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Should Opponents Of Safe Legal Abortion Support Rudy?

[ 0 ] September 14, 2007 |

Eric Johnston’s op-ed making the “pro-life” argument for Giuliani is awful in many respects. It repeats many plainly erroneous assertions common to Republican opponents of reproductive freedom: most notably, the claims that abortion would “leave abortion to the states” (a particularly ridiculous argument in light of Carhart II) and that “strict constructionism” actually means anything in constitutional interpretation other than “outcomes consistent with the political platform of the Republican Party.” And as my colleague Bean notes, the idea that Giuliani is OK with Roe being overruled is related to his broader commitment to democracy and constitutionalism is utterly risible. And yet, while he makes many bad arguments in its defense, the overall thesis that supporters of forced pregnancy can support Giuliani without short-term sacrifice is actually quite reasonable. The most important thing a President does with respect to legal abortion is to appoint judges, and the kind of statist reactionaries Giuliani would appoint to the Court would obviously be likely to vote to overturn or gut Roe. Nor would Giuliani be likely to veto any abortion regulation that could actually pass Congress during his tenure. And if Giuliani is the most electable candidate — and he probably is — it’s a better risk for anti-choicers than a Democratic President.

Over the long-term, though, I’m not so sure. One thing he doesn’t mention is that overturning Roe is extremely unpopular, and it’s not obvious why the leadership of one national party has to almost uniformly support a minority position (particularly one that, one suspects, is not a strong priority of most elite Republicans.) If Giuliani can win the nomination and then the election as a pro-choice Republican, this could undermine the power of the anti-choice lobby in the national GOP over the long haul.

The Folly of Local Control In Federal Elections

[ 0 ] September 14, 2007 |

I have a new article up at TAP about how the collective action problems surrounding attempts to “reform” the distribution of California’s electoral votes to help the GOP is an outgrowth of the foolish (or at least anachronistic) decision to leave most of the standards for federal elections up to state legislatures:

The California case illustrates the central problem with America’s severely deficient electoral system: the fact that the administration of federal elections was largely left to the states. The Electoral College is an anachronism that distorts electoral outcomes (most recently, and with disastrous consequences for not only the country but the world, in 2000) and overrepresents small-state minorities that are already overrepresented throughout American political institutions. (As Yale law professor Akhil Reed Amar has pointed out, “the electoral college was designed to and did in fact advantage Southern white male propertied slaveholders in the antebellum era. And in election 2000, it again ended up working against women, blacks, and the poor, who voted overwhelmingly for Gore.”

But privileging “states’ rights” over people’s rights not only constitutes a primary problem with the Electoral College but makes it nearly impossible to change. It produces the kind of collective action problems we can see in the California case (the states that act first will disadvantage their state’s citizens) and gives small states a vested interest in maintaining the less democratic system. This is particularly irksome because, in a modern democracy, the decentralized administration of federal elections is “local control” fetishism at its least defensible.

The value of decentralized power in some contexts is that it can allow for experimentation and policies more attuned with local values. But such experimentation, while logical for a time period in which giving the franchise even to propertied white males was a fairly radical idea, could not be more inappropriate for a modern democracy. It should no longer be acceptable, of course, for states to “experiment” with which adults should get the franchise.

Much more over at TAP.

Checks, Balances and National Security

[ 0 ] September 14, 2007 |

Ben Wittes points out, correctly, that although Jack Goldsmith has been critical of some aspects of the Bush administration he remains a statist conservative. (“Jack Goldsmith is no human-rights lawyer,” says Wittes; he means this as a compliment.) But while I certainly agree that expanding executive power via Congress is preferable to the Yoo strategy of just making farcical arguments about the Constitution granting unlimited arbitrary war-making authority to the executive, it hardly follows from this that all expansions of executive power are desirable. I haven’t received the Goldsmith book yet, so I can’t judge the quality of his arguments, but Wittes seems, as he has before, to simply assume that expansions of executive authority enhance national security. For example, he continues to misconstrue the criticism of the recent Democratic capitulation on FISA:

The idea that the president ought to have a fairly free hand in the war on terrorism, but that the source of his freedom should be congressional permission for bold action, rather than broad claims of inherent presidential power, lacks much of a constituency today. The ire directed at Democrats who supported the recent temporary FISA amendment is one dispiriting indication of that.

Except, of course, that most of this ire was not based on some principle that congressional expansions of presidential power are inherently wrong. To repeat, the Senate leadership and the administration hammered out a deal that would expand power in some ways, but retaining clear definitions and meaningful oversight. Unless “fairly free hand” means “virtually unconstrained arbitrary power,” there’s no necessary contradiction here.

