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BEAR WITH ME:
My blog has been experiencing huge technical difficulties. My blogroll and archive links seem to be gone. I will try to restore them soon as I can. Thanks for your patience.
posted by Dilan at 10:53 PM

 
GAZING AT MY OWN NAVEL:
This article mentions my humble blog in some pretty impressive company. Of course, maybe I'm the person who the author refers to as gazing at his own navel. In any event, we're flattered by the attention.
posted by Dilan at 9:19 PM

 
"EVERY CHILD IS A BLESSING"
It sounds like nobody could disagree with it. And it certainly is the governing principle of many peoples' reproductive lives in this country. Further, you can't seriously support equality and autonomy for women and yet criticize them for choosing to have their babies.

And yet.... every child is not a blessing to every mother. Sometimes, an abortion is the right thing to do. To choose an extreme example, remember the Nicaraguan 9 year old rape victim?

The reason this comes up is this Eve Tushnet item I ran across. She links to an anti-abortion blog, which then links in turn to a pro-abortion site, imnotsorry.net. There has, for some time, been a branch of the pro-life movement that focuses on ministering to women who regret their abortions. Certainly some women do regret their abortions; it is a morally complex decision, and in any event, society hangs a huge guilt trip on women who have the procedure. The I'm Not Sorry website is aspiring to be a counterweight-- a group of women who are glad that they had abortions. I'm not sure that I'm Not Sorry is entirely successful-- it's easy enough to start sitting in judgment of the reasons the women give for their abortions, which really isn't the point of the site. But what is most interesting is the anti-abortion blog's reaction to the site-- the blog's author basically dismisses many of those who aren't sorry about their abortions as childless women, and says that women who that tend to have children tend to regret their abortions more.

I don't know whether this is true or not, but I don't see particularly why it should be true. That's where I was going with the title of this post. It is simplistic to say that an unplanned child is simply a surprise blessing. Anyone who familiarizes him- or herself with the practices of any of this world's extreme patriarchal societies, or the history of women in the United States, understands that the ability to plan motherhood is a necessary condition for gender equality. I realize that many people have seen their lives blessed by children that they didn't plan to have. But it is that unplanned pregnancy that leads to a woman quitting her job, dropping out of school, marrying the wrong, abusive guy, going on welfare, or taking any number of actions that end up retarding her future opportunities. I, of course, am not female and have never been pregnant, planned or otherwise. But I would certainly think that there is many a woman out there who has had planned children and who is very glad that she wasn't forced to have that baby that came around when she wasn't prepared to become a mother.

And I think the misunderstanding of this point subtly colors the way we view abortion. Nobody wants to say that some children shouldn't be born. But really, the concept of children as a "blessing" really adds nothing to the abortion debate. After all, if every child is a blessing, why use contraception or even abstain during ovulation; why pass up a chance to add a blessing to one's life every chance one gets? Everyone, or at least everyone who is being remotely cautious, at least tries to time procreation. Though nobody will admit it, just about all of us understand internally that having children at certain points in one's life is not really a blessing. (If you really disagree with me on this point, what do you think about the 9 year old Nicaraguan?) And once you get past that point, the abortion debate gets back to whether it is morally permissible to destroy an embryo or a fetus.

There's more than one way to love children. And a woman who utilizes family planning, including abortion, to ensure that she brings her children into the world under the best possible circumstances, to me, is acting in a profoundly moral way. She is wanting the best for her children. But some pro-lifers seem to labor under the illusion that such a woman should feel guilty. There's no reason why she should.
posted by Dilan at 9:06 PM

 
JUSTICE SCALIA IS A BIGOT:
This is important information. Scalia purports to stand as the most prominent exponent of a theory of constitutional interpretation (actually, a spin regarding a form of constitutional interpretation that isn't actually all that qualitatively different from the methods of interpretation used by others, but that's beside the point) that says that only the text of the Constitution, and the original meaning ascribed to the document by its framers, matters. Those of us who know that this is bogus (and who, on occasion, get great joy from pointing out that it is bogus), often argue that people like Scalia have chosen to endorse a form of constitutional interpretation that fits their noxious political beliefs, and then seek to escape criticism of their Neanderthalic beliefs by saying that they were compelled to reach the unjust legal conclusions they have reached because they are obligated to follow their judicial philosophy. Now, with Scalia, we have a smoking gun. Check out what Scalia said at oral argument yesterday.

From the L.A. Times:

"At one point, Rehnquist asked if a state could prefer heterosexuals over a homosexual to teach kindergarten.

"Before the attorney could answer, Scalia asserted that disapproval of homosexuality would justify such a decision by the state. Otherwise, he said, children 'could be induced to follow the path of homosexuality.'"

E.J. Graff and Dahlia Lithwick also report that Scalia made this statement.

In other words, Scalia believes that a state's enacting criminal laws for the purpose of preventing people from becoming homosexuals is a legitimate interest, and he further believes the old canard that homosexuals "recruit" kids to become gay. This is not legal reasoning, or original intent, or anything else other than pure bigotry. The man thinks gays are a scourge. He thinks that it is the state's business to eliminate homosexuality. And he thinks that if the state does not do so, the gays will come to get our children. A person who thinks these things should not hold high office, on the Supreme Court or anywhere else.
posted by Dilan at 3:22 PM

 
MY OWN THOUGHTS ON THE CONSTITUTIONALITY OF SODOMY LAWS:
I have engaged in a fair amount of debate on this over at Slate, but basically, I think there are three possible theories as to why sodomy laws may plausibly be held unconstitutional: (1) that the privacy of the bedroom is an unenumerated right that is protected under the Constitution, (2) that sodomy laws are expressions of pure animus against homosexuals (or against so-called "deviants" more generally) and thus lack a rational basis, and (3) that, at least as to sodomy laws that target homosexual relations exclusively, such laws discriminate against people because of their gender (by allowing females, but not males, to have sex with a man, and vice-versa) and are not justified by any important state interests.

The crux of the debate over at Slate is that I don't think (1) is very persuasive. A finding of an unenumerated right in the Constitution is disfavored, for good reason; there is a grave danger of judicial activism when judges can simply construct constitutional rights where no text guides them. (I do not believe, as some people do, that there are no such things as unenumerated rights-- the Ninth Amendment makes pretty clear that such rights exist. People who claim that there are no such rights usually base their position on an obligation to follow the text of the Constitution, but they say little about the text of the Ninth Amendment.) The usual formulation is that such rights have to be "so deeply rooted in our traditions to be considered fundamental". The right to have sex with someone of the same gender is not deeply rooted in our traditions. (Indeed, that's exactly the point-- times have changed.)

But I do think that (2) and (3) are extremely persuasive. First, there is no doubt that the reason these laws exist on the books is that people want to condemn homosexuals. (Indeed, they aren't usually enforced precisely because their purpose is moral condemnation, not law enforcement.) Some scholars and judges, including most famously Antonin Scalia, think that such moral judgments are sufficient to provide a rational basis for a statute. But this proves too much-- any behavior can be condemned as immoral, and thus all statutes would pass the rational basis test if this is the law. Further, I don't think there is nearly the separation that Justice Scalia does between moral condemnation and animus, at least as far as legislation is concerned. While conceptually I think it is possible on a personal level to "love the sinner and hate the sin", it is not credible to say that a person loves the sinner if he or she wants to throw the sinner in prison (or to at least threaten to do so). Someone who wants to do that must at some level dislike homosexuals. This theory was used to strike down a Colorado statute nullifying local gay rights ordinances in Romer v. Evans, and I expect that it will be used to strike down the sodomy law in this case.

