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This Causal Chain Seems To Be Broken

[ 0 ] August 31, 2006 |

Shorter Ross Douthat: Frat boys would have never engaged in lewd, vulgar behavior or the sexual exploitation of women if it wasn’t for those meddling feminists and Milton scholars who drive fancy cars.

Roy offers an alternative bumper sticker.

The Death of Conservertarianism, Part the Umpteenth

[ 0 ] August 31, 2006 |

Glenn Greenwald has a good post about Richard Posner’s interview with fellow lapsed libertarian Glenn Reynolds and Helen Smith. I find Posner’s arguments troubling in many respects, although I would focus on slightly different aspects than Greenwald does. In fairness to Posner, he cannot be accused of a contradiction in advancing a flexible method of constitutional interpretation; he’s always been (or, at least, is when he’s not engaging in intemperate, tendentious attacks on justices who use his pragmatism to achieve different ideological ends–his attack on Douglas is pretty embarrassing given what he’s now arguing) an explicit advocate of pragmatic interpretation and has always disowned “originalism” and “judicial restraint.” Indeed, his essay “What Am I? A Potted Plant?” remains one of the better critiques of originalism, and while his defense of Bush v. Gore fails it’s the best of an admittedly awful field because he at least makes no pretense that the decision was compelled by text or precedent or consistent with the previous jurisprudence of the justices who authored or joined the opinion of the court. Greenwald is, of course, correct that Posner’s arguments are inconsistent with what Republican elites claim is their constitutional philosophy, but after Bush v. Gore I’m not willing to pretend that these claims are serious even for the purpose of knocking them down.

Even on its own terms, however, I think that his argument is problematic in numerous respects. The first problem, as Marty Lederman argues in detail, is that Posner’s defense of the President’s breaking of the FISA statute both stretches his flexible interpretation past the breaking point and completely contradicts the institutional arguments he’s making. A pragmatic legal approach is consistent with reading the Fourth Amendment very narrowly when construing FISA, but surely it cannot accommodate the ongoing violation of the laws of a coequal branch if pragmatism is to be a legal approach at all. And Posner cannot claim that Congress can act as a constraint on Presidential powers rather than the courts if he believes that the President can simply ignore Congressional constraints.

This leads us to the second problem, which is the amount of circularity that underlies his argument. Posner has a persistent problem with changing the premises of his cost-benefit analyses to reach politically conservative results, and this is no different. Reynolds says, correctly, that “what’s interesting is that Posner’s advocating a “more European” approach to national security powers.” But the problem, as Greenwald and Lederman say, is that for better or worse the United States Constitution establishes very different constitutional standards than France. Surely, this at a minimum this puts on the burden of proof on Posner to demonstrate that such a radical change in the constitutional order is necessary–but based on what we’ve seen of his arguments so far, all we have is multiple layers of question-begging. His argument is premised on a number of extremely questionable assumptions–that terrorism represents a threat of an order sufficiently different in kind from other threats of avoidable death that would surely not justify a substantial de facto revision of the Constitution, that it justifies emergency executive powers although it does not have the time boundaries of a typical military conflict, that these threats cannot be dealt with under the current system, that nearly arbitrary executive power is a more effective means of thwarting terrorism than a system of supervision and robust checks and balances, that expanded executive police powers can be easily cabined by invoking the vague term “national security”–that he makes little effort to defend. Perhaps he will in his book, but so far he hasn’t come close to meeting the high burden that would be necessary to justify his arguments. The skepticism that he applies to state power in other contexts simply vanishes here, despite the considerable scope of the expanded authority he’s arguing for.

Like Posner, I am a pragmatist. I happen to agree with Posner that Lincoln’s famous “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” argument is “unanswerable.” The problem–even leaving aside that while Lincoln asserted the right to initiate extraconstitutional powers during periods of genuine emergency, unlike Bush he never claimed these powers were unreguable–is that the situation that Bush faces is simply nothing like what Lincoln faced. There’s no existential threat, there’s no ongoing insurrection, and to strain the concept of “emergency powers” to apply five years after 9/11 with no subsequent attacks on American soil would be to render the qualification to executive power meaningless. It’s possible, I suppose, that the current conflict may justify an informal amendment to the Constitution, such as happened with respect to the powers of the federal government during the New Deal. But Posner has–pending his book–not made a remotely convincing argument that such changes are necessary. And I can’t imagine any argument that could justify the President violating acts of Congress five years after 9/11.

