A.M. v. Taconic Hills: Benedictions at Graduation

(By Andrew MacKie-Mason)

I came across an appellate brief in an interesting case recently: A.M. v. Taconic Hills Central School District, 2012 WL 1305401. At issue is a speech that an eighth grade student planned to give at her graduation, which she wanted to conclude with the following benediction from the Old Testament:

I say to you, may the LORD bless you and keep you; make His face shine upon you and be gracious to you; lift up His countenance upon you, and give you peace.

The school district required her to remove the line, and her parents sued. I'll leave discussions about what Establishment Clause precedent says for others to address, and instead speak to what I think the proper result here would be.

It's undeniable that a graduation speech could be too strongly religious, in a way that would be an illegal governmental establishment of religion. Graduation speakers are given an endorsement by the school in virtue of a captive audience and an exclusive podium, even if the school disavows their message.

But if the quote above is all that the girl wanted to say, I don't see how it could be construed as an establishment. Beyond being monotheistic, it is a rather generic blessing. It is equitable and given freely to all (it does not, for instance, say: "may the LORD bless and keep the Christians"). And it is the kind of thing which only the very thin-skinned could take offense at.

The appellate brief is exactly right when it compares this case to politicians saying "God bless you, and God bless America." Unlike the identification of our nation as one "under God" in the Pledge of Allegiance or the declaration of a national trust in God on our currency, benedictions (well-wishing) ought not be banned by secularists of good will.

Michigan Teacher Fired For Encouraging Students To Follow The Rules

(By Andrew MacKie-Mason)

Brooke Harris, a teacher at the Pontiac Academy for Excellence Middle School in Michigan, was apparently fired for encouraging students to ask the superintendent for permission to wear hoodies (instead of school uniforms) for a day in honor of Trayvon Martin. According to CBS:

According to the rights group [the Southern Poverty Law Center], Harris was asked by her eighth-grade journalism students about the death of Martin. Harris gave the students an editorial-writing assignment on the shooting. The students wanted to help Martin's family and asked the school's administrators if they could pay $1 each to wear hoodies instead of school uniform for a day, the group said. 

Superintendent Jacqueline Cassell rejected the request and she suspended Harris for encouraging the students to make their request in person, the group said. 

Cassell told the Associated Press that she doesn't oppose activism but that the effort would have distracted students from their studies. 

The newspaper also says Cassell explained that workplaces have rules, and "when rules are violated, there are consequences."

In other words, the teacher was fired for encouraging students to follow the rules by asking the administration for permission to hold their (remarkably innocuous) fundraiser and awareness event.

It sounds crazy, but I'm inclined to believe it based on my own experiences with school administrators. Individuals in that position often approach their jobs with a despotic mindset: any dissent (even something as mild as asking permission to ignore the school uniform for a day) is a sign of "disrespect", and any teacher than encourages that "disrespectful" behavior is a traitor to the administration.

Anyways, you can sign a letter calling for her reinstatement here.

Stripping For Freedom

(By Andrew MacKie-Mason)

John Brennan stripped naked at an airport in Oregon to protest TSA's invasive and unconstitutional searches. He's undoubtedly a patriot, but there are some interesting legal angles to this.

He's apparently been arrested and charged with "disorderly conduct and indecent exposure." As Mark Bennett points out, the government has no chance of proving the indecent exposure charge: mere exposure of the genitals without "the intent of arousing the sexual desire of the person or another person" isn't indecent exposure in Oregon.

However, it looks like they'll be able to get him for disorderly conduct in the second degree (a Class B misdemeanor), under ORS 166.025(1)(g), which reads:

A person commits the crime of disorderly conduct in the second degree if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person...Creates a hazardous or physically offensive condition by any act which the person is not licensed or privileged to do.

It's also worth noting that the actual reaction of the people present is irrelevant: what matters is the risk of disruption, not disruption that did or did not occur:

The text of the statute does not, by its terms, require proof of actual public inconvenience, annoyance or alarm to any particular number of persons. It requires proof that defendants either intended to cause one of those conditions or recklessly created a risk of inconvenience, annoyance or alarm to the public, and it requires proof that defendants made unreasonable noise. Nothing in the language of the statute lends support to defendants' contention that there must be proof **741 that defendants actually caused public inconvenience, annoyance or alarm. 