There is another, more daring theory, that I wish the Court would use to strike down the statute. Most anti-gay statutes are really a form of gender discrimination, and gender discrimination, even where it has a rational basis, is considered unconstitutional unless the statute is substantially necessary to serve important state interests. How are anti-gay statutes gender discrimination? Simple-- take the Texas sodomy law. Under that law, females are allowed to have any kind of sex with a male, but males are not allowed to have sex with the same male. Thus, the statute discriminates against men because of their gender. There is precedent for this theory-- it was used to strike down anti-miscengenation statutes in Loving v. Virginia. (If you were black, you weren't allowed to marry a white spouse that a white person was allowed to marry.) Further, it makes perfect sense. Indeed, if it were anything other than sexual activity that we were talking about, there is no doubt that this principle would be applied. For instance, imagine a statute that required that any contract, to be enforceable, would have to be made between people of the opposite sex. Or a statute that required states to educte males and females in separate classrooms. Those statutes would be struck down on the basis that they constitute gender discrimination.

The importance of this theory is that it would make classifications based on sexual orientation suspect under the law, so that a state would need an "exceedingly persuasive justification", and not just a rational basis, to discriminate against homosexuals. It would bring gays and lesbians similar protections to those enjoyed by racial and religious minorities, aliens, and women. And Texas politicians would have to find some other way to score cheap political points than demonizing gays and lesbians.
posted by Dilan at 11:58 AM

 
THIS IS WHY, EVEN IF YOU DISAGREE WITH HIM, ANDREW SULLIVAN IS THE BEST BLOGGER ON THE PLANET:
What a wonderful essay on sodomy laws.

(By the way, I disagree with Sullivan on the war, George W. Bush, and some other things. But he's totally right on this.)
posted by Dilan at 11:20 AM

 
GET RID OF THOSE SCREAMING NBA P.A. ANNOUNCERS:
When I was a kid, a guy named John Ramsey was the announcer for almost all the local (Los Angeles) sports teams, including the Dodgers, Angels, Rams, Lakers, Kings, and USC football and basketball. He had a deep, stentorian voice, and a punctuated delivery, which people loved to imitate. (Your attention please, for the Dodgers, batting [pause] for Sutton, number 11, Manny [pause] Mota!) He never raised his voice, even when the home team scored or was rallying. He died in the 1980's and was replaced by Lawrence Tanter on the Lakers (another deep voice) and Dennis Packer on just about everything else (he had a higher voice, but he parroted all of Ramsey's pauses and intonations). Tanter and Packer were, and are, reasonably professional P.A. announcers.

Meanwhile, the rest of the country went crazy. The most influential announcer was a guy named Dave Zinkoff, who worked basketball games in Philadelphia, first for the Warriors (before they moved to San Francisco and then Oakland) and then for the 76'ers. He would scream "Wilt CHAIM-ber-lain" and "Julius ERRRRRRRRRRRRR-ving" in his pregame introductions, and he would crazy when the home team did something. He was a colorful Philadelphia institution who, like Ramsey, died in the 1980's. (Zinkoff was so well-known in the NBA that Kareem Abdul-Jabbar said, when Philadelphian honored Abdul-Jabbar's last appearance in the Spectrum, that he missed Zinkoff on the P.A.)

Pat Williams, who worked for the 76'ers when Zinkoff was the announcer, became general manager of the Orlando Magic when that franchise formed and hired Paul Porter, a Zinkoff clone who screamed the lineups and who, after every Orlando basket, yelled the name of the player who scored. The Detroit Pistons hired a guy who, in the 1988 and 1989 finals, presented an obvious contrast to Tanter's low-key style at the Lakers, by screaming the Pistons lineup. And the Chicago Bulls took it to the next level, with Ray Clay introducing the opposing team in a dull, disinterested monotone before they rudely turned out the lights to the arena, and blasted the Allen Parsons Project over the loudspeakers at Chicago Stadium so that the opposing team couldn't hear, see, or think, much less conference about the game (as they traditionally might), while Clay screamed the names of the Bulls over the P.A.

Now, every NBA team (except the Warriors, the original employers of Dave Zinkoff, who stopped doing it at the request of their current coach) follows the Bulls' style in introducing the lineups. The dull monotonous introduction of opposing players really rankles me almost as much as the screaming; so what if it's Michael Jordan, he's the opposition, so you must boo him and not give him any recognition whatsoever. (Indeed, the Bulls fired Clay because he wanted to give Jordan, now on another team, the introduction that he deserved for the many years he gave the Bulls. Only under strong public pressure did the Bulls' management relent and allow the new announcer to give Jordan a big introduction.) And most of these announcers also follow the Paul Porter style of game announcing, with every basket by the home team an occasion to shout. (Indeed, it's not even right to call these guys cheerleaders, because unlike a cheerleader they actually have no sense of the crowd. Kobe Bryant might make some absolutely impossible basket, causing the opposing fans to cheer him, but the announcer will nonetheless quietly whisper "kobe bryant". On the other hand, some guy on the home team makes a basket to cut the visitors' lead to 20 with 45 seconds left in the game, with no crowd reaction whatsoever, and these guys scream their lungs off.)

The job of the announcer is to provide the fans with information. In the old days, they were more important, because names were not on the back of jerseys and scoreboards were rudimentary. (They still announce that a foul was "the first personal foul and the third team foul", even though that information is now readily available on the board.) But even now, a good P.A. announcer can provide useful information. Frank Fallon, who announced (in a traditional, low-key style) the Final Four for over twenty years before his retirement a couple of years back, used to read stats during the breaks. Don Sawyer, the long-time (traditional, low-key) announcer at UCLA's Pauley Pavilion, identified who, if anyone, got the assist on every basket.

In contrast, the screamers add nothing. When Dan Roberts at the Delta Center yells "how about our Jazz!" when coming out of a timeout, he may think he is prompting the crowd, but I've been in arenas where nobody said anything over the P.A. and the fans knew when to get up and make noise. New York Knick crowds made just as much, if not more, noise in the Garden even when classy John Condon, rather than the current screamer, was the announcer.

I'd like to see an NBA team try the following experiment: Hire a screaming P.A. announcer and turn the lights out for the introductions for half the games, and engage a traditional P.A. announcer and keep the lights on for the rest of the games. Let's see if there is any difference in attendance or crowd noise or home court record between the former games and the latter games. My bet is that there will be none. Nobody buys a ticket for the announcer, and fans know when they are supposed to cheer. The only thing these screamers serve to do is infuriate those, like me, who come to see the game and not to hear the announcer.
posted by Dilan at 8:29 PM

 
"FAIR AND BALANCED"
Some conservatives have admitted that the reason that Fox News claims that it is "fair and balanced" is to drive liberals up the wall. Everyone knows that Fox News tilts to the right. The less disingenuous arguments in favor of Fox News' journalistic standards are: (1) that many other media outlets tilt to the left, so Fox, while not balanced, is at least a counter-balance, and (2) that Fox News presents the news in a more entertaining, tabloidish fashion than other outlets, which draws viewers to television news that wouldn't otherwise watch.

I agree with argument (2). Indeed, I watch Fox News because I like the tabloid sensibility, whether seen in Shepard Smith's bits and bites from around the country (20 second reports on minor local stories that nonetheless are interesting for one reason or another), or the outrageous shouting matches on Fox's top-rated debate programs, "The O'Reilly Factor" and "Hannity & Colmes".

