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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MICHAEL JACKSON'S PLANE AND THE PROBLEM OF GENERAL AVIATION SECURITY:
We don't yet know how all that video equipment got on Michael Jackson's plane, but the untold story here (I know it is hard to believe that any story relating to this matter is still untold, but bear with me here) is that even in this day and age of post-9/11 security, it is insanely easy for anyone to access private planes (which are referred to as "general aviation", or "GA", in contrast to "commercial aviation", which means airlines and airliners).

There are a number of reasons for this. Obviously, some of this is unavoidable. As everyone knows, metal detectors and X-ray machines are required at all commercial airports. But there are not that many commercial airports in the country. Here in the Los Angeles metropolitan area, we have six-- Los Angeles International, Orange County, Ontario, Burbank, Long Beach, and Palmdale. I believe New York has five-- Kennedy, Newark, La Guardia, Islip, and White Plains. In most cities (San Diego, for example, or Phoenix), there is one. Smaller cities sometimes do not have any commercial service whatsoever.

In contrast, there are thousands of general aviation airports, which encompass everything from a grass landing strip in a farming town to facilities landing Learjets and Gulfstreams for the rich and famous in places like Teterboro, NJ (close to New York) and Van Nuys, CA (near Los Angeles). Obviously, securing these places is a more difficult enterprise.

That said, however, you'd be surprised how many of these places lack anything more than a climbable fence for security. Aircraft are sometimes left open, where they can be tampered with, loaded with unauthorized cargo, or even stolen. And even in some of the largest GA airports serving learjets, ID's are not always checked, passengers and luggage are not screened, and people seem to be operating on an honor or recognisance system of security.

In this day and age, this won't do. There were indications after 9/11 that perhaps GA security would be improved. But then, it became clear that little would be done. Why? Well, for one thing, GA has a very effective lobby. Much as the farm lobby effectively represents the interests of agribusiness while claiming to stand for the small farmer, the GA lobby conjures up images of middle class Americans with pilots licenses who would face huge costs and inconveniences while running a security gantlet, all the while opposing even those security measures aimed squarely at the learjet set. (It isn't just security measures either-- while commercial airliners have been required to meet strict noise limits over the last 20 years, executive jets are not subject to those limitations thanks to the strength of the GA lobby; as a result, homes near Van Nuys Airport shake and crackle while all those jets carrying Hollywood celebrities and movie producers fly in.)

The GA lobby makes two main arguments against regulation-- first, that there are plenty of other weaknesses in homeland security that terrorists would exploit rather than using a GA plane to stage an attack, and second, that any regulation would impinge on the freedom of Americans to take to the skies. Both these arguments are easily answered. With respect to the weaknesses in other parts of the security net, one gaping hole does not justify another. Indeed, by the logic of the GA'ers argument, we shouldn't take any security precautions in any endeavor, because there will always be some loophole.

With respect to the argument that regulation will limit GA'ers freedom, this is, in a certain way, true, just as it is true that the same helmet laws that save the lives of motorcycle riders also impinge on their ability to feel the wind rushing by. But I would also express skepticism as to how much freedom would really be limited. I would envision different levels of security for different types of planes-- jets, after all, are more dangerous than multi-passenger prop planes, which, in turn, are more dangerous than Cessna 172's. A multi-tiered security system would reduce the imposition on recreational flyers while addressing some of the major holes in the system.

One might require that jets be parked in secure areas in airports with tightly controlled access, just like commercial airliners. Passengers and luggage could be screened at Transportation Security Agency checkpoints (remember, most GA airports don't handle learjets, so this may be doable), and passengers, flight attendants, and pilots would be subject to the same security checks as their counterparts in commercial aviation.

Multi-passenger prop planes should still be parked in secure areas (to prevent someone from stowing away or putting explosives on the planes), and pilots and passengers should be positively ID'd, with TSA officials setting up random checkpoints at GA airports with full search facilities, and conducting random background checks on passengers. All plane owners should be required to purchase terrorism insurance-- the insurance companies would then require that aircraft be fully secured and difficult to access. And everyone who gets a pilot license or takes flight training courses should submit to a background check.

I am not dead set on any of these ideas. My real point is, this is a big problem and the political system seems to be responding to lobbies and monied interests rather than doing something about it. People in the know raised similar warnings about hijackings and using commercial planes as missiles before 9/11. Let's hope that this time we can act proactively.
posted by Dilan at 10:59 PM

 
THEOLOGY AND ISRAEL:
I have blogged before about the deep respect I have for Israel, as a democracy among dictatorships in the Middle East, and as a successful country among failed states. I have also talked about the fact that Israel was born in a state of original sin, because it was formed by international powers who dispossessed Palestinian Arabs of their land without concern for the consequences. And that original sin has defined the state of war that Israel has found itself in ever since.

That original sin, however, can never be mended. Obviously, there has to be a refuge for Jews, who are, even now, repeatedly persecuted and attacked all over the world. And Israelis have a right to a safe, secure state, and further have the right to strike back against terrorists who bomb innocent people on the streets of Israel's cities. Indeed, the stubborn insistence of Israelis not to be beaten by the terrorists-- to continue to live their lives and engage in everyday activities despite the threat of additional suicide attacks-- is deeply admirable.

In my mind, the real threat to Israel-- because the terrorists will never be allowed to win-- comes from its friends and supporters, not the terrorists. And that threat is the insistence on intertwining the question of Israel's existence with the religious claims of the Jewish people to the Holy Land. The reason is that although these arguments may play well and may raise money from the believers, no non-Jew is ever going to feel obligated, or should feel obligated, to accept them, any more than Jews feel that they should give up sovereignty over the Temple Mount because Islamic tradition states that the Prophet ascended to heaven there.

Here is a nice example of this genre of argument. Charles Krauthammer is a war hawk and a strong supporter of Israel. Those are respectable positions, and I certainly don't condemn anyone for arguing that Israel should not agree to a Palestinian state if the peace plan would empower terrorists. He makes legitimate, if debatable, points against how the latest plan, concocted by liberal Israeli politicians in unofficial shadow negotiations with Palestinians, would compromise Israel's security.

But then he lands with this: "[Israeli negotiator Yossi] Beilin gives up the ultimate symbol of the Jewish connection and claim to the land, the center of the Jewish state for 1,000 years before the Roman destruction, the subject of Jewish longing in poetry and prayer for the 2,000 years since-- the Temple Mount. And Beilin doesn't just give it up to, say, some neutral international authority. He gives it to sovereign Palestine. Jews will visit at Arab sufferance."

Now wait just a second, Charles. I thought this was about Israel's security. I am not convinced that it would do this, but if giving up the Temple Mount would lead to peace between Israel and the Palestinians and an end to all the needless death, destruction, and misery in the region, isn't that reason enough to give it up? Is it more important to maintain symbolic control over a strip of land that is mentioned in holiday prayers than it is to save lives on the ground? As Krauthammer himself characterizes it, the Temple Mount is a symbol. The "ultimate symbol", yes, but a symbol nonetheless. Seriously, if I lived in Israel, I'd be much more concerned about the government giving up the Jordan Valley than the Temple Mount. But then, I am not a religious Jew-- and that is exactly the point.

If Israel is to ever settle its differences with the Palestinians, it will need to give Palestinians the land necessary to create a viable state. Everyone knows this. And creating a viable state means encompassing most of the Arabs in the Holy Land-- the last thing Israel wants is a demographic nightmare where Arabs live in Israel and eventually outnumber Jews, forcing Israel either to give up on being democratic or to give up on being Jewish. Further, no Arab wants to hear about how their new state cannot acquire particular lands because God gave them to the Jews, or because Jews lived there several millenia ago. Such arguments are not persuasive to Arabs-- nor should they be-- who have a different belief about what God wants and doesn't want, and who have their own historical attachments to land that they cannot reasonably be allowed to possess. Nor are they persuasive to non-Jews in the international community.

The paradox for Israel is that in order to maintain its Jewish character among so many Arab states, Israel must justify its actions based entirely on secular principles. People like Krauthammer may mean well, but they threten Israel's existence by situating the justification of Israel's actions in religion and religious history. This, in turn, feeds the notion in the Arab world that the Arab relationship with Israel is a religious war rather than an problem of providing two peoples with political rights and land. The best road to true security-- and religious freedom-- for the Jewish people is by pursuing a secular standard of justice, even if it means making painful compromises on heartfelt religious issues.
posted by Dilan at 10:28 PM

 
MORE "TIM GRAHAM":
Who is this guy, anyway? He's the person at The Corner whose assignment it is to articulate the right wing's claims of media bias. Well, he's really on a roll now. First, he posts an item that simply parrots a flash press release from the Media Research Center, a right-wing group that researches media bias. (That's pretty obvious evidence that Mr. Graham has been assigned the task of whining about media bias from right wing central, isn't it?)

Then, he puts in an item calling for completely biased coverage of the gay marriage decision by the Supreme Judicial Court of Massachusetts-- he wants the media to spin this as "unelected judges versus the democratic minority". Hey, Tim, I thought the party line was you guys wanted an unbiased media that let the viewers decide these things!

But what really drives me nuts about Mr. Graham's post on the gay marriage issue is that he refers to the issue as follows: "Judges favor what proponents call gay 'marriage,' but energized democratic majorities tend to reject it." Notice the use of "scare quotes" around the term "marriage", and also the use of the locution "what proponents call".

As a lawyer, I see scare quotes all the time in legal briefs. (For instance, in a case where one side denies that a contract was ever formed, you might see a sentence like this: Plaintiff contends that the parties agreed to a "contract" to distribute the pencils.) They drive me nuts. The reason is that-- except in certain, limited, obvious situations where the other side is clearly misusing a term-- scare quotes are a substitute for argument, rather than an argument itself. Mr. Graham's post is a perfect example of this. The reason proponents call the issue gay "marriage" is because that is what they are seeking-- a right of gays and lesbians to marry their life partners, and to claim all the public benefits of marriage. If Mr. Graham wants to articulate why he believes, for some reason, that gay marriage isn't really "marriage", that's fine-- but HE HAS TO ARTICULATE THE ARGUMENT. Putting "marriage" in quotes doesn't make the argument, doesn't persuade anyone (which is the point of making an argument), and basically makes the writer look either like he is too lazy to articulate the basis for his position, or doesn't have a basis for it.

