Author Page for Scott Lemieux

Dred Scott As A Weapon

I have a piece at TAPPED on Mark Graber’s new book up (it’s sort of a prequel to this post, which I will have a follow-up on later.) The biggest point I wanted to make was to address a common criticism when I’ve presented my work about countermobilization, both informally and in academic settings. Understandably, many people assumed that this is an argument cooked up in order to defend a decision I like. My first response is to say that while I do have an a priori commitment to abortion rights, I certainly don’t have any commitment to abortion rights litigation. If I didn’t think that legal rights-claiming was an effective method of achieving the goals I seek, I would have no reason to say so. But more importantly, I think that my theory holds for decisions I deplore as much ones I support. Jeffrey Rosen is equally wrong to predict a unique backlash to Bush v. Gore as he is with Roe. Dred Scott is sort of the ultimate example. In addition, the fact that antebellum slavery policy is used to attack the ineptitude of the court and romanticize the ability of legislatures to reach stable compromises demonstrates the extent to which these claims rest on feeble tautologies. Congress quite conspicuously failed to reach a stable compromise on the slavery issue, and the structure of the elections to Congress–which then, as now, tended to emphasize ideologies rather than centrists among members, especially in the House–had made reaching a compromise in 1857 impossible. It’s frankly perverse to hold up Congress under the Buchanan administration to make arguments about the superior ability of legislatures to produce effective political compromises.

My other point is about the inability of grand theory to resolve actively contested normative disputes. Big Tent Democrat at TalkLeft generously replies to my argument, and allows me to clarify a few points. I continue to disagree entirely with his or her contention that Dred Scott was clearly wrong in terms of existing law (as opposed to morally.) To take the key points as they come up:

• BTD says that he disagrees with “Lemieux’s acceptance of the division on Dred Scott as being one of originalists and proponents of a “living Constitution.”" To be clear, I’m definitely not claiming this. As Graber says, “the issue in Dred Scott seems to be whether Taney was, as aspirationalists claim, a bad historicist, or, as historicists claim, a bad aspirationalist. In fact, he was at times both and at other times neither.” What we’re arguing is that both the majority and dissenting opinions contained elements of various grand theories, and that plausible claims can be mounted on both sides of the question using any grand theory.
• “I reject the idea that proponents of a Living Constitution are not originalists, in the sense that the idea of a Living Constitution is to promote original Constitutional purpose to current circumstances.” I agree with this, in least in the sense that I don’t see aspirationalism as somehow divorced from the text of the Constitution. But it is analytically distinct from any robust form of originalism in the sense that originalists focus on meanings at the time of ratification while aspirationalist apply broad principles in a forward-looking manner. (It is certainly true that originalists, especially when trying to reconcile their theories with politically popular outcomes, will sometimes define principles at such a high level of abstraction as to completely unmoor them from any concrete historical meanings, and at this point originalism loses any distinct character as a theory, and is just a truism.)
• At any rate, I’m not trying to sell or discredit any particular grand theory; what I’m saying is that grand theories simply cannot produce determinate outcomes on questions the framers deliberately left ambiguous. The simple fact is that the Constitution is silent on the question of Congress’ ability to regulate slavery in the territories, and this is not an accident but a consequence of the fact that a clear resolution of the question would have likely split the states during the ratification process.
• BTD then articulates a structuralist theory of Constitutional interpretation, identified with John Marshall, and locates a similar theory in Lincoln’s famous Cooper Union speech. Now, I am something of a structuralist myself, and I agree that Lincoln constructs a perfectly plausible reading that I of course find infinitely more attractive than Taney’s arguments for moral reasons. But this isn’t enough; the question is not whether there are plausible arguments against Taney, but whether Lincoln provides the only plausible reading of the Constitution in 1857. And the answer to this is clearly that he doesn’t (see pp. 57-76 of the Graber book.)
• The short version is that the argument that there was a Constitutional right, embedded in the due process clause of the 5th Amendment, to bring property in the territories was a widely held view. BTD asks: “prohibiting slavery in certain territories. Was there a Constitutional right to carry your slaves to territories? That is a property right? Based on what? The right to travel? The full faith and credit clause?” What BTD doesn’t mention is that not only McLean–who argued that “[i]t is said the Territories are common property of the States, and that every man has a right to go there with his property. This is not controverted“–but Lincoln himself accepted the validity of these property rights, which was the mainstream Republican position of the time. Were they lawless hacks ignoring the clear text of the Constitution? Lincoln and McLean disagreed about whether slaves remained property once taken to a jurisdiction that didn’t have slavery, but to argue that this was a universally accepted proposition in 1857 would be farcical (as is the claim that Article IV can only be read to say that slaves cease to become property when taken into states–if this was true, the Constitution wouldn’t have been signed by the slave states.)
• With respect to whether individuals lost constitutional rights when going to the territories, even in 1803 many rejected this proposition, and by 1857 the position that citizens retained constitutional rights in the territories was strongly entrenched, and Republican jurists continued to treat this part of Dred Scott as good law even after the Civil War.