But argument (1) is entirely phony. I realize that there are whole books written on media bias, and that topic is really too specialized for me to comment on. (From what I have seen, however, I think that conservative arguments about liberal media bias focus way too much on the fact that the people reporting the news are liberals, a manifestation of the more general principle that most college graduates are liberals or moderates, and most conservative college graduates go into the corporate world and not journalism. But reporters only have control of content on the micro level of how particular issues are presented, and what questions are asked of what people. Issues of story assignment, editorial control, and the scope of what is "newsworthy", in the mass media, are generally made by corporate types who both tend to have more conservative types and who tend to make decisions that favor conservatives because such decisions profit the company. This isn't to say that there is no liberal bias; rather, I suspect that the extent of liberal bias is overstated, and that there are also conservative biases, and other sorts of biases, that are ignored by conservative media critics.)

So why, then, is argument (1) phony? It is phony because even assuming arguendo the rest of the media (or much of the rest of the media) is biased to the left, that sort of bias is qualitatively and quantitatively different than Fox News' rightward bias. Fox News spins, rather than simply slanting, the news. For instance, for the entire runup to the war on Iraq (and continuing during the opening days of the war itself), Fox News has accompanied its Iraq war reports with a caption at the bottom of the screen reading "War on Terror". Sometimes those words also appear on a screen behind the anchors as well. Now, no responsible news outlet, even a biased one, would put those words on the screen for reports on the Iraq war. Why is that? Because the contention of whether the Iraq war is part of the war on terror is extremely debatable. Even many of the war's supporters admit it isn't, and that war against Saddam Hussein is not connected to 9/11 or fighting Al Qaeda. The Bush Administration of course claims that it is fighting terrorism in Iraq, of course, but the evidence of Iraqi connections to Al Qaeda has not been particularly convincing.

Now I am not saying that you have to buy my argument that I don't believe the war on Iraq is part of the war on terror. You can believe that it is. My point is that no responsible journalistic outfit would casually identify the war on Iraq as "War on Terror", because of the existence of strong colorable, debatable arguments that it is not. The words "War on Terror" are the sort of thing that one would see on one of those prefabricated backdrops behind an Administration official giving a speech supporting the Iraq policy-- i.e., they are one side's spin as to what the war is about. The liberal equivalent of putting them on the screen during discussions of the war on Iraq would be for one of the other networks to put the words "War for Oil" on the screen while discussing the same war. And no "liberal" network has done or will do that.

Another example is Fox's use of the term "homicide bombers" to describe Palestinian suicide bombers. This terminology is forced, redundant (it's pretty obvious that a bomber is trying to murder people), and less descriptive than "suicide bomber". While all bombers are attempting to commit homicide (though some don't succeed-- Fox calls them "homicide bombers" anyway), the unique thing about the Palestinian bombers is that they are also committing suicide. Fox may feel that to remind viewers of this fact is somehow to honor their sacrifice, but what ever happened to another of their slogans, "we report, you decide"? Giving the viewers information so that they can make up their own minds is what journalists in a free society are supposed to do. Once you get into the area of deliberately suppressing facts in order to sway your audience's opinion, you are closer to Al Jazeera than you are to CBS or CNN.

Fox News, at its worst, is a spin operation. Maybe conservatives have a point that Dan Rather is a liberal Democrat, but he doesn't blatantly adopt the questionable language of one side of contested political questions or deliberately suppress facts to sway the audience. I like Fox News for what it is, and will continue to watch it. But "fair and balanced" my ass.
posted by Dilan at 7:55 PM

 
THE IMPORTANCE OF THE GENEVA CONVENTION:
Much of the Right (and sometimes the Center-Left as well) trashes international institutions, treaties, and international law, because they restrain American freedom of action. Thus, we don't want anything to do with an enforceable Biological Weapons Convention, because it might require us to submit our labs to inspections. We don't support the Land Mines Treaty, because we might have to remove mines from Korea. Et cetera.

What this critique ignores is that rules benefit us even as they constrain us. And the Geneva Convention is a perfect example of it. Donald Rumsfeld is absolutely right to scream about Iraqi mistreatment of our POW's. But we've been systematically violating the Geneva Convention (as well as the Torture Convention) by publically displaying, interrogating, and torturing detainees from our operations against Al Qaeda in Afghanistan and Pakistan, and by refusing to provide them with access to competent tribunals to determine their combatant status. Such conduct makes it much harder to enforce Geneva Convention norms (usually enforced through international pressure and publicity) on Iraq or anyone else.

I have a theory about this. I have a feeling that Rumsfeld and others in the Bush Administration may have actually believed that we had become so strong that the successful capture of American soldiers in military conflict was highly unlikely. He believed that our strength would be sufficient to protect our POW's. Certainly, nobody was talking before this war about Iraq being able to capture our servicemen and women. This is part of a more general overconfidence about the ability of military strength to solve the nation's, and the world's problems. (No, Don and Dick and Paul and Richard and Douglas, a successful intervention in Iraq is not going to suddenly democratize the Middle East, end terrorism against the US, or result in an end to the Israeli-Palestinian conflict.)

Weaponry is only one aspect of successful foreign policy. Strong international institutions set rules, and do so in ways that benefit us. The Geneva Convention provides a set of rules with respect to armed conflict that have stood the test of time. We are not at a time (and I don't ever expect us to arrive at a time) when such rules can or should be thrown out the window.
posted by Dilan at 2:07 PM

 
ALL THAT WORK TO MAKE THE OSCARS PALATABLE TO PRO-WAR AMERICA, AND...
Hollywood rolled up the red carpet, discouraged stars from overt anti-war speeches, cancelled the production numbers, and conveyed an overall tone of seriousness, all so as not to offend pro-war middle America and to convey the impression that the industry is no different than ordinary Americans.

And yet, the only two things anyone will remember from last night's ceremony are Michael Moore and Roman Polanski.
posted by Dilan at 1:45 PM

 
CAN WE PLEASE STOP USING THE PHRASE "AID AND COMFORT" TO DESCRIBE WAR OPPONENTS:
David Frum has done it again. As you may recall, when last we heard from him, he was attempting to stifle anti-war speech by saying that it has no value to society. Now, he gives us this piece (free registration required), in which he argues that Ted Kennedy's arguments against the war "suggest [that] leading Democrats are now stepping beyond criticism to lend aid and comfort to the antiwar movement in the United States and Europe". This passage confirms that Frum is a sleazeball. The phrase "aid and comfort" comes from the definition of the crime of treason in the US Constitution (Article III Section 3): "levying War against [the United States], or adhering to their Enemies, giving them Aid and Comfort". Frum knows this-- he is deliberately using these words to make Ted Kennedy (whose two brothers gave their lives for this country) sound like a traitor. Further, the passage is especially noxious because he uses the words "aid and comfort" in the context of the anti-war movement in the United States and Europe; the implication is that giving "aid and comfort" to these entities is the same as giving aid and comfort to Saddam Hussein.