In Mr. Graham's case, I would imagine it is a variant of the second alternative-- Mr. Graham thinks that gays and lesbian are so different and alien that any arrangement that they arrive at cannot be called "marriage". Of course, if he articulated that argument, he would look deeply homophobic. So, since he doesn't have a non-homophobic basis for his position, he falls back on scare quotes.
posted by Dilan at 11:38 AM

 
THEY ALL SEEM TO HAVE AN ASSIGNMENT
I always thought that Hillary Rodham Clinton's invocation of a "vast right-wing conspiracy" out to get President Clinton was way over the top. Bill Clinton created his own troubles. He had an affair with a subordinate (while this was a perfectly voluntary act, it also raises troubling questions about sex and power that have been properly addressed by feminists in situations where a Democratic presidency wasn't at issue), and then lied about it in a sexual harassment suit where he was legally obligated to tell the truth. Then, he lied to the country, and most importantly, would have continued lying about it to his dying day, and using his subordinates and yes-men to trash Ms. Lewinisky's integrity, had unimpeachable incriminating evidence (his semen on the dress) not materialized.

So I don't think Bill Clinton's impeachment problems were the result of any vast conspiracy. But I must say, more recent events are casting Ms. Rodham Clinton's analysis in a more favorable light. What I am referring to is the extent to which the right wing seems to "assign" certain tasks to writers, producing canned and predictable opinion that seeps its way into the public discourse without regard to its validity.

Books are the most obvious example of this. As a general rule, any conservative book with a snappy main title followed by a colon and an accusatory subtitle is the result of an assignment. Michelle Malkin writes "Invasion: How America Still Welcomes Terrorists Criminals & Other Foreign Menaces to Our Shores", because she was assigned the task of putting out the argument for a nativist immigration policy (which would just happen to advance the long-term goal of reducing the number of future immigrant votes for Democratic candidates). (By the way, just as an aside (I might post on this in detail in the future), do you notice how, even in Malkin's book's title, she conflates a "terrorist invasion" with the ordinary folks who cross our borders to find work? They are, of course, apples and oranges, and it is truly offensive to compare a poor Mexican migrant to an Islamist terrorist.)

Amazon.com has a wonderful feature that tells you what other books were bought by people who bought the book you are browsing.

And guess what-- Michelle Malkin's book links to a couple of the other "assignments" given out by right-wing central: "Useful Idiots: How Liberals Got It Wrong in the Cold War and Still Blame America First", by Mona Charen, and "Dereliction of Duty: The Eyewitness Account of How Bill Clinton Endangered America's Long-Term National Security", by Robert Patterson. Other assignments that are easily found through amazon's linking function include "Losing Bin Laden: How Bill Clinton's Failures Unleashed Global Terror", by Rich Miniter, "Hillary's Scheme : Inside the Next Clinton's Ruthless Agenda to Take the White House", by Carl Limbacher, and "Shut Up and Sing: How Elites from Hollywood, Politics, and the UN are Subverting America", by Laura Ingraham. There's also "Legacy: Paying the Price for the Clinton Years", by Rich Lowry, "Persecution: How Liberals Are Waging War Against Christianity" by David Limbaugh, and "Arrogance: Rescuing America From the Media Elite", by Bernard Goldberg. Adding to the comical similarity of the titles of all these books, the Lowry and Limbaugh books even add ridiculously obvious symbolism on the jackets-- the "A" in the otherwise white-lettered "LEGACY" on Lowry's book's hardcover is scarlet (get it?), and the "T" in PERSECUTION on the book by Rush's brother David is shaped like a cross.

Each of these assignments advances an argument that the institutitonal Republican Party sees as necessary to advance its electoral prospects. Slandering liberals as being on the wrong side of the cold war, as Charen does (along with Ann Coulter, in her book "Treason: Liberal Treachery from the Cold War to the War on Terrorism") helps plant in the electorate the sense that Democrats can't be trusted to defend the country against the current threat of terrorism. Blaming Clinton for the rise of Bin Laden (which was actually a bipartisan foreign policy failure-- W wasn't doing enough about him before 9/11 either), as Miniter does, has much the same benefit to the GOP. Raising the spectre of a Hillary candidacy for President, as Limbacher does, works wonders for right-wing fundraising. Aligning the Democrats with unpopular (and shallow) Hollywood elites, as Ingraham does, is another pet GOP project. I won't go through the rest of the titles, but you get the idea.

Fox News dutifully interviews these authors when their books come out, giving them added publicity and taking their (usually slapdash and poorly researched) views seriously. Michelle Malkin, for instance, has seemingly been interviewed every time an immigration issue has been discussed on the network.

But the assignments go beyond the bookshelves. When there isn't enough time to publish a book, the right wing turns to the web and parcels out more assignments. Any honest reader of the New York Times op-ed page knows that Paul Krugman calls the right wing on a lot of their BS. (This isn't saying Krugman is always right-- he isn't. But he points out a lot of the dissembling and half-truths that the right wing uses to sell policies that are really bad ideas (e.g., the efforts by the Bush administration to conceal the fact that its tax cuts are directed overwhelmingly at rich people).) So, someone named Donald Luskin gets assigned to trash Krugman.

Bernard Goldberg's books aren't published day to day, so someone has to advance the right wing's spurious and slanderous claims that the mainstream media is biased against conservatives. Someone named Tim Graham, at The Corner at National Review Online, and who doesn't (unlike many Corner bloggers) provide his e-mail address, writes about nothing other than supposed media bias. He's clearly on assignment. Here's a typical item. He lays into Judy Woodruff-- as fair and straight-laced a journalist as there is-- for asking supposedly softball questions of Tom Daschle regarding the recent Senate flare-up regarding the President's judicial nominees. But if you look at Graham's list of six questions, four of them are clearly adversarial to Daschle. (In any event, Woodruff is not Sam Donaldson or Tim Russert-- she's not a really tough interviewer. Graham provides no counterpoint of where she is ever any tougher with a Republican interviewee. But then, that's not part of his assignment.)

The point is, this is all clearly coordinated. I leave it to others to determine whether this constitutes a vast conspiracy, but what is happening is clearly no coincidence.
posted by Dilan at 8:05 PM

 
AFTER A LONG DELAY...
I'm back with some new posts.
posted by Dilan at 7:23 PM

 
WHAT'S GOING ON WITH THE CATHOLIC CHURCH?
Catholicism is a religion that cares deeply about ethics, and specifically about the human role in determining ethical rules. (Contrast this with fundamentalist Protestantism, which relies on a supposedly "literal" reading of the Bible to answer ethical questions in a societal context that is completely different from the one in which the Bible was written.) There is a great, long Catholic tradition of ethical thinking and moral philosophy. So I guess they've had a bad week.

First, it was reported that they are arguing that people shouldn't use condoms in Africa because the HIV virus might pass through them. This advice could kill millions of people. Then, just today, a senior Vatican official was quoted in a wire service report as saying the American Catholic sex abuse scandal was overblown by the media and not a big deal.

At its best moments, the Church is a great force for moral discourse. But on days like these, I am able to understand how such a great institution could nonetheless produce the Spanish Inquisition, the Crusades, the selling of indulgences, etc. Lord Acton may not have been thinking about the Church when he uttered his famous dictum, but he could have been.
posted by Dilan at 10:51 PM

 
MAURICE CLARETT V. THE NATIONAL FOOTBALL LEAGUE:
Ohio State's star sophomore running back, Maurice Clarett, who led the Buckeyes to the national championship last season, has been suspended since then for the season by the NCAA and the Buckeyes for academic violations and other reasons. He has responded by seeking to enter the NFL draft. The NFL has a rule that prohibits college sophomores and freshmen from entering the NFL draft. Clarett is now suing the NFL on antitrust grounds.

I should start off by saying that I am not an expert in antitrust law. I do, however, know how to read cases. And I have read the case that everyone cites as the precedent for Clarett's suit, Denver Rockets v. All-Pro Mgmt., Inc., 325 F. Supp. 1049 (C.D. Cal. 1971). That case involved Spencer Haywood's ultimately successful attempt to play pro basketball before his college class had graduated. A very good judge, Warren Ferguson, held that the NBA's rule prohibiting the entry of such players into the league was a "group boycott" that was per se illegal under the antitrust laws. (There are two types of antitrust violations-- many anticompetitive practices are struck down because they are "unreasonable", i.e., that they harm competition more than they benefit it. Some antitrust violations are "per se" violations, meaning that the conduct has been found to be so anticompetitive that it is always illegal no matter what the purported justification is for the conduct.)

At the time Judge Ferguson rendered his decision, it was consistent with governing Supreme Court precedent that held that group boycotts were per se illegal under the Sherman Anti-Trust Act. (The NBA's rule was a group boycott because it was essentially an agreement among all the independently owned and operated NBA franchises that none of them would purchase the services of an athlete whose college class had not graduated.) Many sportswriters writing about Clarett's case have assumed that Mr. Clarett has a very good case based on the Haywood precedent.

However, since 1971, antitrust law has seen a sea-change. Robert Bork (yes, that Robert Bork) wrote an influential book that argued against per se rules in antitrust cases and in favor of an analysis as to whether the particular challenged conduct harmed consumers. And Bork's analysis has been followed in many antitrust cases. For instance, Silver v. New York Stock Exch., 373 U.S. 341 (1963), which was relied on heavily by Judge Furgeson, was overruled in Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284 (1985), which held that the expulsion of a business from a wholesale cooperative (a form of "group boycott") would be analyzed for reasonableness rather than being barred by a per se rule. In NYNEX Corp. v. Discon, Inc., 525 U.S. 128 (1998), the current Supreme Court recast the group boycott per se rule as only applying in circumstances where the purpose of the group boycott was to harm competitors. (Indeed, the "group boycotts" that are usually the subject of antitrust cases involve agreements by a group of businesses to refuse to deal with a competitor to one or more of the businesses, in order to put the competitor out of business. It is obvious how such a tactic would harm consumers.) Of course, a sports league's determination of who is eligible and who is not eligible in no way harms consumers or prevents competition-- if anything, it invites competition, because if the public desires to see players like Clarett play professional ball, they might patronize a league that permits such players to do so. (Judge Furguson did not see this in the Denver Rockets case, even though Mr. Haywood had played in the ABA, a competitor to the NBA that had no comparable eligibility restriction.)

