundups of suspected leftists became the norm in America. Joe McCarthy was mild by comparison – all he did was cost people their jobs. Even Bush has not dared do this. And most of the worst excesses of the Palmer Raids took place in 1919-1920, after the war had ended. Anyone see a parallel between the Red Scare then and the Islamic Scare today?

Franklin Roosevelt also supported massive violations of civil liberties, most notably the internment of Japanese-Americans and the confiscation of their property. But he also used the IRS to target at least one prominent political opponent, publisher Moses Annenberg (who was an inviting target in part because he didn’t have a particularly clean past), engineered the replacement of Henry Ford with his grandson, Henry Ford II, as head of Ford Motor Co., and seized many of the assets of Montgomery Ward, replacing its chairman, Sewell Avery, who was also a political opponent.

Thus Bush’s actions are not excessive compared to at least three wartime presidents. There is, however, the question of whether the United States really IS at war now. That question will be addressed in a future post.

Al Gore in '08

2006-05-22T11:36:00.000-05:00

The Democratic longing for Gore to run is all over the internet, spurned on by his movie, An Inconvenient Truth. (Trailer.)

But isn't Al Gore the same boring, supercilious policy wonk who coudn't ride to (statistically significant) victory after being part of an administration that presided over eight years of peace and prosperity? What makes people think he stands a better chance now, especially since the Republican nominee will likely be a stronger candidate than Bush was in 2000?

The obvious reason is that nobody save Hillary thinks she can win the presidency and Democrats are grasping for anyone who can beat her in the primaries. The next obvious reason is that Gore has transformed himself from a robotic, poll-driven, insubstantial candidate to a passionate, inspiring, and human figure. There is truth to both of these reasons, but I don't think they quite capture Gore's newfound appeal.

Sebastian Mallaby, in today's Washington Post, raises a more plausible explanation: that after six years of the Bush administration's "contempt for expert opinion on everything from Iraqi reconstruction to the cost of their tax cuts," "President Bush and the congressional Republicans have created a Ross Perot moment: a hunger for a leader with diagrams and charts, for a nerd who lays out basic facts ignored by blinkered government."

Although his image has improved by being unshackled from the whims of pollsters and image consultants, Al Gore remains at heart a wonk, a "nerd." But in 2008, that might turn out to be an advantage.

In 2000, many swing voters went to Bush because of, essentially, his personality. Bill Clinton was still extremely popular and swing voters weren't unfavorable towards the Democrats on most of the issues. It was personal likeability which swung the election. The media made a big deal out of the fact that people "would rather have a beer" with Bush than with Gore, and Gore undoubtedly lost votes in the debate when he sighed derisively and seemed like the pompous nerd in class that everybody hates.

In 2006, the global warming issue, which happens to be Gore's passion, is also the perfect symbol of the difference he offers from the Bush administration. "That the earth is warming, glaciers are melting and sea levels are rising at an accelerating pace -- and that these changes are driven at least partly by fossil-fuel consumption" is a fact accepted by the overwhelming majority of scientists -- and by a majority of Americans -- yet Bush and the Republicans have trouble admitting it.

Candidate Bush acknowledged that climate change was a problem; once elected he denied it; then he denied the denial but refused to let his administration do anything about climate. Lately he has talked about ridding the nation of its oil addiction, but that's because oil finances Arab extremism. Bush has been silent on the link between oil and global warming.

Meanwhile, [other Republicans] have been vocal. James Inhofe, the Republican who ironically chairs the Senate environment committee, has described global warming as the "greatest hoax ever perpetrated on the American people." He avoids scientists who might put him right: His star witness at a hearing last year was Michael Crichton, a science-fiction novelist.

On its own, global warming is still not an issue enough Americans care about to turn an election. Yet as a symbol of all that is wrong with the Bush administration and other Republicans, it's powerful.

[A]fter years of governmental bungling, of willful indifference to truth, the national mood seems to be changing. Voters have seen that nice guys can screw up. And technocrats with diagrams and charts have never seemed so interesting.

In 2008, the voters may just care more about a candidate's willingness to hear and speak the truth than about who they'd rather drink with.

Here's hoping.

Abortion Poll & Law

2006-05-19T12:47:00.000-05:00

The discussions on the post below this immediately brought to mind a number of issues, but one that stuck out in particular was abortion. Here's a reprint of a post that I wrote a few months ago.

Abortion Poll & Law

(via Drudge)

ABC and the Washington Post carried out an interesting poll recently. Normally, I like looking at polls, but pay little attention to them, as they focus on short-term feelings. Polls that ask about general opinions, however, tend to be more accurate, and this poll was far more interesting.

The poll was about Justice Samuel Alito, and asked whether people think he should or should not be confirmed. A decent majority, 54% - 28%, felt that he should be confirmed. What was more interesting, however, was what people thought about abortion.

