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"If angels were to govern men, neither external nor internal controls on government would be necessary."

[ 0 ] August 8, 2007 |

Benjamin Wittes urges Alberto Gonzales to resign “to make possible a serious discussion of the future of FISA.” I think — at least in a fantasy world in which Congressional Democrats didn’t live in a permanent fetal-position defensive crouch on foreign policy and civil liberties issue — something like the opposite is true. As awful as his ongoing presence in office is in every other respect, Gonzales is serving a salutary purpose: a reminder that arbitrary executive power cannot be limited to wise, virtuous, and self-abnegating leaders but will sometimes be in the hands of people like Alberto Gonzales and George Bush. If you don’t want to give Gonzales de facto unlimited powers to engage in warrantless surveillance of any communication allegedly involving one individual outside the United States, then you shouldn’t give it to anybody. To respond that grants of arbitrary power would work more effectively with better people in office is no response at all unless a way of inserting a “only when there’s an administration we like” proviso, and certainly the United States Constitution is not based on the premise that the executive does its best work when exempted from any scrutiny from other institutions. Indeed, this of course goes beyond Gonzales — I wouldn’t want a Clinton or Obama administration to have these powers earlier.

Having said that, it’s not clear exactly what harm Gonzales is doing to Wittes’s objectives, given that (as he concedes) the Dems gave Bush everything they wanted anyway. You would have to be extraordinarily optimistic to think that the legislation will improve (from an anti-arbitrary power perspective) after it sunsets during a presidential election year.

Dahlia Lithwick has more.

756, Hold the Asterisk

[ 0 ] August 8, 2007 |

Yglesias proclaims all-time HR leader Barry Bonds “the greatest offensive player in the history of baseball.” I don’t actually think that this is true. Ruth and Williams, as you can see, have decisively higher EQAs, and I think any good offensive metric will show the same thing. You can still make a case for Bonds — because of Ruth’s first career as a pitcher and Williams’s military service, Bonds has a longer career, and his 02-04 peak is almost certainly the highest level of offensive performance ever reached. But overall, I still have to rank Bonds slightly below Ruth and Williams as a hitter. (Bonds was certainly a better all-around player than Williams, and clearly remains behind Ruth, given that the latter was at least comparable offersively and also a great pitcher.)

Of course, the other case for Bonds is that because it’s harder to dominate modern baseball than baseball in the 20s or 40s he should be moved ahead. I can’t argue with that; at some level, these discussions rest on unfalsifiable assumptions about the quality of play. But in terms of dominance of their era, I would still rank Bonds slightly behind Ruth and Williams.

Only 100?

[ 0 ] August 7, 2007 |

Otherwise, this is clearly the greatest list in the noble history of list-making. [Via Ze Editors.]


[ 0 ] August 7, 2007 |

Even without the picture, I think the title alone would justify a link

"This way of thinking reflects ancient notions about women’s place…under the Constitution–ideas that have long since been discredited."

[ 0 ] August 7, 2007 |

Kathryn Jean Lopez essays the “my unprincipled positions on abortion are defensible because women are passive victims who cannot be held morally responsible for their actions” routine. I’ve recently explained why no “pro-life” position that punishes doctors but not women can be defensible, and see Jill Filipovic as well. But let’s look at some of her other contributions. First, we get the “overturning Roe is no big deal” evasion:

In reality, the Supreme Court, if it overturned the landmark decision, would put the abortion decision in the hands of the people, where it should have been all along. Federalism will reign, as each state will decide for itself what to do.

Sadly, no,
and it’s especially absurd to claim this given that the Supreme Court just upheld a federal ban on an abortion procedure. Moreover, “leaving it to the states” makes no sense given Lopez’s moral premises, not only because it’s ridiculous to consider a fetus human life in Mississippi but to have this status disappear entirely when the future mother gets on a plane to New York, but the availability in abortion in some state would mean that you’re just banning abortion for women who can’t afford to travel, which makes no sense at all.

History suggests that when tough anti-abortion laws exist, desperate women aren’t rushed to the slammer. If you don’t trust whack-job pro-lifers like me, look at the historical record. Abortion was illegal in the United States prior to the Supreme Court’s 1973 ruling, and women weren’t being rushed to jail in droves for seeking abortions. Women weren’t prosecuted because the law generally wasn’t after them to begin with.

