A compendium of random thoughts regarding politics, society, feminism, sex, law, and anything else on my mind. POST YOUR COMMENTS BY CLICKING ON THE TIME INDICATOR BELOW THE POST YOU WISH TO COMMENT ON. RSS FEED AVAILABLE AT http://feeds.feedburner.com/Dilanblogspotcom

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THE MORMONS AND THE MODERN NATURAL SCIENCES:
An interesting controversy has sprung up involving a professor who is a member of the Church of Jesus Christ of Latter-Day Saints and who sought to show genetic links between pre-Columbian Native American tribes and White Americans. I am no expert on Mormon theology, but as I understand it, the Book of Mormon, which was revealed to the Prophet Joseph Smith by a messenger of God, set forth a history of pre-Columbian America where Jesus visited and ministered to tribes after his crucifixion and resurrection in the Middle East, and those who followed him were fair-skinned and God's chosen people. (This explains the Church's resistance, until relatively recently, in according blacks the opportunity to attain the priesthood-- the theology was that darker-skinned people bore the "mark of Cain" in recognition of the darker-skinned tribes' rejection of Jesus' teaching when he visited the Americas.)

The professor, as I noted, looked for genetic links between native American fossils and Caucasians, attempting to prove that the Book of Mormon was truthful in recounting whites living in America before European settlement. Unfortunately, his research instead led him to conclude that Scripture was incorrect and that no whites lived in America before the Europeans came. When he made his conclusions public, the Church initiated proceedings to discipline, and perhaps excommunicate, the professor.

This is not the first clash between Joseph Smith's revealed word and scientific truth. One of the important Mormon Scriptures, the "Pearl of Great Price", contains the "Book of Abraham", which Smith claimed to have translated from Egyptian hyroglyphics using special lenses. However, what Smith claimed were the original Egyptian texts were examined by modern Egyptologists, and they turned out to be ordinary funerary offerings, not Mormon Scriptures.

Obviously, the Mormons should be heartily condemned for their assaults on academic freedom and the seeking of scientific truth. But beneath that, I feel a certain sympathy for the Mormons. Their Church is less than 200 years old and has grown very fast, now claiming millions of members. Salt Lake City, settled by Mormon Pioneers led by Prophet Brigham Young, is an extremely impressive, beautiful and vibrant city which just hosted a successful Winter Olympics. Brigham Young University not only has excellent academic programs but also boasts a top-rate athletic program; their football team has even won a national championship. And they have overcome their prior racial discrimination to become one of the most diverse of American religions; no longer are Mormons always white suburbanites from large families, as they once were. They have had an amazing run.

But the reason I feel sympathy is because the youth of their religion puts them at an extreme disadvantage with respect to the interaction of science and their religion. All religions, of course, clash with science to some extent; only the most fundamentalist Jews and Christians, for instance, still believe that the earth was populated in the sequence and in the timeframe set forth in Genesis. But younger religions have it worse, because not only does science call into question their beliefs regarding events at the beginning of history, but also the more recent events set forth in their texts.

To see this, imagine if Christ had been executed in the 19th Century, rather than 2000 years ago. That would likely mean that Christ would have identifiable living distant relatives. Bodies could be exumed, and DNA compared, to show that "the Messiah" was in fact still buried in the ground and no resurrection had occurred. The facts relating to miracles could be investigated, and secular explanations proffered. It would be possible to show (either through genetics or the fossil record) that animals who never made it onto Noah's Ark nonetheless survived the flood and reproduced. Contemporaneous reports of events set forth in Scripture would have appeared in newspapers and magazines, calling religious parables and legends into question.

This is what the Mormons face, not because their religion is any less true than Judaism, Christianity, or Islam, but simply because it came around later and is thus more amenable to scientific scrutiny. These days, of course, they react by shutting down inquiry by practicing church members; that, of course, is just going to shift the inquiry over to more skeptical non-members. In the long term, the Mormons will have to adopt a more flexible view with respect to the truth of their holy texts, just as many Christians and Jews no longer believe in the literal truth of their Scriptures at least as to matters such as evolution and the fossil record. But there is also a certain smugness out there, especially among some evangelical Christians who view the Mormons as heretics and who are seizing on these findings as a way to bring Mormons "back to Christ". On a theolgical level, the problem for Mormons is not that science has proven their sacred texts to be incorrect; it is that science has that capability to a greater extent than it does with older religions.
posted by Dilan at 6:59 PM