Roe v. Wade, which I previously discussed here and here, is obviously the most discussed subject. Here's the chart of those polled:

Uphold Roe Overturn Roe

All
61%
35%

Women
64%
33%

Men
58%
37%

Democrats
70%
27%

Independents
69%
29%

Republicans
47%
47%

Liberals
73%
25%

Moderates
72%
26%

Conservatives
44%
50%

No Religion
86%
12%

Catholic
59%
37%

Protestants: Evangelical
42%
53%

Protestants: Non-Evangelical
75%
22%

Weekly Churchgoer
41%
54%

Monthly Churchgoer
61%
36%

Less Often/Never
78%
19%

Nothing particularly surprising in those results. What is far more interesting, though not surprising, is what followed:

Roe and Restrictions

Although 61 percent would want Alito to vote to uphold Roe, opinion on restricting its scope is more fragmented. While 45 percent of Americans want the court to leave access to abortion as is, about as many, 42 percent, want it harder for women to get abortions. Far fewer, 11 percent, want abortions easier to obtain.

Attitudes on restricting access to abortion are essentially identical among women and men, but again vary sharply by political affiliation, ideology and religiosity.

It seems that more people would like abortion to be much more difficult to do, but won't overturn Roe v. Wade because they feel that it's better to have it legal for those who need it than completely illegal (my personal stance). The next part was more specific:

Basic Measure

In the most basic measure of attitudes on abortion, 56 percent say it should be legal all or most of the time, while 41 percent say it should be all or mostly illegal. Those numbers in this survey precisely match the long-term average in 18 polls across the last decade.

Few Americans take either extreme position in the abortion debate —17 percent say abortion should be legal in all cases, which is five points below the 10-year average, and 13 percent say it should be illegal in all cases, which about matches the average.

That leaves two-thirds in the middle, saying abortion should be legal in some cases. The debate is about what those cases should be — 40 percent say it should be legal in most cases, 27 percent say illegal in most cases.

It is obvious what the views are of those who want it to be completely legal, illegal, or mostly illegal. Those who think it should be mostly illegal likely feel it should be permitted in situations where the mother's safety is threatened, rape, incest, and perhaps a few other cases (and perhaps not all of those). Those who think it should be mostly legal, however, are hard to pin down: My assumption would be that they feel it should be legal, but they are against late-term abortions, such as those carried out after a certain point (perhaps 20 weeks, perhaps even earlier).

The reason most people are reluctant to overturn Roe v. Wade is they are afraid it will result in all abortions being illegal. I don't think this is the case: It's a poorly written ~~law~~ decision, and should be overturned. In its place, laws about about abortion should be written, specifically stating that abortions after a certain point should be illegal, except for certain, specific, exceptions. Anytime those exceptions are used, and there is reason to think the law may have been abused, it should be reviewed to ensure that it is not being abused, with a substantial burden of proof necessary (perhaps beyond a reasonable doubt) to convict. This is to allow those carrying out these necessary abortions to worry about the mother's safety first and not being put in jail.

I imagine that most Americans would be very satisfied with such a law, as it will limit many unnecessary and immoral abortions but protect them when necessary. The cases that are "in the middle", so to speak, can be debated and perhaps voted upon - but the extremes, at the least, must be covered. Here's a case in point, from James Taranto's Best of the Web last week: (I had wanted to discuss this, but my post got erased.) [Link: Scroll down halfway]

Late-term abortion is serious, hard-core. At 24 weeks, a fetus is at the same stage of development as those gruesome images shown on pro-lifers' protest placards. "The last woman I hosted showed me her sonogram," says Jennifer, a 26-year-old host who lives in Carroll Gardens. "Then she pointed out that the fetus was a boy. God! I didn't know what to say.

Neither do I.

Technorati tags: Abortion, Roe v. Wade, Alito, Poll, James Taranto.

A Republican Monopoly On Values?

2006-05-18T03:31:00.000-05:00

In today’s Washington Post, George Will asks the question “Just who is a values voter?” The phrase has certainly become a media codeword for social conservatives, but, by its terms, is meaningless. Absent the outright purchase of votes as is often alleged by any side of the aisle during elections season, the act of selecting a candidate or deciding on a referendum is by definition an expression of the voter’s values.

Says Will:

An aggressively annoying new phrase in America's political lexicon is "values voters." It is used proudly by social conservatives, and carelessly by the media to denote such conservatives.
…
It is odd that some conservatives are eager to promote the semantic vanity of the phrase "values voters." And it is odder still that the media are cooperating with those conservatives.

Conservatives should be wary of the idea that when they talk about, say, tax cuts and limited government -- about things other than abortion, gay marriage, religion in the public square and similar issues -- they are engaging in values-free discourse. And by ratifying the social conservatives' monopoly of the label "values voters," the media are furthering the fiction that these voters are somehow more morally awake than others.

Today's liberal agenda includes preservation, even expansion, of the welfare state in its current configuration in order to strengthen an egalitarian ethic of common provision. Liberals favor taxes and other measures to produce a more equal distribution of income. They may value equality indiscriminately, but they vote their values.

