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A Yankee Hater’s Lament

[ 0 ] October 1, 2006 |

Could the Tigers win one goddamned game against the Royals? Yeesh. The first round is just going to be a massacre.

The Torture Party: A Summary

[ 0 ] September 30, 2006 |

Roy reads ‘em so you don’t have to. The reactions are depressingly predictable. Goldberg throws out a bizarre non-sequitur. Althouse is unable to comment, because she can’t deploy the high standards of impartiality and intellectual rigor for which she is justly famed–like when she implied that Bill Clinton was lying because she didn’t like his suit. (If you want to know what her post would have looked like, just take one of her recent posts about Project Runway, substitute the names of random Republicans for the nice hot models and of random Democrats for the mean, non-hot models. Throw in a few crucial details: Harry Reid has an ugly tie, Mitch McConnell looks like he’s really lost weight, Maria Cantwell probably wears objectively anti-feminist knit sweaters in her spare time, once shook hands with Bill Clinton and is rumored to have breasts…I’m sure you’d agree that it would be very illuminating.) Eugene Volokh offers some of what Henley aptly described as “bog-standard Republican authoritarianism, Kaye Grogan but in well-turned prose.” Roy reminds us that Volokh supports amending the Constitution to permit torture, but not about how he found the whole subject of torture too unpleasant to discuss when he perceived it as not in the interests of the Republican Party.

But topping them all is Reynolds. You get the defense of torture and arbitrary executive power as long as we define them as not-torture and not-arbitrary executive power, with a little plausible deniablity thrown in. You get his classic approach of blaming people who oppose torture as opposed to those who support it for the legal sanctioning of torture. You get his recycling of Volokh’s fantasy that if we didn’t act our enemies attacking us with….frivolous legal motions! (This really is stretching the Depends Theory of Geopolitics well past the point of self-parody.) You get his inevitable tautological claims that the Democrats are the big political losers in this. (Of course, if every Democrat had voted for it, they’d still be feckless losers who are too weak to be trusted and hence politically doomed. Had they successfully blocked it, they wouldn’t be so much anti-war as on the other side, and hence politically doomed. If Reynolds had been blogging in November 1936, he would have written that it was a catastrophic month for the Democratic Party.) Which I guess is Instapundit’s value to the world: every conceivable nuttily illogical right-wing argument provided in one convenient space.

Responsibility Where It Belongs

[ 0 ] September 29, 2006 |

The Editors point to some data that should compel us to keep things in perspective:

House vote: 253-168 60.1%
Republicans: 219-7 96.9%
Democrats: 34-160 17.5%

Senate vote: 65-34 65.7%
Republicans: 53-1 98.1%
Democrats: 12-32 27.3%

As he, and Glenn , Tom and Barbara remind us, let’s make sure we keep focus on where the responsibility for this belongs. Yes, 25% of Senate Democrats is far too many. Obviously, in places like Connecticut where there’s a chance to replace a collaborator with an actual Democrat, every effort to do so must be made. But this is a Republican bill, and it would not have passed if Democrats controlled Congress.

The most basic error that people who want to put most of the blame on the Democrats make is the assumption that you can infer voting behavior when you control the agenda from voting behavior that occurs after the agenda has been set by someone else. But this is foolish. The fact that John Kerry voted for the Iraq War does not mean that he would have sought to invade Iraq if he had been President–once a policy has been set in motion, or a proposal is on the table. Jon Chait made this point with respect to Nader’s ridiculous attempts to blame the Bush tax cuts on Democrats in Congress:

Before the election, a New York Times editorial rebutted Nader’s Tweedledee-and-Tweedledum analysis by citing the two candidates’ starkly different approaches to using the budget surplus — with Bush favoring a massive tax cut for the rich and Gore preferring other governing priorities. In his memoir, incredibly, Nader throws this back in the Times editors’ faces. “So what happens in June 2001, with the Democrats taking over the Senate?” he asks. “The Democrats call a $1.3 trillion Bush tax cut a victory for their side, as indeed numerous Democrats voted with the Republicans.” While repellent, the collaboration of a minority of Democrats with the Bush tax cut hardly vindicates Nader; quite the opposite. The tax cut fiasco, like Supreme Court nominations, demonstrates the difficulty of stopping a president’s agenda from moving through the legislative branch. But it was Nader who argued (at least implicitly) that controlling Congress mattered more than controlling the White House. He claimed all along that his candidacy would help the Democrats win Congress; indeed, he asserted that the extra turnout he spurred gave Sen. Maria Cantwell (D-Wash.) her winning margin and that this would offset any advantage Republicans gained by controlling the presidency. The tax cut showed that Nader was wrong and that the Times was right: What really matters in setting governing priorities is which party has the White House. Nothing resembling the Bush tax cut could have passed with Al Gore in the Oval Office.