 
SODOMY STATUTES AND THE HARM OF UNENFORCED LAWS:
Imagine if you lived in a town with the most restrictive sort of Sunday blue law, which essentially prohibited any public or commercial activity on Sunday other than going to church, with a penalty of six months in jail for the first offense and prison time for repeat offenders. The law was passed in 1780, and has not been enforced in 55 years. As a result, townsfolk engage in all sorts of activities that would be prohibited under the law, such as operating a movie theater, staging plays and sports events, opening the local stores and restaurants, playing games and picnicking in the park, publishing a newspaper, and anything else they might choose to do. There have been sporadic attempts to repeal the law, making the argument that a statute that is so routinely ignored and is never enforced should not be on the books. However, a vocal minority of religious conservatives who care deeply about the law have managed to block all attempts at repeal, arguing that even if the law isn't enforced, it reflects the fact that it is immoral not to honor the Sabbath, and the supporters of repeal are Godless hedonists who are opposed to one of this nation's great Judeo-Christian moral traditions.

This is the perfect analogy to the sodomy laws of many states, with the exception that some of the laws (though not all of them) apply only to homosexual sodomy and thus only criminalize the activities of a minority (other sodomy laws, however, apply to oral or anal sex between same-sex or opposite-sex couples, and thus criminalize the activities of almost every sexually active adult). Sodomy laws are almost never enforced against those having consensual sex, but they are difficult to repeal because the religious right is just about the only group that cares much about them, and they label anyone who attacks the laws as "anti-family" or anti-God, because their religious beliefs judge homosexual conduct to be a mortal sin. Of course, gay rights groups have attempted to repeal such laws, but in many states, gays have little or no political power, and they have bigger fish to fry anyway; the fact that the laws are generally not enforced means that they present a more theoretical threat as compared to the actual threat of things like employment discrimination and the denial of the benefits of marriage.

So the laws stay on the books. And they are not harmless. First of all, they do chill perfectly acceptable conduct. There are some people out there (I might call them "anal-retentive" but I don't want to make a bad pun here) who always try to follow the law, either because they are paranoid that the law will start being enforced or because they don't believe that it is right to knowingly break it. There is also always the threat that some day, a prosecutor, or a majority, might decide to start enforcing these laws again. Moreover, all unenforced laws (and there are a lot of them-- some having to do with silly or obsolete issues such as the duty to hitch your horse to the hitching post on the streetcorner) at the very least clutter our statute books, making it more difficult for an average citizen to learn what the law is and to conform his or her conduct to the law. Finally, the precise point of moral condemnation that makes the religious right support anti-sodomy laws is an important reason for their repeal-- the government should have no business engaging in the symbolic condemnation of private conduct solely on the ground of its supposed immorality.

As I said earlier, it is often difficult to overturn these laws in the legislature. What about in the courts? The problem with court challenges is originalism; the Constitution was written at a time when these statutes were enforced and were generally considered a legitimate exercise of state power. So no originalist worth his or her salt can say that a sodomy statute violates due process or equal protection. Nonetheless, those with more liberal judicial philosophies can find an abundance of theories for invalidating these laws, including that they violate due process by singling out a "discrete and insular minority" for harm or by invading the right to privacy, and that the violate equal protection by making irrational classifications between homosexuals and hetrosexuals, or between different sex acts. Indeed, a challenge to a Texas sodomy law has been brought to the US Supreme Court, and this may give the Court an opportunity to overturn its poorly-reasoned 1986 decision in Bowers v. Hardwick, where the Court upheld a Georgia statute with a 20 year prison term for sodomy on the ground that a state government has the power to criminalize anything the state feels is immoral. (Since that time, the Court's composition has changed and the Court has overturned a Colorado anti-gay rights statute with reasoning that certainly calls Bowers into question.)

But the political science questions are as troubling as the legal questions here. The fact that a democracy can produce laws that criminalize the harmless conduct of a majority of the voters certainly seems like a flaw in the system. One wonders whether, at least as to those laws that criminalize the sex practices of a majority of citizens, the answer might not be to start actually enforcing the laws. Then maybe the citizenry will learn that it is not wise to use the awesome power of imprisonment to make silly and anachronistic moral pronouncements.
posted by Dilan at 3:00 PM

 
CHAVEZ V. MARTINEZ AND MIRANDA:

The Supreme Court is about to hear the latest attempt by police, prosecutors, and conservative activists to overturn the famous 1966 decision in Miranda v. Arizona. You might remember that a couple of years ago, in a case called Dickerson v. United States, an activist panel of judges on the United States Court of Appeals for the Fourth Circuit chose to ignore Miranda and declare that a statute that Congress passed in 1968 and which had almost never been invoked in subsequent cases had actually overturned Miranda and we just didn't know it for 30 years. The Supreme Court emphatically reversed the Fourth Circuit, in a 7-2 decision, with Chief Justice Rehnquist, no fan of Miranda in the past, writing the majority opinion.