State v. Willy, 155 Or. App. 279, 283, 963 P.2d 739, 740-41 (1998)

If Brennan stands a chance of getting out of this, it'll probably be by appeal to the First Amendment: nudity is, after all, a constitutionally protected form of protest. That doesn't mean he'll get out of the charges (I actually suspect he won't) but it's probably his best shot. 

Deception in Advertising: American Energy Alliance

(By Andrew MacKie-Mason)

I've heard a new ad a few times today, put out by the "American Energy Alliance," that attacks President Obama's energy policies and suggests that the President's "all of the above energy plan" is just a lie he's telling to the voters. (If you care to, you can download the ad here.)

I get suspicious, though, when I hear political ads put out by groups with names like "American Energy Alliance," since the name tells you nothing about who the group actually is. Of course, their website is no more help: they claim to be "a not-for-profit organization that engages in grassroots public policy advocacy and debate concerning energy and environmental policies." And their "Funding" page reads, in full:

The American Energy Alliance is a 501c(4) not-for-profit organization and is funded by contributions from individuals, foundations, and corporations. No financial support is sought for or accepted from government sources. Contributions to AEA are not deductible for income tax purposes.

What corporations? No details there (though it's almost certainly oil companies) because as SourceWatch confirms: "Since 2008, AEA has been established as a 501c4 non profit group, whose focus is lobbying, but it does not disclose who its funders are." SourceWatch does inform us, though, that the organization which the AEA identifies as their parent (the IER - "Institute for Energy Research") was funded (at least up until 2007) significantly by ExxonMobil, and has also received funding from groups associated with energy and construction company Brown & Root (a former Halliburton subsidiary) and with Koch Industries.

One might expect a group attacking the President for allegedly deceitful campaign promises to be open about where their funding and influence comes from. Then again, we might not expect that. This is American politics, after all.

The Obama/Hitler Crap Is Back...

(By Andrew MacKie-Mason)

...or maybe it never left. Reason and decorum go out the window in an election year, I guess.

For those who are even slightly influenced by the photo, I should note that the only two things for which citations were provided (on the Facebook post I got this from) are blatant misrepresentations.

For "outlaw protesting" he pointed to the Federal Restricted Buildings and Grounds Improvement Act of 2011. Here's where I posted a link to Eugene Volokh (a hard-line libertarian) smacking down Andrew Napolitano for similar, egregiously hyperbolic claims about that law (which, in main part, was put in place under President Bush).

For "annex all natural resources" he pointed to the National Defense Resources Preparedness Executive Order. Here's a similar smack down of that claim by similarly libertarian Jonathan Adler, citing a more detailed dissection of the claim by conservative Ed Morrissey.

Don't buy into this, people.

UPDATE (4/18): This isn't limited to mindless Facebook graphics, apparently. Props to Susan Stabile at Mirror of Justice for calling out a Catholic Bishop for making a similar comparison.

Mitt Romney Says Parenting Isn't Work

(By Andrew MacKie-Mason)

You read the title correctly. In the recent flare-up where Hillary Rosen criticized Mrs. Romney for being out-of-touch with the plight of working mothers due to her extreme wealth, many (including Mitt's campaign) manufactured a controversy around Rosen's supposed attack on working mothers. (The words she used were that Mrs. Romney had "never worked a day in her life.")

But now it turns out that, unlike Rosen, Mitt actually made that exact claim: that being a stay-at-home parent isn't work, and gives individuals less "dignity" (his word) then putting their kids in childcare and going back to work. And this isn't even old, pre-flip-flop Romney. It's this-January Mitt Romney. Here's the video of him bragging about forcing poor women out of the home into real, "dignified" work:



This gets perfectly at two of the things I can't stand about Mitt Romney: his patronizing attitude to everyone who didn't get as lucky in life as he did, and his complete and total hypocrisy and lack of real convictions.

Ladies and gentlemen, your Republican nominee for President of the United States.

Distribution of Frozen Embryos in Divorce

(By Andrew MacKie-Mason)

Eugene Volokh highlights a case with an interesting question: a couple had their fertilized pre-embryos* frozen after the wife was diagnosed with breast cancer, in order to preserve their ability to have children after the wife underwent chemical treatments for the cancer.

They later divorced, and one issue in the divorce was who would maintain control of the frozen pre-embryos. The court, appropriately I think, ruled that,

because Husband and Wife never made an agreement prior to undergoing IVF, and these pre-embryos are likely Wife’s only opportunity to achieve biological parenthood and her best chance to achieve parenthood at all, we agree with the trial court that the balancing of the interests tips in Wife’s favor.

