Wednesday, November 30, 2005

New At YDN

Season's greetings, Christians. Grow up:
In time for the holiday season, FNC's resident witch-smeller [John Gibson] has gulled a formerly respectable publishing house, the Penguin Group, into releasing "The War on Christmas: How the Liberal Plot to Ban the Sacred Christian Holiday Is Worse Than You Thought." I confess that I have not read Mr. Gibson's foray into investigative reporting, except that I have read it, and continue to read it annually, as an unwilling member of the audience to the nation's loudest wintertime celebration, the Festival of Christian Paranoia and Self-Pity.

UPDATE: More Christian paranoia here. I saw this when it first aired. The best part is the very end: "Upon further review, Margaret has decided to accept the money." (Hat tip: Andrew Sullivan)

UPDATE: Archie Bunker fathers child with the Diagnostic and Statistical Manual of the American Psychiatric Association. Tribunus plebis, Bill O'Reilly, loses his shit. It was news to me that the internet is funded by George Soros. The enemies of American values are everywhere:
I'm talkin' about blatant propaganda, spit out there on a daily basis by hateful liars, picked up by the mainstream media, and rammed down the public's throat [sic]. That's what I'm talkin' about. And you know who I'm talkin' about, too. You know the newspapers that do it, you know the radio people that do it, you know the tv people that do it. And you should be as angry about it as I am. It's dishonest, it hurts the country, and I'm gonna bring those people down. Mark my words, I'm gonna take 'em down, because nobody else will...We're going to go after those people, where they live. If mainstream media continues [sic] to run out this slander [sic] and run out this defamation [sic], I'm going to name the name, put their [sic] face on television, and tell you about it on the radio, so you walk away from them, so they fail in the marketplace. Enough's enough. We got people with lives on the line. We got people wanting to kill us where we live. And we got to put up with this kind of crap on the internet funded by George Soros. Not gonna happen! No spin zone! I'll be right back.
You see, the hateful lies about the administration's case for war and the hateful lies about Mr. O'Reilly himself are the self-same lies. And George Soros is the invisible puppet-master behind it all. Beware the Zionist Occupied Government. I feel sic.

Tuesday, November 29, 2005

Game Over

This story, if true (and John F. Burns, probably the best reporter in the country, contributed to it), can have one consequence: we've lost the war. It's taken me a long time to reach this conclusion, but if Filkins, Burns, and Mahmoud are right---if the army we're leaving in control of Iraq is composed of death squads carrying out reprisal killings---it's over.

UPDATE: There are no words.

Friday, November 25, 2005

The Bush Heuristics

As you may have heard, Jose Padilla has finally been indicted---but not on a charge of attempted dirty bombing. Now, this may come as a shock, but it turns out that the evidence for his being a dirty bomber was worthless, and also obtained through torture, which we do not do. Jack Balkin notes:
The Bush administration is desperate to avoid accountability on its detention and interrogation policies not because of what it may need to do in the future but rather because of the illegality of what it has already done. As a result, Administration officials dropped any mention of the previously touted "dirty bomb" plot against Jose Padilla, because prosecuting that theory would lead to inquiries about what exactly it had done to get the information that formed the basis of the accusation.
This suggests a rule of thumb. There's no denying that some members of the administration might believe that torture works, even if they're wrong---or, more likely, only care about maintaining unfettered executive power and are indifferent to whether or not torture works. So the rule is this: anytime a member of the administration argues for or acts in favor of a pro-torture policy, it's as likely that his pro-torture position is about limiting legal liability for the administration as it is about holding sincerely pro-torture beliefs (the two are not exclusive). This is not calling the pro-torture argument defective because of the motives of its advocates (that would be genetic fallacy); this isn't about the merits of the pro-torture argument at all. It's about administration officials using a theoretical debate about torture to immunize themselves from prosecution. When they talk about "protecting the country from future attacks," they're referring to covering their own asses from accountability for crimes---let's not mince words, crimes against humanity---they committed or abetted.

Amendment? Nein Danke (Pt. III)

If term-limit- and balanced-budget-amendments won't do the trick with pork, what sort of amendment will? An amendment that explicitly bans pork. But any such amendment is going to have to define pork, and I doubt there's anyway to do so that isn't either 1) so general that it prohibits anything besides (maybe) military spending (which could also be pork), or 2) so precise that it's not difficult to get around the amendment's requirments and get back to porking the budget.

Actually, these complaints are true of any effort at legislative bans on pork. If the experience of campaign finance reform is any guide, anti-pork legislation would aim for #2 and have the predictable result in #2.

So an anti-pork amendment won't work. But forget efficacy for a moment: should there be an anti-pork amendment just in case we can figure out language to thread the needle and prohibit just wasteful spending (leaving aside the difficulty of defining "wasteful")? I don't think so. Just as voters have a right to elect legislators who will waste their money, elected legislators have the latitude to waste voters' money. Voters may then choose other legislators. [What if every candidate is seems to be the case now? Is there any choice?--ed. Sure there is. The choice is not to vote for a Democrat or Republican, get pissed/active and promote other candidates. Rim shot goes to the anonymous commenter who went on at length about how I must hate politics and activism because I think the New Haven Democrats are corrupt demagogues.]

So, in sum, here's the question before the house. If we're going to design a new state (assuming we're for tripartite government, democratic republicanism, etc.), how do we draft the constitution so that legislatures have the freedom to make poor policy choices but not to pass laws that violate citizens' civil rights, especially the rights of (political, ethnic, religious) minorities? The answer, I think, is going to be more complicated than what you can get out of any single axiom. Emphasizing procedural justice to the exclusion of any other principle, per Tom Lehman's proposal, doesn't get you civil rights protections in cases in which they're not necessary for a clean process. Emphasizing substantive outcomes (or at least attempting to, as in the case with these three potential amendments) substantially undercuts democratic freedom. My proposal, such as it is, essentially asks for a constitution to be dispositionally oriented towards maximal, limited, and effectively inviolable individual autonomy. This is an analogue to virtue ethics, and I think provides for a viable harmonious convergence of liberty with democracy in the (if you will) rules of recognition that a strictly utilitarian, or even a strictly deontological principle doesn't allow.

Amendment? Nein Danke (Pt. II)

A term-limits amendment is sort of a farcical proposal for cutting down on pork in the federal budget. What about the other two I imagined when first I encountered the quick-link on Instapundit? Let's start with a balanced budget amendment.

Like term limits, this used to be a major feature of Republican politics (and I believe Bob Dole made motions towards it in 1996, though I could be wrong there). Also like term limits, it would have some obvious benefits: deficits, in general, are bad news. Also like term limits again, Republicans stopped talking about it once they realized that they like deficit spending as much as any Democrats do. [9/11 changed everything--ed.]

But mandatory budget-balancing has no place in the Constitution. It's not very difficult to imagine scenarios in which incurring debt and deficits are vitally important, and Congress should not be crippled by having to violate the Constitution in order to do so. Moreover, whether or not a budget-busting policy is good policy, it is well within the scope of a legislature's autonomy to decide that the utility of some policy outweighs the consequences of incurring debt to enact it. Codifying one's policy preferences---even if they are good policy preferences---in the Constitution is a way of imposing ad hoc law. (Not so with a right-to-privacy amendment, I've argued elsewhere.)

But would a balanced-budget amendment even do anything about pork? Again, I'm not so sure that it would. Obviously, setting an upper limit on spending turns competition for pork into a zero-sum game, but that's about all that can be said for it. How exactly would making spending a pot-limit rather than no-limit enterprise balance against the forces that drive wasteful spending? Here's my guess: the pressure each congressmen feels to retain incumbency---and hence the motivation to win budgetary earmarks---is too strong for mandatory spending caps to have a salutary effect on it. Instead, what you could expect from a balanced budget amendment is an increase in discretionary revenue (that means higher taxes) and, when there's a choice between legitimate/necessary expenditure and waste, wasteful appropriations win out most of the time. Perhaps the rate of increase in pork will slow a little, perhaps not. Neither outcome is a huge victory.

A balanced budget amendment neither alters the nature of congressional incumbency nor sets up any kind of referee to coordinate anti-pork voting. (The former proposal is up to voters, and only up to voters; the latter I'll get to in the next post.) What you get instead is a kind of prisoner's dilemma: everbody is better off if every member of Congress votes against pork-barrel spending, but the rational thing to do, from the point of view of staying in office, is to vote for it. Which is another way of saying: exactly what we have now.

Amendment? Nein, Danke (Pt. I)

As part of our apparently ongoing series on constitutional theory, and also to answer Tom Lehman's question about the extent to which I think a legislature's latitude to enact bad policy should be limited by constitutional provision, this and the following two posts will look at potential amendments that would (at least on a superficial reading) be justified by utilitarian analysis in the service of libertarianism.

We begin with this post by Glenn Reynolds (I know it's long, but bear with me):
PORKBUSTERS UPDATE: Mark Tapscott says it's time for a constitutional amendment.
Now, don't be ashamed if you have to go back and review. Reynolds' writing is very subtle and contains a lot of nested, layered points (a bit like Hegel). Sometimes you have to go back and reread him two or more times to get a complete appreciation of his arguments.