Now comes a second attempt, this time taking a slightly different tack. Under 42 U.S.C. Section 1983, a statute passed after the Civil War, a citizen can sue state and local officials for violating his or her constitutional rights. The Supreme Court added an additional requirement in the 1960's and 1970's that the right be "clearly established"; the idea being that officials should not be punished for not anticipating the development of newly-found constitutional rights that did not yet exist at the time that they engaged in the conduct complained of in the suit.

Miranda contains two basic requirements, which have both been clearly established since the original decision in 1966: (1) that police give the now famous warnings before commencing a custodial interrogation of a suspect, and (2) that, if the suspect invokes either the right to remain silent or the right to counsel, the interrogation must cease. The plaintiff in Chavez v. Martinez was interrogated about his alleged involvement in an officer shooting while he was in his hospital bed and in terrible pain due to a fresh gunshot wound, and despite the fact that he had repeatedly asked that the interrogation stop because he was in so much pain. So, the case for liability ought to be a slam dunk. Indeed, the Ninth Circuit Court of Appeals followed its earlier, established precedents in finding the officer liable.

The officer has taken the case to the Supreme Court, supported by conservative groups and prosecutors, arguing that Miranda actually just stands for the proposition that when a criminal suspect is tried, no statement taken without warnings or after an invocation of the Miranda rights by the suspect may be used. In other words, officers, have the right to flout Miranda's requirements, as long as they are willing to give up the right to use the statement at trial.

This is, to put it bluntly, a highly revisionist view of Miranda. In fact, the Miranda opinion derived its novel legal rule (before then, courts would look at all the circumstances to determine if a statement given in custody was voluntary) from dissatisfaction with oppressive police interrogation tactics, which are described in great detail in the Miranda opinion. The Court's concern was not that these statements were used at trial; rather, the Court's concern was that police were using oppressive tactics such as incommunicado interrogations and psychological torture to obtain confessions of questionable reliability. If the officer's argument is adopted in the Chavez case, not even an innocent person subjected to these tactics would be able to sue the officers or the police department for using them. (The officer's lawyers do concede that conduct that is so oppressive as to "shock the conscience", such as actual physical torture, might be prohibited. But in practice that test does not provide much of a deterrent to police departments, because it is very hard to meet and is reserved for the most heinous of conduct.)

Further, in addition to being historically inaccurate, the practical effect of a "Miranda only prohibits the use of statements at trial" rule would simply be widespread disobedience of Miranda. An established exception allows un-Mirandized statements to be used by prosecutors to "impeach" suspects, i.e., to expose that the criminal defendant is lying in his or her testimony. The idea behind this is that the purpose of a trial is to seek the truth, and the Miranda right should not function as a sword that allows a defendant to perjure him- or herself without consequence. However, the combination of this with a no-civil-liability rule is predictable. A few years ago, it was discovered that numerous police departments in California were intentionally questioning "outside Miranda", as they put it, to obtain impeachment evidence (or to keep the defendant from testifying in his or her own defense based on the threat that the statements given to interrogators could be used against the defendant). These officers would even sometimes openly say to the suspects something to the effect of "you've just invoked your Miranda rights, so we can't use your statement against you, so tell us what really happened". This was one of the cases, prior to Chavez v. Martinez, in which the Ninth Circuit developed its rule permitting civil liability for Miranda violations. If the Supreme Court rules in the officer's favor, no police department will follow Miranda; there is no downside to violating it (because of no civil liability), and a tremendous upside in obtaining statements that can be used against the suspect if he or she testifies in his or her own defense.

The officer's lawyers, along with some important scholars such as Eugene Volokh, argue that civil liability would interfere with the war on terrorism, because officers may want to question outside Miranda to prevent future terrorist acts rather than to obtain evidence against the suspect. Here's the link to Volokh's argument:

http://volokh.blogspot.com/2002_11_24_volokh_archive.html#85715207


There are at least three responses to this. First, and most importantly, in 1984 the US Supreme Court recognized in New York v. Quarles that there was a "public safety" exception to Miranda that allows police to question suspects without warnings when there is an imminent threat to public safety (in that case, it was to find out where a weapon that remained at large was). Any questioning of a terror suspect to determine whether and what imminent threats to public safety exists would not be unconstitutional under Quarles. Second, the war on terrorism is mostly a federal concern, and civil liability for federal officers is controlled by the Bivens doctrine, not 42 U.S.C. Section 1983. The importance of this is that Bivens recognizes that there can be "special factors" in particular cases that "counsel hesitation" and can permit the denial of liability. Certainly the desire to prevent imminent terror attacks would be such a "special factor". Third, even if a terror suspect's claim for damages for a Miranda violation went to a jury, it isn't likely that a jury would award much money, or indeed any money, to such a plaintiff. The connection between the Chavez case and terrorism is ephemeral, and serves as a nice reminder that there are some people out there who would like to wrap their pet projects (like bringing back the "good old days" of overly aggressive police interrogation) in the war on terror.
posted by Dilan at 12:26 PM