 This, on the whole, seems right: the procedure was specifically intended to preserve the wife's ability to procreate, since it was her reproductive system that was at risk. Given that, and the husband's continued ability to have children, it makes more sense to leave the embryos under the wife's control.

But what makes it more interesting is that the husband wasn't really asserting a right to the products of his own reproduction: he was asserting a right not to reproduce. According to Volokh:

The appellate court also stressed that the ex-wife had promised not to seek child support from the ex-husband, and to otherwise structure the divorce settlement in a way that minimizes the risk that the ex-husband will be held liable for child support.

First of all, I'm not sympathetic to the ridiculous-but-not-rare argument that if abortion is permitted, fathers should be able to insist that mothers either have an abortion or absolve them from child support responsibilities. The right to abortion arises from a right to control of one's body (it is, in other words, a right of removal, not a right to kill), and the monetary responsibility of child support is qualitatively different from the physical slavery of an unwanted pregnancy.

But the intriguing difference here is that a pregnancy has not yet begun. There's a conscious choice that the mother has to take to begin it, and it's not at all clear why that choice should then bind the biological father. All of which is to say that I think the outcome here is basically right: the mother may use the embryos for their original purpose (enabling her to remain reproductively viable), but may not hold the father financially responsible for that unilateral choice.

"Legal System Did Nothing Wrong" In Conviction of Innocent Man

(By Andrew MacKie-Mason)

The case is tragic: an 11 year old child of divorce, mad at her father and wanting him gone from her life, falsely accused him of rape. He languished in prison for ten years until his daughter finally admitted what she had done, and he was released.

Conviction of the innocent happens. But when it is born of lies, rather than honest mistakes, it deserves our special attention, even if victims' advocates claim false accusations rarely happen.

It's hard to blame the girl here: she was young, distraught, and didn't fully understand what was happening. That's not to fully absolve her, of course: she did something wrong, and at the time she must have had at least some sense that it was wrong. But we cannot lay the errors of a broken system at her feet.

The most worrying thing is the prosecutor's statement:

She [Cowlitz County Prosecutor Sue Baur] told the newspaper she continues to rethink every detail of the Longview case and recently listened to a tape of the child's testimony, yet doesn't see that the legal system did anything wrong.

The legal system did something wrong. It did something terribly wrong. It convicted an innocent man, and locked him away in a tiny cage for ten years.

The legal system does things wrong every day: it sentences people to excessive terms in prison; it pursues "remedies" that accomplish nothing, or exacerbate the very problems they're intended to solve; and it perpetuates social inequalities in its imperfect search for justice.

But the imprisonment of an innocent man is the second most heinous thing the legal system can do, only slightly behind execution of the innocent.

For the prosecutor to say that there were no mistakes in this case would be laughable if it weren't so scary. It's a complete abdication of responsibility by an official whom we trust with extreme power precisely because we demand that she handle it responsibly.

It's not clear how the system can be fixed to reduce the risk of grave injustices such as this one. But one thing is clear: the first step must involve an acknowledgment by those who control the system that something went wrong.

Ann Romney's Privileged Unawareness

(By Andrew MacKie-Mason)

This New York Times article has a good summary of the firestorm that was set off recently by Democratic strategist Hillary Rosen suggesting that Ann Romney, Mitt's wife, couldn't relate to many American mothers because she'd "never worked a day in her life."

There's no doubt that Rosen's words were ill-chosen. Raising a family is certainly hard work. But at the same time, Mrs. Romney's response underscores exactly the out-of-touch attitude that Rosen was getting at. Mrs Romney said Ms. Rosen, "should have come to my house when those five boys were causing so much truble. It wasn't so easy...My career choice was to be a mother."

And while no one is denying that being a mother is hard work, the point is about women who aren't a part of obscenely wealthy families: women who are trying to raise those same five boys, but without the luxury of being able to take off work, and without being able to afford to send those children to a variety of private lessons, extracurricular activities, or simply leave them at home with a nanny. It's about women who choose to be mothers, but for whom being a good mother includes working two jobs so that their kids can eat and have a roof over their heads. It's about the vast number of women who can't make the choice between a career and a family, because they don't have the hundreds of millions of dollars that act as the Romney family's personal safety net.

So, Mrs. Romney, get over yourself. You may not have had it easy, but at least have the decency to admit that many people have it much, much worse.