There are broader issues that go to the extent to which courts should involve themselves in setting and enforcing the rules in sporting contests. I plan to blog on that at another time. There are also broader issues about whether governing authorities in sporting events ought to have the authority to set eligibility rules for their contests, taking into account not only competitive interests but also societal interests (it may do some good, for instance, to force football players to attend college whether they want to or not).

Suffice to say, however, that I do not see Mr. Clarett's lawsuit as a slam dunk. Indeed, I would venture to say that later Supreme Court cases have called Judge Furguson's decision in Denver Rockets into question, and I am skeptical as to whether that case ought to be relied on in deciding Clarett's case. Ultimately, if Clarett presses his claim, he may end up going down as the man responsbile for overturning the Spencer Haywood precedent.
posted by Dilan at 1:12 PM

 
LEGAL PROSTITUTION: AT THE INTERSECTION OF FEMINISM AND CIVIL LIBERTIES
You might remember that I posted here a comment on a conservative who criticized Dear Abby and her readers for praising the friends of a 40 year old with a debilitating disease who procured the services of a prostitute (free of charge, as it turned out) to take his virginity. While reserving the issue of the morality and legality of prostitution for another post, I noted it was, at the least, overly rigid to take the position that the conservative blogger had taken, i.e., that advocating the utilization of the services of a prostitute in this situation was immoral. Rather, this was a perfectly moral solution to a real issue, because this particular guy was not likely to obtain sexual gratification through a normal relationship. (Indeed, he was living with his parents, who were social conservatives and who barred visits by his friend after they found out what happened. Even if the guy somehow met a girl (not easy when you are 40 and disabled), those parents were probably going to make it very difficult to consummate the relationship.)

The issue I left open-- the wisdom and morality of legalizing prostitution-- is an extremely difficult issue. Los Angeles, the city where I live, just passed a law that takes its prostitution ban one step further, with a ban on lap dancing in strip clubs. (According to the City Council, lap dancing leads to harmful conduct that spreads out into the neighborhoods around the strip clubs. I doubt that this is true-- more likely, the councilmembers were simply offended by the exchange of money for sexual gratification that constitutes a lap dance.)

Why is the legalization of prostitution such a difficult issue? For several reasons. First of all, as I just noted with the LA lap dance ban, the reason that it is illegal bears little relation to any reason that it should be illegal. Society wishes to express moral disapproval at the activity; that's why it is banned. It is also banned, to a certain extent, because people are rightly concerned with the urban blight that is caused by street prostitution. But one wouldn't need to ban all sales of sex just because street prostitution is undesirable-- if anything, the availability of sex in brothels, escort services, massage parlors, and strip clubs would decrease demand for sex on the street.

As with all laws based on moral disapproval, there is a fair amount of hypocrisy in bans on prostitution. Obviously, a lot of people patronize prostitutes-- otherwise, there wouldn't be so many of them in business. Further, most people don't disapprove of, or at least wouldn't make illegal, all sorts of informal exchanges of sex for money or something of value that exist in society-- people who have sex in exchange for a nice dinner, or an expensive engagement ring, or half of a rich old man's assets and earnings. But something about the direct exchange of sex for money seems vulgar and immoral to people in a sense that these other sorts of exchanges do not.

But before you think I am unsympathetic to the cause of keeping prostitution illegal, it should be noted that there are in fact strong arguments in favor of prohibiting the practice. First, as noted, street prostitution, in contrast to other forms of the practice, really is bad for the neighborhood, both because of the aesthetic effects of having prostitutes on the streetcorners and because of the secondary effects of drug dealing, prophylactics and litter, people going onto private property to have sex, etc.

Second, the feminist case against prostitution is strong and hard to rebut. There is quite a lot of prostitution that isn't consensual. Underage girls are forced into the practice in Thailand and other third world countries; women are trafficked from place to place and forced to work by violent pimps and managers who keep the profits; immigrants have their travel and identity documents taken from them and then are forced to work as slaves. Further, even nominally consensual prostitution is usually the product of desparate circumstances: drug addiction, inability to support one's kids, or escape from an abusive relationship.

All of this is awful for women. Only a Catherine MacKinnon-type radical feminist would say that it was exploitative for a middle class, educated woman to decide to sell a sex act to a gentleman for $2,500, but only someone with their head in the sand would say that there isn't exploitation of an immigrant sex slave in a brothel who is forced to perform unprotected oral sex on strange guys all day at $50 a pop, with $49.50 of it going to her "manager".

Further, prostitutes often become regular "Typhoid Marys" of STD's. Customers demand, and sometimes pay more for, particularly risky acts such as anal sex, unprotected intercourse, or oral sex without a condom. The ingestion of all of those body fluids from strange men, almost all of whom have multiple partners, is a recipie for disease transmission. Of course, the more exploited the prostitute is, the more likely she is to be forced to perform those acts. One of the many biproducts of the sex trade in Asia is an AIDS epidemic in Thailand and the Philippines.

But prostitution, "the world's oldest profession", is not going away. And like many things (marijuana being a nice example), when government makes it illegal, it gives up the chance to regulate an industry that cries out for regulation. It doesn't help matters that the only state that legalizes it, Nevada, puts such ridiculous restrictions on it (no brothels in the major cities; the workers basically have to stay out of the communities they work in) that most of the prostitution there is of the illegal kind.

How would one regulate prostitution? By aiming at the targets I outlined above: (1) no street prostitution, which really is urban blight, funds drug dealing and destructive habits, and spreads STD's; (2) regulations to prevent the spread of STD's, including requiring providers to register, to use condoms every time, and to be periodically tested, and (3) regulations to curb exploitation of women, including taxing (keeping the price high reduces the incentive to import sex workers under slave-like conditions, because such operations rely on volume which in turn is dependent on low prices), registration of providers, managers, and brothels (no more stealing workers' immigration documents), and strong and consistent crackdowns on anyone who advertises such a service without proper registration.

To make it work, the government might have to also apply the same requirements to other businesses, such as strip clubs and massage providers, where prostitution frequently occurs.

Anyone who doubts that such a system would be a distinct improvement need only come to Los Angeles, where prostitution laws are aggressively enforced, including by closing numerous massage parlors in the San Fernando Valley and by seizing and forfeiting the cars of those caught with street prostitutes. Nonetheless, on numerous streets in Hollywood and near downtown Los Angeles, there are tons of providers plying the trade.

The irony is, laws that reflect moral beliefs are often not the best manner of furthering those moral beliefs. One of the things that my proposal would do is make prostitution more expensive, which would probably mean that there would be fewer transactions. Thus, an opponent of prostitution on moral grounds ought to support it over the current system. But often times, moralists are more interested in seeing their preferences enacted into criminal statutes than they are in actually seeing less "immoral" activity among the citizenry.

Just as some get their pleasure from seeing a prostitute, I suppose others get some pleasure from knowing that such a transaction can send two people to jail.
posted by Dilan at 6:59 PM

 
WHAT AN IDIOT:
Take a look at this post at National Review's The Corner:

http://www.nationalreview.com/thecorner/03_09_21_corner-archive.asp#013825

I don't know who Rick Brookhiser is, but I don't think I've seen a dumber thing said in public discourse this year. First, is he advocating that you should be able to shout "fire" in a crowded theater? If he is, he's advocating a version of the First Amendment that even the most absolutist First Amendment zealots don't support.

Second, the right to compel the appearance of witnesses to testify in your defense is guaranteed by the plain language of the Sixth Amendment. And the reason it is protected is dreadfully obvious-- without that protection, innocent people could go to jail, or even be executed, if the government prevented them from calling the witnesses who could exonerate them.

Specifically, suppose an Al Qaeda leader says Moussaoui was not involved in the 9/11 plot. Isn't that evidence that the jury must hear in determining whether to convict Moussaoui? I realize that an Al Qaeda terrorist might have a reason to fabricate such testimony-- but that's precisely the sort of thing that we let juries determine in this country. A jury's function is to ferret out who is telling the truth and who is lying.

Brookhiser refers to Judge Brinkema's rulings allowing Moussaoui's lawyers to question these Al Qaeda leaders as allowing Moussaoui to communicate with other terrorists. This is, at best, a gross oversimplification. First of all, Moussaoui's lawyers, not Moussaoui himself, would be doing the questioning. The questioning would be in the presence of government officials and prosecutors who could cut it off if it appeared that messages were being sent. Indeed, the judge could very well require that the questions be submitted in advance for review. (If the Ashcroft justice department were more interested in actually giving Moussaoui a fair trial and less interested in railroading him through the system, they would agree to this sort of procedure rather than blatantly flouting Judge Brinkema's orders and daring her to dismiss the case.)

And in any event, exactly what harm would transpire if Moussaoui did manage to send a coded message to his co-conspirators? They, after all, are in custody as well. They wouldn't be able to do anything with that message other than sit in the bowels of Bagram Air Force Base while thinking it over.

There are thoughtful arguments on the issue of how much process is due captives in wartime, what is the correct division of labor is between the military and civilian justice systems, how is the government supposed to handle suspected terrorists who might be acquitted if they were tried, etc. And then there are people like Mr. Brookhiser, who don't trouble themselves with such thoughts and just assume that any ruling enforcing an important constitutional right in a terrorism case must by definition facilitate the goals of the terrorists.
posted by Dilan at 11:47 AM

 
BEEN AWHILE:
I promise I will have some new posts up soon. Been swamped with work.
posted by Dilan at 11:33 AM

 
SEABISCUIT'S IMPACT IN CALIFORNIA:
On April 29, I posted a rememberance of my youth among the huge crowds at Santa Anita. (I can't link to it because Blogger's link is down, but you can scroll down to see the post.) With the decline of horse racing as a spectator sport, Santa Anita and Hollywood Park, the two major racecourses in the Los Angeles area, now draw only a handful of people to their vast grandstands.