It’s nice to see an anti-choicer actually discuss abortion on the ground, and the historical claim here is correct — women were often not even formally covered under abortion laws, many of which were written in the late 19th century and embodied those conceptions of gender relations, and abortion laws were sporadically and arbitrarily enforced. (What she doesn’t mention is that it was also difficult to get convictions of doctors unless a the abortion was botched.) What’s bizarre is that she seems to think that the egregiously arbitrary and inequitable enforcement of abortion laws is a point in their favor, when of course it fatally undermines both the normative and empirical case for abortion criminalization. What Lopez is practically advocating, combining her two arguments, is our old friend abortion-on-demand for affluent urban women and more dangerous black market abortions or self-abortions for poor women. This is a ridiculous position no matter what your underlying moral position on abortion, and one completely inconsistent with basic democratic principles.

But wait — why shouldn’t women be punished? Well, you knew this was coming — Lopez wants to see women in the same way the law saw women when the Texas abortion law struck down in Roe was enacted:

What people who ask this question fail to understand is what most abortion opponents actually want — to stop the additional victimization of women. They already are victimized by abortion. Women are often pressured into it by desperate circumstances and suffer in silence for years after their decision.

Women shouldn’t be punished, apparently, because they should be treated like infants. As soon as Lopez applies the odd new conservative principle that people who are in “desperate circumstances” cannot be criminally held responsible for their actions across the board — which I think means that we can shut down about 90% of our jails and repeal most of our criminal laws — I will take her arguments (which are the arguments of the mainstream American forced pregnancy for poor women lobby) seriously. Until then, not so much.

[Also at Feministe.]

If Hating This Is Wrong, I Don’t Want Be Right

[ 0 ] August 7, 2007 |

Negging,” ugh. What I don’t get, though, is how would can get any action while calling yourself a practitioner of the “Venusian Arts.” I mean, I would think that asshole plus wanker would be a deadly combination, but apparently they have their own market (and, obviously, it’s probably not to hard to think of examples.)

The Story That Won’t Die

[ 0 ] August 7, 2007 |

I really don’t know what to think at this point. Jim is certainly right so note that “you can bet that the people who insisted that TNR provide receipts for every one of Beauchamp’s claims won’t be demanding that the military recount the exact circumstances leading to his recantation,” and even if the recantation is true the larger point remains that whether this story is true or false is of no political consequence whatsoever, so I can’t say I’ll be waiting on pins and needles find out. See also Cole.

"What About 9/11"?!?!?!

[ 0 ] August 6, 2007 |

So I watched the video, had a great idea for a post, but then I scrolled down and saw that Matt beat me to Romney’s non-sequitur response to Ron Paul’s point that the people telling us that leaving Iraq will be a catastrophe are the same idiots who told us that we’d be out in three months and the war would be funded by Iraqi oil revenues:

The best part of the clip, though, is when Mitt Romney interrupts with the nonsensical question “has he forgotten 9/11?” I’m not sure anything better sums up the vacuity of conventional present-day conservative thinking about national security than that intervention: the presumption that, somehow, endless invocations of that horrible crime will justify anything at all, no matter how unrelated, how pointless, or how counterproductive it may be.

Right. Basically, this the Ann Althouse school of foreign policy; any military action that follows 9/11 is ipso facto justified by 9/11 irrespective of whether there’s any rational connection between the two, and anyone who criticizes any American action is forgetting about 9/11. But it’s a lot scarier coming from the GOP frontrunner than from a blogger who doesn’t actually know anything about foreign policy.


[ 0 ] August 6, 2007 |

I’m not sure if the new Temperance League has cleared this record for public consumption, but congrats to Tom Glavine. It’s a little bittersweet, given how many of those involved throttling the Expos, but it’s always a remarkable accomplishment.

Speaking of the new TL, one of our readers claims in my refusal to join the War on Steroids: “[y]ou are simply indifferent to the labor conditions of athletes. It’s a bit at odds with your other political positions but, hey, no need for moralism.” A couple points:

  • The players have a very strong, high-leverage, powerful union. Moreover, it’s not as if they’re fighting for testing and management won’t give it to them; rather, management wants more testing. The argument, in other words, seems to require an attribution of false consciousness of the kind I usually reject, and professional athletes aren’t in a sitation comparable to other kinds of workers that justify other forms of workplace regulations. And, by the way, is mandatory drug testing by corporations now a “progressive” value? If so, I’ll happily sign up with the libertarians on this one.
  • If this is really about public health, and not The Sanctity of The Game or whatever, I have a more efficacious proposal: ban the NFL altogether. Once we’ve done that, I will accept that these claims are serious and we can get to the less important problem of getting hysterical about steroids in baseball.

