Notes From Babel

Moving to Wordpress -- Update Your Bookmarks

2009-08-14T23:08:00.000-07:00

I've decided to pack up my things and leave Blogger for Wordpress. You can still type in www.notesfrombabel.com, but it will now forward to notesfrombabel.wordpress.com.

Bainbridge on the Slippery Slope to Health Care Hell

2009-08-14T08:51:00.000-07:00

Just read the whole thing.

No Such Thing as "Warrantless Distrust" When It Comes to Government

2009-08-11T21:05:00.000-07:00

Ezra Klein laments his fellow citizens' lack of faith in the beneficence represented by the federal government's efforts to provide universal health care, going so far as to diagnose our democracy as "sick" for its faith-deficiency:

What we're seeing here is not merely distrust in the House health-care reform bill. It's distrust in the political system. A healthy relationship does not require an explicit detailing of the "institutional checks" that will prevent one partner from beating or killing the other. In a healthy relationship, such madness is simply unthinkable. If it was not unthinkable, then no number of institutional checks could repair that relationship. Similarly, the relationship between the protesters and the government is not healthy. The protesters believe the government capable of madness. There is no evidence for that claim, which means that there is no answer for it, either. That claim is not about what is in this bill, or what government has done in Medicare and Medicaid and the VA. It is about what a certain slice of Americans think their government -- and by extension, their fellow citizens -- capable of.

Other liberals are also concerned that our messy political process is woefully ill-suited to provide people the programs and services they need--for heaven's sake, we can't let a little thing like people not wanting something prevent them from getting it.

Will Wilkinson does a fine job reminding Ezra why our distrust is justified. But it's important to add that, even were our distrust not so well-earned, red-faced tirades against "the man" are a healthy thing in any event. It should be a badge of honor in a limited republic for legislators to have such a terrible time passing programs and regulations. So-called sick and mindless mobs, in conjunction with the cryptic machinations of our governmental and political processes, help to limit the access by factions to the enormous power vested in the federal government.

Modern progressives have hoped to join forces with the populists, who were also enraged at the system in which they struggle while others enjoy stratospheric success. But, just as the first progressives a century ago, modern progressives are dismayed to find that the populists aren't interested in uprooting capitalism--they just want a shot at being its beneficiaries themselves. The economic bubble-bursting talk went a long way to temporarily drive populists into the progressives' tent, but the highfalutin talk about Keynesian economic theory and egalitarian redistribution of wealth will not resonate with the common "ignorant" American for long. As the town halls are showing, the honeymoon is already over.

Is There Such a Thing as "Generational Poverty" in the United States?

2009-08-06T21:31:00.000-07:00

Jamelle at League of Ordinary Gentlemen writes:

There are a constellation of problems – hyper-segregation, extreme inner-city poverty, the black urban underclass, hell, affirmative action – which don’t make any sense unless you have a firm grasp on the policy history of African-Americans and the federal government’s refusal to invest economically in African-American communities. Inner cities desperately need targeted programs to alleviate black unemployment and create educational and employment opportunities. But those won’t happen, in large part, because Americans simply don’t understand the role government has had in creating those problems, and the responsibility we all bear for solving them.

For what it’s worth, I don’t expect that to change; if we acknowledge the federal government’s role in creating generational black poverty, then necessarily have to acknowledge the federal government’s equally direct role in building the wealth of middle-class white America.

I don’t have the faintest idea what is meant by “generational black poverty.” The Homestead Act was in place before my ancestors got here. And at the end of all those other federal government programs, my mom found herself growing up in housing projects in Oakland. But as soon as she graduated high school at 17 she left and got a job and a couple years later married my dad, also with nothing more than a high school education, and with their respective jobs as telephone operator and mail carrier, made a nice life for themselves. I cannot jam into my brain’s belief center the notion that their being white saved them from what otherwise would have been “generational white poverty.”

There is perhaps a culture, a mindset of failure that is causing something like “generational black poverty.” And maybe that is what is meant by the author. But that is a problem that simply cannot be ameliorated by government. Particularly federal government. Granted, the federal government made quite a mess of things in its romp through two centuries of American history. But there’s no good to come from insisting the bull march back into the china shop and tidy up after itself.

Before You Lynch McCarthy As a Birther Nut...

2009-08-01T01:19:00.000-07:00

NRO's Andy McCarthy has taken a lot of flak for his recent article, in which he suggests that Obama not be let off the hook completely for his secret-keeping. The attacks on McCarthy seem to be largely based on misinterpreting McCarthy's piece as being something other than what it really is: a lament over the abandonment of investigative reporting.

At the outset, McCarthy does not once take up cause with Birthers--those who believe that Obama was not born on U.S. soil, and is otherwise not qualified to be President based on citizenship grounds. In fact, he states just the opposite:

The mission of National Review has always included keeping the Right honest, which includes debunking crackpot conspiracy theories. The theory that Obama was born in Kenya, that he was smuggled into the U.S., and that his parents somehow hoodwinked Hawaiian authorities into falsely certifying his birth in Oahu, is crazy stuff. Even Obama’s dual Kenyan citizenship is of dubious materiality: It is a function of foreign law, involving no action on his part (to think otherwise, you’d have to conclude that if Yemen passed a law tomorrow saying, “All Americans — except, of course, Jews — are hereby awarded Yemeni citizenship,” only Jewish Americans could henceforth run for president).

Instead, McCarthy bemoans the poverty of research done by investigative reporters whose job it is to, ahem, investigate. Burden of proof is the operative concept underlying McCarthy's point, as I take it. That is, to waive McCarthy off because he cites to questionable sources misses the issue entirely. The burden of proof does not lie in favor of the subject of a news investigation, viz., the President of the United States. Every hint, every lead, every suspicion is to be ferreted out with the zealous assumption that the fellow is a rat and a sneak and a crook ready to yield his tale of lies to that would-be case-cracker with the tenacity and contempt for public figures' privacy to go the distance and get the story, dad-gummit.

Instead, somehow the burden of proof is now shifted to those who would challenge the “official” record provided by the Administration. A formal investigation is not warranted, under this view, unless and until substantial and corroborated evidence has already been amassed. Proffering less than this with a request for further investigation is derided as crackpot paranoia fit for scorn, contempt, and general hecklery.

That’s not how this is supposed to work. No, McCarthy’s is not piece of investigative reporting. But it doesn’t purport to be. McCarthy is not an investigator or a prosecutor—he was a fine one of those already, and I doubt he would volunteer to continue doing it on an opinionator’s wage. His piece simply suggests that there are some clues here, the sort that investigative journalists used to take up and sniff down and let us know at the end whether there is anything to jump up and down about. The observation here is that there is a curious lack of interest in any such sniffing.

More on Meaning

2009-07-30T22:24:00.000-07:00

D.A. Ridgely had this response to my comment left to Kuznicki's post about the futility of talking about meaning in objective terms, the subject of the previous post. Here was my response:

The quote from Schumpeter captures very well my concern over value, and to some extent, meaning. I do not quite know what to make of the idea of standing on one’s convictions while doubting their validity or, worse, committing them to relativity. This is an aspect of lawyering I find particularly repulsive. And it suggests how philosophy is at once the most human and the least human endeavor: the intense scrutiny demanded by philosophy results in precious few undeniable truths; and yet the existential demands of life require impulsive commitments to innumerable simple, ready-at-hand truths.

The fascinating thing about meaning is not the answer we happen to furnish to the ultimate question, but the fact that we ask it, that we acknowledge it as “the ultimate question” of philosophy and of humanity. That very phenomenon suggests, at the least, some commonality, some universality about our nature, even when we provide vastly different personal responses to the question.

I am a theist—a non-denominational Christian. (I haven’t attended church in years, though, one of the perks of generic Christianity.) To preempt the question, yes, I do find meaning in the view of the afterlife that Christianity provides. Some, anyway. Religious doctrine about afterlife is not meant to satisfy one’s longing for meaning. I am somewhat of an existentialist: life is for the living. Meaning comes from all aspects of our experience. I think this was along the lines of Jason Kuznicki’s original point.

But where I became troubled was Jason’s rejection of the human tendency—universal, in my view—to also seek meaning by looking beyond the end of one’s own life. The suggestion that no one should need to contemplate humanity as a whole, or notions of eternity, or other implications outside the scope and control of one’s own life, strikes me as somewhat aloof. Disciplined existentialists or nihilists might be able to train themselves to ignore this part of their mind. This might be the case, at least definitionally (in practice, I tend to believe that we all have bouts, at some frequency, in which we ponder the immortality of our works and acts). Or maybe some folks truly never ever think with any intrigue about what lies outside themselves. (I would find this very hard to believe.)

But the rest of humanity needs that focal point. It is one part—granted, not the whole—of the mental activity that lends overall meaning to an individual’s life.

Meaning, History, and Purpose

2009-07-29T22:08:00.000-07:00

Jason Kuznicki rails against "conservatives" who quest for meaningful societal accomplishment, and suggests we instead just try to forget about genetic posterity or historically relevant accomplishments, and try to just end our lives with an "exclamation point."

It’s never been quite clear to me how one can engage in such impassioned bouts that sound so, well, nihilistic. People who believe that life ends with a period (or exclamation point or whatever) don’t understand those who believe it ends with an ellipsis, and vice versa. But these kinds of speeches always leave me leaning in expecting to find out how the nihilist plans to get along without that sense of “eternal purpose” that most of the rest of us find so important. (I’m sure “nihilist” is probably inaccurate, but that’s just the point–the impulse to define oneself as “other” seems make one forget to explain exactly what kind of other.)

One of course has the right to take his ball and go home. But do go home, is my point. Don’t say there’s no meaning to anything and then carry on as if there is. At the least, propose some alternative rules for what kind of “meaning” we can possibly achieve. For my part, I often find myself in a mood where philosophy seems to have about as much meaning as a crossword puzzle. But no inspiration to do any meaningful philosophy is going to strike me with that attitude.

Good, Now I Don't Have to Say It

2009-07-29T21:32:00.000-07:00

Kevin Drum noted today that Medicare must be a great system since seniors seems to like it so much. The Liberty Papers got the response just right:

All that, for a Medicare Part B premium of a mere $96.40 per month. That’s roughly 1/10th of the premium my [large multinational] employer pays for my healthcare, and smaller than the additional portion I pay out-of-pocket for coverage of my wife and kids.

Does anyone think that the $96.40 premium covers the cost of insuring the average senior? I don’t think so. If it did, we wouldn’t be calling it an “entitlement” or worrying about the unfunded liabilities of Medicare going out over the next few decades. We wouldn’t be getting hit as workers with 2.9% of our incomes taken in taxes to pay for the Medicare system.

So are seniors pleased with the system they have? They get cheap premiums and adequate care, all on the backs of the taxpayers. Who wouldn’t be pleased?

Health Care and Hyper-Active Imaginations

2009-07-28T22:42:00.000-07:00

After reading Megan McArdle's thoughtful (as in, founded in thought) post on why a public option is wrong-headed, Ezra Klein's empassioned (as in, founded in the part of the brain outside the jurisdiction of thought) post made clear an important point about the ancillary quality of factual and intellectual rigor on the part of public option advocates:

Rather, what has kept health-care reform at the forefront of liberal politics for decades is moral outrage that 47 million of our friends and neighbors are uninsured. That medical costs are one of the leading causes of bankruptcy in the United States. That an unemployed machinist gets screwed by fly-by-night insurance schemes while a comfortably employed banker need never worry. That the working class ends up in emergency rooms with crushing chest pains because they didn't have health insurance and didn't get prescribed cheap blood pressure medications five years before.

Could all that really be true? Surely, medical costs result in some bankruptcies. But a "leading cause"? And where are all these unemployed machinists? My grandfather and uncles were machinists. Owned a machining shop. Until it went out of business because, well, machining's not much of a viable vocation anymore. In other words, there are probably not many "unemployed machinists," rather, former machinists looking for a new line of work.

But that's not the point. If you're flailing about for a universal public option, facts and ideas aren't going to take that excess blood out of your face. The problem is an over-active imagination. The problem is the unfounded notion that private health care not only results in some flaws in our health care system, but in every flaw now or ever observed in the Western world.

Don't Feed the Bears

2009-07-25T08:10:00.000-07:00

Nadya Suleman and her army of 14 zombies are set to come munch on our reality-tv-addicted brains. Would if we could simply wield The Simpsons' and Paul Anka's cure for such afflictions as octo-mom and Jon & Kate...

To stop those monsters 1-2-3
Here's a fresh new way that's trouble free
It's got Paul Anka's guarantee...
(Guarantee void in Tennessee.)

Just don't look!
Just don't look!
Just don't look!
Just don't look!
Just don't look!

Kuznicki on Health Care

2009-07-23T20:47:00.001-07:00

Jason Kuznicki has two very interesting and informative posts on health care over at Positive Liberty. The first takes a slightly different approach than I did here on our underlying motive in pushing for a public option--paying others to make tough moral decisions for us. The second exposes a lot of the misinformation and outright lies in the comparative talk about health care around the world. Highly recommended you read them both.

Universal Health Care: Right Idea, Wrong Species

2009-07-22T21:38:00.000-07:00

After reading E.D. Kain’s eminently reasonable post today, it occurred to me there is one, and perhaps only one, reason why we all don’t just drop whatever political orientation we happen to have and subscribe to the centrists’ newsletter. That reason is misanthropy; the abiding belief that, being human, we’re bound to screw it all up one way or another. Rightist wingnuts, on the one hand, would likely blow up the whole system sooner than let the other guys get their way. But on the other hand, they'll likely blow the whole system up sooner than let the other guys get their way. It’s irrational, it’s childish, but dammit, it’s honest, and holds no aspirations of erecting a system that's not as clumsy and doltish as we are. And while the leftist nutters would really like to build a better mousetrap, they're too excited and impatient to work with the buzzkill rightists to ever make it happen.

Centrists, on the other hand, threaten to ruin this balanced regime and actually provide a way for these crazy people to accomplish things—and this is not a good thing. Centrists come in and pat everyone on the head and tell us all our feelings are justified, but how swell would it be if we could compromise, and maybe you both have a point, and you can appreciate that if you don’t at least agree on x the debate is going to leave you behind, and on the other hand of course the free market and personal responsibility are good things, and look, here are some charts and graphs and a neat PowerPoint. It’s all very enlightened, and I sometimes find myself wondering why I don’t just warm up to it.

But what ever happened to that idea that man is basically evil, or at least silly and stubborn out of proportion with his meager rational faculty, and that left to his devices he will destroy himself? Or, the secular variation of same—that government is basically evil, or too silly and stubborn, and that left to its own devices, it will destroy us all? We can all appreciate pie charts and calculators, but for heaven’s sake, the housing bubble carcass is still warm—have we already forgotten that that beast was cobbled together with equations so fancy it took a pocket protector and half a dozen letters after your name to understand them? And even those guys were kind of amazed that it worked as long as it did. Numbers are not our salvation. They just give us new and horrifying ways to make us say “I wish I’d not have done that.”

And so it will inevitably go with universal health care. Again, you won’t get any wonkish predictions from me as to how precisely the thing will blow up in our faces—perhaps a smoking disaster like California’s energy “deregulation”; or perhaps a long, slow suffocation like our entitlement programs. One way or another, it’s going to go south on us.

So, although I won’t throw my hat in with the blathering, insipid wingnuts who do little other than heap unhelpful insults on the issues, they’re doing God’s work. Who else is going to take those determined little imagineers with a bloated sense of duty to “humanity” down a notch?

Health Care Rationing

2009-07-19T23:17:00.000-07:00

Peter Singer and Conor Clarke want to know why there is such a problem with the concept of health care rationing--that is, assessing the value of an individual's life:

If the Department of Transportation [followed the principle that it was impossible to put a dollar value on human life] it would exhaust its entire budget on road safety. Fortunately the department sets a limit on how much it is willing to pay to save one human life. In 2008 that limit was $5.8 million. Other government agencies do the same. Last year the Consumer Product Safety Commission considered a proposal to make mattresses less likely to catch fire. Information from the industry suggested that the new standard would cost $343 million to implement, but the Consumer Product Safety Commission calculated that it would save 270 lives a year — and since it valued a human life at around $5 million, that made the new standard a good value. If we are going to have consumer-safety regulation at all, we need some idea of how much safety is worth buying. Like health care bureaucrats, consumer-safety bureaucrats sometimes decide that saving a human life is not worth the expense. Twenty years ago, the National Research Council, an arm of the National Academy of Sciences, examined a proposal for installing seat belts in all school buses. It estimated that doing so would save, on average, one life per year, at a cost of $40 million. After that, support for the proposal faded away. So why is it that those who accept that we put a price on life when it comes to consumer safety refuse to accept it when it comes to health care?

I haven't been as good a student of the health care conversation as I'd like, but I think I can take a crack at this one. We're not talking about creating a health care system from a blank slate here. We've already got a system. And it's predicated on utility. It determines the utility of covering particular individuals, the utility of paying for particular tests to diagnose symptoms, and the utility of paying for particular procedures to respond to diagnoses. And apparently we all hate this system. The galvanizing principle is the out of hand rejection of the cold, calculating, rational practice of establishing the value of a human life. It is no help to suggest that maybe we just instead give that power to a legislative subcommittee. The Dems have our ear because they've been talking as if we're all special wonderful snowflakes without whom the world can't possibly go on turning. If we wanted cost estimates, we'd just stick with the market.

Now, are we being silly? Of course. But if we're going to admit we're being silly about rationing, we may as well go the whole distance and admit we're being silly about a universal public option in the first place.

A Query for Libertarians on Moral Legislation

2009-07-19T00:51:00.000-07:00

Here's a puzzle for libertarians (or anyone else who wants to chime in): Assuming one takes a position against “moral” legislation against marijuana (i.e., that marijuana should not be unlawful merely on the grounds that it is “bad”), would it be much less wrong to legalize it while taxing the snot out of it?

For my part, I don’t tend to mind much that cigarettes are taxed to the hilt. But on the other hand, I wouldn’t have much problem with criminalizing cigarettes altogether. I don't think I'd vote for an initiative to do so, but it is a perfectly acceptable thing for us to vote about, at least from a constitutional point of view.

However, if you’re one to take the view that we may not, through criminalization, impose personal preferences on choices that are basically private and personal, then, to be consistent, mustn’t you also take the view that we may not do it through punitive taxation, either? The spectre of normative legislation is still present, only instead of prohibiting certain behavior, the state engages in something like selling indulgences, requiring outliers of the public sentiment to make penance for their willful deviations. Is this really any better?

What Biden Hath Wrought

2009-07-17T22:26:00.000-07:00

What Joe Biden began when, as chairman of the Senate Judiciary Committee, he borked Judge Robert Bork, has, as Kevin Drum puts it, been taken to its reductio ad absurdum by Sotomayor's perplexing responses during the confirmation hearings:

And everybody learned their lesson from this: nominate candidates whose views are clear (no more Souters!) and then make sure they say absolutely nothing about those views (no more Borks!). Ginsburg and Breyer invented the technique, Roberts and Alito honed it, and as near as I can tell, Sotomayor has taken it to its reductio ad absurdum apex. If it's something that might come before the court in the future (and everything comes before the Supreme Court eventually), tell 'em it would be inappropriate to answer. If someone asks a more general question, say that you can't really answer in the abstract. If more details are provided, switch gears and say that you can't engage in hypotheticals. As near as I can tell, Sotomayor was barely willing to admit that she had a law degree, let alone that she had any opinions whatsoever regarding the law.

He's not exaggerating. Randy Barnett at Volokh has a mini-compilation of befuddling exchanges with Sotomayor, but here is the run-away favorite:

FEINGOLD: But what would be the general test for incorporation?

SOTOMAYOR: Well...

FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...

FEINGOLD: Well...