 
THE DIFFERENCE BETWEEN NO JURISDICTION AND CONSTITUTIONAL:
There is an underreported story about the Bush Administration's plan to use military commissions to try terrorist suspects. The Bush folks swear up and down that the commissions are constitutionally permissible; they cite the case of Ex Parte Quirin, where such commissions were upheld during World War II (though note that World War II was a declared war and that Congress had authorized the military tribunals in the war declaration).

But check out this story:

http://www.washingtonpost.com/wp-dyn/articles/A2778-2002Nov17.htm

The key paragraphs are these, which discuss the chatter that has been heard recently about dismissing civilian court charges against Zacharias Mussaoui and taking him to Cuba for a military trial:

"Moussaoui, who is accused of conspiring with Binalshibh in the Sept. 11 attacks, has said he wants to call Binalshibh as a witness in his trial. That prospect, coupled with the recent decision of Justice Department officials to take a more active role in the handling of his case, has led to the theory that federal officials will move to dismiss the case and put Moussaoui, who is defending himself with the aid of court-appointed lawyers, before a military tribunal.

"But government sources said the Justice Department has no interest in doing so. Because Moussaoui is in this country, he could try to fight such a move in federal court. That could open the tribunal process to a constitutional challenge, something the Bush administration wants to avoid."

These paragraphs indicate that the Bush Administration isn't so sure of the constitutionality of the military tribunals after all. You see, under Johnson v. Eisentrager, a 1950 Supreme Court case, the courts arguably have no jurisdiction to hear habeas corpus claims made by enemy aliens who are outside the territorial limits of the United States. Johnson has nothing to do with the constitutionality of military tribunals, or anything else; it simply deprives the courts of jurisdiction to hear a certain type of habeas corpus claim by a certain type of military detainee. As the Washington Post reports, the last thing the Bush Administration wants to do is administer a military tribunal to anyone present in the United States, because then the Johnson jurisdictional bar would not be present, and the courts could rule on the merits of the of the constitutionality of military tribunals. Of course, this wouldn't trouble the Bush Administration if they were really sure that the tribunals, which were never specifically authorized by Congress, despite Congress' specifically enumerated power under the Constitutional to make rules for captures on land and water, were actually constitutional. It is precisely because the tribunals are likely unconstitutional that the Bush administration has no intention of doing anything that might allow a civil court challenge to a tribunal's decision.

(I might add that the Bush Administration lied about this point when it was selling its tribunal plan to the country, claiming that the defendants had a civilian court appeal route because they could always take their claims to the US Supreme Court. They may do so, but the government is prepared to argue that the Supreme Court has no power to hear the case. Some right of appeal.)
posted by Dilan at 9:20 PM

 
THE FLAT-EARTHERS AND CONDOMS:
Take a look at this article and tell me that the Flat Earth Society hasn't taken over the White House:

http://www.newsday.com/news/opinion/ny-vpcoc143002251nov14,0,7803300.column

President Bush's base includes a fair number of people who believe that all nonmarital sex, gay or straight, casual or loving, promiscuous, monogamous, or onanistic, is morally wrong. That is a silly, anachronistic moral belief, rejected in practice if not in ideology by the vast majority of the country, but it is their's to have if they wish to hold it. But few things anger me more than when these sorts of beliefs end up corrupting the sciences. Twenty years ago, they tried to do it with evolution, by enacting a "balanced treatment" law in Lousiana that required the teaching of "creation science" alongside evolution, even though "creation science" was nothing more than teaching that scientific evidence either supported or did not refute the natural history recounted in the Bible. Thankfully, the US Supreme Court struck that curriculum down as unconstitutional.

Now, the religious right is waging war on condoms, making false and stupid statements in an effort to scare people away from relying on them. Let's be very clear on this: anyone who says that condoms are not effective against disease or pregnancy is either an idiot or a liar. That person is not a scientist. I am not a scientist myself, but I am able to say that with 100 percent conviction. A condom is a physical barrier. Yes it can break. Yes it can slip off. Yes people forget to use them sometimes, or engage in risky activities such as oral sex without one. Yes there are some diseases that transmit from or to the base of the penis and are thus transmittable despite the use of a condom. But a person who claims or implies that a condom is not at all effective against disease or pregnancy is akin to someone who claims that a fence doesn't keep out burglars. The claim refutes itself.