Unfortunately, this type of rhetoric is way too common among hawks, many of whom miss no chance to accuse doves of being anti-American, pro-Saddam, and treasonous. This needs to stop. Giving "aid and comfort" to the enemy is a legal concept that refers to overt acts of treason, such as if an American citizen supplied weapons to the Iraqi military during the current war. That language has no place in the debates as to whether the war is justified. Frum and his ilk need to stick to reasoned discourse and stop accusing everyone who disagrees with them of being a traitor.
posted by Dilan at 1:42 PM

 
TURNABOUT IS FAIR PLAY:
Steven Reinhardt, the great liberal judge of the Ninth Circuit Court of Appeals, authored a 2-1 majority opinion today that holds that any federal statute that bars possession of non-commercial child pornography for personal use is unconstitutional under the Commerce Clause (that is the grant of power in the Constitution to Congress to regulate interstate commerce). I don't really feel strongly one way or the other about the correct interpretation of the Commerce Clause, or more accurately, perhaps I feel strongly in both directions. (On the one hand, I do think that 21st Century America demands a much larger federal government to solve national problems than 18th Century America did, and enforcing a strictly restrictive Commerce Clause would prevent the federal government from regulating national problems. On the other hand, some attempts to expand the reach of the Commerce Clause, such as the case where the Supreme Court held that a farmer's growing of wheat for his own personal consumption could be restricted by the federal government, on the ground that such conduct "affects" commerce, seem to me to be completely contrived and indefensible.)

But you can't help but smirk at what Reinhardt has done. Chief Justice Rehnquist and other conservatives have made it a pet project to reinvigorate the Commerce Clause as a substantive limit on Congress' powers. (While they haven't revisited the silly FDR-era farming decision, Wickard v. Filburn, they have ruled that Congress lacks the power to regulate gun possession around schools and violence against women, holding that these are purely local issues.) It's easy to see why they have done this-- an effective Commerce Clause can stand as a barrier to effective federal regulation in such areas as civil and women's rights, firearms, and other areas where liberals might want to impose regulations. What Reinhardt did today is point out that the same narrow interpretation of the Commerce Clause can stand as a barrier to effective federal regulation in areas where conservatives might support federal regulations as well. (I am sure John Ashcroft is fuming at this ruling.) At the risk of making a silly pun out of the Wickard case, you reap what you sow.

I might note there are some good practical reasons for Reinhardt's decision. The international market for kiddie-porn is a huge problem, and those who traffic in it deserve the harshest punishments. But some Wal-Mart one-hour photo clerks have turned into deputies of the government, turning over relatively innocent photos of nude family activities, that were not taken with or intended to be used for any sexual purpose, to the authorities. If the government cannot prove that the particular sort of child pornography that is the subject of the prosecution is actually connected to the interstate and international trade, the case for federal regulation is relatively weak. (Remember, federal regulation means mandatory prison sentences, whereas state regulation might just mean mandatory counseling for the families.) Reinhardt's position is backed up by the fact that, especially with respect to issues like child porn (where the statutes always pass the Legislature 99-1), giddy lawmakers who want to show how tough they are against some of the most vile people in society do not tend to make proper distinctions, or indeed any distinctions, between the most vile and the merely misguided. While a local-interstate distinction might not approximate this divide perfectly, it will at least be a reasonable fit, separating the folks who really are part of the international child porn trade from those who aren't.
posted by Dilan at 3:27 PM

 
NO, GEORGE, TOM DASCHLE IS NOT TRENT LOTT:
George Will, who, because of his jobs at ABC and the Washington Post and his great writing on baseball, is overrated as a public intellectual, has made a typically over-the-top statement in criticizing Tom Daschle's position on the war. He writes that Daschle is wrong to blame W for screwing up the diplomatic situation and forcing a war (an opinion that Daschle is far from alone in expressing). Will thinks that is silly because the diplomatic problems were the fault of France and not the US. OK, fine, lots of people have said that. But check out Will's conclusion:

"As for Daschle, he has become the Democrats' Trent Lott, with two differences. Lott was embarrassing about 1948, not 2003. And his fellow Republicans were embarrassed."

In other words, Daschle is worse than Lott, because Lott's comments concerned an issue of long ago, while Daschle's concerned a current event, and Lott was criticized by members of his own party.

Sorry, George. Your attempt to compare Lott's comments that we would have been better off with Strom Thurmond's election in 1948 (and resulting legalized segregation) with Daschle's comments that the President has done a lousy job of bringing allies along to his foreign policy is a classic apples and oranges situation. Indeed, it goes beyond that-- it's apples and orangutans. Lott endorsed a policy that has been discredited for 35 years. (Further, Will's characterization of it as "about 1948" is disingenuous spin: Lott's statements offended people living now, including many blacks who suffered under the policies Thurmond advocated.) Daschle may or may not be right about W (I happen to think he is right), but his comments certainly do not endorse any sort of extremist ideology; indeed, people like Josh Marshall, Kenneth Pollack, and Tom Friedman and many others have been making the same argument.

The fact of the matter is, this episode tells you a lot about Will. Nobody who understood what was really at issue with the Lott comments would compare a rather mundane criticism of American foreign policy by an opposition party leader to Lott's statements, much less contend that the mundane foreign policy criticism was actually a worse offense than Lott's. Perhaps Will has seen his party flirt with so many segregationist politicians and policies over the years (e.g., Bob Jones University, Reagan in Philadelphia, Mississippi) that he doesn't really see what the fuss was about Lott. Or perhaps he is one of those who believes that any criticism of a President in wartime is treasonous, rather than the legitimate exercise of First Amendment freedoms. But he must be either underreacting to Lott's offense or overreacting to Daschle's alleged offense. There are ways you can tell a real public intellectual from an ordinary partisan. This is the sort of thing that exposes Will as the latter.
posted by Dilan at 6:35 PM

 
A CLEVER WAY TO STIFLE DISSENT:
Some hawks have been forthrightly (and falsely) labeling doves as anti-American or pro-Saddam. (See, for instance, the recent criticism of the French.) But other hawks have a more clever and subtle way of doing the same thing. Here's David Frum, criticizing conservatives who don't toe the pro-war line on Iraq:

"The antiwar conservatives aren't satisfied merely to question the wisdom of an Iraq war. Questions are perfectly reasonable, indeed valuable. There is more than one way to wage the war on terror, and thoughtful people will naturally disagree about how best to do it, whether to focus on terrorist organizations like al-Qaeda and Hezbollah or on states like Iraq and Iran; and if states, then which state first?

"But the antiwar conservatives have gone far, far beyond the advocacy of alternative strategies. They have made common cause with the left-wing and Islamist antiwar movements in this country and in Europe. They deny and excuse terror. They espouse a potentially self-fulfilling defeatism. They publicize wild conspiracy theories. And some of them explicitly yearn for the victory of their nation's enemies."

So, it's OK to criticize the method that Bush uses to make war, but if you criticize the war, you are making "common cause" with the "Islamists". It may surprise Frum and a lot of his ideological ilk, but many people don't agree with this war because they think it's bad for America, or bad for the world. These doves (and this probably describes the majority of doves in this country and in Europe) do not support radical Islamic fundamentalism, and do not intend to make common cause with the Islamists (many of whom themselves don't support Saddam Hussein's regime in the first place). Their criticism is just as valid and reasonable and "valuable" as the criticisms who those who support a war but believe that W has screwed it up royally.

In any event, in a democratic society, it is not the function of the governing party, or its supporters, to determine which speech is "valuable" and which speech isn't. It is enough that doves have their opinions and have the right to express them. If Frum thinks the doves are wrong on the merits (which he clearly does), he has the right to express that too. But it is an illegitimate debate tactic to imply that someone else's opinion is less "valuable" (rather than being less persuasive) than your own. In a pluralistic free society, all opinions have value.
posted by Dilan at 12:03 PM

 
CLAYTON CRAMER AND ORIGINALISM:
So many people characterize the debate about the proper role of judges as between those who believe in enforcing the Constitution as originally intended and enforcing a Constitution that "evolves" to fit present-day norms that it is sometimes easy to forget that this is, at the very least, a gross simplification of jurisprudential debates. (Justice Antonin Scalia, of course, is a prime offender at this-- he'd like to believe that he is doing nothing more than neutrally applying the principles laid down in 1787, and that all of his ideological opponents are guilty of inserting their personal values into the document, so he repeatedly gives speeches where he endorses this intellectual framework.)