SOTOMAYOR: I'm sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court's decision how it looks at a new challenge to a state regulation.

Impenetrable indeed.

Property Ownership Is Turning into a Very Fluid Concept

2009-07-17T21:59:00.000-07:00

Jack Balkin has this amusing story:

The New York Times reports that Amazon.com found out that the publisher of Kindle versions of George Orwell's books 1984 and Animal Farm decided that it didn't want to give the rights to a Kindle version. So Amazon.com used its wireless connection to each Kindle to delete copies on various owners' Kindles and refunded their money. You see, because of the wireless connection, Amazon.com knows what books are on your Kindle and it can delete them or modify them at will.

Apparently, the irony of deleting a book about Big Brother watching you was lost on both the publisher and Amazon.com.

They've also assumed the role of the Ministry of Truth: You own a copy of 1984. You've never owned a copy of 1984.

What's next? Is the RIAA going to somehow delete all the music I pirated before they browbeat everyone into believing it was "wrong"? (They trained me to stop downloading it, but I could never get back into the practice of paying for music again. My music collection abruptly ends around the turn of the millennium. Hence the reason I've prematurely begun referring to "what kids are listening to these days.")

Principles vs. Pragmatism

2009-07-16T22:17:00.000-07:00

E.D. Kain is concerned that there are not enough conservative "wonks" crunching numbers in coming up with conservative-sounding health care plans that are ready to go out of the box. That is, plans that might actually work. While I understand the concern, my fear in conservatives taking such a middle-ground position on such an extreme big-government program like health care is that it will take conservatives the rest of the distance toward utter obscurity. If results matter more than principles, then what are conservatives selling? It will have the same disappointing effect as the lame-duck Bush kicking off the bank bail outs before Obama had a chance to rub his feet all over the Resolute desk. It would have been nice if conservatives could point to some kind of break between conservative and progressive ideologies. But we can’t do that now, because Bush decided to believe wonks over conservatives.

Thus, conservatives ought not worry excessively about putting together some fantastic hybrid plan that is somehow at once pragmatic and principled. For one thing, I highly doubt such a thing exists. And for another thing, the paramount endeavor is to hold the line on the of limits on government dictated by the Constitution and first principles. That position may continue to take a beating, but someone has to keep the fire burning until the grand experimenters run back screaming from the monster they’ve created.

How Conservatives Can Begin Thinking About a Public Health Option

2009-07-15T22:13:00.000-07:00

Someone mentioned recently that conservatives ought not cast so many stones in the health care debate when none of them are coming up with any viable alternatives. I figured I’d use that as my cue to finally jump in and explain some of the principled ways that a conservative ought to think about health care.

Insurance: “You keep using that word. I do not think it means what you think it means.”

The first problem that keeps us from intelligently discussing health care is the vocabulary. Health “insurance” is not really insurance. Insurance is how we pay for something in case some contingency in a pre-defined class of contingencies occurs. Health “insurance,” instead, means something more like pre-paid health service, or a fixed-rate health plan. The point is, regular doctor visits, properly speaking, are not part of health insurance any more than oil changes are part of auto insurance. Of course, we know what insurance is supposed to mean. Most of us have car insurance. Many of us have home insurance, or renter’s insurance. We might even have insurance on the flat screen we bought at Best Buy. So why do we insist on speaking as if our annual checkups should be included in our health insurance? To be productive with talk about public alternatives to health insurance, we need to remember what insurance means.

The Dateline Effect

The next thing to think about is what exactly we are trying to accomplish with public health care. Noting the difference between “insurance” and something more like a fixed-rate health plan, it should be pretty clear that what we are not particularly interested in making sure everyone is able to get cheap doctor visits whenever they get a sniffle. My co-pay is just $10. Had I more time and less aversion to doctor visits, I would never opt not to see the doctor. I am not interested in the least in paying more taxes so that everyone can have such whimsical access to chat with the doc. The "least among us" are not known by whether they have ready access to a Wellbutrin prescription.

Instead, what we are after is eliminating the “Dateline effect”—gut-wrenching in-depth news-show stories about families just like yours and mine having financial ruin heaped on top of emotional ruin resulting from little Billy’s bout with terminal cancer, made all the worse by the plucky lad’s resolve to push on beyond all doctors’ predictions and cost estimates before finally reaching the end. That’s what the clamor for the public option is all about. People will still break their limbs and split their heads open and accidentally shoot their thumbs off, requiring the occasional trip to the emergency room. And if they don’t have insurance, they’ll grumble about how to pay for the services they received. But it's not going to break anybody—and, more importantly, it’s not going to make Dateline. The stories of indigents struggling to pay off a few grand in emergency room bills are not the ones that are galvanizing the move toward public health coverage. If you can’t imagine a story about it on your favorite TV news journal, it shouldn’t be covered by the public option.

The Agony of Having No One to Blame

The other benchmark driving the push for a public option is fault, or rather the lack of it. When we hear about tragic health stories, the first thing anyone does is try to place blame. It’s the natural human response. If we can identify the cause—i.e., smoked too much, drank too much, carried on so fat, visited that dubious third world country, was negligent, etc.—the whole thing becomes much less terrifyingly arbitrary. Humans are stupid and silly and repugnant, to be sure, but at least they’re predictably so. And a surprising amount of satisfaction and all-around peace with the universe can be derived through comeuppance. At any rate, once we find the loathsome culprit, we can direct our fist-shaking accordingly. And then we can forget about the whole thing and get back to Dancing with the Stars.

But things like cancer leave us feeling so unresolved, at odds with the universe. Without someone to blame, we have no way to turn the grief into indignation. After a while, that dull sense of guilt that starts to really eat at us. It’s an entirely irrational guilt, of course. But guilt, like the rest of our emotions, does not shrink at name-calling. So after shaking our fists at the sky yields no results, we turn to the next most powerful and arbitrary force known to us: government.

So long as we insist on waging this war on guilt by devising a public health care option, let’s at least limit the scope of that war to those things that are actually causing the guilt—to those ailments that are not properly attributable to the fault of some individual. The test could be quite simple:

“When you discovered your ailment, what was your response?
A. ‘D’oh!’
B. ‘That bastard!’
C. ‘Goddammit.’”

The public option only covers C; both A and B indicate there's already someone to blame—yourself or someone else—and thus the rest of us are quite capable of activating our grief-to-indignation conversion mechanisms without footing your bill.

That is the key to the whole thing, after all. This is a war on guilt, and whatever the cheapest way of beating our guilt is the way we ought to go. The best way, incidentally, is to just tell our collective guilt to go suck an egg. But since it seems we’re unwilling to do that, we should examine any public health option in terms of how well it assuages the guilt. I submit that only those ailments that are, by all accounts, arbitrary and owing to the fault of no one, should be covered by a public option.

[Cross-posted (and with lots of discussion) at League of Ordinary Gentlemen.]

Ginsburg, Abortion, and Minimizing Populations "We Don't Want Too Many Of"

2009-07-12T19:04:00.000-07:00

Justice Ruth Bader Ginsburg recently threw out a big, savory bone to pro-life advocates by revitalizing the "isn't eugenics really behind the pro-choice agenda?" argument. Apparently, the answer is still "yes":

Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?
JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.
Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?
JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

H/T Get Religion.

Health Care Funding Not Exactly a Controlled Experiment

2009-07-12T13:08:00.001-07:00

From WaPo:

House Democrats agreed yesterday to raise taxes on the wealthy to pay for a sweeping expansion of the nation's health-care system, proposing a surtax on the highest earners that could send the top federal tax rate toward 45 percent.

Beginning in 2011, the plan would target all income over $350,000 a year for families and $280,000 a year for individuals, Democratic sources said. The surtax would start at 1 percent, rise to around 1.5 percent for families earning more than $500,000, then step up again, to around 3 percent, for families earning more than $1 million, Democrats said.

The genius of Obama's and the Dems' plan to ram such tax hikes through now, in the midst of our economic woes, is that whatever further and heightened economic woes that are sure to follow cannot possibly be traced back to such policies. You're pretty safe setting fire to houses when a wildfire is already going on.

Why Libertarianism and Democracy Kind of Hate Each Other

2009-07-09T22:34:00.000-07:00

Does morality have a place in law?

In a sense, we are all libertarians by default. As to issues that are morally neutral to us but repugnant to others, our response is to respect their right to feel righteous indignation, but to go work it out someplace else and leave me alone. The good Kantians among us have the wherewithal to apply that same response when the tables are turned. That is, to be a libertarian is not to be amoral, it is simply to be a restrained moralist, to work out morality in private relationships or institutions, anywhere but through law and politics.

But I would say two things about that. First, that libertarians are not as value-neutral as they would have us believe. And second, that there is no good reason that the majority should not be entitled to impose their moral views.

At some point, we arrive at the question of whether libertarianism and democracy can coexist. Under a pure libertarian theory, democracy would ultimately be replaced by an over-inflated substantive due process doctrine, a sort of hyper-pragmatic political empiricism. Law & economics, except law having been eaten by a carbo-loading economics who’s busier than a one legged man in an ass kicking contest scratching away at the blackboard to see if yours and my rights are borne out in the math. In the absence of evidence, no legislation is permissible. You and your scruples don’t have to go home, but they can’t stay here.

Libertarianism is to political theory as prog rock is to music. If you’ve got the flare for it, it can be fun to decipher how some atonal piece in 9/4 time that's too busy cramming in more and more notes to bother with things like “choruses” or “lyrics,” can still be recognizable to human beings as music. But the reality is that, by and large, people will always prefer a straightforward verse-chorus-verse-chorus that fades out in three minutes. Similarly, Americans will never give up their beloved and intuitive right to self government in favor of a convoluted system that only permits laws supported by pointyheaded rights theories or complex social utility balancing acts. Godspeed You Black Emperor! will never be ready for prime time, and neither will libertarianism.

This is the idea at stake in the gay marriage fight. The outcome--whether gays get the right to marry--is truly secondary. What is imperative is that we protect and respect the democratic process. And that is true even if the democratic process doesn't get us to a desired result as quickly as a theory like libertarianism. After all, there is no well-defined principle that would compel the legal endorsement of gay marriage (even as people find it more and more culturally acceptable) that would not at the same time also compel the legal endorsement of polygamy or incestuous marriage (which people still find culturally repugnant). (See here and here.) Thus, libertarian theory will not actually yield us a very desirable solution; the only theory that permits the coexistence of lawful gay marriage and unlawful polygamy and incestuous marriage is the democratic theory. Democracy is inelegant, but then again, so is human nature.

Regulation Doesn't End Greed, It Just Requires More Gladhanding

2009-07-01T22:18:00.000-07:00

Steve Bainbridge provides some good explanations why more regulation doesn't make greed go away, it just modifies the way in which it is expressed, i.e., through rent-seeking. The "invisible hand" is no longer such -- it's just busy in back rooms making deals.

Putting the government's spanner in the works is unwise for another reason. Used to be the government would shake its fists at the private sector in moral outrage, but ultimately recoil to its own domain. With an effectively limitless federal jurisdiction, finger wagging is now followed by swift, comprehensive, and mindless reform. Government would be better off had we left a few teeth in the Commerce Clause: the economy can't be your scapegoat when you can claim control of it at whim. Kind of reminds me of the image of the dog chasing the car who wouldn't know what to do if he caught it. Except there are probably more things a dog can naturally do with a car than our federal government can do with the economy.

Victory Against the Agran Political Machine

2009-06-30T22:25:00.000-07:00

A recent California Court of Appeal decision, briefed in large part by yours truly, gave Larry Agran and his cronies a good lashing and ordered them to pay my attorneys' fees. OC Register article on the case here.

UPDATE: Here is Frank Mickadeit's article on the case, including some choice language from the opinion. Here is a synopsis of the case by Ben Pugh, the lead attorney on the case.

Distrust of Government Does Not Imply Trust in Markets

2009-06-25T22:17:00.000-07:00

This recent post from E.D. Klain points out one of the subtle yet critical flawed assumptions about conservatism: that distrust in government means placing trust in markets. In a way, the assumption is natural, and perhaps in some ways correct. Certainly, we have to put our "trust" somewhere, in the sense that public choices have to be made in one place or another. But markets are not to be preferred to government on the basis that they yield better results. They certainly do in some areas, and we hope for the best in others. The real reason we ought to prefer markets, however, is because markets are fair. Fair as in blind, anachronistic, non-empathetic. Process-oriented rather than ends-oriented. Markets produce a brand of fairness as close as possible to the sort produced by nature itself. Thus, markets will harm you in near the same way as a tornado will. It's nothing personal. And in either case, you are about as likely, and have about as much cause, to shake your fists at the sky than at some person.

The real problem, of course, is not that liberals make this erroneous assumption (i.e., that markets somehow possess some superior ability to produce substantive fairness), but that conservatives do. When we begin to think that we can have our heaven on earth, whether through a centralized government or through an idealized "market" that will give us our hearts' desire, we are headed for disappointment.

The Booming (Public) Service Industry

2009-06-19T23:37:00.000-07:00

John Derbyshire shares the details of a few of New York's 1,325 six-figure pension recipients:

• James Hunderfund, an employee of Commack school district, will retire September 1 with a monthly pension of $26,353.75. (Nothing hunderfunded about his pension plan, ho ho.)

• Richard Brande of Brookhaven-Comsewogue will also be heading for the golf course September 1 with a monthly pension of $24,222.43.

• William Brosnan cleans out his desk at Northport-East Northport July 1, and for the rest of his life will trouser a monthly pension of $19,058.80.

No offense to these guys — well, not much offense — but they are small-town education bureaucrats. Not only will they be getting annual pensions in the quarter-million-dollar range for the rest of their naturals, they are getting these numbers by law. If New York State's pension-fund managers goof on the investments, or the market craters, we taxpayers have to make up the difference.

It's not just edbiz either, though of course edbiz exhibits the greatest outrages. (Can't we please just GET RID OF PUBLIC EDUCATION?) Local-gummint seat-warmers are on the same gravy train.

• Dvorah Balsam of Nassau [County] Health Care Corp., annual pension $191,380.32

• Stanley Klimberg of Long Island Power Authority: $191,380.32.

• Gerald Shaftan, Nassau Health Care Corp. again, $181,457.76.
These folk are all, as no doubt they would be proud to tell you, "public servants." The idea behind that phrase is that they are like butlers or housemaids, placing themselves willingly at the beck and call of us, the sovereign public. So how come we, the sov. pub., spend our twilight years clipping coupons in rusting trailers in the Ozarks while our servants enjoy the beach condo in Maui?

From the looks of it, CEO's and public servants might soon be passing each other in their government-controlled compensation elevator ride.

Words Are Cheap

2009-06-18T23:16:00.001-07:00

From Fox News:

The Senate has unanimously passed a resolution apologizing for slavery and racial segregation in the U.S. and sent the measure to the House.

Something about that just seemed rather silly. And then this made it obvious :

The resolution passed Thursday includes a disclaimer saying that nothing in it supports or authorizes reparations by the United States.

Oh, you mean the apology was all a stunt. That makes sense. Apologize away, so long as it doesn't cost anything.

[A much more thoughtful post on the subject from Stephen Bainbridge here.]

It's Not a Bad Risk Just Because You Lose Sometimes

2009-06-17T22:01:00.000-07:00

Said Obama:

“A cascade of mistakes and missed opportunities” over decades led to the present problems, the president said. “It was easy money, while it lasted.” But, he added, “These schemes were built on a pile of sand.”

But who knew it was a "pile of sand"? Surely, there were those who thought it was too good to be true, that the gravy train would end at some point. But who was going to tell willing lenders and willing borrowers not to transact, not to keep driving the economy up, not to increase homeownership, based on some wonk's grumpy prognostications? Certainly not politicians. Indeed, lenders would have been called worse names were they to have imposed some arbitrary normative notions about risk to justify turning down loans. The math, best as anyone could tell, was solid enough. The market, according to our then-best understanding of how it worked, determined what happened. We now understand that the market doesn't hold up under the fancy math that seemed to work so well. But we didn't know that then. We kept playing what our best understanding indicated was the smart bet. We doubled down on eleven and split aces and happily collected our winnings. Now that it's turned out there were jokers in the deck, we'll have to rethink our strategy. That will happen the same way every other wealth-generating idea has occurred: through the market. The market ferrets out cracks in economic systems and recalibrates itself towards efficiency. We don't need government to find holes in economic theories any more than rain needs it to find holes in a leaky roof.

[Clarification: A reader pointed out that my post might be misunderstood to mean that little or no fault belongs to the crooked mortgage brokers and other unscrupulous practices within the financial industry. Perhaps I should be more careful: I do not mean to ignore such sordid practices, or suggest that they are an acceptable brand of "self-interest" that fuels market activity. On the other hand, that was not what Obama was referring to. He was talking about systemic flaws in the finance industry that created what seemed to be “easy money.” I took that to mean, for example, that someone should have intuitively known that the Gaussian copula function that led to the mortgage-backed-securities debacle was implicitly flawed, and done something about it. (A great article on that here.) That formula, and the basic urge to capitalize on it, were not borne of some excessive greed. By all indications, it allowed us to tap into a great amount of seemingly reliable wealth. Who would have listened to admonitions against such manifest destiny?]

Vexatious ADA Litigants Back in Business in California

2009-06-16T20:57:00.000-07:00

On Friday, the California Supreme Court gave vexatious wheelchair litigants their groove back in Munson v. Del Taco, Inc., overturning an earlier 2006 decision in Gunther v. Lin that required a showing of intent in order to qualify for the minimum $4,000-per-infraction awards. Gunther had held that California's Unruh Act, the California civil rights law, required a showing of intentional discrimination: the mere fact of disparate impact on a suspect class was not enough. However, in 1992, the Legislature amended the Civil Code to make violations of the ADA also a violation of the Unruh Act. Thus it happened that, when serial plaintiff David Gunther paid a visit to Lin's Jack-in-the-Box restaurant, he experienced the following violations of his newly incorporated civil rights: uninsulated pipes under the bathroom sink, and a mirror mistakenly left by an employee (without Lin's permission) higher than the required specifications.

As the Santa Ana Court of Appeal noted, ADA violations are hyper-technical, and practically impossible not to violate at some point or another:

Other ADAAG's [ADA Architectural Guidelines], however, do not implicate any intentional conduct at all, such as the requirement that the pipes underneath the sink in a public restroom be wrapped with insulation, or the remarkable requirement that any visual alarms be exactly 80 inches above the highest floor level within the space or exactly six inches below the ceiling, whatever is lower. For example, a customer using a wheelchair who entered a public restroom before a contractor had finished working on a remodel of it and had gotten around to wrapping insulation on the pipes under the sink would find a restroom in “violation” of the ADA even though the owner was remodeling the restroom precisely in order to ensure that wheelchair customers had equal access to its toilet facilities.

In fact, the ADA itself does not even permit private litigation. That would seem, well, stupid. And so the court charitably declined to impute such stupidity onto our own Legislature.

And it was precisely because it was so easy for businesspeople—particularly small businesspeople—to inadvertently violate the ADA that Congress limited the circumstances under which they might be sued for such a technical violation. Under the ADA, a private individual suing a businessperson has no right to damages absent intentional discrimination. . . .

By contrast with the federal ADA, California's section 52 allows private parties to seek damages, and in fact even provides for an automatic minimum penalty—now up to $4,000—when the statute is triggered.

. . . .

To interpret what is now subdivision (f) of section 51 to provide for automatic penalties for even the most technical violations of the ADAAG's would contravene the rule that no statute should be interpreted so that it becomes redundant, in this case the statute made redundant being section 54.3. . . .

. . . .

Private enforcers of the ADA are presented with a choice between the strict liability regime of section 54.3 or the regime requiring intentional discrimination of section 52. The alternative interpretation, as a number of federal courts have already indicated (e.g., Doran v. Del Taco, Inc. (C.D.Cal. 2006) 2006 WL 2037942), has led to unconscionable abuses.