Conservertarianism Explained

[ 0 ] August 30, 2006 |

Les Nesman was a prophet. Admittedly, the post-9/11 version would involve the Patton side running over the Murrow side with a steamroller, but you can’t predict everything!

With a pointless Dylan list imminent, I should also note that you can knock Infidels all you like, but in its combination of Nice Guy (TM) ressentiment and paranoid hawkishness “Man of Peace” also anticipated the two great themes of the conservative blogosphere by decades!

Sex Discrimination and Supreme Court Clerks

[ 1 ] August 30, 2006 |

Jill points us to this Linda Greenhouse article about the decline in female clerks at the Supreme Court. While I concede Eugene Volokh’s point that you can’t read too much into a one-year decline, given that this is simply another data point in the long-term underrepresentation of women among Supreme Court clerks the larger questions about this remain outstanding, and as Jill says it’s exceptionally implausible to think that discrimination (whether direct or structural) isn’t playing a significant role. It’s worth noting that one explanation for why only 147% of Scalia’s clerks in the last 7 years have been women–”could not find enough conservative women to meet his test of ideological purity”–is problematic because if I understand correctly Scalia usually hires at least one liberal clerk. And it’s also worth noting, of course, that Scalia not only wrote a dissent expressing withering contempt for the idea that the equal protection clause could apply to gender discrimination (although the 14th Amendment is framed in general terms, it’s unclear why the 15th Amendment mentions race explicitly if the general protections of the 14th Amendment were publicly understood as applying only to race, and Scalia’s historical analysis doesn’t even rise to the level of being cursory in any case), but went out of his way to make clear that he was sympathetic to Virginia’s denial of a military education to women as a matter of policy. Is it unreasonable to think that his beliefs might affect his choice of Supreme Court clerks? At any rate, it’s simply doesn’t pass the straight face test to think that less than a half-century after Sandra Day O’Connor graduated third from her class at Stanford Law and was only offered secretarial jobs, and a quarter century after the Chief Justice expressed dismay about the possibility of the first woman being appointed to the Supreme Court, that these attitudes have completely vanished, or that the effects of long-term systematic discrimination have filtered out of the system after such a short time.

It’s also worth nothing the various ways that sex discrimination plays a role in the lack of women among Supreme Court clerks. Last month, Volokh suggested that women “might have more difficulty getting their husbands to move with them than men would have getting their wives to move with them (perhaps because the women’s spouses are more likely to have hard-to-move jobs than the men’s spouses)” and “might have more difficulty clerking, especially in a highly demanding clerkship, if they have children than comparable men would.” This is right, but of course this isn’t an alternative explanation to sexism–these practices constitute sexism. Justice Scalia has nine children–does anybody think that the responsibilities inherent in having a large family should have prevented him from being a prominent academic and judge? There’s nothing inevitable about women will the ability and training to be top-rank lawyers being forced to choose between family and careers; nothing about having a penis makes one incapable of caring for children.

A final note is that I don’t mean to suggest that there’s anything about being “conservative” per se that leads to sexism in choosing Supreme Court clerks. As you can see here, Thomas–who, I reiterate, is not a Scalia clone at all–has a pretty good record of hiring female clerks (and, conversely, the great liberal William Brennan was notoriously hostile to female clerks.)

Don’t Whine, Fight

[ 0 ] August 30, 2006 |

Big Number of Blogs Matt gets it exactly right:

This, I think we can assume, is the fall campaign. The idea is to psyche the Democrats out. To make them think they can’t win an argument about foreign policy. To make them act like they can’t win an argument about foreign policy. And to thereby demonstrate to the American people that even the Democrats themselves lack confidence in their own ability to handle these issues.

It’s essential that the debate be joined, and joined with confidence. Rumsfeld is a buffoon. A punchline. A well-known liar. He and his bosses — Bush and Cheney — are running around the country trying to cite the failures of their own policies as a reason to entrust them with additional authority in order to continue and intensify those same failings. We’re witnessing the bitter, bitter fruits of the Iraq War. Other nations learned that they must seek nuclear weapons as soon as possible to safeguard themselves from a newly trigger happy United States of America. Muslim opinion was sharply polarized against us. Iran and Syria were told that their cooperation against al-Qaeda was no longer needed because their governments would topple soon enough. A power vacuum was left on the streets of Baghdad that parties aligned with Iran have rushed to fill. The Arab-Israeli conflict was sidelined as something that would magically resolve itself once Saddam Hussein was out of the way. And America’s allies were taught that our government was not to be relied upon — that we operated with bad intelligence and initiated wars of choice without any real plans or ideas about how to cope with the aftermath.

