Source 4 Politics

Prop 8 Struck Down, But Not Much More

2012-02-07T15:03:00.003-05:00

By now you've almost certainly heard that a 9th Circuit panel affirmed (2-1) the district court opinion striking down Prop 8, California's virulently anti-gay ballot initiative from 2008. Here's a summary and here's the full opinion, both uploaded to Google Docs because apparently the federal government's websites can't deal with the fact that people might want to actually look at what's on them.

The opinion is certainly good news, as it'll give people in California a more equal right to marry. The panel also gave a unanimous smack-down to the absurd and insulting right-wing idea that gay judges with partners cannot address the marriage issue impartially. But the severe limitations of the opinion are also important to note. The opinion applies almost solely to the facts surrounding Prop 8, an amendment to reclassify marriage between same-sex partners differently from opposite-sex marriage, while leaving the previously guaranteed benefits of same-sex marriage in place.

The logic of the opinion rests firmly on the fact that none of the oft-posited justifications for a ban on marriage equality were even possible to raise here, because Prop 8 removed no rights but symbolic ones.

Of course, that doesn't mean that the symbolic rights aren't important. When a state lets a man and a woman get married, but two women can only get a "civil union," the state is legitimizing one relationship over the other. That's a non-trivial harm, and it's important to fight it by either letting same-sex couples get married to offering only civil unions to all couples. The CA9 opinion rightly recognizes this.

But what the logic does mean is that a proposition that removed more rights may have fared better under the court's analysis. We can't know for sure, because the court specifically avoided the broader issue of whether same-sex couples have a fundamental right to marry, full stop. But if Prop 8 had, in addition to redefining marriage, forbidden adoption by same-sex couples, at least one hurdle would have been overcome in the Ninth Circuit, and it may well have been found constitutional.

This opinion is definitely a victory for same-sex couples in California. But it may well end up being the beginning of a defeat for the broader equality movement. The stakes of the litigation have been shifted significantly in the anti-equality group's favor: a ruling for their side at the Supreme Court (or the full Ninth Circuit, though that's less likely) could have significant repurcussions for equality around the country. A ruling in favor of equality from the Supreme Court, however, will likely be as limited as the Ninth Circuit opinion, with few effects in the rest of the country.

So, celebrate for a day. But this is hardly the end, and it's not the best place we could be in.

Pete Hoekstra the Racist

2012-02-06T17:00:00.000-05:00

I don't usually do this until much closer to the election, but I'm going to throw an early endorsement out there for Debbie Stabenow for Senate from Michigan. If you're considering voting for Pete Hoekstra, this racism ought to be enough to change your mind.

Gingrich Supports Death Penalty for Drug Importation

2012-01-23T11:00:00.000-05:00

Or at least he did back in 1996, when he introduced the "Drug Importer Death Penalty Act." I'm surprised this hasn't gotten more play in the media than it has. (H/T Jonathan Adler). The full text of the bill is here.

Now I see why South Carolina loves this guy.

UPDATE: Paul Horwitz raises a good point.

There is absolutely no reason to believe that Gingrich meant it then, that he means it today, or that he will mean it tomorrow. True, there is also no reason to think that he wouldn't denounce such a law today, champion it tomorrow, and go back to denouncing it on Wednesday. But I hardly think we can blame Gingrich for his views on any particular occasion, or at least not for long. That would be like blaming the wind for blowing in an easterly direction in the morning, when you know perfectly well it will blow in three other directions by sunset. Let's be fair.

Misleading Graphs

2012-01-22T23:13:00.002-05:00

I've commented before on the misleading "debt graphs," but they seem to be a new liberal meme. So here we go again.

The graph at right popped up on my Facebook feed today. It purports to show that Democrats add a lot less to the debt than Republicans do. It seems to be making a pretty radical argument. Republicans say Obama's been fiscally irresponsible. But he's been the most fiscally responsible, by far. WOW.

Yeah, no. Let's run quickly through the problems. The first one is egregious, and it's the same error I pointed out in the last graph I criticized: it makes no attempt to control for the number of years a President served in office. Three of the Presidents on the chart served for 8 years. One served for 4. The other, as of the data displayed on the chart, had served for 2 years and 3 months. You can see that if you read the fine print. But that doesn't stop it from being idiotic and misleading.

One way to correct this first error is to break the two-term Presidents into two entries each, and extrapolate the data for Obama. If you do that, the graph looks like the second one at right.

The second error is in the data presented: percentage of debt increase. Why is that a problem? Well why would we care at all about the percentage of debt increase? Doing it that way rewards later presidents, who inherited a larger debt, and punishes earlier presidents, who inherited a smaller debt. That is, a 100% increase in debt under Reagan means a very different thing than a 100% increase in debt under Obama.

So what happens if we look at the absolute increase in the debt in US Dollars, broken up by term and extrapolating the Obama data to a full four years? The final graph. (I apologize that the y-axis isn't labelled, and that neither graph has a title. I'm using crappy free graphing software.)

While I suspect ideologues will keep posting misleading graphs and making silly arguments, I'll try one more time: just stop. It makes everyone look bad. There are legitimate counters to the argument that Obama is fiscally irresponsible. The first graph above is not one of them.

Note on data: due to limitations in the data I was able to find (here and here), debt amounts were taken on September 30th in the year the President took office. I.e., Bush Jr.'s "first term" is 9/30/2001-9/30/2005. I don't think it's a big deal, especially since spending immediately after a President takes office is arguably influenced by policies of the previous President. But if anyone finds better data, let me know and I'll redo the graphs.

Second note: Obama data was calculated by taking the increase in debt from 9/30/2009 - 9/30/2011, and then multiplying by two. Mostly because I was lazy, and didn't want to figure out a more complicated extrapolation factor. If anyone wants to check if a more detailed calculation has a significant effect, feel free to do so and let me know the results.

State-Sponsored Catholicism

2012-01-21T16:05:00.000-05:00

The most convincing modern justification for the two religious freedom clauses in the US Constitution is twofold: they restrict bad government and allow good religion.

Governments are better, the argument goes, when their citizens are free to commit to a wide range of beliefs. And they are better when they don't become the battleground for the (at times excessive) doctrinal battles waged between religious adherents.

Religions are better when they convert through persuasion rather than force. They are better – purer – when the temptation of state power is outside of their grasp.

Unfortunately, modern political discourse tends to focus almost entirely on the relationship between religious freedom and governments. "The government can't do that," we say, "because it will restrict religious freedom." But we're seeing a resurgence of "big-government religionists," who aren't paying enough attention to the second justification for religious freedom.

Granted, we aren't seeing the establishment of state churches. There are no (sane) individuals calling for religious qualifications for office, or suggesting that the state should settle doctrinal disputes. The "quasi-establishments" that are being sought may even be constitutional. But that doesn't mean they're not dangerous.

Take the marriage debate. The argument that allowing marriage equality will "damage the institution of marriage" should be familiar to everyone. But the real nature of that argument was made more clear by Rob Vischer a few days ago. He asks whether civil unions could be "bad for marriage" because people who might otherwise have chosen to enter the quasi-religious institution of marriage instead opt for a civil union. It's a numbers game against a religious background: if less people get married, then marriage is weaker, and if marriage is weaker then society is becoming dangerously less religious and abandoning important religious normative structures that have been worked into the institution of marriage.

But even if that sounds plausible to you, dig a little deeper. The problem that is being pointed to isn't one of an external force "attacking" a religion, where the state might have a legitimate role in intervening. Instead, it's the people – the constituents of a religion, if you will – opting for a different set of norms. And the proposed remedy is to limit their options: to force them down one "correct" path rather than another.

That kind of coercion would be a recipe for weaker institutions. It's how we make bad religion.

Religion in Culture

2012-01-18T17:00:00.000-05:00

Jacques Berlinerblau has an interesting post at Brainstorm about what he calls "Tebowmania" and more generally the role that religion plays in American culture. I don't agree with everything he has to say, but the post does prompt some good questions. I found myself wondering, after reading it, how those who say "I have no problems with homosexuality, just keep it private" would react to someone who said "I have no problem with Christianity, just keep it private."

For all the fear-mongering on Fox, ours is still a very Christian culture, and (as Berlinerblau points out) even our supposedly "liberal" media has no qualms about heaping praise on the ostentatiously religious parts of popular culture.

South Carolina Republican Debate

2012-01-16T23:18:00.000-05:00

I caught part of the three hundredth 2012 Republican debate tonight (Fox News, South Carolina). Just a few quick thoughts:

Santorum's falling over himself to run further and further to the right. In one notable moment, when asked a question about foreign policy related to Syria, he answered almost completely from the "what's best for Israel" perspective. There seemed to be absolutely no consideration of the fact that sometime in the next five years Israeli interests could diverge from American interests. Either that, or he's trying to become President of the United States of America and Protector of Israel. I understand the commitment that many on the right have to defending Israel – they're a strong ally and most of the time our interests align. But blind, naive commitment in foreign policy does no one any good. Santorum also said that the federal government should be able to detain Americans indefinitely on suspicion of terrorism, subject only to a mere preponderance of the evidence standard. In other words, Santorum supports doing away with the meaningful rule of law.

Of course, Romney supports doing away with the rule of law entirely. According to him, anyone arrested on suspicion of being a member of al-Qaeda – American citizen or no – should have no due process rights. Because apparently, alleged treason is the same as treason. Romney also thought that there are too many laws regulating election finance. Screw Citizens United – corporations and the super-wealthy should be able to give unlimited amounts directly to candidates.

Rick Perry, meanwhile, defended the marines who urinated on corpses. Well, he didn't quite defend them. "They should be punished." But don't call their acts "despicable." That might hurt their feelings.

Ron Paul had some decent substance – for instance, suggesting that we should apply a Golden Rule to foreign policy (that got quite a negative reaction from a supposedly moralistic, Christian party) – but bad performance. It took him forever to stumble through a relatively simple explanation of what was wrong with the Obama approach to capturing bin Laden (we should have tried legitimate methods first before invading another country's sovereignty), and he sounded far too defensive.

All in all: nothing impressive; nothing new.

Florida Cops Torture and Murder a Restrained Man...

2012-01-16T15:00:00.000-05:00

...who was also mentally ill. If you haven't read this story, you should. It's too easy to write things like this off as the doings of evil people. It's much harder to recognize them for what they are: the product of a system that corrupts people who aren't especially evil and turns them into monsters.

Professor George: The Culture Warrior

2012-01-14T16:45:00.000-05:00

In a series of recent posts at Mirror of Justice, Robert George has declared his full entrance into the culture wars. He's apparently come to the conclusion that there is no longer any hope of compromise or discourse between Catholics and supporters of equality, and so the only way for Catholics to proceed is to "win" by successfully imposing their own restricted sexual morality on the rest of the country.

Paul Horwitz wrote a post at Prawfs bemoaning the fact that moderates are put in a hard place when trying to deal with opposing groups who have no interest on discourse. I think he raises some good points, but here I want to focus instead on the distortions that the "culture warrior" stance can cause, even to an ostensibly well-educated, thoughtful academic.

Throughout his recent posts, George often seems to be fighting shadows and not understanding even basic distinctions. That's because he's gone beyond being unwilling to work with the "other side", and gotten all the way to willful or negligent misrepresentation of what they say.

Take the post that started the recent series, in which George complains about the fact that the demand for civil equality includes, well, demands for civil equality. But he begins by making a misleading reference to past arguments:

It was only yesterday, was it not, that proponents of sexual liberalism were telling us that the redefinition of marriage to include same-sex partnerships would have no impact at all on the lives of those persons and religious and other institutions that hold to the traditional conception of marriage as a conjugal union?

The characterization sounds plausible, because we take it as a reference to an old and obviously true argument: "my right to marry will not affect your marriage." The argument was then and now obviously true: the right of two men to have their marriage recognized by the state will in no way affect the marriage between two straight people.

But George seems to have conflated that argument with one that I, at least, never once heard: that somehow civil equality would not be accompanied by...well...civil equality: that powerful institutions would remain free to discriminate against couples based on their gender. Or, in his words:

The fundamental error made by some, I believe, was to imagine that a grand bargain could be struck: "We will accept the legal redefinition of marriage; you will respect our right to act on our consciences without penalty, discrimination, or civil disabilities of any type. Same-sex partners will get marriage licenses, but no one will be forced for any reason to recognize those marriages or suffer discrimination or disabilities for declining to recognize them."

I was surprised when I read that: I didn't remember ever hearing about that bargain. And I doubt anyone even really suggested it, because what George is talking about would be an empty marriage right. You can get married, but those with the power don't need to recognize it. If that's marriage equality, then we already have it.

So why is George conflating this real argument with his imagined straw man? I imagine part of it is that he would like to forget that there were (and, to a certain extent, still are) people who would seriously advance the "argument" that "gay marriage just ruins marriage for the rest of us." He'd like to explain his memory of arguments that marriage equality wouldn't have an "impact" on straight people in a way that paints his fellow travelers in a better light.

But more of it, I suspect, has to do with the conscious and subconscious effects of the "culture warrior" viewpoint. He sees this struggle as life-and-death: if not for him, then for the cultural values that he holds dear. And, with that in mind, he's willing to distort the truth and caricature his opponents in order to rally the faithful to fight off the infidels. It's a culture war, but it's also a holy war. And when God is "on your side," all bets are off.

Daniel Dennett on the Radio

2011-12-08T23:23:00.001-05:00

Daniel Dennett recently appeared on the Australian radio show "The Philosopher Zone". (H/T Leiter). Dennett is an incredibly smart and accessible philosopher of consciousness. His book Freedom Evolves is probably one of the most significant intellectual influences in my life, both because of its ideas about consciousness and free will and because it's an excellent example of how a broad range of intellectual interest can (and must) be synthesized in various philosophical pursuits.

Anyways, I strongly recommend the radio show. I read through the transcript, and it's pretty quick. Here are some highlights. (AS is the interviewer, DD is Dennett).

DD: I think we have a very different computational architecture from even our closest neighbours, the great apes, our closest kin...We, our brains, our minds are enough different from that of any other creature that we can hold each other and ourselves morally responsible, and it would be a travesty to do that with any other animal, and that's a key difference.

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DD: I think that there are different kinds of subjectivity; that there's the kind of subjectivity that, you know, even a robot can have. It's got a limited view of the world, whatever it can take in. If it doesn't have colour vision, then colours are not part of its subjective state. It has a point of view in a quite obvious sense. But a lot of people are going to say 'yeah, but that's not real subjectivity'. Well, it's a kind of real subjectivity, and there's other kinds of real subjectivity that they're thinking of; and that is, I think, quite a recent development...

---

DD: I love the theoreticians, and there are quite a few, who go on and on about the continuity of consciousness. To which I say: 'That's exactly backwards. The really remarkable thing about human consciousness is its discontinuity'. It seems to be continuous... It seems to be continuous but it isn't. And this is just obvious in some regards.

For instance, take vision: It seems as if you are continuously aware of the visual world, and it's a plenum of colour all the way out to the edges, but it just isn't so, and we can prove that: For one thing, your eye jumps in a little jump called a saccade. It jumps about four times a second. And during the jump you can't see a thing. Not a thing! You don't notice that, you don't notice your blind spot.

The fact is that there are lots of blind spot-type phenomena that we just don't notice for a very simple reason: You can't see a boundary unless you can see both sides of it. And so lapses of consciousness are hard to detect. So in fact our consciousness is nowhere near as continuous as we like to think, it's just that we don't notice, obviously, we don't notice that we're not conscious.

---

DD: So my threadbare, threadbare because very accurate and usable, example is the chess-playing computer. You probably have a chess program on your laptop. If you want to play against it, forget about trying to predict its moves on the basis of the physics of your laptop; also forget about trying to predict it on the basis of your understanding of how the program is structured. Your best chance of beating it is to treat it as a rational chess player that knows the rules of the game, knows the positions of the pieces, and has a good sense of the value of particular moves. Then you can start predicting what it's going to do and what it isn't going to do.

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AS: On the question of whether we have free will or whether everything we do is predetermined, presumably by prior circumstances, you're what's called a 'compatibilist'. What does that amount to?

DD: Well, mainly it amounts to denying the disjunction that you just gave me. Saying, 'look, determinism has nothing to do with it actually'. We have free will whether or not determinism is true. Determinism is just not the issue. What I've argued for many years is that there are different varieties of free will; there are different concepts of free will. And some of them are really important, because if you don't have free will in these senses then you're not a moral agent, and in a certain sense your capacity as a person, as a normal human being, is not what you would want it to be, and these are the important varieties of free will; the varieties of free will that are worth wanting. And you look at those closely, and you see they have nothing to do with determinism at all. Whether or not determinism is true is simply an orthogonal issue. It doesn't interfere with them, doesn't enhance them.

Go read the rest!

Male Affirmative Action

2011-12-07T11:07:00.001-05:00

Gail Heriot and Alison Somin have an article on discrimination against women in favor of men in college admissions. They have a generally negative take on it, though I don't want to overstate that. If you're interested in their views, read the article. (They also draw an interesting connection to Title IX athletic requirements that I won't go into here.) All I'd like to do here is briefly state my view on the issue, in the context of my views on affirmative action generally.

There are two typical justifications for racial affirmative action that I accept to a certain degree. First, it is argued, minority students tend to be disadvantaged in early education, and as such, minority students may have greater potential for success in college than their resumes suggest. I agree that colleges should be looking to potential rather than just past achievement, though I question the usefulness of mere racial identification as a proxy for low-achieving but high-potential students. Second, it is argued that college students benefit from having a culturally diverse group of colleagues, and that minority students in particular benefit significantly from having a more-than-trivial number of people from similar cultures. Again, I think this is a valid concern, though I think there are better proxies for it than race alone.

The first argument isn't really applicable to sex-based affirmative action, at least as far as I'm aware. The second, though, is relevant. There's definitely something to be said for having a relatively balanced gender ratio on campus, and for reasons more serious than ridiculous female complaints about the small dating pool.

So here's where I'd come down: gender-based affirmative action should be allowed (and not punished by the witholding of public funds) at private universities. It should be allowed in public universities in extreme cases: say, if the split goes beyond 65%-35% in either direction (though I'm not committed to that exact line). And at the same time, I'd oppose it at any school which I had a direct interest in, and opt for schools which don't practice that kind of affirmative action in admissions, since in my opinion having an academically engaged student body is far more important than having a gender-balanced one. Which necessitates one final condition: any school that engages in this kind of affirmative action must be open about it, just as they should be open and honest about all criteria they rely on.

One final point worth mentioning: I don't see how anyone can think that this kind of affirmative action should be banned (or punished by witholding funds), but that female-only colleges should be allowed (or funded).

Christianity: It's Also A Political Theory

2011-11-18T16:00:00.000-05:00

A common meme among extremist right-wing Islamophobes is that Islam is "different" than other religions (and thus somehow due less respect and protection) because of the extent to which it pushes a certain political message. The suggestion seems to be that religious freedom is fit for those traditions which limit themselves to internal matters, but not those which try to influence the state.

Take this article by JR Dieckmann at "Canadian Free Press." In part:

The time has come to question if Islam is protected under our First Amendment rights to freedom of religion. Yes, everyone in America has the right to freedom of religion, but Islam is not a religion. Religious faith is only a part of Islam. The rest is a socially engineered society with its own laws and customs that seriously conflict with American law.
...
We must recognize that religion is only one aspect of Islam‘s Qur’an. The rest of this charter advances ideas, social behavior, and laws that are in direct conflict with American and western laws and values. Teddy Roosevelt once said that to live in America, immigrants must have undivided loyalty to America and to no one else. How is that possible for Muslims who swear loyalty to Islam where their governing laws are found in the Qur‘an?
...
If Islam were just about praying to Allah and worshiping Mohammed and nothing more, we would not be having a problem with Islamism and Islamic terrorists. Islam has a global mission to take over and run the world according to Islamic Shariah law. How can we call that a religion?

Of course, Dieckmann is extreme even for the extremists. But I've seen worse, and I've seen many other apparently otherwise normal people who espouse similar nonsense.

There's much wrong with this kind of argument, and it's too much to cover in a single post. But one myth I want to put to rest is the idea that Islam is the only religion which has political goals and an aim to control the civil state. Christianity too – on some interpretations – aims to create civil law in accordance with their religious principles. Patrick Brennan's recent post is a good example:

Even many of those who grant that Christ reigns now as King take the position, implicitly or occasionally explicitly, that, like Elizabeth II, Christ reigns but does not rule. Some defend the proposition that there are zones that are not ruled by Christ, on the ground that sometimes secularity is "healthy." As I was saying the other day at the marvelous conference on "Radical Emancipation: Confronting the Challenge of Secularism" sponsored by Notre Dame's Center for Ethics and Culture," however, the absence of the Gospel is never a good. To be absolutely clear, non-Christians must never be forced to embrace the Christian religion, but this does not entail that socio-political life should not be blessed by the leaven of the Gospel. The penetration of civil society by the principles of the Gospel is a good to be pursued -- and it is, indeed, a good that Christ the King commands. Here is what Card. Ratzinger said in 1984 on the question of the basis on which the state should be formed and shaped: "The state must recognize that a funadmental system of values based on Christianity is the precondition for its existence." (Church, Ecumenism & Politics, 207, emphasis added).
...
Weigel concludes by asserting that "The state does not have the capacity to make the judgment that Christ is King." But this is patently absurd, at least taken as a statement about states as such. As I've argued before, surely a group of Catholics founding a state would be competent to install leaders who would be competent to recognize what their installers recognize, viz., the Kingship of Christ. To be sure, many states, including our own, are contingently incompetent to recognize the Kingship of Christ and its social consequences, but the fulfillment of such an unfortunate contingency does not lay a finger on the traditional Catholic teaching that Christ is King over political society. Nor does the Second Vatican Council alter that teaching. See Par. 2105 of the Catechism of the Catholic Church. How could it? Jodi Bottum claims in the video that "Christ is king of we [sic] as individuals." It is by nature (and supernature) that we associate, however, and I cannot understand the claim that, when we do in fact associate in political society to achieve the natural common good, Christ pro tanto loses his jurisdiction. Bottum is right that this is an "unAmerican idea," but that's hardly a fatal condition.

Personally, I don't see anything inherently wrong with these types of religious-political traditions. I disagree with them, of course, and I find myself in frequent political opposition to those who advance religion-imbued views, but they're no more wrong than any other ideology. Still, I don't think it's possible to consistently condemn the Muslim tradition and absolve the Christian one on this count.

Perhaps Dieckmann and the others are simply ignorant of the political aspects of Christianity. But it's more likely that their hypocrisy is based on not-so-subtle bigotry: acceptance of the familiar and rejection and fear of the new.