Clayton Cramer of the Volokh Conspiracy is another offender. In this post, he argues that only the original intention of the Constitution matters, denying that consistently applying such a standard could ever lead to disagreeable decisions and citing with approval an 1897 case that he says endorsed the originalists' method of interpretation of the Constitution.

It is important to note that Cramer goes farther than Scalia and other originalists. Scalia is often up front about the fact that his view of the Constitution can produce disagreeable results. Indeed, he considers it a badge of honor that he is able to reach results he personally disagrees with because his view of the Constitution requires him to reach such results.

Cramer responds to the oft-made argument that an originalist interpretation of the Constitution would remove needed protections against sex discrimination by saying the following:

"The rights of women? The Framers didn't write very much into our Constitution about sex. There is nothing in the Constitution that requires women to have a second class citizenship. There are no Constitutional prohibitions on sexual equality in the workplace. If there were, it would require a Constitutional amendment to remove those prohibitions. But I repeat: the Constitution is astonishingly free of language that puts us in a position of having to choose between original intent and equality of the sexes."

That statement is simply flat wrong. While there is nothing in the Constitution that requires women to have second class citizenship, the effect of an originalist interpretation of the Constitution would be that the Equal Protection clause of the Fourteenth Amendment would be interpreted to apply only to race discrimination, and not sex discrimination. In other words, there would be no constitutional impediment, as there is now, to governmental discrimination against women. Original intent means no constitutional requirement of gender equality, period. So we do have to "choose".

Speaking of choice, there are other legal protections for women that are found by courts in the Due Process clauses of the Constitution, including the rights to use contraceptives and to have abortions. Those rights would also go away if an originalist interpretation were adopted (indeed, those decisions are Justice Scalia's main targets). So again, originalism equals less rights for women.

Moreover, the very 1897 case that Cramer quotes from, Robertson v. Baldwin, indicates exactly how originalism would lead to disagreeable results:

"The first 10 amendments to the constitution of the United States, commonly known as the “Bill of Rights,” were not intended to lay down any novel principles of government, but simply embodied certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. In incorporating these principles into the constitution, there was no intention of disregarding the exceptions, which have continued to be recognized as if formally expressed. Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons...."

Of course, in the 1960's the Warren Court held that many libels against public figures are protected by the First Amendment; I am not sure if laws against blasphemy still exist or have been struck down, but such laws would be clearly unconstitutional as both impediments to free speech and establishments of religion, and the Supreme Court has greatly contracted the scope of the obscenity exception to the First Amendment, a development one can observe by going to the adult section of one's local video store. Pure originalism of the sort that Cramer cites with approval from the 1897 case would invalidate all of these doctrines.

I don't know how Cramer feels about guns, but many on his side of the political spectrum (and a few on my side as well, myself included) believe in a more robust Second Amendment than has traditionally been enforced by the Courts and is referenced in the 1897 case Cramer quotes. So again, originalism can lead to disagreeable outcomes.

I might add that I also do not share Cramer's interpretation of the Robertson case. The Court is not saying that all Constitutional provisions are to be interpreted based on their understood meaning at the time they were adopted, but only that certain provisions of the Bill of Rights were codifications of common law rights with understood exceptions. Nothing in the quoted passage of Robertson indicates that original intent is the only proper means of interpreting the Constitution.

The truth is, originalism is one of many tools to interpret the Constitution. It is of limited utility, because original meaning is difficult to discern, and more importantly, because the nature of a Constitution is different from a statute or a contract. There is a strong argument that the Framers were setting down general principles, and intended that future generations apply those general principles in a manner that fit the times. Indeed, with respect to many issues, there is no framers' intent. The framers had no opinion as to what principles of free speech would govern a world-wide computer network, or whether the government would have to show probable cause before employing a wiretap. But there is a First Amendment which guarantees free speech and a Fourth Amendment that requires that searches and seizures be reasonable, and it is quite plausible that the Framers intended that we determine the legal rules that engender the best "fit" between those general legal principles and the specific problems of our times. For my money, that is the original intent of the Constitution.
posted by Dilan at 11:21 AM

 
THEY WOULD HAVE KILLED 30,000, OR 300,000, IF THEY COULD:
The usually perceptive Eugene Volokh falls for one of the dumbest arguments around here (scroll down):

Volokh conspiracy

Volokh quotes with approval Tony Blair saying the following:

"[W]hat was shocking about September 11 was not just the slaughter of the innocent; but the knowledge that had the terrorists been able to, there would have been not 3,000 innocent dead, but 30,000 or 300,000 and the more the suffering, the greater the terrorists' rejoicing."

Why is this such a dumb argument? Because it confuses intent with capacity. Suppose that John Doe, an otherwise mild-mannered (I love that term from the old comic books!) American, wishes to kill 300,000 people with a nuclear weapon. That intention alone does not make him dangerous, unless he has the capability of carrying out his intention.

Similarly, the fact that the terrorists (Al Qaeda, by the way, not Iraq) would have rejoiced if they could have killed 30,000 or 300,000 people does not magically convert the terrorists into a greater threat than they otherwise are. Here's a simple formula for the dangerousness of terrorists: terrorists are as dangerous as the lesser of their capacity to inflict injury, and their intention to do so. Thus, a person with the most murderous intentions imaginable is not dangerous if he or she lacks the means of carrying those intentions out, or is only somewhat dangerous if he or she is capable of killing a few people but is incapable of a mass killing. In contrast, a person with the capability of inflicting mass harm is not automatically dangerous if he or she has no intention of carrying such harm out.

Al Qaeda is a severe threat, though to the extent that the US' operations in Afghanistan and Pakistan are weakening the organization's capabilities, it is probably less of a threat than it was on September 12, 2001. Still, to rather inappropriately paraphrase Robert Browning, their reach exceeds their grasp, and it is their grasp that defines their dangerousness. The fact that they might rather prefer killing 300,000 Americans is not relevant unless it is demonstrated that they are capable of doing so.

The converse may be true with respect to Iraq. Iraq has some capability to inflict mass destruction (though their capabilities have been degraded by inspections, compelled destruction of weapons, and bombings over the 12 years during which conservatives have falsely charged that we have done nothing to hold Saddam Hussein in check). But the allegations of Iraq's involvement in anti-US terrorism (other than a targeted attack on the President that evicted them from Kuwait, which implies a revenge motive rather than a motive to commit mass murder) have been quite speculative. Certainly we have been able to manage much larger and more certain threats of terrorism from other countries in the region without having to wage preemptive war. Iraq's capability to inflict harm to Americans is only relevant to the extent it does not exceed its intention to do so.
posted by Dilan at 4:00 PM

 
JUST A LITTLE POST ABOUT ERZOZNIK V. CITY OF JACKSONVILLE
According to the Associated Press, Tennessee is considering banning the viewing of pornography in cars, if the images are visible from the outside. Here's the link to Howard Bashman's little note on the law, which also links to the story:

How Appealing

What neither Bashman nor the Associated Press mention is that this is probably unconstitutional. The same issue came up with drive-in movies, when Jacksonville had an ordinance in the 1970's which prohibited drive-ins from showing nude scenes that could be seen by passers-by on the street. The Supreme Court struck down the ordinance, applying the well-established First Amendment doctrine that passers-by who are offended by such things can avert their eyes:

