Shorter Ann Althouse: “The fact that Sandy Berger and Madeline Albright are upset about entirely false claims that they were directly responsible for 9/11 based on decisions that in fact were never made just proves that they must be true. The only solution to speech is more speech, except when that speech involves criticizing docudramas, which should have unlimited license to make things up in order to distort history for political purposes. Anyway, trying to use economic pressure to stop movies should be limited to when I erroneously anticipate they will have politics I don’t like. And my outrage about Oliver Stone saying things in a documdrama that I think aren’t true must mean that they really were true. Or something.”
Author Page for Scott Lemieux
Busy today with parental visits and prep and all, so in the wake of Alessandra Stanley’s ridiculous review of ABC’s fakeumentary, enjoy another example of Stanley’s reactionary airheadedness from the LGM archives. The other thing to note is that even if it was true that Bill Clinton’s unreliable zipper distracted him from terrorism, this wasn’t a result of the trivial time taken by the Blowjobs That Shook America themselves but because, you know, the Republican Party led by a hyper-partisan, egregiously unethical, and sex-obsessed special prosecutor decided to waste Congress’ time pursuing a risibly frivolous impeachment over them. It was the Republican Party and their media lickspittles, not Clinton, who thought this stuff was more important than terrorism.
And Don’t Kid Yourself, If Bush Pledged To Spend the Money, Every Dime is in the Hands of Poor People Right Now!
Remember Jonah Goldberg ripping off some hye-larious knee-slappers about pending hurricane victims? In the same spirit, Glenn Reynolds links to some reprehensible “satire” exhorting poor people who lost their homes to pull themselves up by their bootstraps and apply a little elbow grease. (The idiocy of the funny-as-drinking-Drano “satire” is unfathomable; the overall ethos is that if you didn’t clear our of New Orleans and have the resources to live elsewhere for years, it’s just because you’re stupid. You can see why Reynolds finds it funny.) And, frankly, until you’ve had to settle for a grill with a mere six burners when spending your upper-class tax cut, you don’t know what deprivation is.
What the hell is wrong with these people?
This is the bill the Administration has sent up to Congress. Make no mistake, the most important action has little to do with military commissions (although that stuff is certainly significant, too). Instead, focus ought to be on sections 5 through 7 (pages 77-84), which are, as I predicted here, collectively an attempt to authorize the CIA to engage in the sorts of “enhanced” interrogation techniques — e.g., hypothermia, threats of violence to the detainee and his family, prolonged sleep deprivation, “stress positions” and waterboarding — to which the President alluded in his speech today, and to immunize such conduct from any judicial review. (The President’s speech is much more candid than the face of the Administration bill. The President bascially concedes that the Hamdan decision stopped the CIA techniques in their tracks — and that the object of the Administration bill is to authorize them anew.)
Although section 6 in effect says that the U.S. will “comply” with Common Article 3 of Geneva even if such techniques are used, that’s wrong. These techniques are — at least in many cases — “cruel treatment and torture” prohibited by Common Article 3. Thus, this bill would in effect authorize the United States to breach its treaty obligations. Perhaps that’s something we should do — perhaps not.* But if so, we shouldn’t pretend that we’re not engaged in such cruelty and torture, and we shouldn’t engage in the fiction that we are in compliance with the Geneva Conventions. The decision to authorize such horrifying techniques, and to thereby be the first nation to adopt breach of Geneva as official state policy, is a solemn one, and it should be treated with the seriousness that it deserves — without euphemism or obfuscation.
You think you’ve lost your capacity to be outrage, but with this administration it never goes away…
Dinesh D’Souza is, I’m afraid, back. And he has a new argument about 9/11: it’s America’s fault! Especially them damned uppity women:
He argues that it is not our exercise of freedom that enrages our enemies, but our abuse of that freedom–including the sexual liberty of women, to the support of gay marriage, birth control, and no-fault divorce… (particularly telling emphases mine.)
Shorter Dinesh D’Souza: “we must turn over the control of the state to Comrade Kass and make sure to reinstate the oppression of women, egregious double standards, and sexual puritanism we share with our fellow non-abusers of freedom in the Muslim world before they can impose it on us with their fearsome armies.”
Meanwhile, the publisher’s pitch for Jonah Goldberg’s long-unawaited treatise Liberal Fascism confirms that the project really is book-length exposition of the “Hitler was a vegetarian” fallacy that a bad elementary school debater could see through, except worse because Hitler actually was a vegetarian.