Again, the question is not whether the dissents in Dred Scott were plausible–they clearly were. The question is whether they are the only possible reading of the Constitution in 1857, and it simply isn’t true that they were. You simply cannot use interpretive theory to produce determinate answers to questions that the framers avoided asking to facilitate a political compromise.

The Proliferation of Religious Exemptions

An excellent article in the NYT today–apparently the first of a series–about the proliferation of special legal exemptions for religious organizations. First of all, there are some hilarious examples of the whining of allegedly persecuted majorities:

In March, hundreds of people and a number of influential lawmakers attended a conference called “The War on Christians and the Values Voter in 2006” in Washington and applauded the premise that religion was under attack.

Society “treats Christianity like a second-class superstition,” Tom DeLay, then a Republican representative from Texas, told the crowd. “Seen from that perspective, of course there is a war on religion.”

The argument that religious groups are victims of discrimination drew a sigh from Ms. White, the day care director in Alabama, where licensed day care centers are finding it harder to compete with unlicensed faith-based centers that do not have to comply with expensive licensing requirements.

Ah, yes, the endless persecution of the Christian white male. I defy you to show me one in a position of power anywhere in the United States! Anyway, the article goes on with a good analysis of the implications:

Critics of the 2000 law argue that the First Amendment itself has long prohibited religious discrimination in zoning, and that such zoning decisions could have been challenged just as successfully in the courts if the law had never been passed.

When Congress considered the law, “what was actually being discussed was ‘How do we make sure churches don’t get discriminated against,’ ” said Marci A. Hamilton, a law professor at the Benjamin N. Cardozo School of Law at Yeshiva University in Manhattan and the author of “God vs. The Gavel: Religion and the Rule of Law” (Cambridge University Press, 2005), which calls for closer scrutiny of some religious exemptions, especially those affecting land use and family law.

“Unfortunately, the answer was to give such an expansive remedy that not only are they not getting discriminated against, but they are now capable of discriminating against all other landowners,” added Professor Hamilton, who is advising Boulder County in its case.

I’ll probably discuss more specific cases as the series continues, but I’ll start with some general comments. First of all, there’s the question of whether these types of exemptions run afoul of the Establishment Clause. I might be persuaded the other way, but I’m inclined to say no. In most cases, I think that these exemptions are part of what Rehnquist called “play in the joints” in the religion clauses–that is, the kind of state action that is neither required by the free exercise clause nor prohibited by the Establishment Clause. Some of these regulations may be necessary to prevent discrimination against minority religions or involve defensible tradeoffs, and probably shouldn’t be categorically prohibited.