And this is related to the overall problem with the assumption that expansions of executive power — especially those that remove any oversight — improve national security. But this assumption is false. As Stephen Holmes argues in his recent book:

Would weakening the constitutional system of checks and balances, for example, help the executive become more focused and less reckless? This is unlikely. Indeed, the Administration’s desire to circumvent traditional checks and balances patently weakened its capacity for critical thought and self-correction, preparing the way for its gratuitous invasion to invade Iraq. To defend ourselves against our most dangerous enemies, we do not need unrestricted government, We need intelligent government. And no Administration that shields itself compulsively from criticism has a prayer of being even sporadically intelligent.

While Congressional delegation of unconstrained power to the executive may be more legally defensible, it doesn’t solve the underlying problems that caused the framers to place constitutional constraints on executive warmaking power in the first place. Particularly relevant here is that under the FISA bill that was passed Congress has no effective way of knowing in many cases whether the policy is working or not. Not only is this bad for civil liberties, it’s bad for national security, unless you believe that it’s sound policy to place blind faith in the competence and judgment of an administration whose competence and judgment have repeatedly proven to be catastrophically bad.

Ready For Pickup…

[ 0 ] September 14, 2007 |

Jeanne Shaheen is throwing her hat into the New Hampshire Senate race. Even better: “In a trial heat, 54 percent of 524 Granite Staters interviewed favored her and 38 percent favored Sununu.” I continue to be pretty confident that this is a Dem pickup…

King Midas In Reverse

[ 0 ] September 13, 2007 |

Wheeler and Marshall on the role of Bush crony Ray “Son of Howard” Hunt in the collapse of the Iraq oil deal, which would seem to ensure that nothing remotely resembling a viable Iraqi state is on the horizon. The frightening thing about Iraq has always been that it would be enormously difficult to construct a functioning (let alone democratic) Iraqi state out of no civil society and longstanding sectarian conflict if the leadership of the country that razed the previous state had any idea what it was doing.

Brief Follow-Up

[ 0 ] September 12, 2007 |

I don’t have time to respond to all the comments in this thread, but a couple of quick points:

  • I have learned by now that it is hopeless to expect anyone in the “aesthetic issues are moral issues” camp to ever address this point, but nonetheless I note that the key question is whether weight has a substantial effect on health as an independent variable. What is not in any dispute is that 1)vigorous exercise at least 3-4 times a week and 2)a diet rich in fruits, vegetables and whole grains have strongly beneficial health effects, whatever effect they have on what your body looks like. So what, exactly, is the added value of hectoring people about fat as a way of rationalizing one’s a priori aesthetic preferences? Particularly given the quite considerable costs of this moralizing, which are largely absent from addressing the far more important questions of exercise and diet?
  • This article is kind of the worst of both worlds. It characterizes a regulation addressing “the obesity crisis” (sic) as the government trying “to get between you and your cheeseburger.” The regulation in question: a requirement that restaurants provide calorie counts. Although more nutritional information would be better, this regulation is hardly “nanny statism” in the pejorative sense, but in fact reflects exactly the kind of regulations that governments should be passing. Creating informed consumers is perfectly reasonable, and given the incentive that restaurants have to shield information about the potentially bad health effects of their products from consumers it’s appropriate for a measure of regulation in this area. If the government stops people from buying something altogether, then we can talk about “nanny statism.”

My Kinda Town

[ 0 ] September 12, 2007 |

Light posting will continue for another couple days, as I am in Chicago to give a talk at the Northwestern Law School tomorrow. I’m staying at a lovely hotel in Evanston, which would be considerably more clever had I been aware at the time of the booking that the Northwestern Law School is, in fact, in downtown Chicago. Given the proximity of the hotel to the friends I’m seeing here and the fact that the going rate for a Motel 6 scheduled for demolition next month in the Loop is roughly $2,000 an hour, however, it works well enough anyway.

Two salient facts from the flight. The first is that JetBlue is finally flying from NYC-Chicago, sweet. The second is that my flight today (which the attendant assured me was near capacity on most flights) was barely half full. Are people actually superstitious about flying on 9/11?