On the silver screen this week, however, in Seabiscuit, you can see a different Santa Anita. This Santa Anita was the most popular track in America during the years immediately preceding World War II. Indeed, after being used during the war as a waystation for Japanese and Japanese-Americans being sent to concentration camps, Santa Anita returned to host more huge crowds in the postwar era. Hollywood Park became hugely popular too, and one of the two would lead the nation in average attendance every year well in the 1980's.

Much is said about the importance of the racehorse Seabiscuit-- he provided a vessel for the hopes of a nation mired in the great Depression and in the runup to another world war. He popularized sports broadcasting, as his races would gain larger radio audiences than the President's "fireside chats". His owner, trainer, and jockey overcame adversity to achieve immortality through his exploits. And he won two of the most important races in American history-- his 1938 match race against Triple Crown winner War Admiral at Pimlico, in which he surprised most of racing's East Coast establishment by shipping east and beating what was thought to be a superhorse; and the 1940 Santa Anita Handicap, which Seabiscuit won over the previous year's winner (Kayak II), after being a frustrated loser of two nose-and-nose photo finishes in 1937 and 1938 (the latter to a lucky three year old carrying absurdly light weight), and after missing the 1939 race due to injury.

Laura Hillenbrand, who authored the book that the new film is based on, does a fine job of telling those well-known elements of Seabiscuit's story. But I grew up hearing a very different Seabiscuit story. It is the story that was told by Santa Anita, Hollywood Park, and Del Mar (the beautiful seaside racetrack north of San Diego). Seabiscuit, to Southern California, is more than just an amazing horse. Seabiscuit was California's first equine superstar-- indeed, one of the state's first true superstars in any professional sport.

It's hard to believe now, given that we have five baseball teams, three football teams, four basketball teams, and three hockey teams in the state, but for a long time, California had an inferiority complex in sports (as it did in many other things, such as high culture). We were way, way, out of the loop. New York, not Las Vegas, was the great boxing mecca. Baseball didn't have a team west of St. Louis. College football's great teams were in the midwest, such as Fielding Yost's "point a minute" Michigan Wolverines, Red Grange's Illinois Fighting Illini, and Knute Rockne's Notre Dame Fighting Irish. Hockey was not a major sport in the United States (and in any event, was another East / Midwest sport), and basketball and pro football were not major sports period. And horse racing was the province of New York (Belmont, Aqueduct, Jamaica, Saratoga), Maryland (Havre de Grace, Pimlico), Kentucky (Churchill, Latonia, Keeneland), and Florida (Hialeah).

San Francisco had been an established city since the gold rush, but had been devestated by a horrible earthquake and fire. Los Angeles had just started to grow due to the increasing popularity of the motion picture industry. The first crack in the armor was in college football-- California's teams, coached by Andy Smith, and USC's teams, coached by Howard Jones, became national powers. Jones smartly arranged an annual game against Notre Dame that became college football's greatest intersectional rivalry, and frequently got his team into the annual Rose Bowl game in Pasadena where he could showcase his teams against top teams from the east and midwest.

But the first professional athlete to break through was Seabiscuit. When Seabiscuit won his match race against War Admiral in 1938, California was a decade away from getting its first NFL team, two decades away from getting its first baseball and basketball teams, and almost three decades away from getting its first NHL teams. It was a decidedly minor league state. Seabiscuit was the first professional athlete that announced that perhaps California was not the boondocks of professional sports-- that California would be a force to be reckoned with.

Moreover, Seabiscuit simply made Southern Californians crazy about horse racing. Santa Anita opened to a small crowd in December 1934. The owner of the track, Charles Strub, had a lot of money (the track cost the then-unfathomable sum of $1 million to build), and put up $100,000 (tied for the largest purse for a horse race ever at the time) as a prize for his big handicap race in order to draw great east coast horses. The first renewal of the race drew Equipoise and Twenty Grand, two of the greatest horses of the era, along with triple crown race winners Faireno and Head Play. Commencing a tradition that Californians would proudly reenact from time to time over the years, the vaunted easterners all got beat-- a lightly regarded former steeplechaser named Azucar won the race.

But the Santa Anita Handicap was more of a curiosity than a great event-- until Seabiscuit came along. Seabiscuit became a crowd favorite in March 1937 and March 1938 by losing the rich race twice, both times by a nose, to Rosemont (a really good horse) and Stagehand (a three year old who carried 100 pounds, 30 less than Seabiscuit and about eight pounds less than just about any longshot ever carries in a modern handicap race). He then went to Hollywood Park, which opened in 1938 and needed a name attraction for its big race, the Hollywood Gold Cup. Seabiscuit won that race after making up a huge deficit in the stretch to a good speed horse, Specify. A huge crowd packed the new track to see him do it.

Seabiscuit cristened Del Mar too. In the summer of 1938, after the planned War Admiral match race fell through because of an injury to Seabiscuit (it would later be run in November), Seabiscuit was looking for a race, and Del Mar's owner, Bing Crosby, was looking for a way to promote his track. Crosby proposed running his horse, Ligaroti, against Seabiscuit in a match race. Traffic piled back 30 miles north, as the seaside track was packed with a crowd that would stand many years as its record attendance. Seabiscuit and Ligaroti raced head and head all the way around the racetrack, and their jockeys actually got into a fight in the stretch during the race and were flailing back and forth with each other. Seabiscuit won the race by a nose.

Finally, when Seabiscuit came back and won the 1940 Santa Anita Handicap, he drew over 65,000 people to Santa Anita. By this time, Californians were hooked. They were betting absurd sums of over $100,000 (in the middle of the great depression!) on every race. Heaven knows how many of those people first came out to a California track because the great Seabiscuit, California's biggest athletic star, the hero of the nation, the most famous horse in the world, was running. Certainly there was no other venue in all of California where one could see anyone of such cultural importance. But what we do know is that the afterglow of Seabiscuit lasted some 50 years. It is only since 1991 or so, when the sport really went into a tailspin, when the crowds have finally thinned out.

I really don't know if California racing would have succeeded without Seabiscuit. Certainly Santa Anita and Hollywood Park have never missed an opportunity to acknowledge Seabiscuit's influence. To this day, there is one statue, of one horse, on the Santa Anita grounds. That statue is of the horse that brought people to the track like no other: Seabiscuit.
posted by Dilan at 7:42 PM

 
FATHER GEORGE W. RUTLER, GAY MARRIAGE, AND NATURAL LAW:
You may remember that when now-Justice Clarence Thomas was nominated for the Supreme Court, before the Anita Hill accusations were made, a controversy arose over Thomas' praising of an article that supported the use of "natural law" in constitutional adjudication. Those big words basically mean that the article's author was arguing that the Supreme Court should decline to enforce laws that are contrary to the precepts of "nature", or, more often, God. Natural law derives from St. Thomas Aquinas' theory that posits that God instills in human beings certain moral precepts, which are then used by humans (imperfectly) to create human laws. Natural law does not have to be religious in nature; some other theorists reject Aquinas' attribution of natural law principles to God, but agree that humans are born with these principles hard-wired into their circuitry.

Natural law has a perfectly honorable tradition as a philosophical hypothesis and ethical philosophy. The Declaration of Independence, famously, invokes natural law when it states that humans "are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness". And the Catholic Church continues to study and invoke natural law as the governing ethical philosophy of the Church. The problem comes when it is invoked as law, or a principle of constitutional interpretation, as was advocated in the article Thomas praised. First, in its religious form, natural law would essentially establish a theocracy. Whatever the value of Catholic moral teachings, if we allow such teachings to be a valid basis to strike down legislation, we would be no different than Muslim countries where laws must conform to the Koran.

But even in its secular form, natural law is extremely dangerous, because, as even Aquinas recognized, its principles are so general. Nobody believes that humans are born with the Napoleanic codes inscribed in their brains. Rather, natural law theories posit that we are born with such abstract concepts as "you should not kill another human being" and "you have an obligation to take care of the weak". Of course, the article Thomas praised (wouldn't you know it) was advocating the use of such principles to strike down laws that legalize abortion. But even if we assume that these concepts are hardwired into our brains, they are too abstract to provide even a minimal basis for interpretation by a court-- abortion is a perfect example of this, as people would argue whether it constitutes "killing another human being" (Aquinas himself, for instance, did not oppose all abortions) or "not taking care of the weak", or whether in fact a fetus has not yet achieved full humanity, and that the mother's weakness is the relevant consideration of society.

As a result, natural law has properly been rejected as a means of constitutional interpretation, and even Thomas disavowed his praise for natural law during his confirmation hearings. But in one institution-- the Catholic Church-- natural law is still the touchstone of any analysis of what governments may or may not do. Of course, as we have seen lately, the Catholic Church's perception of its relationship to the law is peculiar indeed; the institution seems to feel that it is not bound by laws requiring those who take responsibility for the children of others to take steps to prevent sexual abuse of children, and further that any enforcement of the laws requiring cooperation with law enforcement is a violation of the Church's First Amendment right to free exercise of religion. (Under this theory, of course, the government would have had no power to stop David Koresh from raping pre-teenagers.) While this position is obviously a transparent ruse to protect the pedophiles and their enablers that are strewn throughout the Church hierarchy, I can also tell you that many Catholics (especially conservative ones) believe it. But while not bound by the law, the Church takes an aggressive position regarding its right to shape it, and the goal seems to be to bring human law in line with natural law principles as the Church sees them.