Right. The political dynamic in this case is not a perception among moderate democrats that the American public has an a priori preference for this particular bill. Rather, the problem is that once the Republicans have the votes to pass (or at least force a filibuster), it places a great deal of political pressure on the opposition who can be painted as “objectively pro-terrorist.” This isn’t to say that these calculations are right; I think the political ramifications are more ambiguous, Republicans will portray the collaborators as anti-American traitors anyway, and in any case if there was ever an issue where principle should outrank politics this is it. But it doesn’t matter what I think; it matters how legislators would act. Having a Democratic majority changes everything–it’s much easier to stop vulnerable Dems from facing difficult choices when you control the legislative agenda. And in addition, the Majority leadership has considerably more leverage over its members than the Minority leadership.

So while the Democrats who voted for the legislation deserve the criticism they’re getting, it’s also important not to fall into the narcissist trap. The way to stop legislation like this is to get Republicans out of office, period.

…Jamie Mayerfeld makes a great point in comments:

The most damaging part of the bill is the elimination of habeas corpus rights for foreign detainees. The Specter amendment, which addressed this problem, received the votes of every Democratic senator but one. Not only that, but passage of the Specter amendment might have derailed the whole bill. We came extremely close to defeating this thing, and on the crucial vote all the Democrats but one stepped up.

Bad Omens

[ 0 ] September 28, 2006 |

Perdro out for the season. And the NL playoffs keep getting more interesting…

Pro-Torture, Anti-Law Democrats

[ 0 ] September 28, 2006 |

The vote national disgrace tally doesn’t seem to be up on Thomas yet. According to Lederman:

Democrats voting in favor included Carper, Johnson, Landrieu, Lautenberg [!!], Lieberman[Seriously, Go Fuck Yourself Joe--Why Don't You Go Back To Moralizing About Stray Nipples On the TeeVee From the Private Sector], Menendez, Nelson (Fla.), Nelson (Neb.), Pryor, Rockefeller, Salazar and Stabenow[!!].

Shame. Shame on each and every one. Extra shame on everyone with a safe seat (and that’s not just blue-staters–Nelson, you’re running against Katherine Harris, for Chrissakes.)

Greenwald confirms the tally.

And, needless to say, “all Republicans but one (Chafee?) voted in favor.” Every day that these people and their undiluted contempt for every decent principle this country stands for remain in power is a dark, dark stain on its history.

…Uh, this strikes me as not very good strategy. Did they get stabbed in the back by a couple Party of Torture fake-moderates who promised their vote on the habeas amendment? Even if that’s true, I’m not sure if it’s an excuse; as they say, if the plan involves POT moderates staying firm, you need a new plan.

"If my fellow citizens want to go to hell, I will help them. It’s my job."

[ 0 ] September 28, 2006 |

Yglesias and ogged ask about the constitutionality of the Arbitrary Detention and Torture Act of 2006. I wish I had good news, but…

On the Habeas Corpus issue, the Constitution is regrettably clear-cut. Article I, s.9:


The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Congress has the power, therefore, to suspend the Writ. There may be some quibbling about whether 9/11 represents an “Invasion,” but the Courts aren’t going anywhere near that issue, and there are good reasons to defer to Congress’ judgment in this case.

The jurisdiction-stripping issue is more complicated. I’ve discussed this issue at greater length elsewhere (1, 2) but the basic summary is that Matt is correct that there is a strong Constitutional basis for Congress’ actions. Article III, s. 2:

[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Congress is explicitly given the power to restrict the appellate jurisdiction of the Supreme Court, and since Article I leaves it to the discretion of Congress to ordain inferior courts it would be perverse to construe Article III as giving Congress less power to restrict the appellate jurisdiction of other federal courts. Moreover, this power is not just an anachronism; not only did Congress engage in jurisdiction-stripping during the Civil War, it also did so with the Norris-LaGuardia Act of 1932, and the Supreme Court upheld Congress’ restrictions on the injunctive power of the federal courts. The issue, is however, more complicated in that dicta in some cases asserting a robust conception of judicial supremacy–especially City of Boerne–have suggested that Congress’ ability to strip jurisdiction is more limited than Article III suggests. (Despite the awful result it would produce in this case, I think this is a problematic argument for reasons I’ve argued in the linked posts.) It is very unlikely that these particular cases will be used to advance judicial supremacy, however.