So why has the label so persistently adhered to social conservatives? To some extent, the label works so well because social conservatives have gainfully framed their politics as morally superior. The conservative revolution, begun by Reagan and solidified with the wild success of Contract with America, derived its success by casting itself as a counterpoint to the ineffectual largesse of liberal spending on issues promoted by the misguided idealism of the left. Like it or not, exit polls conducted during the 2004 elections revealed that 22% of voters listed “moral values” as their primary issue in selecting a candidate . Of these, 80% voted for Bush. Of course, this data does not necessarily reveal that Bush supporters have a monopoly on moral values. Surely voters who selected multilateralism, or any other hot button issue in the campaign, did vote their morals. It does show, however, the wild success the right has had in casting themselves as morally superior to a sizeable segment of the American population. (Or at least the segment of the American population that votes. Rather than assume that those who choose not to vote are morally inferior to voters, I will be charitable and consider that a moral choice as well.)

But you cannot blame Republican genius (e.g., Messrs. Atwater and Rove) at framing issues for the success of this label. Even Bill Clinton had to position himself on the center-right of the Democratic political spectrum, and much of his success derived from the strategy of triangulating White House policy with the liberal mainstream of his party. Welfare reform and the Defense of Marriage Act, the premier acts of triangulation, were geared specifically to presenting his presidency as a counterpoint to two issues that have traditionally been the bulwark of the Democratic party: using government revenue to solve social ills and promotion of gender politics.

The success of the label also points to the right’s ability to promote its agenda as proactive and concrete. The Democrats seem to have settled into the role of an opposition party, but have failed make the final leap that allows an opposition party’s transition into a governing party. That the party has failed to produce a concrete agenda is a common Republican charge and one often repeated by Democrats too. To some extent, this can be blamed on the lackluster, or even the absence of, party leadership. The party selected Howard Dean as their chairman, and he has thus far failed to beat Republican fundraising success. That such a capability was even touted as a primary selling point the party rank-and-file, is even more telling. Where is the ideological leadership? Dean was a little-known candidate who marked his turf with his ideas, often espoused quite loudly, but it is abundantly apparent that he did not convince the mainstream of his own party to select him for his ideas.

At the end of the day, the left’s failure can be read as either a fundamental shift in the political realities of the United States—that today’s voter does see the right’s agenda as morally superior to the lefts, or it can be read as the left’s failure to counter an effective Republican message machine. The mid-term elections are coming up, but they may not be the best indicator of the reality on the ground. Mid-term voters are notorious for punishing the party in charge. A better gauge of reality would be the 2008 elections. The left will have a real chance to both formulate a sellable platform and a chance for someone—anyone—to assert leadership of a headless party.

Endnote (Courtesy of Ezzie):

This article is a perfect way in which to start off this blog. It behooves us to recognize that those who do disagree with us do not do so because they do not have values; rather, they do not share the same values as we do. Or perhaps they do share those values – but they feel that the best way to achieve or protect those values is not the same as our own. Our discussions must be predicated on this understanding and recognition of each other’s values. Our purpose is to see where are values overlap and where they differ, and in what ways we can reach a compromise when it is the latter.

Welcome to Just Another Jewish Conspiracy!

2006-05-18T03:25:00.000-05:00

Welcome to Just Another Jewish Conspiracy!

For our maiden post, we thought it would be a good idea to let our readers know what to expect and to introduce ourselves. Given the somewhat fragmented presentation of political debate and punditry in the J-Blogosphere, we thought it would be a good idea to create a blog authored by several bloggers representing diverse viewpoints.

Our commitment is to maintain a quality level of analysis and an avoidance of the hit-and-run style of commentary that is the scourge of political blogs. People on the left and the right can agree on at least one thing—political discourse in this country is as polarized as ever. Therefore, we are also committed to maintaining an atmosphere of comity, both amongst each other and towards viewpoints with which we disagree. Hopefully this won’t take the fun out of arguing on the internet that we have all come to love.

And now to the Jewish part. Just as our politics are different, so are our hashkafic outlooks. All of us take our Jewish identities seriously and while religion should not make or break an argument over policy, it is simply impossible to separate our religious experiences from our view on life, love, and politics.

Finally, as part of our commitment to presenting differing viewpoints, we hope that you will submit guest posts on issues we miss , on aspects we may not have covered, or if you wish to present an alternative viewpoint. All we ask is that your post be well-thought out, well-written, respectful, and polite.

-Just Another Jewish Conspiracy

	Uphold Roe	Overturn Roe
All	61%	35%
Women	64%	33%
Men	58%	37%
Democrats	70%	27%
Independents	69%	29%
Republicans	47%	47%
Liberals	73%	25%
Moderates	72%	26%
Conservatives	44%	50%
No Religion	86%	12%
Catholic	59%	37%
Protestants: Evangelical	42%	53%
Protestants: Non-Evangelical	75%	22%
Weekly Churchgoer	41%	54%
Monthly Churchgoer	61%	36%
Less Often/Never	78%	19%