That's a long introduction for a noxious post that was made by prominent New York conservative priest Father George W. Rutler in National Review Online today. It was a response to an argument by John O' Sullivan, who argues that the solution to the gay marriage controversy is to permit competition among various models of marriage, including traditional religious marriage, civil marriages (which would include gay marriage), and domestic partnerships. O'Sullivan's argument is complicated, but it basically says that traditional marriage will suffer no harm from the competition. Here is Father Rutler's response:

"The point is not whether the State should recognize same-sex marriages (the term in itself being oxymoronic). The fact is that the State cannot do it. As the Canadian bishops recently wrote to the Prime Minister of Canada: Marriage pre-exists the State and is fundamental to society and the institution of marriage therefore cannot be modified by the State or a court of law. They also pointed out that 'same-sex marriage' discriminates against heterosexual marriage and the family which would be deprived of their social and legal recognition as the fundamental and irreplaceable basis of society."

This, of course, is classic natural law reasoning, with a perverse claim of victimization thrown in at the end. (I thought conservatives were opposed to the culture of victimization.) And the natural law reasoning is totally spurious. Of course, Father Rutler, marriages existed in the church before the State recognized it. And of course, those marriages "cannot be modified by the State or a court of law". But that has nothing to do with the issue at hand, which is what the state chooses to recognize as marriage and afford benefits to. The question of gay marriage is the question of discrimination-- whether or not the state can grant benefits to heteros that it refuses to grant to gays, including inheritance rights, immigration rights, child visitation, hospital visitation, insurance coverage, and the like. States should not hand these rights out in a discriminatory fashion whether they are labeled "marriage" or "a ham sandwich". And a government which chooses to continue to use the label "marriage" while handing these benefits out in a non-discriminatory fashion is not "modifying" the definition of marriage that preexisted the state, any more than a state that allows a person to remarry after divorce (not permitted under Catholic doctrine) or allowing a Catholic to marry a non-Catholic without an agreement to raise the children as Catholic (generally discouraged by the Church) is modifying the definition of marriage that preexisted the state. The state is simply modifying the manner in which it affords certain benefits to certain people who enter into certain social arrangements, i.e., civil marriage. Nothing the state can or will do will change the religious definition of marriage.

Let's take another example where we can see this more clearly. Catholic funeral rites also predate the United States government. The Catholic Church defines a "funeral" in a certain fashion, and requires certain ceremonies to take place as part of a funeral. If the US government decides to pay for the costs of funerals of dead veterans, and further decides to do it in a non-discriminatory fashion, paying not only for Catholic funerals that contain these ceremonies but also for other types of funerals, devised more recently, that do not contain them, is the government "changing" the definition of the funeral? Of course not! The Catholic Church can still believe what it wants to believe about its funeral ceremonies, and the US government is simply using a non-discriminatory definition of "funeral" to determine when veterans' benefits are paid.

Finally, a point about Father Rutler's discrimination claim. It is obvious as it can be that marriage laws discriminate in favor of heterosexuals, and Father Rutler must know this. So, he recasts this argument to say that taking away heteros "social and legal recognition as the fundamental and irreplaceable basis of society" is tantamount to discriminating against heteros. First, this is plainly not true. It is not discrimination to stop discriminating in favor of a group. When laws against interracial marriage were eliminated, did that action discriminate against those who preferred to marry within their race? Of course not-- they can still marry within their race, even now.

(As an aside, this post originally used affirmative action / racial preferences as an example of the foregoing. It was pointed out to me by a reader that when California passed Proposition 209, some advocates and at least one federal judge did say that eliminating racial preferences for minorities would constitute discrimination. I believe that the actual issue with ballot measures that eliminate racial preferences is somewhat more narrow-- i.e., that minorities are forced to seek favors from the government at the state level whereas others may seek them at the local level, and that such ballot measures eliminate racial preferences even when they are a remedy for discrimination, and the elimination of effective remedies for state discrimination violates equal protection. That is of little matter, however. It is clear that the elimination of legalized prejudice against homosexuals in no way discriminates against heterosexuals; there is no way in which favoritism towards heteros was any sort of a remedy for previous discrimination.)

But there is another problem with Father Rutler's discrimination claim as well. He identifies two aspects of heterosexuality that he says are being taken away by recognition of gay marriage. The "social recognition" of heteros as the fundamental basis of society, and the "legal recognition" of the same. The legal recognition argument is answered above-- taking away legalized discrimination in favor of a particular group does not constitute discrimination against that group. It simply levels the playing field. But I find the "social recognition" claim even more interesting. It is quite true that the social recognition of heterosexuality as fundamental to society is declining. But these gay marriage laws are reflecting that trend, not causing it. Rather, this social recognition is changing because more and more people are rejecting the Catholic Church's teachings that homosexuality is immoral, and that the legal system should be used to stop people from engaging in gay sex. Father Rutler's plea of discrimination is the petulant whining of someone who knows he is losing the culture war; of someone who is coming to realize that something that he views as extremely important, and likely to send us all to hell, is viewed as a basically private matter that is none of his business by ever greater portions of society.

The funny thing is, gay marriage isn't going to change this, except to the extent that gay couples are more visible and people come more and more to respect their right to be who they are. Father Rutler is afraid not only that legal recognition of gay couples may come, but that such legal recognition will cause people to see the basic humanity of gay people that he, and many in his Church, are unable to see. His views are deserving of no sympathy; only pity.
posted by Dilan at 10:56 AM

 
THE DIFFERENCE BETWEEN MORAL CRITICISM AND GAY BASHING, AND HOW
THE RIGHT WING BLURS IT:
The Supreme Court's recent decision in Lawrence v. Texas, invalidating a sodomy statute and overturning Bowers v. Hardwick (which upheld a statute that would throw homosexuals and heterosexuals in jail for up to 20 years for having oral or anal sex), has occasioned much hand-wringing on the right, which seems fixated on the idea that this is the first step on the road to gay marriage.

A lot of this argumentation is very disturbing to me. I support gay marriage, but I also know that it's a long way from invalidating a sodomy statute that makes criminals out of gays who perform sex acts that are performed by many, if not most, hetero Americans to recognizing gay marriage. Indeed, the Court expressly did not reach the argument made by the defendant in Lawrence that the Texas law was invalid because it discriminated against gays and lesbians. Rather, the Court held that the unenumerated right to privacy that has been found in the Constitution in earlier cases such as Griswold v. Connecticut and Roe v. Wade extends to protect the right of anyone, gay or straight, to commit private consensual acts of sodomy. Further, even Justice O'Connor, who was alone among the Justices in indicating her willingness to strike down the statute as discriminatory against gays, specifically stated that she thought that statutes that discriminate against homosexuals should be sustained if they have a rational basis, and that the protection of traditional marriage is such a rational basis.

So why then are Stanley Kurtz of National Review Online, and David Frum, and other conservatives so up in arms about how this is going to lead to gay marriage? Recent pieces by Jonah Goldberg provide the answer-- gays have prevailed on a broader question of tolerance and that drives certain conservatives who wish to remain intolerant of homosexuals crazy.

The question of tolerance is essentially this: in the past, it was perfectly socially acceptable to harbor a prejudice against gay males (attitudes about lesbians have always been different for some reason-- witness the popularity of lesbian pornography even among homophobic males). It is not anymore. It hasn't been socially acceptable to harbor such a prejudice in educated circles among East and West Coast elites for some time, of course (and the presence of a number of gays among Republican party poobahs, is evidence of this). But now, people are beginning to believe this all over the country. Ellen DeGeneres doesn't threaten anyone, and neither does Will and Grace, or Tom Hanks and Antonio Banderas in Philadelphia. In that sense, Goldberg is totally right; cultural conservatives have lost the war over homosexuality.
posted by Dilan at 11:22 AM

 
[CONTINUED]
Sodomy laws were the front line of that war. Why? Because the entire purpose of such laws was literally, to scare homosexuals straight. They were rarely enforced anymore. Many were amended to delete references to heterosexual sodomy. But they were an expression of prejudice and animus against gays and lesbians, and on that level, they had to stay on the books.

Of course, conservatives and their lawyers did not characterize the purpose of the laws in these terms. Rather, they said that these laws expressed permissible majoritarian disapproval against gays. However, that was entirely and obviously a cover. For one doesn't normally express moral disapproval by threatening to jail sinners. Failing to honor one's father and mother, having other gods before the God of the Bible, and coveting one's neighbor's wife or things are all specifically
outlawed in the Ten Commandments (unlike homosexuality, which is prohibited in Leviticus, a chapter of the Bible that contains all sorts of dietary rules that modern evangelical Christians almost all disregard). Yet none of them are punishable by jail time, nor are there any significant numbers of Christian conservatives calling for such punishment. So, if the purpose of these laws
wasn't disapproval of the sin, it had to be animus towards the sinner.

Further, the conservative movement was very clever about how they kept sodomy statutes in place. First, they strongly advocated a narrow form of constitutional construction that was intended to prevent what happened last week in Lawrence, i.e., there are no unenumerated rights in the Constitution, equal protection of the laws does not cover gays, moral
disapproval of a particular group is a sufficient state interest to uphold a law, and anyone who says otherwise is a dangerous liberal activist. But it was conservatives, such as Anthony Kennedy and Sandra Day O'Connor, who provided the crucial rejection of those arguments. Indeed, there is no way that either of them is going to vote for gay marriage as a constitutional right. This is no slippery slope. The fact is, while one can argue about the constitutional interpretation in Lawrence, this is not going to lead to wholesale
striking down of popular laws on the basis of unenumerated rights. In fact, in the past 50 years, I can think of exactly three cases that struck down a popular law on that basis, and all of them are in the area of abortion. Despite 30 years of constitutionalized abortion law, the doctrine of unenumerated rights has not extended to any areas where there has not been a strong popular
consensus. The notion of unelected judges running amok simply has not occurred and will not occur given the composition of the current Court. (The best example of this was Washington v. Glucksberg, where the Court refused to recognized an unenumerated "right to die" that overrode state laws prohibiting assisted suicide.)