Indeed, in Gunther, there was no intentional discrimination. Gunther even conceded as much.

There is also no question that defendant Lin never intended to violate the ADA. In his answer to Gunther's complaint Lin claimed that Gunther had entered the restroom “before our handyman had finished his work” of wrapping insulation around the pipe under the sink. Moreover, normally the restroom never has mirrors for anybody (because the mirror was subject to vandalism); an employee simply hung one by mistake.

The Supreme Court noted that Gunther's reading of the statute was a reasonable one.

As a purely linguistic matter, therefore, another reasonable interpretation of section 51, subdivision (f) is that it makes all violations of the ADA violations of section 51 but, together with section 52, authorizes a private action for damages under the Unruh Civil Rights Act only for ADA violations involving intentional discrimination. This is the reading embraced by the Gunther court

But Gunther's reading was not the one most likely to jibe with the Legislature's likely intent. Instead, the Court delved deep into the legislative history and tracked the various changes over the past decades to glean the Legislature's intent in incorporating the ADA into California's civil rights regime. The Court concluded that, while there were several reasons suggesting that the Legislature intended plaintiffs to base their claims on Civil Code section 54.3, which would require a showing of intent, the better supported conclusion was that the Legislature purposely overlapped the statutes--even though this meant that no litigant in his right mind would go forward with a claim that required a showing of intent when he could choose to plead one that didn't.

On the other hand, the Legislature recently enacted new legislation to curb potential abuses.

Most pertinent here, the new legislation (applicable to claims filed on or after January 1, 2009 (§ 55.57)) restricts the availability of statutory damages under sections 52 and 54.3, permitting their recovery only if an accessibility violation actually denied the plaintiff full and equal access, that is, only if ―the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion‖ (§ 55.56, subd. (b)). It also limits statutory damages to one assessment per occasion of access denial, rather than being based on the number of accessibility standards violated. (Id., subd. (e).)

Munson at 21.

But what exactly does the new Civil Code section 55.57 require to turn away those would-be vexatious litigants?

(a) Statutory damages under either subdivision (a) of Section 52 or subdivision (a) of Section 54.3 may be recovered in a construction-related accessibility claim against a place of public accommodation only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion.
(b) A plaintiff is denied full and equal access only if the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion.
(c) A violation personally encountered by a plaintiff may be sufficient to cause a denial of full and equal access if the plaintiff experienced difficulty, discomfort, or embarrassment because of the violation.

Ah, yes. That will send those serial plaintiffs packing. I'm sure they will be quite at a loss wondering how in the world they might try to convince a jury that a poor chap in a wheelchair sustained sustained "difficulty, discomfort, or embarrassment." Handy work indeed.

As Oliver Wendel Holmes said, "if my fellow citizens want to go to Hell I will help them. It is my job." It is now a job that our California Supreme Court seems perfectly comfortable performing, if this case is an indication.

All this raises the more interesting question that I will try to tackle in a subsequent post, which is, how does a court, such as the Munson Court here, muster up the motivation to overturn a perfectly well-reasoned decision, like the Gunther one, in order to open up floodgates of vexatious litigation? It does seem like this is one of the "5%" of really tough cases that is susceptible to more than one outcome. (Gunther's attorney, a colorful fellow, was less equivocal, calling Gunther "a results-driven, ass-backwards judicial activist decision from the start.")

At any rate, if it takes some sort of "activism" to get to the outcome from where legal analysis ends, what sort might be appropriate, or at least, more appropriate than others?

Yes, Mr. President, Some People Really Do Still Think Big Government Is A Bad Thing

2009-06-11T22:05:00.000-07:00

In pushing his health care agenda, Obama responded to Republican opposition as follows:

“Right now a number of my Republican friends have said, ‘We can’t support anything with a public option,’ ” he said. “It’s not clear that it’s based on any evidence as much as it is their thinking, their fear, that somehow once you have a public plan that government will take over the entire health care system.”

Two thoughts: First, perhaps folks wouldn't be so worried about Obama's government "tak[ing] over the entire health care system" if he wasn't already taking over everything else.

Second, Obama is right to note that the question is not whether the government can provide a viable, universal health care solution. We already seem oddly comfortable after having jumped from one paper trap (mortgage-backed securities, credit default swaps, Gaussian copula functions, etc.) into another (massive federal borrowing leading to impending hyper-inflation). So I doubt we will have have trouble finding the stomach to print the money it will take to make Obama's government health care utopia happen. At least until the bottom falls out.

But the critical objection is not that we are losing sight of economics principles, but of first principles--of self-determination, hardiness, individualism. I quoted this bit from Mark Steyn a few weeks ago, but it is worth the repetition:

But forget the money, the deficit, the debt, the big numbers with the 12 zeroes on the end of them. So-called fiscal conservatives often miss the point. The problem isn't the cost. These programs would still be wrong even if Bill Gates wrote a check to cover them each month. They're wrong because they deform the relationship between the citizen and the state. Even if there were no financial consequences, the moral and even spiritual consequences would still be fatal.

Health care is indeed a problem. And unchecked human greed is at the root of much of it. Greedy people are the source of a lot of the world's problems (and a lot of the world's successes). Of course, government is nothing more than the legitimized exercise of will by a small group of people. And while we at least know that CEOs are in it for the money, we can never be quite sure what in the world a politician has his eye on. In that way, while greedy, unscrupulous individuals are bad, we can be certain that politicians are much, much worse.

Thus, why do we believe so easily that the solutions to our problems lie in government? Of course we should "fear" your creeping government, Mr. President. That is the natural order of things.

Miranda Goes Mobile

2009-06-10T22:16:00.000-07:00

The Weekly Standard reports that the Obama Justice Department has ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan. While one could hardly complain about spreading the United States' gold standard of criminal justice, this practice seems like it could become problematic. Miranda informs suspects that they "have a right to remain silent," and that they "have a right to an attorney." Actually, they probably don't have such rights, as they are non-citizens outside of the United States. But once the government tells someone they can expect something, it has the practical effect of becoming a right vested for all eternity. See, e.g., welfare.

H/T Bart DePalma

Blogging Is Silly Enough Without Anonymity

2009-06-10T21:19:00.001-07:00

An online spat between NRO's Ed Whelan and a formerly anonymous blogger, now outed as South Texas College of Law professor John Blevins (see links here, here, here, and here), got me thinking about the subject of anonymous blog posting. I never thought about doing it here, and I got nervous for a bit after considering Blevins' reasons for seeking to maintain anonymity. Perhaps it's a good idea -- I'm a practicing lawyer, and it's possible my views on things could create professional discomfort or even conflicts. And as I noted at one point in discussing gay marriage, I always fear one of my gay friends will misinterpret my legal and political views as imputing some sort of personal intolerance, which could not be further from the truth.

On the other hand, knowing that my name will be attached to my posts adds significant motive to more closely scrutinize my own thoughts and analysis, and to edit and tailor my language to more precisely reflect my ideas. Due to my work schedule, I do much of my writing in the evenings, sometimes just before I turn in for the night. There have been instances when I woke up the next morning in a panic about about whether something unintentionally inflammatory had slipped past me the night before. This has made me much more careful to jump into sharp criticism or hot-button topics. For the better, I think.

So I'm with the guys over at Power Line when they blame anonymity in part for the "dismally low level of discourse that generally prevails online." Not to condone Whelan's outing of Blevins (for which he subsequently apologized), but a fake person has little grounds to complain when he is outed by a real person. Better to just write what you mean, mean what you write, and own up to your ideas.

The Limits of Political Philosophy in an Existential World

2009-06-08T20:16:00.000-07:00

The other day, a co-worker and I were discussing "memory movies"--Memento, Total Recall, Eternal Sunshine of the Spotless Mind, The Matrix. Movies that play on the mind/matter dichotomy, that question whether there is a world outside the mind. It had been a while since I watched Memento, so I put in the DVD over the weekend. The plot of the movie is hard to recall because the whole story moves backwards, showing one five-minute scene, and then the five-minutes that happened before that, and so on. It produces a destabilizing effect that helps the viewer empathize with the protagonist, a man with a condition that prevents him from forming any short term memories, but who nonetheless plods ahead, scribbling notes and "facts" for himself, in his quest to find his wife's murder.

The movie gives a thoroughly existential account of human nature. Stripped of the comfort of our stabilizing memories, life simply moves by us, objects in the world impress upon our senses for a short while, and we occupy ourselves always with some present task, but never with any security that it will produce a meaningful consequence. Memory provides a means to anchor the otherwise meaningless torrent of experiential data by giving us the ability to engage in puzzles that require the accumulation and manipulation of information acquired over long periods of time. In this way, an otherwise meaningless present task can have meaning in its place in the larger puzzle. But mustn't we still ask, what is the point of the larger puzzle? Perhaps we simply must learn to stop asking questions of purpose; we make and solve puzzles, and that is all.

Memento also asks, as The Matrix does, how do we come to know anything that is outside the mind? And how can we communicate anything that is out there? How would we ever know that others might believe the same things that we do? We are full of biases, some universal among humans, but perhaps all slightly different. Reason is our only conduit, but it cannot bear the strain: words already truncate their writers' ideas, which thus may never be truly made known to others; and the ideas' full context can never be expressed, whether due to the writers' inability to account for it, or the listeners' attention span. Perhaps, then, we are foolish to believe that we can live in big societies held together by the slim cord of reason. We instead must rely on the mere coincidence of our agreement on things simply because they resonate in the right brain, not because they are approved by the left.

Healthcare Surrealism

2009-06-06T08:45:00.001-07:00

After sounding like a realist in his Cairo speech, Obama goes right back to calling for healthcare utopia in his radio address today:

Any health care reform must be built around fundamental reforms that lower costs, improve quality and coverage and also protect consumer choice."

NY Times reports:

Just how he plans to achieve that remains up in the air; the address was long on broad goals and short on specifics. Mr. Obama said that he had made it clear to Congress that health reform should not add to the budget deficit.
“We’ll work with Congress to fully cover the costs through rigorous spending reductions and appropriate additional revenues,” Mr. Obama said. “We’ll eliminate waste, fraud and abuse in our health care system, but we’ll also take on key causes of rising costs — saving billions while providing better care to the American people.”

Who could disagree with this? All upside and no downside. Somehow, I'm reminded of the project engineer's expression: "good, fast, and cheap -- pick two."

Tocqueville on the GM Takeover

2009-06-03T21:44:00.000-07:00

Alexis de Tocqueville once remarked on the unique character of America to achieve great things through its individualism:

[The American] makes known his plan, offers to execute it, calls individual forces to the assistance of his, and struggles hand to hand against all obstacles. Often, doubtless, he succeeds less well than if the state were in his place; but in the long term the general result of all the individual undertakings far exceeds what the government could do.

Of course, that was written before "too big to fail" entered the lexicon, and 31-year old wunderkinds were tougher to come by.

Is Gay Marriage a Slippery Slope to Polygamy?

2009-06-01T22:15:00.001-07:00

There is some great discussion on this question at Positive Liberty. In my opinion, commenter Braxton Thomason gets the better of the argument. If marriage is opened up to be merely the recognition of a romantic relationship of consensual adults, it will be tough-going to find a principled exception to polygamy. Once we have a few more TV shows like Big Love, it might not sound so exotic and weird. At that point, anecdotal arguments against polygamy will no longer be persuasive, and we'll start demanding some hard empirical data, just like we do now in the debate over same sex marriage.

In 20 years, Jason Kuznicki's arguments might subject him to the kinds of accusations of bigotry that SSM opponents incur today. Just like 20 years ago, one could probably win an argument against gay marriage by suggesting the "absurd" scenario of two men raising a baby. It goes to show that, until the minority group in question has reached a critical mass (e.g., once we can all point to a friend or family member who is a member of that group, thus stirring up some empathy), we don't need very strong arguments to justify discriminatory attitudes towards that group.

Thus, if you're pro SSM but anti polygamy, ask yourself whether the arguments against polygamy would hold up if you knew some really devoted polyamorous people who were really sweet and otherwise normal and just wanted to live their lives and overcome struggles without all the highfalutin rhetoric from people who have no business imposing their values on them. If you're a consistent libertarian, I think you'd have to dismiss the idea of making an exception, and hold that marriage must embrace polygamy. If you can't get over that there's something just wrong about it, well, you might soon be the target of a "you might be a redneck if..." joke.

Empathy Is Best Served by Adhering to the Law

2009-06-01T19:32:00.001-07:00

John Hasnas his this wonderful op-ed at the Wall Street Journal:

As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about -- that is, for those who are "seen."

One can have compassion for workers who lose their jobs when a plant closes. They can be seen. One cannot have compassion for unknown persons in other industries who do not receive job offers when a compassionate government subsidizes an unprofitable plant. The potential employees not hired are unseen.

One can empathize with innocent children born with birth defects. Such children and the adversity they face can be seen. One cannot empathize with as-yet-unborn children in rural communities who may not have access to pediatricians if a judicial decision based on compassion raises the cost of medical malpractice insurance. These children are unseen.

One can feel for unfortunate homeowners about to lose their homes through foreclosure. One cannot feel for unknown individuals who may not be able to afford a home in the future if the compassionate and empathetic protection of current homeowners increases the cost of a mortgage.

In general, one can feel compassion for and empathize with individual plaintiffs in a lawsuit who are facing hardship. They are visible. One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment. Those who must pay more for products, or are unable to obtain needed goods or services, or cannot find a job are invisible.

The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.

H/T Stephen Bainbridge

The Dems and Hispanic Judicial Appointments

2009-05-31T12:23:00.001-07:00

Worth reading over at Powerline:

If you don't read anything else today, read Byron York's searing account of what happened last time a brilliant Hispanic jurist was nominated to a high-profile appellate post:

Born in Honduras, [Miguel] Estrada came to the United States at 17, not knowing a word of English. He learned the language almost instantly, and within a few years was graduating with honors from Columbia University and heading off to Harvard Law School. He clerked for Supreme Court Justice Anthony Kennedy, was a prosecutor in New York, and worked at the Justice Department in Washington before entering private practice.

Estrada's nomination for a federal judgeship set off alarm bells among Democrats. There is a group of left-leaning organizations -- People for the American Way, NARAL, the Alliance for Justice, the Leadership Conference on Civil Rights, the NAACP, and others -- that work closely with Senate Democrats to promote Democratic judicial nominations and kill Republican ones. They were particularly concerned about Estrada.
In November, 2001, representatives of those groups met with Democratic Senate staff. One of those staffers then wrote a memo to Democratic Sen. Richard Durbin, informing Durbin that the groups wanted to stall Bush nominees, particularly three they had identified as good targets. "They also identified Miguel Estrada as especially dangerous," the staffer added, "because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible."

It was precisely the fact that Estrada was Hispanic that made Democrats and their activist allies want to kill his nomination. They were determined to deny a Republican White House credit, political and otherwise, for putting a first-rate Hispanic nominee on the bench.

They succeeded, too. They filibustered Estrada for years and he never made it onto the bench. So, when you see Barack Obama--who voted to filibuster Sam Alito!--piously denouncing "the political posturing and ideological brinksmanship that has bogged down this process" in the past, remember Miguel Estrada. Somewhere on this earth, there is a worse hypocrite than Barack Obama. I just can't think who he is offhand....

Should Judicial Appointments Be Used As a Mechanism to Quell Racial Tensions?

2009-05-30T13:39:00.000-07:00

Bill Handel this week extolled Obama for picking a Latina for a high position of power, explaining how it was a carefully calculated move to help mend relations between blacks and Hispanics. Two problems with this. First, aren't distinctions based on race supposed to be bad? This is not the same argument against affirmative action as "reverse racism." Affirmative action involves the idea of "setting things right," of "leveling the playing field" to make up for years of abuse of legal and political rights and processes. That is, because whites enjoyed power and wealth off the backs of minority groups for a period of time, some degree of promotion of minority groups ought to be permitted. In this way, the argument goes, we might achieve a degree of parity that we might otherwise not achieve, and thus truly become color blind.

But the Sotomayor appointment is different. As Handel argues, there are petty grievances between two minority groups, and we have a chance to fix it by doling out positions of power to selected members of those groups. That is, the appointments are made not because one group has been disadvantaged, as is the case in the affirmative action model. They are made instead because, without the appointments, some irascible members of the groups will continue to feel slighted, and the clash between the two groups will continue. This is a different sort of racial realism. And I find it extremely disappointing. Even if such racially motivated appointments quell these conflicts (which seems highly dubious to begin with), do they deserve to be quelled? And what about the costs? Are we to sacrifice the integrity of our crucial governmental functions to placate injured egos, to balance the demands of thugs?

Decisions based on race are infuriating. There is no end to the complications that are created when we make decisions based on race in the hopes of ending the practice of making decisions based on race. The answer is much simpler than that: stop making decisions based on race.

The Case for Marriage As a Cultural Institution

2009-05-30T10:03:00.000-07:00

I found Sam Schulman’s article, The Worst Thing About Gay Marriage, very interesting. It seems to suggest that the modern concept of marriage is already a bit off its traditional rocker, and that gay marriage would go the rest of the distance towards making it utterly meaningless. That is, the historical aims of marriage included protecting women and children, promoting chastity, defining the moment of transition from life as a child to life as an adult, are less relevant today. But, as applied to gays, they have absolutely zero relevance. Instead, marriage for the gay movement is seen merely as the next stage of romantic progression. This is a dangerous truncation of marriage, which traditionally had much broader impact on culture and individual and social human development. Ultimately, Shulman believes, gays will bore of it, everyone else will forget what it means, and the entire institution will die. Hard to say if that’s exactly how it will happen, but it’s a compelling argument.

The entity known as "gay marriage" only aspires to replicate a very limited, very modern, and very culture-bound version of marriage. Gay advocates have chosen wisely in this. They are replicating what we might call the "romantic marriage," a kind of marriage that is chosen, determined, and defined by the couple that enters into it. Romantic marriage is now dominant in the West and is becoming slightly more frequent in other parts of the world. But it is a luxury and even here has only existed (except among a few elites) for a couple of centuries—and in only a few countries. The fact is that marriage is part of a much larger institution, which defines the particular shape and character of marriage: the kinship system.

The role that marriage plays in kinship encompasses far more than arranging a happy home in which two hearts may beat as one—in fact marriage is actually pretty indifferent to that particular aim. Nor has marriage historically concerned itself with compelling the particular male and female who have created a child to live together and care for that child. It is not the "right to marry" that creates an enduring relationship between heterosexual lovers or a stable home for a child, but the more far-reaching kinship system that assigns every one of the vast array of marriage rules a set of duties and obligations to enforce. These duties and obligations impinge even on romantic marriage, and not always to its advantage. The obligations of kinship imposed on traditional marriage have nothing to do with the romantic ideals expressed in gay marriage.

Consider four of the most profound effects of marriage within the kinship system.
The first is the most important: It is that marriage is concerned above all with female sexuality. The very existence of kinship depends on the protection of females from rape, degradation, and concubinage. This is why marriage between men and women has been necessary in virtually every society ever known. . . .

. . . .

Second, kinship modifies marriage by imposing a set of rules that determines not only whom one may marry (someone from the right clan or family, of the right age, with proper abilities, wealth, or an adjoining vineyard), but, more important, whom one may not marry. Incest prohibition and other kinship rules that dictate one's few permissible and many impermissible sweethearts are part of traditional marriage. Gay marriage is blissfully free of these constraints. There is no particular reason to ban sexual intercourse between brothers, a father and a son of consenting age, or mother and daughter. . . . [Incidentally, I have argued the same thing here, here, and here.]

Third, marriage changes the nature of sexual relations between a man and a woman. Sexual intercourse between a married couple is licit; sexual intercourse before marriage, or adulterous sex during marriage, is not. . . .