Porkbusters, for those unaware, is the (generally right-of-center) blogosphere's campaign to trim wasteful/useless/idiotic appropriations out of the federal budget. In theory, I support it, although I'm skeptical of any blog-triumphalist project.

Anyway, reading Reynolds, I decided to follow the link, which is always an interesting enterprise. "What sort of constitutional amendment is Tapscott pushing for?" I thought. It must have something to do with porkbusting---that much is clear---although Reynolds often posts items with even less context or content. But what could it be? A balanced-budget amendment? Some kind of anti-pork amendment?

. Tapscott is outraged about RINOs voting collaborating with Democrats to vote down a pork-free budget, and proposes a congressional term limits amendment.

Well, if you replaced the entire House of Representatives with 435 randomly selected citizens, it's about even money that the quality of debate, legislation, and leadership in the House would improve. That's not because the average citizen is anything to bring home to mother; it's because the average congressmen combines the brainpower of Luca Brasi with the ethics of Juan Peron. (Senators tend to be smarter, if not more ethical.)

That said, constitutionally mandated term limits are a horrible idea. Believing that the people have the right to make bad decisions about how to govern themselves is essential to being a democrat; believing that there should be limits to a sovereignty's policy-making freedom is essential to being a republican, true, but the right of the people to elect their own representatives is surely, uncontroversially, among the things within the proper scope of democratic decision making. The potential for bad, misguided, unduly influenced, whatever policy is just one of the risks of democracy. Does this mean I think that the 22nd amendment should be repealed? You betcha. The people were entitled to a third round of Reagan, and are entitled to a third round of Clinton, if that's what they want. (It's not what I want.)

P.S. Whatever the positive outcomes of congressional term limits might be---the basic one simply being that nobody gets to be in Congress for a long time---cutting down on federal pork is almost certainly not among them. It's true that indefinite terms allow individual congressmen to build up power and influence and use that power and influence to lard up every appropriations bill they get their mitts on with pet projects for their own states and districts that allow them to pad their resumes for re-election. What forcing Congressmen to retire after a few terms would do is prevent that accretion of power; it would not at all address the motive force behind pork, which is simply the desire to get elected and stay elected.

With no Robert Byrds or Don Youngs around, pork might be spread around more evenly, but it wouldn't reduce the absolute volume, or, if you will, mass of pork in appropriations. Instead of half-dessicated dirty old men rewriting appropriations bills with monuments to themselves here and there while junior members fight over the scraps, a term-limits amendment would produce a Congress of all junior members---who tend to lack the massive egos of senior members and are therefore more pliable hacks and subordinates---fighting each other furiously over a huge pool of pork-funding. It would be a bit like NFL revenue-sharing: every year, the absolute amount of pork goes up, but on any given Sunday, any district can win its own bridge to nowhere.

Whether you like things the way the are, or would prefer a congress of the latter variety is up to you (I confess I don't like either that much), but neither vision of congressional proceedings is one worth amending the Constitution for.

Tapscott's got this much right: cutting down on pork will probably require forcing a lot of incumbents out of office, but that's not sufficient. It will also require electing replacements who actually vote against wasteful appropriations.

Monday, November 21, 2005


Dick Cheney says that the claim that "brave Americans were sent into battle for a deliberate falsehood" is "revisionism of the most corrupt and shameless variety." Cheney knows a thing or two about shamelessness. He went on to say:
One might also argue that untruthful charges against the Commander-in-Chief have an insidious effect on the war effort itself. I'm unwilling to say that....
There stands Professor Cheney, meticulously laying out the taxonomy of positions on untruthful charges against the Commander-in-Chief. He, Cheney, doesn't quite think they're treasonous. But "one" might. Just not Cheney. And why won't he say so:
I'm unwilling to say that, only because I know the character of the United States Armed Forces.
So said charges do have "an insidious effect on the war effort" just in case the "character" of the USAF isn't, in one regard or another, what Cheney says it is. If, according to Cheney, the failure of the "untruthful charge" --- which is that the administration was deliberately dishonest in presenting the case for war, and its actual untruth is very much up for debate --- to undermine the war effort is contingent merely upon the high character of US troops, then the intrinsic character of the charge is war-undermining.

In other words, the upshot of Cheney's view is that there is something inherently war-undermining, and I think, therefore, quasi-treasonous, about positing that the administration deliberately deceived the public on pre-war intelligence. So when Cheney says "nobody is saying we should not be having this discussion, or that you cannot reexamine a decision made by the President and the Congress some years ago," he's lying, because he's saying just that.

UPDATE: One thing I want to clarify: I'm not trying to hedge by using the term "quasi-treasonous." Whether war-undermining speech -- just assuming, per Cheney's argument, that it is war-undermining -- is full-blown treasonous depends on your view of the intent of the speakers. I don't think there's any way Cheney can escape the consequence that claiming the administration lied is at least in the ball-park of treasonous.

UPDATE: Congress saw the same intelligence as the president, you say? The NIE figures more accurately reflected the views of the intelligence community than the presidential daily briefs (so why bother declassifying them)? The administration and congress came to the same conclusion upon the basis of the same evidence? Game, set, and match.

Picking Up After Dogbert

Scott Adams, creator of Dilbert, is a renaissance man: relentlessly unfunny cartoonist, blogger, and ignorant peasant.

Sunday, November 20, 2005

Dick Cheney Before He Dicks You

Heading off to an undisclosed location to write my senior thesis. Will return at some point. Till then, feedback on the recent content, updated blogroll, the Tom/Fannie/Jewish control of the media, constitutional theory, and Terri Schiavo are more than welcome. Immigrants, however, are unwelcome (!).

UPDATE: I notice I got blogrolled by a bonafide left-libertarian all-star. (Thanks, Knappster!) If you're wandering in from there, or anywhere outside these here ivory towers, the immigrant photo is of Al Jiwa, the Canadian president of the Yale College Republicans. For more inside jokes among my Northeast elitist friends and acquantainces, check out the "prequels" and "sequels" section of the blogroll.

Fire Siedlecki

[N.B.: If you don't care about football in general and the Yale-Harvard game in particular, just skip this post.]

Let's start off with the things that Yale's head football coach is not responsible for: following a goal-line stand that culminated in a recovered Harvard fumble with an interception returned for a Harvard touchdown one play later; not wrapping up the goddamn quarterback after making contact with him behind the line of scrimmage, allowing him to score the tying conversion; finding a way not to convert a crucial 3rd and 2; managing to lose yards while going for it on 4th and less than 1; three turnovers on three overtime possessions, including a lost fumble and an interception on two consecutive plays (think about that for a second); a receiver deciding, rather than get his ass on the ground and protect the ball after having gained enough yardage to set up a winning field goal, to fight for one more yard only to get the ball pillaged (that was the backbreaker, by the way).

Still, Jack Siedlecki's got to go. At the beginning of the third quarter, Yale went up 21-3 on a touchdown by Mike McLeod (of the clan McLeod), not only our best running back but also our most effective offensive weapon against Harvard. McLeod sat out most of the remainder of the half so that Jordan Spence, who I'm sure is a nice guy but needed a triptek to find his way out of the backfield, could get some playing time. Surprise! The running game stalled out and the offense was reduced to the arm of Jeff Mroz, who seems equally capable of throwing a TD pass or an interception on any given play.

After something prompted Siedlecki to put McLeod back in the game (it might have been the reduction of an 18 point lead to a 0 point lead, which I'm guessing the head coach did eventually notice), and with about 1:30 left in the 4th quarter, three time-outs in the pocket, and an opportunity for a winning drive, somebody on the staff made the call to hang McLeod out to dry as a fucking kick returner. In case this point needs to be stressed, that is the most dangerous role in football (punt returners can protect themselves by fair catching). The idea was what exactly? Risk the runningback's health because his KR average might be 5 yards better than the next guy on the depth chart? Are we supposed to believe that there isn't a single fast but not-indispensible wide receiver on the team?

Surprise! McLeod was injured on the return. The drive stalled. Harvard wins in overtime, because Yale forgot how to hold on to the ball.

So yeah, the head coach has to get the blame for benching the team's best player while the lead evaporates, then needlessly putting him at risk. Also, Siedlecki's coached Yale to five consecutive losses to Harvard, and if he wasn't single-handedly responsible for every cock-up in every one of them, he's certainly made idiotic, difference-making decisions more than once.

(Remember the 2003 edition of The Game? Yale had a better team than Harvard that year. The turning point came when Siedlecki decided, in a 4th down short yardage situation in the red zone, not to kick a field goal, not to pass the the ball -- QB Alvin Cowan was the best passer in the Ivy League, and not to run the ball with HBs Rob Carr and Dave Knox -- they were the best runners in the league -- but instead to run a weak side QB option, after the same play lost yards on 3rd down. It lost yards on 4th down, too.)

How does this guy still have his job?

Friday, November 18, 2005

Deep In The Heart Of The Matter

I was going to leave a comment after Tom's latest comment, but my response quickly became post-length. Here's Tom:
Let "A" be a bad idea.

Now for the argument:

"Thoughts, Tom? You want to let legislatures do A? You do? But, we both agree, A is bad!"

Suggestions for possible A's:

A = A protectionist trade agenda.

A = A minimum wage.

A = People not permitted to do fun drugs.