Speaking of Michael Stokes Paulsen, he contributed a dissent to What Roe Should Have Said. Although the opinion betrays a sense of humor (the first footnote notes that Justice Balkin appointing the other members of the Court violates Article II of the Constitution), it provides the undiluted, fire-and-brimstone critique of Roe, complete with appended pictures of fetuses. His argument makes two familiar points: 1)Roe has no constitutional basis, and 2)because abortion “kills a human life” states are almost certainly required to ban abortion in most circumstances. On the first point I’ve already written a great deal, so I will note only that needless to say he returns in this case to the narrowly textualist, historically concrete originalism he abandons to justify Brown v. Board.
On the second point, I actually have some measure of admiration for Paulsen’s opinion, which is rare among pro-lifers for actually applying its underlying passage consistently. Many people will object to this passage near the end, where he calls out the other mock-justices:
Jack Balkin is a man of violence. [Repeat, with appropriate gender substitutions, for five others, ironically including Jed Rubenfeld.]
Cass Sunstein is a man of violence (once case at a time.)
Ahkil Amar is a coward and a collaborator.(213)
In a strange error, Paulsen invokes the great legal theorist Robert Cover–who was apparently his mentor–to justify the language. This is an obvious misreading that leads one to question Paulsen’s grasp on the material. The point of Cover’s astonishing essay “Violence and the Word” is that calling a judge a person of “violence” is a tautology: judges–the justifiers of state violence–are, by definition, people of violence in Cover’s terms. (“Legal interpretation,” Cover reminds us, “takes place in a field of pain and death.” This is not merely true of judges who disagree with Paulsen about the constitutionality of abortion rights or who uphold death sentences. We do not, as Cover says, “talk our prisoners into jail.”) And it certainly applies to Paulsen, who would mobilize state violence against those who perform and obtain abortions. I do not, however, object to Paulsen’s tone, which is commensurate with his stated principles. And I also respect him for being open about the consequences of what he’s proposing: unlike so many (see especially Patterico in comments), he is open that the belief that fetuses are Constitutional persons–which, I remind readers, it currently the stated plank of the party that controls all three branches of the federal government–would require–not permit, but require–states to treat abortion like first degree murder.
On this point, however, it must also be emphasized how radical this position is–pro-lifers avoid the implications of their alleged theories of human life for good reason. Paulsen says that “it is hard for me to accept that men and women I otherwise respect…embrace constitutionalized private mass murder.” It’s worth considering that this is true not only of Jack Balkin and John Paul Stevens, but also of Antonin Scalia and Clarence Thomas. After all, Scalia claims, in an opinion joined by Thomas, that “[t]he States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. (212)” Particularly given how ineffective criminalization–let alone piecemeal criminalization in which affluent women need merely cross state lines to obtain abortions–is at reducing abortion rates–is in practice, to argue about whether Scalia or Stevens is the greater “man of violence” is like arguing about whether Hitler or Stalin is worse.
I remain confident that Paulsen’s positions, while worthy of more respect than most pro-life positions, will remain confined to a tiny minority. Applying his premises consistently is to make their implausiblity transparent.
A federal judge hearing a case about the President’s warrantless wiretapping program cut to the heart of the issue yesterday: “We’re debating a rather abstract but rather vital issue. Does the president have the power to do something despite the fact that Congress said ‘thou shalt not have this power.’” And it’s worth remembering, again, that even the administration isn’t claiming that FISA authorized the warrantless domestic wiretaps, and their arguments deriving this authority from the AUMF are 1)farcical, and 2)have been rejected by the Supreme Court. Acting against an act of Congress is the area where Presidential power is at its “lowest ebb,” and five years after 9/11 it’s implausible in the extreme to suggest that such lawlessness is justified.