As to whether these exemptions are good policy, that’s a different question. For the most part, I agree with Hamilton that many of these are unwise and certainly tend to be special privileges rather than protections against discrimination. I’ll talk about specific cases later in the week, but I would outline some general principles:

• There should be a general presumption against the granting of special legal privileges to religious organizations.
• This presumption should be especially strong when it comes to spending state money, as opposed to regulation. I’ve discussed this before with respect to emergency contraception, but to the extent that the Establishment Clause is construed loosely enough to permit subsidies to religious institutions, the state should in most cases not permit organizations to engage in discriminatory behavior that would be illegal if performed by other secular organizations. If religious groups feel that this will violate their core functions, nobody’s forcing them to take the money. (I should emphasize the difference here between requiring compliance with general laws and the intentional use of spending power to coerce religious organizations; obviously, the latter would be undesirable and potentially unconstitutional.)
• In addition, the presumption against granting exemptions should get stronger as the relevant functions become more secular. There are many more cases in which exemptions applied to a church qua church are defensible than when a church is operating a hospital or independent charity.

Anyway, I’m looking forward to the follow-up articles.

"You Ain’t A Writer, You’re A Journalist."

This mixed review of the weakly rated but for the most part critically revered Studio 60 on the Sunset Strip reminds me why I won’t be watching it:

Still, given that Sorkin’s White House seemed so authentic in its details, you’d expect him to nail every nuance of the late-night comedy world, from the egos to the slang. Instead, in its first hour, Studio 60 is surprisingly, even alarmingly tin-eared. After Mendell’s meltdown, the neophyte studio president (Amanda Peet) decides the only way to salvage the show’s public prestige is to rehire a superstar writer-and-director team (Matthew Perry and Bradley Whitford) that had been jettisoned. Say what? Can you name even a single writer or director from Saturday Night Live’s entire history, save maybe Conan O’Brien and Tina Fey (who’s busy launching 30 Rock, an SNL spin­off of her own)? More to the point, if Lorne Michaels ever did implode, would the public treat it like a cultural emergency? The clip would be posted on YouTube, laughed about for a weekend, and then the show’s demographic would head back to CollegeHumor.com.

But wait—there is one case of a high-profile writer and director being publicly exiled from their own successful show: Sorkin and Thomas Schlamme, on The West Wing, in 2003. The parallels are hard to ignore. You wonder if anyone politely suggested to Sorkin that his redemptive story line might be problematic. (Or, for that matter, the line of dialogue in which an actor announces, “It took four years, but the show collapsed without them.”) Every writer has a right, and an imperative, to borrow from his experiences, but Studio 60 is so baldly autobiographical that Sorkin upstages his creation. It’s not a show about a comedy franchise; it’s a show about Sorkin’s career.

Right. And the problem is, I don’t care.

While I wasn’t a fan, I don’t mean to suggest that The West Wing didn’t have its virtues. Sorkin attracts good actors, and while his dialogue is overrated at his best he can definitely get a certain classic-Hollywood repartee going. I like the idea of a show about the detailed workings of the White House. But for me, the show will always be symbolized by the post-9/11 episode, which literally involved trapping fictional schoolchildren in a room so that Sorkin could share some of his (exceedingly unoriginal) thoughts about the problems facing America, neatly constructed in A- high school essays. Admittedly, it was an extreme case, but at a lower level this kind of thing was endemic to the show; the writing was not so much intelligent as Aaron Sorkin desperately trying to let you know how intelligent he was. And this might be OK, except that while Sorkin is well-informed about politics for a television writer as a political analyst he’s not at all interesting, sharing the same moderate elite-liberal sentiments you could just as well get from Michael Kinsley.

Given how disproportionately annoyed I get by characters being used as empty vessels in which to pour banal commentary about the issues of the day, one might think that Studio 60 would be more up my alley–there would certainly seem to be less space for position paper reading than in The West Wing or A Few Good Men. Actually, I’m not so sure–apparently the new show starts of with the umpteenth post-Network example of a someone breaking character on television to share his creator’s thoughts about…Quality Television. But the bigger problem is that I’ve seen Sportsnight, which both admirers and detractors of the new show compare it to. Sportsnight is often held up as an example of a show that was undeservedly cancelled, and it was indeed intelligent, well-acted, high-minded, etc. I must admit that I also thought it was a boring dud. As satire, it was completely toothless; it was too genteel and middlebrow to be a good soap opera; but it had too little to say to be great drama. Sorkin’s convictions at least gave The West Wing some juice; Sportsnight had no reason for existing whatsoever. The new show seems to have the same problem with a extra layers of solipsism and self-pity. It has to be better than even its supporters make it sound, but I’ll pass.