A = Speed limit 55 instead of 75.

A = Post office not open late enough.

A = Roads outside my house not repaved often enough.

Now, certainly we can argue over whether these A’s are really bad (and I suppose the question of who has the last word is really the issue here), but if Dan and I both agree that (say) the post office should be open later, why not put it into the Constitution?

Dan thinks that I would have us constitutionally protect nothing—I think it’s time for him to explain why we shouldn’t constitutionally protect everything.

Me: Well, let's start this way. There are at least two kinds of constitutional amendments; I'm not going to propose an analysis of either kind---suffice it to say that freedom of speech, protection against unlawful search and seizure, and equal protection/due process are examples of one kind, and alcohol prohibition (and repeal of prohibition), presidential term limits, and if you like, 75 mph speed limits are another kind.

Which kind of amendment would RTP be? I think, obviously, the first kind. (This would be the cue to explain why RTP is in fact more like alcohol prohibition than freedom of speech.)

The examples of bad ideas I've been giving in the most recent posts weren't just bad ideas; they were bad ideas that infringed on the sorts of rights protected by the first kind of constitutional provision. Without trying to be presumptuous, I think your basic counter-claim to my suggestion that you leave no room for judicial protection of constitutional rights is that I leave no room for legislatures to enact bad policy; on the contrary, I think any of the bad ideas you cite (except maybe drug prohibition, I'm not sure about that) would be bad laws if enacted, but not unconstitutional laws.

Now, I think perhaps I see what the heart of the issue is, and that's this: we fundamentally disagree on what it is that makes a constitutional provision one kind or the other; you say it's the necessity of a provision for establishing procedural justice; I say it's solely a function of the intrinsic qualitative profile of the provision.

But notice: on your view, if we're going to draft a constitution for a new state, the guiding principle for determining the appropriateness (for lack of a better term) of a proposed provision to the constitution is a kind of meta-utilitarianism; on my view, the guiding principle is deontological, or at least de re, the thing being a foundational concept of liberalism. Now, whatever you think of the merits of one versus the other view, I think you have to concede at this point that the fundamental tension is not process- versus outcome-oriented constitutional theory, but utilitarian versus deontological meta-theory, and it's your view that most resembles an outcome-oriented view in the sense that what counts as an appropriate provision is one that is necessary to ensure a particular outcome, namely procedural justice.

I am, of course, aware of the difficulty in proposing a deontological justificatory system, namely, any principle adduced as the foundational one (at least) seems to beg for further explanation, but on fuller consideration, I think that's a problem any theory runs into. In this particular case, using necessity for the establishment of procedural justice as the criterion for determining the appropriateness of a constitutional provision begs the question of what's so special about procedural justice that it should be the fundament of a constitution, rather than (for example) a robust notion of individual autonomy.

I'm going to leave these points open to further discussion with the following thought: deciding on procedural justice as the fundament of a constitutional system gets it wrong because it assumes that the state is in some sense (metaphysically?) prior to the individual, whereas citing maximal individual autonomy as the guiding principle of a constitutional system recognizes that the state exists only in virtue of the existence of individuals, on whom it supervenes.

I never thought I'd find a way to connect my political views with my metaphysics, but there you go.

The Coalition Cracks

Hugh Hewitt must be feeling ronery.

Pushback Pt. VI

George W. Bush claims the US doesn't torture. Here's a guide to believing him.

No Unreasonable Search And Seizure? Keep Flapping Your Gums, Commie

Only member of world's most overrated deliberative body with any credibility on the issue is preparing for a sustained fight against the Patriot Act:
"This is worth the fight," Senator Russell D. Feingold, a Wisconsin Democrat who serves on the Judiciary Committee, said in an interview.

"I've cleared my schedule right up to Thanksgiving," Mr. Feingold said, adding that he was making plans to read aloud from the Bill of Rights as part of a filibuster if necessary. [emphasis mine]
Odds that a GOP legislator blurts out that Feingold's speech gives aid and comfort to the enemy before a staffer informs him that the senator is reading from the US Constitution: 7:1

(Thoughts, Tom? Are Patriot-sanctioned searches of library records non-frivolous infringements on privacy? A dozen other rights-violating provisions of the Patriot Act?)

Reasons For Enumerating Constitutional Rights, Pt. Whatever

Roger Ailes (not that Roger Ailes) brings word of the following:
The writer David Irving was arrested in Austria last week, according to a statement on his Web site. Although he has not yet been charged, he is suspected of the crime of Holocaust denial.
Okay, for those not familiar, David Irving is a Holocaust denier. But let's repeat: Irving was arrested for the crime of Holocaust denial. Thoughts, Tom? If Congress enacted a ban on Holocaust denial that included a substantive finding that preventing public dissemination of Holocaust skepticism was a sufficient good to infringe on freedom of speech, on what grounds, if any, could a court overturn such legislation?

Pushback Pt. V

Here's the danger the administration faces in framing its critics as quasi-treasonous pussies after the decisive center has turned against the war. The old white shoes foreign policy machers who've been keeping silent for the sake of the process and propriety and blah blah blah don't appreciate the abuse. Like Stansfield Turner, ex-CIA director [but under Carter, a definite quasi-treasonous pussy--ed. Well, okay but he's an admiral, so I think the two points are a wash.] who opines
I'm embarrassed the United States has a vice president for torture...He condones torture, what else is he?
What else is he? A gaping asshole.

RADIO-FRIENDLY VERSION: "It seems to me it would be more helpful if Republicans and conservatives offered positive arguments for how to do better instead of attacking every critic as a wuss, unpatriotic, inconsistent, or worse." Yeah, okay, that is language more befitting an employee of Time.

Channeling Kaus

About a week ago I noticed Robert Scheer at the HuffPost giving a kiss of approval to gerrymandering. My comments, as you'll see, are as brief as they were because I'm quite frankly stumped about how to respond when somebody is that bloody wrong. Or, as Mickey Kaus puts it, "he's so wrong he forces you to think." With that in mind, here's Kaus's longish response, which I'll just cut and paste since I can't figure out how permalinks work on Kausfiles (hint: drop me a line if you know):
a) Suppose a state's districts were drawn so that each party was represented in the legislature by however many representatives its statewide support merited, but all those representatives were given safe seats. (This is roughly the pro-incumbent deal that states like California implemented.) Does the downside--legislators' freedom from fear of loss and resulting lack of immediate accountability--outweigh the upside--freedom from the distorting effects of having to campaign and raise funds? I tend to think yes, but admit it's a closer question than I'd thought. Otherwise why have elections? An approval plebiscite once every decade or so should be enough to validate the good work of "responsible legislators" in pursuit of "constituent needs." ...

b) Of course, in an all-safe-seat state, the makeup of the legislature won't reflect the popularity of the parties for long. If popular opinion shifts, one way or another, it won't be reflected in a change of legislators until dissatisfaction reaches the tsunami proportions necessary to actually unseat a "safe" incumbent. ...

c) Plus almost by definition, safe seats discourage battles for the center, and hence centrist candidates. That doesn't displease an anti-centrist like Scheer. But the 51% of the people at the center are by definition a majority! They deserve at least a few seats, no? (That's all they'd get in redistricting reform; most seats would remain "safe.") ...

d) The lobbyists are hardly out of power in the current system. Does Scheer think California legislators don't whore after campaign money? If you're a Democrat in a safely Democratic district, you still need lobbyists' help to win the primary election, if not the general. ** Or would Scheer get rid of primaries too? ...

** More (and better): An 11/12 National Journal article notes that, contra Scheer, the power of each party's core interest groups (e.g., the NRA, the NEA) and their lobbyists is actually magnified when the contest is in the primary rather than the general election.
With only about two dozen competitive districts in the House, primary campaigns are the only time most voters are likely to see real competition. And primaries are precisely where powerful interest groups are likely to have the most sway, because they connect with the voters who are most likely to turn out. "It's the hard core that dominates" within each of the parties, said former Rep. Skaggs, D-Colo. "What this has done is siphon off the middle-of-the-roaders in either party, and that has made solving problems harder."
On the subject of Kaus-like musings, I managed to catch the 3 am edition of Hardball. To cut to the chase, Matthews did a reasonably long interview with John Kerry, in which Kerry gave (for the most part) a consistent, well-argued, thoughtful, and persuasive critique of the administration's Iraq and anti-terrorism policies. And only a year too late. By 2008, he'll be perfectly capable of winning the 1992 election.

Thursday, November 17, 2005

And Now For Something Completely Different

Noted humorist and constitutional scholar Tom Lehman penned an op-ed in the YDN bashing my proposal for a right-to-privacy amendment to the Constitution. I think it would be helpful, in order to frame the debate, to refer to something I wrote in my column on Kelo v. New London, which was a response to Lehman's earlier piece on the same subject. To wit:
What is ultimately at stake in Lehman's apologetics for the Kelo ruling is the notion that the protection of individual rights against legislative- and executive-branch abuses is the responsibility of the judiciary in the first place.
Just to excise the context-dependent rhetoric, this is really what the dispute between Lehman and myself is about: whether or not the responsibilities of the judiciary include protecting individual rights against legislative and executive branch infringements. Lehman translates the problem into one of process- versus outcome-oriented jurisprudence, and if you're not interested in reading all the way through, I'll just say for now that the dichotomy is a false (and bizarre) one.

