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The Immolation of Privacy, Cot’d.

[ 12 ] November 26, 2007 |

The latest from the War On (Some Classes of People Who Use Some) Drugs, a/k/a where the Constitution goes to die. Wheeler does a very good job of explaining the illogic behind claims that the government doesn’t need probable cause to get access to tracking data; if taken seriously, it would eviscerate large parts of the Bill of Rights. It would also make hash of existing Fourth Amendment doctrine; one doesn’t surrender their constitutional rights by using new private technologies to communicate with other people. As Justice Stewart correctly observed, “the Fourth Amendment protects people — and not simply ‘areas.'” People should be entitled to the reasonable expectation that the state will not have access to private tracking data, email, etc. without some independent reason to suspect wrongdoing.

On the other hand, this does give me another excuse to resist getting a cell…

Beyond the Pyramid

[ 10 ] November 26, 2007 |

Although I don’t think it undermines the key point here — it’s obviously completely irrational to give the majority of federal agricultural subsidies to meat and diary, and most of the remaining subsidies to things other than vegetables — GFR makes a good point about the “food pyramid.” Interestingly, the Canadian government’s recommendations call for lower numbers of servings. The real lesson here, I think, is that all such recommendations are hopelessly arbitrary; it’s pointless to talk about absolute numbers of servings when it depends entirely on what kind of food within the category is being consumed (9 servings of avocado a day probably isn’t a hot idea, whole grains are better than refined grains, etc.), how much you’re exercising, what your overall health picture looks like, etc. The only potentially useful thing is the ratios; all thing being equal you want to be eating more vegetables than grains and more of either than meat or diary, etc. I don’t see the serving-based food pyramid adding much value.

Ask This Scientician!

[ 12 ] November 25, 2007 |

Michael Medved to join the Discovery Institute. Why doesn’t he deserve the wingnut welfare? It’s not as if his scientific credentials are worse than most other creationist wankers, and he can’t be worse at evolutionary biology than he is at film criticism.

Speaking of which, I was going to make fun of Medved for claiming that Redacted “could be the worst movie I’ve ever seen.” (Having seen Snake Eyes, I find it very hard to believe that it’s even the worst movie Brian DePalma has ever directed.) However, in defending his claim that the soldiers in Redacted “sound like the cast of Rent acting like roughnecks,” Owen Gleiberman cites this example of “cringingly false badass dialogue”:

”You’re so goddamn white you wouldn’t wear yourself after Labor Day!”

If I understand correctly that the picture is supposed to be going for gritty realism, I’m not sure that I can entirely rule out the veracity of Medved’s claim…

Lethal Weapon

[ 0 ] November 24, 2007 |

Sasha Undercover says that 300 people have died from the use of tasers in the U.S. this year. This is, however, not solely an American problem: a case where a Polish immigrant who died after being tasered was major news in Canada last week. It seems likely that although they’re presumably an alternative to using firearms tasers are much more likely to lead to deaths that one might think, and serious questions need to be asked about the frequency of their use.

Happy Thanksgiving!

[ 5 ] November 22, 2007 |

Back from Canada, but off to bucolic New England to celebrate your phoney-baloney version of Thanksgiving.

In the meantime, I have to agree that while probably less destructive to political discourse Collins’s columns have even less content than Dowd’s…

The Second Amendment on Trial

[ 36 ] November 20, 2007 |

The Supreme Court has decided to hear an appeal to the D.C. Circuit decision striking down D.C.’s handguns ban. I’ll have more discussion about this later, but to stimulate discussion in the interim I’ll say that 1)the most plausible interpretation of the 2nd Amendment, I think, confers an individual right to bear arms, although this is certainly not the only reasonable interpretation; 2)given this, D.C.’s draconian ban is (for better or worse) clearly unconstitutional, but 3)more reasonable gun control measures may be constitutional even if the right to bear arms is considered an individual right.

Ignorance Is Bliss

[ 20 ] November 20, 2007 |

Photo Sharing and Video Hosting at Photobucket

Gainer The Gopher sez: Slappy Who?

One advantage to being in Canada right now is that sportswriters are much more preoccupied with such matters as the epochal Riders/Lions tilt and much less with the distressing news that A-Slappy will be back in pinstripes. Although I knew better, for a brief moment I allowed myself to think that some kind of irrationality had overtaken the Yankees and that they might have let Rodriguez walk, but they didn’t, and alas most other teams look at player salaries primarily as expenses rather than investments, which is why they are where they are and the Yankees are where they are. I’m sure the feats of illogic on behalf of American sportswriters have been spellbinding, but I’m trying to ignore it for the week; looking at bad political journalism is bad enough. I’ve got tickets tonight — go Flames! Lalalalala I can’t hear you!