UPDATE: Rick Garnett at Mirror of Justice correctly denounces the Catholic League for firing back at Hillary Rosen for being a lesbian who "had to adopt" children instead of "raising her own." But as might be expected, he felt the need to throw in this line: "The nastiness and stupidity of Rosen's revealing comments were clear enough to most people without the CL's help."

Rosen's original words were poorly chosen. But they weren't nasty or stupid. As a longer transcript makes clear, Rosen wasn't attacking Mrs. Romney for being a stay-at-home mom, she was mocking the suggestion that a woman of privilege understands the economic concerns of mothers who lack her incredible financial security (in response to what she characterized, at least, as an appeal by Mitt to his wife's authority based solely on her "womanness").

What you have is Mitt Romney running around the country saying, well, you know, my wife tells me that what women really care about are economic issues. And when I listen to my wife, that’s what I’m hearing. 

Guess what, his wife has actually never worked a day in her life. She’s never really dealt with the kinds of economic issues that a majority of the women in this country are facing in terms of how do we feed our kids, how do we send them to school and how do we — why do we worry about their future?

Kaczor on Abortion: Personhood and Human Beings

(By Andrew MacKie-Mason)

It's been a while since I've posted a critique of The Ethics of Abortion, but I've returned to the book and so I'll probably do a few more of these as I read the rest of it. You can find the first post here and the second here. Here's the introduction I posted with the original two reviews:

I'm in the process of reading The Ethics of Abortion: Women's Rights, Human Life, and the Question of Justice by Christopher Kaczor (Philosophy, Loyola Marymount). I picked up the book off a recommendation at Mirror of Justice, and so far I've been enjoying the experience.

I'm trying to approach Kaczor's arguments with an open mind. At the same time, it's a dense book, and doing it justice as a critical reader requires responding to problems as they arise. (And, unfortunately, problems seem to be arising often.)

For that reason, I'll be posting my thoughts on the book as I read it, rather than trying to do an overall review when I finish. Before each critique I'll note how far I've currently read in the book, in case there's material beyond that point relevant to what I'm talking about.

Unless otherwise noted, all citations are to Kaczor, Christopher. The Ethics of Abortion. Routledge: New York. 2011.

------- (Review written 4/8/12, currently at page 121) -------

In Section 5.3 (pp. 105 - 120), Kaczor presents what he calls the "Constitutive Property Argument." It's an attempt to argue that personhood begins at conception, and as Kaczor breaks it down it follows this structure:

P1: If an individual being has a constitutive property at one point in time, then it has that property at every point in its existence.
P2: You are the same individual living being or organization as the fetus from which you developed.
P3: You are a human person constitutively.
C: The zygote from which you developed was a human person.

P1 is simply a definition of "constitutive property," but it's important to make one small refinement to the way Kaczor words it. It is important that the property be constitutive of the being as the kind of being that is being considered across time. To clarify (with an altered example from Kaczor): say we have a triangle that is also an equilateral triangle. As a triangle, it constitutively has three sides (that is, in other words, what it means to be a triangle). As an equilateral triangle, it constitutively is a triangle (duh) and it constitutively has the property that its three sides have equal length. But if we now consider this figure as persisting through a notion of time, then it has the constitutive properties of an equilateral triangle only so long as it remains an equilateral triangle. If it ceases to be an equilateral triangle and becomes simply a triangle, then even if we can in some sense say it is the "same thing," it no longer has the constitutive properties that it had by virtue of being an equilateral triangle. It may seem like a pedantic point, but it's important in understanding the moves that Kaczor is making.

To argue for P2, Kaczor primarily takes on a view of identity that limits it to certain psychological traits, be they memory, personality, or what have you. Though Kaczor doesn't address him directly, it's a view propounded by Locke in "An Essay on Human Understanding."

The basic idea is that we can think of ourselves in many ways. We are alive: in other words, we are an organization imposed on (ever-changing collections of) matter towards certain ends. But we are also persons: we are conscious of our "self" and we are conscious of its extension in time (we have consciousness of previous existence and expectation of future existence, and both we view as the "self"). According to this view (or perhaps a refinement of it, depending on your reading of Locke), while we retain the same identity as living animals simply by virtue of there being a continuous organization of changes in matter, we retain the same identity as persons by virtue of consciousness. This need not be the mere "we are what we remember and we are our personality" view that Kaczor attacks: rather, we as "self" exist (and only the present does exist) as consciousness of our present as well as of past and future.