But before I can address what I've identified, and what I think Lehman would agree given his theoretical translation, is the central dispute, there are a number of points I have to make about his piece and its interpretation of mine.

What I'm getting at is this: There's a principle of charity involved in legal, philosophical and journalistic commentary, which is not a principle of courtesy---commentators can be as unconciliatory as they like---but rather a principle of, among other things, not deliberately distorting the arguments of one's opponents in order to score points, nor attributing views to them whose converses they explicitly endorse.

Item: Lehman begins his piece this way:
Amend the Constitution to include a right to privacy, Daniel Koffler argues ("Right to privacy should be enumerated," 11/9), and abortion rights for American women will be unequivocally guaranteed. His argument is flawed: A privacy amendment would not guarantee a right to abortion.
Did I argue that a RTP amendment would "unequivocally guarantee" a right to abortion? I did not. In fact, I wrote, "a court might find [banning late-term abortions] to be commensurate with the [privacy] holding in Roe," since there would be nothing unreasonable in finding that a fetus of a certain age was indeed a rights-bearing entity.

The argument of my column, which Lehman distorts beyond recognition, is not that the Constitution should be amended to include a right to privacy in order to protect abortion rights---and yes, that would be a crude outcomes-based proposal, but it is not one I made---but that a RTP amendment is a good idea in general, and it just so happens that the right to privacy needs defending when one of the major lines of attack against Roe is one that goes directly to the RTP finding in Griswold. Lehman's reading is either dishonest or incompetent. I report, you decide.

Moving along. Item: Lehman continues:
Koffler argues that if one grants that a fetus is not a person and the Constitution guarantees a right to privacy "It follows...that state regulation of a part of a person's body that itself bears no rights is an unconstitutional violation of privacy." Unfortunately for Koffler, this reasoning is unsound. His argument is missing a needed premise -- something like "the state may only force a person to refrain from an activity when the activity implicates the life or constitutional rights of another person."
Now, for a philosopher, the charge that one's reasoning is unsound is a very serious one. (As it turns out, the word Lehman is looking for is not "unsound," but "invalid." His claim is that my conclusion doesn't follow from my premises, not that the premises are false. An invalid argument is also unsound, but that's a supererogatory point.) Ditto for the claim that I'm missing a premise.

Unfortunately for Lehman, he managed to misread, then misleadingly attenuate the passage that contained my alleged unsound reasoning. The ellipsis hides the crucial text. What I actually wrote was:
It follows from the conjunction of these points that state regulation of a part of a person's body that itself bears no rights is an unconstitutional violation of privacy. In other words, the Constitution guarantees a woman's right to terminate her pregnancy. [emphasis added]
Which points was I referring to? These:
first, the domain of individual autonomy established in Griswold includes one's own body; second, a fetus is not a legal person.
In other words, Lehman simply substituted for my actual first premise one of his own devising. I did not claim that the existence simpliciter of a constitutional RTP + acknowledgement of the non-personhood of a fetus yields a constitutional right to abortion. I claimed, paraphrasing Roe, that the finding that a woman's personal medical decisions do indeed fall within the sphere of conduct, protected by the right-to-privacy established in Griswold, into which the government may not intervene.

Now, Lehman is entitled to ask why is it that a woman's personal medical decisions fall within that sphere. But in so asking, he is questioning the soundness not of the argument I made, but of an argument whose conclusion is point 2 in the following argument: given 1) a constitutional RTP, 2) the finding that decisions concerning personal reproductive health are protected by RTP, and 3) a fetus is not a legal person, it does indeed follow that statutory restrictions on abortions are violations of constitutional rights.

Since the first and third premises are basically uncontroversial---we're just stipulating that there is a constitutional RTP, which is what an amendment would do, and Lehman concedes that precissifications of personhood under which (early-term)fetuses are persons is implausible---it's the truth of the the second premise that's at issue.

Where Lehman suggests I'm missing a premise, what he's getting at is that I haven't argued for the second premise. And he's correct about that; I did not present an argument for the second premise, since it is simply part of the ruling in Roe, and I wanted to make the point that the conclusion of Roe is correct as long as its premises are true. In other words, I was establishing precisely those premises as the grounds for argument over privacy rights, and stating that while I believe those premises are true, I admit that reasonable people may disagree---which is why I argue for a RTP amendment. What Lehman is not entitled to say, on pain of demonstrating an ignorance of what it is for an argument to be valid or sound, is that I'm missing a premise. The argument is valid because the conclusions follow from the premises. The argument is sound just in case the premises are true.

So, are they true? Lehman claims, in effect, that (2) might be true given some other premise. He suggests, let's call it (2*):
the state may only force a person to refrain from an activity when the activity implicates the life or constitutional rights of another person.
And having imagined this to be my premise, he goes on to attack it. But what is required for the finding that the Griswold ruling on privacy extends to decisions like that of a woman to terminate her pregnancy is nothing like what Lehman suggests. All that is required is a little bit of deduction.

In Griswold, the Supreme Court found that an extant constitutional RTP extended to married couples (in which, obviously, both members are rights-bearing persons) making decisions about their private reproductive behavior. As Lehman ought to know, and perhaps does, whenever a true claim entails or contains a logically weaker claim, the logically weaker claim is also true. In Roe, the question was whether RTP extends to a woman seeking to obtain an abortion. Since, in such instances, there is only one decision-making, rights-bearing person, and since RTP has already been found to extend to couples, obviously RTP extends to the individual woman and her private reproductive behavior. The question, as always, goes back to Griswold.

What Lehman's (2*) is, in fact, is a principle the Griswold court could have utilized to make their finding about the nature of RTP, but it is not the principle they actually used.

Lehman continues, as I said, by attacking a premise he invented and attributed to me. Item:
Need the state justify its every infringement on liberty by pointing to a potential murder the infringement would prevent? The answer is obviously no. For example, the Constitution guarantees me the right to political protest, and cats certainly aren't people (nor do they possess constitutional rights), but the state can unquestionably prohibit me from setting my cat aflame in protest of a tariff on cat food. If this doesn't do it for you, substitute "post office" for cat.
I confess to having scant idea of what Lehman is talking about, aside from ascribing to me the view that a constitutional RTP immunizes someone from prosecution for burning down post offices in protest. If a court were convinced that all blastocysts/embryos/fetuses/etc. in any pre-birth stage of development were legal persons, then a statute banning all abortions would pass constitutional muster because all it would consist of is a reiteration of statutes outlawing murder. Privacy rights do not cover murder. Nor do they cover arson, nor abusing animals. What would be essential to any language of a RTP amendment is some iteration of the harm principle. Again, I don't see why this is confusing.

Skipping the paragraph in which Lehman most concisely states his mistaken interpretation of my general argument, which I described above and which anyone is free to assess by following the links to the two pieces, Lehman finally comes to the meaty part of his own argument. And it's a real beauty:
Judges could protect privacy from frivolous regulation, but states never infringe upon privacy without purpose. Any legislative decision to intrude on privacy inevitably involves a choice of evils. Such an intrusion entails the infliction of suffering for reasons whose sufficiency may be open to question -- not the infliction of suffering that can be fairly labeled needless. [emphasis added]
The italicized text bears repeating: "states never infringe upon privacy without purpose." Depending on the definition of "purpose" this is either tautological or demonstrably false (and easily so). If infringing with "purpose" simply means infringing on any grounds whatsoever, then every state infringement on privacy is purposeful. Of course, any time a legislature passes a law, it will adduce some reason for doing so. Pace Lehman, that hardly entails that "[a]ny legislative decision to intrude on privacy inevitably involves a choice of evils." To borrow the language Lehman uses later, it is only true that every legislative infringement on privacy is non-frivolous if it's part of the definition of legislative action to be non-frivolous. During a lecture on Descartes in early 2003, Michael Della Rocca notoriously suggested that people who make circular arguments be taken outside and shot. I wouldn't go quite that far, but I would suggest that they tone down the smugness just a bit.

Or perhaps Lehman thinks purposefulness and/or non-frivolity have a more robust meaning than being simple conceptual appendages of legislative action. Fine. The fact that a legislature decides to pass a law that infringes on privacy is no indication of any kind that the infringement is justified. (Want an example of unjustified infringement? How about this one, from today, in which a woman was jailed for 90 days and put on a year's work release, without having violated any laws.) Legislatures enact unjustified infringements on any number of rights all the time, both contemporaneously and historically. And that phrase, "unjustified infringements," is key. Whether deciding if the Online Decency Act violates freedom of speech, or the Intelligence Identities Protection Act violates freedom of the press, or school segregation violates the equal protection requirement, or various gun control laws violate gun ownership rights, the judiciary makes determinations of whether or not particular infringements on rights are justified; and it is the responsibility of the judiciary, as the branch of government that interprets law, to determine what the limits on rights are. Moreover, it does so all the time, with respect to any number of constitutional rights. Why such interpretation of a constitutional RTP would somehow be disconsonant with judicial interpretation of the other rights is beyond my capacity to say; perhaps Lehman can inform us.