That’s how we got here. By listening to Bush. By listening to Cheney. By listening to Rumsfeld. The idea that we should keep on listening to them is absurd.

Right. Complaining about “politicizing” the debate is silly, not only because it’s perfectly appropriate to “politicize” questions of foreign policy but because it’s inevitable. The Democrats faced legitimate difficulties in 2002 and 2004 because wars are generally popular in the beginning, but even that’s no longer the case. They have to hit back against this nonsense hard, and given the manifest failures of Bush’s policies it’s not as if there isn’t plenty of material. And I agree that this is a good start.

In related news, according to Thomas Ricks’ Fiasco Cheney gave this speech–which, in addition to virtually every word being a lie, all but committed the administration to an invasion or Iraq–without Bush’s advance knowledge.

The Self-Hatred of the Anti-Pluralist

[ 0 ] August 30, 2006 |

s.z., writing about Mark Steyn’s upcoming book, notes this curious argument from the jacket: “The future, as Steyn shows, belongs to the fecund and the confident. And the Islamists are both, while the West–wedded to a multiculturalism that undercuts its own confidence, a welfare state that nudges it toward sloth and self-indulgence, and a childlessness that consigns it to oblivion–is looking ever more like the ruins of a civilization.” You will recognize Steyn’s argument from the Cold War–in the 70s and early 80s, remember, neocons were convinced that the C.I.A was underestimating the strength of the crumbling Soviet Union. A common error of the jingoist is a paradoxical underestimation of the strength of liberalism as a political system. Henley:

Much of the rhetoric about “dhimmitude” confuses, out of cowardice or ambition, the inability to impose Western will on Muslim territories with the inability to resist Muslim aggression. Take the recently concluded (or paused, if you’re a pessimist) Israel-Hezbollah War. Actually, take the 1982-1990 Israel-Hezbollah War. In 1982 Israel went into Lebanon intending to impose a particular order in the country’s South. Hezbollah was able to frustrate that aim and, a couple of decades later, compel Israel to quit the country entirely. What it has always been unable to do, and remains unable to do, is to take and hold even an inch of Israeli territory for so much as a day.


The notion that the Islamic Way of War could achieve grandiose objectives, like imposing the much-feared “dhimmitude,” is just laughable. Forget for a moment that, if push comes to shove, we still have enormous stocks of conventional and nuclear weapons. There’s nothing inherently “Islamic” about TIWOW. Simply put, we could do it too if we had to.

This is quite right. Islamic terrorism is quite incapable–even with the formidable power of the graduate seminar–of creating a “spread of totalitarianism” that could get anywhere near liberal democratic states. Indeed, I think Henley concedes too much when he says that “The 3/11 atrocities in Spain were ambiguously successful in convincing Spain to quit Iraq.” Granting the “ambiguously” qualifier, the fact is that the Iraq war was extremely unpopular in Italy Spain [although the original was accurate!] prior to 3/11–its citizens apparently being rational enough to understand that installing an Islamic quasi-state in Iraq would not be an effective way of combating the legitimate problem of terrorist attacks. To the extent that 3/11 mattered, it was almost certainly because of the government’s dishonest attempt to pin the attack on Basque secessionists rather than some desire to engage in appeasement. At any rate, while terrorists are capable of inflicting isolated but horrific attacks, it’s equally clear that Al Qaeda’s goals are utterly unachievable. Liberal democracy, with its recognition of the fact of pluralism, is in fact a considerably more robust system of government than authoritarianism.

Trashing the Wrong Compact

[ 0 ] August 29, 2006 |

I’m a little leery of the California compact to give its electoral college votes to the winner of the popular vote, not because of principle but because of my distrust of unilateral disarmament. Still, if this is what it takes to undermine the electoral college–and indefensible institution that (unlike, say judicial review) is an element of American constitutionalism was been highly uninfluential among other liberal democracies, for the obvious reason that it’s an irrational, anti-democratic institution–perhaps it’s worthwhile.