Borking and The Court

[ 8 ] November 20, 2007 |

I actually agree with two points that Ross Douthat makes here. First, I think that there’s a tendency to assume that Roe‘s popular support made its upholding inevitable, but this really isn’t the case. If Reagan had appointed Bork and Scalia in reverse order, for example, Roe would have been overturned. Although most sophisticated observers understand that the Supreme Court is better understood as an adjunct to national governing coalitions than a stalwart protector of unpopular minorities, it’s easy to push this too far; the Court wouldn’t have been prevented from overturning Roe any more than the Warren Court was prevented from issuing Everson and Miranda. (Indeed, as all three examples suggest it’s entirely possible for positions to be broadly consistent with current elite governing coalitions and be unpopular among the public at large.) Second, he is of course right that Alito and Roberts are doctrinaire conservatives who will never find an abortion regulation unconstitutional, although their fake “minimalism” may mean that even with a fifth vote we’ll see the complete gutting rather than the explicit overturning of Roe. (Of course, at this late date nobody but Ann Althouse could think otherwise.)

On the other hand, we have the tired claim about of a “shameful-but-effective Democratic smear campaign against Robert Bork.” Obviously, the Senate being a political body, criticisms of Bork were not expressed in the tones of an academic seminar. But the core of the case against Bork was that he 1)entirely rejected any implicit right of privacy, meaning that the state not only had the authority to pass arbitrarily enforced laws requiring a woman to carry her pregnancy to term but also to pass arbitrarily enforced laws preventing people from using contraception, 2)he had a consistently awful record on civil rights including public claims that the Civil Rights Act was unconstitutional and hostility to claims of gender equality, and 3)took an exceptionally narrow view of free speech rights. This campaign was effective because it was accurate — there were at the time enough moderate Republicans to oppose his views on privacy and no Southern Democratic Senator (given that they required near unanimous black support to be competitive) could have supported someone with Bork’s record on civil rights. Some of these issues have become less important over time — conservatives have largely adopted libertarian positions on issue #3, and many reactionary nominees are now young enough not to have contemporaneously opposed the Civil Rights Act. On issue #1, however, justices like Roberts and Alito are easier to confirm than Bork not because their positions are more popular but because the lesson they learned from Bork is to simply refuse to state their position explicitly. Hence the high comedy of Republicans who had admired Alito for being a doctrinaire conservative suddenly reacting with outrage against those pointing out the obvious fact that he held very conservative positions on legal issues as soon as he was nominated. This silliness, of course, could stop as soon as he was safely on the Court. This kabuki does, however, make “Borking” more difficult (or, as the case with Thomas, be reflected through discussions of marginally relevant personal issues.) This is not, however, a good thing.

Halftime Harassment

[ 22 ] November 20, 2007 |

Well, this makes me happier that the Jets are 2-8:

At halftime of the Jets’ home game against the Pittsburgh Steelers on Sunday, several hundred men lined one of Giants Stadium’s two pedestrian ramps at Gate D. Three deep in some areas, they whistled and jumped up and down. Then they began an obscenity-laced chant, demanding that the few women in the gathering expose their breasts.

When one woman appeared to be on the verge of obliging, the hooting and hollering intensified. But then she walked away, and plastic beer bottles and spit went flying. Boos swept through the crowd of unsatisfied men.

Marco Hoffner, an 18-year-old from Lacey Township, N.J., was expecting to see more. Not from the Jets — they pulled off a big upset over the Steelers. He wanted more from the alternative halftime show that, according to many fans, has been a staple at Jets home games for years.

“Very disappointed, because we’re used to seeing a lot,” Hoffner said.

The mood of previous Gate D crowds — captured on video clips posted on YouTube — sometimes bordered on hostile, not unlike the spirit of infamously aggressive European soccer hooligans. One clip online shows a woman being groped by a man standing next to her.

Ew. But this isn’t only icky; it’s a security threat. So where is security? Being vigilant — against anyone who might report the harassment:

Throughout halftime, about 10 security guards in yellow jackets stood near the bottom of the circular, multilevel ramp, located beyond the stadium’s concourse of concession stands and restrooms. One of the guards was smoking a cigarette; many fans do the same during halftime on the giant ramps, which are located at each corner of the stadium. Another guard later said they were not permitted to do anything about the chants at Gate D because of free speech laws. Yet when a reporter tried to interview two security guards after halftime, he was detained in a holding room, threatened with arrest and asked to hand over his tape recorder.

Great.

A Pledge To Keep

[ 11 ] November 20, 2007 |

Especially useful with Thanksgiving approaching:

So why not try this for a day? If you’re going to eat something, eat it. If you’re not, don’t. Beating yourself up about food, privately and publicly, much as you think might help you stay thin out of guilt, doesn’t actually work.

Indeed.

…I do think the mighty Atrios makes a fair point in comments:

More seriously as much as I agree this kind of dynamic is messed we should understand that people with food and fat related issues do adopt various coping mechanisms. Not saying I endorse them all as being “healthy,” but the problem probably isn’t the mechanisms themselves but the issues which lead people there.