Indeed, it is incumbent upon him to state what it is that distinguishes a constitutional RTP from any other constitutional right. Otherwise, constructions like this
Assuming that unelected, unaccountable judges are better suited than legislatures to discern the correct balance between social welfare and personal privacy flies in the face of our democratic values
can be restated for every single constitutional right. Should "unelected, unaccountable" judges, or accountable legislatures discern the correct balance between social welfare and freedom of speech? between social welfare and freedom of association? between social welfare and freedom of the press? get the idea.

Lehman does, to his credit, acknowledge the difficulties that could arise in curtailing the scope of judicial review:
Where in my seemingly blind faith in the democratic process is there room for judicial review at all?
There is no room, it turns out, for overturning legislation on the grounds that it violates constitutional rights. The only room remaining for judicial review is:
to step in when our representatives are attempting to subvert the ballot box as a check on undesirable legislation...for safeguarding the political process.
Let's begin a taxonomy of the major Supreme Court cases that were wrongly decided if Lehman's view of the scope of judicial review is correct.
  • Marbury v. Madison inasmuch as it held that "Congress can not pass laws that are contrary to the Constitution" and reserved for the court the power to determine that laws were indeed contrary to the Constitution.
  • Lochner v. New York, which ruled a law limiting working hours unconstitutional because of a "right to contract" entailed by the 14th Amendment
  • Griswold v. Connecticut; nothing about the Connecticut law suggested a violation of process---the law was passed by properly democratically elected legislators in a manner that conformed to the established rules by which laws are passed; nevertheless the Supreme Court ruled the law a violation of constitutional rights
  • Roe v. Wade, for precisely the same reason. Note that Lehman claims in his piece that the Supreme Court was correct to rule that "no possible good that could come from anti-abortion legislation could justify infringing upon the life plans of the mother," and that such a finding emerged from "balancing two legitimate costs." If Lehman's later contention about the scope of judicial review is correct, then by the lights of his own argument, his support for Roe is absurd.
  • Brown v. Board of Education; the Topeka Board of Ed. was legitimately empaneled, and broke no processual rules in enforcing segregation. Nevertheless, the Supreme Court ruled the segregation of schools to be an equal protection violation explicitly because "separate but equal" was a fantasy. Again, if Lehman is correct, the Supreme Court had no business whatsoever coming to that determination; it is the legislature, and the legislature alone, that should be deciding what constitutes equal protection.
  • Likewise, every single currently-governing civil rights case in the nation's history, whereas Plessy v. Ferguson and (Dred) Scott v. Sanford were correctly decided if Lehman is correct about the role of the judiciary.

And to return to the theoretical, if it is true that judicial review applies only to process, the judiciary could not legitimately overturn any law, regardless of its suspect constitutionality, as long as it was enacted according to the correct process. Since Lehman concludes his piece by comparing my proposal for a constitutional RTP to slavery (or perhaps to overturning slavery, in which case he doesn't believe the constitution should have been amended to ban slavery), I don't think it would be impolitic to point out that under his restrictions on judicial review, the Supreme Court could not overturn a redux of the Nuremburg laws, provided that Congress did not violate processual rules in passing them.

This outcome cries out for a Mooreian response. (That's G.E., not Michael Moore.) As Moore would put it, if the consequence of an argument is, e.g., that Brown v. Board of Ed. was wrongly decided, there is something damnedly wrong with the argument. And it's this: the dichotomy Lehman proposes between courts protecting "processes" versus "outcomes" is bollocks. When a court rules that legislation violates a constitutional provision, it does so (mostly) without regard to the consequences of overturning that law. Any number of proposed laws that would result in beneficial outcomes for society would be subject to reversal by the courts just in case they violated the Constitution. (For example, many people think that our country would be a lot better off if there were no private gun ownership. Some of those people have undoubtedly sat on the Supreme Court. But the Supreme Court could only countenance a law banning all private gun ownership if it were to ignore the explicit text of the 2nd Amendment).

The operative principle is not that the judiciary should rule in favor of outcomes it feels would have the highest utility, nor indeed that the court should make "substantive moral decisions," but that the judiciary has a responsibility to determine whether and how legislative action violates the Constitution. Lehman's argument---that the only body legitimately able to determine whether a legislature's decisions pass constitutional muster is the legislature itself---is an argument against either checked or balanced government.

Pushback Pt. IV

The shoe that has yet to drop in the administration's counter-offensive is any honest public statement about their torture policy. (Yes, Bush says we don't torture, but Bush is lying, and while he's lying, Cheney is lobbying the conference committee to create an exemption for the CIA on John McCain's torture ban.)

As Andrew Sullivan aptly puts it,
Just when you think you have heard the worst about this administration's chaotic, ad hoc, incompetent and intermittently criminal detention policies in the war on terror, a trap-door opens and you fall down another story.
Andrew was referring to news that there have been 83,000 foreigners held in US custody in the past four years, of whom 14,500 remain in custody.

Bad as that is, what strikes me as far more indicative of the bottomlessness of this administration's moral degeneracy is the revelation that the interrogation tactics used in the name of a war for democracy and civilization are plagiarized from the handbooks of Vietnamese and North Korean (read: commie) torturers. I won't try to paraphrase Arthur Silber:
Let's make certain we understand what this means: all the rationalizations utilized by the administration and its defenders in this matter -- every one of which relies on the notion that torture may help to save lives and prevent an attack, that is, that torture may "extract useful intelligence" -- has been and is a lie. This was never about obtaining intelligence at all. That needs to be repeated, because it is so monstrous in its implications: This was never about obtaining intelligence at all...

Every expert on the subject emphasizes over and over again that torture does not work for the purpose of extracting good intelligence: if you inflict enough pain on anyone, he will tell you whatever he thinks you want to hear, whether it's true or not. And as these authors emphasize, truth was never the goal. Instead, "their aim was to force compliance," or, as they put the point more generally: "Americans desperately wanted mastery over a world that suddenly seemed terrifying." Our leaders felt out of control, as well they should have (and which was even understandable and justified to some degree, at least as an initial reaction). They wanted to reestablish control as quickly as possible, and to believe they directed events rather than the other way around.

To achieve this goal, they resorted to the most brutal methods of our former enemies: they sought to bend men to their will by means of brute force. The point was not what the prisoners might tell their captors: the point was that the prisoners' will had to be destroyed. They had to be made to obey. Just as was true of communist interrogators, the only goal was "to control a prisoner's will." Period. Our leaders deluded themselves that if the enemy was destroyed in this manner, they and we would be safe. But this particular kind of delusion should not properly be viewed as falling within the category of military strategy: it belongs in a textbook on clinical psychology, in a chapter describing exceptionally severe and destructive neurosis.
The compounding factor in all this is that, following Lindsay Graham's proposal to strip detainees of habeas corpus rights, the Senate is devoting its energy to coming up with a fair "compromise" on habeas corpus. (Read all about it here.)

I wonder whether alleged libertarians like Juan Non-Volokh are prepared to revise their assessments of the appropriateness of comparing US detention policy to the Soviet gulag. As anyone familiar with Zeno's paradox is aware, if we only approach gulag-style detention by half-steps, we'll never actually get there. Still, how similar to the gulag would our detention policy have to be in order for JNV to decide that criticizing the policy is a higher priority than criticizing its critics?

Secret detention facilities in eastern Europe? Check. Communist torture tactics? Check. Detaining innocent people indefinitely while stripping them of their right to appeal their confinement? Check. Torturing detainees known to be innocent? Check. I'd say the appropriateness of comparisons to the gulag is beyond doubt.

Bridge To Nowhere

Defunded, but I trust the Murkowski family as much as I trust the Corleone family.

Pushback Pt. III

This James Fallows post is essential reading.

UPDATE: Sen. Chuck Hagel (R-Nebraska):
The Bush Administration must understand that each American has a right to question our policies in Iraq and should not be demonized for disagreeing with them. Suggesting that to challenge or criticize policy is undermining and hurting our troops is not democracy nor what this country has stood for, for over 200 years. The Democrats have an obligation to challenge in a serious and responsible manner, offering solutions and alternatives to the Administration’s policies...

To question your government is not unpatriotic – to not question your government is unpatriotic. America owes its men and women in uniform a policy worthy of their sacrifices.
Correct on all points.

Pushback Pt. II

Since there are already loads of people engaged in assessing the honesty of the administration's case for war, and since I have nothing to add by way of reportage, I want to focus on the reverberations of the pushback speech.

Here is what Glenn Reynolds had to say, which I will take to be representative of a big slice of the pro-pushback* camp:
The White House needs to go on the offensive here in a big way -- and Bush needs to be very plain that this is all about Democratic politicans pandering to the antiwar base, that it's deeply dishonest, and that it hurts our troops abroad.

And yes, he should question their patriotism. Because they're acting unpatriotically.
Leaving aside the patriotism stuff for a moment, is it not obvious that Reynolds & co. (not to mention Bush and Cheney) are guilty of precisely the same sin they accuse the Democrats of? Namely, a variant of genetic fallacy, according to which citing the purported dishonest motivations of one's opponents is sufficient to discredit their argument.

Here's what I mean. In defense of the president's speech (and the right-blogosphere's defenses of the president's speech), Tom Maguire wrote:
In any case, I believe there is a substantial difference between "Your false charges are undermining the troops" and "Your criticism is undermining our troops".
(Again, let's table the "undermining the troops" bit for now.)To be fair to Tom, he does (sort of) try to give a substantive account of why the charges of Bush's critics are false (or at least acknowledges that such an account is necessary), but for Reynolds, it's enough merely to draw the distinction.