Addendum on Catholic Universities

2011-11-17T19:00:00.000-05:00

A few days ago, I wrote a post asking whether there could be institutions which are both genuinely Catholic and genuine universities, based on a view of the relationship between doctrine and academic freedom espoused by some Catholic academics at Mirror of Justice.

Since then, Robert John Araujo has written another post which I think raises some of the same issues and is worth calling attention to.

In it, he criticizes the "More than a Monologue" project put on by Fordham, Fairfield, Yale, and Union Theological. The conference has been criticized multiple times on Mirror of Justice, primarily for being simply a monologue itself, and presenting no views strongly representing the voice of the institutional Church. To the extent that's true (I don't know enough about the conference to judge) I think it's a fair critique. Even if ideologically homogenous conferences can at times be valuable, they'll usually be less productive and interesting than those which welcome all viewpoints. (It is worth wondering, though, whether there's a lack of traditional presence because of the groups invited, or because of who was willing to attend.)

But beyond that, Araujo offers another critique that I think crosses the line between academic and doctrinal.

Although the conveners of this project asserted that they wanted “to change the conversation about sexual diversity and the Catholic Church” by presenting “the variety of viewpoints on issues of sexual diversity among Catholics,” the Archbishop of New York and the Bishop of Bridgeport expressed their concerns to the heads of two of the convening institutions regarding the appearance of the program that dissent from rather than support and defense of Catholic teachings was the nature of the presentations. However, these bishops were assured that “the conferences, while sensitive to the experiences of the participants, will not be a vehicle for dissent.”

As I indicated in a previous posting, I heard most of the presentations delivered at Fordham, Fairfield, and Yale, and it was my initial conclusion that these conferences were, in fact and whether intended or not, a criticism or questioning of the Church’s teachings on critical matters dealing with faith and morals.

The fact that something is a "vehicle for dissent" or "criti[zes] or question[s]" an institution's teachings, should never be grounds for criticism in academic communities. It's understandable, perhaps, for the Archbishops to raise the concerns they did: they're not academics, and their concern is for institutional power and what they see as the protection of their faith. But it's disheartening to see "dissent" as a criticism of a conference raised by a man who is himself a professor.

While Araujo throughout the piece offers some actual criticism of one of the addresses at the conference (some of it more convincing than the rest), he also challenges it multiple times on the grounds that it simply "directly conflicts with the Church’s fundamental teachings." If the theory purports to not conflict, then that might be a legitimate point to raise. But Araujo seems to suggest that it is per se wrong for a Catholic academic at a Catholic university to contradict the Church. If that is the mainstream view of the relationship between doctrine and academia among Catholics, then I reaffirm my feeling that it is impossible for a genuine Catholic university to exist.

Money Is Speech

2011-11-17T15:00:00.000-05:00

One of the most controversial aspects of modern free speech doctrine is the relationship between money and speech. Obviously, the two cannot be completely separated: if the government prevents me from paying money to buy advertisements and spread a political message, they are restricting my ability to speak out. But giving full free speech protections to all expenditures that are speech-related leads to some controversial results, such as Citizens United and the potential for unregulated campaign contributions.

Those who argue for the position "money is speech" usually mean it in a certain way, namely that money is one form of speech. You can speak by spending money, or in other ways – or at least, so the theory goes.

I read a post on Balkinization today that got me thinking: what if the bond between money and speech is getting tighter still? Pasquale quotes Ackerman and Benkler as saying, "In recent decisions, the Supreme Court has protected Wall Street's constitutional right to pour millions into political campaigns. But as presently construed, the First Amendment isn't an obstacle when it comes to silencing the Occupiers. . . ."

Have we gotten to the point where money is not only a form of speech, but the form of speech?

The difficulties that the Occupy movements have had in finding homes for their protest belies a saddening fact about modern America: there is little-to-no space left that is truly public, at least not anywhere near the urban centers necessary for protests. Almost every possible forum for protest is either privately owned or faux-public: tightly regulated space which do not allow for effective protests.

There are few ways to get a protest off the ground, nowadays, that don't require significant amounts of money. (Note that even the OWS protestors relied on expenditures in the form of legal assistance...) Protests either have to be able to pay for their own advertising, or else capture a news organization for free message-spreading (see, e.g., FOX and the Tea Party). The everyman protest is, effectively, dead.

If money is speech – wholly and in toto – does the government have an obligation under the First Amendment to ensure that everyone has the ability to speak? Or are monetary restrictions on speech acceptable, so long as they only target the poor who don't deserve to speak in the first place?

The Future of Higher Education

2011-11-16T15:00:00.000-05:00

I think it's safe to say that there are two dueling visions for higher education at the moment. One focuses on "Return on Investment" (narrowly understood), the other on the principles of citizenship and a liberal arts education.

The former sets out to judge universities (and majors and other programs within universities) by a few simplistic metrics, including employment rates and salaries of graduates, as well as some more amorphous ideas, such as the "value to employers" of the technical "skills" developed during college.

The latter appeals to more high-minded principles, including the value of a well-read, well-rounded, intelligent citizenry and academic inquiry for its own sake.

I don't know enough to say whether this is a new fight, but it does seem to be particularly intense at the moment, due in no small part to our economic troubles.

As an example of the former view, here's Kenneth Anderson:

In that case, if you are a smart but not brilliant student in STEM, you might tell yourself until you are blue in the face that you must study STEM to be employable and have real skills. But the reality is that you will flunk out or come close to it, or be lucky to get by with Cs.
...
In response to having said this in blunt, fatherly-advice terms in in earlier posts on this blog, I’ve received many well-meaning, sometimes pious comments from people saying, well, you should just suck it up in order to get genuinely educated. Here is what Dad says: sorry, but forget it. Higher education is both too expensive and the risks of failure — serious downward mobility of a kind I’ve also written about on this blog, not to universal acclaim — too great for it to be rational to put the education ahead of the credential. I wish, as an educator, a human being, and a parent, it were otherwise, but it’s not.
...
As to an actual education, well, that’s nice. But not at 50k a year, when those four years are themselves simply a downpayment on the law school bet that you can get employed. At those prices it’s the credential that matters.

(Anderson's post is long, and makes some interesting arguments, so by all means read the whole thing.)

On the other hand, here's the introduction to Massimo Pigliucci's post about a curriculum controversy at CUNY:

Apologies to my readers for the seemingly parochial topic of this post, but in fact what you are about to read is part of a national trend toward dismantling liberal arts education, in the apparent conviction that our society doesn’t need intelligent and critically thinking citizens, but simply workers who are trained to do whatever the market and the reigning plutocracy bids them to do. Much more about the trend and its dangers can be found, among many other places, here, here, here, here, and here.

I think both positions make good points, and they're not totally incompatible. As the cost of education goes up, liberal arts looks more and more like an unnecessary luxury. And yet...

Can There Be Catholic Universities?

2011-11-15T17:00:00.000-05:00

This is going to be a provocative post, so let me immediately step back and make a few qualifications. First, I'm not Catholic (I was raised Methodist, though I would not describe myself as Christian now) and have no direct, personal insight into Catholic doctrine. To the extent that my argument relies on 'what Catholicism is,' I'll do my best to explain those Catholics from whom I'm drawing the positions. Of course, other Catholic academics may have a different perspective on the interaction between their faith and their intellectual pursuits, and this argument may not apply to them.

I also don't mean to suggest that Catholicism is incompatible with all academic pursuits. I don't see any inherent conflict in the combination of Catholicism and mathematics, for instance, or Catholicism and physics (though I'm open to correction on the latter).

Finally, my concerns are directed less towards individual Catholic academics than towards institutions that aspire to be both Catholic and intellectual. It would be unfair to single out Catholic academics, as they're certainly not the only academics who come to their fields with strong prior commitments, and how they balance their roles is a matter of personal conscience.

With those caveats in place, I'll finally get to what I actually want to say. It seems to me that there is an unresolvable conflict between Catholic teachings on the authority of the Church and the necessity of open-mindedness and intellectual autonomy in an academic institution. That is, a university (or department) that identifies as Catholic must, as I understand it, commit to a certain view of truth that encompasses doctrinal teachings. This differs from the ideal academic institution, which devotes itself to nothing other than the methodological investigation of the truth.

Let me turn to two bits posted over at Mirror of Justice to illustrate my point. The first is by Robert Araujo from back in late August, commenting on a speech Pope Benedict gave regarding the qualities of teachers in higher education. He says, in part,

Although it is brief, the address contains some important thoughts for those of us who have dedicated our lives to tertiary and professional education. The pope’s words are all the more relevant as we begin a new academic year in which many of us wrestle with the objectives of our teaching, advising, and research. In addition, for those of us who may have the opportunity to consider new faculty hiring, the Holy Father’s words serve as a resource for considering the qualities of candidates who will be considered for faculty positions. Surely the pope’s thoughts about qualities for teaching also apply to us who are already teachers.

What are these qualities?

Pope Benedict begins by contending that a teacher has a responsibility to search for and disseminate the truth. For the Christian and Catholic, this truth is Jesus Christ, God incarnate. A person disposed to this has a solid chance of acknowledging and discussing with others the inextricable nexus between faith and reason. For the skeptic who may take issue with this assertion, one needs to take stock of the fact that the foundations of the great western universities of today rest on this nexus and search.

The idea that Christian and Catholic academics' search for the truth should be informed by their faith is not necessarily troubling. As I mentioned above, the interplay between intellectualism and faith at the personal level is a complicated one, and I do not think that academic integrity is threatened by that idea, held by individual researchers and teachers.

What is troubling about this passage, though, is the suggestion that institutions should make these values an integral part of their process of hiring. Araujo writes that the acceptance of Jesus Christ as a source of truth is a "quality of candidates who will be considered for faculty positions" that should play a role in the decision-making of those controlling that hiring. Doing so would impose doctrinal constraints on institutions that limit their mission to a specific subset of academic inquiry, making them less free universities or departments in the process.

More recently, Richard Myers wrote a post about the censuring of a Catholic academic by the United States Conference of Catholic Bishops. In the case in question, the USCCB merely issued a critical statement (more on that later). But Myers' post is more worrisome in what it suggests:

This is another example of the Bishops moving away from a disciplinary approach to dealing with dissent. Sister Johnson is still on the faculty at Fordham. Daniel Maguire is still on the theology faculty at Marquette, even though the Committee on Doctrine issued a statement several years ago explaining that the views expressed by Professor Maguire were erroneous and incompatible with Church teaching.

There is a lot to be said in favor of this kindler gentler approach. It is worth recalling, though, that Charles Curran seemed to have been largely forgotten after he left Catholic U and that one wonders whether Richard McBrien would attract as much attention if he taught at Indiana University-South Bend instead of Notre Dame.

Here are the USCCB's statements on Johnson and Maguire, and biographical background on Curran and McBrien.

Myers seems to be endorsing a view of Catholic higher education that conforms to the standard of what happened to Curran: those who do not fall within certain 'acceptable' boundaries are removed from their positions. This is a system of doctrinal enforcement, not academic freedom.

That quality – academic freedom – is in my mind an essential component of a university. Of course, it's an ideal seldom realized: whomever holds power in a university will tend to limit academic freedom somewhat based on their opinion of legitimate views. But in most academic environments, it's at least an ideal that's espoused and worked towards. Compare the two pieces above with an email I received recently from the University of Chicago's provost, in response to protests surrounding a planned appearance by Condoleezza Rice and Henry Paulson:

Over the course of this academic year, we have had, and will continue to have, many events featuring spirited debate about a variety of topics, academic and otherwise. This is in keeping with our commitment to a core value of rigorous inquiry, which has been a central feature of the University of Chicago’s distinctive culture throughout its history.

Constant and deliberate work is required to sustain this commitment. Argument is a central means of achieving deeper understanding and creating new knowledge. In this spirit, we engage one another and welcome campus speakers with viewpoints across the intellectual and political spectrum. We must protect a speaker’s right to be heard, just as we have a responsibility to challenge their ideas with honesty, vigor, and respect. No speaker is to be expected to present all views on a subject, but as a community, we offer the possibility of additional fora for exploration of contrasting opinions, so that taken together inquiry can proceed untrammeled in the service of scholarship.

Universities can survive without a perfect track record in academic freedom. But can universities – true universities – exist in a tradition that actively denies academic freedom in favor of dogma?

Of course, the story in the Myers post is actually somewhat encouraging. The exact thing that he seems to be lamenting – the move away from a 'disciplinary approach' – is consistent with academic freedom. Criticism is an integral part of academia, and there is certainly nothing wrong with the USCCB engaging in critiques of academic work. To the extent that Myers is correct about the trend, then perhaps the Catholic power structure is moving the faith more towards the direction in which institutions which are genuinely Catholic and genuinely academic can exist. For now, though, I'm a bit skeptical.

As I said at the top, I welcome comments on this, especially by those more familiar with Catholicism than I. Is there more allowance for academic freedom at Catholic institutions than there seems to be? Is the tradition actually consistent with academic values?

When The Beltway is Wrong - Cain and Abortion

2011-11-09T14:00:00.000-05:00

For various reasons, I tend to side with intellectuals over 'plain-talkers.' I'm disinclined to support politicians who score points by undermining deep-thinking in favor of shallow appeals to populism. And, of course, there's no way in hell I'll ever support Herman Cain's candidacy for the presidency.

And yet, sometimes the people who agree with me are just plain wrong.

Amy Sullivan's post on TIME's Swampland blog is a good example. In it, she takes Herman Cain to task for the way he describes his position on abortion. He "doesn't actually understand what he's talking about," she claims.

Why? Well, it seems that Herman Cain calls himself pro-life and still supports the right of women to choose in some circumstances.

Ignore the fact that opposing legal abortion but allowing an exception for rape and incest isn't exactly unheard of, and still is generally called a "pro-life" position. (Really, opinions about abortion are pretty damn complex.)

The view Cain seems to be putting forward is actually a more nuanced one than the standard pro-life/pro-choice divide allows for. He's distinguishing between personal moral views and legal requirements – and that's not a discussion that gets much play among the political elites in this country. Sticking to the insider labels in the way Sullivan seems to want really isn't a virtue in the end, when there's a chance to get past them and use them in more rational ways. If Cain's out of touch with the current political rhetoric on the issue, maybe that's a good thing. After all, the abortion rhetoric is horribly flawed and unrepresentative of any views but the most extreme.

When we get down to it, Sullivan's post is really nothing more than an insider's contentless dismissal of a challenger who refuses to play by the rules that she's succumbed to.

Disclaimer: Absolutely none of the above should be construed as the slightest support for Cain.

Life Sentence for Child Porn Possession

2011-11-08T11:00:00.000-05:00

The New York Times has a disturbing story about how far into the land of insanity our current criminal sentencing culture really goes. Mr. Vilca, a 26-year-old with no criminal history, was sentenced to life in prison without the possibility of parole for possession of child pornography. Not child abuse. Not any crime that involved him ever interacting with an actual person. As far as I can tell from the story, they had no evidence of him even speaking to children online.

Don't get me wrong: Vilca deserves to go to prison. For a long time. He also likely deserves mental services and help reintegrating into society. But life in prison without the possibility of parole? Unless there's far more to this story than the Times was able to dig up, that's just absurd.

Even Paul Cassell, who has made the extraordinary argument that any person who views child pornography is liable for full damages to the victimized child, has a tepid condemnation of the sentence in this case: “in the abstract, a life sentence for the crime of solely possessing child pornography would seem to be excessive.”

When I mention that I'm interested in criminal defense as a career, a common reaction is, "but what if you have to defend someone who's guilty?" Cases like this make the answer to that really easy. Our society has demonstrated that it has no problem committing crimes of its own against the convicted by sentencing them to terms far outside the bounds of even the most extreme justice. Standing up for the guilty individual against the guilty society is not that difficult a moral dilemma.

Can We Have Some Intelligence, Please?

2011-10-24T11:00:00.000-04:00

I'm all for pointing out that conservatives run up the debt too. But can we all just agree that this graphic, which breaks debt increases down with no adjusting for the number of years in office is one of the most ridiculously uninformative things ever? Really, it's just embarrassing.

Teachers' Online Speech Rights

2011-10-23T19:00:00.000-04:00

Earlier this month, a New Jersey special ed teacher named Viki Knox posted an online rant about homosexuality, apparently calling it "a perverted spirit that has existed from the beginning of creation" and a "sin" that "breeds like cancer." In response, many people are calling for the school to fire Knox. Her views are despicable, but firing her is completely the wrong response. Just like students have a clear First Amendment right to mock their teachers online, teachers have the right to voice disgusting opinions on Facebook.

Schools should have significant power to control the speech that actually occurs in a classroom, especially speech by its employees directed at students compelled to attend class. I would have no problem supporting Knox's firing if she said something similar to a student during class. But Knox's posting, even though it was publicly available, was made in a quasi-private forum. Those who saw it chose to go looking for it, and it was in no way connected with her work as a teacher.

I should note that the ACLU has spoken out in defense of Knox's rights, which should surprise no one. As I've pointed out many times before, the ACLU regularly defends the free speech rights of conservatives, even though many conservatives seem to think it's an organization that exists solely to push liberal causes.

Thoughts on the Nevada Debate

2011-10-22T19:07:00.003-04:00

I just finished watching last Tuesday's Republican debate in Nevada on YouTube. I've sorted some of my sporadic thoughts to try to give an evaluation of each candidate, but first a question: are there always this many debates during primary season?

Rick Santorum

Maybe it's because CNN framed him as the candidate "trying to beat the odds," but Santorum definitely came across as the guy trying desperately to make himself heard. He did have a few particularly bad moments, though, including saying that we should focus on health care cost rather than health care access (after all, who cares about those who can't access the care in the first place), seeming to simultaneously support religious freedom and a ban on gay marriage, and responding to Ron Paul's point about Iran-Contra by positing some contentless distinction between negotiating with terrorists and negotiating with hostile forces. All in all, a weak performance by a weak candidate. The networks would do better to invite some of the other minor candidates who at least would bring some conflict and different views to the debates (although, of course, CNN pretended that the people on the stage were the only contenders for the nomination.)

Rick Perry

The only Rick Perry story coming out of the debate is his attack on the Romney family's employment of a subcontractor who hired illegal immigrants. But two other points really stuck out for me. He responded to a question about the unacceptable number of uninsured children in Texas by making two 'points': Texan health care if really, really good for those who can afford it, and really we only don't insure all of our children because there are so many illegal immigrants. And those illegal children don't deserve access to our spectacular health care. For me, this is on par with his statement in a previous debate that he loses no sleep whatsoever over the astounding number of people murdered by the state of Texas every year. It may even be worse. Perry also proposed defunding the UN, a colossally stupid idea for our foreign policy.

Michele Bachmann

Optics aren't everything in Presidential campaigns, but they're a legitimate part of consideration. American Presidents are heads of state as well as heads of government, and electing buffoons is bad for our global status as well as American trust in government. Bachmann's performance at the debate did nothing to change my perception of her as a ridiculous individual undeserving of elected office. Multiple times (here's one example) you'd hear her objecting to not getting to answer a question. "Anderson! Anderson! Anderson! Wait, Anderson! Anderson!". She, a candidate for the presidency at a time when we have strategic commitments in Libya, seemed not to realize that Libya is in Africa. She actually suggested that Iraq, a country that never asked for our help and where we arguably did more harm than good, should reimburse us for the privilege of being invaded. (Is that a woman you want in charge of our international diplomacy?) And then there's this misogynistic gem:

Every day I'm out somewhere in the United States of America and most of the time I'm talking to moms across this country. When you talk about housing, when you talk about foreclosures, you're talking about women who are at the end of their rope because they're losing their nest for their children and for their family, and there are women right now all across this country and moms across this country whose husbands, through no fault of their own, are losing their job and they can't keep that house, and there are women who are losing that house. I'm a mom, I talk to these moms.

Ron Paul

Paul also pretty much lived up to expectations. He's the candidate willing to say some bold things (he's consistent about cutting off foreign aid, even when that means opposing aid to Israel in a room full of Republicans), and he's the only Republican candidate I can imagine pointing out that prisoners at Guantanamo are suspects, not terrorists: nothing has been proven regarding any of them. I applaud him for wanting to put more resources into investigating and punishing fraud and abuse that led to the financial collapse, but my overall impression of him as a person who lets bold, out-of-the-box ideas substitute for nuanced consideration remains. Besides, he opposes mandated free education for all children.

Newt Gingrich

The most worrying thing out of Gingrich during the debate was his views on faith and politics.

But I think all of us would also agree that there's a very central part of your faith in how you approach public life. And I frankly would be really worried if someone assured me that nothing in their faith would affect their judgment, because then I would wonder, how can you have judgment if you have no faith, and how can I trust you with power if you don't pray? Who you pray to, how you pray, how you come close to God, is between you and God. But the notion that you're endowed by your creator puts a certain boundary on what we mean by America.

In other words, there's no room for atheism or aspirituality among politicians, and atheism is outside of the 'boundary' of what's legitimate in America. That's not a man I want in office.

Just as a final note, I want to express my condolences to Anderson Cooper. He had to wrangle candidates who were behaving like children, and he did as well as I think can be expected in such a ridiculous environment.

University of Chicago and Occupy Chicago

2011-10-21T10:00:00.000-04:00

People at the University of Chicago may be interested in signing this petition in support of the right to peaceably assemble in Chicago's public areas, and condemning the City's actions in suppressing dissent. A taste:

On Saturday, October 15, our elected leaders used the Grant Park curfew as a pretext for suppressing the free speech rights of ordinary American citizens. Over 175 people were arrested, including numerous members of our university community. As members of the academy, we take free and open discourse, along with critical inquiry, to be fundamental to any healthy democratic society. Yet, the actions taken by the City of Chicago achieved exactly the opposite. As such, we write to condemn the actions taken by the city of Chicago.

Al Awlaki, Due Process, and the Power to Kill

2011-10-13T16:00:00.000-04:00

The drone-enabled assassination of Anwar Al Awlaki raises some difficult questions about the scope of US authority to target alleged terrorists, complicated by the fact that Al Awlaki was an American citizen. Mark Bennett thinks that it was a violation of Al Awlaki's right to due process. Bruce Ackerman thinks that the process used — whatever it actually was — is unconstitutional.

A few things, I think, are clear:

• The fact that Al Awlaki was outside the country is irrelevant. If the government could send a Predator missile after him in Yemen, it can send one after him in New York.

• There is a point at which the government can use deadly force to take down an alleged criminal who refuses to submit to the judicial process.