At any rate, as Matt says the key point here above all else is that opponents of this scandalous legislation should not use the courts as a crutch. Given the power of statist conservatives on the Supreme Court and the fact that Congress’ constitutional claims are very strong, and the general tendency of courts to defer to the executive when it makes “national security” claims, it is overwhelmingly likely that if it passes the legislation will be upheld. The Democrats have the power to stop it; they need to do it, not hope that the courts will take the issue off their hands.

Senators Against Law

[ 1 ] September 28, 2006 |

A full list of the Senators who have disgraced themselves and their country by removing any meaningful constraints on the President’s ability to detain and torture anybody at his whim by suspending the Writ of Habeas Corpus:

Alexander (R-TN)
Allard (R-CO)
Allen (R-VA)
Bennett (R-UT)
Bond (R-MO)
Brownback (R-KS)
Bunning (R-KY)
Burns (R-MT)
Burr (R-NC)
Chambliss (R-GA)
Coburn (R-OK)
Cochran (R-MS)
Coleman (R-MN)
Collins (R-ME)
Cornyn (R-TX)
Craig (R-ID)
Crapo (R-ID)
DeMint (R-SC)
DeWine (R-OH)
Dole (R-NC)
Domenici (R-NM)
Ensign (R-NV)
Enzi (R-WY)
Frist (R-TN)
Graham (R-SC)
Grassley (R-IA)
Gregg (R-NH)
Hagel (R-NE)
Hatch (R-UT)
Hutchison (R-TX)
Inhofe (R-OK)
Isakson (R-GA)
Kyl (R-AZ)
Lott (R-MS)
Lugar (R-IN)
Martinez (R-FL)
McCain (R-AZ)
McConnell (R-KY)
Murkowski (R-AK)
Nelson (D-NE)
Roberts (R-KS)
Santorum (R-PA)
Sessions (R-AL)
Shelby (R-AL)
Stevens (R-AK)
Talent (R-MO)
Thomas (R-WY)
Thune (R-SD)
Vitter (R-LA)
Voinovich (R-OH)
Warner (R-VA)

The Democrats have taken a great deal of entirely deserved criticism, but at least on this one only the hopeless Nelson folded.

Historical Counterfactual Time: Did Lincoln Get Lucky?

[ 1 ] September 28, 2006 |

Crooked Timber recently had a post asking what would have happened had the northern framers refused to go along with a Constitution that protected slavery. To posit a counterfactual at a later date, occasional Balkinization contributor Mark Graber has a quite brilliant new book about the implications of the framers making that decision. All constitutions, Graber argue, sanction evil practices to allow people with disparate moral views to live together. So the fundamental question of the Civil War is, when does constitutional injustice become intolerable enough to destroy constitutional peace?

The first two parts of the book are counterintuitive and, I think, pretty much unassailable arguments that are relevant to constitutional debates today. I have a TAP article about them coming shortly, so I won’t say much. The second section argues that the Constitutional protections of slavery went far beyond the more formal ones listed by Mandle–essentially, slavery permeated all the institutional arrangements of the Constitution, but the Constitution still failed to prevent the civil war because of errors in the Constitution (especially the electoral college), blunders by politicians (such as Buchanan trying to admit Kansas as a slave state) and unforeseen changes (the unanticipated northwestern population shift, slavery actually becoming more rather than less normatively entrenched in the South.) The first part of the book argues that blaming Dred Scott for the Civil War, or using it as a club to bash rival theories of Constitutional interpretation, is a non-starter: Dred Scott reflected mainstream Jacksonian theories of the Constitution, was popular with the majority of the public, and far from creating the Civil War was the only outcome that could have held the Democratic coalition together (although with the hapless Buchanan in the White House the Jacksonian Democratic Party was doomed anyway.)

To blame the Supreme Court for the Civil War, then, is to evade the real problem: the antebellum constitutional order was inherently compromised with the evils of slavery and white supremacy, and no Constitutional interpretation could wish the problem away as long as there was serious conflict about the underlying questions. So what to do in 1860? In a concluding chapter that, I think, isn’t right on the direct constitutional question but provokes illuminating questions nonetheless, Graber casts a retroactive vote for John Bell in 1860. To oversimplify a more subtle argument, the logic runs something like this:

  • Douglas’s consociationalist understanding of the constitutional order was more empirically accurate than Lincoln’s, and moreover Lincoln’s majoritarian understanding of the Constitution is problematic because, in fact, there was no anti-slavery majority in 1860: Lincoln’s victory was a fluke artifact of the idiosyncratic American system of selecting Presidents. This was what made secession inevitable upon Lincoln’s victory.
  • Retroactively voting for an optimal candidate, like Frederick Douglass, is just to wish the problem of constitutional evil away, and as such is a pointless evasion. A country in which Douglass could have been elected President is a country that wouldn’t have needed a Civil War to get rid of slavery, but if you’re wishing for that you might as well get ponies for everyone too.
  • Voting for Stephen Douglas, however, cannot be a satisfactory option. Not only was he more racist than Lincoln, he was a classic Manifest Destiny Jacksonian who almost certainly would have gone to war with Mexico or tried to buy Cuba. Obviously, if the choice is between going to war to expand slavery or to eliminate slavery, you’re going to go with the latter. Similarly, between an anti-slavery sectional candidate and a pro-slavery sectional candidate (Breckenridge), there’s no reason not to select the former. Hence, Bell–the moderate Southern Whig who opposed both national dissolution and expansionism–was the only one who was advocating a political solution.
  • Having said that, knowing how the war would turn out, one would clearly vote for Lincoln. But in 1860 this outcome was not inevitable. The war could have gone badly enough that Lincoln lost the election in 1864, and then you would have had enormous slaughter leading to slavery actually being more entrenched than it was before. (Graber doesn’t mention this, but another possibility is that rather than McClellan’s Waiting for Godot routine the North could have won the war quickly, which would have maintained Union without emancipation or the Civil War amendments. In a sense, for the war to work out it had to go well but not too well.) The possibility the result of Lincoln’s election could have been neither constitutional peace nor constitutional justice must be considered.

It’s a serious argument, but while it makes an important point about constitutionalism in general, I’m not buying in this specific case:

  • Graber is right that, ingenious as Lincoln’s constitutional arguments were, as a description of antebellum constitutionalism Douglas’s were more accurate. The question, however, is what weight that should carry. Lincoln does persuade me that between Kansas-Nebraska, Buchanan’s attempt to ratify the fraudulent Lecompton constitution, and the Southern suppression of free speech the South had already violated its part of the bargain. 1860, one way or the other, was the start of a new Constitutional order. I agree with Lincoln that there was good reason to use the effective vacuum to eradicate this particularly appalling evil.
  • Moreover, the antebellum consensus was not only normatively odious, but politically dead. The problems that lead to the collapse of the Democratic coalition weren’t going away, and the increasing political domination of the free states was only going to increase. The Dred Scott solution of taking the matter out of the hands of Congress was always a temporary reprieve at best; the increasing strength of the free states was going to produce a crisis sooner or later, and while delaying it for an election cycle or three may have enabled a peaceful solution, I sure don’t see it. It is true that this crisis was in large measure a product of structural deficiencies in the constitutional order, but that’s neither here nor there; wishing for the framers to have made better choices is no less evasive than wishing for a Frederick Douglass presidency in 1860.
  • I don’t know enough to be certain here–this is Rob’s department–but it also seems to be that a Northern victory, while not inevitable, was overwhelmingly likely, enough to be worth the risk (especially since abjuring war in 1860 was more likely to be a deferral rather than a permanent peace.)

In essence, I’m inclined to use the insights of the first two parts of the book against Graber. The failure of Dred Scott to forestall the collapse of the Democratic coalition, I think, indicates that no political compromise was possible by 1860. And just as to wish for a normatively correct outcome in Dred Scott is really to wish for a different constitutional order than the one that actually existed at the time, to wish for a moderate solution in 1860 is to pine for a constitutional order that had vanished. By 1860, sectional politics was the only game in town, and to vote for Lincoln in 1860 is to vote for the section that was right. This came with a horrible price. The decision made in 1787 to tolerate slavery to advance security was not unreasonable; slavery could have withered away in the South in the next century as it had withered away in many northern states in the previous century. But it didn’t work, abetted by some other blunders and bad luck. Most social orders are, tragically, formed in violence. By 1860, I think it was the least bad option.

But–and this is, as I read it, the real point of Graber’s argument–it is true that liberal constitutionalism in a sense requires Lincolns to be anomalous. The Civil War is, I think, a justified exception, but normally constitutionalism requires us to be John Bells, tolerating evil practices so that we can live together in peace.