In opposition to this view, Kaczor presents several problems that are not really problems. I'll address a few of them here:

• The pre-consciousness problem: "For instance, no man could say, 'I was circumcized,' unless his circumcision took place after he began to remember. 'When were you born?' asks the shopkeeper checking the age of someone wanting to buy alcohol. 'Well, actually, I wasn't born. In fact, you were not born either. Indeed, I don't know a single person who was born'" (109).

In other words, how can we identify take ownership of things which occurred before we were conscious? Easily. The only problem here is a confusion of the two senses in which we think of ourselves. We are animals in addition to being people. When someone says, "I was circumcized," they are not making an appeal to something they consciously experienced. They are simply making a claim about something that occurred to them as an organism, in the same way that we could say of a dog, "That dog was circumcized" (although then we might wonder what was going on in its owners heads.) In neither case does the claim rely on our notion of the self qua person.

In fact, a modified version of the pre-consciousness 'problem' helps shore up the consciousness view of personhood. If someone says to me, "You cried a lot as a baby, and kept your parents awake," I might be interested. I might wonder what that reveals about my psychology, and if there's any carry over from that into who I am now. But I would not, in any meaningful sense, have a sense of responsibility as being "the one" who did that. "That wasn't me," I can protest; not merely because I don't have a memory of doing that, but because I do not have any conscious sense whatsoever of that child's actions as mine, no matter how many times they're described that way.

• The circularity problem: "Is Katie the same person as Gracie? Well, if Katie and Gracie have the same memories, according to the psychological theory of identity the answer will be 'yes.' But of course some people have false memories, so Katie might believe she remembers doing what Gracie did but she might be mistaken...How then do we distinguish false memories from true memories?" (109).

The suggestion is that we can do so only by having a conception of what "really" happened to Katie, which requires already having a sense of who Katie really is.

Here I must admit a sharp metaphysical divide with Kaczor: he seems to assume that all of time coexists, such that it makes sense to speak of "false memories;" he talks as though the extension of Katie's self through time is one in which there is no conception of current, past, or future: as though we can step out of time and consider the totality over her identity at once.

But, I would submit, that's not a sound way to think of things. Katie's self extends forwards and backwards in time, but it exists at a single moment. Memories, as they deal with the past, cannot be true or false in the logical or empirical senses we tend to use those words. Instead, they are consistent or not consistent, and impact our consciousness in different ways accordingly.

In other words, a consciousness view of identity does not lead us to conclude that Katie and Gracie are the same person just because they can recount the same factual memories, even if they do so down to the exact detail. And to see why, we simply imagine we are Katie: she sees Gracie, a distinct object. To the extent that she attributes personhood to Gracie, she has no choice but to see her as a distinct person in the present, and hence distinct in toto.

Most of the other "problems" that Kaczor presents meet similar fates. But I'm not really interested here in providing a full-throated defense of a consciousness-based understanding of identity. The point I want to make is that it is possible to coherently think of personhood as animalness (as a different kind of thing, even) without falling prey to absurdity. One of the strongest arguments that Kaczor presents against this is the following:

If the account of identity offered by Singer, Dworkin, and McMahan were true, in assaulting a person's body through rape, torture, or mutilation, the attacker does not directly harm a person (which is merely the ghost in the machine so to speak), but directly harms what might be considered the person's property or the human organism he or she occupies. Rape, torture, and mutilation only indirectly harm persons by interfering with the plans and goals of the conscious mind. However, if you chop off my arm, isn't it accurate to say you have harmed me, not simply something I own and make use of? Slashing the tire of my car is one thing; slashing my Achilles tendon is quite another. Rape, torture, and mutilation directly harm persons in addition to interfering with the plans and desires of a conscious mind. A rapist violates an unconscious woman even if she does not remember it afterwards, even if the rape never impinges on her conscious mind. Intuitions such as these point to the conclusion that we are—rather than simply make use of—our bodies. (108)

Kaczor is right to point out that there's an important difference between our bodies and our cars. But personhood-as-consciousness, properly understood, doesn't deny this. The fact that we our persons because of the fact that we are conscious of ourselves (past, present, future) doesn't mean that parts of our body which don't play a direct role in that consciousness aren't just as much us. We are intimately tied to our body. It gives us our necessary sense of extension in space, and it is what, through complicated biological processes, gives rise to our consciousness. It's true that we can lose a finger, or a hand, or an arm, without losing our consciousness. But our body is a unitive whole until it is split, and that body is the physical source of our consciousness, and so it is all us.