Now to live in such a system, in which sexual intercourse can be illicit, is a great nuisance. Many of us feel that licit sexuality loses, moreover, a bit of its oomph. Gay lovers live merrily free of this system. Can we imagine Frank's family and friends warning him that "If Joe were serious, he would put a ring on your finger"? Do we ask Vera to stop stringing Sally along? Gay sexual practice is not sortable into these categories—licit-if-married but illicit-if-not (children adopted by a gay man or hygienically conceived by a lesbian mom can never be regarded as illegitimate). Neither does gay copulation become in any way more permissible, more noble after marriage. It is a scandal that homosexual intercourse should ever have been illegal, but having become legal, there remains no extra sanction—the kind which fathers with shotguns enforce upon heterosexual lovers. I am not aware of any gay marriage activist who suggests that gay men and women should create a new category of disapproval for their own sexual relationships, after so recently having been freed from the onerous and bigoted legal blight on homosexual acts. But without social disapproval of unmarried sex—what kind of madman would seek marriage?

Fourth, marriage defines the end of childhood, sets a boundary between generations within the same family and between families, and establishes the rules in any given society for crossing those boundaries. Marriage usually takes place at the beginning of adulthood; it changes the status of bride and groom from child in the birth family to adult in a new family. . . .

These four aspects of marriage are not rights, but obligations. They are marriage's "a priori" because marriage is a part of the kinship system, and kinship depends on the protection, organization, and often the exploitation of female sexuality vis-à-vis males. [I will add that this is the reason we have witnesses at wedding ceremonies—they are not merely witnesses to a sweet, romantic event; they are witnesses to the new marital duties being created.] None of these facts apply at all to love between people of the same sex, however solemn and profound that love may be. In gay marriage there are no virgins (actual or honorary), no incest, no illicit or licit sex, no merging of families, no creation of a new lineage. There's just my honey and me, and (in a rapidly increasing number of U.S. states) baby makes three.

What's wrong with this? In one sense, nothing at all. . . . But without these obligations—why marry? Gay marriage is as good as no marriage at all.

Sooner rather than later, the substantial differences between marriage and gay marriage will cause gay marriage, as a meaningful and popular institution, to fail on its own terms. Since gay relationships exist perfectly well outside the kinship system, to assume the burdens of marriage—the legal formalities, the duty of fidelity (which is no easier for gays than it is for straights), the slavishly imitative wedding ritual—will come to seem a nuisance. People in gay marriages will discover that mimicking the cozy bits of romantic heterosexual marriage does not make relationships stronger; romantic partners more loving, faithful, or sexy; domestic life more serene or exciting. They will discover that it is not the wedding vow that maintains marriages, but the force of the kinship system. Kinship imposes duties, penalties, and retribution that champagne toasts, self-designed wedding rings, and thousands of dollars worth of flowers are powerless to effect.

. . . .

As kinship fails to be relevant to gays, it will become fashionable to discredit it for everyone. . . .

In other words, marriage used to be a part of enforcing cultural mores and perpetuating a way of life. Now, that enterprise is taboo. Interestingly, gay-marriage proponents are not content with merely toppling traditional mores, and instead want to force open the definitions to suggest that such traditions now include and embrace them. They don’t want to kill the chief, they want to wear his feathers and rule the same old village with their brave new rules. Schulman believes that it will never work. Either the natives will kill the new “chief” and preserve the old order, or they will all eventually agree that the headdress has no meaning, and collectively cast it away.

(Ironically, I was referred to Schulman’s article by Ed Brayton, who posted his own write-up of the piece, with his usual staggeringly high ratio of insults-to-analysis, under the title “The Dumbest Anti-Gay Marriage Argument Ever.”)

You May Need a Permit to Conduct Home Bible Studies

2009-05-28T16:42:00.001-07:00

Here's another frightening story. What is it with San Diego?

SAN DIEGO -- A local pastor and his wife claim they were interrogated by a San Diego County official, who then threatened them with escalating fines if they continued to hold Bible studies in their home, 10News reported.

Attorney Dean Broyles of The Western Center For Law & Policy was shocked with what happened to the pastor and his wife.

Broyles said, "The county asked, 'Do you have a regular meeting in your home?' She said, 'Yes.' 'Do you say amen?' 'Yes.' 'Do you pray?' 'Yes.' 'Do you say praise the Lord?' 'Yes.'"

The county employee notified the couple that the small Bible study, with an average of 15 people attending, was in violation of County regulations, according to Broyles.

Broyles said a few days later the couple received a written warning that listed "unlawful use of land" and told them to "stop religious assembly or apply for a major use permit" -- a process that could cost tens of thousands of dollars.

[Update: The county backs off.

Why Obama's Economic Policies Failed Even Before They Saw the Light of Day

2009-05-22T18:09:00.000-07:00

Mark Steyn gets this one right on the money:

But forget the money, the deficit, the debt, the big numbers with the 12 zeroes on the end of them. So-called fiscal conservatives often miss the point. The problem isn't the cost. These programs would still be wrong even if Bill Gates wrote a check to cover them each month. They're wrong because they deform the relationship between the citizen and the state. Even if there were no financial consequences, the moral and even spiritual consequences would still be fatal. That's the stage where Europe is.

The Effects of Obama's Cowboy Economics

2009-05-22T12:40:00.000-07:00

This is absolutely wild.

May 19, 2009
Letter from a Dodge dealer
letter to the editor
My name is George C. Joseph. I am the sole owner of Sunshine Dodge-Isuzu, a family owned and operated business in Melbourne, Florida. My family bought and paid for this automobile franchise 35 years ago in 1974. I am the second generation to manage this business.

We currently employ 50+ people and before the economic slowdown we employed over 70 local people. We are active in the community and the local chamber of commerce. We deal with several dozen local vendors on a day to day basis and many more during a month. All depend on our business for part of their livelihood. We are financially strong with great respect in the market place and community. We have strong local presence and stability.

I work every day the store is open, nine to ten hours a day. I know most of our customers and all our employees. Sunshine Dodge is my life.

On Thursday, May 14, 2009 I was notified that my Dodge franchise, that we purchased, will be taken away from my family on June 9, 2009 without compensation and given to another dealer at no cost to them. My new vehicle inventory consists of 125 vehicles with a financed balance of 3 million dollars. This inventory becomes impossible to sell with no factory incentives beyond June 9, 2009. Without the Dodge franchise we can no longer sell a new Dodge as "new," nor will we be able to do any warranty service work. Additionally, my Dodge parts inventory, (approximately $300,000.) is virtually worthless without the ability to perform warranty service. There is no offer from Chrysler to buy back the vehicles or parts inventory.

Our facility was recently totally renovated at Chrysler's insistence, incurring a multi-million dollar debt in the form of a mortgage at Sun Trust Bank.

HOW IN THE UNITED STATES OF AMERICA CAN THIS HAPPEN?

THIS IS A PRIVATE BUSINESS NOT A GOVERNMENT ENTITY

This is beyond imagination! My business is being stolen from me through NO FAULT OF OUR OWN. We did NOTHING wrong.

This atrocity will most likely force my family into bankruptcy. This will also cause our 50+ employees to be unemployed. How will they provide for their families? This is a total economic disaster.

HOW CAN THIS HAPPEN IN A FREE MARKET ECONOMY IN THE UNITED STATES OF AMERICA?

I beseech your help, and look forward to your reply. Thank you.

Sincerely,

George C. Joseph
President & Owner
Sunshine Dodge-Isuzu

Empathy Means Going Under the Needle

2009-05-21T22:38:00.000-07:00

The NY Times on California Supreme Court Justice Carlos R. Moreno's empathy:

His opinions are measured in tone but show an eye for telling detail. A 2005 case involved a dispute over child support after the breakup of a lesbian couple. In reversing a lower-court decision that denied child support, Justice Moreno described the complex interplay of laws defining parenthood and signs of intent to form a lifelong commitment, but cut through the technicalities with a mention that “Elisa obtained a tattoo that read ‘Emily, por vida,’ which in Spanish means ‘Emily, for life.’ ”

Perhaps in the future lawyers will need to start asking clients whether they would consider having their requested relief tattooed across their backs. "Workers' Comp Por Vida."

Why Do Atheists Confuse God with Santa, the Easter Bunny, and the Slimy Custard Man?

2009-05-21T22:34:00.000-07:00

Tim Sandefur links to this story, in which Lydia McGrew explains "Why I don't teach my kids that Santa Claus is real." As Sandefur synopsizes, it's because "when kids realize there is no Santa Claus they might also start wondering about God." He complains that "McGrew gives no principled reason for believing in the existence of one but not the other; no explanation of why the arguments that apply to one would not also apply to the other--nothing but a bare assertion that God is 'different. He's real.'"

I am always befuddled that otherwise hyper-intelligent folks fail to grasp that God is a fundamentally different kind of being than Santa, or the Tooth Fairy, or aliens studying Hegel on Mars. When you talk about a claim, such as the existence of God, which, when rejected, undermines the possibility of making intelligible all other claims, that’s fundamentally different than rejecting the existence of the Stay-Puft marshmallow man. As Greg Bahnsen once put it, if I reject the idea that there are so many pounds of Cocoa Puffs in the world, that claim doesn’t have an effect on many other things. But when I reject the transcendental basis for causation, induction, and an objective morality, that's extraordinary.

"Empathy" Is For Quitters

2009-05-20T21:57:00.000-07:00

Many conservatives, myself included, have seized upon Obama's "empathy" litmus for determining his appointment for the next Justice of the Supreme Court. The argument is that "empathy" is a code word for judicial activism, and judicial activism is bad. The most natural counter to the argument, then, is to pick apart the term "judicial activism." The argument proceeds in two parts. First, "judicial activism" is a bastardized term thrown around to mean simply "any judicial decision one happens not to like." Second, judicial activism is inescapable anyway, so we should just embrace it.

As to the first point, it is true that judicial activism is often wrongfully confused with “judicial review,” which is simply what courts do when they conclude that two laws are irreconcilable, and strike down the lesser to preserve the integrity of the greater. Tim Sandefur has a good explication of this here. Judicial activism is best understood as a corollary of political activism. Where political activists petition and exploit the political system in order to advance a particular policy objective, judicial activism is the petitioning and exploitation of the judicial system to advance a particular policy objective. It can be troubling when certain activists do this, such as environmental groups, or class action tort lawyers. The courts have developed an elaborate doctrine of “standing” to prevent some of the more egregious abuses of this, in fact. That is, if you’re not someone who was actually harmed by a particular law, you have no business petitioning against it through the judicial process—and the court will tell you so.

The real problem with judicial activism is when judges exploit the judicial system to advance their personal policy objectives. This occurs, as Orin Kerr over at The Volokh Conspiracy describes, when all the legal arguments only get you to a little better than 50% chance of getting the thing right. What you’re left with, the argument goes, is nothing more than personal policy preference of the particular judge. Thus, there’s no escaping judicial activism, and all the conservatives should just put a cork in the objections to Obama’s “empathy” talk. After all, if a judge cannot escape using his or her personal preferences, we should hope for something friendly-sounding, like judges with empathy, rather than something nasty-sounding, like judges who like to hurt puppies and draw Hitler mustaches on people’s pictures.

But this resigned acceptance of “judicial activism” is disconcerting. Ed Brayton explains why he thinks judicial activism (in particular, infusing “empathy” into judicial decision-making) is no big deal.

Which makes me laugh because "activist judge" is sort of the ultimate judicial code word. All of this highlights the split between formalism and legal realism, which roughly (but only roughly) corresponds to the conservative/liberal divide. Conservatives generally believe that judicial decisionmaking is merely a question of process; apply the proper rules of interpretation and you reach an objective, non-ideological, non-political conclusion.
This is nonsense, of course; conservatives are no less likely to have their values and political views influence their judicial decisionmaking than liberals, they just pick the process that leads to the result they want (and ignore that process when it doesn't reach that result; yes, I'm looking at you, Justice Scalia in the Raich case).

But need we throw in the towel so soon? There is no shortage of theories of legal and constitutional interpretation. Sure, anyone could make the argument that what a judge was really doing was imposing a personal preference, and using originalism, anti-majoritarianism, democracy-maximization, egalitarianism, or what-have-you as a mere pretext to get there. So what? Let them. If it’s a pretext, dissect the judge’s reasoning and expose the flaws. That is what the western Enlightenment tradition is good for. I suspect that a good many judges hop around from one theory to another for lots of different reasons—perhaps because they are concerned more about outcome than process; perhaps because they believe different cases call for different judicial theories; or perhaps because, well, judging is just hard and judges don’t have it all figured out yet.

Whatever is happening below the surface, the judge has to give reasons. Strictly speaking, “the judicial power” that the Constitution vests in the Court does not permit judicial activism. A judge has to come up with a decision based on reasons, not just conclusions. Judges might not help having conclusions before they have reasons. But reasons must be given. And the hope is that, in the process of giving them, the knee-jerk conclusion would give way to one that follows naturally from legal premises.

But the one thing we should not do it tell judges to hang it up, forget about jurisprudence, about consistency, about exercising judicial power. Instead, when things get tough, ask the litigants to show you their bank accounts, and go with the one who could use a little boost.

Judges may use whatever process supported by reason they deem fit to decide a particular case. “Empathy,” however, is not such a process. It is, to repeat Kerr, “an invitation to replace law with politics.”

How Many "Sexual Orientations" Are There, Anyway?

2009-05-20T21:36:00.000-07:00

Ed Brayton thinks it’s silly to suggest that the definition of “sexual orientation” under a proposed federal hate crime law could be interpreted to mean more than just homosexuals. According to Rep. Steve King:

"The definition for sexual orientation was defined by one of the principal authors, Tammy Baldwin of Madison, Wisconsin, as being either heterosexual or homosexual. Well, so within that definition, though, of sexual orientation by the American Psychological Association you've got a whole list of proclivities -- they call them paraphilias -- and in that list, among them are pedophiles.

I’ll grant that this is not the tack I would take. But the review of these claims by PolitiFact is too quick to dismiss the kernel of truth to the argument. Black’s Law Dictionary, as cited by PolitiFact, defines “sexual orientation” as “A person's predisposition or inclination toward a particular type of sexual activity or behavior; heterosexuality, homosexuality or bisexuality.” Even PolitiFact concedes that “That first part seems to lend some weight to King's argument.” But that should be dismissed, PolitiFact says, because the “working definition” of the term, both by federal and state governments, has held to mean simply gays, lesbians, and heterosexuals. Therefore, the argument goes, “It's laughable,” that anyone would worry that the definition might be expanded at some indeterminate point in the future.

But is it really? Would it have been silly to wonder whether Title VII’s prohibition of “gender” discrimination extended to transvestites? The circuits currently split on the issue aren’t laughing. As the elastic cultural waistband continues to expand, more and more sorts of activities will start to seem less and less objectionable. Perhaps pedophilia is a bad example of a proclivity in queue for imminent embrace. But polygamy might not be. We’ve even got an HBO show about it. And incest practitioners have been lurking in the shadows, and I’m sure they would appreciate it if we all got less queasy about their particular “orientation.” As soon as these groups see their political opening, a friendly neighborhood ACLU lawyer will be ready to seize on loose-fitting terms like “sexual orientation,” and argue that the “working definitions” that stodgy, knuckle-dragging officials have clung to for so long have no place in the ever-expanding openness of our morally neutral society.

We commit ourselves to the objective meanings of the words and terms that we choose for our laws. I quite agree that we have no firm idea of what exactly we are committing ourselves to with a term like “sexual orientation.” If we just mean gay, lesbian, and heterosexual, let’s just say that. Who’s afraid of a few extra syllables?

Will Those Judges Who Look to International Law Consider Mexican States Defining a Fetus as a Person?

2009-05-13T19:43:00.001-07:00

Apparently, there are ten Mexican states that define a "person" something like the way Guanajuato decided to do last week: as "all human beings from conception to natural death." Left-leaning judges tend to be warm to the idea of looking to international precedent for human rights issues. It would be interesting to see if anything is made of the Mexican trend were the issue to come up.

H/T Religion Clause

Health Care Bill Drafting Plagued By Fiscally Conservative Dems

2009-05-11T22:23:00.000-07:00

The Times reports that fiscally moderate to conservative democrats are being excluded from the bill-drafting process:

The lawmakers, members of the fiscally conservative Blue Dog Coalition, said they were “increasingly troubled” by their exclusion from the bill-writing process.

. . . .

Centrist Democrats said they fully endorsed President Obama's goal of guaranteeing access to health insurance and health care for all. But, they said, they are concerned about the cost of the legislation, which could easily top $1 trillion over 10 years. And they want to be sure that the role of any new government-sponsored insurance program, expected to be a centerpiece of the bill, is carefully delineated.

Seems the war against conservatism knows no party lines.

Obama's Push For Credit Card Legislation Could Use Less Demagoguery

2009-05-09T09:03:00.001-07:00

I've noted elsewhere that, though I'm generally a supporter of free markets and freedom of contract, I think credit cards are something like an "attractive nuisance." The present upsides are too enticing, and the latent traps are too understated. The credit card is an unnatural, unholy beast to begin with, so I have little problem with regulating them.

So, if it's so easy to bash credit cards, why does Obama feel the need to conscript "rights" talk into his rhetorical campaign against them? Fox News reports that, just today, Obama said:

Americans . . . . have a right to not get ripped off by the sudden rate hikes, unfair penalties and hidden fees that have become all-too common."

Certainly, "ripped off" is a self-serving term. If credit card companies were really ripping people off--i.e., breaking their contracts--they would be liable for, well, breach of contract, and we wouldn't need new legislation. What he's really getting at is that credit card companies shouldn't be able to structure agreements that allow them to hike rates the way they do. And perhaps they shouldn't.

But there is no "right" that any of us have to be able to have credit cards with terms all to our liking. At least, not until Obama and his Congress give us one. It is this loose talk about "rights" that keeps us all inebriated with a sense of entitlements--to afford an unwieldy mortgage, to have broadband internet, to full-coverage healthcare, etc.

National Mock Trial Group Agrees To Accommodate Sabbath Needs

2009-05-08T07:13:00.000-07:00

From Religion Clause:

Under intense pressure, the National High School Mock Trial Competition yesterday, at the last minute, agreed to a compromise that will accommodate the Sabbath observance needs of the Jewish team members from Maimonides High School of Brookline, Massachusetts in this week end's tournament. (See prior posting.) JTA reported that the team will be permitted to start the competition Thursday afternoon and, if Maimonides reaches the finals, the start of the championship round will be delayed from 5 p.m. until 9:30 p.m., after sundown, on Saturday. Maimonides had originally wanted all of its rounds scheduled on Thursday and Friday-- a change that organizers said was unreasonable.

Does this deserve the collective "oh, jeez" it certainly would have received if were an Islamic accommodation?

U.S. to Condemn Land for Flight 93 Memorial

2009-05-07T22:30:00.001-07:00

The federal government will use eminent domain to assemble land to build a memorial to Flight 93 and its passengers who diverted terrorist hijackers. I can think of no better way to honor the heroes who gave their lives defending freedom than to forcibly confiscate other citizens' property.

States Now Rely On Federal Government More Than Themselves

2009-05-05T20:10:00.001-07:00

I find this just terrifying. If state revenue is now channeled through the federal government--who may attach what strings it likes--just what is the point of a federalist system of government in the first place? Will state lines soon be nothing more than a convenient way of describing one's geo-coordinates, a quaint historical quirk in a neo-nationalist megastate?

H/T Volokh

Community Organizers Turned Policy Makers

2009-05-03T21:54:00.000-07:00

In the bookstore flipping through Why I'm A Democrat, was struck by this quote from Maira Kalman: "I am a Democrat because I have a sense of humor! And a love of people! And democracy! And strawberry cheesecake! And a love of Spinoza!" Well, that about sums up the notion of too many folks who think that political parties are nothing more than aggrandized hobby clubs tired of having to influence everyone to their point of view, and who realized that, through politics, one need only convince 51% to secure hegemony of perspective.

