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QOTD

[ 11 ] September 21, 2008 |

Henley:

Who imagined that the great opportunity for joint progressive and libertarian advocacy and activism would end up being economic? But that’s where we are. This loathsome bailout plan is a slap in the face to anyone who believes in either free-market principles or social justice.

Indeed. “$700 billion of taxpayer money for your own piece of Glengarry Highlands Big Shitpile” should bring out the libertarian in anyone…

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Say No To Unconstrained Executive Branch Handouts To Big Business

[ 0 ] September 20, 2008 |

I’m convinced.

…see also. Or here. Or here. The proposal in current form is a joke.

False Equivalences

[ 16 ] September 19, 2008 |

As one would expect, Stuart Taylor’s article about the campaigns is a masterpiece of false equivalence, using such tricks as balancing lies and smears from John McCain’s campaign with stupid articles in the New York Times that the Obama campaign had nothing to do with. He also somehow gets through an article about campaign lies without mentioning McCain and Palin’s constantly repeated howlers about the “bridge to nowhere.” He approvingly cites Byron York’s defense of the McCain campaign’s claim that Obama “wanted to teach kindergartners about sex” while failing to notice that the “age-appropriate” proviso completely destroys York’s argument. But I especially enjoyed this one:

McCain also deserves criticism for the ugly culture-warring epitomized at the Republican convention by Rudy Giuliani’s keynote speech and sneers about Obama’s stint as a community organizer. But who started the culture-warring? Democratic talking heads and pols–although not Obama–heaped disdain on Palin’s social class, religion, and anti-abortion values from the moment that McCain plucked her from obscurity.

First of all, it’s a big country so I don’t want to say that there are no isolated examples of “Democratic talking heads and pols” disparaging Palin’s “social class” or “religion,” but Taylor really needs to provide evidence that such attacks were made with any frequency by people with any influence. Rather, this strawman has is used by Republican hacks precisely to insulate Palin from any substantive criticism. Which brings us to the next point — Taylor also arguing that it’s not legitimate to criticize Palin’s “anti-abortion values.” Palin is in favor of using state coercion to force women to carry pregnancies to term, and as president would have the power to appoint judges who would allow state governments and the federal government to do that. Since when is it beyond the bounds of acceptable discourse to discuss these views?

And, of course, there’s an even more risible argument — the idea that “culture war” attacks started with unamed attacks on poor Sarah Palin. Yes, no Republican operative or McCain campaign flack would ever dream of attacking Obama as an arugula-eating urban elitist who can’t bowl if some blog commenter somewhere hadn’t said something dumb about Palin’s family.

An Argument About Nothing

[ 16 ] September 19, 2008 |

On the issue of the citation of foreign law in United States Supreme Court opinions, I think this is the key passage in Adam Liptak’s recent article:

The controversy over the citation of foreign law in American courts is freighted with misconceptions. One is that the practice is somehow new or unusual. The other is that to cite such a decision is to be bound by it.

Even conservative scholars acknowledge that American judges have long cited decisions by foreign courts in their rulings. “The Supreme Court has been doing it for basically all of our history, and with some degree of gusto,” said Steven G. Calabresi, a law professor at Northwestern and a founder of the Federalist Society, a conservative legal group. Professor Calabresi said he generally opposed the citation of foreign law in constitutional cases.

Judicial citation or discussion of a foreign ruling does not, moreover, convert it into binding precedent.

So, first of all, the practice has been a banal one going back to at least the Marshall Court. And even more importantly — as even several of the conservatives working themselves into a foaming-at-the-mouth outrage about this banal practice seem to concede in the course of the article — the idea that references to foreign legal precedents actually affect Supreme Court holdings in any significant way is exceptionally implausible. Nobody’s vote in Roper would have changed if there was a norm against referring to the law in other nations. So who cares? In a nice article unfortunately not available for free online, Mark Tushnet correctly notes that this silly controversy is about the culture wars, not about law.

I think it’s also worth addressing this:

At their confirmation hearings, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. indicated that they were opposed to the citation of foreign law in constitutional cases. Chief Justice Roberts noted that foreign judges were not accountable to the American people and said that allowing the use of foreign precedent expanded judicial discretion.

“Foreign law, you can find anything you want,” Chief Justice Roberts said. “Looking at foreign law for support is like looking out over a crowd and picking out your friends.”

This argument (borrowed from Scalia) has the obvious problem that it’s equally applicable to any data source or method of interpretation. Certainly, it’s true of originalism: between the multiplicity of historical sources and the ability to define constitutional principles at different levels of abstraction a judge can virtually always identify friends which confirm her ex ante preferences, and in those rare occasions where this isn’t possible Scalia et al. will just ignore the evidence anyway. Scalia’s agrument that courts shouldn’t refer to legislative history has the same problems. Of course, legislative history can be misleading, but since this is true of any source of evidence it’s not clear why it’s useful to rely on a smaller number of potentially misleading sources of evidence.

Impetus For An Amendment?

[ 108 ] September 19, 2008 |

Yglesias, commenting on the stupid rule for resolving electoral college ties, notes that “there’s no good reason to wait until after something stupid happens to pass a constitutional amendment to change it.” This is true, but alas probably unrealistic. What I wonder is whether a scenario in which Obama loses the popular vote but wins the electoral college would actually create enough support for an amendment giving the U.S. an electoral system consistent with a 21st century democracy. It’s not as if it favors small states that much, but who knows. There is some precedent for amendments correcting the most obvious screw-ups in the system after they’re revealed, but they don’t clearly benefit the interests of a minority of states the way the electoral college does.