JAMA Denial

[ 0 ] September 11, 2007 |

You may remember the JAMA study which showed that the range of weight generally defined as “overweight” (as opposed to normal, underweight, or obese) was actually associated with the best health outcomes. (See the full study here.) Paul Campos has an excellent article about how the Harvard School of Public Health has, in spite of these results, continued to push claims that people should optimally be at the low end of their “normal” BMI range (108 and 129 pounds for women and men of average height, respectively.) This “flies directly in the face of the actual data.” The main techniques are mischaracterizing the JAMA study, ignoring their own results when they yield inconvenient data, and relying on their own inferior data pool. The bottom line:

Of course, one reason the Harvard claims are treated with such respect is that they tell people what they want to hear. Their claims dovetail perfectly with social prejudices that declare one can never be too rich or too thin, and with the widespread desire to believe that sickness and death can be avoided if one follows the rules laid down by the appropriate authority figures. Combine these factors with the social cachet wielded by the Harvard name, a willingness to make brazen assertions that run from serious exaggerations to outright lies, and lazy journalism of the “some say the Earth is flat; others claim it’s round; the truth no doubt lies somewhere in the middle” type, of which the Scientific American article is only the most recent example, and you have a recipe for an epidemic of wildly misleading statements dressed up in the guise of authoritative scientific discourse.

The conflation of health and weight is about aesthetics and class, not health.

Indefensible Corn Subsidies: This Time It’s Personal

[ 0 ] September 11, 2007 |

Apparently, among the many other bad side effects, the massive amount of corn being grown is pushing up the price of other commodities. For example, “Heineken, the brewery giant, said beer prices might have to be raised because so many crops are being planted and diverted to bio-fuel production that the supply of barley and hops is being reduced.”

My question: what the hell does the price of hops matter to Heineken? It’s almost as crazy as saying that the price of dairy products would affect the price of a McDonald’s shake…

Bribery Will Get You (Almost) Everywhere

[ 0 ] September 11, 2007 |

Many thanks to our regular reader Howard for favoring me with some hot jazz selections from my wish list: namely, Abbey Sings Abbey and Bill Frisell, Ron Carter, Paul Motian. Many thanks! Indeed, I’m so grateful I’ll even say something nice about Howard’s beloved Yankees:

OK, not really, but you can see what I’m driving at. However, if a Republican wants to buy me something to say nice about Sam Alito — hey, I’ll betray my principles up to a point!


[ 1 ] September 10, 2007 |

Attaturk notices the most salient aspect of yesterday’s Tom Friedman joint. If you actually needed a war to figure out the staggeringly obvious fact that the utter lack of the civil-society institutions might be extremely important to whether a state riven by sectarian conflict is a good candidate for democratic transition…you really shouldn’t be allowed to write about foreign affairs for the Dubuque Telegraph Herald, let alone the New York Times.

A GOP Clark?

[ 0 ] September 10, 2007 |

As with Publius, it’s occurred to me looking at the less-than-rapturous reception to Fred Thompson in some of the blogosphere’s conservative precincts that there are may be a loose parallel between Clark’s campaign in ’04 and Thompson in ’08. The surprising early decline in support for the war created an obvious structural problem for the Dems in the last primary campaign: the best strategy was probably to make a strong case that the Iraq War was a counterproductive strategy that undermined national security and the struggle with terrorism. but a candidate that supported the war initially would be fatally compromised in trying to make this case and there was good reason to believe that although he had the right position Howard Dean probably wasn’t the ideal candidate to make the case. Clark — a Southern four-star general who had the right position on the war — seemed right on paper to address this, but his amateur-night campaign made that inoperative. (The great unanswered question is whether Clark had few innate political skills or whether he was just too green. I frankly lean towards the former; the very fact of his bizarrely late entry and decision to skip Iowa when running against two New Englanders doesn’t suggest a political mastermind.) Thompson, similarly, fills an obvious structural void: a plain vanilla Southern conservative acceptable to both pro-business conservatives and their cultural reactionary junior partners. But while unlike Clark he’s run a successful campaign (although getting elected as a Republican in Tennessee isn’t exactly rocket science), I strongly suspect that his good-on-paper candidacy will prove less effective in practice.

Of course, if this turns out to be true, the structural void is still there: somebody who would be disqualified by some factor in a normal year has to win by default. One implication of this is that –while I still don’t think he will win — my categorical assertions that Giulani has no chance are probably mistaken. Part of me is even tempted to say that even McCain could pull off a miracle Kerryesque comeback, although the fact that Steve Hayes and David Broder see it coming means that it’s probably safe to keep writing it off. If it’s not Romney, I still think that Huckabee may be able to appease the business wing of the party enough to be the next most likely nominee.

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