This seems to be the big fight of our day--not the issues themselves (we will always lock horns on issues)--but instead the means we will restort to in advancing our respective points of view. It is a dangerous thing to use our sacred constitutional system to institutionalize some sort of lemonade-stand mojo.

Obama Will Replace Souter With Someone Who Cares About The Rule Of Law? Don't Count On It

2009-05-02T22:23:00.001-07:00

Faced with the unexpected delight of appointing his first Supreme Court justice, Obama has said that he will seek to fill Souter's seat with some one "dedicated to the rule of law." And yet then he went on to give these remarks, suggesting he will appoint someone who understands that "justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives." The NY Times reports:

[M]ore than anything else, he is a pragmatist who urged those around him to be more keenly attuned to the real-life impact of decisions.

. . . .

Though Mr. Obama rarely spoke of his own views, students say they sensed his disdain for formalism, the idea — often espoused by Justices Scalia and Clarence Thomas, but sometimes by liberals as well — that law can be decided independent of the political and social context in which it is applied.

. . . .

Former students say that Mr. Obama does not particularly prize consistency or broad principle. . . .

This all seems to be consistent with what he warned us of during his candidacy:

[I]n the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsb[u]rg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

No Legitimate Secular Purpose In Religion Bashing

2009-05-02T21:54:00.001-07:00

Religion Clause reports that the district court for the central district of California recently found that there was no legitimate secular purpose in a high school science teacher's characterization of Creationism as "superstitious nonsense."

Beneath What Is Seen Is That Which Is Unseen

2009-04-29T23:51:00.000-07:00

Tim Sandefur was not happy with me when, in May 2007, the Chapman Law Review, of which I was editor-in-chief at the time, published an article by Steven W. Trask entitled Evolution, Science, and Ideology: Why the Establishment Clause Requires Neutrality in Science Classes. So upset was Sandefur that he not only wrote a scathing attack on it at Positive Liberty (in which he admonished me and several other named individuals to feel “deeply ashamed” of ourselves for our association with the work), but even submitted a rebuttal to the Chapman Law Review, which was published in its next issue. 11 Chap. L. Rev 129, 135 (2008).

Francis Beckwith has now joined the fray by submitting his own letter to the editors of the Chapman Law Review, which letter was recently published in the Fall 2008 issue. Sandefur’s blog response promptly followed.

In this particular debate, Sandefur continues to fail to come toe to toe with the nature of the problem. That is to say, while Sandefur trumpets the utility of science, he ignores the metaphysical objections at issue, most famously expressed by David Hume when he demonstrated that science’s most essential tools—induction and causation—could not be proven by empirical observation. Metaphysics thus underlies all science, and is precedent thereto. Accordingly, any honest practitioner of science must necessarily admit to certain metaphysical precommitments.

As an example of the superficiality of Sandefur’s arguments, in his response to Trask’s article referenced above, Sandefur cites an anecdote by pop-atheist Richard Dawkins that "there are no postmodernists at 30,000 feet." Again, usefulness is not the same thing as knowledge. The question is not how we test whether things are useful, but how we can justify our claims to knowledge in them. I explained this further in a response to a post by Ed Brayton who also joined in blasting Trask’s article, also without coming toe to toe with the metaphysical crux of the problem.

I have no dog in the fight between Sandefur and Beckwith, or between Sandefur and Trask. Indeed, I am interested less (or not at all) with advancing Intelligent Design theory than I am with the fact that so many folks, even highly intelligent ones like Sandefur, appear entirely unable to grasp the limits of science. But Sandefur’s excessive use of strawmen and misdirection in these discussions has been troubling. Sandefur says that anyone who does not subscribe to science qua epistemology (as Sandefur states, “[s]cience is certainly an epistemology”) “[t]hey want equal time for unscientific appeals to supernaturalism.” I don’t know who is talking about “equal time.” As I suggested in a previous post, the competing metaphysical views underlying natural selection theory ought to be presented “in a confined discussion about metaphysics, or, if that makes the scienceniks too nervous, forget the whole thing.” But I don’t hear anyone advocating the teaching of miracles or otherwise subverting the scientific method. If there are, I will gladly join in the arguments against them. As to “unscientific appeals,” science itself is “unscientific,” in that its parameters are defined by metaphysics, not observable demonstration.

Sandefur also states that “they want their acceptance of magic to receive the same respect that rigorous scientific discourse receives.” Again, I don’t know who wants this. Scientific truth is different than metaphysical truth. Once we accept scientific principles, the truths that are derived by that process systematically follow. But the acceptance of “science” in the first place is not and cannot be justified by scientific method. Science is antecedent to metaphysics. The objections are not to the truths that are yielded by scientific process, but to the suggestion that there is nothing, but nothing, that falls outside the scrutiny of science, all the while subscribing to unstated and invisible metaphysical precommitments. Sandefur’s use of the word “magic” is obviously pejorative and designed to dissuade objectors lest they appear foolish and ignorant.

Intelligent Design (at least in the limited sense in which I would support it at all) deals with the systematic limitations of science. It is a metaphysics that purports to address the necessary network of precommitments needed to engage in scientific inquiry. To attack such a metaphysics on the erroneous assumption that it intrudes on science’s territory is not to think too little of the metaphysics, but to think too much of science.

Objectivists such as George Smith have attempted to explain away science’s metaphysical gaps by suggesting that the job is done by self-verifying truths, such as the law of identity. As Rand and her followers like to express it, “A is A.” But this charitably terse expression makes it quite easy to identify where the unjustified and arbitrary leap occurs: the word “is.” At the risk of sounding like Bill Clinton, let’s ask what is meant by that word. If A is A, then the present A is identical to the present A. But that cannot be all that is meant, else the expression would be quite useless. What is also meant is that A has always been A, and that A will always continue to be A. That is, the simple statement makes profound assumptions about the reliability of memory of the past, the predictability of the future, and the orderly perpetuation of the present state of affairs throughout time. Is all of that self-authenticating? Certainly we need to believe all of that to do science. But is something true simply because it is convenient?

The fact is, science cannot account for the metaphysical ideas that justify and sustain it, as well as those contained in natural selection, i.e., the idea that we were directed not by God but instead by nothing. When scienceists insist that they and they alone should be permitted to fill in the gaps of this metaphysical construct with the ideas that they deem appropriate, they run smack into the very problem they started with: the positing of “truth” by arbitrary fiat. And when a critical mass of such folks, particularly when organized around a set of metaphysical principles handed down by a leader given special reverence (viz., Ayn Rand), get together in an effort to proselytize their views, there is a word for that: religion.

The Secular Right contributor going by the pseudonym “David Hume” suggests that the fact that science has metaphysical underpinnings is “true but trivial.” I cannot believe that he truly thinks that. For the non-philosopher, such a statement may be true—talk among pointy-headed intellectuals usually yields no obvious benefit to things that matter to everyday life. But metaphysical truth—including things like rights and law and political theory—is profoundly important to human flourishing. To suggest that the only kind of truth worth knowing is the kind that can be used to build a better coffee maker is incredibly offensive to those who genuinely care about the human pursuit of knowledge.

Does any of this mean that science itself is a religion? No. Not anymore than language is a religion. But like language, science requires its practitioners to bring a metaphysics to the table. That is because science does not provide its own justification for concepts necessary to make it work, like induction, causation, and order.

The pursuit of truth and knowledge is thwarted, not advanced, by lobotomizing entire areas of thought. Despite Tim Sandefur’s call, no one should feel ashamed for refusing to disavow the possibility of truth that casts no shadow.

Update: Jason Kuznicki has this post at Positive Liberty that offers an example of how closely metaphysical questions relating to epistemology, theology, teleology, and ethics are bound up with Darwinian thought.

Derb's Secular Defense Of Traditional Marriage

2009-04-29T18:32:00.000-07:00

Leave it to John Derbyshire to make the case for traditional marriage go over like Bob’s your uncle. Most notably:

(3) There really is a slippery slope here. Once marriage has been redefined to include homosexual pairings, what grounds will there be to oppose futher redefinition — to encompass people who want to marry their ponies, their sisters, or their soccer team? Are all private contractual relations for cohabitation to be rendered equal, or are some to be privileged over others, as has been customary in all times and places? If the latter, what is wrong with heterosexual pairing as the privileged status, sanctified as it is by custom and popular feeling?
. . . .
(6) There is a thinness in the arguments for gay marriage that leaves one thinking the proponents are not so much for something as against something. How many times have you heard that gay marriage is necessary so that gay people will not be hindered in visiting a hospitalized partner? But if hospitals have such rules — a thing I find hard to believe in this PC-whipped age — the rules can be changed, by legislation if necessary. What need to overturn a millennial institution for such trivial ends?

Though I frequently defend religion (I've been a Johnny-one-note lately, for some reason), religious justifications for laws are of the lowest order, and only hold up when there is no animus or are not otherwise demonstrably stupid. Derbyshire's are the kinds of arguments that conservatives ought to be making.

"Mexican Flu" for me...I don't eat pork

2009-04-29T07:24:00.000-07:00

The Religion Clause blog reports that Israeli Deputy Health Minister Yakov Litzman "is suggesting that the disease be called 'Mexican flu' because of Jewish and Muslim sensitivities over pork products." The suggestion seems to be that Mexicans won't mind, as they are quite used to connotations with disease and pestilence; better to associate the deadly virus with them than discomfort folks who'd rather not hear about icky pigs.

Church Victory Against Hostile Local Political Activists

2009-04-28T20:06:00.001-07:00

The Religion Clause Blog has this news on the Grace Church case I worked on. And here's another piece on it. As a student working with Claremont's Center for Constitutional Jurisprudence at Chapman Law School, I explained to the San Diego Planning Commission what RLUIPA (the Religious Land Use and Institutionalized Persons Act) was, and why denying Grace Church a use permit because "we have enough churches" was an impermissible burden on religious exercise. Local politicians generally don't like being told they can't do whatever they want.

If The President Doesn't Make Decisions On Prosecutions, Who Does?

2009-04-27T12:26:00.000-07:00

Robert Gibbs made this curious statement on Meet the Press, according to Fox News:

"The president doesn't open or close the door on criminal prosecutions of anybody in this country, because the legal determination of who knowingly breaks the law in any instance is one not made by the president of the United States," he said on NBC's "Meet the Press."

What could this statement mean? Taken at face value, it is true that "the legal determination of who knowingly breaks the law" is made by the trier of fact--either a judge or jury. But this is true of any prosecution. It would be nonsensical to say that a district attorney does not make decision on who to prosecute, since he or she does not make the ultimate determination of guilt.

Instead, it seems like Gibbs is doing some buck-passing on behalf of his boss. That is, whatever happens, it's going to be either because Congress, or Holder, or the slimy custard man made the call. But the Constitution does not vest the authority to execute the law in a congressional sub-committee or an appointed executive official. It vests in the president.

Meaningless Jobs Are Not Worth Saving or Creating

2009-04-25T14:29:00.001-07:00

I stumbled upon this February 2007 article by Thomas Sowell describing how taxpayer money was used to pay for golf courses. Not because of rich old white guys in plaid pants. If there were more of them, no subsidies would have been needed. No, it was because the lower class workers at the courses needed to keep their jobs.

If you put San Francisco's golf courses on the open market, in a city with a serious housing shortage and sky high housing prices, chances are good that the land occupied by golf courses would quickly be bid away by those who would build some much-needed housing.

Of course, this would make the city's municipal golf course workers unhappy. And unhappy municipal workers can be a big problem for a politician, especially if these are union workers.

How have San Francisco's golf courses been kept going when they cost more to maintain than they are receiving in fees from the golfers who use them? Recent renovations alone cost more than $23 million.

According to the San Francisco Chronicle, "the city closed the gap with $16.6 million from state bond funds meant for recreation and park projects in underserved and economically disadvantaged areas." In other words, the poor have once again been used as human shields, this time to protect golfers.

From the sounds of things, instead of moving away from this absurd model, we've turned directly at it and stepped on the accelerator. No one seems to care if all the jobs the government is creating or saving are worth anything to anyone beyond the folks who will get a paycheck and something to keep them occupied on the weekdays.

Richard Dawkins On Free Will

2009-04-25T10:10:00.000-07:00

I posted this a couple years ago on one of my past blogs. I always find the topic worth revisiting.

The following is a transcript of a question posed to and answered by preeminent scientist Richard Dawkins about determinism. (I cannot now seem to find the original source -- upon a Google search, the only hit returned is a Czech site that appears no more authoritative than my copy-paste job below.) It is a delicious conundrum, and one that, in my experience, is quite impolite to bring up in friendly conversation. Quite like religion and politics. In fact this was brought up in the context of a discussion on religion, so the door of impropriety had already been flung wide open.

Richard Dawkins at Politics and Prose .. The God Delusion
Question and Answer

Questioner: Dr. Dawkins thank you for your comments. The thing I have appreciated most about your comments is your consistency in the things I've seen you written. One of the areas that I wanted to ask you about and the places where I think there is an inconsistency and I hoped you would clarify it is that in what I've read you seem to take a position of a strong determinist who says that what we see around us is the product of physical laws playing themselves out but on the other hand it would seem that you would do things like taking credit for writing this book and things like that. But it would seem, and this isn't to be funny, that the consistent position would be that necessarily the authoring of this book from the initial condition of the big bang it was set that this would be the product of what we see today. I would take it that that would be the consistent position but I wanted to know what you thought about that.

Dawkins: The philosophical question of determinism is a very difficult question. It's not one I discuss in this book, indeed in any other book that I've ever talked about. Now an extreme determinist, as the questioner says, might say that everything we do, everything we think, everything that we write, has been determined from the beginning of time in which case the very idea of taking credit for anything doesn't seem to make any sense. Now I don't actually know what I actually think about that, I haven't taken up a position about that, it's not part of my remit to talk about the philosophical issue of determinism. What I do know is that what it feels like to me, and I think to all of us, we don't feel determined. We feel like blaming people for what they do or giving people the credit for what they do. We feel like admiring people for what they do. None of us ever actually as a matter of fact says, "Oh well he couldn't help doing it, he was determined by his molecules." Maybe we should.. I sometimes.. Um.. You probably remember many of you would have seen Fawlty Towers. The episode where Basil where his car won't start and he gives it fair warning, counts up to three, and then gets out of the car and picks up a tree branch and thrashes it within an edge of his life. Maybe that's what we all ought to... Maybe the way we laugh at Basil Fawlty, we ought to laugh in the same way at people who blame humans. I mean when we punish people for doing the most horrible murders, maybe the attitude we should take is "Oh they were just determined by their molecules." It's stupid to punish them. What we should do is say "This unit has a faulty motherboard which needs to be replaced." I can't bring myself to do that. I actually do respond in an emotional way and I blame people, I give people credit, or I might be more charitable and say this individual who has committed murders or child abuse of whatever it is was really abused in his own childhood. And so again I might take a ..

Questioner: But do you personally see that as an inconsistency in your views?

Dawkins: I sort of do. Yes. But it is an inconsistency that we sort of have to live with otherwise life would be intolerable. But it has nothing to do with my views on religion it is an entirely separate issue.

Questioner: Thank you.

I always felt it was a surprisingly honest answer -- Dawkins has faith in free-will. Now, if only we might disabuse him by recounting all the terrible deeds that free-will is responsible for, we can cure him of his Volition Delusion.

Some Thoughts On Yesterday's Debate On The "Torture Memos"

2009-04-22T20:02:00.000-07:00

Chapman Law School (my alma mater) yesterday hosted a debate on the so-called "torture memos" between John Yoo and Chapman Dean John Eastman, on the one hand, and Chapman Professors Rosenthal and Darmer, on the other. (See OC Register story here, video here. I won't rehash all of the arguments made, as many of them were repetitive -- liberty versus security, the definition and application of "torture," etc. But one point stood out, as observed by a colleague of mine. There was a fair amount of talk about the first principles of our constitutional republic, and how those are resolved in the face of the "Take Care" clause of Article II section 2 (the president "shall take Care that the Laws be faithfully executed"). The question was answered by both Yoo and Eastman, and can be briefly summarized in that the U.S. Constitution does not create a parliamentary system in which a statute of Congress can abrogate the executive authority conferred by the Constitution, but instead that the Constitution is above statutory law. Thus, the question is not whether the President's actions were unlawful, but whether Congress's statutes were unlawful. But Professor Rosenthal doggedly repeated the "Take Care" clause from his pocket Constitution, to the crowd's delight.

Why would he do this? my colleague asked. Sure he understands the problem, the nature of Yoo's and Eastman's position? Why would he incessantly repeat the argument without at least seeking to advance it beyond the already covered ground?

As I took two courses from Rosenthal, I will note that I was also disappointed in his presentation, but that this is not indicative of the way he ran his classes, at least when I was there. I took Criminal Procedure and First Amendment from Rosenthal, and he is a tough, persistent oralist. I think the emotional component of the issue got the better of him yesterday, something that never happened in his classrooms.

As for the arguments themselves, Rosenthal has a somewhat narrow view of what qualifies for constitutional/legal discussion, and for that reason is extremely unreceptive to natural law or background principles. His view seems to be, if it does not lend to a result that can be demonstrably justified with current data to a contemporary “we the people,” it doesn’t qualify for legal debate. He loves to remark that many historians are puzzled when jurists cite examples from history, since those historians themselves cannot agree on history’s meaning and lessons. Instead, he prefers to cite social science data to come up with pragmatic justifications of what a “reasonable” search and seizure might be. He does not seem to be troubled that such data can come up against the very same argument as history – it can be used to prove anything. Perhaps social scientists are less willing to admit the limits of their craft than historians are.

Given all that, certainly Rosenthal understands the point that we are not a parliamentary system of government. As he is a participant in a debate, of course, it is in his best interests to just ignore the point – most folks will respond more favorably to the “plain,” unscrutinized meaning of the Take Care clause. The argument from constitutional first principles is even an uphill one in the academic community at large, so, if you’re Rosenthal, better to just leave it alone than to give the other side the opportunity to advertise and explicate the position.

Is it honest? No. If he were a lawyer, there would be no problem with ignoring, as long as possible, a legitimate view that, if accepted, would demolish his own. [Come to think of it, there are problems with that.] As a professor in a debate about the law (i.e., rather than over a particular outcome), however, it was improper and a disappointment.

[Find the full debate podcast here.]

[See Stephen F. Hayes's article, "The CIA interrogation debate is joined," at The Weekly Standard, on the Obama administration's double-talk on the interrogation issues.]

Humanity Without Religion Ceases To Be Humanity

2009-04-22T19:39:00.000-07:00

John Derbyshire suggests that the question "Can humanity survive over the long term without religion?" can be answered in the same way as the question "Can humanity survive over the long term without music?" I disagree. Religion is not "just a feature of the general human personality." On the list of qualities that make up our humanity, I would put religion closer to language. Thus, imagine that all known languages were obliterated. Humans, so long as they remain such, will forge ahead with some new way of communicating, i.e., through language. Similarly, even were we to reject every known systematic method of organizing metaphysical premises in order to make sense of the observable world (i.e., religion), we will forge some new one. This is because, of course, the pursuit of knowing things is essential to being human. That is to say, without music, we might say we would be "less" human. But without language or a method of knowing stuff, it is fair to say we would cease to be human at all. Featherless bipeds, more like.

At its root, religion is really little different from metaphysics. And humans need metaphysics for important things like, well, knowledge and morality and justice and so forth. Every religion takes on a culture of its own, and adopts a fair number of silly and nasty habits. These idiosyncrasies really seem to get atheists and secular humanists and "brights" and what-have-yous all bustling with agitation. But to deny metaphysical truth, which is the kernel of religion, is to yank out the whole foundation of human knowledge.