The second conservative strategy on sodomy laws was to change the subject, or indicate that oh yes, if they were in the legislature, they would vote against such silly laws, but it should be up to the citizens of _______ to determine if they wanted such a law. I realize that in a sense this is a principled position-- it is Justice Thomas' position in his dissenting opinion (unlike the prudish
Justice Scalia, who clearly longs for the good old days when his theological views were reflected in state laws, Thomas clearly does not think the government has any business telling gays and lesbians that they can't have sex). But it is also a big cop-out. Sodomy statutes are not simply bad laws; they are fundamentally unjust ones. They either criminalize the private conduct of most Americans, or they criminalize the conduct of a disfavored class. Either way, they are an outrage.
And the conservative rhetoric did not befit the outrage. No, quite the contrary, conservatives were basically saying that on the margins, they didn't think these laws were very good, but they weren't going to do anything to persuade states not to enact them or keep them on the books.
posted by Dilan at 11:20 AM

 
[CONTINUED]
In this sense, conservatives basically got what they deserved in Lawrence. It's one thing to say that the judiciary should not get involved where the democratic process is busy repealing these unjust laws at the urging of those who are asking the judiciary to stay out. It's quite another to quietly acquiesce and even knowingly condone the presence of these unjust laws for years and years, and then act all outraged when the judiciary intervenes and obliterates them. The Court merely did something that the right wing should have done long ago.

And why didn't the right wing do it? Simple politics. Every tolerant elite right winger knew darned well that these laws were wrong and unjust, but those same conservatives knew that some anti-gay bigots and Christian theocrats remained in their base who supported the laws. So, the only way to handle the issue was to change the subject, which they did for many years.

So why are they now putting the focus on gay marriage? I think it is more subject-changing. If conservatives opine on Lawrence, they can't win. Say it was rightly decided or, at least, that it is good that these laws are wiped out, and they alienate their base (as Jonah Goldberg has found out). Say it was wrongly decided and it looks like you are catering to anti-gay religious zealots in supporting extreme laws that are unpopular in most of America.

On the other hand, the American public isn't yet ready for gay marriage. Truly, they should be-- gay marriage is nothing more than ensuring civil equality for homosexuals, so that they don't pay higher taxes, don't get screwed in inheritance or custody disputes, aren't disallowed from visiting their lovers and life partners in the hospital, etc. But the public doesn't see it that way-- the magic word "marriage" conjures up all sorts of proto-religious attitudes that interfere with the public's recognition of the equality principle.

As I said though, the Court was absolutely clear that Lawrence was not going to lead to the recognition of gay marriage. But this is a nice spin tactic-- the Republicans are trying to change the subject from what it should be, i.e., the party's abominable decades-long tacit support of sodomy statutes, to a different area of gay rights where their position is more popular. It might work. But nobody should forget that the G.O.P. is the party that, until forced by court decision in 2003 to abandon the position, advocated throwing gays and lesbians in jail.

Now let's bring ourselves back to the title of this post. In saying all these things, the question might arise, "do you really think that anyone who morally disapproves of homosexual sex is a bigot?" No, I actually don't. From what little I know of Christian doctrine, I don't think the Biblical prohibition of it is nearly as clear or fundamental as some conservative Christians do. But I understand that people can believe this, or any other sex act, is immoral.

But it seems to me that many conservatives use this moral condemnation argument as an excuse to conceal actual bigotry towards gays and lesbians. It isn't bigoted to believe that these acts are immoral. It is bigoted to support, tacitly or openly, throwing people in jail for engaging in them. And it is disgraceful that one political party, that claims the support of almost half the American
public, has seen it profitable to cater to such bigotry for so long.
posted by Dilan at 11:19 AM

 
OVERTURNING GRAY DAVIS' ELECTION:
Over the past 20 years, the California Republican Party, once strong and proud and able to elect Earl Warren, Ronald Reagan, George Deukmejian, and Pete Wilson to the Governor's office, has become a shell of itself. The reason for this is simple. California is a pretty liberal state. We are tolerant of gays, not particularly religious, not entirely committed to the War on Drugs, and supportive of government spending on services. There are some exceptions to this-- Californians don't like taxes, and many Californians don't like illegal immigrants-- but on a whole, the state is certainly a Blue state.

In most Blue states, the Republicans thrive by moving towards a more libertarian bent. For instance, liberal Maine has two GOP Senators-- Olympia Snowe and Susan Collins-- but both of them are social liberals and fiscal moderates. But here in California, the only voters to regularly vote in Republican primaries are neanderthal conservatives. Thus, Ms. Snowe or Ms. Collins would never be able to win a Republican primary here. As a result, Republicans lost every statewide office in the most recent elections, and just about the only elected Republicans here are Congressmen, state Senators, and Assemblymen who represent safe seats filled with gerrymandered hard-right conservative voters.

I don't want to imply that every elected Republican in California is a far-right wacko-- David Drier, for instance, hails from a conservative Pomona district but is a very smart and fundamentally decent congressman. But Rep. Drier is the exception-- most elected Republicans in this state are far, far to the right of Californians as a whole.

Gray Davis has capitalized on this. Twice, he has beaten candidates who are too far to the right to be elected Governor of California. In 1998, he beat Dan Lungren, and in 2002, Bill Simon (who in addition to being an extreme right-winger, was also an incompetent camaigner). Not too many people really like Davis here; rather, he was elected both times as the lesser of two evils.

But there are two important points here. First, a lesser of two evils winner is not illegitimate-- voters may have longed for a better choice, but Davis won his elections fair and square. And if Davis was so horrible a governor, they could have thrown him out in 2002. Second, the Republicans' losses are their own fault-- they are unable to nominate candidates palatable to the majority of Californians. Only if they continue to lose elections will the GOP learn its lesson and shift to where the votes are. (This is something that happened at the national level to Democrats with Bill Clinton.)

But, of course, the ideologues in the California Republican Party do not want to shift. So, instead, they have produced the silver bullet-- California's 1911 recall law, which has never been used against a sitting governor. Basically, if the Republicans can get enough signatures to put the measure on the ballot (and that is easy to do if the money is spent), they can have a yes-no vote on Davis along with a second vote on a list of candidates. It is very possible for unpopular Davis to be removed in a yes-no vote (where he doesn't have the advantage of running against an extremist Republican candidate), and it is possible for someone to win the recall election off the list of candidates with far less than 50 percent of the vote.

This is a perversion of democracy. It amounts to the Republicans saying that because they were unable to get their act together and nominate a moderate candidate to beat Gray Davis, they get to waste the taxpayers' money (special elections cost big bucks) creating an election under more favorable rules that might allow a right-winger with only narrow support among the electorate to sneak in and become the next Governor of California.

Further, it would set a horrible precedent-- I would assume that the Democrats would not wait long to launch another recall effort to knock out the illegitimate Republican victor of the special election.

You don't have to think that Gray Davis is the best possible Governor to recognize that he should be permitted to serve his 4 year term and that Republicans should find a candidate who could contest for the seat in 2006 and be palatable to the majority of Californians. Perhaps Rep. Drier could run.
posted by Dilan at 2:04 PM

 
THE SCARSDALE, N.Y. PROM:

I am not a huge advocate of abstinence programs. I think that while teenage pregnancy is a huge problem, and teenage venereal disease is a serious one, teenage sex is inevitable and not, if conducted responsibly, particularly problematic at all. At the same time, I don't think schools should sponsor events that make drunken, unprotected sexual experimentation more likely among teenagers, either. This isn't really a moral objection so much as it is a public health objection-- teenagers should be encouraged, indeed browbeaten if necessary, into having sex only in circumstances where no pregnancy or disease transmission will result. (And that includes married teenagers-- because teenage mothers are vulnerable, teenage marriages don't last very long and are often abusive, and childbearing tends to stop the educational process even for married teenagers, society really shouldn't encourage married teenagers to have kids either.)

Which brings me to the Scarsdale, NY Junior / Senior prom. The high school there discovered something that everyone who has turned 18 in the last 30 years knows-- that teenagers hire limos to take them to the prom so that they can drink before hand, and hire limos to take them back to post-prom parties so that they can drink some more. The school, in a decision unpopular with some students, decided to bus the students to and from the proms. This is a salutary decision. There are lots of good reasons to ban limos from the prom. The school's reason-- to stop teenage drinking-- is perfectly sound. Additionally, proms have become a platform for students with affluent parents to outdo each other in flaunting their affluence. Students with rich parents already feel superior enough to other students without schools sponsoring an activity that permits such a brazen exhibition of unearned wealth. Limos are a big part of that.

But I think the best reason of all to stop this is one not mentioned by the folks in Scarsdale at all. Proms are a coming of age ritual that formalize sexual activity. The last thing that teenagers need is to formalize sexual activity. What do I mean by that? Proms are a huge event, in which teenagers are treated like adults, dress up like adults, travel like wealthy adults, and often rent hotel rooms afterward like adults. They also drink like they imagine adults to drink. Many of these teenagers are going to the prom with people whom they have been dating awhile; a lot of them probably think the relationship will last forever. (Teenagers often tend to have unrealistic romantic expectations.) Put these elements all together and this is a recipe for unprotected sex. Too drunk to use protection (and in any event, not dressed or with a transportation option that allows for the easy purchase of a prophylactic), and on a night that has to be made "special". I would assume quite a large number of teenagers lose their virginity on prom night, and a significant number of those sexual encounters are unprotected and drunken.

Of course, teenagers who want to have sex will always find ways to do it; that is true. But there's nothing wrong with a school putting its foot down and constructing school-sponsored activities in a manner that decreases the likelihood that teens will leave the event drunk (or about to get drunk) and heading off to hotel rooms to consecrate the evening's festivities.