The critics of the administration are making a specific claim, let's call it (A). (A) is: The administration deliberately made a case for war on the basis of charges it knew to be false and evidence it knew was not credible.

The motivations, honesty, opportunism, etc., whatever, of the proponents of (A), is utterly irrelevant to the truth of the claim. Suppose that Reynolds is correct, that the only reason the Democrats are are asserting (A) is that they are "pandering to the antiwar base." So what? That does not mean that (A) is false. Suppose Bush is correct in claiming that many Democrats now accusing the administration of dishonesty voted for the war (true) on the basis of precisely the same intelligence and analysis that the administration had access to (false). Again, so what? Regardless of whether or not the Democrats are seeking to rewrite the history of their support for the war, the truth or falsity of (A) stands on its own, independent of the motives of politicians with regard to it.

One response of Reynolds and other Bush defenders, which I suggested be placed on the table, is that merely asserting (A) is dishonest, "unpatriotic," and (somehow) undermines the troops. Reynolds would counter that it is not simply asserting (A), but asserting (A) when (A) is false, that is dishonest. But the only reason Reynolds adduces for believing that (A) is false is the alleged dishonesty of Democrats in making the claim. A fantastic little circle he's drawn! It is dishonest to claim that the president lied because that claim is false. And that claim is false because the people making it are dishonest.

Now, about this unpatriotism and undermining the troops stuff. I can't do much better than the old boss and his commenters, so, take it away Matt Welch on unpatriotism:
So, if I'm getting the general vibe of the pro-Pushback crowd right, it's "fair" to declare that the U.S. media (and those who have the temerity, or should I say derangement, to believe that the White House manipulated pre-war intelligence), are deliberately (and again, monolithically) trying to lose the war by siding with America's enemies ... but it's "not fair" to print the headline "Battle Deaths Continue to Mount."

Or maybe it boils down to this -- it's OK to say that "Newsweek lied, people died," but don't you dare say such a thing about the guy who actually commands the world's most powerful military.
(For those interested in pursuing this line further, Reynolds responded to Welch, and Andrew Sullivan then responded to Reynolds, I hope, definitively.)

What about undermining the troops? I sure hope I'm not doing that. And I can't top the comment left by "Charlie" on this Matt Welch post:
Holy shit! how the hell are [the troops] going to survive actual *bullets*?!
You'd think the old sticks-and-stones adage would appeal to Republicans, but apparently not.

*UPDATE: The starred sentence originally read "pro-war." I think pro-war opinion is too diverse to be represented by Glenn Reynolds. "Pro-pushback" is a better term for what I'm getting at.

Pushback Pt. I

So the news of the past week, beginning, coincidentally of course, on Veterans' Day, is that the administration is taking a much harder line attacking their critics who accuse them of dishonesty in making the case for the war in Iraq. Fred Kaplan does a thorough job dissecting Bush's pushback speech here, and Josh Marshall lays the preliminaries on Cheney's pushback speech here. Clearly, something important has shifted when an administration that had previously dismissed out of hand and with no further comment assertions of dishonest build-up to the war suddenly starts an aggressive counter-offensive.

What's the explanation? Someone within the White House must feel that public disapproval of the war and of the president is nearing if not already beyond a critical mass, and there is no choice left but to fight back. That's right, Rove is back.

Wednesday, November 16, 2005

Formez Vos Bataillons

Kudos to Abe Foxman, who is generally pretty oversensitive, for calling for a unified front against the rise of domestic Christianism. Puts Joseph Lieberman to shame.

Great Minds Think Alike?

Dan Savage has an op-ed in the New York Times today arguing for...wait for it...a right-to-privacy amendment to the US Constitution. His argument is basically identical to mine:
Well, if the right to privacy is so difficult for some people to locate in the Constitution, why don't we just stick it in there? Wouldn't that make it easier to find?...

Making this implicit right explicit would forever end the debate about whether there is a right to privacy. And the debate over the bill would force Republicans who opposed it to explain why they don't think Americans deserve a right to privacy - which would alienate not only moderates, but also those libertarian, small-government conservatives who survive only in isolated pockets on the Eastern Seaboard and the American West.

Of course, passing a right to privacy amendment wouldn't end the debate over abortion - that argument would shift to the question of whether abortion fell under the amendment. But given the precedent of Roe, abortion rights would be on firmer ground than they are now. [emphasis mine]
Savage is exactly right about the potential broad appeal of a RTP amendment, which to be sure is not a universal appeal. Just ask Mara Stith. Not only, apparently, do social conservatives think the state has a right to regulate consensual private behavior amongst adults, but so do MacKinnonite feminists who see RTP---and if they're being logically consistent, the full range of constitutional rights---as vectors for the oppression of women. I should have mentioned this in my response to Stith's letter, but if her view that the Supreme Court's decision in Roe was an act of "judicial creativity," I don't see how she could possibly claim that Griswold was correctly decided. Oh well, it's not as if the right has a monopoly on puritanism.

Link via Julian Sanchez at H&R, who tries to lay out some of the difficulties in judicial interpretation of RTP without declaring the whole project doomed. Defining privacy with "specificity and precision," as Julian puts it, would minimize those difficulties. My question is, aren't those difficulties, even if maximal, preferable to leaving the existence of RTP an open question in the first place?

Keeping Tabs Pt. II

Bush is feeling ronery.

Tuesday, November 15, 2005


Since I've been skirting around my views on abortion, I might as well go ahead and say what they are.

Here's the thing. I've never been able to get passionate about abortion issues, because they have always seemed to me neither terribly controversial nor terribly interesting. It boils down to this. Until an unborn entity becomes a person, the state has no legitimate stake in telling the woman carrying it what to do or what not to do with it. Once it is a person, it bears rights and is entitled to protection. The notion that personhood begins at conception is a case of mistaking the potential for the actual; something that will be a person is not a person: that's just an analytic truth. Whatever the potential mode of existence of an entity in the early stages of gestation, it is not a person. So any barriers to abortion in first trimester pregnancy (let alone barriers to obtaining emergency contraception) are illegitimate infringements on a woman's privacy.

On the other hand, a fetus in the final stages of pregnancy obviously is a person: its intrinsic qualitative profile the minute after it is born is effectively identical to its intrinsic qualitative profile the minute before. If it's homicide to end the life of the former (intentionally), it is homicide to end the life of the latter (intentionally). There is a brand of--I don't know if I want to call it feminism, but I'm not sure what the term is--that simply can't acknowledge this. I do sympathize with the standard pro-choice line on abortion, to the extent that the objective of a great deal of opposition to abortion has to do with asserting control over women and over their offspring, but I find it (at least in some cases) easier to understand the anti-abortion argument. If you define a person as something that comes into existence at the moment of conception, often courtesy of some process of ensoulment, then of course you would want to outlaw any abortion, and EC too. The anti-abortion answer to the question, what is a person, may be utterly wrong, but at least it's an answer. I simply cannot grasp what definition of personhood could make it alright to abort a fetus at any point in time until the moment of birth, and when I inquire about this, I usually get a lecture about slippery slopes and efforts to ban abortion simpliciter. All that could be true, but it still wouldn't provide a basis for killing rights-bearing persons. Put it this way: what about the moment of birth is it that makes it so special for determining personhood? Everything that seemingly essential property of personhood, consciousness, viability, etc., arises prior to birth. Perhaps someone could set me straight on this point.

Of course, my analysis doesn't solve the true problem cases---cases where personhood, as defined as conscious being, is indeterminate. I tried to sketch the issues surrounding indeterminacy in personhood here.

Keeping Tabs Pt. I

Last Friday, the YDN printed this letter responding to my column on privacy rights:
To the Editor:

Daniel Koffler's column calling for a constitutional amendment creating a "right to privacy" to support abortion (11/9) displays remarkable disengagement with women and the courts.

Because it lacks meaningful limits, the right to privacy lacks universal appeal. Not only do our courts, legislatures and people remain deeply divided on the issue of privacy, but many feminists believe the "right to privacy is a right of men 'to be let alone' to oppress women one at a time," in the words of Catherine Mac-Kinnon.

Our founding fathers wisely omitted the "right to privacy" from the Constitution. In a feat of judicial creativity, the Court discerned this right and with it justified the right to abortion. Yet the Court since Roe has de-emphasized "privacy" and refocused on "liberty" as its justification of abortion rights (see Planned Parenthood v. Casey [1992] and Stenberg v. Carhart [2000]).

Koffler somehow hopes that a super-majority of Congress will pass an amendment in favor of a right the Supreme Court has already backed away from.