Erznoznik v. City of Jacksonville

Considering that the glimpse of porn from an SUV stopped at a stoplight, through darkened glass and on a tiny screen, is going to be even more fleeting than what was seen on the screen in Erznoznik, I would think the Tennessee law is unconstitutional. (Yes, the Tennessee law might be narrower in applying to "hard-core" porn (though this is not clear from the story), but the holding in Erznoznik has more to do with the principle that expressive activity cannot be entirely suppressed because someone (even a child) might catch a fleeting glimpse of unwanted objectionable material. In any event, a case prior to Erznoznik, Cohen v. California, involved a jacket that was worn in the LA County Courthouse (where children could have been present) and which contained the words "Fuck the Draft". Cohen's conviction was reversed, implying again that it is the ability of the viewer to avert his or her eyes, and not the content of the speech, that is the basis of the First Amendment protection.)
posted by Dilan at 11:28 AM

 
THE ARAB-ISRAELI CONFLICT
I don't like to say much about Israel. Everything about that country and what it represents is conflicting to me. On the one hand, Israel has a lot to admire. It is a successful country in a region of failed states, a David who has successfully defended itself against Goliaths, and a democracy that is generally much more respectful of civil liberties than its dictatorial neighbors. Further, it represents the solution to a real problem-- Anti-Semitism still exists, and there is a need for a place where Jews can go to escape it. And it faces discriminatory obstacles that other states don't face, because of its Jewish identity. For instance, the U.N. is structured to prevent Israel from participating in many of its functions (because Arab and European states have conspired to prevent its "listing" in any of the regional sub-groups that form the structure of the UN).

But you know there is an "on the other hand" coming here. Israel is the one state in the world that officially endorses torture (although the US is unfortunately moving in that direction). Israel has become worse and worse at impinging on its subjects' freedom of religion, to satisfy an Orthodox constituency that, for the most part, refuses to serve in the army which protects them from certain annihilation, and which is generally a backward presence in a forward country (many are on welfare, don't work, or insist on studying Scripture at government expense; many insist on having many more children than the society can support on the small strip of land that is Israel; many refuse to enter the 21st Century on issues such as gender equality). And most importantly, Israel insists on occupying, but not annexing (and that distinction is important), the land of Arabs, and settling Jews in that land (a form of demographic manipulation that borders on ethnic cleansing) in order to fulfill a Biblical vision that Arabs do not, and should not be required to, subscribe to. This occupation denies the Arabs any right to choose those who govern them, while privileging the settlers with preferred access to scarce water, housing subsidies, and full political participation in Israel's affairs.

Also, I object to Israel's sanitizing of its history. For many years, the official position of Israel was essentially that Zionists came and settled an empty land between the sea and the Jordan River to escape persecution, and the world eventually came to recognize their state, first as part of the British Palestine Mandate, and then through the creation of the State of Israel in 1948. The Arabs then attacked the new state three times, and Israel successfully and valiantly defended itself. During the first of those three wars, many Arab residents of the new state fled rather than agreeing to live under Jewish rule, and those Arabs were then cynically placed in refugee camps by Arab states who used the existence of Israel to channel opposition away from their despotic governments.

There is, of course, a lot of truth to this narrative. But there is also a lot of it that isn't true. Israel's creation was an act of original sin-- irreversible, and at the same time making what occurred thereafter a foregone conclusion. While it was easy enough for the British to draw up maps dividing the area of Palestine between Arabs and Jews, what actually happened on the ground was that a lot of Jews moved into a land populated by Arabs, talking about how they were reclaiming land that they had been driven out of in centuries past. The Arabs, understandably resisted, and when a state was proclaimed, they went to war against that state, which they had no input in the creation of. I would suppose that the Arabs of pre-1948 Palestine viewed the Jewish settlers the same way that Native Americans viewed American frontiersmen and women who settled the West, claimed title to the land, and then sought statehood from the US government. In both cases, the interlopers came in and transferred sovereignty to themselves, thereby dispossessing the previous residents of control over their affairs.

Nothing, of course, can or should be done about 1948. (If colonial powers had it to do over again, they might have created Israel in a place that was less populated and had no religious meaning to Jews (as religion is what has inexorably led to Israel's provocative policies on settlement and Jerusalem), and would have compensated anyone who was living there at the time.) You can't unring that bell. But at the same time, Israelis and their supporters should not be entirely surprised that many Arabs do not concede the state's right to exist. The creation of Israel did constitute the dispossession of Arab land.

Why the history lesson? Because, today, as we are on the cusp of war with Iraq, Israel is a much-discussed topic. The Bush Administration has announced the outline of a peace proposal, at the urging of its allies. A Virginia congressman, Jim Moran, has placed his foot in his mouth by making the untrue charge that powerful Jews are driving the war effort in order to further interests of Israel-- a charge that is echoed by Pat Buchanan. And Moran's critics are accusing him of anti-Semitism.

I think it is wise to stay clear of charges about "powerful Jews". While some Jewish and pro-Israel groups (such as the American Israel Public Affairs Committee) are powerful in Washington, and there is statistical overrepresentation of Jews in certain professions (the film industry, lawyers, etc.), the fact of the matter is that people perk up their ears at generalizations about Jews for very good reason. It's very easy for people to slip from "some Jewish groups are very powerful" to "the Jews control the world"-- and the latter was the Nazis' libelous charge that riled up the German population towards supporting some of the worst acts in human history.

But it's also very easy to throw the anti-Semitism charge against legitimate criticism of Israel, and of American foreign policy towards the Middle East. For instance, as I note above, any dispassionate analysis of what occurred in 1948 can show that there is substantial merit to the contention that Arabs were unfairly dispossessed of their land by the creation of the state of Israel. Given that, how is arguing against the existence of Israel anti-Semitic? (What is anti-Semitic is when such arguments are coupled with other arguments or policies that treat Israel unfairly, e.g., false claims that the Jews were never in the Holy Land in ancient times, or the refusal to judge Israel by a standard that is applied consistently to Arab states, which are far more oppressive.) I don't make that argument; I believe that Israel's existence is an established fact in 2003 (and, on balance, a very good thing), and we have to proceed from that fact. But the counter-arguments are intellectually defenisible.

And I am very concerned that all this talk of powerful Jews and anti-Semitism is distracting attention from the most underreported stories of 2003: the extent to which the Christian Right, rather than American Jews, is pushing a radical policy that would deprive the Palestinians of statehood. Of course, such arguments are usually couched in terms of Israel's security, but there are many people who go farther. Many evangelical groups are supporting the settlers in the West Bank, and believe that the Jews must ultimately control the entire West Bank because: (1) they were promised such land by God in the Bible, and (2) such control is a precondition for the second coming of Jesus. Those evangelicals are influential in the White House. Further, two important Bush Administration aides, Undersecretary of Defense Douglas Feith and Richard Perle, Chairman of the Defense Policy Board, apparently support a biblical claim to Greater Israel and once advised former Israeli Prime Minister Benjamin Netanyahu that Israel should take over the entire West Bank.

So far, thankfully, President Bush has not retreated from his stated belief in a two-state solution to the Arab-Israeli conflict. But there are many supporters of Bush who believe in a one-state solution, driving (or "transferring", as it is spun by supporters of the policy) the Palestinians out of the West Bank. Further, these beliefs are particularly dangerous because they are based so obviously on religious claims to the Holy Land that Arabs have no obligation to accept. (I have even heard that some in the Administration actually believe that the ideal Middle East would have the Palestinians take over Jordan and the Hashemite kingdom in Jordan moved into Saudi Arabia!) The populations of Israel and the US do not have the right to impose their religious beliefs on the rest of the world merely because they have the military power to do it, and it would not be wise to do so. Someone needs to ask Perle and Feith point-blank about this issue. (Perle often gives media interviews, so he shouldn't be hard to get on the record on this.)