Pierre DuPont, conversely, tries to actually defend the electoral college itself. He starts off with a classic idiot-right talking point: “In 2000 Al Gore won 677 counties and George Bush 2,434, but Mr. Gore received more total votes.” Your point being? “Legislators,” as Justice Warren reminds us, “represent people, not trees or acres.” There’s a spurious argument about election fraud–whew, thankfully the current system prevents the possibility of a contested election decided by a lawless, hyper-partisan Supreme Court, and has been free of electoral fraud throughout its history! But really ridiculous is his claim that using a rational system would narrow the scope of the election: “Rural states like Maine, with its 740,000 votes in 2004, wouldn’t matter much compared with New York’s 7.4 million or California’s 12.4 million votes.” Pierre, I hate to tell you, but Maine doesn’t matter now, and nor do small states like Wyoming or Utah or Vermont or Mississippi, because the outcome of Presidential elections in those states is not in question. Our current system is the one that encourages a focus on a small number of states; and the salient characteristic these states have is not that they’re rural, but that they’re close–Florida gets far more attention from Presidential campaigns than Nebraska. Getting rid of the electoral college would significantly broaden electoral campaigns by making it rational for candidates to campaign in states where they can’t get a majority. It’s true that most small states will still not be the central focus of such campaigns, but their gross overrepresentation in the Senate will surely be a nice consolation.

Anyway, it’s useful to remember why conservatives actually like the electoral college: it’s indefensible, but it produces substantive results they like because it overrepresents small Southern states. Not surprisingly, since it was designed to protect the South’s peculiar institution. As Paul Fikelman says, while the issue of protecting small states “never came up” during election debates, slavery and the protection of the evil “compact” of sectional balance necessary to protect it certainly did:

How did the United States come up with such a crazy way to elect a president? The electoral college system seems to make no sense. It is quite undemocratic. The tiny states have proportionally more power then the larger states. In addition, the winner-take-all process makes voting seem meaningless in many states. As the 2000 election demonstrated, having more popular votes than your opponent does not guarantee that the candidate will win the election. This only reconfirmed what the nation learned in 1824, 1888, and probably 1800.

The system seems to be unique in the United States – applying only to the presidential election – and unique to the United States. I know of no western or industrialized democracy that uses such a system. As far as I know, the presidency is the only elected office in the United States in which the person with the most votes in the final election does not necessarily win…


This lack of discussion of slavery by scholars of the electoral college is surprising, because the records of the Convention show that in fact the connection between slavery and the college was deliberate, and very much on the minds of many delegates, including James Madison. Before turning to a more thorough examination the role of slavery in the creation of the electoral college, it is necessary to first consider the more common explanations for this system of electing presidents.


In order to guarantee that the nonvoting slaves could nevertheless influence the presidential election, Madison favored the creation of the electoral college. Hugh Williamson of North Carolina was more open about the reasons for southern opposition to a popular election of the president. He noted that under a direct election of the president, Virginia would not be able to elect her leaders president because “her slaves will have no suffrage.” The same of course would be true for the rest of the South.

The Convention quickly moved to accept the idea of an electoral college, following the lead of Ellsworth, from the North, and Madison and Williamson, from the South. This sectional balance is revealing. Ellsworth almost always voted with the South on slavery-related matters, and the agreement here seems part of the same New England-Deep South coalition that led to the Slave Trade clause. The Convention tied presidential electors to representation in Congress. By this time the Convention had already agreed to count slaves for representation under the three-fifths compromise, counting five slaves as equal to three free people in order to increase the South’s representation in Congress. Thus, in electing the president the political power southerners gained from owning slaves (although obviously not the votes of slaves) would be factored into the electoral votes of each state. Paul Finkelman, “The Proslavery Origins of the Electoral College,” 23 Cardozo L. Rev. 1145.

The electoral college cannot be defended in democratic terms. It was put in place to overrepresent the votes of property-holding white males in the south, and it continues to perform this function. The electoral college, then, is not only anti-democratic on its face but looks even worse if you use a definition of democracy that takes substantive equality or reducing illegitimate hierarchies into account. (Which is why reactionaries like it so much.) To the extent that states do what they can within the Constitution to mitigate this appalling feature of the Constitution, they’re on the side of the angels.

…a commenter notes that the California system doesn’t go into effect until enough other states do it, so the unlitareal disarmament objection is largely inoperative. Rob also notes DuPont’s claim that abolishing the college would lead to a crazy new party system, which is about as likely to happen as it is at the state level (i.e. not at all.)

Katrina Y+1

[ 0 ] August 29, 2006 |

Speaking of Spike Lee, the parts of his Katrina doc I saw suggest a first-rate piece of work, and the whole thing will air Tuesday evening. As far is the blogospheric reaction, Shakes has everything you need.

Sure, She Hate Me Sucked, But It’s Not Like He Wrote Scenes From A Mall Or Anything

[ 0 ] August 29, 2006 |

Hackery just doesn’t get much more hackish than Roger L. Simon. This is the kind of thing that happens when you don’t actually care about movies, but just like using them as a pretext to share various half-cooked reactionary bromides.