[Some further discussion on this point at Secular Right.]

Steve Schmidt Thinks Sticks and Stones Will Break Conservative Bones

2009-04-20T22:34:00.000-07:00

Former McCain campaign manager Steve Schmidt says Republicans should drop the anti-gay marriage angle to avoid appearing "sectarian." If the suggestion were purely strategic--i.e., to enlarge the tent--I could understand it (though I would still disagree). But I take issue that there is something wrong with holding "sectarian" views. After all, what else is there? We all hold deeply personal views and seek to demonstrate the rightness of them. Perhaps Schmidt is suggesting a framework that says moral views are irrelevant in the political arena, or that the only appropriate moral limit to one's freedom is that which keeps it from harming another. Either way, Schmidt sounds like he needs directions to libertarian HQ. But everyone gets called a bigot and an elitist sooner or later no matter what views they hold. Even libertarians. It is hard to see any nobility or useful strategy in just conceding the point.

Bruce Ledewitz Says Secularism Needs Religion

2009-04-11T13:32:00.000-07:00

From today's Huffington Post column, "Secular Life in Post-Christian America":

As I have argued on this blog and in my book Hallowed Secularism, the easy assumption that secular culture will be healthy without religion may prove to be false. Secularists have an unwarranted confidence in themselves and in a new cultural formation. In contrast, I think raising children without religion is quite difficult.

Let me take a specific example. Daniel Dennett came to the New School in New York City in March and told an audience that they should all repeat to defenders of religion that "people can be good without religion." Dennett presumably exults in the decline of Christianity.

But religion by and large does not claim that it makes people good. Instead, religion, and especially Christianity, begins with the proclamation that people are not good. We lie, we cheat, we steal, we cheat on our spouses and we allow a billion people in the world to live on a dollar a day.

Which is more realistic about human nature, Dennett or the classic Christian view? And what, and for that matter how, will you teach your children the truth about such matters?

Undoubtedly, the decline of religion is inevitable in a scientific culture. Something, however, must replace religion's wisdom and insight. I assume that whatever that something turns out to be, it will have to borrow from the best of what religion has to offer if it wants to be successful in promoting human flourishing.

I agree, obviously, as I've suggested repeatedly.

No Animus, No Scrutiny—Or, Another Reason Why Iowa's High Court Was Wrong

2009-04-11T00:39:00.000-07:00

After reflecting further on the Iowa Supreme Court’s decision last week in Varnum v. Brien, invalidating that state’s marriage law, it occurred to me that the court’s error was one fundamental to the understanding and structure of equal protection rather than a mere error in application. The court proceeds as one would expect: determine that the law discriminates against a class; determine that that class is a suspect one warranting heightened scrutiny; determine that there is no important state interest; and thus determine the Iowa marriage statute is unconstitutional. What the court fails to analyze, however, is the very touchstone of the equal protection analysis: the existence of animus behind the law, which animus is necessary to strip a law of its presumption of constitutionality.

All laws create classifications. Real estate brokers are subject to a set of regulations separate from mortgage brokers, separate from investment brokers, separate still from doctors, lawyers, and pest exterminators. The equal protection doctrine—whether federal or state—does not make any of these regulations unconstitutional on the basis that they treat groups of professionals differently. Obviously, such would put a quick end to most laws—a happy result for some, but certainly not the objective of equal protection. Instead, its objective is to prevent majorities from enacting laws for some improper purpose other than the health, safety, morals, and welfare of the people.

The 14th Amendment, obviously, sought to rid the states of laws that were premised on wrongheaded notions of race, which had cropped up in part due to an effort to legitimize and prolong the hopelessly illegitimate and doomed institution of slavery. Because of that particular unfortunate history, laws making classifications on the basis of race would have to be carefully and seriously monitored by our counter-majoritarian courts. And, because legislatures could easily hide its true motives, the only way the courts could achieve that purpose was to create a presumption that distinctions based on race were based on animus, and thus put the onus on the states to prove otherwise. This is what became known as strict scrutiny, where the state would be required to show a “compelling” state interest for the discriminatory law, and that it was very narrowly tailored to achieve that interest.

As tends to happen in constitutional law, doctrines that are designed to remedy a particular evil turn into abstract constitutional principles that might be extended to cure all sorts of other social ills, whether real or perceived. And rightly so: words refer to an infinite number of things, and the 14th Amendment is not limited just to “any person” living at the time of its enactment, or “any person” affected by the racial attitudes of the 19th century. Thus, its application to irrational laws discriminating against women was an appropriate extension of the doctrine, to the extent that application established a suitable basis for assuming an improper purpose on the part of the legislature.

This is precisely what is lacking in Varnum v. Brien—any demonstration that Iowa’s marriage law was premised on any animus against homosexuals. The best it can muster are generalizations ("the historical reality . . . of purposeful and invidious discrimination" (Varnum at 37), the U.S. Supreme Court's rebuke of Texas's anti-sodomy laws in Lawrence v. Texas, federal military policy regarding homosexuals, and, most amusingly, the specter of unnamed "[s]chool-yard bullies" who mete out "school-yard prejudice" (Varnum at 37-38). The court does not even guess whether or how much any of these supposedly "purposeful and invidious" acts of discrimination occur within Iowa's state lines.

Curiously, however, the court goes on to describe the huge strides Iowa's legislature has been making to curtail such abuses, making frequent allusions to the various advances in the cause of gay rights, various Iowa civil rights statutes calling an end to all sorts of other forms of discrimination, and noting that civil marriage is the "notable exception to this trend." (Varnum at 47-48.)

The Iowa General Assembly has recognized the need to address sexual-orientation-based discrimination by including sexual orientation as a characteristic protected in the Iowa Civil Rights Act, by defining hate crimes include certain offenses committed because of the victim’s sexual orientation, and by prohibiting “harassing or bullying” behavior in schools based on sexual orientation. See Iowa Code §§ 216.2–.18A (Iowa Civil Rights Act) (sexual-orientation-based discrimination); id. § 280.28 (school harassment and bullying); id. § 729A.2 (hate crimes committed because of the victim’s sexual orientation). These statutory enactments demonstrate a legislative recognition of the need to remedy historical sexual-orientation based discrimination.

(Varnum at 38.) In other words, the Iowa General Assembly is on the case; it does not need its Supreme Court to tell it how to address the needs of that state’s gay community. Whatever ills that community has or is suffering is clearly being considered—and favorably, the court seems to think. Except for the gay marriage issue, of course.

But Iowa is in good company in that regard. Forty other states have banned same-sex marriages, despite the fact that gays have been consistently advancing their civil rights across the nation. The fact that they continue to lose on the issue—just one, single issue—of civil marriage should be telling: it is not due to a general animus or reluctance to give civil rights or dignity to homosexuals. It is merely because there are certain attitudes towards marriage that continue to make it difficult to reconcile a cultural worldview in which gays share that peculiar and almost mystical institution with straights. (After all, some women still torture themselves over whether they can “wear white” on their wedding day—weddings and marriage come with a lot of odd strings from whence we know not.)

One thing is sure from the court’s opinion: there is no animus against gays underlying Iowa's marriage statute, no “unfair and severe prejudice” that would establish a presumption of discrimination based on sexual orientation. (Varnum at 48.) Were it otherwise, how could one explain the great advancements in all other facets of life and dignity that the homosexual community has made, both in Iowa and nationally?

Thus, the “important state interest” requirement (applied in instances of the “intermediate” or “heightened scrutiny” analysis) should not have been imposed in Varnum. This requirement is needed to overcome the presumption that there is animus behind the law, an attempt to irrationally or wrongfully deprive a suspect class of a right. That was not happening in Iowa.

Usually, moral legislation can only withstand the lax rational basis standard, and gets struck down if any higher level of scrutiny is applied. Higher levels of scrutiny requires the law to be justified by an empirical, demonstrable purpose—i.e., not merely a moral one. Even assuming, for the sake of argument, that homosexuals were being deprived of a right, and even assuming, for the sake of argument, they were a suspect class, the specific overrides the general. That is, if there is no improper purpose behind the specific law in question, it matters not whether the suspect group has suffered some generalized historical marginalization. And in this specific instance, no animus can be imputed to the legislature with respect to Iowa's marriage statute, and thus it is immaterial whether such animus perhaps could have been generally applied for other kinds of discrimination against Iowan homosexuals. (Then again, even this would be hard, given the activism on Iowa’s part to eradicate discrimination and ill-treatment of gays. But it is even more difficult to show discrimination in the context of marriage, since this is an institution steeped deeper in religious heritage, and which has exhibited a pattern of resistance all over the country, as the court itself notes.)

Without animus, classifications are fine. The equal protection clause was never meant to prohibit classifications—we require all sorts of different licenses and standards for all sorts of different things and group of people. It only prohibits the kind of irrational and invidious discrimination like the racial discrimination that plagued us for many decades and centuries. I even submit that, were the last trace of that irrational and invidious tendency to discriminate based on race to leave humanity for good, we would be free to discriminate even upon that basis, subject only to a rational basis standard. (This despite Justice Thomas's concurring opinion in Missouri v. Jenkins.) Granted, such a hypothetical involves a utopian ideal of complete racial blindness and is thus probably entirely theoretical. The point remains, however: no animus, no searching scrutiny.

Scrutiny should only diminish over time, never increase. Our society is progressing on its own, adopting more and more inclusive mores and attitudes. While we will never reach utopia, things are getting better, not worse. Unfortunately for some jurists, this means fewer opportunities for courts to invalidate laws on the basis of invidious discrimination. At least, it should. Courts like Iowa’s will still find animus where there is none in order to accelerate social change to their satisfaction.

Which, Not Whether, Religion

2009-04-06T22:08:00.000-07:00

President Obama is on record for disclaiming America as a "Christian nation," claiming that "we do not consider ourselves a Christian nation or a Jewish nation or a Muslim nation." This is nonsense.

Being “bound by ideals and a set of values” untethered to any systematic moral framework is going to involve a very fluid and expedient understanding of those ideals and values. Systematic theology (i.e., religion) provides a framework in which such ideals and values can exist in a non-arbitrary fashion, in which their respective priorities can be assessed, and in which practical application can be worked out. The ideals and values without the originating framework will last only so long as they are expedient to some other end. That ad hoc system of reorienting and reprioritizing the ideals and values forms the basis of a new religion, to the chagrin of contemporary disestablishmentarians. Rinse and repeat.

The question is always what our religion is, not whether we have one.

The Human Need for Religion Hates a Vacuum

2009-04-05T20:44:00.000-07:00

I stumbled across two stories today that provide anecdotal evidence for something I've suspected for some time: that the decline of traditional religion will occur contemporaneously with the rise of a replacement "religion." Compare this post noting the decline of religion in America, with this article noting a contemporary trend of "baptism" among atheists.

That "replacement religion" I have described before as "scienceism."

Support for Professors Yoo and Rotunda and The Right of Free Speech

2009-04-04T02:17:00.000-07:00

Below is my letter to the editors of the Chapman Panther in support of Professor Ronald Rotunda's piece, "The right of free speech, regardless of what is spoken":

Kudos to Ronald Rotunda for his piece, "The Right of Free Speech, Regardless of What Is Spoken," for steering clear of the faux legal argumentation polluting the airspace in the debate on detention and interrogation policy. Many attorneys, even those among our law faculty, cannot withstand the temptation to make a legal-shaped block fit in a moral-shaped opening. These "legal" arguments have taken a couple different forms, including a particularly creative one: that the memos written by Professor Yoo and others were legally inept and thus do not qualify for First Amendment protection. It is a clever position that seeks to paint those authors as unmitigated advocates of torture -- perhaps out of concern for national security, or perhaps just out of sadism. So stripped of legal privilege, as the strategy goes, Yoo and co. are now exposed to endless moral stone-throwing by an indignant populace growing ever colder on our nation's "Overseas Contingency Operation."

But this is not a serious argument -- certainly less, at least, than John Yoo's analysis of the legal merits of the administration's positions. To take just one example, Professor Yoo's March 14, 2003 memo -- a veritable treatise at 81 pages on every imaginable domestic and international source of authority respecting the treatment of detainees -- exemplifies the rigor to which the administration subjected the legal issues at play. Yoo even discusses hypothetical defenses based on necessity and the sovereign right of self-defense, which might be raised in the event the foregoing interrogation authorities were found to apply to Gitmo detainees (which, as Yoo had just explained in the previous 74 pages, they did not).

Recently, at The Volokh Conspiracy (http://volokh.com), University of Minnesota professor and former White House ethics attorney Richard Painter, took issue with these defenses as described in Professor Yoo's memo, apparently because they do not answer whether they are likely to be successful or not. Of necessity, any discussion on the defenses available in such unprecedented circumstances will be conjectural, based on high levels of abstraction of standards applicable in only loosely-related analogues -- criminal civilian contexts, for example. Thus, attacks from folks like Painter are pure form over function, because, under their view, Yoo could have resolved the issue by offering a meaningless disclaimer, something like, "these are sound arguments, but predicting a court's ruling would be impossible without knowing the politics of the particular judge."

But Professor Yoo took as good a crack at it as can be asked of any lawyer called upon to opine on moral philosophy and political theory -- areas that are "above his payrate" as an attorney giving legal advice. For his efforts, he now receives steady lashings from folks who would modify legal arguments to advance their moral cause. But the real losers are those of us who actually do want real scrutiny on the moral issues at stake: All the noise and chatter from wrong-headed arguments – making legal claims in moral arenas – give the impression that there are no good reasons to be critical of our nation’s interrogation and detention policies. There are. The importance of the moral questions are diminished by blustering legal responses. Lawyers ought to stop offering them.

Iowa Joins in the Destruction of the Rule of Law

2009-04-03T21:17:00.000-07:00

Iowa’s Supreme Court today withdrew from its citizens their civic right to determine their state’s policy regarding marriage, holding that sexual orientation was not an “important respect” of that institution’s makeup. [PDF of the opinion.] Regardless of how you weigh in on the issue of gay marriage, the opinion is an affront to our nation’s tradition of justice. It is a superficial power grab designed merely to advance a moral conclusion through an abuse of legal process. (If you are new to the evaluation of judicial opinions, this is the very characterization we use now when talking about the Dred Scott decision, now haled as one of the worst, if not the worst, opinion in the Supreme Court’s history.)

How superficial is the Court’s reasoning? Iowa Code section 595.2(1) provides “[o]nly a marriage between a male and a female is valid.” According to the Court, “The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage.” (p. 13.) But don’t forget polygamists and kissing cousins. If we were truly using outcome-neutral legal reasoning, we have to recognize that these groups are also excluded. And there is a simple reason for this exclusion: people don’t like it. They think it’s icky. If and when they ever stop thinking it’s icky, and if there’s a critical mass of such folks clamoring for their “right to marry,” they’ll likely get it.

Many people still think gay marriage is icky. The tide is shifting in that area, but the scales haven’t tipped yet. But there is no “equal protection” violation in refusing to recognize a marriage between a couple of men any more than there is in refusing to recognize a marriage between a couple of siblings, a couple of 14-year-olds, or a quartet of what-have-you’s.

Let’s see where Iowa’s precedent would leads, by substituting the aforementioned groups in the following language from the opinion:

Thus, the right of a gay or lesbian person [or a polygamist, or committed cousins] under the marriage statute to enter into a civil marriage only with a person of the opposite sex [or just one other person, or just another unrelated person] is no right at all. Under such a law, gay or lesbian individuals [or a polygamist, or committed cousins] cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation, and gain the civil status and attendant benefits granted by the statute.

Of course, Iowa’s decision is not meant to be read as judicial precedent. It is simply a statement of law – more like a statute. Statutes are fine, when they are passed by a body of representatives duly elected by the people. But not when they are handed down by judges.

The Court concludes that the “plaintiffs are similarly situated in every important respect, but for their sexual orientation.” (p. 28.) Who decides which respects are “important”? Why, the folks in black robes. You can keep your ballots. Put them in a scrapbook to show your grandkids how our nation decided policy matters before judges decided they were better at it.

I would prefer very much that lawyers and anyone else purporting to make legal arguments to advance moral positions just stop it. This is not what legal argumentation is for. As someone who cares very much about the rule of law and the proper exercise of the democratic function in our republic, and markedly less about whether gay marriage is actually sanctioned, I dislike having to rant about the wrong-headedness of gay marriage advocates. I have several gay friends, and my wife and I enjoy visiting with them, particularly at Christmas parties and summer barbecues. I worry that someone would misinterpret my advocacy for the rule of law into a misguided basis of some accusation of "hate-mongering."

The fact is, it is a moral issue. Moral issues are decided in our society at the ballot, not at the courthouse. Iowa’s high court handed down an abysmal decision. Not because its outcome is one that opponents of gay marriage don’t like, but because it is reached by a terrible subversion of the rule of law and legal argumentation. These things may seem stodgy and trivial to those who just want their “rights,” but without them, none of our rights have any meaning.

Please stop destroying the rule of law.

[Update: Some discussion on these points at Dispatches From The Culture Wars.]

Who Cares About the Constitution? Not Eric Holder

2009-04-03T16:20:00.000-07:00

In another Obama administration affront to the rule of law, Attorney General Eric Holder is reportedly rejecting the Office of Legal Counsel's opinion that the controversial D.C. voting-rights bill pending in Congress is unconstitutional. This despite our Constitution's clear prohibition of that bill under Article I, Section 2, which states "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." (Emphasis added.)

As Andy McCarthy points out,

None of this means it is a bad thing to want Americans who live in D.C. to have representation in Congress. There are ways of accomplishing that: amendment of the Constitution, the grant of statehood to D.C., or retrocession to Maryland (part of the District having already been ceded back to Virginia). Aside from being legal, those methods would not create the host of problems that would result from the current legislation (e.g., Why only a member of the House but not two in the senate? Why voting rights for D.C. but not Puerto Rico, American Somoa, Guam, and the U.S. Virgin Islands?).

But pushing through a constitutional amendment or a grant of statehood would be hard, even for Obama. Trampling the rule of law has proven much easier.

[P.S.: If there is any doubt that I am more concerned with constitutional fidelity than politics, what in heavens would I care that D.C. residents get a measly representative in the House? I should probably be ashamed, but I do not even know the representative for my district, or how in blazes he has been voting lately.]

[Update: Volokh has updates here and here.]

America, We Found the Rest of Your Lost Money

2009-04-03T09:51:00.000-07:00

Although AIG execs are coughing up their contractually valid bonuses, it was only a small portion of the ocean of our nation's missing wealth. Thankfully, Obama and the Dems have found the rest -- all our sneaky, greedy, invisible unborn grandchildren have it:

You little munchkins gotta show yourselves sometime. When you do, you're gonna make with the margarita-maker money.

It’s Still OK to Make Moral Arguments

2009-04-02T12:49:00.001-07:00

With my tirade out of the way about finding legal arguments where moral ones should be, I would be remiss if I did not also emphasize the importance of public scrutiny and civil dissent regarding our interrogation and detention practices. To this end, a reader directed me to two good articles, here and here, that should set the alarm bells ringing as good moral citizens.

Again, although I believe there is extremely broad, if not unlimited, discretion regarding what an American president can do as commander-in-chief with respect to foreign affairs in furtherance of national security interests, we should not be so agnostic as to what should be done, and not be done, to secure these ends. After all, we are the Zeitgeist -- our attitudes shape the background limits of cultural and moral acceptability. These attitudes need to be articulated.

So, at the risk of extreme self-deprecation, don’t give the devil (i.e., folks like me) a foothold. All the noise and chatter behind the wrong-headed arguments – making legal claims in moral arenas – gives the impression that there is no good reason to be critical of our nation’s interrogation and detention policies. By conjuring up elegant-sounding legal arguments that fall flat in the end we take attention away from the important (although squishy) moral issues at stake.