• Anyone who can be targeted by the government for death must have notice and an opportunity to challenge the classification if they submit to judicial authority.

How exactly to judge what happened in the Al Awlaki case, though, is beyond what I know, which is why it's important for the Obama Administration to make the details of the process public.

Overturning Roe Without An Amendment?

2011-10-12T17:00:00.000-04:00

I'm a bit late to the party on this one, but it's an important issue and one that I think bears talking about.

In early September, there was a Republican Presidential "forum" (I wouldn't call it a debate) featuring a dialogue between some of the candidates and a few questioners: Senator Jim DeMint, Congressman Steve King, and Professor Robert George.

George's main question was this:

Many believe that we need a constitutional amendment to overturn Roe v. Wade. However, Section Five of the Fourteenth Amendment expressly empowers the Congress, by appropriate legislation, to enforce the guarantees of due process and equal protection contained in the Amendment’s first section. As someone who believes in the inherent and equal dignity of all members of the human family, including the child in the womb, would you propose to Congress appropriate legislation, pursuant to the Fourteenth Amendment, to protect human life in all stages and conditions?

In other words, George was asking the candidates if they would endorse a legislative usurpation of power by asserting that a simple law could overturn a judicial decision on the Constitution. As George tells it, Bachmann, Cain, and Newt Gingrich all said that they would endorse that usurpation, whereas Romney gave a qualified rejection of the idea.

I'm normally a fan of off the wall constitutional ideas, but George's claims are a bit too crazy for my taste. But let's take his argument as it comes.

Nothing in the Constitution itself confers upon the Supreme Court supremacy in constitutional interpretation...

Nor is judicial supremacy consistent with the structure or logic of the system of government established by the Constitution. It is true that under Article III of the Constitution the Supreme Court is supreme over the “inferior” federal courts, but that does not mean that its usurpations of the powers assigned by the Constitution to the other branches of government, when they occur, must be treated by the president and Congress as beyond challenge.

The problem with George's argument is twofold. First of all, Article III does clearly invest the supreme "judicial Power" in the Supreme Court, and clarifies that that power "shall extend to all Cases...arising under this Constitution."

What does that mean? Not, of course, that the Supreme Court has some sort of nebulous authority to say what the Constitution "really says." But it does mean that if a case or controversy arises under the Constitution, the Supreme Court has the supreme power to decide it.

What would happen if, as George, Bachmann, Gingrich and Cain wish, Congress passed a law banning abortion throughout the nation? They could do so, but it would be unenforceable, since any attempt to enforce it, through criminal or civil means, would involve bringing people to court, which creates a judicial question over which the Court has supreme authority.

Does Section Four of the Fourteenth Amendment, which gives Congress the "power to enforce, by appropriate legislation,the provisions of this article," change this analysis? Not at all. Congress can claim to do something under Section Four...but whether the legislation it passes is ultimately enforceable and "appropriate" (read: constitutional) will be a judicial question.

Does this mean, as George laments again and again, that we live under a system of "judicial supremacy?" Not at all. As he should understand, the judiciary remains one of the weakest branches of government. If it seems more powerful, it is not because it has usurped authority, but because the legislative branch has become markedly inadequate at doing anything.

George seems to be suggesting that if Congress cannot override the Court by a simple majority vote, then we are now living under the tyranny of the Supreme Court — but that's just silly. Congress cannot override a Presidential veto with a simple majority vote, but that doesn't mean we live under the tyranny of the President, because there are ways that Congress can override a veto. It simply needs more than a simple majority to override one of its coequal branches. Congress, together with the states, can override the Supreme Court by changing the Constitution, as is explicitly provided for in Article V. Or, if they think that the Supreme Court has usurped power that does not belong to it, or failed to follow the Constitution, they can indict Supreme Court Justices and remove them from office. Or, Congress and the President can join together and increase the size of the Court, filling it with members who share their constitutional vision.

At the end of the day, George's constitutional arguments have no grounding in the text or reality, and his fears of "judicial supremacy" constitute nothing more than empty rhetoric.

The Ministerial Exemption

2011-10-11T15:05:00.000-04:00

The case involving the ministerial exemption, Hosanna-Tabor, was recently argued at the Supreme Court, so the issue is alive again in blog-land. For those who don't know what the debate is over, I have a collection of old links that do a pretty good job of explaining it here.

Without getting into all the details, there are two major problems with the proposed exemption, as I see it. I'll illustrate these by reference to specific hypothetical situations: after all, if supporters of the exemption want to embed it in American law, they have to accept all of its implications or else revise the theory.

The first concerns the reach of law, an issue which Paul Horwitz has addressed in some depth here. With regards to this I'm less concerned about the facts as they are in Hosanna-Tabor, and more interested in how the theory would be applied to cases similar to those that Leslie Griffin cites here.

Imagine a situation, not at all far-fetched, where a priest at a religious elementary school routinely molests pupils, until the molestation is discovered by one of the teachers working at the school. When she threatens to report him to the authorities, he replies by saying that if she does so, he'll fire her and do his best to blacklist her for future employment.

In a secular setting, the teacher would be protected by anti-retaliation law so that all of her incentives go to doing the (completely uncontroversial -- I hope) right thing: reporting the abuse. But if the religious advocates get their way in Hosanna-Tabor, the priest's threat would carry significant weight; if he fired her, she would have no recourse to sue for wrongful termination, since she (according to the religious litigants in Hosanna-Tabor) plays a ministerial role at the school and any employment suit would be foreclosed.

The teacher, even if she were virtuous and had little concern for her own well-being, may rationally make what would be a non-optimal choice in the context of a secular school. She may believe she can do more good by remaining quiet so as to stay at the school and protect other students, or she may attempt to resolve the issue through internal processes, making a cover-up that much easier. And if we make a more realistic, though not uncharitable, assumption about her character, it's not hard to believe that the threat of unemployment may lead her to reconsider what she thinks she knows, to rationalize away the evidence, or just convince herself that what happened really wasn't all that bad.

What important principle of religious freedom would the ministerial exemption be protecting in this case? None, so far as I can see. It's not protecting the right of a religious organization to choose who leads it -- it's protecting the 'right' of a religious organization to cover up crimes that occur within its walls. That may not be such a huge problem when religious consist entirely of voluntarily associated people, but it is unacceptable when the religious organization holds sway over involuntary participants who are at direct risk of harm.

The second concerns our understanding of religion. How do we delineate between legitimate religions and organizations who adopt the banner of religion as a tactical move to evade the reach of antidiscrimination law?

This is a typical line-drawing problem, and it's obvious that the difficulty of drawing a line doesn't prove the inappropriateness of a standard. However, I think it is important for advocates of the ministerial exception to propose at least an approximate standard here, and that's not something I've seen.

Personally, I resolve the defining-religion problem in what I would call a Millian way: I look to the realm of behavior involved and see whether it's primarily a realm of individual conscience or of group responsibility. How exactly that plays out in the ministerial exemption context is a complicated issue for another day, but I think it's important to acknowledge that we do not live in a time when the boundaries of "religion" are clear, and that a proper respect for the freedoms embodied in the First Amendment demands that we shy away from standards that require us to put limiting definitions on what counts as legitimate religion.

ADDENDUM: While I was writing this, Paul Horwitz put up a post on PrawfsBlawg asking if the sexual-abuse concern that I raised above was primarily consequentialist (as in, we don't trust internal church processes to reach a good result) or more directly normative (as in, access to the courts is good in and of itself.) I would say it's a bit of both: I generally trust judicial systems that arise from heterogenous communities more than ones designed and implemented by homogenous religious organizations, and I think there's also a normative value to recognizing that sexual abuse -- and other things -- is a harm to the community that extends beyond the walls of the church. Restricting the remedy to the internal processes tends, I think, to minimize the harm and suggest that it's importance is only an internal matter.

Horwitz also points out that just as defenders have to accept the potential costs of the ministerial exemption in terms of unrighted wrongs, opponents have to accept the harm to religious freedom that would arise from not having a robust ministerial exemption. I agree, and that's part of why my thinking on this is more nuanced than simply, 'There should be no ministerial exemption.' I actually think that the exemption (as proposed) is under-protective of religious freedom in some important ways. I hope (though this is a promise that I've broken before) that I'll get around to addressing that nuance in more detail, but this is it for now.

Nonlinear Utility

2011-09-29T18:00:00.000-04:00

An ongoing debate in my hometown just hit the "newspaper" again, provoking another round of arguments over the city's decision to install an expensive work of public art next to the newly renovated City Hall. The sculpture ended up costing the city $750,000, and many people are taken aback by the price. (There's a smaller sub-issue caused by about 20% of the money going to a German design artists, but I won't address that here.)

A few of the anonymous comments on the story provide a good picture of the main complaint:

Benjamin: "This is a testimony to the condescending city government and their attitude toward the hard working citizens of Ann Arbor. They reduce our services (fire/police, leaf pick-up, parks etc.) and then they waste our money on this "art". How in the world was there room in the budget for this ahead of other city services?"

f4phantomll: "How many potholes can you fill for $750,000? How many cops or firefighters can you rehire for $250,000? Sheesh."

GoBlue: "I'm embarrassed and ashamed. What does this say about us as a city? Our economy is in shambles, what is crucial is ignored (bridge for example), key safety elements (police and fire) being reduced and council uses our tax dollars for this and could not even use local artists, to add insult to injury. Our city has sunk to new lows."

AlwaysAmazed: "How many hungry children and homeless families could this money have helped? You've got to be kidding me!"

grye: "We should put one of these on every street corner, then get rid of all the city employees, police officers, firemen, shut down all the utilities, no garbage pickup. Get rid of everything so we can sit on our collective behinds and admire expensive art. Who needs anything else? And with such art and no city services, millions will flock to this city to enjoy the art and wish they could move here because it is such a wonderful place.

Is our mayor and city council ever going to get it?"

mun: "$750,000 could have paid for how many police officers, how many fire fighters, how many school buses?"

The root of all of these complaints is that the money spent on this project could have been put to better use in other ways: that is, there are other ways the money could have been spent that would give us a higher ratio of utility to cost.

The problem with this kind of simplistic cost-benefit analysis, though, is that it implicitly assumes that the utility of a certain scalable choice is linear in the chosen magnitude of the choice. That is, if we are calculating the utility of hiring x firefighters, the assumption seems to be that U(x) = mx. That translates to each additional firefighter giving us m units of utility. We could have a similar equation for the utility of spending $y on public art, and have that U'(y) = m'x. (Throughout this discussion I'll make the simplifying assumption that the money is being spent most efficiently on each project independently: the best firefighters are being hired for their salary, and the best art is being purchased for its cost. Altering that assumption would lead to a different, though also interesting, issue.)

On that model, it makes sense to ask, like 'mun' did, how many firefighters could have been hired for the cost of the public art. If we had that number, we could do a pretty simple comparison between U(x) (with x being the number of firefighters) and U'(750,000). Whichever utility is greater is where we should spend our money.

The problem is that this is a horribly inaccurate approximation of what our utility functions should look like. This approximation not only leads to slightly incorrect answers (as is inevitable with any approximation), but it actually causes us to ask the wrong question. To see why, consider the following simple example:

You have $2, and you go to a nearby store, that sells two items: loaves of bread and bottles of water. Each loaf and each bottle cost $2, and for whatever reason saving the money isn't an option. It's logical to assume that, faced with this choice an individual will perform an approximate evaluation of the utilities of a loaf of bread versus a bottle of water, and pick the one that gives a higher utility. Assume that, for some underlying reason, that ends up being the loaf of bread.

Now, hold everything in the example constant, but assume that you actually have $4. The linear utility model tells us that you'll buy two loaves of bread — but does that make sense? Of course not. The right answer is that we don't know what you'll do. It could well be that you're extremely hungry and not at all thirsty, so two loaves of bread is more attractive than one loaf and one bottle of water. But maybe you were somewhat hungry and also a bit thirsty. If you can only buy one thing, you'll get the loaf...but that one loaf is enough to satiate you, and so with the second $2 you'll buy a bottle of water. The reason is that the utility of the second loaf of bread is not equal to the utility of the first loaf of bread. As you get more food, additional food has a much smaller marginal benefit.

There are different ways to talk about this issue. You can frame it as a collection of choices which are not independent of each other, but instead I'd like to talk about it as an example of scalable goods whose utility functions are nonlinear. The graph at right is a decent approximation of what a reasonable utility function might look like.

Returning to the debate over city services versus public art, it's reasonable to think that both of those will have a utility function that follows a similar style to the one at right. A city with no investment in public art, for instance, can see a marked increase in quality of living from a relatively small amount of investment in improving the appearance of the area. Once the city looks nice, however, additional installations will have less and less of an effect.

Similar logic applies to hiring firefighters. A city with no firefighters is basically screwed, so hiring that first team is very, very useful. But given that there are only a certain number of people that can effectively help in any given emergency, the increases in utility fall off as you hire more and more firefighters. The first team gives you a certain percentage chance of putting out a fire. The second team gives you (probably) the same percentage chance of putting out a fire, but only if two fires happen at once. So on and so forth.

After that excessive explanation, we can finally return to the angry local commentators. Why, they moan, are we paying for this public art when we could hire more firefighters? The city obviously didn't compare the value of a single art installation to that of x firefighters.

They probably didn't, but such a comparison would also be the wrong one — or, at best, a nonsensical one. 'AlwaysAmazed' shouldn't be interested in just how many families could be fed; he should be interested in how many families could be fed and how many already are. 'mun' shouldn't be concerned with a straight translation between the amount of money spent and the cost of buses, firefighters, or police. He should be concerned with that, and how many buses, firefighters, and police officers Ann Arbor already has. Correct cost-benefit analysis can't compare different choices for marginal spending decisions without also considering the current state of the world. If the current levels of spending were actually as irrelevant as the angry people would have you believe from their questions, then we would end up spending all of our money on that single, perfect, utility maximizing project.

A Direct Democracy Jury?

2011-09-28T17:00:00.000-04:00

Ethan Leib had an interesting proposal on PrawfsBlawg the other day, one I could swear I've written about before, though I can't find anything on this blog about it. It's worth reading in full, but here's a taste:

Instead of asking nearly 40 million people what they think about a question of policy, ask a much smaller random subgroup of “the people” what they think. When we want criminal defendants judged by a jury of their peers, we don’t ask everyone to vote: we ask a cross-section of the whole—12 people—to take time out of their private lives and serve their governments to decide if an individual in their midst should lose his or her liberty or life. When we ask “the people” to decide policy in direct democracy, it should be done by a scientifically stratified random sample of 535 people that is empanelled into jury service for the task at hand.

One issue that I see with the proposal is that we would need even stricter controls on people who can influence the "jurors" than we have in a criminal jury: since the issues will generally be of greater public interest than any individual criminal trial, there's much more risk of bribery or corruption. That control, though, would have to be balanced by a desire to let the jurors freely research the issues. We obviously wouldn't want a trial like atmosphere where one group of proponents and one group of opponents are given certain amounts of time to convince them.

Logistically, I'm not sure how it would work. But is the idea worth fleshing out more?

Posner on Recording the Police

2011-09-27T19:17:00.001-04:00

Eric Johnson has a post about troubling comments made by Circuit Judge Richard Posner, also a professor at the Chicago Law School. It centers around a case brought by the ACLU to challenge the application of Illinois' eavesdropping statutes to interactions with public officials, and Posner seems to think that public officials somehow have a right of "privacy" in their conversations with the public.

For what it's worth, this should be an open-and-shut case — recording and publishing conversations with police officers is clearly protected under the First and Fourth Amendments (and their application to the states through the Fourteenth Amendment) — and it would be shameful if Posner fails to see that.

Bernstein's Disturbing Anti-intellectualism

2011-09-26T17:20:00.002-04:00

David Bernstein, in a recent post on the Volokh Conspiracy, advances an unfortunately common form of anti-intellectualism. As part of an ongoing controversy involving Professor Mearshimer's blurbbing of a book written by Gilad Atzmon, Bernstein attacked Professor Mearshimer's defense of his blurb by pointing to what he views as evidence that Atzmon is an anti-Semite. As to the relationship between Atzmon's alleged anti-Semitism (the debate over which I have no desire to enter) and Mearshimer's blurb, Bernstein writes:

Mearsheimer is not content to argue, as he does, that he didn’t know Atzmon from a hole-in-the-head, and endorsed the book because he found it provocative and interesting. If he had limited himself to this, he could have then added that he wasn’t aware of Atzmon’s anti-Semitic background and didn’t read the book in that light. Now that he knows, he regrets his association with Atzmon and the book.

But this line of thinking begs what should be a very controversial point: if Atzmon is an anti-Semite, should Mearshimer "regret his association with Atzmon and the book"?

Anyone who respects the ideals of academic freedom and intellectual inquiry would quickly and easily answer: no. Even people whom we abhor can have interesting, provocative, and valuable things to say, and an intellectual work should not be marginalized just because of other characteristics of the author. Just like the value of studying Marx's work or Hitler's Mein Kampf is independent of our moral evaluation of those individuals, any anti-Semitism that Atzmon may exhibit in interviews or on his blog is separate from any evaluation of his book.

It's one thing for critics to say that the book itself is anti-Semitic, and that by calling it "interesting and provocative" Mearshimer is inappropriately endorsing an anti-Semitic work. That's hardly an open-and-shut argument, but at least it's one that doesn't undermine intellectual inquiry. But suggesting that approving of a single work by a distasteful individual should make one guilty by association is a dangerous road to go down.

If Mearshimer comes to "regret his association with Atzmon and the book," it will be because people like Bernstein abandon academic inquiry in favor of partisan sniping. The blame will rest fully on those people, such as Bernstein, who are unable to think with a degree of nuance.

There's one more point about Bernstein's post that's worth mentioning. He claims:

Mearsheimer actually defends Atzmon from the charge of anti-Semitism.

That is a blatant mischaracterization of Mearsheimer's post, in which he states:

Before I examine the substance of that charge, there is an important issuethat needs to be addressed directly. Goldberg's indictment of Atzmon does notrely on anything that he wrote in The Wandering Who? Indeed, Goldberg'sblog post is silent on whether he has actually read the book. If he did readit, he apparently could not find any evidence to support his indictment ofAtzmon. Instead, he relied exclusively on evidence culled from Atzmon'sown blog postings. That is why Goldberg's assault on me steers clear ofcriticizing Atzmon's book, which is what I blurbed. In short, he falselyaccuses me of lending support to a Holocaust denier and defender of Hitler onthe basis of writings that I did not read and did not comment upon.

This tactic puts me in a difficult position. I was asked to review Atzmon'sbook and see whether I would be willing to blurb it. This is something I dofrequently, and in every case I focus on the book at hand and not on thepersonality of the author or their other writings. In otherwords, I did not read any of Atzmon's blog postings before I wrote my blurb. Andjust for the record, I have not met him and did not communicate with him beforeI was asked to review The Wandering Who? I read only the book and wrotea blurb that deals with it alone.

Goldberg, however, has shifted the focus onto what Atzmon has written on hisblog. I discuss a couple of examples below, but I will not defend his blogoutput in detail for two reasons. First, I do not know what Atzmon may havesaid in all of his past blog posts and other writings or in the various talksthat he has given over the years. Second, what he says in those places is not relevantto what I did, which was simply to read and react to his book.

Mearsheimer does not, nor should he be expected to, defend Atzmon's entire record and personality. Instead, he focuses on a few specific claims and, apparently, convincingly refutes them: Bernstein, after all, makes no attempt to claim that any of those defenses are wrong. Instead, he seizes on completely unrelated statements by Atzmon and attempts to shame Mearsheimer with those. The tactic, for those who aren't interested in fawning over Bernstein, is transparent, but those who only read Bernstein's side of the story may well be fooled.

CNN and the Tea Party

2011-09-19T16:15:00.001-04:00

While we're on the topic of the recent Republican debate, Common Dreams (h/t Leiter) raises a good question: why would CNN partner with the Tea Party Express to put on a debate? Have there been any debates where analogously liberal groups have co-sponsored a presidential debate with a non-partisan news agency?

A Thirst For Blood

2011-09-19T16:00:00.000-04:00

Even though most people have probably already seen it, this video is worth passing on again.

Setting aside Rick Perry's claim that capital defendants get a fair hearing (ask yourself whether Duane Buck got a fair hearing in 1997, and why Rick Perry refused to grant a reprieve), I wonder whether it's indicative of partisanship, purposeful blindness, or just plain old stupidity that Rick Perry said he doesn't worry at all that some of those executed in Texas may be innocent.

There have been numerous high-profile cases where investigation after an execution presents compelling evidence that some victims of the Texas "justice" system have been innocent: Ruben Cantu, Cameron Willingham, David Spence, Gary Graham, and Claude Jones. Rick Perry cannot wash his hands of blood by pointing to the "process" that defendants may take advantage of before being executed, because – as governor – he is part of that process. He has an obligation to insure that every victim of the Texas executioner is guilty beyond a reasonable doubt, and that is an obligation that would cause any morally competent individual some sleepless nights. While it is true that the Texas Constitution doesn't allow him to give pardons or commutations of sentence on his own initiative (a ridiculous and outdated rule acting against the interests of justice), he can still put the full weight of his office behind a plea for clemency.

Also worth mentioning is, of course, the disgusting response the crowd had to the mention of Rick Perry's record bloodbath. As I pointed out in the wake of Osama bin Laden's death, it's disturbing to celebrate anyone's death. But it undoubtedly points to a deeper disease in elements of our country that these debate viewers – all relatively normal people themselves, we can assume – would cheer for the murder of their fellow citizens. That is not evidence of a citizenry that "understands justice." It is a glimpse into modern, 'civilized' blood lust. Our execution rooms are our modern day colosseums, and the men and women at the Republican debate were the fans cheering the death below.

A Theory of Parental Rights

2011-09-19T00:00:00.000-04:00

Eugene Volokh has a post about the leading case on the constitutional theory behind so-called "parental rights." I'm grateful for the exposure to the case, because it confirms my previous impression: there is no way to find a constitutional guarantee of parental rights that is faithful to the constitutional text.

O'Connor's reasoning rests on the rather astounding claim that the Due Process clause protects our "liberty" interests in controlling other individuals. Such a self-contradictory argument requires little other criticism, but the objections in Scalia's dissent are also rather convincing.

There is a legitimate way, I think, to support some of the specific claims of "parental rights" advocates, though the theory is significantly different. Rather than focusing on the ridiculous "liberty" right-to-control, we should acknowledge the true possessor of the liberty right (the children) and construct the constitutional theory around determining when parents are the better proxy for free choices than the government is. Such a theory, I suppose, would support government standards for education, but parental choice between different qualifying institutions; it would support government mandated health measures except in the presence of real health concerns; it would defend most religious choices made on behalf of a child, though it would look with suspicion as the choices have more significant and permanent effects; and most clearly, it would disfavor efforts by parents to restrict access to information, especially as children get older.