The point is, the debate shouldn't be about Jews or anti-Semitism. It should be about whether there is a way to provide the Palestinians with a viable state in the West Bank while guaranteeing Israeli security. And those who would stand in the way of such a policy need to be called out into public.
posted by Dilan at 11:07 AM

 
EVE TUSHNET ON TORTURE:
I'd been meaning to blog something on the sudden desire of many Americans, American commentators, and American governmental officials to endorse torture in the wake of 9/11. This is of particular interest to me, because I have litigated torture cases and the universal legal principle condemning torture is very important to me. But Eve Tushnet beat me to it, and posted some of the most articulate arguments on the subject I have ever read, so I will just refer you to her:

Click here

The only thing I would add to Ms. Tushnet's excellent analysis is that there are also strong and important international law rationales for the prohibition on torture, rationales that the US has acceded to when it ratified the Convention Against Torture with bipartisan support, and when former President Bush signed the Torture Victim Protection Act, 28 U.S.C. § 1350 note. It has been fashionable to decry international law of late, but I can tell you that I have personally witnessed how these laws, especially when used in conjunction with the work of Amnesty International and even the US State Department in calling attention to countries that torture, have had a substantial impact. Before 9/11, only Israel officially dissented from the international consensus on torture, and they were roundly condemned for it. It would be a day of celebration for torturers in places like Beijing, Havana, Rangoon, and Riyadh if the United States decided to add its voice in dissent.
posted by Dilan at 11:46 AM

 
CAN WE RETIRE THE TERM "FIANCEE"?
I am not one to say that certain words are taboo. I certainly have no problem with profanity (though I really don't use it all that much myself), and I am generally a civil libertarian who harbors some suspicions about such things as trademark and copyright laws, because they have the effect of withdrawing words and phrases from the language. But there is one word I cannot stand. That word is "fiancee". Every time I see it used, I hit the roof.

Why? For several reasons. First, and probably most importantly, the word is used almost exclusively by women to describe their boyfriends. I do not believe that I have ever heard a male call his girlfriend his "fiancee". This despite the fact that the word itself comes from French and is feminine, i.e., it actually means a woman engaged to be married. I am not a prescriptivist with respect to language usage, so it really doesn't bother me when the meaning of the word has changed; rather, what I am getting to is that the modern usage of "fiancee" has more to do with gender and sexual politics than it does with historical usage.

And the gender politics are fairly obvious. In its current usage, a fiancee is someone engaged to be married. The fact that two people are engaged, of course, is really not a relevant identificatory characteristic; engaged couples are not afforded any different benefits or social standing than any other unmarried couples. Further, the concept of "engagement" itself has stretched. Many people call themselves "engaged" nowadays even though no wedding date has been set; indeed, some people accept a proposal, call themselves engaged, and then wait years to be married. So why do women (and almost exclusively women) rush to use the term "fiancee"? I would surmise that this is a vestige of outdated sexual morality. Women (and exclusively women) were expected in the past to remain virgins until they were married. Women who engaged in premarital sex were considered unchaste whores. Thankfully, these moral beliefs have gone by the wayside. But the term "financee" represents such beliefs sneaking back into the discourse. Why is it so important to a woman to announce that she intends to marry her male companion, even if no date has been set and there is a more than trivial likelihood that the marriage may not ever occur? There's only one answer; because it represents a moral rationalization. "Oh, that's OK, I can have sex with him because we are going to get married." It is pure 1950's morality, of the half-assed kind that was used to justify backseat assignations at the drive-in movie.

I don't particularly care whether people intend to get married. (Really, I don't even care whether they are married.) There's no reason for the use of the term, and I don't have a higher moral opinion of someone who is sleeping with a person she calls her "financee" over somone who is sleeping with her "boyfriend", or even someone having (horror of horrors) "casual sex". Indeed, my moral preferences probably favor the latter two groups, because they are being more honest about what they are doing. So there's no reason to tell me that this person who you are sleeping with is your "fiancee".

Further, when used where the couple hasn't set a date, the term has lost all meaning. The number of people who have said at one time or another that they planned to marry someone exceeds the number of people who actually got married by a large factor. If all those people were to call their significant others "fiancees", the term no longer refers to someone who is actually marrying, but rather just means a very committed boyfriend. And there's no reason to use a separate term for that; it is possible to be just as committed to someone without pretending that you are going to get married and you just haven't set the date or reserved the chapel or hired the caterer or engaged the minister or sent out the invitations or purchased the ring or taken any other concrete steps towards an actual marriage.

So let's just get rid of "fiancee" altogether, or, if we must use the word, reserve it for couples who are actually actively preparing their wedding for a set date in the very near future (maybe 2 months would be a good cut-off). And let's all be honest with ourselves: the 50's are over, and there's no reason why a woman in 2003 has to manufacture any pretenses as to why she is sleeping with a guy she is not married to. It feels good to do it, and that's sufficient.
posted by Dilan at 11:39 AM

 
LINKS!
I finally figured out how to do them. Check out the left side of the page.
posted by Dilan at 5:54 PM

 
OLDER ARCHIVES:
Once again, our older archives are not available through the menu on the left. Use these links instead:

September 2002: http://dilan.blogspot.com/2002_09_01_dilan_archive.html
August 2002: http://dilan.blogspot.com/2002_08_01_dilan_archive.html
July 2002: http://dilan.blogspot.com/2002_07_01_dilan_archive.html
June 2002: http://dilan.blogspot.com/2002_06_01_dilan_archive.html

posted by Dilan at 4:22 PM

 
THE IMMORALITY OF SOCIAL CONSERVATIVISM:
Even though they are often the subject of scorn in the media (and they always remind us of that fact), I would argue that the religious right actually gets a free pass in this country. What I mean by this is that while their politics are often criticized for being outside the mainstream, their moral values are almost never questioned. Almost everyone seems to presume that the adherence to strong, conservative moral principles is admirable. A couple of recent stories in the media have shed a nice light on how this isn't really so.

The first involves a 9 year old Nicaraguan girl who was raped and became pregnant, and sought an abortion. The link to the story is here:

http://www.sacbee.com/24hour/world/story/790317p-5651234c.html

The Health Minister of Nicaragua threatened criminal prosecution if the abortion went forward. The Roman Catholic Church attempted to persuade the little girl to carry the baby to term and give the child up for adoption.

I know it isn't fashionable, even among pro-choicers, to say that one is "pro-abortion", but no matter what the spin doctors say, part of being pro-choice is the recognition that abortion is the correct choice in certain circumstances. And this is one of them. Anyone who threatens to prosecute a 9 year old girl who terminates a pregnancy, or her doctor, or her parents, is committing an act of immorality many magnitudes higher than a therapeutic abortion, even if you believe that abortion is morally troublesome. It goes without saying that not only is a 9 year old in no condition to care for a child once born, but a 9 year old body is not fit for pregnancy. It would disrupt her life, imprisoning her for the term of the pregnancy, making going to school difficult, exposing her to taunts from her peers, etc. And it might even kill her. Plus, no 9 year old is ready for the emotional trauma of carrying a constant reminder of her rape in her body for the term of the gestation period. What are these people thinking?