I guess I would compare Sorkin to another artist widely beloved by critics and large audiences I dislike: post-Say Anything Cameron Crowe. A movie that revolves around the deep moral dilemmas created by…agents who take on too many clients? About a guy who writes some pompous Tony Robbins-esque manifesto about the Ideals of Sports Agency–but far from being made the butt of humor, he’s the deeply earnest good guy? People who have seen Studio 60 can tell me if this is accurate, but yikes it sounds bad:

To better understand Studio 60, take a look back at Sorkin’s first TV venture, Sports Night. That show also centered on a relatively trifling TV product (an ESPN-esque sports-highlight show) and a male friendship (the show’s two anchors). That show’s pilot also featured a speech in which one of the principals announces he won’t be held hostage to a viewing audience of 11-year-old boys. (On Studio 60, the boorish viewers are 12-year-olds, a slight bump in the average age of philistines.)

Ugh. At least the West Wing got him out of himself a bit…

…more here.

The Yankees Humiliated. The….YANKEES…HUMILIATED!!!!!!

A few wrap-up notes on a gratifying outcome I, at least, didn’t foresee:

• I don’t actually agree with Rob about Torre’s apparently imminent firing. I’ll argue about this again if/when it’s official, but Torre was not so much a great manager as a manager who was perfectly situated to win in New York, and non-great managers are rarely successful for the kind of tenure Torre has had. Batting A-Rod 8th is the kind of counterproductive flailing that made him such a disaster in his pre-Yankee gigs, and he also had a terrible series in the historical collapse of 2004. I would make the change if I were Steinbrenner. Pinella has his faults, but he does a lot of things well and he’s well-suited for short-term success with a veteran team.
• For those who say that managers don’t make much difference, I give you this year’s Tigers. Think they win with Trammell still there? (This is also a good lesson in hiring people because they were beloved stars rather than because they have demonstrable talent as managers.)
• Pinella also has a good relationship with Rodriguez. Everyone seems to think he’ll be traded, but I think it’s less than clear that this will be viable. I’ve heard Yankee fans say that they’ll trade him for Cabrera, without explaining why the hell the Marlins would do that–even if the Yankees kick in some money, you think Loria is going cough up millions of dollars a year to replace a 23-year old player with a 30-year old one when the former is coming off a better year? Please. They’re not going to get anything like full value back, and no matter how bad he’s been in the post-season that’s not going to be an easy move to make.
• Another nice thing about the Yankee elimination is that the ALCS figures to be very entertaining; the A’s and Tigers are both fun to watch. More about the A’s later.

I’ll turn it over to Roy for the conclusion:

Well, children, there was once a wonderful comedian named Joe E. Brown, who made the truest statement ever about the Bronx Bombers: “Rooting for the Yankees is like rooting for U.S. Steel.”

But you don’t know who Joe E. Brown was, and you don’t know what U.S. Steel was. Brown had the greatest exit line in the greatest screen comedy ever. And U.S. Steel was a powerful monopoly; we might compare it to Microsoft today, but you probably love Microsoft, because it produces the operating system that powers your Xbox, notwithstanding that it is inferior in every way to the Apple system that Microsoft has managed to squeeze into near-obsolescence by the unfair advantage of its wealthy patronage.

So there is no way to explain my contempt for the Yankees to you. You love and worship power, and by such as yourselves — from the pinstriped and suspendered Yuppie assholes bellowing on their highly-polished barstools midtown to the locals who imagine their own powerlessness momentarily reversed by the bats of Jeter and Giambi — those who, out of fear or ignorance, would never allow themselves to stick up for anyone who has ever been down — no appeal to what was once called soul could possibly be heard.