The results of such a theory would meet with mixed approval among parental rights advocates, youth rights advocates, and statists alike. But at least it would be intellectually honest and founded on the text of the Constitution.

Teaching Philosophy to Prisoners

2011-09-07T11:00:00.000-04:00

Brian Leiter linked to a Washington Post story about a marine-turned-college student who started a course in ethics for inmates at a maximum security prison. It's well worth reading, and this line in particular struck me:

But the inmates were intrigued. More than that, they were grateful for a break in the monotony of prison life, the opportunity to exercise their minds and the chance to be taken seriously as thinking adults.

Kaczor on Abortion: Why Can't We Kill?

2011-08-22T17:00:00.000-04:00

This is the second post in my critique of Christopher Kaczor's book, The Ethics of Abortion. I've duplicated the introduction text from my first post below.

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 8/21/11, currently at page 78) -------

One question that hovers throughout Kaczor's book is, "why can't we kill?" What is it, exactly, that makes killing wrong? Though he doesn't address the question, Kaczor assumes that the answer is found in the right to life. That is, we cannot kill (or attempt to kill) because the victim has a right to life.

I don't think that's right. Or, at least, not entirely right. As I argued in my first post, the "right to life" itself is a questionable moral construct. But even if we have a right to life, the way we criminalize murder in modern America suggests that we find killing wrong for more reasons than simply because it denies the victim the right to life.

In our current legal system, individual rights are generally defended through civil actions, where people bring claims to vindicate their own rights. This is a product of the individualist streak in our history: no one cares more about my rights than me, we think, so I should be the one to defend them in court.

Crimes, on the other hand, are prosecuted by the government. While many states have "victims' bills of rights," no jurisdiction that I'm aware of allows private citizens to compel a prosecutor to bring charges. We recognize that criminal prosecution may be against the public interest, even if the alleged victim wants to press charges, and so we guarantee prosecutorial discretion. The government prosecutes crimes because they are offenses against society, not against an individual. That's why in many jurisdictions, criminal prosecutions are styled "The People v. ___".

Death, of course, is an interesting case. The victim, the harmed party, is no longer there to defend his or her interests. As a detective character on TV put it, "We speak for the dead, because they can't speak for themselves. We owe them that much." But on the other hand, prosecutors are still supposed to think about the public interest. We send murderers to jail not because they violated someone's rights, but because they've committed a crime against the public. We let their families sue for wrongful death because they've violated someone's rights.

Kaczor seems to hold a different belief. He writes:

Even if killing is wrong because it eliminates future experiences that we have a present dispositional desire to preserve, and even if this is the best account of why killing is wrong, the conscious desires account of personhood requires that this be the only reason why killing is wrong. But this is unreasonable. An act is often wrong for a number of reasons at once...There are myriad possible reasons to believe killing is wrong. For instance, killing takes away your present good, the good of life. Killing undermines your bodily well-being. Killing takes away your freedom. If killing is wrong for one of these reasons, or if killing is wrong for any other reason unconnected with my or your (present, dispositional, ideal) desires (e.g., divine command, societal cohesion, rule-utilitarianism, Rawls's maximin principle, contractarianism), then the suggested criterion for establishing the right to life fails...The conscious desires account of personhood requires that killing is wrong only for this reason. In other words, for the conscious desires argument to work, it is also necessary that all other actual and possible accounts of the impermissibility of killing unrelated to desire are mistaken. (62-63, emphasis mine)

The unstated assumption is that killing is wrong only because it violates someone's right to life. That's the necessary connected step between Kaczor's premise (killing is wrong for reasons other than that it undermines desires) to his conclusion (the right to life cannot be founded on the possession of desires).

Even if you don't accept my legal argument above, it should be clear that things can be wrong (morally impermissible) for many reasons other than that they violate someone's rights. It's a strained rights theory that argues that drug use violates rights, but many people think it is impermissible. Someone may consider it morally impermissible to commit sacrilege, even though that sacrilege may not violate anyone's rights. It's wrong to lie, even if the person you're speaking to has no right to be told the truth. And so on.

This same assumption underlies another of Kaczor's arguments rebutting the same (desire centric) criterion for personhood.

Consider alien, angelic, or divine persons who, given their vast differences from our fragile human physiology, have nothing that corresponds to what we experience as desire. Nor is it difficult to imagine alien, angelic, or divine persons whose experiences of time are so different from our own that they do not experience past, present, and future as we do and so have no present dispositional desires for a future like ours. Even among human persons, there are those such as Buddhists who believe that the extinguishing of all desire is possible. If a human being achieved this goal, then this human being would have achieved Nirvana from a Buddhist perspective, but from Boonin's perspective would thereby no longer have a right to life, since such a human being, the Buddhist Master, would not have a desire for the future.

Kaczor seems to be relying on the reader's instinctive reaction: of course it would be wrong to kill a Buddhist master, or a desire-less, time-less angel! But the hidden assumption, once again, is that killing is wrong only because it violates the right to life. There are a myriad of reasons to think that killing such an individual would be wrong even if they don't have a right to life (such as their immense value to society). Once we recognize that, it becomes less ridiculous to suggest that they may no longer have a right to life.

The problem here is similar, though not identical, to that I identified in my first post. Kaczor leans too heavily on the "right to life." Even if we accept that such a thing can exist, it cannot and should not play all of the roles he suggests that it does.

The Costs of Abortion

2011-08-22T13:00:00.000-04:00

John Breen has a post at Mirror of Justice discussing, in a pretty compelling way, the potential damage that abortion can do to a family. How does one explain to a child, for instance, that they had a twin brother who was aborted in the womb?

This kind of argument rings pretty strong with me. There are indeed costs to abortion, and they should be discussed more as part of a sensitive and thoughtful moral discourse surrounding abortion. But the problem is that those who oppose abortion reach too fast for the power of the state to impose their choice on everyone else. Because they tie the moral arguments with the legal proposals, these individuals cause a backlash among those who support the right to abortion. Those who are pro-choice are encouraged to counter their opponents by attacking all of their arguments, which often involves minimizing the personal and emotional harm that abortion can do.

We need to have honest conversations about all of the aspects of the abortion debate, and that means recognizing that there is more to this than pro-life/pro-choice. It's a complex issue, which allows for complex answers.

"Unlimited Power" Under The Commerce Clause

2011-08-21T16:00:00.002-04:00

One of the themes in opposition to the Affordable Care Act, and apparently a major part of the Eleventh Circuit's opinion striking down the individual mandate (though I haven't yet read the opinion), is the proposition that if the individual mandate is constitutional, there is "no limit" to Congress' "unlimited power" under the Commerce Clause. Some opponents of the mandate restrict their argument slightly to argue that upholding the mandate would give Congress "unlimited power to impose mandates."

Both of these claims are nonsense. The latter is self-contradictory: if the power is only to impose mandates, that is an important "limit" on it. But even beyond that, the claims fail because upholding the mandate would do nothing to threaten the limits of Congressional power under the Clause that the Court has already established.

Orin Kerr, a conservative/libertarian who's broken ranks and taken the very principled position that the mandate is, indeed, constitutional under current doctrine, puts it this way:

I’m deeply sympathetic to the argument that current Commerce Clause doctrine gives the government too much power. At the same time, I think it’s worth noting that arguments in support of the mandate do reflect a limitation on the scope of federal power: the line between regulating markets in goods and services and regulating outside of markets in goods and services. The basic idea is that Congress has Article I power to regulate markets in goods and services, as markets in goods and services are commerce. In contrast, Congress does not have have a general Article I power to regulate on subjects outside of markets in goods and services, as that is not part of commerce.

Indeed, rather than some imagined line between "inactivity" and "activity" that finds no support in the Constitutional text and is really just a political invention useful for attacking the Affordable Care Act, defenders of the mandate support the natural limit on Congressional power under the clause to activities which are a part of "commerce." Congress, for instance, cannot force me to eat broccoli (even if it could force me to buy it). Congress cannot mandate that people watch a certain number of hours of television, or that they wear a certain kind of clothing. Congress has absolutely no power under the Clause for anything that doesn't affect commerce.

(Note: Arguments that evoke the scariness of Congress' "unlimited" power also ignore the most obvious limit on Congress' power: limits contained in the Bill of Rights and other places.)

State Universities and Out-of-State Students

2011-08-21T10:00:00.000-04:00

Kenneth Anderson has a post on the Volokh Conspiracy suggesting that public universities' recent tendency to admit more out-of-state students in order to increase tuition revenues (out-of-state students pay more than in-state students) violates some duty those universities have towards the states that invested in them, and that state legislatures should crack down on this practice.

I can't really speak to the California system, which is what Anderson focuses on, but I can more specifically address my home state's University of Michigan.

UMich is a top tier research university, but it is a state university in name only. The proposed FY2012 budget has state appropriations as only about 17% of the university's total revenues. For that 17% investment, the state gets approximately 68% of the student slots at the school.

To me, that's not a bad deal. If states want their public universities to enroll more local students, they need to take up a bigger portion of the funding burden. But if states want their flagship universities to maintain their position as excellent centers of undergraduate education as well as research, the universities need to be free to find the top students wherever they can.

LawProf Paul Campos Got Some Courage

2011-08-20T23:20:00.000-04:00

In his latest post, "LawProf" (who I wrote about here) casually dropped his coward's shield of anonymity by linking to an article that he had written. He's Paul Campos of the University of Colorado, Boulder. For those who want to evaluate Campos' assertion that he works at a "Tier One" school, Colorado is tied with two other schools for #47 in the USNWR rankings. According to this discussion, that's Tier One, though barely. As for whether he's had a "successful career," I can't say much beyond the fact that I've never heard of him before today.

Anyways, I don't intend to write much more about this whole thing, other than to note the utter immaturity of the exchange between Leiter and Campos. (See here and here for Leiter, and here for Campos.) But when two grown men start acting like children, at the end of the day I end up with more respect for the one who didn't initially hide behind a false name.

Internet Anonymity

2011-08-19T18:15:00.000-04:00

Anonymity is never a virtue of a speaker. Sometimes it's a necessary vice, and sometimes it's a virtue of a communication medium (such as the internet) that it allows easy anonymity. But it's always more virtuous for someone to attach their name to what they say.

The choice to remain anonymous is even more shameful when it comes from people who try to gain the advantages of status without the disadvantages of revealing their identity. I'm talking, of course, about "LawProf," the alleged law professor who's attacking law schools without having the guts to sign his name to his blog posts.

"LawProf" not only tries to to get the benefit of his alleged insider status in the industry he's critiquing, he aims for an even higher reputational benefit. He self-describes himself as "a tenured mid-career faculty member at a Tier One school" who has had "a successful career in legal academia."

Of course, all of this self-aggrandizement wouldn't be necessary if "LawProf" had the guts to do what countless other bloggers have done, and signed his name to his opinions. If we had his name, we'd know what school he taught at, and could judge for ourselves whether it's "Tier One." We could look at his career and judge whether it's been "successful." But of course, signing his name would mean that the bad would come along with the good, the embarrassing along with the impressive. We can't have that, so anonymity it is.

As I said, anonymity can be necessary and thus excusable under certain circumstances. When a dissident lives under an oppressive regime, anonymity can be necessary to enable free expression without the risk of imprisonment or death. When a whistleblower works for a powerful company, anonymity can be necessary to bring harmful practices to light without the risk of reprisal. But when the person in question is a tenured law professor, anonymity serves only to protect a coward from the consequences of his actions. (That's assuming, of course, that "LawProf" is who he says he is, an assumption I have no real reason to make besides my natural instinct to trust people.)

I've considered writing this post many times throughout the years. The problem isn't isolated to "LawProf," though he is a particularly egregious example. There are also police officers (here and here) who blog about official activity, including occasional official misconduct, behind the coward's shield, and commenters on countless blogs hide the same way, often with half-baked excuses about fear of 'harassment' if they sign their name to their uninformed and baseless opinions.

What finally drove me to it, though, was "LawProf's" poor attempt to defend anonymity on his own blog.

Anonymity isn't my style (this blog is the first anonymous thing I've ever published , and I've published a lot), but I thought I would give it in a try in this context, for at least a little while, as a kind of stylistic experiment. Anyone who does genuinely critical work soon learns that the classic knee-jerk response on the part of those who don't like the criticism is to attack the messenger rather than the message. So I thought it be worth authoring this blog more or less anonymously, at least for awhile, to try to keep the focus on the substantive criticisms. I also didn't want to give the impression that these criticisms are directed at my law school in particular: they most certainly aren't. I'm talking about systemic and structural failures, rather than those of particular institutions (let alone particular individuals).

"LawProf" may be correct that an anonymous author tends to make it more difficult to attack the messenger. But that small benefit is severely outweighed by the overwhelming negative effects of anonymity. Any criticisms he make are weak and suspect: if their author isn't willing to sign his name to them, why should anyone believe him? And while there's a small problem when listeners focus on the person making the criticism, there's a much more significant problem when the speaker has no reputational motivation to keep his criticisms reasonable, accurate, and fair.

So, "LawProf," if you ever break out of your anonymous mask, I hope you'll graciously accept whatever harm your writing does to your reputation rather than whining that you're being unfairly attacked. And I hope you realize the full cowardice of your choice.

Advice for 1Ls

2011-08-19T15:00:00.001-04:00

Paul Horwitz has some interesting advice for entering law students that I thought was worth passing on. Here's a taste:

Stop Worrying About Competitive Advantage...Similarly, on class websites some students lurk rather than contribute because they're afraid of giving anyone else an answer; and some students don't talk in class if they have the right answer because they believe they'll gain a competitive edge over the competition. I've been teaching long enough to say with confidence that this is 95% illusion, and that students who think this way are actually losing an excellent opportunity to gain a competitive edge. (And to not be jerks or alienate their classmates, but that's a different story.) If you can carefully and clearly explain some legal problem, you are at least two-thirds of the way toward mastering the material and being able to put it down in an exam in a way that will make you stand out as a top-performing student. Teaching others is a great way to learn; it helps you put the material together, it helps reveal questions you didn't know you had, and it helps you learn how to communicate that material. The "edge" you lose by helping others is minimal compared to the "edge" you gain in mastering that same material by teaching it. So go ahead and cast that bread on the waters.

(Incidentally, this is also excellent advice for undergraduates.)

Is Medicare A Private Sector Program?

2011-08-18T12:00:00.000-04:00

Rick Hills has an interesting piece on Prawfs that's worth reading on this subject: his basic thesis is that the government has so little control over Medicare costs that it's not really accurate to call it a government program (although he admits he has no expertise with health law.) I think the last line is particularly interesting, so I'll put it here with another exhortation to read the piece.

Ironically, our budgets are so bloated because our state is so weak.

The Plain, Present Meaning and Evolutionary Public Consensus

2011-08-16T14:00:00.000-04:00

A while ago I proposed a theory of constitutional interpretation that I labeled "evolutionary public consensus." The basic idea is that laws retain their force through the years only because they are implicitly consented to by those who live under them, and thus we should interpret those laws according to their meaning to modern individuals.

Tom Bell on Agoraphilia has a post supporting a very similar idea, which he calls the "plain, present, public meaning" of the Constitution. Bell writes:

But originalism and living constitutionalism raise a different problem, given that they base constitutional meaning on historical usage (in the first instance) or Supreme Court precedents (in the second). Only specialists in constitutional law—and not even all of them—have the expertise to engage in that sort of decoding process. Did you know, for instance, that “Property” includes government entitlements in the Fourteenth Amendment but not in the Fifth? If so, I doubt you figured it out from reading the Constitution, alone.

.........

Ratification may be necessary to make a Constitutional term effective in the first place, but it is not sufficient to make an original meaning binding on subsequent generations.

I think Bell has it basically correct, though he may focus a little too much on the meaning of the words themselves as opposed to the meaning of the words in the context of the Constitution. To find out what 'religion' means in the context of the First Amendment, we shouldn't look to how people interpret the word 'religion' on its own, but how they think of it as an element of the Constitution.

However, Eugene Volokh takes a very different view of Bell's piece, and has a (rather weak, in my opinion) critique of it posted. Here are a paraphrased collection of his general complaints, though you should look at his post for the specific examples:

Most people don't spend much time thinking about the meaning of the Constitution.

Besides the obvious elitism (most people don't spend as much time thinking about the Constitution as law professors, but the level of constitutional sophistication among Americans is quite encouraging), this exact same criticism can be leveled against public meaning originalism (the only quasi-reasonable type of originalism). Public meaning originalism relies on the myth that there was a commonly understood and accepted public meaning to the Constitution when it was enacted. It's silly, of course, to pretend that Americans then were somehow all paragons of sophisticated political thought who were well versed in law and thought deeply about the proposed Constitution. But of course that's not really necessary: those who consent without thinking haven't earned any influence over the interpretation, but that's no reason to deprive those who do consider it of their rights.

Some phrases in the Constitution don't have a current meaning in English, or at least not one that makes sense in the context of the Constitution.

The response here is easy, and I already basically made it above: we need not look for the Constitutional text to have meaning in a void, only that it have meaning in the context of the Constitution. This approach makes public discourse, judicial precedent, and original meaning all relevant to the extent that they're in the public consciousness. If we ever do get to the point where an ordinary American looking at the text of the Constitution has no idea what it means, then it's time to replace it. But I don't think we've reached that point yet, and if we do it's evidence of the weakness of the text, not a defect of the interpretative theory.

English speaker's understanding of the text will be either based on precedent or original meaning.

Volokh claims that even if we look to public understanding, that understanding will, in certain cases, have to be based on original meaning or precedent. That may well be true, for each individual (though I'd question the suggestion that original meaning and precedent are the only two sources of meaning.) But even if it is, evolutionary public consensus recognizes the possibility of coexistence of the theories: if people partially accept precedent and partially look to original meaning, the theory can accommodate that, whereas the two theories themselves demand unilateral dedication.

All in all, evolutionary public consensus (or the "plain, present, public meaning") is the only interpretative theory that can truly do justice to the ideal of 'consent of the governed' rather than establishing a tyranny of history or supremacy of the judiciary.

Shoddy Capitalist Platitudes

2011-08-10T18:00:00.000-04:00

In a recent post at the Volokh Conspiracy, Ilya Somin argues that despite having lower educational achievement on average than women and having lower salaries in some groups, men are not actually in decline. Many of the points he makes are good ones, including the fact that well-being in capitalist societies is not zero-sum: women can improve without hurting (and maybe helping) men's standard of living.

However, one careless claim stuck out. This seems to be a common argument among capitalism-optimists, so I thought I'd pull it out and address it.

On balance, men actually benefit from the rise of women, just as gentiles benefited from that of the Jews. Everyone is better off when society is able to more fully benefit from developing the talents of more of its people.

The idea that 'everyone is better off' is simply false. While it's true that increased human development does raise the overall well-being of a society, it's not at all true that 'everyone' will necessarily benefit from that.

In fact, wealth consolidation is often preferred by market forces, because consolidated capital is sometimes better at propagating itself. For this reason, increased total capital may actually be accompanied by a decrease in available capital (as both an absolute and relative matter) for the worst off.

Somin may well be correct in this specific case, but the claim, as a generality, is not correct. Capitalism, from a sufficient level of abstraction, tends to increase overall capital. It does nothing to ensure that "everyone" benefits from that increase.

Incompetent Legal Commentary on Techdirt

2011-08-09T16:00:00.005-04:00

Legal commentary is a tricky thing. There are usually legitimate differences of opinion involved (or else the case wouldn't have survived, generally), and people often have strong views about the issues. But there's little more irritating to me than legal commentary that either completely fails to engage the reasoning or deliberately lies about the law.

Mike Masnick's recent article, "Court Says Sending Too Many Emails To Someone Is Computer Hacking," is a good example. In part:

Okay, the courts are just getting out of hand when it comes to the Computer Fraud and Abuse Act (CFAA), which is supposed to be used against cases of malicious hacking. Most people would naturally assume that this meant situations in which someone specifically broke into a protected computing system and either copied stuff or destroyed stuff. And yet, because of terrible drafting, the law is broad and vague and courts are regularly stretching what the CFAA covers in dangerous ways.

The latest example, found via Michael Scott is that the Sixth Circuit appeals court has overturned a district court ruling, and is now saying that a labor union can be sued for violating the CFAA because it asked members to email and call an employer many times, in an effort to protest certain actions. Now some of the volume may have hurt the business, but does it reach the level of hacking?

I can't say whether Masnick is deliberately lying to his readers, or if he just can't read the opinion and the statute. But the word that his whole post revolves around, 'hacking,' seems to come purely from his imagination.

The law in question is called the "Computer Fraud and Abuse Act," and there can certainly be fraud and abuse of computers without 'hacking.' And the actual legal claim made was that there was either a 'transmission' or an 'access' violation (see page 6 of the opinion, available in Masnick's post.)

The transmission violation is defined in 18 U.S.C § 1030(a)(5)(A):

Whoever knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer shall be punished as provided in subsection (c) of this section.

The access violation is defined in 18 U.S.C § 1030(a)(5)(B):

Whoever intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage shall be punished as provided in subsection (c) of this section.

Whether either of these standards has been met in the case is a fair question, and there could be a legitimate discussion of that. There can also be a good argument over whether the CFAA is a good law, or whether it's incredibly over broad. But those discussions won't ever happen so long as people like Masnick keep pulling legal standards out of thin air. 'Hacking' has nothing to do with it, and there's no good reason to pretend it does.

Governor Perry's Transcript

2011-08-07T11:00:00.000-04:00

The Huffington Post recently got a hold of Texas Governor Rick Perry's college transcript from his days at Texas A&M. It's not a very pretty sight. In his four years, Perry scored two A's, in "World Military Systems" (the first semester; in the spring he got a C) and "Improv. of Learning." During his first year he seems to have scored a 1.33 on a 3 point scale, and during the rest of his career he made a 2.17 on a 4 point scale.

I'm not one to say that a college transcript is proof of intelligence. Certainly, people who perform poorly in college could end up being successful — and even good — political leaders. I'm certainly not going to endorse Brian Leiter's elitist suggestion that the transcript proves Perry is "dumb."

But Perry's poor performance at Texas A&M is interesting because Perry is one of the anti-intellectual conservatives pushing damaging "reforms" on public higher education.

There's a natural human instinct to value the things we're good at, and devalue the things we aren't. I'm sure psychologists have a name for this kind of bias, but it's a clearly present part of how we operate. The math professor is going to value math much more highly than physical fitness, while the football coach will be the other way around.

