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Category: General

Funding The Drone Wars

[ 5 ] January 7, 2011 |

Via Jason Sigger’s comment feed in response to Rob’s rant about progressive defense policy, Dick Destiny draws our attention to an interesting comparison:

For 2011, “[more] than $2 billion will be used to purchase unmanned aerial vehicles, or drones, which the Obama administration has used increasingly over the past year to target suspected terrorist hideouts in Afghanistan and Pakistan,” stated a news report from TruthOut, published way back in February.

By contrast, the FDA — which handles food and drug consumer protections for the entire United States – is requesting $4.03 billion to “Transform Food Safety System, Invest in Medical Product Safety, [and provide] Regulatory Science.”

As a thought exercise consider that General Atomics and US manufacturing of killer drones sops up at least half, maybe more, than an important domestic US regulatory agency spends for the betterment, health and welfare of society.

General Atomics employs 5,000 people. The FDA, by contrast, employs a bit over twice that.

As another thought exercise, consider that a domestic arms manufacturer of flying killer robots and very little else is now half the size of the regulatory agency for food and drugs in allegedly the foremost of western nations.

Aside from the fact that remotely piloted drones are not actually “robots,” this does put things in perspective.

The Essential Meaningless of the “Original Intent/Original Meaning” Distinction

[ 36 ] January 6, 2011 |

In my experience, almost any discussion (including this one) of “originalism,” somebody will bring up a distinction between “original intent” and “original meaning.” This argument was made prominently in Robert Bork’s The Tempting of America, and at least since then originalists have generally try to argue that they believe in the latter rather than the former. On its face, the distinction makes sense — it’s more plausible to say that we’re bound by what the framers and ratifiers of constitutional provisions wrote than what they subjectively expected. But it seems to me that — obviously unserious arguments like Steve King’s “no matter what’s in the Constitution it couldn’t apply to Mexicans” aside — it’s a distinction largely without a difference. Not only does “original meaning” not really solve any of the problems of originalism (most prominently, indeterminacy and normative unattractiveness), it essentially relies on the same kinds of evidence.

As it happens, for another of the series of papers I’m doing with djw about judicial review and democratic theory, I’ve been reading Randy Barnett’s Restoring the Lost Constitution. In the book, Barnett not only makes a case for the importance of the distinction but presents it explicitly as a road-to-Damascus story: he had always rejected originalism, but once he understood it to mean “public meanings” rather than “original intent,” he became a convert. Despite this, it’s not really clear what methodological differences are involved. For the most part, to determine the meaning of constitutional provisions Barnett uses the same sources — the Federalist, statements of prominent framers, etc. — that you would use if you were trying to determine original “intent” rather than “meaning.” And when you get down to cases, such evidence is almost never sufficient to establish a genuine widely shared “public meaning” that could be useful in resolving a constitutional dispute of any interest.

To take an example, let’s consider a case where I’m sympathetic to Barnett’s bottom line — his discussion of the Privileges or Immunities clause of the 14th Amendment. Like me and most other people who have considered the issue today, Barnett finds the reasoning of the majority opinion in the Slaughterhouse Cases — which permanently gutted the provision — unpersuasive. In addition, Barnett argues that Miller’s majority opinion “set aside” the original meaning of the clause. (p. 195) What is the evidence for this? Barnett relies heavily on the statements of John Bingham (of Ohio, not New York as Barnett claims), the amendment’s primary author, and also refers to more general claims about the intent of Congress from the dissenting opinions.   If we’re talking about “public meaning,” though, this evidence is inadequate.  If we are bound by meanings rather than intent, Bingham’s statements mean little absent evidence that they were almost universally shared by the many other federal and state legislators who voted to ratify the amendments, as well as the public at large. Barnett does not provide this evidence, and he also doesn’t confront the extensive evidence presented in the ur-text of originalism (Berger’s Government By Judiciary) that Bingham’s sentiments were largely anomalous even among members of Congress. Bingham’s evaluation of the 14th Amendment is more attractive to both Barnett and myself, but no member of Congress can establish a “public meaning,” and if anything Bingham’s interpretation of the implications of the text he wrote is a minority one.

Indeed, I would argue that the claim that the Slaughterhouse Cases set aside the “original meaning” is virtually self-refuting. If the decision had been rendered by a Court dominated by Southern Democrats decades after the fact, that would be one thing. But the holding was the product of a Republican-dominated Court less than a decade after the 14th Amendment was ratified. (The Lincoln and Grant appointees split 4-4, with the lone Democratic holdover providing the margin for the majority.) The closely divided Court provides definitive evidence that there was no authoritative “original meaning” of the Privileges or Immunities clause. The broad language of the amendment concealed sharp divisions within even the dominant governing coalition of the time.

So, essentially, I think the “original meaning” has the same problems in practice as any other form of originalism — the evidence presented is almost always selective and inconclusive, it does little to constrain judges, and to the extent that it does provide a constraint it leads to outcomes that most will consider normatively unacceptable.