S.2453, which will likely be voted out by the Senate Judiciary Committee led by Arlen “least deserved reputation for moderation in history” Specter this week, would compound this serious constitutional problem by retroactively legitimizing the President’s lawlessness while putting toothless checks on the administration in place. As Greenwald has described it:
Section 702(b) of the bill (entitled “Mandatory Transfer for Review”) protects the administration in numerous ways from meaningful judicial review:
First, it requires (if the Attorney General requests it, which he will) that all pending cases challenging the legality of the NSA program (which includes the EFF and ACLU cases) be transferred to the secret FISA court. Thus, the insufficiently deferential federal judges would have these cases taken away from them. Second, it would make judicial review of the administration’s behavior virtually impossible, as it specifically prohibits (Sec. 702(b)(2)) the FISA court from “requir(ing) the disclosure of national security information . . . without the approval of the Director of National Intelligence of the Attorney General.” That all but prevents any discovery in these lawsuits. Third, it quite oddly authorizes (Sec. 702(b)(6)) the FISA court to “dismiss a challenge to the legality of an electronic surveillance program for any reason” (emphasis added). Arguably, that provision broadens the authority of the court to dismiss any such lawsuit for the most discretionary of reasons, even beyond the already wide parameters of the “state secrets” doctrine.
Contact your Senators and tell them not to let this bill pass. With the administration willing to openly break the law to aggrandize its power, we need a serious congressional check, not writing the principle of “Please, Sir, May I Have Another” into a legislative enactment. And also consider giving a little something to candidates like Jim Webb; the more Democrats in the Senate next term, the better the chance of reining in the White House.
As an early convert to Ezra’s Sebelius-for-Veep bandwagon, I have to say this doesn’t dissuade me. In addition, the piece is interesting because–like the surprisingly vigorous campaign to overturn the radical new abortion law in South Dakota–it suggests that the market for hard-right cultural conservatism is considerably less robust than is sometime believed, especially outside the Deep South. Kansas panty-sniffer-in-chief Phil Kline, in particular, seems to have done some politically damaging overreaching:
Morrison, the Democratic candidate for attorney general, says that it took more than a call from Sebelius to persuade him to switch. Morrison, who calls himself a “very, very moderate person,” felt that incumbent Phill Kline had turned the attorney general’s office into a platform for partisan politics. Kline made headlines when he attempted to access the medical records of Kansas women who’d had abortions. “So much time and energy,” Morrison says, “is being spent on pursuing a narrow partisan agenda that most people don’t agree with.”
Nice to see some victories, however modest…
Shorter Verbatim Leon Wolf: “[P]ro-freedom sounds more attractive than anti-slavery.” I dunno, “anti-slavery” sounds plenty good to me, but then I’m one of those nutty pro-Reconstruction radicals who are no longer welcome in the Republican Party.
On the substantive issue “anti-abortion” and “pro-abortion rights” are far more neutral terms than “pro-choice” and “pro-life.” (And, of course, if the idea of abortion was as unpopular as people like Wolf are wont to claim, this framing would be much better for the forced pregnancy lobby.)
Eric Muller calls an exchange between Michael Stokes Paulsen and Jed Rubenfeld about the latter’s new book in the Yale Law Journal “head-turningly nasty,” and Ann Bartow agrees. While I think that would be an accurate description of, say, John Simon on Gore Vidal, I’m not sure what it says about me but I really didn’t see it. In terms of tone, I don’t see anything problematic at all about Paulsen’s review; it’s hard-edged, but I certainly don’t see it crossing any boundaries. (His piece in the Roe v. Wade book, which I’ll hopefully blog about later today, is much harsher.) With respect to Rubenfeld, the “I do not know Michael Stokes Paulsen or his writings” line is bad, although for its sneering condescension more than the lack of truth Muller claims (I don’t think that sitting on a panel with someone at a conference a few years ago constitutes “knowing” somebody or their writings.) The next part of Rubenfeld’s review is pretty nasty, but if Paulsen misread the book as badly as Rubenfeld claims (I haven’t read it, so I can’t say)–especially on something as crucial as whether he believes Blaisdell was correct–I’m not sure it’s unjustified. And with respect to his comments on originalism, again, I don’t see the problem. I suppose I can see objections to Rubenfeld calling many originalist arguments “half-baked”, but he defends the claim substantively:
Consider Paulsen’s particular brand of originalism. He purports to reject “crude intentionalism.” Original meaning, says Paulsen, is properly understood to be the “objective linguistic meaning of the words of a text (in historical context),” as distinct from any “subjective,” “concrete historical understandings” of the text, including any “historical beliefs” about the applicability of the text in specific settings.
This position is either incoherent or fundamentally misguided or both.