The White House's campaign, therefore, is nothing short of disinformation. Taking truthful information off of websites, reassessing the government's position, etc., simply means that the White House does not wish to tell the truth on this subject.

All this would be an interesting study in throwing a bit of red meat to the political base, if condoms weren't such a life-and-death issue. Unwanted pregnacies destroy the lives of women and children, they trap people in loveless and abusive relationships, they cause people to drop out of school and take dead-end jobs or go on welfare, they lead to abortions that conservatives claim to loathe. Sexually transmitted diseases are a life and death issue as well.

Already, schools that receive federal sex education funds are not allowed to mention condoms in their sex ed. classes, except to say that they fail, slip, and break. How many kids might decide it's not worth it to use a condom because of that incredibly misleading information? How many might end up pregnant, or HIV positive? If the official federal government position is that condoms are not effective, will condom manufacturers be required to take the truthful claims that they are off of their products? Will condoms have to be taken off the market? It's not a silly question; the federal Pure Food and Drug law requires that over the counter medical products be safe and effective; if the government decides that condoms are ineffective, they could be prohibited.

And the truth is that this has nothing to do with science. The religious right likes the idea of sex having consequences, because they feel: (1) that such consequences will deter nonmarital sex, and (2) that even if they do not deter such sex, the people who engage in such sinful activities are only getting their just deserts. Remember that many people claimed not so long ago that HIV was God's punishment for homosexuality, and Jerry Falwell and Pat Robertson also said that 9/11 was a direct result of God's "withdrawing His protection" of the US due to our tolerance of homosexuals. For the religious right, devices that prevent pregnancy and disease are bad things. (I should add they have other biblical reasons for this position, including a belief that the agrarian imperative that humans go forth and multiply still has application in the modern world.)

There are also related flat earth policies that spring from the same impulses of religious conservatives, including, specifically, an opposition to international family planning programs that is supposedly based on language that might condone abortion but in fact is consistent and unwavering whatever language is put in the program disclaiming support for abortion. Religious conservatives oppose birth control as well as abortion, so they use the more controversial issue of abortion as a cover for their programs that continue to foist poverty and patriarchy on the third world by denying them access to contraception. (This was a central facet of Christopher Hitchens' justly famous critique of Mother Theresa.) Another example is the push to force welfare recipients into marriage. The reason welfare recipients don't stay with the fathers of their children is usually due to the fathers' abuse or irresponsibility, or the lack of love between the partners. Government-enforced shotgun marriages do nothing for poor women except satisfy the moral scolds who hate the idea that some unmarried woman out there might be having sex.)

But the religious right, and its supplicants in the Bush administration, knows it can't win on the moral issue. Although many folks in the South espouse these traditional values (though there is no evidence that they actually practice what they preach), and even Clinton was careful not to openly endorse masturbation (he fired Joycelyn Elders over it) or sexual freedom (Saturday Night Bill practiced it, but Sunday Morning William always was contrite for it), any politician who campaigned on trying to stop people from having sex outside of marriage would be killed in the polls. So instead of the honest, losing argument that condoms are immoral, we get the dishonest, unscientific argument that condoms don't prevent pregnancy or disease.

Science is a threat to religious belief, no doubt about it. The fact that we can now enjoy sex with anyone we want to while running only a minimal risk of disease or pregnancy is a tremendous advance. Think of all the people who are in better relationships, who derive more sexual satisfaction, who have gotten in touch with their bodies and their orientations and have found the people who really make them happy because of the fact that you no longer have to risk killing yourself or ruining your life by having sex. Religious zealots who have political power are dangerous precisely because they will fight to stop the advance of science, harming all of us, including those who do not share their religious belief and whose lives they have no right to ruin. But fighting scientific progress in no way changes scientific truth. Zealots placed Galileo under house arrest for life for his heretical conclusion that the earth revolved around the sun. As the sentence was read, Galileo is said to have muttered "e pur si muove", which translates to "and still it moves". All the while the White House and its supporters scream and yell about the ineffectiveness of condoms, they will continue to prevent pregnancies and save lives. Truth marches on.
posted by Dilan at 8:53 PM

 
THE TELLING CONSERVATIVE ARGUMENT THAT "10 PERCENT" PLANS ARE UNCONSTITUTIONAL:
Affirmative action in college admissions has long been an issue where people's concern about the issue is disproportionate to the issue's importance. The truth is, only a few white and asian students every year at any given college are denied admission, and in most cases, the resulting injury is merely that such students are forced to go to a slightly less selective school. It's really not that big of a deal. But it inflames people, because it involves race, merit, and the madly competitive world of college admissions. Thus, judging by the behavior of civil rights organizations, you would think that this issue was really the make or break issue in terms of the advancement of the interests of minorities (rather than anti-poverty programs, more humane policing, or enforcement of antidiscrimination laws in such areas as housing and employment). Similarly, judging by the rhetoric of white conservatives, you would think that the advocacy of these programs discredits the civil rights establishment and represents a fundamental betrayal of Martin Luther King's legacy.