Big Hurt, Pasta Diving, and Strategic Ressentiment

[ 0 ] September 27, 2006 |

A few baseball notes:

  • As a commenter notes, Billy Beane has somehow won another division title, not only with a low payroll but with their ace starter limited to 34 innings, their putative star young shortstop injured most of the year and hitting like Angel Salazar after twelve Ambiens when in the lineup, and their putative start third baseman having a disastrous year. His nicest move, of course, was buying low on Frank Thomas. It was a risk, but as they say it’s better to bet on an injured player getting healthy than a bad one getting good. At least twice early in the year when he was off to a slow start, I heard announcers discuss his Hall of Fame chances, with the implication that he probably fell short. Please–he’s a clear Hall of Famer, and was earlier this year. He’s as good a hitter as Hank Greenberg in a much longer career. He’s a significantly better hitter than Willie McCovey. It’s not close. (I have a particular stake because my favorite marginal candidate–I would name Tim Raines, but his exclusion will be a flat-out injustice–is Edgar Martinez, and you really can’t even talk about Edgar until Thomas is in, since the latter is a similar but clearly better player.) Anyway, I’d like to see the A’s do some damage in the post-season–it would be fitting if by far the worst of their Beane teams to make the playoffs is the one that won something–but I’m obviously not betting on it.
  • A correspondent brings up two points. The first: is Carlos Guillen had a better year than Derek Jeter? It’s surprisingly close. On a per-plate-appearance basis, you can argue that Guillen has been better; as hitters, they’re almost even, and of course Guillen is a much better shortstop than Pasta Diving. Jeter has more raw value–about 100 more plate appearances, so more runs–but surprisingly the oft-injured Guillen has played in only 2 fewer games, so much of that is just Jeter batting leadoff second for a better lineup. I can’t exactly argue that Guillen should be ranked higher, but it’s close. Although of course I’m not counting the incredible intangibles that have allowed Jeter to propel a lineup with only a $200 million payroll in it to a miraculous division championship, while everyone knew the Tigers were going to be great.
  • So watching the last week involves some complex calculations. Some are easy–I definitely want the Phillies to miss the wildcard by exactly one game as the price for donating Abreu to the Yankees, for example. On the Cardinals, I’m torn; I kind of want to see them blow it, but I don’t like the Astros either and the Mets would mash the Cardinals into a fine paste even if Pedro’s starts continue to resemble Lima Time! The AL is the trickiest one–what’s an intense Yankee despiser to do? There are some problems with the Secret Sauce report of likely post-season success, which confuses traits that are disproportionately important in the post-season with these traits being exclusively important. The fact that the Yankees may be fielding the best offense since the Big Red Machine if not since Joe McCarthy was in the Bronx is, in fact, a point in their favor. Still, I buy it in the sense that the Twins are the most likely team to challenge the Yankees, and the Yankees are most likely to lose a 5-gamer where Santana can start twice. So I hope the Tigers win the division. I don’t see the Yankees losing if they get out of the first round, as long as Rivera is healthy.

We Already Know Jonah Loves Melrose Place Anyway

[ 0 ] September 27, 2006 |

Shorter Jonah Goldberg: Remember, it’s not a lie…if you believe it.

I can’t decide what’s more incoherent; Goldberg in torture, or Reynolds on leaks. (Actually, in a way, Reynolds’ position on leaking is perfectly consistent: if it helps the political interests of the Bush administration, it’s great; if it doesn’t, everyone involved should be put in jail.)

Spineless

[ 0 ] September 27, 2006 |

Wow, Marty Peretz really is a piece of work. First, you get the Peretz attempt to be witty (“It is true that for a few years in recent times I have not bought French wines. But I did drink the ones I had in my cellar.” Yes, the publisher of a once-great liberal magazine engaged in a boycott by the likes of Bill O’Reilly. But don’t worry–that sewing machine money ensured that there was no actual sacrifice for his preening, thank God!) And then, jokes that are not merely lame even by the standards of chain emails that consist of gags written by Allan Thicke and rejected by Sinbad, but reflect a profound delusion on the part of the person who thinks they’re teh funny. Needless to say, where profound unfunniness and idiot politics meet, Dennis Miller is never far behind:

“What do you expect from a culture and a nation that exerted more of its national will fighting against Disney World and Big Macs than the Nazis?”

“The French will only agree to go to war when we’ve proven we’ve found truffles in Iraq.” –Dennis Miller

Ha-ha! Boy, those stupid Frogs, ignoring our ironclad evidence that Saddam Hussein represented a massive threat to our security! And clearly the hundreds tens (OK, OK) of thousands of French soldiers who died while the U.S. retained diplomatic relations with Nazi Germany were slaughtered not because of incompetence but because of a lack of will! It’s as funny as it is true! You have to admit, though, that despite the fears of The Editors Peretz’s blog really is reaching almost approaching Siegel for sheer trainwreckery.

How Wrong Was Glenn Reynolds?

[ 0 ] September 26, 2006 |

Heh. Indeed.

My favorite, I think, is this one. Yeah, those who claimed there would be a “quagmire” in which Iraq descended into civil war while huge numbers of troops remained in Iraq in 2006 with no end in sight sure look stupid now!

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