Acting and The Wire

[ 0 ] August 28, 2006 |

Although I don’t fully agree, I think ogged has a point about acting and The Wire. It’s a really, really, outstanding show, and getting better too. But part of me does wish that Simon had been able to do Homicide on HBO. Particularly in the first season, when you compare McNaulty and Pembleton you have to notice that while the latter character is one of the greatest in TV history the former is a pretty stale cliche, and one also notices that Dominic West ain’t Andre Braugher. (Of course, The Wire doesn’t rely on a central police character either, but that’s only partial mitigation.) So, myself, I still say that while The Wire towers over anything on network TV, it’s also not as good as Season 1-5 of The Sopranos; the fact that the latter is more immediately compelling, more likely to convert the unconverted, is actually related to aesthetic strengths, not a reflection of bad compromises. (Part of what’s going on, I think, is like what Bill James says about great teams; you can’t write a book saying the ’27 Yankees were the best team ever because it’s not surprising, and you can’t write a book saying they weren’t because they were. The Sopranos, being the first great HBO drama, has been so widely praised to say that it’s the best show the medium has ever produced isn’t an interesting argument; nonetheless, it happens to be right, although The Wire and Deadwood are in a similar general class. The Wire has a stronger case because it’s different and innovative in a lot of ways. But still, The Sopranos is at least as well-written, and generally has better acting and direction, and is also funnier than most comedies.)

With respect to whether The Wire‘s reliance on amateur actors hurts it at the Emmys, I would simply note that apparently Kiefer Sutherland–Kiefer Sutherland!won the Emmy for “best actor.” I feel pretty confident in arguing that The Wire‘s ultimately minor aesthetic flaws have nothing to do with its failure to win an Emmy…

Plan B: Sober Second Thoughts

[ 0 ] August 28, 2006 |

My reaction to the decision to make Plan B available over-the-counter to women over the age of 18 was positive. And, in a sense, it still is; the current policy is preferable to the status quo ante. I feel like Stevens in Casey: “The portions of the Court’s opinion that I have joined are more important than those with which I disagree.” Casey was, on its own merits, a serious setback; not only did it overrule the crucial protections of Akron, it was also something of a jurisprudential disaster, creating a standard that gave virtually no guidance to lower courts and legislatures and also failing to defend it convincingly. Nonetheless, given the personnel on the court it was also victory, because it was the best result viable under the circumstances, and the same is true of the FDA as long as Bush remains in office.

Still, as ema notes in detail here, it must also be noted that the exclusion of women under 18 is a ridiculous decision: “There is no more medical justification to restrict Plan B sales to women 18 and older, than it is for sales of the drug to be restricted to males only.” And it’s not merely that the exclusion of women under 18 has no medical justification. Just like the irrational “reasonable” regulations of abortion rights favored by so many legislators, it increases the burdens on the class of women who are already burdened the most. Women under 18 are more likely to have difficulty acquiring a prescription, and the consequences of an unwanted pregnancy are on balance more severe for these women. The FDA’s decision was an important first step, but this irrational and counterproductive rule should be amended as soon as the Democrats re-take the White House.

Amanda has more.

Did Welfare Reform Work?

[ 0 ] August 28, 2006 |

Great post by Brad Plumer on the subject of the 1996 welfare reform bill. The key point is that most assertions that welfare reform has “worked” reference nothing more than the fact that fewer people on welfare. And as Brad notes, this is just a tautology; fewer people receiving welfare benefits isn’t a test of whether the policy worked; it was the policy. It’s like saying that the Medicare drug plan “worked” because, in fact, more government money went to pharmaceutical companies. The meaningful test is whether the policy was better for poor people, and as Brad notes on that score the evidence that the reform has been effective is scant-to-nonexistent: even people who got jobs aren’t making more money on average, poverty rates have stayed the same despite considerable economic growth, and children aren’t faring noticeably better either. While it may have been a political success, as policy while it hasn’t been catastrophic it also hasn’t been effective.

His punchline is worth quoting as well:

Many liberals will say that welfare reform can and will be a stunning success story if only we increase the Earned-Income Tax Credit and raise the minimum wage and provide heaps more funds for child care and heaps more money for job-training and so on. Well, no kidding. Cup Noodle makes a great meal if it comes with a side of steak. If people are going to be forced to work then the government should make work pay. If society isn’t willing to do this, then cash assistance is the way to go.

It may be that indirect subsidies and tax credits are more viable politically than welfare payments, and perhaps they’re even better policy. But welfare reform won’t be effective until the government gets more serious about providing the funds.

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