Perry's college record gives us an explanation for why he might undervalue a true liberal arts education: it's just not something he thrived at. And understanding the root causes of our opponent's positions is important to changing their minds.

Of course, those of us who succeed in academia should also ask ourselves if we aren't suffering similar biases. Are strong college transcripts as damaging to a defender of higher education as weak transcripts are to a critic?

The Ministerial Exception, Redux

2011-08-05T21:45:00.000-04:00

A while ago I promised a post on why I think the ministerial exception is bad law. I've started to write that post a few times, but I've found there's just too much to say about it to make blogging the appropriate forum.

Instead, I'll link to this recent post at Concurring Opinions that I think makes the important points, though it doesn't completely address all of the arguments in favor of the exception. I'll be happy to engage with anyone who disagrees with me in the comments.

Affordable Care Act Litigation

2011-08-05T12:45:00.000-04:00

Gerald Magliocca at Concurring Opinions has a post pointing out the relatively obvious but overlooked fact about the litigation surrounding the Affordable Care Act. Assuming the Supreme Court does not give into its desire to control an important political dispute, they will almost certainly avoid accepting any cases on the issue until a circuit split develops. Since the only circuit to consider the issue so far has upheld the mandate, any potential writ of certiorari is probably a long ways off.

Tea Party Terrorism in the Debt Ceiling Debate

2011-08-03T14:00:00.000-04:00

Eugene Volokh suggests that it's wrong to label the "peaceful politics" of the debt ceiling debate as "terrorism" by those threatening to push the country into default to get their way. I've used the term a few times, so I thought I'd explicitly lay out my rationale here.

To be clear, I'm operating from the premise that default would have caused a severe economic crisis, especially if it lasted for any length of time. That's a separate debate, the result of which I'll assume here.

In light of that, threatening to default is not "peaceful politics," not is it good-faith negotiation. Instead, it is using the threat of mutual destruction to achieve one-sided goals. Default would have been good for nobody. It was not actually a policy goal of any but a few crazy people. Instead, it was a result that everyone was trying to avoid. In a situation like that, you would normally see an argument between ways to prevent default, with battling priorities. The debates would have been between tax increases and spending cuts, cuts to the military and cuts to Medicare, etc. Instead, even though they didn't want a default, the Republicans — especially the Tea Partiers, and excluding some reasonable conservatives — were able to convince the Democrats that they were willing to default absent unconditional surrender.

In that way, they were behaving like terrorists. Terrorists generally do not want to kill anyone. (Take the Norway shooter/bomber's statements, for example.) However, their bargaining strategy is to convince civilized people that they are willing to commit atrocities absent getting their way. It turns, say, the Israeli-Palestinian conflict into "give us what we want or we will kill you" rather than "how can we each get part of what we want." It turns the US's Middle East conflicts into "unless you cease interfering in our culture we will kill you" rather than "how can we balance your national security interests with our desire to live apart from your culture's influence?" And it turned the debt ceiling debate into "how can we balance our priorities to keep the government functioning" (the usual budget debate) into "give us what we want, or the country is going down."

Balanced Budget Amendment

2011-08-02T14:00:00.000-04:00

One of the more ridiculous things that the Tea Party Republicans pushed for during their debt ceiling attack was a vote on a proposed Balanced Budget Amendment. They managed to get a requirement for a vote into the final debt bill, though it's a silly clause: it requires a vote only on a joint resolution with a certain title, rather than saying anything about the substance.

Given that this may become a bit of an issue, I thought I'd lay out the problems with both a genuine "balanced budget amendment" and with what seems to be the current top proposal flying under that name.

A genuine balanced budget amendment is a simple thing, really: it would require that revenues at least equal expenditures, so that the government never runs a deficit.

The problems with this kind of proposal are obvious. As any individual not fortunate enough to start with vast resources can tell you, taking on debt is often necessary to succeed. Businesses survive because of their ability to take on debt; hell, capitalism itself cannot exist without the profitable lending of capital: i.e. loans and debt. And even though some people will lie and tell you otherwise, only the most fortunate and wealthy individuals can go their entire lives without carrying any debt year-to-year.

To take a few extreme examples, a genuine balanced budget amendment would prevent the government from taking on temporary debt to pay for a war critical to national security. It would prevent the government from taking on debt to support the country in a time of severe drought and famine. It would prevent the government from taking on debt to keep essential infrastructure (postal surface, interstates, etc) working during a severe economic downturn, which would do severe damage to many businesses and likely prolong the depression.

Of course, the flexibility that debt allows is essential in more ordinary situations too. Many states have such amendments, but they work largely because those states are not independent entities; they have the federal government to take on debt on their behalf and bail them out. The federal government has no such safety net.

Of course, those who actually propose a balanced budget amendment recognize these obvious deficiencies of the idea, so their proposal isn't really a balanced budget amendment at all. Instead, it allows Congress to simply ignore it in times of "military conflict which causes an imminent and serious military threat to national security." In other words, its supporters recognize that emergencies will require borrowing, but for some reason only recognize military emergencies. (The cynic in me would suggest that the supporters are simply prioritizing their favorite kind of spending over all others. No other part of me can summon a strong enough argument to counter the cynic.)

The proposal also inexplicably includes a clause that actually makes it harder to balance the budget: it requires that bills increasing revenue be approved by 2/3 of each house of Congress rather than a simple majority. The motivation is obvious: the balanced budget amendment is supported by people who want the government to be small. But this clause demonstrates the deceptiveness of the label. The proposal isn't really a "balanced budget" amendment, it's a spending cut amendment. A true "balanced budget" amendment would make it hard to decrease revenues and increase expenditures. Anything that does otherwise is flying false colors.

Finally, the amendment would allow the Congress to pass an unbalanced budget, but only with 2/3 support. In combination with our ridiculously broken Senate system, this would mean that a mere 7.5% of the US population has enough representation to prevent us from taking on necessary debt.

Everyone recognizes that a genuine balanced budget amendment would be a horrible idea. But even the proposed "balanced budget" amendment is a typical failure of constitutional design: it attempts to address a current problem with a severe structural reform, without considering the possible severe effects of that reform in different circumstances. Our Constitution is rarely amended, so when we do amend it we must be sure to do so in a way that plans for the future rather than just addressing the present.

Debt Ceiling Bill

2011-08-02T13:00:00.000-04:00

Lots of news organizations either don't know how to include links on their website, or don't think their readers deserve to read the text of the debt ceiling bill. I disagree, so here it is, and here's the rest of the THOMAS information.

Stunning Accusations of Prosecutorial Misconduct

2011-07-25T14:00:00.001-04:00

The ABA Journal has a story about how the software engineer who designed a program police used in the Casey Anthony trial notified them that some of their results were in error. The extent of the error? The prosecution told the jury that Anthony searched for "chloroform" 84 times. She actually only searched for it once.

The computer expert apparently notified the prosecution before the end of the trial, but they failed to correct the error or notify the defense. There's been no word on why the engineer also failed spectacularly in his moral obligation to notify the defense team of the mistake.

A later story on the ABA Journal suggests that the prosecution and defense were aware of the issues and agreed on the result that said she visited only once. That may be, but it's not what I kept hearing on the news. Nancy Grace, where's your correction?

The National Popular Vote

2011-07-22T15:30:00.001-04:00

Paul Sracic (Political Science, Youngstown State) has a CNN opinion piece about the National Popular Vote, an interesting proposal to revamp American Presidential elections.

The idea is simple: the President of the United States should be elected by the majority of the voters, not through the arcane electoral college bequeathed to us by the Constitution. But rather than pursuing this goal through a difficult-to-pass constitutional amendment, the NPV people are trying to achieve it a different way. Since the Constitution gives states the full authority to assign their electoral votes through whatever method they choose, the NPV compact would have all participating states assign 100% of their electoral votes to whichever candidate wins the national popular vote. States pass the bill individually, but it only takes effect once states constituting a majority of the electoral college all pass it, thus guaranteeing that the winner of the popular vote will win the election. (Until enough states enact it, those who have done so can continue to use their old system.)

The most amazing thing about this, to me, is that 8 jurisdictions representing 29% of the electoral college have already passed the bill. There's a very real chance that the proposal could succeed. But is it a good thing? I'll first examine how it would restructure presidential elections, then consider the critiques that Sracic offers.

What Would NPV Change?

The most obvious change under NPV is that the popular vote and election results would no longer disagree. Were the votes the same, Samuel J. Tilden would have beaten Rutherford B. Hayes in 1876; Grover Cleveland would have beaten Benjamin Harrison in 1888; and Al Gore would have beaten George Bush in 2000.

But rare changes in close elections aren't really that significant. (Well, of course they can have a major impact, but there's no way to know how that impact will play out in the future.) Whats really interesting are the practical effects of a shift in the election laws on presidential campaigns.

First, NPV would cause a shift in power. Currently, a disproportionate influence is held by swing voters in swing states. These individuals provide the best marginal return on the investment of campaign resources (whether it's money, volunteer time, candidate appearances, or election promises). The independents can be swayed, and in swing states candidates need to convince fewer voters to come to them in order to win all of that state's electoral votes (thanks to winner-take-all rules.)

Under NPV, candidates would no longer be drawn specifically to swing-states, but instead would be more motivated to appeal to all undecided voters. While a Republican presidential candidate might not invest much time in California at the moment (sure, there are a lot of undecided voters in a state that big, but the Democrat is just going to win the state anyways), with NPV those voters would become more valuable, because their votes would matter individually.

This change would mean that swing state issues would have less influence over national politics. The new system would value states with more undecided voters (i.e. more moderate states) over states with a closer tie between parties (i.e. more polarized states). Under NPV, a candidate would want to spend time in those states where 60% of the voters he meets will be undecided, not in the state where 98% of the voters have made up their mind and the other 2% will decide which way the state's electoral votes go.

Of course, NPV would also increase the costs of elections. Candidates would have to spread themselves across more states in order to remain competitive, and would have to target voters with more diverse viewpoints. This would lead to more genuine public discourse and encourage discussion of national issues, but it would also be more costly.

The NPV folks respond to this by claiming that candidates already tap out their available fundraising, and thus there would be no increase in campaign costs since there would be no increase in donations. That argument fails for two reasons. First, national campaigning would enable candidates to fundraise more, since supporters are more willing to give when candidates pay attention to their issues. Under the current system, the incentives aren't strong enough to encourage candidates to do so (the increased funds from campaigning in states that are impossible to win don't offset the costs of wasted campaign resources), but they would be if candidates had to campaign in that state anyways. It's also false to suggest that candidates completely tap out other fundraising sources currently. Were more funds required to campaign effectively, they may be more willing to bow to the desires of various special interests in exchange for cash.

Even with this downside, though, NPV seems worth it. It would certainly increase the quality of public discourse and make candidates may more attention to every voter who was legitimately interested in becoming involved in the electoral process.

Sracic's Concerns

Sracic's first argument against the NPV is the same cost issue I raised above, and so I won't readdress it.

His other main argument is that an NPV would encourage a splintering of the vote, since the NPV compact would give the election to whomever had a plurality of the popular vote. It does not require that any candidate attain a majority.

Experience goes against him, however. Many elections in the United States are done based on pluralities of the popular vote, and significant splintering is rarely a problem. And while I would like to see some sort of primary and runoff system worked into the NPV proposal that would make the race more accessible to third parties, Sracic's argument that "victory could be achieved with just over 25% of the popular vote" is not a serious concern.

If you want to support the National Popular Vote proposal, you can find more information about it at their website.

Public Accommodations and Discrimination

2011-07-21T16:30:00.003-04:00

Laws against discriminating in public accommodations are tricky. As far as I know, they're a product of the civil rights era, when they were necessary in order to break the back of privatized segregation and ensure that all individuals are able to participate in normal civic life. When those who hold the economic power in a community discriminate against certain groups, that discrimination is as despicable and dangerous as governmental discrimination.

However, there's also a strong First Amendment case against these laws. People should be allowed to express their opinions through their decisions over whom to serve: a restaurant owner ought to be allowed to exclude two men from the premises if they're saying offensive things about homosexuals, just as he ought to be able to exclude two men who are kissing. It is his store, after all, and he can limit what goes on there.

For me, the line between legitimate (in the sense of "should be allowed," not "is correct, or even defensible") expression and proscribed discrimination ought to be found in the "big picture." That is, we should ask "is this discrimination part of a large, prevalent, quasi-coordinated effort to oppress the economically powerless minority?"

Laws against racial segregation in the Civil Rights era obviously passed this test: whether they still do depends on the local community.

All this brings me to a post by Rob Vischer at Mirror of Justice.

Does a Catholic innkeeper have the right to decline to host a same-sex wedding reception? At least in Vermont, the answer will undoubtedly be "no." My own view is that the innkeepers may properly be subject to boycotts, protests, etc., for staking out such morally contested positions, but I do not believe that they should be subject to the coercive power of the state for such positions absent a showing that they have blocked meaningful access to a good or service deemed essential by the political community. Note that the couple had no difficulty booking another venue.

Answering this question depends on evaluating whether the discrimination is actually interfering with the couple's ability to lead a normal life. Is it widespread enough that they must pay higher prices or take on other costs to do what members of the majority do routinely? The last sentence suggests not ("the couple had no difficulty booking another venue"). In this case, the best solution is to use boycotts and other methods to punish the innkeeper for the reprehensible decision, not to threaten freedom of expression through antidiscrimination laws.

Kaczor on Abortion: Focusing on Rights

2011-07-21T00:20:00.000-04:00

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 7/20/11, currently at page 38) -------

Focusing on Rights

Throughout the first two chapters of Kaczor's book one assumption seems prevalent, necessary, and completely unaddressed. That assumption is that it makes sense to discuss the ethics of abortion within a framework of the "right to life."

While many of the pro-choice philosophers Kaczor responds to in Chapter 2 also seem to accept this framework, the reader should be hesitant to dive down the rabbit hole. Why are "rights" the way to talk about this?

Does this person have a right to life? Kaczor asks us, again and again. If this person does, how can this person not?

But does that concept even make sense? Upon close inspection, I would argue it fails. Rights, ("moral rights," 12), rely on a few components: (a) an agent who (b) possesses something which, if (c) taken away constitutes a (d) moral wrong against (e) the original agent.

(a) and (b) are not troubling: there are numerous ways to defend the idea of possessive agents, ones which I will not question here. Neither is (d): unless we want to challenge morality itself. Moral wrongness, while difficult to pin down, can certainly exist. But what of the combination of (c) and (e)?

First, what does it mean for something to be taken away? In some cases, that's easy to answer: if we accept that I have a right to possess the phone that is in my pocket, (c) is satisfied if I no longer possess the phone. A simple empirical inquiry confirms that it has disappeared, has gone, has been taken away. My property right has been violated.

The necessity of (e) is perhaps harder to see: why must the moral wrong that accompanies the abrogation of a right accrue to the person who possesses the right? After all, this is not true of moral wrongs generally: things can be wrong without harming anyone in particular. As it happens, (e) is precisely what separates moral rights from these other things, which we may perhaps call moral laws. A right is a right because someone possesses it, and it is wrong to violate it precisely because that person no longer possesses it.

Can a so-called "right to life" satisfy (c) and (e)? I do not think it can. After all, how can something be (c) taken away, and how can that removal (e) harm the possessor of the right, if to take away the right by definition entails that the person who possesses the right completely ceases to exist?

I can violate your property rights because after I do so, you are still there. You have lost something, and you have been harmed. But a "right to life" cannot exist because the holder simply does not exist once it has been taken away. Put another way, the phrases, "I have taken away your money," "My money has been taken away," and "I have been harmed by the theft of my money" all make sense. "I have killed you," "I have been killed," and "I have been harmed by the destruction of my life," do not.

To talk of the deprivation of the right of life presupposes an essential existence that extends beyond the point when the right is taken away. Certain religious traditions can justify this through separating existence from life, but this option is not available to Kaczor in his avowedly secular approach (5).

When a life is ended, rights anchored to that life must also disappear. A right that ceases to exist at the same moment it is violated cannot be a right at all.

Book Review: The Most Human Human

2011-07-19T23:58:00.000-04:00

I just finished reading The Most Human Human: What Talking With Computers Teaches Us About What It Means to Be Alive, by Brian Christian. The book falls in the intriguing and dangerous genre of popular intellectualism (though Christian might bemoan the act of classification itself).

Many such books fail because they give off an air of expertise and finality. "This field is interesting because of what it says about my topic," authors seem to say, "and once you finish reading, there's no reason to go learn more about it."

Christian's work is the opposite. Rather than trying to prove himself in the diverse fields he touches upon (poetry, philosophy, linguistics, computer science, professional chess, and dating, to name a few), Christian marvelously plays the role of intrigued and intriguing guide. He is not a native of the city who leads the same tour that his father did and recites every detail of the architecture and culture by rote. Rather, he's the fellow traveler, as interested in exploring, poking around, and asking questions as we are.

The dust jacket boldly pronounces:

In examining the philosophical, biological, and moral questions the Turing test poses, the ultimate subject of the book is humanity—an attempt to fill in the blank in the ancient riddle, "The human being is the only animal that _____."

While a book that did that may have been interesting, it is not the book that Christian wrote. He doesn't provide answers, but the omission is not typical and pedantic. "I could tell you the answer, but it's better if you work it out for yourself," many academics say. "The remainder is left as an exercise for the reader." The Most Human Human, on the other hand, has no answers because, in a very real sense, it has no question.

That's not quite right, of course. Christian asks many questions, and even lets a few 'main ideas' trace their way through the book. But he elegantly and perfectly breaks that cardinal rule of writing: have a thesis. He rambles. He segues. He makes it almost back to the point, then sets out in a new direction. The entire time, he keeps you on your toes: there is no rhythmic flow, no predictable structures of claims, proofs, and conclusions.

The book itself is an interesting embodiment of the kind of conversation that Christian continually returns to throughout the book. Limited as he is in his medium (a book, after all, does not interact with you), Christian gives the readers 'holds.' He invites them to question, to explore. Though the book doesn't follow an obvious path, it is still contextual: you can't drop in at the middle because a section sounds interesting, any more than you can easily jump into a deep conversation because you overhear a familiar name.

As I was reading, I found myself wanting to highlight a particular argument, a particular idea. But looking back on the book, I realize what a mistake that would be. The power is not in any single idea, removed from its context. There is nothing earth-shattering in Christian's insights, and putting forward a few arguments to represent the work would be a disservice to its real qualities. To borrow another idea, the book is entropic: full of information. I cannot compress it down, because it is the kind of thing that loses meaning in compression. The value is in the experience, not the pieces. You can't Spark Notes it.

The Most Human Human won't change your life. It probably won't even change your opinion on the essence of humanity. But it will help open your eyes to a wonderful vista of questions, and may help reawaken that inner child who looks at some familiar, everyday object and asks "Whazzit?"

Herman Cain...

2011-07-19T20:30:00.001-04:00

...just established himself as a nutjob and lost any right to attention by any blogger or news outlet that takes themselves seriously. Read about this event, and then never feel the need to think about Herman Cain ever again. That is all.

2012 Republican Presidential Candidates: First Glance (7)

2011-07-17T15:10:00.004-04:00

Part 1: Herman Cain & Newt Gingrich
Part 2: Gary Johnson & Fred Karger
Part 3: Tom Miller & Ron Paul
Part 4: Andy Martin & Jimmy McMillan
Part 5: Tim Pawlenty & Buddy Roemer
Part 6: Mitt Romney & Rick Santorum
Part 7: Michele Bachmann & Jon Huntsman (this post)
Part 8: Thad McCotter & Roy Moore (upcoming)
Part 9: Vern Wuensche (upcoming)

I think it's time to take a first look at the potential candidates for the 2012 Republican Presidential nomination. I'm pulling from a source list here. I'm going to look at each candidate on four main topics: Civil Rights, National Security, Economy, Constitutional Vision. I'll rate them on a four point scale (from best to worst): Strong, Acceptable, Weak, Unacceptable. I'll also include a brief justification, so if I miss something relevant (which I probably will, with so many candidates to consider) feel free to leave a note in the comments section and I may adjust the ratings. Most of my information is going to be pulled from the candidates' websites, for those that already have them.

This post will address Michele Bachmann and Jon Huntsman. Look at the top for links to other posts in this series, and watch for more new posts to come.
Michele Bachmann
Civil Rights: Unacceptable
Bachmann's website says she wants to "Strengthen the family and defend marriage." While the words she's using should mean that she supports marriage equality, I suspect it means she actually wants to attack same-sex couples. She supports an overthrow of Roe v. Wade and various unconstitutional restrictions on abortion.

National Security: Weak
Bachmann supports a much slower draw down in Afghanistan, which threatens to draw that war out and threaten our national security by creating new radicals and terrorists motivated to attack the United States. Worse, she puts too much faith in military answers to national security questions, forgetting that there's a very good reason the Constitution guarantees civilian control of the armed forces.

Economy: Unacceptable
Bachmann would risk economic collapse from default in order to vindicate her radical spending cut agenda, rather than small tax increases on those who've prospered from the American system far more than any others. She's also lied about the economic impact of health care reform. [Update 8/1/11: Bachmann actually said that nothing would have convinced her to increase the debt limit. That alone would have earned her an 'unacceptable' rating.] [Update 8/18/11: Bachmann actually said that her opposition to raising the debt ceiling 'turned out to the the right choice.']

Constitutional Vision: Unacceptable
Bachmann's expressed dedication to the Constitution, if genuine, would be a good thing. Unfortunately, she operates under a warped vision of American Constitutionalism that sees government as a problem rather than a problem-solver, and idealizes individualism beyond all reason. Her version of constitution-worship is demonstrated by her denigration of the idea of the Constitution as a "means to an end" (which it clearly is). She seemed to approve of a flawed constitutional regime that would allow Congress to 'overrule' the Supreme Court on abortion issues. Finally, she seemed to say that there are things 'inherent' in the Constitution (based on some standard) and that she would leave it up to others to decide how to actually ground those things in the text.

Jon Huntsman
Civil Rights: Weak
Huntsman is decent on same-sex rights (he supports the opportunity for civil liberties), but there's a concern that a bill restricting extracurricular activities he signed could be used to target gay-straight alliances. Less speculatively, that bill is a dangerous assault on the rights of students to develop independently of parental brainwashing and micromanagement. Huntsman has also come out strongly against the abortion right.