Marah Stith LAW '06
Wow, a real live law student from fucking Yale. But is she right? Let's take this line by line.
Daniel Koffler's column calling for a constitutional amendment creating a "right to privacy" to support abortion (11/9) displays remarkable disengagement with women and the courts.
First of all, I did not argue for a right-to-privacy amendment to support abortion; I argued that, while a RTP amendment would be a good idea in general, it would be a particularly good idea against the backdrop of a legal culture shifting more and more towards social conservatism (given Republican electoral victories), in which RTP appears to be the most vulnerable plank of the Roe decision. In effect, I'm trying to prevent RTP from being a casualty of the culture war (putting my own position on abortion on the table, for now). As for my "remarkable disengagement with women and the courts," well, read on.
Because it lacks meaningful limits, the right to privacy lacks universal appeal.
The antecedent, conclusion, and inferential logic here all strike me as flat-out wrong. In order: there are no a priori "meaningful limits" conceptually contained in, say, freedom of association and freedom of the press that RTP lacks. The judiciary has spent centuries determining and clarifying those limits, and that is part of what the judiciary exists to do. A RTP amendment can be drafted in language no more complicated than the language delineating any of the basic freedoms, and the principle limiting it would be precisely the same: the state may not impinge on the privacy of citizens (and I suspect there would be something like a harm principle definition for this) except in marginal and/or emergency circumstances. If the courts can manage discerning limits on freedom of association---as they have had to do in the past, e.g., with respect to the Klan, and will have to do with respect to terrorist organizations---they can manage to discern the limits on privacy rights.

Secondly, Stith claims that RTP "lacks universal appeal." Now, since the Constitution explicitly states the process by which amendments are ratified, and that process does not require universal appeal, I'm not entirely sure what to make of this remark. Look hard enough (or maybe not so hard) and you will find ostensibly intelligent people who are uncomfortable with some of the enumerated rights. Moreover, can we imagine circumstances, or a possible world, in which majority opinion at some point in time is opposed to, e.g. freedom of speech? I believe we can. Would majoritarian opposition to freedom of speech constitute a reason to remove it from a nation's rule of recognition, or bolster the case for defending it against the vicissitudes of popular opinion? My answer is the latter. What is Stith's? As for the fact of the matter in the actual world, neither Stith nor I knows how a RTP privacy amendment would poll, but I think we can be fairly certain that it would be more popular than a one-off right to abortion. RTP cuts across party affiliations and ideologies; people just generally don't like their business being fucked with, and the trouble with a universally appealing RTP, if there is any, is that our species' bestial irrationality allows for people to be entirely in favor of individual autonomy and robust libertarian freedom in their own case without forming a consistent opinion of the autonomy and freedom of others.

Lastly, Stith's inference, that the purported lack of universal appeal of RTP can be attributed lack of meaningful limits, seems to me to be just obviously wrong. Has she bothered to take a glance at the things the public believes, and their reasons for believing it? Why on earth would something like "lack of meaningful limits" be among the average citizen's reasons for disfavoring a proposal?
Not only do our courts, legislatures and people remain deeply divided on the issue of privacy,
There's a conflation here that I think obfuscates the nature of the controversy over privacy. For the courts, the question is whether there is a constitutional RTP. For the people, and hence for the legislatures that allegedly represent them, the question is whether there ought to be a RTP. Amending the Constutition to include a RTP would instantly dissolve division within the judicial system over the existence of RTP, and doing so would require that the legislatures and people be far less divided than Stith claims. If her assessment of popular opinion is correct, then she has no reason to fear passage of a RTP amendment. But I think she's wrong. As I said, people don't appreciate having their business fucked with.
...but many feminists believe the "right to privacy is a right of men 'to be let alone' to oppress women one at a time," in the words of Catherine Mac-Kinnon.
Ah, I'm tempted to say that this is the meat of Stith's objection to RTP. It would be easy to say that I don't care what Catherine Mac-Kinnon [sic] thinks of privacy rights, because Catherine Mac-Kinnon [sic] hates freedom. But that would be too easy, so let's take the charge (for the moment) seriously. It is, first of all, an incoherent claim if interpreted literally. RTP is a right of men and women alike, and women would enjoy its legal protections to precisely the same extent that men would. Moreover, in the context of a secondary legal system with a robust delineation of rights, including an explicit provision, per the 9th Amendment, that no rights can be construed to "deny or disparage others," claiming that RTP is nothing more than cover for a form of oppression is a way of taking issue not with RTP itself, but with the underlying semantics of rights-discourse.

In fact, I think that's precisely what MacKinnon and Stith are doing, and what they must be doing if their analysis of RTP is to be intelligible. But RTP is not the only constitutional right that places limits on the on the ability of the state to exercise power over citizens, and if RTP is a means of enabling oppression of women, so is every other libertarian right. Notice: by substituting terms like "patriarchal" and "women" for terms like "bourgeois" and "proletariat," MacKinnon's analysis is formally equivalent to the Marxist critique of liberalism. If the latter case is not persuasive, neither is the former. And if RTP is merely a tool of oppression, would MacKinnon and Stith object to its violation? Do they believe Lawrence v. Texas was correctly decided, and on what grounds?
Our founding fathers wisely omitted the "right to privacy" from the Constitution.
I quote this to note the following: if the Supreme Court's decision in Griswold was correct, then RTP was not omitted from the Constitution, it was merely left unenumerated. Otherwise, I'll refrain from any facile point-scoring over approvingly quoting Catherine MacKinnon in one sentence and praising the wisdom of the Founding Fathers in the next [talk about patriarchy--ed.].
In a feat of judicial creativity, the Court discerned this right and with it justified the right to abortion. Yet the Court since Roe has de-emphasized "privacy" and refocused on "liberty" as its justification of abortion rights (see Planned Parenthood v. Casey [1992] and Stenberg v. Carhart [2000]).
What, pray tell, does such "liberty" consist of? While the existence of a constitutional right to privacy is controversial, the existence of a singular, implication-free right to abortion is not. There is none. It can only be a form of constitutionally protected activity if the Constitution protects an individual's autonomy in general. But don't take it from me. Take it from the O'Connor, Kennedy, and Souter majority opinion in Casey, which affirmed
a woman's right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State, whose pre-viability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman's effective right to elect the procedure
Sounds like RTP privacy to me. Or would Stith argue that it is coherent to say that the state may not unduly interfere with this particular choice, but may do so with others? Where the majority refers to liberty, it does so as a means not of distancing itself from Roe, but reaffirming it:
Roe determined that a woman's decision to terminate her pregnancy is a "liberty" protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment. Neither the Bill of Rights nor the specific practices of States at the time of the Fourteenth Amendment's adoption marks the outer limits of the substantive sphere of such "liberty."
In other words, the court in Casey is saying that RTP is a liberty, which makes perfect sense, and furthermore refers to a "sphere of such 'liberty.'" Perhaps Stith could explain to me the substantive distinction between a right to privacy and a sphere of liberty. Elsewhere, the majority links its finding in Casey, the previous finding in Roe, to Griswold:
No evolution of legal principle has left Roe's central rule a doctrinal anachronism discounted by society. If Roe is placed among the cases exemplified by Griswold, supra, it is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the liberty recognized in such cases.
Are we really witnessing the court repudiating RTP? Then why would the court explicitly connect its view of abortion rights with other modes of conduct protected by an unenumerated RTP:
Similarly, if Roe is seen as stating a rule of personal autonomy and bodily integrity, akin to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection, this Court's post-Roe decisions accord with Roe's view that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims.
Again, the onus is on Stith to distinguish "individual liberty," as exemplified in "limits on governmental power," from RTP. But before she does, perhaps she could explain what O'Connor, Kennedy, and Souter are talking about when they refer to "a constitutional right of privacy between a pregnant woman and her physician."
Koffler somehow hopes that a super-majority of Congress will pass an amendment in favor of a right the Supreme Court has already backed away from.
One can hope, can't one?

Monday, November 14, 2005

Another Reason To Hate Fox Management

Arrested Development, cancelled. Link via Dan Drezner, who fesses up:
After having digested the first twelve episodes -- and still laughing about them 48 hours later -- I feel I owe an apology to creator Mitchell Hurwitz. I clearly belong to a large swath of viewers who would have enjoyed the show and yet mysteriously chose not to view it when it counted.
Well, just keep buying the DVDs and Fox will wind up backtracking like they did on Family Guy. [But if everybody buys the DVDs, the show will turn mainstream and there won't be anything hip about being a fan anymore, right?--ed. Yeah, that's why I don't watch Family Guy anymore.]

Saturday, November 12, 2005


On C-SPAN right now, C-SPAN's Brian Lamb is testifying before the Senate Judiciary Committee about C-SPAN's plans to broadcast committee hearings.

Thursday, November 10, 2005

L'etat C'est Blah

For those awaiting my thoughts on the riots in France, here's Evan, nailing it:
[T]hree outcomes, and only three, are possible: Byzantine Model #1: the State will pay off the rioters sufficiently to buy some more peace for a little while. The riots will stop. No deeper reforms will be made. Byzantine Model #2: the State will commit some act of repugnance that will shock the conscience of the world. The riots will stop. No deeper reforms will be made. Gaullic Model: the State will do shit all, until displaced by an angry mob in an act of repugnance that will shock the conscience of the world. The newly institutionalized mob will ineptly attempt Byzantine Model #2, but will eventually settle for #1.

Jap Attack

It must be Sarah Silverman day over at Slate. Her new movie looks pretty good, by the way.