I am personally ambivalent about affirmative action. In an ideal world, I would hand out admissions to selective colleges solely on merit-- the recent revalations about how people secure spots for their children in the most selective preschools in New York by making huge monetary and nonmonetary contributions is a great example of the sort of corruption that is engendered when admissions committees have lots of discretion. And I think it is an outrage that the University of California continues to dole out admissions to its most selective schools to big donors. Standardized tests and lotteries have their drawbacks, but at least they make it harder for the not-so-gifted rich to buy their way into the best colleges and careers.

But we don't live in an ideal world, and in the world we live in, where atheletes, musicians, children of big donors, "legacies", and all sorts of others get in with substandard grades, letting a few minorities in offends no great principle. There are, however, compelling arguments against affirmative action in admissions that don't have anything to do with principle; specifically, such programs tend to benefit the most well-off of minorities, because it is very difficult for someone who has grown up in a poor neighborhood and survived 12 years of substandard education, with outdated books, schools full of guns and drugs, and a "Blackboard Jungle" learning atmosphere to suddenly score close enough to the cut-off SAT score to be put over the top by affirmative action. The black and hispanic middle class do very well, though.

In the wake of court rulings and ballot initiatives restricting affirmative action, a good compromise has arrived however; the "1 percent" or "4 percent" or "10 percent" solution. These programs guarantee admission into selective public universities to all those within the top X percent of their high school graduating class. I favor the compromise because it reaches down and picks up the poor kids who went to the lousy schools, rather than middle class minorities who really haven't been significantly disadvantaged. But the interesting thing is that I learned today that there is a strong conservative movement opposing such programs on constitutional grounds.

Read this post in an influential conservative weblog (stating, sensibly, that the X percent programs are constitutional), and then scroll down and read the feedback:

http://www.discriminations.us/archives/000257.html

Apparently, there are a lot of conservatives who believe that any government action that is intended to benefit blacks and hispanics, no matter how race-neutral, is unconstitutional. Blogger John Rosenberg answers that position well enough, but I find the whole discussion scary. The position that many conservatives apparently believe is that the Constitution is not only color-blind, but requires the continuation of white supremacy.

Put another way, all interest groups in a democracy are "rent seekers", i.e., they want the government to enact programs that benefit their particular group. Some of this rent seeking involves explicit preferences; there is a strong argument that such rent seeking by racial groups is constrained by the Fourteenth Amendment. But rent seeking also encompasses facially neutral legislation that nonetheless benefits the particular interest group. For instance, many farmers support relaxing the embargo with Cuba. That's a form of rent seeking, because the farmers' motivation is to increase their sales and their income. But that type of rent seeking is fundamentally different than a direct farm subsidy.

What the conservative responses on the discriminations blog seem to be indicating is that any effort by the government to improve the lot of blacks and hispanics is unconstitutional. Under that interpretation, the Fourteenth Amendment, intended to strip the badges of slavery and discrimination from blacks, actually prohibits any attempt to ameliorate the legacy of slavery. How that is different from out-and-out racism I do not know.
posted by Dilan at 7:09 PM

 
MORE ON THE ELECTION:
Check out my post in the Slate fray:

http://slate.msn.com/?id=3936&m=4930529
posted by Dilan at 9:26 AM

 
BUSH'S VICTORY:
Before saying anything about the election results, I have to start with the caveat. We all have a tendency to nationalize midterm congressional elections. This is really dumb, when you think about it. Contested congressional elections are decided by swing voters. Swing voters make up their minds at the last minute. And since they don't vote straight ticket, party affiliation, and specifically whether the President is of the same party as the candidate, isn't particularly important.