National Security: Acceptable
Huntsman seems to have a good policy on responses to terror attacks: quick, flexible responses mixed with strong international relationships and diplomatic ties. His strong relationship with China could prove very useful in the years to come, and having a former diplomat in the White House would be good for our country in many ways. There just isn't enough information, though, to justify a rating higher than "Acceptable."

Economy: Weak
Huntsman supports a balanced budget amendment. While the sentiment is nice (and we absolutely need to rein in our deficit and pay down our debt), taking on debt is often a useful and necessary finance tool. A balanced budget amendment would take away that flexibility. He also proposes weak tax policies like a flat income tax, and made a very misleading statement about corporate taxes in America on his website.

Constitutional Vision: Weak
I'm raking Huntsman "weak" on Constitutional Vision solely because I've been unable to find any statements from him that give a peek into his philosophy about the role and purpose of government at a principled level.
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Now, cumulatively speaking, we have (ranked in best-to-worst order, with scores in the following order: Strong - Acceptable - Weak - Unacceptable):

Karger: 1 - 3 - 0 - 0
Roemer: 1 - 1 - 1 - 0
Johnson: 0 - 2 - 2 - 0
Huntsman: 0 - 1 - 3 - 0
Paul: 0 - 1 - 3 - 0
Romney: 0 - 1 - 1 - 2
Gingrich: 0 - 1 - 1 - 2
Bachmann: 0 - 0 - 1 - 3
Miller: 0 - 0 - 1 - 3
Pawlenty: 0 - 0 - 1 - 3
Santorum: 0 - 0 - 1 - 3

Signs of Helicopter Parenting...

2011-07-16T20:00:00.000-04:00

...from Sanches v. Carrollton-Farmers Branch Indep. School Dist. (H/T: Eugene Volokh).

If you've done any of the following things, you really need to take a step back and reconsider your life:

Asked the administration to remove a student from an extracurricular leadership position for kissing your daughter's boyfriend;
Complained about a booster club throwing a baby shower for the team coach;
Accused a student of sexually harassing your daughter by telling her she was having sex with your daughter's boyfriend;
Complained about that same student slapping your daughter's boyfriend on the ass.

Of course, actually reading the opinion will make it clear that this mother had no grasp on reality, and an unhealthy obsession with her daughter's cheerleading activities.

Tinker in Universities?

2011-07-16T17:00:00.000-04:00

Tinker v. Des Moines is an old Supreme Court precedent that allows public schools to routinely violate students' First Amendment rights. It's a huge blemish on our jurisprudential history (not as bad as Plessy or Korematsu, but it's up there) and it should be reversed posthaste.

Unfortunately, the Minnesota Court of Appeals is doing exactly the wrong thing, and extending the logic of Tinker to university students. The only good thing I see about this is that it might actually get people who can vote upset. Tinker restricts the rights of those who are already disenfranchised, and so it was never very vulnerable. The extension may actually resolve that issue.

I can only hope.

Stuck in Marriage?

2011-07-15T17:00:00.000-04:00

Courtney Joslin at Concurring Opinions wrote about an interesting aspect of this nation's sickeningly irrational approach to same-sex marriage. Without nationwide recognition of the right of all couples to equal protection under the law (New York is the seventh jurisdiction to see the light), same-sex couples can get married, but often they cannot get divorced.

As Joslin writes, most jurisdictions (including the seven that offer marriage equality) do not have residency requirements for marriage: couples from around the country can go to New York or the other six and be legally married. But divorce is a different matter: courts generally have jurisdiction to grant divorces only if one of the spouses lives in the court's forum.

This is a problem in more than name. No matter what the religious radicals would have you believe, marriage isn't just an official recognition of a religious act, nor is it primarily about sexual relations. Marriage confers all sorts of rights and responsibilities on couples in terms of child-rearing, joint property, etc.

Same-sex couples who live in discriminatory jurisdictions may face obstacles in going through an amicable divorce. Perhaps they will choose to stay married, and work out ways to imitate the divorce through other means (just as same-sex couples who cannot get married try to find ways to imitate the legal marital relationship through other means.) Of course, this route is costly and not easy, but there are probably ways to make it work.

The situations is even more bleak for those spouses caught in bad (or abusive) relationships in states that will not let them divorce. If their spouse is unwilling to cooperate, the one seeking the divorce might be forced to bear the expense of moving to a jurisdiction that grants equality of the law - and remaining there long enough to establish a domicile for jurisdictional purposes. The costs, both in financial and career terms, would be immense. (Not to mention that the spouse seeking the divorce would probably be forced to leave any children with the dissenting spouse or risk kidnapping charges. I don't even want to think about the complexities of interstate custody disputes where one of the jurisdictions doesn't even recognize the legality of the original marriage.)

Everything above is just the long way around to this point: it's time for a federal defense of marriage equality amendment.

The Magic of AP Errors

2011-07-10T23:34:00.004-04:00

An instructive and close to home story came up today about the effects of syndicated error in the internet age. Various news stories have been popping up about Betty Ford's memorial services; surprisingly, Jeffrey MacKie-Mason (my father and the dean of the University of Michigan School of Information) was identified as one of her eulogizers.

The error comes up all over the place: The Sun News, ABC, Yahoo, FOX Carolina, NBC, Capital Bay, CNS News, Miami Herald, Oregon Live, Nation, Boston Herald, Huffpost ... and many, many more.

The source of all of these stories is, of course, the AP. With the internet and syndication, a single incorrect story can make it all over the world.

A few places do have the right news. The speaker is actually Geoffrey Mason, a former member of the board of the Betty Ford Foundation. But the extent to which the AP news is spread, and the number of corrections that (should) be popping up over the next few days, is just staggering to me. And since this is the internet, the incorrect story will never be completely gone. There will forever be sites identifying one of the eulogizers at Betty Ford's memorial as Jeffrey MacKie-Mason, dean of UM SI.

Roundup

2011-07-07T10:00:00.000-04:00

It's time for another brief news roundup. Here goes:

Some people (see, eg, near the end of this comment thread) claim that extending free insurance to the poor wouldn't improve health outcomes. The New York Times would beg to differ.
The opponents of equality have not yet given up. (And some of them don't understand the law.)
Thomas Baker pimps an article by some of colleagues about the ethics of academics and lawyers commenting on public issues, in light of the ridiculousness surrounding commentary on the Casey Anthony trial.
Josh Blackman points out that Justice Thomas doesn't understand originalism: he looked to the Founding Era to understand the 14th Amendment. If it's backers don't even understand it, should originalism be scrapped?
Randy Barnett reports that a Republican is questioning the constitutionality of tort reform.
The racist sentencing disparities between crack and powder cocaine get a little better.
POLITICO reports that the US is resuming contact with the Muslim Brotherhood and speculates that some Jewish voters may be upset by the prospect of diplomacy with a group that doesn't recognize Israel.
TSA says that it's workers aren't allowed to wear devices that would act as a precaution against overexposure to radiation because, well, if everything works right then they're not necessary. That makes sense.
Hackers may be one of the largest threats on the internet, but they're still often just immature children.
Nebraska, Idaho, Indiana, Kansas, Oklahoma, and Alabama have passed unconstitutional abortion restrictions.
Rick Garnett tries to lend credence to claims that Planned Parenthood has a conflict of interest in pregnancy counseling because of the small number of abortions they perform.

Washington Times: Extremely Weak Supreme Court Reporting

2011-07-01T13:45:00.003-04:00

(NOTE: What follows was written under the mistaken belief that the piece in question was chosen for publication by a news outlet, rather than written by an amateur blogger. In the interest of owning up to mistakes I've left it largely intact, but would not have written it knowing the real circumstances. Any anger or derision apparent in my writing is due to my perception of a trend involving poor legal reporting by news outlets, which obviously does not apply to the specific piece I'm criticizing.)

A Washington Times community site by Jeneba Ghatt has an opinion article about the Supreme Court's recent decision in Brown v. EMA. (In Brown, the Court ruled that a ban on the sale of violent video games to children violates the First Amendment.)

Ghatt's errors begin in the very first paragraph:

The conservative majority in the United States Supreme Court may, in its recent ruling on video games, have gone too far down the path of strict adherence to the framers' original intent.

Brown v. EMA was not decided by "the conservative majority," at least not under any reasonable understanding of "conservative." The entire opinion was joined by Scalia, Kennedy, Ginsburg, Sotomayor, and Kagan (3 liberals, 2 conservatives.) Alito and Roberts (2 conservatives) partially joined, but wouldn't have gone as far as the majority. And Breyer and Scalia (1 conservative, 1 liberal) dissented.

The piece then disintegrates into speculative "reporting" that is all too common these days. Ghatt writes:

Certainly, the argument has been made that the Court’s interpretation of the law would make it possible even for the purchase of dangerous weapons by children to be protected.

Really? 'The argument has been made' that a First Amendment case will result in kids getting real guns? Who made such a silly argument? Can we have some names?

Then we get to Ghatt's ridiculous characterization of judges and her severe misunderstanding of words often used to describe the Court.

More liberal justices are considered more activist, meaning they view the Constitution as a living document and interpret its words to fit and conform to changes in society. More conservative justices adhere to the concept of “judicial restraint,” which in principle precludes the use of personal experiences, biases, or other external knowledge or factors unrelated to the case presented in its ruling. Conservatives are more likely to rule under “strict constructionist” principles, meaning they apply the law as closely to the original framers' intent as possible.

Liberal judges are not "considered more activist" (except by conservatives). Nor is activism equivalent to an understanding of the living Constitution. (Activism, correctly understood, is deciding a case based on personal views, rather than the law.) And finally, living Constitutionalism doesn't "interpret its words to fit and conform to changes in society." Rather, it recognizes that the understanding of constitutional provisions can change over time.

Conservatives do not consistently or exclusively advocate "judicial restraint." In fact, it is a tool used by judges of all stripes. Nor does judicial restraint have anything to do with excluding "personal experience, biases, or other external knowledge or factors unrelated to the case." That's just good judging. Judicial restraint is the principle that judges should decide issues narrowly and leave as much open for the future as possible, rather than issuing more sweeping decisions that have a more substantial effect.

And, finally, strict constructuralism is not equivalent to originalism (especially not to original intent, a very specific kind of originalism). The former is the philosophy that questions of interpretation should be answered solely by the text (perhaps, though not necessarily, informed by the original meaning of the text) while the latter looks to the intent of the founders/framers as the determining factor.

The closing sentence is...well...just confusing.

It was shortsighted and unfortunate to not interpret the Constitution as a living document and adjust it to a situation the framers never imagined. Too bad the other justices did not agree.

Ghatt seems to be lamenting that the Court rejected living Constitutionalism by...well, interpreting the Constitution as a living document. I honestly have no idea what she's talking about.

All in all, even without getting to the editorial opinion about the case (in which she takes an unfortunate stance), this piece is a remarkably weak example of Court watching.

EDIT 8:36 PM: Name spelling corrected, and a few edits for tone, since I misinterpreted the article as one chosen for publication by the Washington Times rather than a mere personal blog.

Do Jews Have To Support Israel?

2011-06-25T16:00:00.001-04:00

David Bernstein suggests that they do, or at least that to not do so is in some way "un-Jewish."

Put these two together and you find a strongly left-leaning young woman who is struggling to define a Jewish identity she can be content with, but who feels the need to jettison aspects of mainstream Judaism (wickedness, Israel, and, it seems to me, the idea that Israel’s problems are not just self-inflicted, but in large part a result of its enemies’ wickedness) when they conflict with her primary ideological identity.
It’s certainly not my business to tell someone how “Jewish” they should be. But it’s strange to see so many people suggesting that if Jewish communal values and priorities conflict with their own ideological vision, and they choose the latter over the former, that somehow the Jewish world has abandoned them rather than vice versa.

I'm not Jewish, so I obviously have a less clear idea of what "Jewish communal values and
priorities" are, but I find it odd that political support for an often-controversial nation would be considered by many an important part of a religious and cultural identity. As an American, I don't feel that I'm abandoning American communal values and priorities when I suggest that American supremacy might not be the best courseof action. As someone of European descent, I don't feel like I'm abandoning my cultural heritage by criticizing European policies, whether historical or modern. Is that just me?

If support for Israel is actually considered an integral part of Jewish identity - if it's not just Bernstein - then maybe that's why political opposition to Israel is often confused with anti-Semitism (or here).

Being a Poster-Boy

2011-06-24T16:00:00.000-04:00

Brian Leiter posted a fascinating letter from a minority philosophy professor fed up with being the "poster-boy" for failed diversity initiatives at universities. Some interesting excerpts:

I have grown skeptical in general about affirmative action/equal opportunity notices from leading philosophy departments, at least regarding minority candidates. In short, I believe that such notices stigmatize minority candidates, mislead non-minorities about the prevalence of minority hires and hiring attempts, and provide false cover against the charge of lack of faculty diversity--while rarely making an ultimate difference to actual hiring practices.

...

The widespread perception among whites that affirmative action is alive and unfairly effective doubly stigmatizes underrepresented minorities in philosophy. First, there is the standard view that if blacks were qualified/as qualified, affirmative action would not be necessary. Second, and more perniciously, this standard view is seemingly confirmed by the paucity of black philosophers, especially in leading departments--after all, if we cannot get hired and tenured despite affirmative action, we really must not be qualified.

A mere outreach effort (see [university name removed]) is insulting. It suggests that minority candidates might lack the common knowledge that would lead them to look at JFP, for instance. If outreach almost never factors into the hiring practices of leading philosophy departments, it has no point for minorities--though I understand that departments want to appease themselves and their administrations that the paucity of minority faculty is beyond their immediate control.

(Political?) Hypocrisy

2011-06-23T14:00:00.001-04:00

There have been plenty of sex scandals in Washington in the past two decades. It's probably possible to accuse many people of hypocrisy over the different ways they've reacted to similar situations. But in a totally reasonable attack on 'liberals' in the wake of Anthony Weiner's escapades, David Bernstein chose to make one of the most nonsensical comparisons possible. Quoting another writing approvingly, he suggested that Democrats were hypocritical because they defended Bill Clinton and pressured Anthony Weiner to resign after a far less serious scandal. There are two possible ways to read the pressure on Weiner to resign, as I see it (if one accepts the kind of silly premise of comparing it to the Clinton events):

Conservatives succeeded in Clinton's case in what they were trying to do: make it costly (in terms of public embarassment) to support Clinton. Because of that, they succeeded in changing Democrat's behavior in the future, when it came to Weiner.
Conservatives have succeeded in the last decade or so at making their more puritanical values a significant part of the national conversation, in a way that legitimately makes Democrat's see Weiner worse now than they saw Clinton then.

Either way, it's ridiculous to attack one party for shifting to take a position more like the one the other party took a while back. To suggest that's "political hypocrisy" is to suggest that we should never be open to changing our beliefs or actions in the way others encourage us to do.

I find myself wondering whether Bernstein really didn't see through this, or if he just didn't care so long as he could pass along a criticism of the "liberals."

News Roundup

2011-06-16T15:00:00.000-04:00

It's time for another one of these. Quick blurbs about stories you might find interesting.

Austrian state television apologized for showing an allegedly (I haven't seen it) anti-Semitic 1933 Disney cartoon of the Three Little Pigs story.
Rob Vischer at Mirror of Justice links to a post by Scott Yenor. Yenor argues that homosexual marriage would represent the end of a long chain of events separating marriage from its traditional roles. Vischer disagrees, suggesting that homosexual marriage maintains many of the traditional roles of marriage, posing a threat only to the link between marriage and procreation.
The FBI got the right to, without a specific warrant, temporarily take over and cleanse any computer infected with malware.
In related news, the FBI is lowering its standards for how much evidence they need to justify various investigatory techniques.
The US Department of Justice is helping the Brits gain access to confidential interviews researchers conducted with members of the IRA. Boston College is fighting back.
First graders in New York think it's unjust that some classrooms have air conditioning while students in other rooms have to suffer through the heat. Their principal apparently finds the letters "amusing." I'll bet good money her office has air conditioning.

Culbreath: Men Lead, and Women Follow

2011-06-15T10:00:00.000-04:00

A few days ago, I wrote about a blog ("What's Wrong [sic] With The World") that Brian Leiter pointed to. That post detailed Jeff Culbreath's opinion that Herman Cain should stick to his guns and not allow Muslims to serve in his administration. Why? Because Catholicism is right, and Islam is wrong. Obviously.

Now Leiter points to another disturbing post by Culbreath. He begins by quoting approvingly an op-ed by the President of Catholic University detailing the University's plans to return to single-sex housing. That, in and of itself, isn't horribly objectionable. I think it's paternalistic, silly, and demoralizing to students (my own University of Chicago allows second-years and above to have coed dorm rooms), but to each their own — and if students are displeased by Catholic University's choice, they can (of course) use their market power to deliver that message.

Culbreath's true opinions come through in the comments.

Chris - it's hard to know who's more to blame, the men or the women. There's plenty of culpability to go around. In general, though, women usually follow the lead of men. Feminism would have gone nowhere if not for overwhelming male support...

The more I think about it, the more obvious it seems that feminism is an illusion, the creation of a minority of powerful men - "alphas", if you will - who will stop at nothing to secure the "benefits" of female volatility, rootlessness and discontent...

The traditionalist understanding is quite different: women are morally responsible, to be sure, but men are the primary moral agents of the human race. Women follow. If this rule often falters in individual cases - an intentional phenomenon that helps give it cover - the rule is absolutely iron-clad in the aggregate. Feminism would come to an end immediately if even a minority of powerful men demanded it.

Culbreath seems to like this "traditional understanding." Why shouldn't he? It makes him one of the "primary moral agents of the human race." That's a tempting group to be a part of, even if you have to share it with almost half the world. (Except, perhaps, Muslims. After all, their religion is just wrong.)

I'm generally hesitant to label things as "racist," "anti-semitic," and the like. If there's a way to read a statement so that I just disagree with it, without seeing those disgusting motives, I will. But here, I have no problem calling Culbreath what he is: a disgusting misogynist who, for some reason, feels competent to determine right, wrong, and moral agency on a universal scale.

Schools v Online Speech

2011-06-15T03:32:00.016-04:00

http://www.wired.com/threatlevel/2011/06/student-online-speech/

According to Tinker v. Des Moines (1969), students do not "shed their constitutional rights when they enter the schoolhouse door," but universally, state government permits school districts much greater leeway to curb the freedom of speech of students than anyone would suggest the general public's freedom should be restrictable. This is to ensure an atmosphere conducive to social and academic growth. Because parents are legally obliged to send their children to school, it is understandable that the severe pressure on school supervisors to foster what parents' deem a healthy work environment for the children leads to the occasional overstep. One increasingly common violation school administrators attempt to commit is to impose their standards on the everyday lives of the students under their routine jurisdiction. Though we may accept that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings, we should expect that minors' off-campus right to freedom of speech aligns more gracefully with its federal definition. This notion has been protected by the courts fairly consistently.

There has been a rash of cyber-bullying recently, and this has prompted fresh examination of the landmark 1969 case. Should schools be able to discipline students for causing a disturbance off-campus that makes its way, through whatever channel, into schoolyard talk? The courts of this decade tend to determine that, yes, the schools have the power to punish off-campus transgressions that find their way into the classrooms, even if those who carry the illicit conversation into the school are not the same students who originated the content, on the condition that the disturbance that the transgression effects on classroom activity is substantial. Still, modern courts have pussyfooted around such adjudications, often declaring an insufficiency of classroom disturbance to merit the affirmation of the punishment, allowing the court to avoid a controversial ruling. This was the outcome of Justin Layshock's case. You may decide for yourself how you would have ruled; the .pdf of the case file is available here: http://www.ca3.uscourts.gov/opinarch/074465p1.pdf

2012 New Hampshire Republican Presidential Debate

2011-06-14T01:30:00.001-04:00

I just finished reviewing the 2012 New Hampshire Republican presidential debate. I'll have more to say about it, and it'll work its way into my rankings of the individual candidates over the next few days (the newly posted rankings for Romney and Santorum take the debate into account). But for now, a few quick thoughts.

The winner of the debate was pretty clearly John King, the CNN moderator. Comparatively to other presidential debates (both round robin and head-to-head), I thought King did an excellent job (especially in the first half — he seemed to get tired) of pushing the candidates to stay on message, and posing tough questions.

The Republicans are, so far, being good about keeping the intrafamily disputes to themselves. They didn't really go after one another (Pawlenty wimped out on his newly coined "Obamaneycare," for instance: he should have to do one of these), and each gave plenty of shout outs to other Republicans who aren't running for president.

Pawlenty has one of the most irritating smirks I've ever seen.

Herman Cain made a few statements about policy issues. He should really stick to his old plan of just dodging the questions.

2012 Republican Presidential Candidates: First Glance (6)

2011-06-14T01:15:00.005-04:00

Part 1: Herman Cain & Newt Gingrich
Part 2: Gary Johnson & Fred Karger
Part 3: Tom Miller & Ron Paul
Part 4: Andy Martin & Jimmy McMillan
Part 5: Tim Pawlenty & Buddy Roemer
Part 6: Mitt Romney & Rick Santorum (this post)
Part 7: Michele Bachmann & Jon Huntsman
Part 8: Thad McCotter & Roy Moore (upcoming)
Part 9: Vern Wuensche (upcoming)

I think it's time to take a first look at the potential candidates for the 2012 Republican Presidential nomination. I'm pulling from a source list here. I'm going to look at each candidate on four main topics: Civil Rights, National Security, Economy, Constitutional Vision. I'll rate them on a four point scale (from best to worst): Strong, Acceptable, Weak, Unacceptable. I'll also include a brief justification, so if I miss something relevant (which I probably will, with so many candidates to consider) feel free to leave a note in the comments section and I may adjust the ratings. Most of my information is going to be pulled from the candidates' websites, for those that already have them.

This post will address Mitt Romney and Rick Santorum. Look at the top for links to other posts in this series, and watch for more new posts to come.

Mitt Romney

Civil Rights: Unacceptable
Romney has a mixed record on abortion, but he's swung to the right and would support a federal ban on all abortions. Romney's death penalty stance is somewhat reasonable: he supports it, but at least espouses high standards for actually using it. He would reinstate DADT if elected. He supports 'doubling Guantanamo' instead of closing it. But what ends up tanking Romney's civil liberty rating is this: he thinks that all security measures are justified by the fact that the most important civil liberty it to be "kept alive." He supports a federal amendment to deprive homosexual couples of equal rights. And worst of all, he doesn't think civil rights are an important discussion in this campaign. On the other hand, he does oppose the use of eminent domain to support private enterprise.

National Security: Acceptable
Romney supports a focus on diplomatic and humanitarian efforts overseas. Unfortunately, he also supports irresponsible expansions in military (and nuclear) spending, as well as an attitude towards Israel that seems to shut down all discussion of their proper role as our ally.