But to those of us who love what is best in this city…the Yankees will always be the well-fed champions of privilege, pusillanimity, pussification, and everything that anyone with a shred of soul — who is still, in a word, human — is duty-bound to despise.

Indeed.

I’m Going Back to New York City, I Do Believe I’ve Had Enough

Oh, yeah. If the Flames hold on to beat the Oilers, it will pretty much be the ideal sports day.

Now, all I can say is: Go Cards…

Slappy…

…batting eighth. Honestly, I don’t know what the hell Torre is doing; the only reason to do this is to take the pressure off, but it seems likely that this will have the opposite effect. It strikes me as a panic move for a team that probably doesn’t need more panic, but that’s why they play etc.

Open thread for today’s games.

…according to script so far. At least we know that the Tigers could never blow a 6-0 lead with Bonderman on the mound!

And Somewhere in the Darkness…

Best. Pitcher. Evah.

So I specifically arrange to have an engagement to see a movie and get dinner to thwart whatever perverse impulse I might have to watch the Tigers-Yankees game. And although I had only two drinks, I get home and the tee vee is claiming that it is 5-0 Tigers. Apparently they put acid in my Manhattan; I’ll have more about the game when it wears off.

Anyway, as I’ve consistently maintained for years Kenny Rogers is not only likely to keep getting better and better but is an incredible clutch pitcher; there’s nobody I’d rather have out there in a big game.

…anatomy of a masterpiece.

…Rogers is a kind of amazing story to think about. It retrospect, given how quickly I sneer at people who pointed out that the A’s were 0-9 in elimination games (whoops, guess we can bury that one) to attack Billy Beane, it was particularly silly to write Rogers off, bad as his postseason performance (and his performance against individual Yankees) had been. Part of it, though, is that Rogers really is one of a kind. Of the strongest empirical regularities in baseball is that while pitchers can have a good year or two with bad strikeout rates can’t last. And while everybody remembers his awful last year with the Yankees in 1997, with the exception of one year he got hurt that was the last time he has had a below-average ERA. He hasn’t gone from a marginal situational lefty to a lifetime record of 207-139 on blind luck, and I guess he does it by doing things like coming up with a Dennis Martinez-caliber bender when he’s pitching the biggest game of his life. Performance can never be reduced to general statistical trends, and evidently this is a good thing.

Will the Tigers win? Well, I’m going to have the dignity to get out of the prediction business for the rest of this series, but obviously you can’t ask for more than having Bonderman v. the remains of Jaret Wright at home for the elimination game. I’m quite optimistic, which means we can probably expect to be back in the Bronx tomorrow night…

The Conservative War On Aesthetics: Never Ending

Shorter Bobo and Ann Althouse: “Millions of people enjoyed Silence of the Lambs, and yet if a Republican were caught engaging in murder and cannibalism, you can only imagine how the hypocritical liberals would react.”

I suppose I should note that it’s also ridiculous to claim that the Vagina Monologue in question is an uncritical celebration of the actions described, but as Roy says this is already taking the argument more seriously that it deserves. As Jon Swift said about a previous clown show, mentioning The Vagina Monologues has an effect on conservatives “not unlike the phrase “Queen of Diamonds” had on Raymond Shaw in The Manchurian Candidate.” (Christina Hoff Summers will be talking about it for decades yet.) Like Bill Clinton’s penis and Dan Rather, it’s just a free-floating signifier that immediately strips the Republicans these hacks relentlessly shill for of any responsibility for anything.