In Defense of John Yoo

2009-04-01T23:12:00.000-07:00

After having read through much of Yoo’s 81-page memo, it is even clearer that Painter’s conclusions are premeditated. The memo amounts to a treatise on every imaginable domestic and international source of authority respecting the treatment of detainees, both constitutional and statutory, and even including reviews on maritime, maiming, and interstate stalking laws. In the time I could spare from my day job reviewing the memo, it is sound legal analysis, drawing the conclusion that the text and structure of the law in light of the factual background indicate that the relevant authorities do not extend to alien enemy combatants held at Gitmo.

The paragraph that Painter criticizes comes at page 80, in a section titled “Defenses,” in which Yoo explains what arguments might be made in the event that the foregoing interrogation authorities were found to apply to Gitmo detainees (which, as Yoo had just explained in the previous 74 pages, they did not). Of necessity, any discussion on the defenses available in such unique circumstances will be conjectural, based on high levels of abstraction of standards applicable in only loosely-related analogues -- criminal civilian contexts, for example. But Yoo takes as good a crack at is as can be asked of any lawyer called upon to opine on legal and moral philosophy and political theory. For his efforts, he now receives steady lashings from folks like Painter.

As for the self-defense argument about which Painter thinks so little, I have to agree with Yoo. As I said before:

The purpose of government is to protect rights, and in order to do this, it must first ensure its own survival. We do not reach the question of whether and how much to protect the rights and liberties of any individual (let alone foreign enemy combatants) until the political order can first reasonably assure those components necessary to its self-preservation. Thus, in the case of furthering such a prime directive as preventing further terrorists attacks within its own borders, as a matter of first principles a nation need not be concerned at all with notions of due process.

The common response to such arguments is that we may win the battle but lose the war by forfeiting our decency. Our leaders are not permitted the luxury of giving moral evils a wide berth and comfortable margins of error. They must skirt the ethical line in carrying out their prime directive of keeping us safe. The continued existence and prosperity of our nation requires both decency and not being blown up. One would be loathe to give up on either, but pressed, only one of those things is given to diminution.

Is Criminalizing Attorneys For Their Legal Advice OK If You Are Really, Really Against It?

2009-03-31T22:12:00.000-07:00

Richard Painter has this recent post on The Volokh Conspiracy regarding the so-called "torture memos." In short, he suggests that, because John Yoo's memos did not opine on whether the arguments would prevail in court (i.e., on "the merits" of the position), that they provided "no useful advice," and were thus "inept legal advice" ~~not meriting constitutional or free speech protection~~. [Update: the latter conclusion is drawn by another constitutional law professor discussing Painter's post -- Painter himself does not say this. My apologies.]

The argument derives from a clever gambit: instead of arguing the legality of the position, which is messy and political, argue the form of the legal advice, something more susceptible to legal argumentation. The argument so framed then becomes: whatever the position the memos took, they failed to analyze whether they would prevail in court, and thus were inept legal advice. Voila: we now needn't bother with any pesky free speech questions, natural law arguments, and structural constitutional questions of separations and delegations of authority.

But if we are going to confine our focus to a "client/counselor" analysis, let's take it seriously. For the president's counsel, the concern is not what the courts are going to do -- the nature of the issue means the result is going to be ends-oriented anyway. In other words, Painter's complaint is pure form over function, because, under his view, Yoo could have resolved the issue by offering a meaningless disclaimer, something like, "these are sound arguments, but predicting a judge's ruling would be impossible without knowing the politics of the particular judge." After all, the president has more discretion than most clients, and political capital is going to be a major component of his legal strategy. Coming up with even a colorable argument, combined with broad Article II discretion in foreign affairs and political capital, would likely be more than enough to constitute a competent legal strategy.

In this regard, one commenter hit the mark:

A memo is not the place to be spending 30 pages on some contingent analysis of all possible situations and legal theories: the memo lists the case law, some papers, and says "maybe." That's the state of the law: "maybe." More analysis is not going to change that.

And another:

These are lawyers doing research and finding conclusions about the state of the law. The president needs accurate information about the law to enable him to make appropriate decisions. Due to the near-total absence of law with respect to unlawful soldiers, the decision of how to treat them is ultimately a moral one. That's the realm of theologians and philosophers, not lawyers. I would not expect legal memoranda to contain detailed moral, philosophical, or theological discussions and conclusions. That's not what lawyers do. It would not be professional for them to do so when asked to render legal opinions. There's no reason to expect lawyers to have any particular expertise in those areas.

But clearly, moralizing is all Painter means to do, calling the arguments "specious" and "obvious[ly]" wrong without any analysis of his own. ~~Ironic, given he has just finished suggesting that an unfinished analysis may be grounds from criminal prosecution.~~ [Update: Ditto above. This conclusion is drawn by others, but not Painter.] Arguments such as Painter's, however cleverly conceived, still offer nothing to anyone not already converted to a particular political view. Strictly speaking, that's not argument -- it's bluster.

The Rule of Law Does Not Lend Well to Selectivity

2009-03-29T00:39:00.000-07:00

Brian Tamanaha’s post at Balkinization calling for criminal investigation of the Bush administration’s treatment of prisoners at Guantanamo Bay is a wonderful example of how liberals tend to flip sides in the “rule of law” rhetoric. After all, what sober-minded conservative could take issue with talking up “our commitment to the rule of law”? But it is the chosen context that betrays the underlying political bias: if Professor Tamanaha is truly concerned about the rule of law, how about condemning the national take-over of private institutions being considered by the Obama administration? How about the punitive tax targeted directly at AIG employees who received impolitic though perfectly valid bonuses? Or the out-and-out rejection of the rule of law by Obama himself? If we choose to reignite our enthusiasm for the rule of law, let’s start with domestic actions affecting citizens regarding a metaphorically explosive crisis rather than foreign military actions affecting noncitizens regarding an actually explosive crisis.

How Many Angry Populists Does it Take to Run the Finance Industry?

2009-03-27T22:58:00.000-07:00

My father in law asked me today what I thought about the AIG bonuses. I explained that I have no idea how things work at AIG or in the industry in general, so how could I possibly know whether they were excessive or not -- all I know is that they were paid in accordance with valid contracts. Well, yeah, he replied, but it's just ridiculous.

I went on: the finance industry is a mystery to everyone (even those in it), but there are lots of incredibly bright people there, and given the incentives they had (about which we now scream bloody murder) they were able to put untold thousands of families into homes and generally finance the lifestyle we are now upset over losing. Sure, we're disappointed and want to blame the people who made it all possible.

But would anyone have tolerated some wonk warning us, in the face of the possibility of untold egalitarian prosperity, that we could not have it all, because there's a possibility all this sophisticated financing calculus had an error in it somewhere? He would have been run out of town on a rail for trying to keep the little guy down, for trying to dam up the river of wealth at just the moment when it finally looked to make it downstream to the middle and lower classes. Of course, NOW we know that it was all too good to be true. But no one could have kept us from trying out the experiment that, for nearly a decade, gave so many so much.

We have justification to be disappointed, frustrated, and upset with the finance industry. But if we want to be the recipient of any of its future opportunities for prosperity, we can't go barrelling over the right of contract and politicizing corporate compensation structures.

All I know is, my father in law inflexibly replied, at the end of the day, I didn't get those bonuses. So screw 'em.

So, for my father in law and anyone else who is anxious to see what it looks like when a pissed off populist mob runs the finance industry, enjoy the show.

Science and the God-Shaped Void

2009-03-25T21:35:00.000-07:00

A friend and I were talking recently about the uneasy role our respective religions play in our secular American lives. Religious folks watch crude and profane movies and laugh along with everyone else. Atheism is just different strokes for different folks—no big deal, really, they just opted not to tick the God box. Is there any danger to religious Americans to make room in the public sphere for atheistic perspectives and values? Perhaps we can just do what we’ve done with commercialized Christmas: leave it be, just have to remember that “Jesus is the reason for the season.” Perhaps a more secular culture is ok, so long as we keep in mind what it really means to hold to a religious worldview.

Easier said than done. We are not in a worldview-neutral culture. There is currently not a lot of reason to think about worldviews because, when it comes to much of the important stuff, we happen to believe the same things: individual liberty; human dignity; love of country; etc. But as we are starting to see, in the debates on gay marriage and stem cells, for example, there is increasing pressure to abandon vestiges of our religious worldviews unless they are supported by the atheistic worldview. That is, the morality that comes from old books and stodgy preachers no longer passes muster. Insert some bar graphs and control group data and then we’ll talk. Until then, no one wants to hear about your peccadilloes.

The problem with that is, properly speaking, there is no such thing as an “atheistic worldview.” Instead, we have atheist worldviews, as many, in fact, as there are atheists. This is because science, which serves as atheists’ de facto “god,” is value neutral. It governs only process, not ends. If you want to talk about ends, about truth, about first principles, we’re talking about metaphysics, the branch of study antecedent to science on the human knowledge tree.

To even the religious among us these days, science is the gold standard of truth. Labcoats are preferred to armchairs. No one wants to hear about metaphysics—the physics part sounds good, but this “meta” must mean less good, no?—like “semi” or “pseudo”? To the contrary, the prefix means “more comprehensive; transcending,” as in, physics presupposes metaphysics. Without metaphysics, there can be no physics. Metaphysics gives us the tools we need to do science. Scientific method? Metaphysics. Induction? Metaphysics. Causation? Metaphysics. Unified theory of everything? You guessed it, metaphysics. Natural selection is a scientific theory, but the theory is so ingenious that it entices otherwise sober minded scientists to go further. It has answered so many questions and unlocked so many doors that we forget that it all comes from the same field of study that provides the foundation for both science and theology: metaphysics.

That is what the folks at the Discovery Institute have their alarm bells ringing about. Whatever you think about intelligent design (and I don’t think a whole lot of it), they are right to be bothered that science now thinks it can start injecting non-scientific fields, such as teleology, into classrooms. The notion that teachers could indoctrinate students about a “purposeless” universe is just as objectionable as if they were teaching it did have a purpose. They are two sides of the same coin, with intelligent design proponents on one side, and natural selection proponents on the other. The problem is the coin: either way, preference is given to one side or the other in a science classroom when science proper has nothing to say about it. Present both sides in a confined discussion about metaphysics, or, if that makes the scienceniks too nervous, forget the whole thing.

God should not be injected into science classrooms, but neither should science teachers extend the proper borders of their field. Science has moved beyond focusing on method and has traced its way back up to where it splits off from the rest of philosophy at the juncture of metaphysics and epistemology. Ironically, the intelligent design proponents who are holding ground at that crossroads defend not only metaphysics and religion, but science as well, refusing to let method- and certainty-oriented science trod upon the more nuanced and transcendental branches of the knowledge tree.

We all have a religion. For some, it is science. It is not yet clear whether science or the science-ists will suffer the graver effects.

Why We Should All Want Obama's Economic Policies to Fail

2009-03-24T23:02:00.000-07:00

I usually don't get into debates about the effectiveness of economic policies. Certainly above my payrate. So I would never say that so-and-so's economic policies will or will not work. My objections rest instead on the basic ideas of how government and economics are designed to work, and always have worked, in this country. Thus, I could care less whether Obama succeeds on some, most, or all of his ideas, because his ideas right out of the box are inapposite to our constitution and our civic way of life. It would be like cleaning your floor with a sandblaster. It will be clean, for sure, but ruined. Beyond salvage, if it's been "effective" enough.

The Liberal/Conservative Role Reversal in Ends vs. Process in Detainee Rights

2009-03-21T17:08:00.000-07:00

Andrew McCarthy’s debate with Katherine Darmer at Chapman Law School this week (podcast of the redux on Hugh Hewitt’s show later that day here) made me realize something. When it comes to domestic affairs, conservatives are generally preoccupied with process-oriented justice, and progressives with ends-oriented justice. However, when we start speaking of Gitmo and foreign affairs and all things constitutionally relegated to executive discretion, the roles curiously flip. All of a sudden, progressives start singing the due process tune for the benefit of enemy combatants (or whatever we are calling them these days), and bollocks to that prattling on about making sure we don’t all get blown up. On the other side, those conservatives who champion a value-free justice that guarantees a due process of law seem to care little if at all about deprivations of freedoms and dignities, and are willing to give the benefit of near unbounded doubt to our chief executive and his unseen underlings.

At the risk of appearing to rush in to defend the latter position, I think the conservative position has a ready defense rooted in basic political theory. The purpose of government is to protect rights, and in order to do this, it must first ensure its own survival. We do not reach the question of whether and how much to protect the rights and liberties of any individual (let alone foreign enemy combatants) until the political order can first reasonably assure those components necessary to its self-preservation. Thus, in the case of furthering such a prime directive as preventing further terrorists attacks within its own borders, as a matter of first principles a nation need not be concerned at all with notions of due process. As a political and moral matter, of course, it is always prudent to afford as much process and respect for humanity as possible and to let our leaders know that we are watching them. And, to our great credit, we do just this. But let’s not get silly and suggest that there ought to be additional legal barriers preventing our leaders from ensuring our own survival in time of war.

The Siren Song of Ends-Oriented Justice

2009-03-19T22:22:00.000-07:00

There is a lot of talk going on lately about the basic differences between the economics of the Right and Left: The Right thinks that things work best when you keep all your money and spend it as you see fit. The Left points to the failures of the market and the general unsympathetic characteristics of the rich and conclude that things would be best if a substantial chunk of individuals’ earnings be reappropriated. Given that I have no particular expertise in economics, I can't provide a pragmatic justification one way or the other. What I do know is that this is not merely a question about economic policy: this debate showcases the dramatic differences in theories of justice and political theory that rage just under the surface of our system of government.

On the one hand, our liberal (small “l”) system of government is founded on the recognition of rights and a process-oriented system of justice to protect those rights. In other words, we provide a basic set of laws to prevent theft and enforce contracts, and leave the "free market" to run on auto pilot. On the other hand, the progressivist/collectivist trend in our government is founded upon a basic dissatisfaction with merely protecting rights; because we are born with varying degrees of ability in order to promote our respective rights and happiness, inequities invariably result. God, it seems, has a thing for caprice. Accordingly, a system that stops merely at protecting our inherently unequal abilities to advance our own rights is a system that stops too soon. Equal in the eyes of the law? Who cares about that if justice is wearing a blindfold, after all? Equality of results, that's the ticket.

Rights, then, have been the enemy all along, in the progressivist view. Thus, they must be replaced with entitlements, which, unlike rights, are afforded by government according to perceived need. This brings about a shift to ends oriented justice, justice without the blindfold. This progressive justice cannot be meted out through an anachronistic rule of law; it must flex and bend depending on the social good, or a particular moral suasion, or the proximity of the next election.

Again, we don’t need to reach the question of whether process-oriented justice or ends-oriented justice reaches the best results. And that is because ends-oriented justice is not really a true choice for a society founded upon such basic notions of written laws, the rule of reason, and the separation of powers. That is, there is no real choice, because such a system cannot survive. As I have written before, ends-oriented justice is nothing more than vigilante-ism. In a classically liberal, process-oriented system of justice, ends are immaterial – the individual is free to craft the product of his God-given liberties provided they do not impinge upon others’. In a progressive, illiberal, ends-oriented system of justice, in which liberties are deprived in order to grant entitlements in equal share to all, there is no rule but satiation. The legitimacy of such a system depends entirely upon the quality of the ends produced. An administration that does not distribute entitlements to the liking of the majority is overthrown and wealth is redistributed in revolution – shifts of power in the tradition of the miracle of 1800 do not exist in an illiberal structure. Keep your incentives to produce, we'll just take the products outright, thank you very much.

Classical liberalism, of course, means that, to a large extent, we have to live and let live, and not conscript the coercive power of government to equalize all our differences through the manufacture of entitlements and the redistribution of wealth. It also means that the pain and consequences that are the natural result of our own choices must not be negated -- a highly unpleasant notion given present conditions. If we cannot learn to live with that, however, we will only hasten our own destruction and descent into dystopia.

On Legalizing It

2009-03-15T21:46:00.000-07:00

This recent story from The Economist states the familiar case for fighting the rampant abuse of drugs by legalizing them. From a strictly utilitarian standpoint, I could not hope to argue that continuing the “war on drugs” is the most productive route. However, I have always fretted about what it would mean for our society to condone and promote drug use. Our laws have always been based around promoting “good policy” and keeping clear of “bad policy.” We don’t enforce contracts against minors because, well, adults shouldn’t be contracting with minors (with certain exceptions). We don’t enforce non-compete clauses that are so broad as to threaten one’s livelihood. There are other examples of agreements freely entered into that are not enforceable on grounds of public policy.

The idea is, obviously, that our courts are meant to enforce agreements that in turn promote the public welfare. If we were to turn around our drug policy simply out of defeat, and not because we had changed our moral position on the question, seems this would be an unprecedented and backhanded use (abuse?) of our legal system to alter behavior. Clearly, the idea would be that we would legalize drugs because we hope that we could reduce their use better than by continuing to outlaw them. Somehow, that just seems very strange and wrong. Sounds like a lawyer trick to me. It would lead to either a very sneaky and Machiavellian regulatory and enforcement structure, or a triumph of moral relativism. In either case, I doubt it’s worth it.

Obama to Expand Federal Power, But Put Things Back When He's Done

2009-02-24T15:14:00.000-08:00

This article from the NY Times suggests, unwittingly, that we've already gone off the cliff, we only don't realize it yet. Even taking Obama at his word, isn't it a problem that we can duck in and out of socialism at will? Are we to be at peace with it because Obama is a good, kind leader who would never do anything to hurt us? What if we're wrong? And do we really want to leave the launch codes out for whoever winds up in the captain's seat in the future? This was supposed to be the difference between a "benevolent" monarchy and our structured and limited federal government: we didn't want to have to depend on benevolence.

Isn't This How Vigilantes Justify Themselves?

2009-02-22T10:25:00.000-08:00

I've been trying to get away from current events political blogging, but I think this is important. Schwarzenegger recently said this regarding the economy and "bipartisanship":

The horrible thing about politics is that, the more they attack each other, the more that they try to derail each other, the worse it is for the people. That's why ... you know, you've got to go beyond just the principles. You've got to go and say, "What is right for the country right now?"

Forgive me, but isn't this lifted straight from the vigilante calling card? This is Hollywood justice. Now, I liked The Dark Knight as much as anyone, but Arnold is not appreciating one of the key nuances. Although we sympathize with the vigilante Batman, we can only do so upon realizing, as Bruce Wayne does, that he can only do so as a pariah to ordered civil society: he is a "super" hero because he is outside the natural order of justice. Human justice is means-oriented; Batman's is ends-oriented. We can root for those ends where we happen to agree; but his values, analyses, and decisions, are always cloaked from the people he aims to serve. And that is why he is always so scrutinized, why the public turns on him the instant he produces an undesirable result--when the integrity of decision making processes are cloaked, results are all we have to go by.

Arnold fails to grasp what millions of Batman fans did. He thinks he can trample means with ends. He thinks he can flout the principles of civil order with his personal ones. He thinks he can wear his cape in the light of day.

Lessons from the Past Still Go Unheeded

2009-02-21T14:43:00.000-08:00

On the question of the limits of government, Cicero said this:

The budget should be balanced, the Treasury should be refilled, public debt should be reduced, the arrogance of officialdom should be tempered and controlled, and the assistance to foreign lands should be curtailed lest Rome become bankrupt. People must again learn to work, instead of living on public assistance.

Cicero - 55 BC

Our founders were avid students of Cicero and the rest of the great Roman statesmen, as they were intensely interested in what ailments would beset the new republic they were designing. The wise among us do not let the lessons of history go unremembered. Unfortunately, we might as well have left those words untranslated in their original Latin for how little the rest of humanity is able to appreciate them. Wisdom is its own language. Fools can neither hear nor heed it. This is why our founders put so many limits on the democratic function of government: although the common man will not tolerate a government in which he has no direct voice, the common man is an imbecile and will tear asunder the whole of our civilization if it adds a crumb to his own account.