Economy: Weak
Romney would lower taxes on corporations even though America already has very low corporate taxes in comparison to our competitors. He would favor corporations and their rich owners over the unions representing workers. He views economic impact as the only relevant standard for federal regulation. For some reason, he thinks that now is a good time to be talking about deregulating the nuclear industry. He believes that bankruptcy proceedings are good because they allow corporations to benefit at the expense of workers. He does, though, seem to support government investing more in education and training to give the poor more opportunities for work. [Update 8/1/11: after sitting on the sidelines, Romney issued a last minute, right-wing statement against the Republican victory bill on the debt ceiling.]

Constitutional Vision: Unacceptable
Romney understands the simplistic federalism-as-experimentation mantra, but he doesn't give any indication of comprehending the role of the federal government in preventing collective action problems. He also seems to think that liberty is the defining characteristic of America, as though we're nothing more than a peaceful anarchy. In fact, cooperation is what defines us as a nation. In the NH Republican debate, he seemed to express a very strong-executive (as opposed to legislative) philosophy in economic policy. He also suggested that devolution of power from the national to state governments is always good, and that private enterprise is always better than collective action. [Update 8/18/11: It's also not clear Romney understands the constitutional powers of the Presidency.]

Rick Santorum

Civil Rights: Unacceptable
Santorum thinks that the federal government should force women to remain pregnant. Worse, he supported and 'spearheaded' the Federal Marriage Amendment, which would not only prevent the federal government from recognizing legitimate same-sex marriages by states that chose to allow them (like the "Defense [sic] of Marriage Act"), but would forbid any state from allowing same-sex marriage. That's about as crazy-right as one can go on this issue.

National Security: Weak
Santorum's "national security" policy consists of a rant about the dangers posed by radical Islam. He runs with the cliche line that "they hate everything we are – a land of freedom, a land of prosperity, a land of equality". By focusing on the beliefs of terrorist leaders, Santorum misses the opportunity to cement our national security by undermining those issues which terrorist leaders use to get the support of young men who couldn't care less about the way we live in America.

Economy: Unacceptable
Santorum calls himself a defender of the taxpayer, but what he means is a defender of the rich and businesses. He touts his support for Bush's tax-cuts-for-the-rich and his endorsements from the Chamber of Commerce, as well as his opposition to necessary welfare programs, which ensure that the vagaries of capitalism do not play out in the deaths of vulnerable citizens.

Constitutional Vision: Unacceptable
In the New Hampshire Republican debate, Santorum suggested that America's constitutional nature should be completely bound to the decisions made by our founders, and he said that as a leader, he believes faith and reason always lead to the same point.

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Now, cumulatively speaking, we have (ranked in best-to-worst order, with scores in the following order: Strong - Acceptable - Weak - Unacceptable):

Karger: 1 - 3 - 0 - 0
Roemer: 1 - 1 - 1 - 0
Johnson: 0 - 2 - 2 - 0
Huntsman: 0 - 1 - 3 - 0
Paul: 0 - 1 - 3 - 0
Romney: 0 - 1 - 1 - 2
Gingrich: 0 - 1 - 1 - 2
Bachmann: 0 - 0 - 1 - 3
Miller: 0 - 0 - 1 - 3
Pawlenty: 0 - 0 - 1 - 3
Santorum: 0 - 0 - 1 - 3

Are The Winds of Security Changing?

2011-06-13T17:30:00.000-04:00

In a previous post here, Noah suggests that "it is only a matter of time before the nature of the ordeal we know as "airport security" is drastically revamped." As I commented there, I'm a bit skeptical. I don't see Americans as likely to stand up for their rights any time soon, so long as it's easier to just deal with the invasion of privacy.

On the other hand, two recent stories back up the suggestion that law-abiding citizens might be getting fed up with our national security society. (To be fair, neither story is about airport security. My guess, though, is that public sentiment won't distinguish between airport and other forms of security searches.)

Late last month, a group of British cruise passengers experienced heightened scrutiny for contempt-of-security officer, facing a seven-hour inspection after a few of the passengers pointed out the ridiculousness of extensive screening for a group of elderly tourists. TSA has admitted to similar contempt-of-TSA screening at airports, where passengers are singled out for harassment because of "Very arrogant and expresses contempt against airport passenger procedures."

On the other side of the country, tensions are apparently growing between boaters on the Hudson River and the many law enforcement agencies with jurisdiction there. Since 9/11 there's been a sharp increase in the number of stops and searches without any apparent cause, and the boaters aren't happy about it. Some are even selling their boats, and marina owners are joining in the complaints, saying that excessive searches are bad for their business.

I suspect we'll hear more stories like this in the years to come. I doubt they'll have as significant an effect as Noah is suggesting, but perhaps this is indeed a sign of things to come.

An Invasion I Support

2011-06-13T06:24:00.002-04:00

http://www.nytimes.com/2011/06/12/world/12internet.html?_r=1&hp

The U.S. is not all bumbling muscle. For her size, she is very well networked, and this 21st-century networking is a blessing whose proliferation has great power to help burgeoning progressive movements in less developed countries. The technological strong-arm of our government can do something that no war can do: it can give the oppressed a clear means to reclaim their voice.

Oppressive governments can intimidate populations many times their size usually because the disempowered lack device to organize themselves with forethought and subtlety. An uncensored internet, then, is among democracy's greatest allies, because the internet can help downtrodden individuals understand that they are not alone, and help to bring them together. The kinds of protests it can give purchase to are more dynamic for their international accessibility, and that much harder to crush. The internet is like the common man's cloak and dagger, and the best part is, there's no bloodshed to it; servers don't bleed when they're taken down.

I think the liberation of the internet, the waging of a cyberwar, is a noble endeavor for the U.S. to undertake, because it's the only kind of battle I can think of that spreads freedom with immediate results where those results don't come in the form of casualties.

TSA Mercifully Contrite

2011-06-12T23:14:00.002-04:00

http://www.myfoxphoenix.com/dpps/news/national/dad-special-needs-son-harassed-by-tsa-at-detroit-metropolitan-airport-20110608-wpms_13594994

The TSA, having protested a 6-inch plastic toy hammer as a potential weapon of terror in the hands of a severely retarded man, concede to the necessity of developing yet another "special circumstance protocol," this time for special needs individuals, who often lack the intellectual maturity to cope with the tense environment of airport security or the wherewithal to respond appropriately to TSA demands.

The hopeful bet, and I believe the smart bet, is that it is only a matter of time before the nature of the ordeal we know as "airport security" is drastically revamped. The measures imposed by the Transportation Security Administration prove susceptible to human error on a nearly daily basis, and seem an affront to both social sense and legal sense. Though America has not forgotten 9/11, I doubt the populace is quite afraid or complacent enough to let unreasonable search and seizure remain an institutional normality for much longer.

He Comes Bearing Oppression (But It's OK, Because He's Totally Right)

2011-06-12T14:00:00.001-04:00

Sometimes I forget that bigotry and ignorance actually still exist at a substantial level. I live in bliss for a few days, until someone helps bring me back to earth. This time, it was a link at Professor Brian Leiter's blog. He points to this article at "What's Wrong With the World".

First, some background. A few days ago, Robert George (a professor and advocate of Catholic values) wrote a piece at Mirror of Justice entitled "Mr. Cain, please do the right thing, and the American thing". In the article, Professor George objects to statements Republican presidential candidate Herman Cain made to Glenn Beck regarding a stringent "loyalty test" he would require Muslims to pass before working in his administration. As it happens, this "loyalty test" business is actually a walk-back from his original statement that he wouldn't allow any Muslims into the US government, since he wouldn't have time to screen the few loyal citizens away from the multitude of Islamic infiltrators who want to overthrow the United States' constitutional system and replace it with Sharia law.

In addition to quoting the least offensive of Cain's statements, Professor George was also overly solicitous towards Catholics. He created an equivalence between Cain's statements (which would establish a religious test completely irrelevant to the office under consideration) with a Democratic candidate who said that Catholic health "professionals" unwilling to perform certain necessary medical procedures shouldn't work in jobs that require professionals to perform those procedures. (Which would establish a test imminently related to the direct requirements of the job, and exclude only those unwilling to comply with those relevant requirements.)

But apparently that wasn't enough for Jeff Culbreath, who (in the post linked to by Leiter) berated Professor George for suggesting there's some kind of equivalence between religious freedom for Muslims and religious freedom for Catholics. He says:

Catholicism and Islam have objective content: one is true, the other is false; one is committed to peace, the other to war; one is a religion of justice, the other of oppression…Islamism is a grave threat to the United States, and those who embrace the wicked doctrines of Mohammed should not expect the welcome mat at the highest levels of government. Herman Cain would be wise to stick to his guns, and Robert George to admit his mistake.

In other words, Culbreath thinks that only those religions he agrees with deserve any protection under the Constitution.

Of course, to anyone blessed with the most basic reasoning skills, the most significant problem with Culbreath's argument is clear as day: religious freedom that protects those religions agreed to by the majority isn't any religious freedom at all. As it stands, Catholics (and even moreso, Protestants) don't need many protections for their religious freedom, because they are politically strong enough to protect themselves through the political process. Those religions we consider "wrong" are the only ones that need protection in the first place.

But I forgot, God spoke to Culbreath and told him the right way to run the world. Us heathens had better just get used to that.

No Real Opt-Out of TSA's Naked Scans

2011-06-12T01:15:00.001-04:00

I had my first personal experience with TSA's pervy naked scanners today. This time I decided to go with the Fourth-Amendment-in-lead-paint-boxers, next time I'll probably refuse the scanner and file the sexual assault complaint if they pat me down.

But for this time, my main thought is that TSA's much-touted opt-out guarantee (where those who don't want to go through the naked-scanner don't have to) is a big joke. There was one sign a ways back in the line that mentioned, in the fine print, that the naked scanners are optional. But if you don't see that, and if you aren't informed about (or willing to stand up for) your rights, there's nothing optional about the procedure. TSA officers don't give you the option of using the naked scanner, they order you to enter it; and when I showed the briefest hesitance about going into it, the officer on duty herded me in.

TSA uses the low number of opt-outs as proof that the traveling public doesn't mind the naked scanners. But in reality, it seems that the opt-out isn't a real option after all.

UPDATE: Edited for slightly softer language.

Saturday Fourth Amendment News

2011-06-11T12:00:00.000-04:00

In honor of the plane I'm about to get on, here are two bits of Fourth Amendment news:

The TSA apparently thinks it should be lauded for catching screeners who were abusing their powers after other people filed complaints. Never mind the fact that its TSA's responsibility to ensure that if they're going to violate our privacy, they at least do so in a semi-professional way. Never mind the fact that they shouldn't be asking for moreways to violate our privacy when we can't even trust them with the extreme power they already have. What really bothers me about this story is that TSA has existed since 2001, and their Office of Professional Responsibility is "newly established."

In other news, a cop apparently tried to claim he had a right to privacy in the way he went about violating someone else's privacy. A police department set up a sting for a suspected dirty cop, with hidden cameras in a room of an undercover "drug dealer" who the cop was sent to arrest. When he's arrested for stealing evidence, he tries to claim that he has a right to privacy while searching a suspect's room. Really? Really?

Ohio: Leading The Charge For Youth Justice?

2011-06-10T10:00:00.000-04:00

As a native of Ann Arbor, I am genetically programmed to have a distaste for anything that comes out of Ohio. But like the sneaky bastards they are, they slowly won me over with things like Cedar Point. And by that, I mean it was just Cedar Point.

Then, the state kind of lost its moral credibility when they tried for two hours to execute Romell Bloom before giving up because they couldn't find a vein to kill him with. Lesson: if you ever plan to get on death row, do a lot of heroin in your youth so that your veins become inaccessible to the executioners. (By the way, Bloom appears to still be alive—the aborted execution was in 2009.)

But now, Ohio is giving me cause for hope. Eugene Volokh reports that Ohio's Supreme Court (which, according to him, consists of six Republican appointees out of seven members) struck down a statutory rape charge against a 12 year old boy who was convicted of having non-forcible (i.e. consensual) sex with an 11 year old boy. The Court said, quite correctly, that statutory rape statutes that apply equally to both participants in a sexual act violate the Equal Protection Clause unless both participants are charged.

These statutes, and their enforcement, is a travesty on our criminal justice system. They allow people to play the system and prosecutors to label one person a perpetrator and one person a victim in an entirely arbitrary fashion.

Of course, there are ways to deal with sex between two individuals who are under the typical age of consent in a state. The law could establish an age-difference (say, a year or two), and if the participants are separated by more than that the older one could be charged with statutory rape. (Subject, I believe, to proof that the other participant's age would have been known to a reasonable person, but that's a different discussion.) Or, a state could choose to penalize the individual who was not under the influence of drugs, if only one was.

There are options. But statutes that allow prosecutors to play God and prosecute ~~the man~~ whomever they wish to punish are ridiculous, and I applaud Ohio for taking a state.

2012 Republican Presidential Candidates: First Glance (5)

2011-06-08T22:15:00.007-04:00

Part 1: Herman Cain & Newt Gingrich
Part 2: Gary Johnson & Fred Karger
Part 3: Tom Miller & Ron Paul
Part 4: Andy Martin & Jimmy McMillan
Part 5: Tim Pawlenty & Buddy Roemer (this post)
Part 6: Mitt Romney & Rick Santorum
Part 7: Michele Bachmann & Jon Huntsman
Part 8: Thad McCotter & Roy Moore (upcoming)
Part 9: Vern Wuensche (upcoming)

I think it's time to take a first look at the potential candidates for the 2012 Republican Presidential nomination. I'm pulling from a source list here. I'm going to look at each candidate on four main topics: Civil Rights, National Security, Economy, Constitutional Vision. I'll rate them on a four point scale (from best to worst): Strong, Acceptable, Weak, Unacceptable. I'll also include a brief justification, so if I miss something relevant (which I probably will, with so many candidates to consider) feel free to leave a note in the comments section and I may adjust the ratings. Most of my information is going to be pulled from the candidates' websites, for those that already have them.

This post will address Tim Pawlenty and Buddy Roemer. Look at the top for links to other posts in this series, and watch for more new posts to come.

Tim Pawlenty

Civil Rights: Unacceptable
Pawlenty opposes marriage equality and thinks that the federal government should enforce discriminatory marriage rules. He thinks the government should force unwilling women to remain pregnant. Worst of all, he has nothing on his website about any civil rights issues, labeling the previous two as "values issues."

National Security: Unacceptable
For some reason, Pawlenty thinks that America's image and popularity in the Middle East are irrelevant to our national security, and he thinks that we should unquestioningly stand behind Israel because they are a "historic ally," apparently without any care for justice or the future stability of the region.

Economy: Unacceptable
Pawlenty lied in a speech at the University of Chicago when he said that American corporations pay the second highest tax rate in the world. He seems to think that a comparison of overall average wages between the government and the private sector is a meaningful piece of data. And he thinks that the budget should be balanced on the backs of the vulnerable. [Update 8/1/11: Pawlenty is completely crazy when it comes to the debt ceiling.]

Constitutional Vision: Weak/Unknown
I can't determine much about Pawlenty's constitutional vision, if he has one. But on one major constitutional issue of the next few years, the constitutionality of an individual health care mandate, he's dead wrong. Oh, and he brags about loading the Minnesota courts with conservative judges.

Buddy Roemer

Civil Rights: Acceptable
This rating is teetering on the edge of "Weak," but I decided that, as he's running as a Republican, I'd give him the benefit of the doubt. He supported chain gangs and a strong and pervasive death penalty, but also supports abortion rights, medical marijuana, and a robust free speech right to profane music.

National Security: Unknown

Economy: Weak
Roemer is big into the tax cut Republican mode, but beyond that I don't really know much.

Constitutional Vision: Strong
The core of Roemer's campaign is the idea that politicians should be "free to lead." He intends to make sure he is by refusing to take any donation over $100, to demonstrate his independence from special interest money. It's a strong message at a time when most Republicans are celebrating Citizens United, and I applaud him for it. Roemer reaffirmed this commitment during an interview on the Colbert Report.

---

Now, cumulatively speaking, we have (ranked in best-to-worst order, with scores in the following order: Strong - Acceptable - Weak - Unacceptable):

Karger: 1 - 3 - 0 - 0
Roemer: 1 - 1 - 1 - 0
Johnson: 0 - 2 - 2 - 0
Huntsman: 0 - 1 - 3 - 0
Paul: 0 - 1 - 3 - 0
Romney: 0 - 1 - 1 - 2
Gingrich: 0 - 1 - 1 - 2
Bachmann: 0 - 0 - 1 - 3
Miller: 0 - 0 - 1 - 3
Pawlenty: 0 - 0 - 1 - 3
Santorum: 0 - 0 - 1 - 3

Pawlenty: Spewing Nonsense

2011-06-08T16:00:00.000-04:00

Tim Pawlenty spoke at the University of Chicago yesterday, and he apparently advocated cutting corporate taxes by 58%. This at a time when a former Reagan and Bush domestic and monetary policy adviser (Bruce Bartlett) points out that corporate taxes account for only 1.3% of GDP this year, a third of what they were in the 1950s. And our corporate taxes are the lowest of any country in the Organization for Economic Cooperation and Development when compared to GDP. That is, we have lower corporate taxes than Norway, Australia, Luxembourg, New Zealand, the Czech Republic, South Korea, Japan, Italy, Portugal, Britain, Finland, Israel, Denmark, Belgium, Canada, Switzerland, the Neatherlands, Slovakia, Sweden, France, Ireland, Spain, Poland, Hungary, Austria, Greece, Slovenia, Germany, Iceland, and Turkey.

But yeah, lower taxes. We're clearly taxing the life out of those corporations. It's time for seniors to do their part.

2012 Republican Presidential Candidates: First Glance (4)

2011-06-08T14:45:00.006-04:00

Part 1: Herman Cain & Newt Gingrich
Part 2: Gary Johnson & Fred Karger
Part 3: Tom Miller & Ron Paul
Part 4: Andy Martin & Jimmy McMillan (this post)
Part 5: Tim Pawlenty & Buddy Roemer
Part 6: Mitt Romney & Rick Santorum
Part 7: Michele Bachmann & Jon Huntsman
Part 8: Thad McCotter & Roy Moore (upcoming)
Part 9: Vern Wuensche (upcoming)

I think it's time to take a first look at the potential candidates for the 2012 Republican Presidential nomination. I'm pulling from a source list here. I'm going to look at each candidate on four main topics: Civil Rights, National Security, Economy, Constitutional Vision. I'll rate them on a four point scale (from best to worst): Strong, Acceptable, Weak, Unacceptable. I'll also include a brief justification, so if I miss something relevant (which I probably will, with so many candidates to consider) feel free to leave a note in the comments section and I may adjust the ratings. Most of my information is going to be pulled from the candidates' websites, for those that already have them.

This post will address Andy Martin and Jimmy McMillan. Look at the top for links to other posts in this series, and watch for more new posts to come.

Andy Martin
Martin was a primary source of rumors about President Obama being a secret Muslim, then claimed (based of a "gut feeling") that Obama was actually the secret son of a suspected Communist. He's also a major player in the birther movement. [See here]. He has earned no space for consideration on this blog.

Jimmy McMillan
The rent is too damn high.

---

Now, cumulatively speaking, we have (ranked in best-to-worst order, with scores in the following order: Strong - Acceptable - Weak - Unacceptable):

Karger: 1 - 3 - 0 - 0
Roemer: 1 - 1 - 1 - 0
Johnson: 0 - 2 - 2 - 0
Huntsman: 0 - 1 - 3 - 0
Paul: 0 - 1 - 3 - 0
Romney: 0 - 1 - 1 - 2
Gingrich: 0 - 1 - 1 - 2
Bachmann: 0 - 0 - 1 - 3
Miller: 0 - 0 - 1 - 3
Pawlenty: 0 - 0 - 1 - 3
Santorum: 0 - 0 - 1 - 3

Roundup

2011-06-07T15:30:00.000-04:00

This is a finals week roundup, since I'm too busy to write a more substantive post.

In an amusing error, a CBS news alert email references "Speaker of the House Nancy Pelosi." If only, if only.
The acquittal of an ex-prosecutor for what would have been his fourth DUI conviction emphasizes the necessity of integrity among the police. The jury apparently decided they couldn't trust the cops, who in the past had abused their power to fix tickets for family members and friends.
Frank Pasquale has a review of the book Nothing to Hide, which presents a compelling case for increased privacy protections in the modern world. Definitely worth a read.
Jonathan Adler has an amusing story about a couple who foreclosed on their bank, showing up at the branch with the sheriff to confiscate desks, computers, and all of the cash in the drawers after the bank refused to pay attorney fees from a wrongful-foreclosure suit. (The bank didn't own the couple's house, but tried to foreclose on it anyways.)
Eugene Volokh writes about how Rand Paul just ensured that no one will confuse the Paul family for libertarians ever again. (The relative audio is here.)
Dominic Nardi, a PhD student in political science at the University of Michigan (Ann Arbor, represent!) has a very good post about the development of constitutionalism in Myanmar.

And now, as a treat for the ladies (and some of the men), here's a lesson in political science 101:

Sex Scandal

Hott

UChicago SOUL Ends the Dialogue

2011-06-05T23:45:00.001-04:00

Over the last quarter, UChicago's student organization SOUL (Students Organizing United with Labor) has been leading an effort to guarantee that the school's housekeeping employees be retained and protected during a planned service outsourcing next year. I sympathize with SOUL's goals: the employees have developed a relationship with the university and its students, and the university should not be allowed to abrogate its moral responsibility towards those employees by letting a subcontracting company do the dirty work of lowering salaries and eliminating benefits.

Unfortunately, in a move that was particularly sad to see from UChicago students, SOUL chose to end the dialog last Thursday in favor of making unilateral demands that will most likely never be met.

During a "study in" at the administration building with the stated goal of having the university release a statement agreeing to SOUL's demands, Kim Goff-Crews (UChicago's Dean of Students) offered to meet with SOUL to discuss their concerns. They refused to meet, and instead issued a statement. In relevant part:

Throughout this quarter we have voiced our concerns through rallying, handing–in of petitions, call–ins and letter delivery...

Representatives from the Worker-Student Coalition and SOUL have met repeatedly with administrators, and our demands have consistently been rejected, in spite of this mandate.

We have articulated our position and you have articulated yours. We are no longer interested in hearing the justification for denying basic protections to university employees.
Therefore, let it be clear that further meetings would not be conducive to any progressive understanding and reconciliation. We refuse to let our voices be muffled by bureaucracy, empty words, and distressing circuitous logic.
We now wait for the public release of a written statement committing to fulfilling our demands.