That said, everyone else is going to search for the meaning of the election results, and if I were to come up with a theory for this, it would be that something beats nothing every time. The modern Democratic party offers no alternative to the Republicans. Support for the Iraq war is a mile wide and an inch deep, yet few prominent Democrats oppose the war, and those who do don't trumpet it or run commercials on it or make it a part of their platform. As for tax cuts for the rich, when you bother to take 20 seconds to explain to a voter that the Bush tax cut is going in bulk to the richest 1 percent of the population, support evaporates quickly. But Tom Daschle can't whip up his troops to support cancelling future tax cuts-- quite the opposite, he encouraged those who opposed the cuts not to tell the public of their opposition, so as not to embarrass those Senators who voted for the tax cut.

The problem with the Daschle strategy should have been apparent long ago. If the opposition party brooks no serious opposition on the two major issues of the day, why should anyone vote for them. This election should be read as a repudiation of Dick Morris' triangulation strategy, which only worked when Republicans were openly supporting numerous extremist positions like abolishing the Department of Education and slashing Medicare benefits. Those days are gone. If the Democrats persist in being a second conservative party, they will continue to lose, over and over again, as befits an organization that offers no alternative to the voters.

I can't help but think of all those Democrats who bashed on Ralph Nader and his supporters for "costing" the incompetent right-winger Al Gore the presidency in 2000. Based on the Clinton record, Al Gore should have beaten Bush by 10 points (just as Bush 41 won in a landslide over Dukakis, running on the Reagan record), and Nader would have been a footnote. Gore lost because of his own incompetence, not because of Nader. And if the Democrats had nominated a candidate that actually stood for something, they would have carried the Nader voters in the first place.

I should note that despite running against the worst Republican candidate for anything I have ever seen in my life (Bill Simon), and despite a huge campaign warchest, Gov. Gray Davis, another member of the Al Gore wing of the Democratic Party, has only a 3 percent lead with 50 percent of the precincts reporting in the California Governor's race. Davis only has 46 percent of the vote, and a Green Party candidate, Peter Camejo, has 5 percent of the vote.

The Republican Party is a party of ideas. Tax cuts, building an empire, sacrificing of civil liberties to fight terrorism, privatizing social security and finding private sector solutions to the health care crisis, school choice, and less regulation of the private sector are all ideas. Many of them are wrong, but they are ideas. Except for school choice and social security, the national Democratic Party has no consistent and articulated position on any of these issues.

Taking strong positions on the issues will offend some swing voters. And it will certainly offend campaign contributors. But political tactics are only effective, in the long term, when they are engaged in the service of ideas. The fundamental problem with the Democratic Party, post-Clinton, is that tactics became the end, and not the means.
posted by Dilan at 11:22 PM

 
EXHIBIT 758 IN THE CASE AGAINST THE BUSH ADMINISTRATION'S HYPOCRISY ON SAUDI ARABIA:
Over the weekend, President Bush met with Indonesian President Megawati Sukarnoputri, and while he praised the steps taken by the Indonesians to fight terrorism in the wake of the bombing of the dance club in Bali, he was reported by the AP to have said that the Indonesians had a long way to go.

One simple question: have you ever heard Bush say that the Saudi Arabians have a long way to go? Quite the contrary; Colin Powell has praised the Saudis for fully cooperating on the war on terror. The folks in the Bush Administration, and the conservatives that support it, pride themselves on their "moral clarity". But they've got this one exactly backwards. Megawati's government in Indonesia is exactly the sort of thing we should be celebrating and holding out as an example to the rest of the Islamic world: a democratically elected government in a difficult to govern, predonimantly Islamic country doing its best to manage hundreds of islands with different and feuding populations. Add to that the fact that the President is a woman!

Meanwhile, our "friends" the Saudis run one of the most oppressive countries in the world for a woman to live in-- polygyny (but not polyandry), arranged marriage, enforced submission to husbands and fathers, no right to drive or to ride in the front seat of a car, and the forced wearing of the chador, a covering only slightly less oppressive than the burqa (the Saudis are gracious enough to let women expose their eyes). The Saudi government has never held a free election, is made up of a clan that plays by a different set of rules than the rest of the population (stealing millions of dollars, and engaging in huge amounts of adultry and fornication, both of which would merit severe punishments under Islamic law if done by a commoner) and whose members actually believe that they are superior and more fit to govern than the rest of the population due to their bloodline. (Monarchism is, at bottom, a form of racism, just more narrowly drawn to encompass a particular clan or family rather than an entire race.) And most importantly, unlike Megawati, who, for all of her faults, is actually trying to do something about terrorism in a very difficult-to-control country, the Saudis openly support terrorism, with payments of protection money to Al Qaeda, telethons to suicide bombers, and a state-sponsored propaganda and religious education campaign that spews anti-Americanism, anti-Zionism, and anti-Semitism.