My impulse is to be as cranky about this as M. LeBlanc — even though I’m sure I’ve done this kind of thing myself — laregly because it’s my impulse to be cranky about pretty much anything, but the real point (and I assume hers as well) is that the dynamic doesn’t work and reflects counterproductive attitudes towards food; the fact that it can be annoying to others is not the central point.

A Constitutional Amendment About Nothing

[ 20 ] November 19, 2007 |

The recent hysteria about a few peripheral citations of legal norms in other liberal democracies in Supreme Court opinions has reached some kind of apex with a speaker at a Federalist Society convention proposing a constitutional amendment banning the practice. What’s strange is the amount of energy being expended over what it quite obviously a trivial issue — it’s not clear why anyone thinks such dicta have any actual causal effects on the outcome of cases. Such citations are likely to come up almost exclusively in cases where the text of the Constitution can plausibly support a wide range of outcomes, and hence are overwhelmingly likely to be used only to back up conclusions judges have reached for independent reasons. This is certainly true of the cruel and unusual punishment clause, at issue in the case that has generated the greatest outrage about the supposedly pernicious effects of citing foreign law. Does anybody seriously think that a single vote in the case would have changed had the Constitution forbidden the citation of law of other democracies? Scalia noted in his dissent that Kennedy would be unlikely to cite foreign law when its conclusions were less favorable to his position, but that’s the point: the cites are window dressing. It may be true that Kennedy’s experience teaching abroad has had a moderating effect, but this would remain true whether his opinion cited the laws of other countries or not.

Crucial to making this triviality into a major issue is a strawman. According to Adler, the advocate of the amendment laid out the “basic case against relying upon foreign or international law in constitutional interpretation.” [my emphasis] But, of course, nobody says (as the word “rely” would seem to imply) that American judges are bound by the laws of similar countries; rather, at most it’s simply one of many sources that a judge might consult when trying to construe the meaning of an ambiguous constitutional clause. Reasonable people can differ about whether it’s an appropriate source to look at, but such pragmatic use of sources outside the constitution is utterly banal. I don’t recall any conservatives complaining about, say, Clarence Thomas’s (implausible) paean to the emancipatory effects of vouchers, although strictly speaking such policy effects are irrelevant to the question of whether state funding that goes almost entirely to parochial schools violates the First Amendment. I’d also be interested to know how many people furious about Roper have railed against the Rehnquist Court’s “sovereign immunity” doctrine, which seems to “rely” heavily on centuries-old British common law being binding in American federal courts…

Defending Clinton Through JFK Worship

[ 9 ] November 19, 2007 |

Responding to Sean Wilentz’s attempt to analogize Obama and Clinton to Stevenson and JFK, respectively, in 1960 I think Matt has the correct response:

Meanwhile, the reality of the Kennedy Administration — as opposed to the Myth of Camelot — is precisely what makes people leery of Clinton. A 50%+1 win followed by a domestic agenda that goes nowhere in congress and a drift toward foreign policy disaster driven in part by a unshakeable fear of looking soft on defense.

Having said that, I don’t really think the analogy holds water either way. I suspect Clinton in office would be better on domestic policy than JFK (although on foreign policy, the JFK analogy is all too accurate.) Of course, JFK would be infinitely preferable to any GOP nominee of 2008, so if the ther end of the analogy held up this would still favor Clinton, but I also don’t think that Obama is really comparable to Stevenson in terms of political skills, and Matt is right that Stevenson could certainly have won in conditions as structurally favorable to the Democrats as 2008 is likely to be anyway.

This also reminds me that with all due respect to Wilentz, who has done a lot of terrific work, he has a very strange JFK fetish — see here. There are any number of (to put it charitably) tendentious claims to be found — such as his implication that JFK could have overcome the many obvious problems facing the Democrats in 1968, such as civil rights legislation (which Wilentz problematically assumes that JFK could have gotten passed quickly) destroying much of the traditional Democratic coalition, rising crime rates and urban violence etc. — with his boyish charm, but I think this is the best example:

There’s no question that Johnson was able to carry forward Kennedy’s domestic agenda because of the 37 House seats gained by the Democrats in the 1964 elections, a landslide that produced a working majority for progressive legislation for the first time in a quarter century. But Kennedy was a more popular figure than Johnson. Had Kennedy lived to run against Barry Goldwater, the Democrats probably would have picked up 50 more liberal legislators.

What Wilentz leaves out here is that one reason the Dems were able to pick up so many Congressional seats in 1964 is the halo effect created by JFK’s assisination, something that seems rather unlikely to have accrued to a non-assassinated JFK. Nor can a presidential candidate get much more popular than 61% of the popular vote; can Wilentz seriously believe that JFK would have had longer coattails? None of this makes me much more comfortable about JFK analogies made by Clinton’s supporters….

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