Rights For Sale

[ 0 ] August 5, 2007 |

Brad Plumer has a discussion of requirements that welfare recipients in San Diego submit to warrantless searches of their homes. This kind of policy presents one of the thorniest problems in constitutional law. As some of you will know, the Supreme Court upheld such policies in 1971, and given that the three dissenters were liberals (Douglas, Brennan, Marshall) of the kind nowhere to be found on the current Court, this certainly isn’t going to change anytime soon. Intuitively, one can see the distinction between warrantless searches as a condition of receiving government funds and warrantless searches conducted through more direct compulsion. Still, in the context of the modern regulatory state this seems problematic. As Douglas put it in dissent:

In 1969 roughly 127 billion dollars were spent by the federal, state, and local governments on “social welfare. To farmers alone almost four billion dollars were paid, in part for not growing certain crops. Almost 129,000 farmers received $5,000 or more, their total benefits exceeding $1,450,000,000. Those payments were in some instances very large, a few running a million or more a year. But the majority were payments under $5,000 each.

Yet almost every beneficiary whether rich or poor, rural or urban, has a “house” – one of the places protected by the Fourth Amendment against “unreasonable searches and seizures.” The question in this case is whether receipt of largesse from the government makes the home of the beneficiary subject to access by an inspector of the agency of oversight, even though the beneficiary objects to the intrusion and even though the Fourth Amendment’s procedure for access to one’s house or home is not followed. The penalty here is not, of course, invasion of the privacy of Barbara James, only her loss of federal or state largesse.

That, however, is merely rephrasing the problem. Whatever the semantics, the central question is whether the government by force of its largesse has the power to “buy up” rights guaranteed by the Constitution. But for the assertion of her constitutional right, Barbara James in this case would have received the welfare benefit.

Or as Brad puts it, “farmers receiving agriculture subsidies or companies getting tax breaks don’t have to subject themselves to unannounced raids.” If waiving one’s Fourth Amendment rights based on the receipt of government funds were applied outside of the impoverished, most people would instantly see the problem. Given the number of people who benefit from some kinds of government subsidy, the government could simply abrogate the Bill or Rights through its spending power. This can’t be right. And whether or not its unconstitutional, certainly these kinds of searches without cause are bad policy, for the same reasons. As soon as executives at Archer Daniels Midland agree to waive their Fourth Amendment rights, we can start talking about welfare recipients.

And needless to say, the First Amendment can be implicated by these types of policies as much as the Fourth.

Spendifying I Don’t Like

[ 0 ] August 5, 2007 |

There are some obvious problems with, as part of the silly “Porkbusters” project, blaming “pork” for the collapse of the bridge in Minneapolis. But the most obvious is that providing funding for local bridge repair projects is exactly the kind of spending generally referred to a “pork” or an “earmark.” To set up an opposition between “infrastructure projects” and “pork” is just bizarre; most of the former will also be examples of the latter — they’re local projects that benefit local constituencies, even if some are also in the national interest. And as far as definitions of “pork” go, contrasts between “shiny new” projects and “unglamorous” repairs are neither here nor there; sometimes strengthening infrastructure will involve new projects, and funding local repairs is no less “pork” than funding local new bridges.

Which, of course, illustrates why the whole “Porkbusters” thing is useless. To have a generalized opposition to “earmarks” makes no sense, and if all you mean is “we shouldn’t spend money on bad projects” this is nothing but a banality that breaks down on inherently ideological questions of what spending should be prioritized, and for these questions whether spending is national or local is beside the point. If we’re skimping on badly needed infrastructure repair because of spending elsewhere, the trillion or 2 we’re spending to install an Islamist quasi-state and terrorist haven in Iraq is an infinitely bigger problem then throwing a few bucks at local museums.


[ 0 ] August 5, 2007 |

Although Matt is wrong about baseball he is right about Bonds. I’ve avoided writing about steroids because my position is “who gives a shit?” Even leaving aside the fact that nobody knows how much they improve performance in a complex, multi-dimensional sport in which skill and craft are more relevant than brute endurance (especially since pitchers can also use them), they’re a condition of the time, like improved training, nutrition, video technology, etc. etc. Claims that he’s a “cheater” are transparently specious given that to be “cheating” you have to, you know, be violating actual rules of baseball. (And if the argument is that he was violating non-baseball laws, I’ll listen to this as soon as the arguer advocates kicking Mickey Mantle and every other player who took amphetamines out of the Hall of Fame.) And it seems worth noting that even before he was accused of using steroids Bonds was a better player than Aaron was.

Once one boils off the moralism — whether motivated by a strange idea of “natural” athleticism that is obviously inappropriate to modern sports, an obsession with the Potemkin “amateurism” of the Olympics, or whatever — steroids are a straightforward question of collective action. If baseball players, or athletes in other sports, decide that they don’t want to take the health risks associated with steroids, it’s fine to ban them so users don’t get an unfair advantage. If they don’t care, neither do I; it’s their bodies and careers. There’s really nothing else to it.

Rob Neyer is correct that Ruth remains the greatest of all time, however.

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