The possibility of a division between personhood and organism-hood brings us back to the importance of the first distinction I drew out. Personhood is a constitutive quality of us qua persons, but that doesn't mean that it's a constitutive quality of us qua organisms. Personhood can come and go inside the same organism, which is to say that at one time an organism can be the source of a person while at another time it may not be. And so personhood need not begin at conception, when the living organism comes into existence.

Judge Smith Should Recuse Himself (And The RNC's Lie)

(By Andrew MacKie-Mason)

The health care litigation has always been highly political. Recently, the Republican National Committee even put out an advertisement that blatantly manipulates the audio recording of the argument to make the Solicitor General (who the Republican National Committee, apparently having flunked civics, refers to as 'Obama's Lawyer') appear to have stumbled over his words for a good 20 seconds. In fact, if you listen to the actual recording, you see that the RNC pieced together multiple small stumbles from throughout the first few minutes, and even repeated some of the clips to make it go on for as long as possible. And these people are seriously asking for your votes. Anyways.

This Tuesday, Judge Jerry Smith (who sits on the Court of Appeals for the Fifth Circuit) entered the political fray. In response to some comments that President Obama made on a hypothetical ruling by the court striking down the Affordable Care Act (the President overstated how unusual such a ruling would be, calling it 'unprecedented'), Judge Smith decided to berate the government's lawyer in a different Affordable Care Act case currently in front of a Fifth Circuit Panel.

The audio can be found here (Windows Media Player, 30 MB). The government lawyer starts talking at about 17:10, and Judge Smith interrupts right at 18:00. At that point, he demands to know whether the Department of Justice agrees that the courts have the power of judicial review. The government lawyer is momentarily flummoxed, because it's obvious to any sane person that they do: that hasn't been a seriously contested point of American law for many, many years.

After she recovers from the out-of-left-field question, she states that yes, of course, the DOJ doesn't deny that the courts have the power of judicial review. She tries to get back on track, but Judge Smith won't let it go, and eventually demands that the lawyer write him a "3-page, single spaced" letter stating the government's position on judicial review, and orders them to specifically reference the President's statements.

A few things are clear: judicial review was not at issue in this case. The DOJ hadn't argued against it, because, well, everyone accepts it. President Obama was asked a political question, and made a political answer (one which can be at best stretched to suggest tension with the principle of judicial review), an answer that was in no way an argument in any court case, let alone the one in front of Judge Smith (the President was addressing a case already at the Supreme Court).

There seem to be two possible motivations here. Either Judge Smith was trying to punish the executive branch for what he saw as an unwarranted political attack on the judiciary, or he was trying to punish the Democratic President for a bill. Smith's words seem to suggest the latter (i.e. the use of "Obamacare"), but it's hard to say.

Either way, of course, it's obvious that Judge Smith was acting inappropriately, either in breach of important separation-of-powers doctrines (judges don't have the authority to compel the government to speak on issues not before the court) or in a highly politicized way. Either one is not in accordance with the standards we expect of our judges.

Judge Smith has also received what should be the kiss of death for anyone whose job relies on being seen as sane and reliable: public support from Rush Limbaugh:

Now, yesterday afternoon a federal judge by the name of Jerry Smith at the Fifth Circuit Court of Appeals in Houston had had enough, and he demanded that the Justice Department give him a three-page memo on whether or not this administration understands the concept of judicial review. Now, I saw this and I started cheering. I started laughing. Because it's about time people started fighting back on this. The American people love the concept of a team. You have to have the right people on the team, but we are a team here. There is a team that's opposing this president, and attempting to make him a one-termer this November at the ballot box. It's great to have this response.
***
He's calling these guys out. He was threatening, he was intimidating, he was warning these justices -- and this guy not gonna sit back and take it. "Oh, yeah? Yeah? Give me some clarification on this." And of course Department of Justice says, "Well, of course we know about judicial review! Of course courts can strike down law." Well, you better tell your president.
***
By the way, I love the fact that he called it "Obamacare" from the bench. And he tells this lawyer: You go back to your boss and I want three pages on this. This is like a college professor punishing a student who doesn't quite understand what's going on. You go back, and you get me three pages, no less, single-spaced. I can't believe it. Single-spaced! He gets that specific. And it needs to be specific, because he wants these people on record. Obama's out saying, "There is no such thing; that's never happened." Judge Smith wants Obama's Justice Department to have it on paper from their office that essentially the president either doesn't know what he's talking about or is lying.