I know, I know, "life begins at conception", it's murder, it's not the baby's fault that the conception was the result of a rape, etc. But even if you believe all of that (and of course, the truth is that early-term abortions are not particularly morally troublesome, because they snuff out life before it takes on human characteristics such as the sensation of pain, and the development of a brain and nervous system), the establishment of a principle that is never to be deviated from is not moral reasoning. It is rather deliberate blindness to the actual facts that govern specific situations. Even premeditated homicide can be justified in narrow situations. And it seems too easy for people who don't have to carry a child to term at age 9 to sentence someone else to do so.

Our second example of moralistic immorality from the right wing is contained in this item:

http://www.nationalreview.com/thecorner/03_03_02_corner-archive.asp#004615

It seems advice columnist Dear Abby received a letter that described a disabled male, about 40 years of age, who asked a friend of his to procure a prostitute for him, so that the disabled guy could lose his viriginity. (The prostitute donated her services; this fact isn't very important to the moral issue, although it does mean that what was done was at least legal.) The bedridden man lives with his very religious parents, who hit the roof when they heard about this and now forbid the man from seeing his friend.

Dear Abby and her readers have reacted in a very compassionate manner. They are outraged at the proper parties, the parents, who are imposing their own morality on a 40 year old man, and are improperly leveraging the fact that they are his caretakers so as to conform his sex life to their moral standards. But to Rod Dreher of the National Review, that makes Dear Abby a "moral idiot". If there is idiocy here, Abigail Van Buren (who has such a longstanding record of giving out sound advice that even if an insignificant provocateur like Dreher, who has never been an advice columnist, disagrees with her about something, he has no business using such insulting and juvenile language to describe her) is not from whom it emanates.

Again, let's assume for purposes of argument that prostitution is morally wrong. (I am conflicted on this issue, and will write about it in detail at a future time. But I have no problem indulging the assumption.) Heck, we can even assume for purposes of this argument that sex with someone you aren't married to is morally wrong. (If Dreher is like almost all other American adult males, of course, he's probably engaged in it. But again, we are assuming these things arguendo.) The fact of the matter is, again, this is the beginning of the inquiry, not the end. For moral principles have exceptions to them. Guys like this rarely find spouses. He is 40 years old, no spring chicken. He is bedridden and requires a full-time caretaker. Since his parents have assumed that role, I will go out on a limb and say he isn't very rich. He was a virgin at 40, which is an indicator itself that meeting girls is going to be difficult. Anyone with actual moral scrupules would say that his friend performed a profoundly moral act, providing his friend with some sexual satisfaction that he was never going to experience otherwise. This is clearly an exception to any conception of sexual morality that would hold these acts to generally be wrongful.

The point is, these are the sorts of questions that the Pat Robertsons and John Ashcrofts of this world should be forced to face. Because the truth is, they elevate their "moral" principles to the level of inflexible dogma, and do not care whether immoral results are reached in particular circumstances. If you believe in forcing 9 year olds to have children, and precluding bedridden men from having sex with a willing partner, your ethical compass needs serious adjustment. And it will only be forcing these harmful beliefs into the open that we can ever hope to stem the damage that they do.
posted by Dilan at 4:09 PM

 
WHAT DOES IT MEAN TO SAY THE NINTH CIRCUIT WAS "WRONG" IN THE PLEDGE CASE?

I can't think of a single Court of Appeals decision in recent years that has generated as much discussion as the Ninth Circuit Court of Appeals' decision to prohibit the practice of saying the Pledge of Allegiance in public schools. The legal issue the case turns on is whether or not the use of the words "under God" in the Pledge is an unconstitutional governmental endorsement of religious belief, or whether it falls within a judicially-created exception to First Amendment Establishment Clause ("Congress shall make no law respecting an establishment of religion") doctrine that permits "ceremonial" governmental invocations of God, such as the use of "In God We Trust" on coins or the commencement of legislative sessions with a prayer. There has been much discussion of these issues, both when the original 3-judge panel opinion came down and now that the Court has denied a petition for further review by an 11-judge panel, setting the stage for petitions to the U.S. Supreme Court.

But what troubles me is that for many who argue that the Ninth Circuit was "wrong", the issue isn't that the Court did not follow statements made by the Supreme Court that the Pledge is Constitutional (the basis of Judge Ferdinand Fernandez's dissent from the original panel opinion), but that the decision "takes God out of the classroom", or "fails to recognize that America is a Christian nation", or some similar contention. This is usually backed up by some argument about how the First Amendment was never intended to create a "wall of separation" between church and state, as Thomas Jefferson once said it created, or how the framers of the Constitution all believed in God, or how the First Amendment was only intended to prohibit the formation of an official church, etc.

These arguments have been around awhile, and suffice to say, they are based on, at best, an incomplete understanding of history. (For instance, the understanding of a separation of church and state is taken not just from Jefferson's letter, but also from the Virginia Statute on Religious Freedom, which was the model for the First Amendment. The framers may have been religious, but they were mostly Deists, whose beliefs were quite a bit different than modern evangelical or mainstream Protestantism. While it was true that the Establishment Clause was originally thought to reach the issue of establishment of an official national church a la the Church of England, and the framers tolerated state establishments of religion, it is well accepted, by both liberals and conservatives, that the Fourteenth Amendment extended many of the protections of the Bill of Rights against state as well as federal actions; in the case of the Establishment Clause, this expanded the coverage of the clause beyond the framers' understanding. Also, the Establishment Clause has to be read in tandem with the Free Exercise Clause ("or abridging the free exercise thereof"), which certainly implies a scheme through which the government may neither advance nor inhibit religious belief.)

But whatever one thinks about the merits of such arguments, they in no way make the Ninth Circuit's decision "wrong", and the people who make them are more interested in bloviating about the supposed societal decline occasioned by the expansion of the reach of the Establishment Clause, and the purported failings of liberal jurists, then they are in constructively analyzing the merits of the decision. The Supreme Court, over Justice Scalia's vociferous objections, has rejected the conservative arguments that the Establishment Clause permits the government to endorse theism over atheism and Christianity over other faiths. That is settled law, at least from the Ninth Circuit's perspective. (Nor is it going to change at the Supreme Court level, actually.) The Ninth Circuit's decision is not "wrong" unless it is inconsistent with Supreme Court caselaw, or an incorrect interpretation of the high court's precedents. The Supreme Court has never held squarely that the Pledge is constitutional. However, they have noted several times that it might be. Such notations are called "obiter dicta", and are supposed to be highly persuasive, though not controlling, to a lower court. So the Ninth Circuit had to have a good reason to decline to follow them. The Court felt it had one, both because of the admitted theistic purpose of those who added "under God" to the pledge (it was added in 1954 to contrast us with the Godless Communists), and because the Supreme Court has made it quite clear that government is to be neutral, not only among faiths, but between religion and nonreligion. "Under God" is not neutral. I find the Ninth Circuit's analysis highly plausible; it is certainly not an unreasonable resolution of a conflict between what the Supreme Court has said in its dicta and what it has said in its holdings.

It is very likely that the Supreme Court will reverse the Ninth Circuit and make clear how important it is that lower courts follow its obiter dicta. I guess at that point, one might say that the Ninth Circuit was "wrong". But the criticism that the Ninth Circuit was "wrong" because it didn't endorse the right-wing view of the correct interpretation of the Establishment Clause is meritless demagoguery. The separation of church and state, at least in the sense of requiring government neutrality between religious and secular institutions, is settled law. And I, for one, am sick of hearing selective arguments about how that separation doesn't exist. It has no relevance to the question of whether the Ninth Circuit rightly decided the Pledge case.
posted by Dilan at 12:55 PM