For this reason, our founders separated our governmental functions from the violent and insane passions of the mob -- the electoral college and the appointment of senators by the state legislatures being the most famous of these. Piece by piece, however, under cover of progressivist ideology, "we the people" are tearing down those barriers in order to overrun the Constitution and make encampment in the Capitol. The 17th amendment was a critical loss to those who still swear fealty to the rule of law.

For a long time we have prayed that Thomas Jefferson was being too modest about the accomplishment he and his brethren made in establishing our great republic when he warned that "the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." The service of patriots may be again needed before long.

Corporate Abuse, and Why Government Is Not the Answer to That, Either

2009-02-21T01:05:00.000-08:00

Upon watching The Story of Stuff, I was reminded of how many people believe, probably without much reflection, that corporations are evil, and that the government's job, naturally, is to rein in their abuses. With the premise, one can hardly dispute that corporations breed many inequities. (We will leave aside the fact that, while the corporation hums along making ungodly sums of money for a select few, it also happens to provide an unparalleled structure for human innovation, production, and employment.) Introducing more government, however, is a cure worse than the disease.

To begin, one must keep in mind that corporations are artificial. There is a basic problem with artifices, as they are wont to create just these kinds of problems.
But where an artifice is so unqualifiedly effective at improving wealth and overall standard of living, adhering to a Jeffersonian "agrarian" paradigm seems quaint at best. It's the tower of babel problem again -- can't deny the implicit human need for progress.

So, we came up with the idea of corporations, and they work great for innovation, production, and distribution. So how do we deal with the inequities involved? Because yes, there are inequities. First, let's test our attitude regarding inequities, because my contention is that we Westerners are far more concerned with them than is appropriate. So for example, imagine your brother possessed the natural ability to run faster than you; would it be equitable to twist his ankle so as to shrink the delta between your respective top speeds? Of course not. Some inequities cannot be removed without violating a more fundamental law. They are damnum absque injuria -- a loss for which human law can provide no remedy.

Now let's move to the economic context. If you are blessed with the Midas touch, a shrewd business acumen, what duties do you have to those whom you employ, whom you contract with, whom you sell to? The common law of contract and tort developed a fairly effective way of providing predictability, enforceability, and equity to all of these players, although certainly not perfect. And as our economy grows and the complexities of business, technology, and social needs mount, so do the apparent inequities. This means that the government should step in, right?

The concern is the same as whether something should be done to slow your brother down: by what right does a man, or a group of men acting in concert, to strip a benefit from another man? Again, the focus is not on the inequity -- we can agree that it is unfair that some are born with great ability and some are not -- the focus is on the damage done when we act in the absence of legitimate authority. When government redistributes wealth, it is wrong not because it redistributes poorly, but because there is no law governing the manner of the redistribution. It is arbitrary, and therefore evil in itself, no matter the result.

For this reason, I approach the problem differently than most law and economics buffs, who stress the implicit efficiency of pure, free markets. I believe there is merit to that view. But as I suggested earlier, having employed so many artifices in our economic system, it makes little sense to talk about "pure" markets.

Thus, the best the government or anyone else can do is (1) promote a virtuous society, and (2) improve the collection and dissemination of information about the products and services we buy. In this way, inequities can be decreased by the same natural mechanism that production is increased: human reason.

On Bork's Originalism

2009-02-13T08:52:00.000-08:00

Andy McCarthy (author of "Willful Blindness") has this thoughtful piece on Judge Bork's legal philosophy.

Although one cannot help but admire the elegance of Bork's originalism, in my view it underestimates the nature and significance of language. A precondition for the rule of law is a fixed, immutable meaning of the words that mean to govern us. In my view, it is the job of judges to carefully and dispassionately attempt to unpack that meaning, and consider whether inferior laws conflict with the immanent but heretofore unexpressed outworkings of our fundamental ones.

Of course, the biggest trouble with that view is that it sounds an awful lot like "penumbras and emanations." To that, I say the answer is not that judges should do less serious philosophical and historical analysis, but more. This is where transcendental and teleological approaches, such as those Greg Bahnsen put forth, are so important. It is critically relevant that we insist on believing that there is such a thing as objectivity and universality of truth and ethics. As long as we insist on this, we are short-changing the intellectual integrity of the rule of law by suggesting that we can scoop out the meaning of words from time to time and refill the empty vessels with whatever we like, so long as it is done democratically.

More Bad Secular Epistemology

2009-02-09T09:00:00.000-08:00

Heather Mac Donald of The Secular Right has this post responding to Chuck Colson's critique of "scientism." This is an area where secularists and atheists consistently expose their inability to come to grips with the serious philosophical limitations in their worldview. Too many secularists excel at punditry, but are quite out of their their element when it comes to serious philosophy.

Below is my response to Ms. Mac Donald's post:

Heather,

You are not coming toe-to-toe with Colson’s argument. Colson does not deny that scienceists and/or atheists do not recognize beauty or moral truths. Indeed, they do. The argument is that they do not possess a worldview that accounts for such things. Universal standards of beauty, morality, causation, and induction are simply not supported by an atheistic worldview. Instead, they are commonly accused of “borrowing” a theistic worldview. For the most part, theists are glad to have more people under their tent, people who agree that things like human dignity, equality, freedom, et al. are imperative to human flourishing. But without a cogent and systematic supporting framework, they are merely disembodied conclusions floating in the ether, and there is nothing barring one from manipulating them in the service of ghastly purposes.

In other words, the call of Corson and other theistic epistemologists and ethicists is, scienceists should define their premises. This was not historically necessary since, until recently, scientists did not purport to supplant metaphysics. Now that they have cast metaphysics aside, there is quite a hole to be filled. They need to reverse their course or get to the philosophical heavy lifting.

Obama Getting More Irksome

2009-02-06T09:27:00.001-08:00

Several things about his speech really bother me. The constant partisan posturing and "I won, thus I'm right" is not only irksome, it is dangerously and demonstrably fallacious. Democracy is not a test of veracity. It is mere exercise of will. Obama outs himself as something of a descriptive epistemologist when he says things like "They did not vote for the false theories of the past." Does a popular vote make something true or false? Of course not. It is merely an expression of opinion writ large.

Even if the people voted for some amorphic "change," that does not mean that we simply proceed by asking what the previous administration would have done, and do exactly the opposite. And yet that is just what Mr. Obama suggests when he says "We cant embrace the losing formula that offers more tax cuts...." Certainly the president cannot be suggesting that he was elected because the people were sick of tax cuts. Nor will Bush go down in history as a stalwart fiscal conservative; if Obama is hell-bent on being contrarian, he would do better to adopt a more, not less, sober economic policy.

And what about this metaphor: "I don't care whether you're driving a hybrid or an SUV -- if you're headed for a cliff, you have to change direction." That conclusion doesn't follow. What about just stopping the sodding car? That is the solution that true conservatives call for. Instead of addressing it, our new president does not even articulate it as an available alternative. Rendering an argument non-existent is, I suppose, an easy way to overcome it.

Now that Obama's words are going to lead to actions that affect all of us, we ought to be less willing to applaud his hopelessly confused and fallacious rhetoric.

Spending = Stimulus

2009-02-06T09:21:00.000-08:00

After reading this, it finally dawned on me: progressivist big-governmentism is no different than Reagan's trickle-down theory, other than it's "perfected." That is, if trickle-down theory works for big spenders, logically it works even better for the biggest of all spenders: the federal government. This is what Obama is getting at: it doesn't really matter what the money is spent on, so long as it's spent. It doesn't matter if we burn down the Capitol, so long as we get a fire started.

Totten on The Mother of All Quagmires

2009-02-03T22:45:00.000-08:00

Michael Totten has this article on the state of the Middle East and the possibility of a two-state solution. The prognosis is bleak. However, I believe there is some work that has to start in the realm of our ideas and attitudes about the problem. Any hope of solution seems to require at least one necessary condition (aside from the one that Palestinians be capable of creating and maintaining their own nation): that they not be hell-bent on Israel's destruction.

I've heard both points of view articulated: on the one hand, some folks believe that too many Palestinians are determined to fight the smell of Israel to the last breath. On the other hand, others believe that, at bottom, there is no reason that a two-state solution cannot work, no reason that Palestinians and Israelis have to be such bitter enemies. Instead, a great enmity was created by the establishment of Israel, and theexile of Palestinians from their homelands. Subsequent ill-considered wars worsened the problem, prompted increased American support, and resulted in a sour-grapes mentality of epic proportions. Lord knows there was enough historical, geographical, and religious tinder to add to the fire. In short, our support for Israel, however morally necessary, and the wrath it has incurred, proved that it was indeed our historical lack of colonial interests in the Middle East that had previously garnered pro-American sentiment there.

I suppose I believe in the latter position: I do not think that Palestinians are, by nature, hate-mongers or subhuman in some way. Their attitudes and actions are influenced by environment just as anyone else. The line of Palestinians, both Muslim and Christian, with the bitter memory of theirexile have, for one reason or another, just not been able to "get over it." I tend to believe that this is at the root of the Palestinian 's refusal to recognize Israel, and the desire to obliterate it. Of course, whatever errors or insensitivities may have been committed, this sentiment is unacceptable. And whatever the merits of our decisions a half century ago, we cannot just walk away now.

I don't offer any suggestions for how to fix it. But I am always struck by folks who seem to believe that Palestinians are a different kind of animal, untethered to the causal network of ideas and stimuli that act upon the human belief system which shapes world views and defines actions and attitudes. Simply because some among them may act reprehensibly does not excuse us from seeking to understand why they do so, and why those around them seem to tolerate it. We did not do this with the people of Nazi Germany; why should we start here?

Business as Usual...Or Not?

2009-02-03T18:57:00.000-08:00

I have mixed feelings on whether companies who take bailout money should now be held to a different standard. Wells Fargo has now been forced, through political pressure, to cancel a corporate retreat. My first reaction is that any company who takes corporate money should be more frugal and responsible. But on second thought -- whose standard of frugality and responsibility should we employ? Corporations are not supposed to be run the same way government is -- and thank God for that. Indeed, the fact that government is so hamstrung by its democratic nature is supposed to result in fewer meddling in economic affairs. Unfortunately, tenacity got the better of us there.

Wells Fargo's tradition of holding retreats was one way that it cultivated better performance from its most valued employees. In other words, these kinds of decisions to boost morale and productivity are how successful companies are more efficient and effective than, say, government workers.

Corporations who took government money should be ashamed of themselves, and I will do what I can to withdraw my support from them. But we should refuse to begin acting as though they are answerable to us in the same way our elected officials are. This side-effect of the bailout will more surely lead to socialism if we don't.

UPDATE: Obama Plans to Cap Executive Pay for Government-Assisted Financial Institutions. In other words, so long, Citigroup, hello Federal Department of Citigroup.

President of Everything

2009-01-29T09:11:00.000-08:00

At Obama's behest, Citigroup has canceled plans to purchase a corporate jet. Apparently, we elected not just a new president of the United States, but a new president of Citigroup. Democracy really is flourishing!

See also Tim Sandefur's piece on how how anti-economic the trillion dollar "stimulus" package is.

Labcoats in the White House

2009-01-27T23:19:00.000-08:00

"The whole country is with him, just so he does something. If he burned down the Capitol, we would cheer and say, 'Well, we at least got a fire started anyhow.' " -- Will Rogers on FDR's Hundred Days.

The Virtue of Capitalism

2009-01-26T22:39:00.000-08:00

Most people don't want the world to move as fast as it does, I think. But we have forgotten how to see things any other way. We go to work for people and corporations whose success depends on moving ahead at a lightning pace. These people and corporations become the ideal of humanity. It no longer matters that they don't give us what we really want, were we to ever remember--modest comforts, earnest employment, and time for family and reflection. Instead, they make greater and greater demands to extract for themselves wealth, recognition, and appeasement of the peculiar desire to give body and soul over to career. Over time, we start to take these qualities as the new ideals of a prosperous society, and wonder how to replace our ideas of earnestness and balance with the total subordination of man and nature to an unnatural competitive will. This unmitigated virtue of capitalism starves all of the other human virtues.

Obama: On Roe Anniversary, I Remain Committed To Choice

2009-01-23T07:24:00.001-08:00

CBS has this article, in which Obama reiterates his position that "I remain committed to protecting a woman’s right to choose." To assuage those of us worried that Obama's concern for unexpressed constitutional rights tramples the constitutional right to life and equal protection under the laws, he goes further:

"While this is a sensitive and often divisive issue, no matter what our views, we are united in our determination to prevent unintended pregnancies, reduce the need for abortion, and support women and families in the choices they make," said Mr. Obama. "To accomplish these goals, we must work to find common ground to expand access to affordable contraception, accurate health information, and preventative services."

In other words, better not stand in the way of his social programs, or more unborn are going to die. It's clear he has no scruples about that.

Our (Hidden) Prejudice Against the Middle East

2009-01-21T17:07:00.000-08:00

Almost all of my reflections on the Middle East derive one way or another from conversations with a very good friend of mine who, although Indian and not Middle Eastern, is Muslim and thus attuned to potential prejudices that his fellow Americans might have with respect to the region. During our email discussion today, he suggested I read Orientalism by William Said, and gave a very good explanation why it was important.

___

Honestly, that’s what I feel that most intelligent, respectable, and well-intentioned people in this country suffer from. Even you, who I think is an exception because you have known me personally, just imagine, even you in spite of knowing me for all these years, still have a slight bit of this uneasiness (I won’t call it prejudice but I’ll just say uneasiness and insecurity… ie something doesn’t sit right with you… it’s very subconscious and that’s what makes it even more dangerous in my opinion) . So if even YOU have it, then why wouldn’t most Westerners have it way more than you? And this is where I believe that fear about not letting the Islamic world flourish or thrive comes in… that fear breeds more fear and suspicion and mistrust, and then it leads to policies of continued subjugation of the people and systematic oppression of them (or simply tacit approval of continued oppression… best example being when you stated you know some US policies aren’t right but when it came down to someone talking about actually making the changes, I think it was Ron Paul, it just didn’t sit right with you for some reason).

This is an excerpt from your email to me a few months ago:

So really this turns into an anthropological issue: what do these people believe? Why do they believe it? (And I don't mean just about Islam: a people's presuppositions about anything stem from their geography, climate, culture, religion, not to mention their neighbors, who are in turn influenced by all those things as well.)

The principle question that is itching me is, why exactly has the Middle East has always been a such a crucible of conflict? And while I am skeptical at the heavy handed approach, I have come to also be skeptical that the answer could be as simple as having someone like Ron Paul or Barack Obama sit down "without preconditions." Could it all be as simple as that? And wasn't that Jimmy Carter's approach as well?

But maybe this is what I really should have clarified: I don't think that any people are any better or worse than us. In fact, that's even a useless statement in my mind, because in some ways I'm kind of a relativist. "As good as" America? "As good as" anyone else? What does that mean? That one has to have technology, progress, a certain kind of culture, a certain level of wealth? No. But many people will say that our freedom makes us good, something to be looked up to. But the philosophy of freedom has many subtleties, and the American view of it is only arguably better -- again, depending on what presuppositions you bring to the table. Jean Jacque Rousseau, for example, wrote the famous line "man is born free, and everywhere he is in chains." The "chains" here are his own desires for control, wealth, power. We cannot be free, truly free, without being free of our evil inclinations. Later he wrote that we must be "forced to be free." This line has been used both to criticize and praise Rousseau -- again, depending on your point of view, your presuppositions.

Also this:

Again, I know very little about Iran’s government and what policies and viewpoints it actually espouses. (I.e., a rousseau-ian/hegelian view of freedom, or the Lockean/American view of individual liberty). But my point is, where I used to just give such governments the benefit of the doubt (because I thought it was so absurd that people would give their lives over to the state), I can no longer do that, because I now see that it is quite possible.

So, how can you assure me that the vast majority of Iranian people want this?

Anyways, my impression is that you view me and other Muslims like me living here in America as some kind of enlightened minority, somehow innocently detached from the “real” majority of the Muslim world and all of its cruel and brutal realities—realities that you simply cannot take any chances on and feel extremely uneasy about changing any US foreign policy status quo on. Almost as if its like a self defense mechanism… you don’t know enough about it, but you don’t want to rock the boat because what’s been happening seems to keep you and others safe and living normally so let’s not risk anything right now even if it means taking a risk that we are keeping some injustices and evils going.

So although its not a prejudice of the sorts we are used to seeing (ie racism) its another type of prejudice that starts with ignorance of the unknown and then gets strengthened by the manipulation of ideas that you have been subjected to in certain circles, which have only fed your fears and suspicions further and further.

Can you honestly feel open enough to a Muslim and Christian co-existence the way that you have been taught by the establishment to respect the “Judeo-Christian” realm? That’s the question you have to ask yourself and if you have any qualms whatsoever therein lies my point. I don’t blame you, I just want you to recognize it’s there.

Making Sense of US in the Middle East

2009-01-21T16:44:00.000-08:00

I've long struggled with the big questions regarding the Middle East, especially, why is it such a mess, and what good, if any, are we doing over there? Tired of being agnostic on the subject, I've finally picked up a book to try to start getting a sense of the subject. I picked up Michael Oren's Power, Faith, and Fantasy, although without doing much research -- I later discovered he serves in the IDF. However, the book is balanced thus far (halfway into it at this point). And who doesn't have an opinion on the subject of the Middle East, after all.

My studies on the founding era and first 100 years of the US has already revealed that the flourishing of of a free republic is not an easy thing to pull off. It takes not just a good constitution--I think many people believe that anyone can have what we have if they want it, they just need to use our founding documents. But it takes much more than the lifting of ideas--you need soil, not just the seed alone. The Protestant movement had a big impact in shaping our system. Instead of having a strong authority center like Catholicism, Protestantism had a DIY bent, which leads to people forming strong local groups, public and private, to get things done on their own. There is of course more to it than just the particular religious history that coincided with America's early period, but it is profound.

Because the mid east has always been predisposed to lousy rulers, and because it's actually pretty tough to get democracies going, I can see the argument for being pro-Israel as a general matter. That is not to neglect all Israel's awful policies of settlements et al., and its religious bigotry. But that has been the norm since the US was introduced to the Middle East--it's not something Israel invented. Rather, Israel does and should endure censure because of the Spiderman notion that with great power comes great responsibility. Israel has superpower backing but lacks the full measure of the moral and philosophical grounding of the superpower backing it.

But it does seem that US has been trying to give the Middle East education and democracy for hundreds of years. It just never really took, unfortunately. So in a sense it's hard to buy the argument that Israel is the only thing standing in the way of a free and prosperous Palestinian state. I'm anxious to see how Iraq pans out. It may be the next real successful Middle Eastern democracy, which would be very exciting. And it would do much for Bush's legacy.

"The Pragmatic Conceit" on National Review Online

2008-12-21T11:46:00.001-08:00

Anthony Dick points out:

To the extent that it performs any conceptual function at all, pragmatism seems to boil down to the more mundane concepts of flexibility, open-mindedness, and deliberation. A “pragmatist” might be said to be someone who, though inevitably laden with policy prejudices, is willing to put them aside and adapt to new situations as needed. But if this is all that pragmatism means, everybody would self-describe as a pragmatist.

Quite right. I have always thought that pragmatists never quite escape the arguments they lodge against natural rights. In fact, pragmatism is simply a myopic and less articulated version of natural rights theory. Where natural rights theory begins at the beginning, with epistemology and teleology, pragmatism jumps right into social studies and polls to build an argument for some end or another. This skips the hard work of prioritizing the ends and purposes that law means to achieve. And that is precisely why we have our outgoing president making statements like this.