There's only one way this can go, if Judge Smith cares about the judicial system he serves: he has to recuse himself from this case, and all future cases related to the Affordable Care Act.

Proud to be Right: Conservatives Are People Too

(By Andrew MacKie-Mason)

Image from Young America's Foundation

I just finished reading Proud to be Right: Voices of the Next Conservative Generation, an anniversary present from my lovely girlfriend. It's an anthology of essays by "young" (more on that in a moment) conservative writers, edited by Jonah Goldberg who, as the cover charmingly informs us, is the "New York Times Bestselling Author of Liberal Fascism".

The book is a good way to dive into the minds of some smart conservative writers, especially if the book is approached with an honest interest to understand their worldview.

Before I begin discussing the substance, though, let me critique one thing about the construction of the book: everything about it suggests that we'll be hearing from young people. The book bills itself as from the "next" generation. John Podhoretz's blurb promises "the unapologetic testimony of the young conservatives." And in the introduction, Goldberg promises to demonstrate that "conservative kids are just a bit, well, better—better at explaining and articulating their ideas...", and he describes the book as one "of essays by young conservatives," specifically contributors who "are younger and far less well-established than were the bullpen of contributors to Upward and Backward" (xiii). But disappointment hit when I read a little bit further down:

For the record, the formula for determining whether someone counts as "young" is simple: Are they younger than me? (Again, for the record, I am forty years old as of this writing...). (xiii)

Then I realized that it was silly for me to expect anything else. To many conservatives, these are the young people: those in their twenties and thirties. No one younger, of course, has anything interesting to say. For those who care, I did some quick estimations, and the median age of the authors appears to be 26.  Only a few appear to still have been in college when they wrote their pieces, and all had graduated by the time it was published. Whatever else the book is, it's indicative of a certain attitude towards young people: because even though Goldberg is correct to denounce "cheap identity politics that says your ideas and arguments count more—or less—simply because of your demographic cohort" (xvii) (and I certainly don't hold the authors' age against them), when a group of adults and established professionals are portrayed as "young" conservatives, a blind spot towards actual youth is revealed.

But the book itself is a delightful mix of contradictions, interesting characters, and a window into authentic conservatism.

The book has profound issues, of course: some the normal problems of fierce conservatism, some (I think) revelatory of interesting things. I think it's good to explore some of those fundamental flaws before moving onto the substantial admirable portions of the book.

The trope of conservative victimhood permeates several of the essays, which is particularly interesting, considering that Goldberg warns conservatives away from the "narrative of victimization" (xi). But perhaps it's not that surprising that some of the authors Goldberg finds cannot say away from that narrative, since Goldberg himself introduces the familiar cast of characters: the supposed left-wing "mainstream media" (xviii) and the liberals who control the "commanding heights of culture" (xi, xviii). The narrative finds expression in Robin Dembroff's essay, "The Conservative Gene" (in fact, it's almost the entire point of that essay: liberals are mean, nasty people who judge you based on the fact that you're conservative, whereas conservatives tend to be smarter and more open minded), in self-serving assumptions that "graduate schools...looked past the encouraging evidence of grades, standardized test scores, and recommendations, to the subversive fealty to tradition and common sense, conveyed in my writing samples" (Justin Katz, 74), in conclusory statements about how "professors believe their role is to ensure that students graduate with the 'correct' set of views...the toxic combination of groupthink and political correctness has turned many American campuses into prisons of the mind" (Evan Maloney, 92), in the absolute self-righteous certainty that liberals are bullies and conservatives are pure-spirited (Ben Shapiro's essay, "Why I'm Glad Liberals Are Bullies"), and in casual throwaway statements about the "intellectual imperialism of the Left" where "the Left often rules with such florid arrogance that George III himself would have been embarrassed" (Ashley Thorne, 214, 223).