Every culture has its coming of age festivities-- Bar Mitzvas, quinceneros, and the like-- so the prom is probably here to stay. But schools who really want to do something about harmful teenage sex should probably get off the abstinence kick and reform the ground rules of an event that in its current form, makes such activities almost a foregone conclusion.
posted by Dilan at 1:44 PM

 
HOWELL RAINES SHOULD BE FIRED, THE SEQUEL:
(I can't get the linking to work but the original item on this appeared on April 15, 2003.)
First, savaging Wen Ho Lee. Then, killing two sports columns that disagreed with the paper's editorial crusade against the Masters. Next, killing negative stories about Robert Toricelli's ethics in an attempt to preserve a Democratic majority in the Senate. And now, the coup de grace. Raines' paper yesterday had to run a front page story plus two full jump pages full of corrections to stories written by fabulist Jayson Blair. It seems Raines had been on notice of Blair's tendencies for months and continued to give him major assignments, including the huge D.C. sniper case, while failing to tell the editors for whom Blair was working about Blair's problems, as well as failing to do elementary fact checking that would have revealed the extent of Blair's frauds. (Blair filed datelines from far away places, and then failed to turn in any receipts on his expense account to document his supposed travels.)

The New York Times is a proud institution and a great paper. The Sulzbergers need to get rid of this incompetent partisan hack and get a journalist in there, before their paper suffers any more than the considerable amount it already has.
posted by Dilan at 1:00 PM

 
THE DYING SPORT:
When I was a kid, my parents used to take me out on occasion to Santa Anita Park, which was a 20 minute drive from our house in Burbank. My mom was and is a huge horse racing fan; my dad likes the sport too, though not quite as much as my mom. Both of them are and were good handicappers, astute bettors, and a great example for anyone who would want to pursue a life of investing one's money on speculation as to what a 1,000 animal might do in the course of a minute and 40 seconds.

I still try and make it out to the track on occasion, but when I do, it is a lamentable experience. You see, when I was a kid, Santa Anita on a weekend was filled with people; 35,000 for an ordinary stakes race, 45,000 to 65,000 for a big race. You needed to purchase a reserved seat or you would end up sitting all the way down at the top of the stretch, more than 900 feet from the finish line. If you wanted to bet, you had to go down 15 minutes or so before post time; the lines were long, as were the lines to cash your tickets after the race. Local sportscasters used to go out to the racetrack and report live for their segments on the news. The best horses were very well known; quite a large segment of America knew who Forego, Seattle Slew, Exceller, Affirmed, Spectacular Bid, and John Henry were. Jockeys such as Willie Shoemaker and Angel Cordero, and trainers such as Laz Barrera and Charlie Wittingham also became famous.

Now, it's all gone. The only time you need a reserved seat is if you go to the Triple Crown, the Breeders' Cup championship day at the end of the year, or some busy days at summer vacation tracks such as Del Mar, on the beach near San Diego, Monmouth, near the Jersey Shore, or Saratoga, with its quaint grandstands at the famous spa in upstate New York. Usually, there are less than 15,000 people at the track on weekends, less than 7,000 on weekdays. And those that are there aren't even sitting in the stands; they are down in the bowels of the track, sitting at tables near the betting windows and watching television. And every year it gets worse, probably because the empty grandstands don't provide any ambience and don't attract new fans.

What happened? Everyone in racing has a theory. Some blame state lotteries and other forms of legalized gambling, which broke up what once was a legal monopoly held by racetracks. (There is some evidence for this hypothesis in Hong Kong, where people are still crazy about horse racing, 70,000 show up at the track and bet $20 million a race, and no other gambling is allowed.) Some blame the simulcasting craze, whereby bettors are permitted to bet on races from other tracks; this drew the fans out of the seats and into the interiors of the grandstands, leaving the seats above empty. Some blame year-round racing, or medication rules, or all sorts of other things that have gone wrong with the sport since the glory days of the 1970's.

All these hypotheses have something to them, but the biggest cause of horse racing's problems today is probably a much simpler explanation. Tastes change. Horse racing thrived in an era with very few major sports. Americans fell in love with horse racing early in the 20th Century, at a time when baseball and boxing were the only other major sports. Races dominated the headlines. The best horses were known throughout the country. Radio and newsreel coverage of major races increased the popularity of the sport. The totalisator (an adding machine writ large, and hooked up to a large digital display in the infield of the racetrack) was invented in the 1930's, displacing bookies and making the game more honest by assuring that everyone bet against each other, not the disintrested house, and that everyone at the track received the same odds. Many states legalized betting on the races, and the sport expanded. (This is the climate in which Seabiscuit thrived; his story gripped the nation and will be the subject of a major motion picture this summer.)

Horse racing survived the transition to television, the rise of professional football and basketball, and the increasing popularity of the Olympic Games. But eventually, the competition became too tough. It was bound to happen. There are so many professional sports now that some of the longer-established sports were foreordained to lose ground. Indeed, even baseball, America's pastime, has suffered declining attendance and grossly declining television ratings. Meanwhile, NASCAR, professional beach volleyball, men's golf, men's and women's tennis, professional wrestling, soccer, and various "extreme" sports have gained in popularity. Since Americans don't have enough additional free time to pay attention to all these new sports while still following the old ones, there's been a decline. And horse racing is one of those sports that Americans have lost interest in.

Of course, this Saturday, for two glorious minutes, many Americans will care again about racing, as they run the Kentucky Derby. 150,000 will be at the track, and millions will watch on television. But those two minutes are never able to arrest the decline of the sport, because horse racing relies on the folks who show up at America's racetracks for the bread and butter product of the sport.

There's no moral in this. I wish it were different. I long for the days when I was a child, and we would sit among the crowds at Santa Anita, who would scream and yell for their selections as the horses turned for home in each race. I still understand the visceral thrill of thoroughbred racing. But those screams and those crowds are no more, and I know perfectly well that they aren't coming back, even if all the problems of the sport were magically fixed.
posted by Dilan at 12:21 AM

 
THE CONSERVATIVES GET A FREE PASS, AGAIN:
It's hard to add to what has already been said by everyone else about Rick Santorum's advocacy of sodomy laws, but what ticks me off more than anything about this is how slippery the Right is on this. Leaving aside the constitutional issue, the reason we have sodomy laws in this country is because state legislatures passed them, and have refused to repeal them. Which means, simply put, that there are some legislators out there who support them. And anyone who has driven through the Bible belt and scanned the car radio during the day will have no doubt as to why this is so-- there are areas of this country where homosexuality is so feared and so loathed that it is all they talk about on religious talk radio. Literally, there are preachers on the radio in the Deep South who talk about homosexuality as if it is the central problem facing this country.

The point is, if the right wing politicians and their supporters in the commentariat decided to buck their constituents and actively oppose sodomy laws, we wouldn't have them. Such opposition requires more than the "sure I oppose sodomy laws, but Sen. Santorum raises a legitimate issue and is being viciously attacked" position that we are hearing from most conservatives. Heck, even Pat Buchanan took that position on his MSNBC talk show the other day. And any position on sodomy laws that is shared with Pat Buchanan cannot be described as a position that confronts the religious right. Rather, these laws exist because those on the right who oppose them nonetheless indulge supporters of the laws as holding a legitimate, debatable position. Indeed, many conservatives have gone so far as to accuse those who oppose Santorum as being motivated by anti-Catholic or anti-Christian bigotry, as if Christian doctrine required that homosexuals be thrown in jail! (Quite the opposite; as I have pointed out before in this blog, someone who "loves the sinner and hates the sin" would never support these repressive laws which only do harm to the supposedly "loved" sinner.)

The reason that the right gets away with their soft opposition to sodomy laws is because nobody seems willing to ask them the tough questions. I have a feeling if that if most Americans, including quite a few who aren't particularly great fans of gay rights in other areas, knew that the Republican party tacitly, and sometimes actively, endorses throwing people in prison for having same-gender sexual relations in the privacy of their own homes, that might be a factor that those Americans would weigh in deciding whether to support Republicans. But somehow, the tactic of obfuscation, of making it sound like the only issue is the broad interpretation of the Constitution to provide a right to commit sodomy, or making it sound like the issue is anti-religious bigotry, or making it sound like the advocacy of jailing homosexuals is a moral tenet rather than a policy prescription, is working.

Of course, the Democrats don't help any. You will hear a lot of cheerleading for gay rights now, when nobody's paying attention, but during the election campaign, Democrats seeking the votes of bigots will tone down their support of gay causes. They always do. But I'd love to see John Kerry, or John Edwards, or Howard Dean, or whoever the Dems nominate, put the question to W in a Presidential debate in simple terms. "Mr. President, why won't you publicly confirm that you disagree with those in your party who say that gays should be thrown in jail just for having sex with each other? You do believe that there shouldn't be laws prohibiting gay adults from having sex with each other in the privacy of their home, don't you?" Of course, it will never happen. And sodomy laws will stay on the books, unless the Supreme Court strikes them down. How depressing.
posted by Dilan at 11:48 PM

 
HOWELL RAINES SHOULD BE FIRED:
Howell Raines is the editor of the New York Times. I don't know that much about his politics, but from what I know, I would agree with him on any number of things. I do know, however, that he is a lousy journalist who, as long as he is around, will give some substance to conservatives' shrill charges of liberal media bias. (So that you know, I do know a little bit about journalism. Just about every member of my immediate family is or has been a journalist, and I was the black sheep of the family who did something else with my life. And even I publish a blog, which I suppose is a form of journalism.)

Under Raines' watch, the New York Times has repeatedly engaged in unethical journalism designed to promote a political agenda:

1. The Times unjustifiably savaged the reputation of scientist Wen Ho Lee, who was practically accused of being a communist spy based on what apparently was very flimsy evidence, apparently in service of grudges that the paper's brass held against Bill Clinton.

2. After conducting a months-long campaign, featuring several stories on page A1, the front page of the paper (not just the sports section), to change Augusta National Golf Club's discriminatory policy against admitting women to the club (a policy that I think is idiotic and wrong (scroll down to "Why is Sexism Bad and Racism OK?")), Raines actually killed two columns by New York Times sports columnists that opposed the position that was taken by Raines' front page and by the editorial page. As a general rule, newsrooms don't interfere with sportswriters, and for good reason-- news editors tend to know very little about sports. Nor should good newspapers prevent their columnists from expressing dissenting views-- and this goes as well for Times sportswriters as it does for Bill Safire on the op-ed page. Raines was eventually forced to back down and run the columns, though the paper still lies about the reason the columns were spiked, claiming it was because the two award-winning columnists turned in substandard work, rather than columns that disagreed with the position being taken by the paper.