Thought For The Day

You could see it in his face. O'Brien knew everything. A thousand times better than Winston he knew what the world was really like, in what degradation the mass of human beings lived and by what lies and barbarities the Party kept them there. He had understood it all, weighed it all, and it made no difference: all was justified by the ultimate purpose. What can you do, thought Winston, against the lunatic who is more intelligent than yourself, who gives your arguments a fair hearing and then simply persists in his lunacy?

'You are ruling over us for our own good,' he said feebly. 'You believe that human beings are not fit to govern themselves, and therefore --'

He started and almost cried out. A pang of pain had shot through his body. O'Brien had pushed the lever of the dial up to thirty-five.

'That was stupid, Winston, stupid!' he said. 'You should know better than to say a thing like that.'

He pulled the lever back and continued:

'Now I will tell you the answer to my question. It is this. The Party seeks power entirely for its own sake. We are not interested in the good of others; we are interested solely in power. Not wealth or luxury or long life or happiness: only power, pure power. What pure power means you will understand presently. We are different from all the oligarchies of the past, in that we know what we are doing.
All the others, even those who resembled ourselves, were cowards and hypocrites. The German Nazis and the Russian Communists came very close to us in their methods, but they never had the courage to recognize their own motives. They pretended, perhaps they even believed, that they had seized power unwillingly and for a limited time, and that just round the corner there lay a paradise where human beings would be free and equal. We are not like that. We know that no one ever seizes power with the intention of relinquishing it. Power is not a means, it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power. Now do you begin to understand me?'

---1984, Pt. 3, Chapter 3

Just Asking

If the Ward 1 election had gone the other way, would the YDN editorial board have written that:
[Livengood]'s first concern should be ward unity. The past campaign cycle was one of the nastiest in recent ward memory, and the alderman-elect must now reach out to [Shalek]'s supporters. While [s]he has brought new voices to the ward's political sphere, [Livengood] must also be able to work with [Shalek]'s campaign team, which included some of the ward's most dedicated -- and vocal -- constituents.

Bill Frist To Human Decency: "Fuck You"

The majority leader says in no uncertain terms that he doesn't care what happens in American detention centers:
Frist was asked if that meant he was not concerned about investigating what goes on in detention centers.

"I am not concerned about what goes on and I'm not going to comment about the nature of that," Frist replied.
Why should an elected official have to comment, after all? The accountability moment, as George Bush will tell you, has come and gone. These characters believe in one principle, the perpetuation of their own power, and nothing else. Link via Andrew Sullivan.

The Gulag Amendment

Let all the poisons that lieth in the mud hatch out, as Claudius said according to Suetonius according to Robert Graves according to Derek Jacoby.

Who Says There's No Good News?

A US district judge overturns the Michigan law banning the sale of "ultra-violent" video games.

Fox News...

...embraces Christian values.

Family Supervalues

An anonymous commenter writes the following:
"[Unborn entities in the early stages of pregnancy] are not persons under any definition of personhood apart from patently religious ones."

What is the earliest that any definition of personhood claims that an unborn entity ceases to be an unborn entity and is instead a person? I don't intend this question to have any rhetorical implications, I'm simply asking because you have a much better grounding in such matters than I do.
Well, since I finally received a comment that wasn't an anonymous flame, I'm giving my response its own post.

Incidentally, anonymous picked up on one of the phrases that somebody "edited" behind my back. The original sentence said "precissification of personhood," not "definition"--"precissification" is a technical term from vagueness theory that doesn't really have synonyms.

Now, here's what I'm getting at. Personhood, like, as it turns out, many if not most predicates, is vague; "x is a person" can have indeterminate truth value, as I think is the case with the unborn. One of the ways of dealing with vague predicates is supervaluationism. Let's take "x is bald," since that's not fraught with the sort of controversy that any talk about abortion involves. A precissification is any coherent rule for assigning determinate truth values to vague terms. One precissification of baldness is that "x is bald" is true just in case x has 450 or fewer hairs, otherwise false. Another precissification is "x is bald" is true just in case x has 451 or fewer hairs, otherwise false. Dig?

So for a vague term like baldness, "x is bald" is super-true if it's true under all precissifications of baldness, super-false if it's false under all precissifications of baldness, and indeterminate (or super-indeterminate) if it's true under some precissifications and false under others.

Here's the controversial bit. My understanding of opposition to abortion is that opponents want (at least eventually) to prohibit all abortions, not just late-term abortions (which I might agree with, incidentally). The problem is, I submit, that "an unconscious aggregation of multiplying cells is a person" is super-false if we ignore religious precissifications of personhood, which courts must do if they are to respect the establishment clause.

As I said in the YDN piece, there are two planks to Roe: 1) a reaffirmation of the privacy rights holding of Griswold; 2) the finding that a fetus is not a legal person. Now, if you wanted to overturn Roe, attacking (2) could achieve at best mixed results, assuming my supervaluation of personhood is correct. No secular tribunal could ever precissify personhood in such a way as to find that every entity pro-lifers would like to protect under statutes banning abortion is indeed a person entitled to rights. If your goal is to ban all abortions, arguing for the personhood of the unborn is a losing strategy. That's why, not so surprisingly, abortion opponents have focused on attacking the idea of unenumerated rights in general and privacy rights in particular---and that's also why, when senators ask judicial nominees whether they believe in a right to privacy, they're asking in code about the nominee's views on abortion.

Okay, now I can get to anonymous's actual question:
What is the earliest that any definition of personhood claims that an unborn entity ceases to be an unborn entity and is instead a person?
I don't think "any definition" is what anonymous is asking about---if it is, the answer is uninteresting. I don't think there are any restrictions on what counts as a precissification of a vague term aside from logical consistency. Clearly, therefore, there is a precissification under which personhood begins at conception. Maybe individual sperm count as persons under some precissification. There probably won't be anybody surprised to learn that I don't find these precissifications compelling, and indeed, I can't imagine a non-religious metaphysic according to which they are correct.

My answer to the question is whenever consciousness arises. This answer solves some problems and creates a few as well. Pre-conscious fetuses don't count, conscious fetuses do. But there are going to be borderline cases, and there remains an issue of vagueness.

How do we deal with cases in which supervaluation doesn't give us a super-truth value to the sentence "x is a person"? The best I can do here is outline a few alternatives. Your strategy for dealing with these cases is going to depend on what you think the phenomenon of vagueness is, and on that point, there are basically three competing schools: 1) Linguistic indeterminacy: if a predicate is vague, then linguistic convention has failed to establish sufficient truth-conditions for the term---vagueness resides in the language; 2) Ontological indeterminacy: vagueness is a metaphysically "deep" phenomenon---when a sentence is super-indeterminate, that's because the qualitative profile of the subject of the sentence is in some way indeterminate, so "x is bald" is indeterminate when x is is neither bald nor not-bald; 3) Epistemicism: the appearance of vagueness is a function of the limits of our knowledge, not anything to do with either the terms of the sentence or their referents---there is a determinate fact of the matter about whether a man with 450 hairs is bald, a man with 451, a man with 452, etc. If we're unable to arrive at a determinate value, then the answer to whether x is bald might be unknowable, but it exists.

I should mention that, along with virtually every other philosopher, I reject (2) out of hand. It's a notion about as popular in modern philosophy as platonic degrees of existence. The real divide is between those who think vagueness is linguistic indeterminacy or an epistemic phenomenon.

My own view, which in the conversations I've had about it strikes some people as incredibly intuitive and others as completely unintuitive, is that some instances of vagueness are epistemic and others are linguistic. Sounds milquetoast, huh? Actually, it's very controversial. My view entails rejecting vagueness as a unitary phenomenon, which I doubt many philosophers are willing to do. Nevertheless, I maintain that vagueness merely appears to be a unitary, multiply instantiated phenomenon because every instance of apparent vagueness is superficially similar to every other; the appearance of vagueness is the product of difficulty in assigning a truth value to a sentence, but that is not reason to believe that the underlying cause of that difficulty is or has to be the same in all cases. Indeed, the fact that we refer to all instances of apparent indeterminacy as "vague" is a case of linguistic confusion, whereas anytime it is vague as to whether or not a particular instance of vagueness is linguistic or epistemic, that second order vagueness is undoubtedly epistemic: there is, surely, a fact of the matter as to whether or not an indeterminacy is the result of imprecision in language or our inability to know a determinate fact that nevertheless exists.

The case of consciousness in fetuses, I think, is a case of epistemic vagueness. This is bad news for setting a policy on abortion. Unless science figures out a test for whether or not something is conscious -- and the prospects for that don't look good -- then the indeterminacy over whether borderline cases are conscious or unconscious is intractable. The silver lining is that, by dint of supervaluation, a blastocyst is not a person, so (assuming Griswold is correct) the private autonomy of a woman with respect to her own body dictates that she is free to abort a blastocyst without interference from the state; likewise, an independently viable fetus is a person, and by virtue of its rights it is not within the privacy rights of its mother to terminate its life.

Note that if the borderline cases of consciousness are cases of linguistic indeterminacy, then by giving a determination to all borderline cases ex machina through positive law or something, we would thereby establish precisely what is and what is not a conscious entity. The implausibility of that scenario is what leads me to believe that borderline cases of consciousness are cases of epistemic vagueness.

Just to throw a bone, in closing, to those who don't dig philosophical analysis: Epistemicism is antonymous with literary deconstruction. Discuss.

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