Granted, I have not been a part of SOUL's process. I'm not aware of the content of their meetings, or how responsive the administration has been to their concerns. But what's clear to me is that by turning down the meeting, SOUL just lost the high ground.

The fact that SOUL thinks that speaking to an administrator means a risk of their "voice [being] muffled by bureaucracy, empty words, and distressing circuitous logic" demonstrates a lack of conviction in their position. If they're right, and if their position is well-reasoned and well-researched, then a mere meeting won't be able to hurt their position. But if they're not confident in themselves, if they're scared that giving the administration a chance to speak will undermine them, then denying the meeting makes perfect sense.

This is UChicago, so let me close with a bit of Mill:

There is the greatest difference between presuming an opinion to be true, because, with every opportunity for contesting it, it has not been refuted, and assuming its truth for the purpose of not permitting its refutation. Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right...

In the case of any person whose judgement is really deserving of confidence, how has it become so? Because he has kept his mind open to criticism of his opinions and conduct. Because it has been his practice to listen to all that could be said against him; to profit by as much of it as was just, and expound to himself, and upon occasion to others, the fallacy of what was fallacious. Because he has felt, that the only way in which a human being can make some approach to knowing the whole of a subject, is by hearing what can be said about it by persons of every variety of opinion, and studying all modes in which it can be looked at by every character of mind...The steady habit of correcting and completing his own opinion by collating it with those of others, so far from causing doubt and hesitation in carrying it into practice, is the only stable foundation for a just reliance on it: for, being cognisant of all that can, at least obviously, be said against him, and having taken up his position against all gainsayers—knowing that he has sought for objections and difficulties, instead of avoiding them, and has shut out no light which can be thrown upon the subject from any quarter—has a right to think his judgement better than that of any person, or any multitude, who have not gone through a similar process.

Update: This is a general policy of mine, but I'd like to specifically note for this post that if any of those responsible for the SOUL letter feel I'm wrong, they're welcome to a full post response.

Texas, You're Killing Me

2011-06-04T19:30:00.000-04:00

Robert Guest (a Texas defense attorney) has a story about the Texas Legislature's approach to the DWI problem. The most interesting part, to me, was near the end.

Apparently, there was a deferred prosecution bill proposed in the legislature. Deferred prosecution is like probation, but you're never actually convicted, assuming that you complete your probationary period. Sounds fair enough. But how do we know there wasn't anything wrong with this bill, and that it's a smart approach to DWI enforcement? Defense attorneys, prosecutors, and Mothers Against Drunk Driving ALL supported it.

When I read that, I had to make sure I wasn't dreaming. The idea of getting MADD to agree to something reasonable enough that the defense bar would go for it...it boggles the mind. But even more than that, how did the bill not pass? How did the legislature turn down a bill that garnered mutual support from natural enemies?

The bill, which was supported by prosecutors, defense attorneys and MADD, "had a lot of momentum," Alpert said, but the possible loss of money for the state from surcharges that accompany convictions may have doomed it. "This wasn't the year to be cutting into sources of revenue," he said.

Translation: the bill would probably cut down on drunk driving. It would help to rehabilitate offenders, and destroy fewer lives in the criminal justice system. It would save prosecution costs. But does any of that matter to the Texas Legislature? Of course not, damn it.

We've got to convict these people so we can take their money.

Why did we fight a war to get this state from Mexico?

Judgmental Old People

2011-06-03T18:00:00.000-04:00

One might think that my title is overly stereotypical. But I have data! Gallup's 2011 Values and Beliefs Poll is out, and it includes a breakdown into three age groups: 18-34, 35-54, 55+. (Young people, apparently, have neither values of beliefs—nor are they "Americans," it seems, since Gallup claims that it's results speak for "Americans," despite strong evidence that inclusion of the younger age group would significantly change the data.)

Anyways, on basically every issue, the perceived moral acceptability of an action saw a steady drop as the age of the respondent went up.

Old people were much more judgmental of private matters such as pornography, homosexual "relations," premarital sex, gambling, polygamy, and abortion. They were also more judgmental on matters of more public concern, such as out-of-wedlock births, human cloning, and animal cloning, and much more willing to allow animal testing and the death penalty.

But there were a few issues where I thought the age breakdowns were particularly interesting: in approving of embryonic stem cell research, the old fall between the young and middle aged, probably because the research has a good chance of helping them live longer. Likewise, the old are only slightly below the young and a bit above the middle age in approving of divorce. The years, they wear on...

Finally, while old people are the most approving of suicide generally (at 19%), they're the least approving of doctor-assisted suicide (43%). What's up with that?

Baker's Odd Calculus

2011-06-02T14:00:00.000-04:00

Stewart Baker, writing at the Volokh Conspiracy, apparently thinks that 0.00004 is a large number. That is the fraction of alleged terrorists apparently wrongly admitted to the US under a system of refugee asylum for Iraqis, and Baker thinks it's a big deal.

There have, according to Baker, been 50,000 refugees admitted through the program. Two have now been arrested and indicted by the FBI, and prior to entry, one of their fingerprints were in a database of prints taken from IEDs in Iraq.

Obviously, the system broke down here. The prints should have been tested, and these two excluded from the country. But what does Baker say about a 99.996% success rate?

All that raises serious questions. In my view, it suggests that the Iraq refugee program is misconceived – that we are taking too great a risk in bringing large numbers of Iraqi refugees to the United States whom we cannot vet properly.

Clearly. If 0.004% of a certain group of immigrants go on to commit crimes, we're taking too much of a risk by admitting that group to the country, and they should all be excluded. Something tells me it wouldn't be too hard to come up with a group classification that Stewart Baker belongs to that was only 99.996% lawful.

And, of course, let's not forget two important facts: like the faithful fear-mongerer he is, Baker ignores the presumption of innocence. These two men have been arrested and indicted. Absolutely nothing has been proven. And, it should be noted, they failed to pull of any attack: they were arrested by undercover FBI agents who they thought were working with them. Many people arrested in such undercover operations may have become legitimate threats if they ever actually gained the resources and skills to pull anything off, but undercover FBI agents give relatively harmless individuals everything they need to turn tough talk into almost-action.

In summary, this is where we're at: percentage of Iraqi refugees arrested on terrorism charges? 0.004%. Number of deaths or injuries caused by terrorists admitted through the Iraqi refugee program? 0. Value of damage done by terrorists admitted through the Iraqi refugee program? $0.

But obviously, there are "serious questions" about whether the program is "misconceived."

2012 Republican Presidential Candidates: First Glance (3)

2011-06-01T14:30:00.009-04:00

UPDATE (6/9): Some changes to the notes on Ron Paul's civil rights record. No change in rating.

Part 1: Herman Cain & Newt Gingrich
Part 2: Gary Johnson & Fred Karger
Part 3: Tom Miller & Ron Paul (this post)
Part 4: Andy Martin & Jimmy McMillan
Part 5: Tim Pawlenty & Buddy Roemer
Part 6: Mitt Romney & Rick Santorum
Part 7: Michele Bachmann & Jon Huntsman
Part 8: Thad McCotter & Roy Moore (upcoming)
Part 9: Vern Wuensche (upcoming)

I think it's time to take a first look at the potential candidates for the 2012 Republican Presidential nomination. I'm pulling from a source list here. I'm going to look at each candidate on four main topics: Civil Rights, National Security, Economy, Constitutional Vision. I'll rate them on a four point scale (from best to worst): Strong, Acceptable, Weak, Unacceptable. I'll also include a brief justification, so if I miss something relevant (which I probably will, with so many candidates to consider) feel free to leave a note in the comments section and I may adjust the ratings. Most of my information is going to be pulled from the candidates' websites, for those that already have them.

This post will address Tom Miller and Ron Paul. Look at the top for links to other posts in this series, and watch for more new posts to come.

Tom Miller
Civil Rights: Unacceptable
Miller opposes marriage equality and the right to end one's own pregnancy. He also opposes any civil rights for detainees held without trial or proof of guilt.

National Security: Weak
Miller admits to an unjustified preference for Israel over other allies (who he thinks should defend themselves, while Israel receives all of our aid). He also supports a level of disengagement with international politics that will lower America's stature in the international community over the long run.

Economy: Unacceptable
Failing to recognize that there are some necessary services that cannot be successfully or appropriately provided by a free market that favors wealth over basic needs, Miller would return all nationalized services to the private sector. He also supports a stultifying consumption-based tax, and would end the federal minimum wage.

Constitutional Vision: Unacceptable
Miller's vision for America is one based on cultural homogeneity (in the Christian faith) and the supremacy of capital over all other values. It also includes a disavowal of our responsibility to our retired citizens and those struggling to survive in a weak economy.

Ron Paul
Civil Rights: Weak
Paul voted to defund support for adoptions by homosexual couples in DC. (It's been suggested that this vote was only because he opposes federal funding for things. However, that rationale doesn't seem to stand given the discriminatory nature of the defunding. Comment below if you disagree, or if you have a link to the amendment in question.) He supports the "right" of property owners to engage in racial or gender discrimination in their provision of services or hiring of employees. He supports federal discrimination against homosexual couples and discriminatory policies against homosexuals in the military. He not only supports the establishment of religion in the Pledge of Allegiance, he voted to prevent a non-partisan judicial resolution to the question. On other issues, such as the PATRIOT [sic] Act, flag desecration, and ending the War on Drugs, Paul has taken positions more consistent with civil liberties.

National Security: Acceptable
While Ron Paul is much more isolationist than I would like to see in a President, and I think his desire to withdraw America from the international stage will be harmful in the long run, his disavowal of interventionism is at least consistent.

Economy: Weak
Ron Paul's disavowal of unbacked currency is incompatible with modern economic realities: he seems to forget that we no longer live in the 18th century. Paul also has a somewhat blind faith that adherence to what (he sees as) constitutional principles will be good for our economy, as though the founders he venerated knew anything about a 21st century economy.

Constitutional Vision: Weak
Paul adheres to a very flawed version of originalism that justifies everything by the suggestion that the founders were interested in a minimal government. In reality, America was designed to adapt to a changing world, and we have done so. Paul would reverse that progress and apply old, outdated solutions to new problems.

---

Now, cumulatively speaking, we have (ranked in best-to-worst order, with scores in the following order: Strong - Acceptable - Weak - Unacceptable):

Karger: 1 - 3 - 0 - 0
Roemer: 1 - 1 - 1 - 0
Johnson: 0 - 2 - 2 - 0
Huntsman: 0 - 1 - 3 - 0
Paul: 0 - 1 - 3 - 0
Romney: 0 - 1 - 1 - 2
Gingrich: 0 - 1 - 1 - 2
Bachmann: 0 - 0 - 1 - 3
Miller: 0 - 0 - 1 - 3
Pawlenty: 0 - 0 - 1 - 3
Santorum: 0 - 0 - 1 - 3

Rights-Principles

2011-06-01T13:45:00.000-04:00

Oftentimes, conservatives and "libertarians" act as though there's some magic line between government and business. We need strong controls on government power, they argue, but absolute deregulation of business. What these people miss (or ignore) is that corporations can accumulate a huge amount of control over our daily lives: in some ways, more than government.

Because of this, we must apply the same principles that call for limiting government to businesses, although the results will often look different. The main factor accounting for this difference is, of course, choice. If there are fifteen grocery stores in your town, it doesn't really matter if one of them discriminates against black customers. If there is only one grocery store, it matters a lot.

As businesses develop more and more of a monopoly over our activities, we have to be careful to examine the principles behind the rights we hold dear (free speech, democratic accountability, due process, equal protection, etc) and see how those principles apply to these new sources of power.

Ari Waldman, guest blogging at Concurring Opinions, gets the basic idea. In a post on cyberharassment, he acknowledges (rightfully) that the First Amendment does not apply to private companies who control access to various parts of the Internet, but says that we must still align our laws governing those companies with the principles underlying the First Amendment's restrictions on government.

However, Waldman errs by suggesting that such companies should be examined in the tradition of "intermediaries" to speech, such as publishers, stores, schools, and workplaces. "Traditional intermediaries have the power to regulate content consistent with the First Amendment, especially when not doing so would interfere with their and their users’ ability to participate in civil society." He then concludes: "And, like schools and workplaces, which can regulate their members’ speech in order to fulfill the institutions’ purposes, so too can online intermediaries like Facebook."

This analogy misses the crucial element of choice. There are many book publishers, many stores, many schools, many workplaces. Restrictions on speech by them individually thus has little chilling effect on speech, and a significant benefit in terms of other institutional goals.

However, when we look at a company like Facebook (or, say, Google) censorship is much more scary. Specifically because they control so much communication and information, huge companies have the power to significantly damage free speech values by instituting censorship measures in the interests of other institutional goals.

Online censorship is even more dangerous because it can be automated and hidden. If a publisher chooses not to publish a book, the author realizes and can talk to others about. Systematic discrimination in publishing decisions will probably be recognized sooner or later. However, if Google starts (whether deliberately or through its hidden algorithms) to downgrade conservative sites in search results, who's going to notice? If Facebook starts to show someone's posts to fewer and fewer people, how is that person going to realize? So much of how these sites work is hidden that censorship can easily remain hidden — possibly forever.

2012 Republican Presidential Candidates: First Glance (2)

2011-05-31T14:30:00.012-04:00

Part 1: Herman Cain & Newt Gingrich
Part 2: Gary Johnson & Fred Karger (this post)
Part 3: Tom Miller & Ron Paul
Part 4: Andy Martin & Jimmy McMillan
Part 5: Tim Pawlenty & Buddy Roemer
Part 6: Mitt Romney & Rick Santorum
Part 7: Michele Bachmann & Jon Huntsman
Part 8: Thad McCotter & Roy Moore (upcoming)
Part 9: Vern Wuensche (upcoming)

I think it's time to take a first look at the potential candidates for the 2012 Republican Presidential nomination. I'm pulling from a source list here. I'm going to look at each candidate on four main topics: Civil Rights, National Security, Economy, Constitutional Vision. I'll rate them on a four point scale (from best to worst): Strong, Acceptable, Weak, Unacceptable. I'll also include a brief justification, so if I miss something relevant (which I probably will, with so many candidates to consider) feel free to leave a note in the comments section and I may adjust the ratings. Most of my information is going to be pulled from the candidates' websites, for those that already have them.

This post will address Gary Johnson and Fred Karger. Look at the top for links to other posts in this series, and watch for more new posts to come.

Gary Johnson
Civil Rights: Acceptable
According to his civil liberties page, Johnson opposes the Patriot Act on privacy grounds, supports the abortion right up to the moment of independent viability (though he apparently supports a parental consent requirement for minors - perhaps minors do not own their own bodies?), and supports civil unions (with language that suggests that government should offer 'marriages' to no one, including heterosexual couples). He opposes stem-cell research in federally funded institutions, an unfortunate position. He supports legalizing marijuana and addressing hard drugs through medical treatment instead of criminal "justice." Johnson also opposes the use of torture on terror detainees, and supports due process rights for detainees.

National Security: Acceptable
Johnson is against involvement oversees and favors a focus on domestic issues. While his anti-interventionist stance is reassuring, he seems to go too far in suggesting that we should not encourage international stability in the interests of our long-term security.

Economy: Weak
Johnson is taking a hard line on cutting the deficit, which is admirable. However, he ignores the military as an area for possible cuts, even though the Department of Defense's budget was almost 20% of federal spending in 2010. [Update 8/20/11: As a commenter below notes, this is not actually an accurate representation of Johnson's views. He supports quite substantial cuts in military spending, though he doesn't advertise that fact on his website.] He also falls into the typical Republican naming scheme ("ObamaCare") that values partisanship over honest debate. He supports completely eliminating corporate taxes, which would allow businesses to profit from the infrastructure of this country without paying anything to support it. He also opposes a federal minimum wage in favor of state minimum wages, which ignores the collective action problem that a federal base minimum wage helps to alleviate.

Constitutional Vision: Weak
Johnson sees governance as identifiable with business leadership, which means he places an undue amount of attention on the "profitability" of government rather than its ability to build a strong society of cooperative individuals working together for the common good.

Fred Karger
Civil Rights: Strong
Karger supports lowering the voting age to 16 or 17, a good first step. He wants to eliminate the Defense of Marriage Act and create a federal right to gay marriage. He supports a woman's right to choose whether to remain pregnant. Karger is in favor of legalization (and taxation) of marijuana.

National Defense: Acceptable
Karger doesn't come across as particularly confidence-inspiring in his statements on national security and foreign policy, but he does advocate conciliatory diplomacy and supports a certain level of humanitarian intervention.

Economy: Acceptable
Karger takes a much more reasonable line on the economy than many Republicans. He supports incentivizing businesses to remain in America, but doesn't talk about drastic measures like eliminating all corporate taxes. He also supports investment in alternative energy to reduce dependence on foreign oil.

Constitutional Vision: Acceptable
There doesn't seem to be an incredibly strong constitutional vision underlying Karger's policies, but he does advocate for an inclusive government characterized by civil discussion.

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Now, cumulatively speaking, we have (ranked in best-to-worst order, with scores in the following order: Strong - Acceptable - Weak - Unacceptable):

Karger: 1 - 3 - 0 - 0
Roemer: 1 - 1 - 1 - 0
Johnson: 0 - 2 - 2 - 0
Huntsman: 0 - 1 - 3 - 0
Paul: 0 - 1 - 3 - 0
Romney: 0 - 1 - 1 - 2
Gingrich: 0 - 1 - 1 - 2
Bachmann: 0 - 0 - 1 - 3
Miller: 0 - 0 - 1 - 3
Pawlenty: 0 - 0 - 1 - 3
Santorum: 0 - 0 - 1 - 3

2012 Republican Presidential Candidates: First Glance (1)

2011-05-31T14:00:00.014-04:00

Part 1: Herman Cain & Newt Gingrich (this post)
Part 2: Gary Johnson & Fred Karger
Part 3: Tom Miller & Ron Paul
Part 4: Andy Martin & Jimmy McMillan
Part 5: Tim Pawlenty & Buddy Roemer
Part 6: Mitt Romney & Rick Santorum
Part 7: Michele Bachmann & Jon Huntsman
Part 8: Thad McCotter & Roy Moore (upcoming)
Part 9: Vern Wuensche (upcoming)

I think it's time to take a first look at the potential candidates for the 2012 Republican Presidential nomination. I'm pulling from a source list here. I'm going to look at each candidate on four main topics: Civil Rights, National Security, Economy, Constitutional Vision. I'll rate them on a four point scale (from best to worst): Strong, Acceptable, Weak, Unacceptable. I'll also include a brief justification, so if I miss something relevant (which I probably will, with so many candidates to consider) feel free to leave a note in the comments section and I may adjust the ratings. Most of my information is going to be pulled from the candidates' websites, for those that already have them.

This first post will address Herman Cain and Newt Gingrich. Look at the top for links to other posts in this series, and watch for more new posts to come.

Herman Cain

(UPDATE 7/19: As I mention here, Cain has lost any right he had to attention for the rest of the campaign. He's been removed from the cumulative list of scores and will no longer be considered a relevant candidate for the presidency.)

Civil Rights: UnacceptableCain believes that children should be taught that America's greatness is because of our faith in God, a clear violation of the Establishment Clause. He also has stated that he would not allow Muslims into his administration, which constitutes an unconstitutional religious test for government officials. Further, according to this site, Cain wants to criminalize abortion even if the mother was raped, and opposes equality for the LGBTQ community. Also, see here.

National Security: Weak
Cain's statement on national security explicitly places the use of military force ahead of diplomacy in resolving international conflict. He also displays a typical-but-sad understanding of the motivation behind terrorism, claiming that terrorists want nothing except to kill everyone.

Economy: Unacceptable
Cain takes an unfortunate stance on economic growth, focusing on how best to help businesses, rather than how businesses can help individual Americans. He displays a poor understanding of economics by suggesting that government subsidies to one industry harm other industries (companies do not compete cross-industry), and buys into the typical Republican word-smithing by opposing the so-called "death tax." [Update 8/1/11: Cain has now earned himself an "unacceptable" ranking due to his insistence on not raising the debt ceiling.]
Constitutional Vision: Unacceptable
[UPDATE: See here for the reason why this rating has been changed.] While his constitutional vision isn't remarkable, and he puts too much emphasis on a single part of the Preamble while ignoring "establish Justice," and "promote the general Welfare," he doesn't seem to have a horribly problematic idea of the purpose of government.
Newt Gingrich

Civil Rights: Unacceptable
Gingrich supports anti-homosexual discrimination in the state-recognized institution of marriage, and he opposes measures that would make sure that all patients have access to medically relevant information in favor of supporting the "right" of health care professionals to impose their personal morality on others. According to this site he opposes the abortion right, thinks that gay couples should not be able to adopt children, and favors a federal ban on same-sex marriage.

National Security: Acceptable
Gingrich, like Obama, emphasizes that our conflict is not with Islam, but with a tiny subset of Muslims. His misinterpretation of a Reagan quote (he suggests that we can be an alternative to tyranny by tyrannizing those who do not share our values) and his suggestion that math and science education is important so that we can make bigger guns just make him look silly.

Economy: Weak
Like Cain, Gingrich falls into talk about repealing the so-called "death tax." He also proposes capping federal taxes at 15% of income for all Americans, and cutting corporate taxes without closing any of the loopholes that allow many corporations to already pay far less than their fair share for the support of the infrastructure they rely on.

Constitutional Vision: Unacceptable
Gingrich is openly advocating a politicization of the judiciary by saying he will nominate "conservative judges," who will uphold a specific view of how limited government should be, rather than nominating judges according to their judicial ability. Of course, he thinks that judges should do more than simply interpret the law when it comes to "protecting" heterosexual-exclusive marriage. He also would support the ridiculous view that Congress can overturn Roe v. Wade through simple legislation.
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Now, cumulatively speaking, we have (ranked in best-to-worst order, with scores in the following order: Strong - Acceptable - Weak - Unacceptable):

Karger: 1 - 3 - 0 - 0
Roemer: 1 - 1 - 1 - 0
Johnson: 0 - 2 - 2 - 0
Huntsman: 0 - 1 - 3 - 0
Paul: 0 - 1 - 3 - 0
Romney: 0 - 1 - 1 - 2
Gingrich: 0 - 1 - 1 - 2
Bachmann: 0 - 0 - 1 - 3
Miller: 0 - 0 - 1 - 3
Pawlenty: 0 - 0 - 1 - 3
Santorum: 0 - 0 - 1 - 3