3. Now, as Mickey Kaus reports, it turns out Raines killed coverage of New Jersey Sen. Robert Toricelli's ethical misdeeds (the Times covers New Jersey and Connecticut politics, as well as New York politics, as a "local" story, because many of the paper's readers live in those states and commute to New York City), because he didn't want the paper to cause Toricelli to be forced out of the Senate (as he eventually was) resulting in a shift in control of the Senate to the Republicans. As a result, the Times' sources went to a TV station, which broke the story.

The New York Times is the "paper of record", a proud institution with a great professional reputation. Unfortunately, with Raines in charge, it's amateur hour, and the paper is being run like a Fleet Street tabloid. It's time for "regime change" at the New York Times.
posted by Dilan at 6:02 PM

 
AN ADDENDUM TO THE LAST POST ON PUNITIVES:
A reader's e-mail convinced me that I wasn't entirely clear in one aspect of my last post on the Campbell punitive damages decision. So, to be perfectly clear, my criticism is aimed at the conservative critics of the federal judiciary who whine about "judicial activism", and at the majority in the Campbell case, which includes liberals as well as conservatives Rehnquist, O'Connor, and Kennedy. Justices Scalia and Thomas, to their credit, want no part of the Court's punitive damages jurisprudence.
posted by Dilan at 1:04 PM

 
THE SUPREME COURT, FEDERALISM, UNENUMERATED RIGHTS, AND PUNITIVE DAMAGES:
Last week the U.S. Supreme Court decided State Farm Mut. Auto. Ins. Co. v. Campbell, holding that the Due Process Clause of the Fourteenth Amendment, which prohibits the deprivation of life, liberty, or property without due process of law, imposes sharp limitations on the states' power to impose punitive damages. The decision was drowned out by war coverage, but this decision promises to fundamentally change American law and call into question some of the basic assumptions of our tort system.

There is a longstanding debate about whether America is lawsuit-happy, and whether various sorts of limitations should be imposed on the tort system. This debate is going on in both state legislatures and Congress, who have been egged on by conservative groups (funded by corporate and insurance industry contributions) who want to limit damage awards. While traditionally, state legislatures and state court systems determine the compensation available for the victims of accidents in tort lawsuits, there is at least a colorable argument that Congress might have a role in regulating such compensation, both because it seems somewhat unfair that a defendant in Mississippi might have to pay much more in damages for the same wrongful act than a defendant in Texas, and also because a huge award affects not only a company's business in the state that imposes the damages, but also impacts the company's out-of-state business as well.

What is notable, however, is that these are essentially liberal, big government justifications for federal action. Under the arguments that conservatives have used to strike down civil rights statutes and federal gun laws, these sorts of justifications would probably not permit Congress to regulate state tort actions in this matter. Thankfully for the conservatives, however, the Supreme Court has found another means to nationalize tort reform-- the federal judiciary.

In the Campbell case, the Court held that: (1) no state may impose a punitive damage award that exceeds 10 times the compensatory damages awarded, and that in many cases, a punitive damage award equal to the compensatory damages will be appropriate, (2) the defendant's wealth, recognized since the adoption of the Constitution as a consideration in fixing the amount of punitive damages (a $10,000 penalty means a lot to a middle class individual but very little to a multinational corporation), may not be used as a consideration in justifying a large award, and (3) the facts supporting punitive damages award will be reviewed anew by appellate courts, with none of the traditional and well-established deference given to the facts as found by the jury or the trial court.

None of this appears anywhere in the Due Process clause. First of all, as long as there is a fair trial and a jury determination on punitive damages, there is no sense in which it could be said that a punitive damages award deprives property without due process of law. What is really being talked about is an unenumerated right in the Constitution. And the Court ignores the tests that the Court and most conservatives endorse for determining the existence of such rights, i.e., whether the right has traditionally been recognized and is implicit in the concept of ordered liberty. And it is no wonder-- large punitive damage awards have been around since the founding of the republic. Nobody ever thought they were prohibited. (To their credit, Justices Scalia and Thomas have consistently argued that the Constitution imposes no limits on punitive damages based on the nonexistence of any such tradition.)

What is even more breathtaking than the hypocrisy and lack of principle behind the Court's decision, however, is the impact that it will have on future cases. The constitutionality of punitive damages awards will now be an issue in every tort case where they are available. Further, the deterrent value of such damages will be substantially reduced-- especially since it is now unconstitutional to impose an award of sufficient size to dent the finances of a wealthy defendant. Hundreds of years of common law experience that has established punitive damages as an effective means of punishment and deterrence has been thrown out the window in favor of an unproven and contestible theory as to what should and shouldn't be considered by juries and judges in fixing damages. Of course, a state legislature, and perhaps Congress, could decide that this is an experiment worth attempting. But the judiciary has no business doing this.
posted by Dilan at 11:55 AM

 
BLOGROLL BACK UP:
I know you all have been waiting with baited breath. Just look to the left and scroll down.
posted by Dilan at 1:21 PM

 
FRUM AWARD NOMINEE:
John Kerry, running for President, said that we need a "regime change" here in America. Opportunistic Republican National Committee Chairman Marc Racicot (pronounced "Roscoe", if you are curious) responded by not only criticizing Kerry's colorful language (which would be kind of silly by itself, as no reasonable person would read the comment as comparing Bush to Saddam Hussein), but by saying that Kerry was wrong because he "dared to suggest the replacement of America's commander-in- chief at a time when America is at war". (Here's a nice discussion of what Kerry and Racicot each said.) In other words, because we are at war, the President may not be replaced, or at least it is unpatriotic to advocate the replacement of the President.

Mr. Racicot might not have been paying attention in history class, but this debate was settled in 1864, during to a war that, unlike the current hostilities in Iraq, actually involved sustained, disruptive combat within the territory of the United States where there actually might have been a decent argument to make about ordinary political activities disrupting the war effort.

To Kerry's credit, he properly responded to this attack by trashing the Republicans. After all, Kerry served with distinction in Vietnam and needs a lecture from nobody about patriotism. But this incident shows how the GOP is going to follow the Frum strategy right into the 2004 elections if they can, attacking the patriotism of anyone who dares to oppose them.
posted by Dilan at 1:03 PM

 
ROOT ROOT ROOT FOR THE HOME TEAM:
I have spent a fair amount of time here criticizing the Right for slamming everyone who opposes the war as anti-American and unpatriotic. For some reason, that is the default thinking pattern of American hawks at a time of war-- this is something that has happened in just about every previous war.

But as I noted in my last post, there is at least some anti-Americanism out there. What was I talking about? Well, there was a college professor who wished a "million Mogudishus" on the U.S. army last week. There are some people in the anti-war movement who don't want to hear about Saddam Hussein's dreadful history of chemical weapons attacks and systematic torture.

These people are marginal figures. I think they unfortunately give the Right ammunition to paint the whole anti-war movement as unpatriotic. But to resist this charge, the anti-war movement needs to do what the French and German governments did today: make clear that if it is a choice between Iraq winning the war and America winning it, America must win the war. Saddam Hussein is not Che Guevara. He is a ruthless dictator who runs an oppressive totalitarian state. He has screwed his people by refusing to get rid of his weapons and thus ensuring continued economic sanctions that have killed up to a million Iraqis. The Arab world needs more democracies, not more governments like Saddam's.

I didn't particularly care whether he invaded Iran or Kuwait-- those governments are horribly oppressive as well. (Kuwait's is also elitist and racist-- I don't have any sympathy for a government that imports foreigners to do the work to support its lazy population, and then refuses to provide any means for those foreigners to attain citizenship and share in the wealth of the country.) I certainly wouldn't have cared if he had invaded Saudi Arabia in 1991, the threat that caused Bush 41 to start the Gulf War. If Saddam had overthrown the Saudi monarchy and imposed his will on Arabia, Osama Bin Laden might have chosen to turn his formidable fire at Saddam rather than the United States.

But the current war is not Iran vs. Iraq, or Saudi Arabia vs. Iraq. This is Saddam Hussein versus a coalition that, whatever else you want to say about it, is attempting to impose a decent government in Iraq. Even the worst possible government that the coalition could install, full of neoconservatives more concerned with the security of Israel than the aspirations of the Iraqi people, would be a distinct improvement over the Baath dictatorship. The new government will not stockpile chemical weapons. It will not torture dissidents. It will not squander the country's considerable oil wealth building presidential palaces and buying tons of armaments. And it is quite likely that the government that we install will be much better than even that worst-case scenario. Iraq stands a chance of becoming some sort of a democracy, or at least a federated state that protects the rights of its minority groups (unlike any of the other countries in the region).

The point is, rooting for Mogudishu, or Vietnam, in this war, is rooting for the bad guys. Of course, one can still protest for peace, protest American tactics, or seek a pullout from Iraq. Such protests played a role in our pullouts from Vietnam and Somalia, which saved countless lives in needless conflicts.

And I don't flinch from my position that we should not have started this war in the first place. Indeed, I fear that after this war, the US will seek out future conflicts because there are very few remaining checks on American power. (I suspect we could defeat just about any country that doesn't have nuclear weapons.) I also fear that widespread nuclear proliferation will occur because countries with questionable governments (and there are many of them) will seek the security that Kim Jong Il has obtained against American attack. Whoever replaces W in the White House is going to have a difficult task of rebuilding international security mechanisms that W has destroyed with his inept and reckless foreign policies.

Those things are all true. But we must still defeat Saddam Hussein. Even in some of our more imperialist exercises have been good for the world in the long term. (Not all, just some. Kissinger should still face his day of reckoning for what we did in Chile.) Would Panama be better off if they still had Noriega? South Korea has a wonderful government; one hates to think what would had happened if the North had taken over.

The most important thing that we can all do in the coming days and weeks and months is to force the Bush Administration to keep its promises to install a decent government to replace Saddam Hussein. I wish we had chosen the route of peace. But when someone hands you a tub of lemons, you have little choice but to try and make lemonade.
posted by Dilan at 10:13 PM