It is of course conceptually possible to divorce the “objective linguistic meaning” of uttered words from the subjective, concrete historical understandings of those words held by the people who wrote or spoke them. What we might call the “semantic content” of words, derived from the linguistic rules of the relevant community, can always differ from the speaker’s or author’s “intended meaning.” People often employ words whose semantic content (in the above sense) differs slightly or significantly from their intended meaning. When we hear such words, we always have a choice in principle between interpreting them according to their semantic content or their intended meaning. Paulsen wants to say that only by following the original linguistic meaning can interpreters interpret correctly, remaining faithful to the actual written law as opposed to creating new law.
There is an excellent example of this point in Robert Bork’s The Tempting of America. n25 Like Paulsen, Bork tries to defend an originalism that casts aside the actual concrete historical understandings of the Constitution in favor of a supposed objective meaning of the text. He does so in an effort to make originalism safe for Brown v. Board of Education.
Yes, Bork admirably concedes, “those who ratified the amendment did not think it outlawed segregated education or segregation in any aspect of life.” Nevertheless, Bork asserts, Brown could “have clearly been rooted in the original understanding.” How? Well, “equality and segregation were mutually inconsistent, though the framers did not understand that,” says Bork, and “equality, not separation, was written into the text.”
In other words, the subjective understanding of the ratifiers – their concrete historical understandings – were out of whack with the objective meaning of the words written into the text. Equality means equality; this is not anachronistic; equality meant equality in the 1860s; equality was written into the text; segregation is unequal; hence segregated public schools are unconstitutional. Paulsen indicates that he essentially agrees with this analysis: “The result in Brown … makes entire sense if one focuses on the original linguistic meaning of the Fourteenth Amendment rather than on the mistaken subjective views or expectations of some individuals at the time that the Amendment’s principle did not extend to segregated education.”
The problem is not that Brown cannot be squared with the original linguistic meaning of the Fourteenth Amendment. Of course it can. The problem is that a great many other things can too. An originalism that cuts anchor with concrete historical understandings in this way can no longer coherently present itself as originalism.
The one virtue of originalism was that it purported to offer determinate, demonstrable answers to real constitutional controversies. Does the Eighth Amendment ban the death penalty? “Of course not,” an originalist could say; “I can easily prove to you that it was not so understood at the time of enactment. Any contrary reading by the Court today would therefore be a usurpation – government by judiciary.”
But when originalism cuts anchor with concrete historical understandings, the death penalty’s unconstitutionality certainly could be “rooted in the original understanding.” “Capital punishment was inconsistent with abolishing cruel and unusual punishment,” a Borkian originalist judge could say, “though the framers did not understand that, and the bar on cruel and unusual punishments was written into the text.” Even a Marxist judge could now be an originalist: “Private property and equality were mutually inconsistent, though the framers did not understand that, and equality was written into the text.” Or how about abortion? “Roe v. Wade makes entire sense if one focuses on the original linguistic meaning of the Thirteenth Amendment’s prohibition of “involuntary servitude,’ rather than on the mistaken subjective views or expectations of some individuals at the time that the amendment’s principle did not extend to laws banning abortion.”
Rubenfeld has a substantive point here, and I think it’s proper to make it in forceful terms. Although many originalists seem to think it’s a trump card, the distinction between “original intent” and “original meaning” has very little difference in practice although the latter is somewhat easier to defend theoretically. And Brown is really where the rubber hits the road. While it’s not strictly accurate to say that you can’t defend Brown in “originalist” terms, because at the time of the ratification of the 14th Amendment “equal protection of the laws” was generally not understood as applying to social (as opposed to political) equality, you can do so only by defining principles at such a high level of generality that “originalism” is essentially drained of any content. “Originalism,” defined this way, is indeed virtually indistinguishable from Dworkinian aspirationalism, and does little to constrain judges even in theory. I don’t see anything wrong with pointing this out in clear, biting language.
Shorter Bullshit Moose: “A few random comments on a website somewhere prove that ‘Democratic leaders continue to collude with the anti-Semitic appeasing left.’ But what really demonstrates anti-Semitism is opposing the lunatic idea of invading Iran.”
The DLC likes to complain about its reputation, but having people like Wittmann–somebody with reactionary positions on most economic and cultural issues, whose positions on foreign policy aren’t so much liberal or conservative as living some kind of blood-drenched double life, and whose schtick consists almost entirely of uninformed, broadly drawn smears of actual moderate Democrats–act as a public face means that they’ve made their own bed.
…and, as Atrios points out, this is especially ridiculous coming from a guy who was working for the Christian Coalition while Pat Robertson was busy re-writing anti-Semitic propaganda for the wingnut masses.