Blog Like Tim McCarver Day

As I anticipated, this Yankees/Tigers series will be an incredible nail-biter; I can’t believe anybody wrote the Tigers off. And there’s nobody I’d rather have close out a huge road win than Todd Jones–he has Jeff Reardon makeup and Randy Myers pancake foundation. And the fact that the Tigers could overcome the great Derek Jeter going a full step to his right and getting the lightning-fast Ivan Rodriguez at first–which might be the greatest defensive play I’ve ever seen–just shows they’re in it to win. [/McCarver]

I still don’t give them much of a shot, but every game they can get out of the Yankees helps. And hey, maybe they can win, what the hell, who do they have going Friday? Oh, right, The Coward of the County. Well, he’s due. Also, as we discussed recently it could be argued that trading Carlos Guillen for Ramon Santiago was not the best trade in Mariners history.

Situational Ethics

Let’s play “spot the glaring logical flaws, one revealed by reprehensible behavior.” It’s an easy one! Lesse, according to Glenn Reynolds:

• Pointing out that a gay person is gay is clear evidence of homophobia, and is “McCarthyism” if the person in question isn’t out.
• Roger Simon is right to say that it’s hypocritical to have no objection to the anonymous republishing of instant messages while opposing unconstrained government surveillance. This makes extra sense for a libertarian. (“First you didn’t want the pony. Now you want me to give it up! Make up your mind!)
• Helping Roger Simon out the victims of a sex crime–completely acceptable!

I’m sure there’s an explanation in which this is all perfectly log…look–Ted Kennedy!

…in comments, Pithlord says: “IIRC, Reynolds claimed that mentioning that Mary Cheney is gay is wrong, even though she IS out.” To confirm: Heh. Indeed!

The Dreamlife of Bush Fluffers

John Cole offers an amusing round-up of the dead-enders trying to defend the GOP in the wake of the Foley scandal. (See also Dave.) Lots of classics, but I think there’s no question that indefatigable Bush hack Tom Maguire emerges as the champion. Admittedly, Maguire had some standard-issue attempts to blame a nefarious media-Democratic conspiracy, but his heart didn’t seem to be in it; he threw out some stuff about how the information appeared on an obscure website without bothering to mount an argument about what exactly this was evidence of or why it mattered. But then, he hits an inside-the-park-homerun of hackdom: the Republicans covered up the scandal because they were afraid of…the gay rights lobby!

…if the pages in question had been girls, Foley would have been shot at dawn.

However, picture this headline – “House Leadership Boots Allegedly Gay Republican On Trumped-Up Pedophilia Charges”. Ugly. Worth Avoiding. Listening to Andrew Sullivan decry the homophobes in the House would not have been worth it. So they played it a bit too cautiously and slowly and here we are.

Wow. I know it’s hard, because it’s so different from the only world we know, but let’s try to imagine how the world works in Tom Maguire’s fantasy life:

Denny Hastert: Good news, Karl! The Arbitrary Executive Power and Torture Act just passed the House!

Karl Rove: You idiot! That act is opposed by Andrew Sullivan! You don’t think we do anything without his approval, do you?

DH: But we spoke to Dr. Dobson, and he seemed to think the bill would help mobilize our supporters.

KR: Who the hell is that–the guy who pitched for the Orioles in the early 70s? Look, I’m sure he’s a nice guy and everything, but if we don’t have the Log Cabin Republicans on board, we’re toast in the upcoming elections. Who do you think is going to man the phones, reactionary evangelicals? Get the habeas-stripping provision taken out in conference, or your name is mud.

DH: OK, sorry.

KR: Don’t worry. We have an ace up our sleeve: another anti-gay-marriage initiative is going on the ballot this year!

DH: Whew, outstanding. And we’re going to try for another vote on the constitutional amendment making gay people 3/5 of a citizen and 2/5 of a fetus.

KR: Great! We’ll teach you yet.

[Exeunt.]

…it should probably also be noted that, in addition to being irrelevant, Maguire’s innuendoes about the source of the emails were wrong.

You’re So Vain You Probably Think Your Obsessions Are Universal

Shorter Ann Althouse: Michael Moore Bill Clinton Warren Beatty is fat. And he probably wears shorts in the summer too, he’s half a man!