And the authors also have weird views of what they call "the Left" (although sometimes instead they call them "Obama's devoted zombies": Katherine Miller, 111), including the seeming imputation to the entire political side of the views of "Left-wing 'queer' theorists, who argue that binary sexuality is a social construct" (James Kirchick, 85), the idea that 'the Left' tells "honeyed lies that everyone is the same and that therefore those who have more must have ill-gotten their riches" (Matt Patterson, 142), or the accusation that "to the far Left, truth and right did not matter. What defined morality was the perceived position of each side within a global system. Though outnumbered by its enemies, Israel was a strong military ally of the United States and therefore could do no right, just as the Palestinians could do no wrong" (Joel Pollak, 150). Other gems include the belief in a conspiracy of "Leftist control freaks" (Todd Seavey, 194) and that conservatives "face liberal bullying on a daily basis, from the elementary-school level through grad school and on into their careers (particularly law, education, and Hollywood)" (Ben Shapiro, 208).

As well as these distorted views of the left in general, we get this caricature of multiculturalism:

As it is practiced in academia, multiculturalism holds that all cultures are equal, except Western culture, which has a history of oppression and war, and is therefore worse. All religions are equal, except Christianity and Judaism, which are both worse, because they informed the beliefs of the capitalist bloodsuckers who founded this racist, sexist, homophobic country. According to multiculturalism, all races are equal, except Caucasians, who long ago went into business with slave traders in Africa, and therefore they are worse. The genders, too, are equal, except for those paternalistic males, who with their testosterone, greed, and aggression have turned this planet into a polluted, war-torn living hello, so therefore they are worse. (Evan Coyne Maloney, 94-95)

If you're determined to see nothing more than a caricature of others' views, that's all you'll see.

Of course, this isn't a universal problem. In her essay, "Liberals Are Dumb: And Other Shared Texts," Rachel Motte gives a powerful appeal (one that could have been addressed to several of her fellow contributors) to abandon the meme that "Liberals Are Dumb[/Evil/Destined To Destroy The Country]" and to be more thoughtful about their own education and thought.

One person in particular who could have benefited by heeding Motte's essay, perhaps, is Ben Shapiro. In "Why I'm Glad Liberals Are Bullies," Shapiro takes on, among other things, affirmative action at California's universities. Affirmative action is one of those "liberal" causes that many liberals are uneasy with. There are certainly strong arguments on both sides, and I at least am always hesitant about my opinions on it. What was most disappointing about Shapiro's piece is that he chose to engage with a strawman rather than exert himself in the tougher argument. Rather than focusing on his own intellectual advancement, as Motte might recommend he do, he bought whole-heartedly into the meme that "liberals are dumb," and then indiscriminately tried to make fools out of those who support affirmative action.

He set the stage with a laughable reduction of the arguments in favor of affirmative action to: "'diversity' fanatics who for decades had insisted that skin tone rather than merit be the leading criteria for a UC slot" (204). Even though he posited a far more extreme version of affirmative action than actually existed ("skin tone" was not a "leading" criteria under affirmative action programs), he wasn't willing to even engage those arguments in favor of it. And in his haste to attack the "diversity fanatics," he (perhaps unreflectively) made some strange bedfellows, suggesting that a problem with affirmative action was that it made "SAT scores...a last priority rather than a first one" and raised the importance of SAT-IIs (207). It's odd to hear a conservative praise a centralized, ineffective assessment tool like the SAT — unless, of course, he did well on it.

This review is already far too long, and there's too much more to criticize. I'll do a few quick shout-outs: an appeal to image over substance ("The Smoker's Code" by Helen Rittelmeyer), entitled whining about the "feminizing" of men ("Man Up" by Katherine Miller), and calls for censorship in the classroom ("The Girls I Knew At Yale" by Nathan Harden and "Ducking the Coffins: How I Became an Edu-Con" by Ashley Thorne).

But my copious disagreements and problems with the book aside, there are some important voices in here, voices that everyone must take seriously. Nathan Harden is right to question whether the environment on college campuses has become degrading to students; James Kirchick is worth listening to when he describes the conservative nature of the gay-rights movement (how does our support for the right to marry inform our opinions about family life more broadly, and can we all become family values voters?); I've already complemented Rachel Motte's essay: people of all political stripes need to invest both in thinking and action; and Bill Rivers in "Free to Serve" drives home a powerful point: the best changes happen from within a community, and the best government is one that encourages and supports those efforts — a fact that liberals too often forget.

This is not a book of young conservatives, but it is a book of smart and generally thoughtful conservatives. And more importantly, it's a book of human conservatives. These writers aren't the constructed personas of Fox News pundits or talk radio hosts. They're men and women, together with all their commitments and all their failings. Some of them are crass and rude, or whiny and entitled. But that's humanity. And that's one important lesson from this book (to quote a quote that found its way into the book multiple times): conservatives are people to.