Conservatives are often driven up the wall when liberals condemn Bush and Cheney, and his cohorts, for their backgrounds in the oil industry. But the Bush / Cheney deference towards Saudi Arabia flows directly from that background. (The only other inference is even worse-- that Bush sees a kinship with the snobbish obscenely rich plutocrats of another society.) If Indonesia had one-fourth as much oil as the Saudis control, Megawati would surely be seen by Bush as having done enough to fight terrorism.
posted by Dilan at 8:32 AM

 
WELL, MAYBE NOT!
Looks like the archives are gone again.

Here are the links to the archives:

September 2002: http://dilan.blogspot.com/2002_09_01_dilan_archive.html
August 2002: http://dilan.blogspot.com/2002_08_01_dilan_archive.html
July 2002: http://dilan.blogspot.com/2002_07_01_dilan_archive.html
June 2002: http://dilan.blogspot.com/2002_06_01_dilan_archive.html
posted by Dilan at 7:13 PM

 
COPYRIGHT TERM EXTENSION:
Last week, one of the most interesting recent Supreme Court cases was argued. The case involves an issue that has been extensively discussed by copyright scholars, but curiously has never reached the Supreme Court before-- whether the extension of copyright terms is constitutional.

To understand this issue, here is a little background. A copyright is a limited monopoly right, i.e., the copyright holder (i.e., the author or someone who the author sells or gives the rights to), and only the copyright holder, has the right to exhibit, public, or perform a composition, or to make other compositions from it. (This is subject to some limitations not germane to the current discussion, such as the right of others to make "fair use" of the work, and the "first sale" doctrine that allows a buyer of a book to resell it without permission from the copyright holder.) Like a patent, a copyright is for a limited duration-- currently a copyright lasts the author's life plus 70 years (or 95 years for a work created by a corporation).

Congress' power to grant copyrights is contained in the Copyright Clause of the Constitution, which states that Congress has the power "To promote the Progress of Science..., by securing for limited Times to Authors... the exclusive Right to their... Writings". The first federal Copyright Act, passed in 1790, three years after the Constitution took effect, provided for a maximum 28 year copyright. Since 1790, Congress has on occasion extended the terms of copyright, both retroactively and prospectively, numerous times. Before the latest extension took effect, the term was life of the author plus 50 years (or 75 years for corporate works). That was due to an extension in 1978; before that, under a major copyright revision in 1909, the maximum term was 56 years.

The obnoxious thing about the latest copyright extension was that it was passed after extensive lobbying by Disney to protect Mickey Mouse, which was about five years from falling into the public domain. (Mickey was also fairly close to the public domain in 1978 when the last extension took effect.) There is no doubt that 20 years from now, Disney will be back lobbying for another extension.

Bad policy and big money politics aside, why is any of this important? Because of the constitutional provision I quoted above. First, and most importantly, the Congressional power to protect copyrights is not absolute but only extends to protection "for limited times". In other words, it is clear that a perpetual copyright term is impermissible. Further, a term that is effectively perpetual (e.g., 1 million years) would be equally impermissible. The question is, can Congress get around this by simply extending the term in bits and bites to ensure that Mickey never makes it into the public domain? The answer can't be yes-- a continually extended time is not "limited". Moreover, the preamble to the Copyright clause makes clear that the purpose is to "promote the progress of science"-- i.e., new works. Extending existing copyrights does nothing to create incentives to produce new works. Indeed, quite the opposite; it increases the monetary incentives to keep on exploiting the old rather than creating something fresh.

Nobody expected the Supreme Court to even review this case. The Court of Appeals had upheld the copyright statute, holding that Congress' power to set the term of copyrights was nearly complete. There was no other case going the other way (a split in the circuits is the usual reason for Supreme Court review). The Court must have taken the case because it believed it to be important, and quite possibly because at least four justices (the minimum number to grant review) believed that the lower court was wrong and the statute was unconstitutional. There are differing reports on what went on in oral argument; I have now read the transcript and think that the Court was tough on both sides. But I sincerely hope that the Court puts an end to this business of continually extending copyright terms. I actually think they had it right in 1790-- a 28 year monopoly is more than adequate compensation for a person's creative efforts. But life plus 70 just ensures that an author's often talentless and idle grandchildren, or some faceless corporation that obtained the rights, continues to get rich, while the public is denied the use of the work. This is lousy legislation, and it is not in any sense a "limited time".
posted by Dilan at 7:10 PM

 
OK, WE'RE BACK
All old posts are available by clicking on "Archives", above
posted by Dilan at 6:41 PM

 
I WAS HACKED!
I am trying to recover all my old posts and will get the site back up and running soon.
posted by Dilan at 6:39 PM