The bigger problem here, of course, is the onerous supermajority amendment requirements in Article V. In general, this hasn’t been as big an issue as it might because constitutional norms have evolved in ways that constitute de facto amendments. And in a sense the electoral college is no exception; starting 1800 a norm that the president should be popularly elected has been in effect, and make the electoral college replicate a democratic vote as closely as possible. But, as has been demonstrated in this decade these norms can’t fully close the gap, and the institution really ought to be abolished by constitutional amendment. Barring elections in close sucession in which a candidate from each party gets screwed, though, I don’t see it happening.

There’s A Lot of Incomptence There

[ 0 ] September 19, 2008 |

Dave Cameron asserts that the Bedard-for-pretty-much-every-decent-prospect-the-Mariners-have-recently-produced deal is “[i]n terms of results…easily the worst trade in franchise history.” As stated, I think this is clearly wrong. Jones had a pretty good year for his age and position, but there’s no way that in terms of results this trade has remotely approached Swift/Jackson/Burba for Mitchell or Slocumb for Varitek/Lowe in terms of negative value. Over time, Bavasi’s folly may prove even worse, but as of now to declare such an outcome is premature. Bavasi and his superiors are remarkably inept, but Woody Woodward really shot a lot of bricks in his own right.

If the argument is about the logic of the trade at the time, of course, the argument is more tenable.

Less Than Credible Witnesses

[ 6 ] September 19, 2008 |

Cole has the scoop on some of the soldiers who had engaged in self-righteous attacks on Scott Beauchamp. Apparently, the winger talking point that if a practice wasn’t consistent with SOP it therefore couldn’t have happened is even dumber than it was on its face, which I frankly didn’t think was possible…

Wallace Links

[ 0 ] September 18, 2008 |

A useful collection of writings (fiction and non-fiction) from the late David Foster Wallace available online. I particularly recommend “Tense Present” and his take on Updike.

Belated Recognition of the Obvious

[ 7 ] September 16, 2008 |

She’s been on a roll lately, but IB’s take on the new Richard Cohen column is one of her better lines:

He’s kinda like a kid who, upon discovering that there is no Santa Claus, attempts to locate the precise moment in time that Jolly St. Nick ceased to exist.

I suppose some people might be inclined to be charitable since he’s seen the light. But I’m inclined to simply agree with Brad DeLong, who correctly notes that “Richard Cohen’s fantasy McCain never existed–save in the mind of Richard Cohen, the journalist-as-puppy.” Everything unsavory about McCain’s current campaign, including the lying and flip-flops, were perfectly evident during the 2000 primaries. As Somerby recently put it:

For most of us, an obvious thought will come to mind when a person walks away from his stated principles; we’ll think he was perhaps pretending when he claimed these as his principles. In fact, McCain misstated the truth all through Campaign 2000, about George W. Bush and Al Gore. He had a major race-man running his South Carolina campaign; he made robo-calls about Bush in Michigan, then lied to the press corps about them. But the press corps was on this greatest saint’s side, and so they chose not to notice.

And precisely because of the bogus narrative of Saint McCain the press so carefully cultivated, these too-little-too-late departures from the Straight Talk Express are unfortunately unlikely to have much effect.

Everything is Feminism

[ 46 ] September 15, 2008 |

Cathy Young has an attempted feminist defense of Sarah Palin (endorsed, natch, by Ann Althouse.) The fundamental problem with the argument is that there’s no inherent value to having lots of people call themselves feminists, per se. The point is to get people to endorse feminist principles, and on this count Palin’s record is utterly dismal, at least the way most people would define feminism. Young and Althouse are welcome to try to argue that feminism can encompass forcing (poor) women to carry pregnancies to term, imposing a effective tax on rape victims, and interpreting laws in ways that make it easier for businesses to pay women less for the same work (even if your interpretation is manifestly contrary to the purpose of the statute and not compelled by its language.) But somehow I’m guessing most feminists aren’t going to find the Palin vision of feminist policy very attractive.

It’s also unclear in what way the pork-begging, culturally reactionary Palin in any way represents “can-do” feminism free from government assistance, as Young claims. Is it perhaps the substantial per diem she gets from the government to help her feed her family at home? Does it only count as government support if you aren’t already affluent?

Liars Without Shame

[ 3 ] September 15, 2008 |

What’s amazing about this is that I figured that McEvenWorse and Palin would at some point permanently change the “Bridge to Nowhere” howler to some technically accurate but grossly misleading formulation, like “I stopped the Bridge to Nowhere [but won’t tell you about my erstwhile strong support or the fact that I never opposed to building it with federal money].” But no — they’re happy to just keep telling outright lies about it. They probably think that the media will just drop the subject — and, alas, they’re probably right.

Get Over It

[ 0 ] September 15, 2008 |

I’ll have more on the general subject of the 2000 election because of a new book this week, but since I happened to catch the replay of Leslie Stahl’s puffball interview with Antonin Scalia today, I thought I’d mention this argument:

Gee, I really don’t wanna get into – I mean this is – get over it. It’s so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn’t even close. The vote was seven to two,” Scalia says.

Hmm. Roe v. Wade was a 7-2 opinion — and a real 7-2 opinion, not an opinion where two justices who were played for suckers articulated an actual equal protection argument and 5 justices (who got no other votes for any part of any of their opinions) invoked some sort of mysterious unspecified equal protection right that ended as soon as the justices’ candidate was safely ensconced in office — and indeed as Stevens pointed out its holding has now “been endorsed by all but 4 of the 17 Justices who have addressed the issue.” So I assume we can expect Scalia to just get over it and start joining opinions re-affirming Roe?

And while Stahl taking Scalia’s word that he is a consistent originalist at face value was inevitable, perhaps she could have asked Scalia for some of the sources he consulted to discover that the 14th Amendment was originally understood to require uniform recount standards?

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