Prop 8 and Standing

[ 34 ] January 6, 2011 |

This is an interesting and perhaps unintended consequence of the legal challenge against California’s Proposition 8.  The 9th Circuit panel considering the appeal to Prop 8′s (un)constitutionality sent (part of) the case back to the California Supreme Court to determine who has standing under California law to defend a state law.  As neither the (then) governor nor the (then) attorney general of California appealed the federal district court ruling striking down Proposition 8, it’s an open question.  If the state refuses to defend its own law, and private citizens lack standing, then the law is struck down by default.

Although I fake it at times in class, I’m not a constitutional (or legal) scholar, so I’ll direct interested parties here for a detailed discussion on the standing issue.  Approaching this question from an institutional and electoral (direct democracy) perspective, I see some troubling precedents in this case.  While I can speak for my fellow LGM authors in suggesting that the blog (and the vast majority of our readers) is opposed to Proposition 8 as policy, this is a procedural / institutional question, not an outcomes question.  If the state can effectively veto “any voter initiative by not defending the state’s voter initiated law in court”, to quote my colleague Todd Donovan, what prevents a Republican-run state (i.e. the governor, attorney general, etc.) from effectively vetoing a progressive initiative voted into law by the electorate?

Jessica Levinson in the above-cited HuffPost article suggests that this might not be a problem:

Is that a problem? Maybe not. The judiciary stands as an important check against the majority. The judicial branch is designed as a break against decisions by the majority that can harm minorities. The judiciary is in many ways the last stop on the train to tyranny of the majority.

I’m partially sympathetic to the reasoning, but not to the ultimate implication.  Yes, the judiciary is central in defending the rights of the minority against the tyranny of the majority, and in applying constitutional oversight (of course now that we have the Republicans running the House, we can do away with the judiciary altogether).  However, I’m of a mind that for these cases to be effectively decided, the majority ought to be represented.  As a citizen initiative approved by the electorate becomes state law, it is incumbent upon the state to defend said law in court.

The alternative is to allow private groups, with interests more narrowly defined than the state interest, standing in such cases, and I’m not entirely comfortable with that.  Yet our system has more than enough veto points designed into it that I suspect we really don’t need another.


Least. Surprising. Fraud. Ever.

[ 17 ] January 6, 2011 |

This is Noon’s department, but any last shred of “scientific” justification for the autism/vaccine connection is dead:

The first study to link a childhood vaccine to autism was based on doctored information about the children involved, according to a new report on the widely discredited research.

The conclusions of the 1998 paper by Andrew Wakefield and colleagues was renounced by 10 of its 13 authors and later retracted by the medical journal Lancet, where it was published. Still, the suggestion the MMR shot was connected to autism spooked parents worldwide and immunization rates for measles, mumps and rubella have never fully recovered.

A new examination found, by comparing the reported diagnoses in the paper to hospital records, that Wakefield and colleagues altered facts about patients in their study.

The analysis, by British journalist Brian Deer, found that despite the claim in Wakefield’s paper that the 12 children studied were normal until they had the MMR shot, five had previously documented developmental problems. Deer also found that all the cases were somehow misrepresented when he compared data from medical records and the children’s parents.

Maybe Oprah can give more publicity to Jenny McCarthy so that illnesses and death can increase among children for no reason whatsover.

ADDED (from davenoon):  Predictably, David Gorski has the best run-down of Brian Deer’s article (available in all its gory detail here) and the unsurprising tantrums from those who continue to believe that vaccines are somehow responsible for causing autism. One point that should be added to all the commentary is that Richard Horton, chief editor of The Lancet, ought once again to don the hairshirt for publishing Wakefield’s small, inconclusive case series in the first place. Horton had admitted over the years that he and the journal were “deceived” by the study’s lead author, and obviously The Lancet formally withdrew the paper in February 2010, three months before Wakefield’s name was deleted from the UK’s medical register.

But the original decision to publish the piece — a decision that Horton has always defended — was enormously irresponsible on its own terms. The paper’s science was suspect at the time, long before Brian Deer exposed (in 2004) the seedy context in which the research was conducted. In the wake of Horton’s decision to publish, medical researchers assailed The Lancet, in disbelief that such nonsense would be offered the light of day. Not only that, but Wakefield’s only scholarly claim to fame at the time was having been part of a team that had already whiffed on measles research. Several years before the 1998 paper, Wakefield and several colleagues had published preliminary work suggesting that measles and/or measles vaccination were responsible for Crohn’s Disease. Although they received a great deal of press coverage (thanks in part to Wakefield’s own self-promotional acumen) these two studies failed, nevertheless, to find subsequent support. This vital piece of contextual detail — namely, that Wakefield had signed on to goofy and invalidated measles/vaccination theories before — would have been known by Horton at the time. Indeed, in December 1998 (ten months after his Lancet piece), Wakefield and his fellow researchers had to concede that their research on measles and inflammatory bowel disease was — well — an enormous load of shit.

So yes, it’s another bad day for Andrew Wakefield — which means that it’s a good day for every reasonable thinking person on the planet. But we can’t omit the enablers (who should have known better) who made all of this possible.

Actually, We Don’t Know How Many Civilians Are Dying in Drone Strikes.

[ 6 ] January 6, 2011 |

Peter Bergen and Katherine Tiedemann at the New America Foundation are keeping one of the most useful datasets on drone strike fatalities that I know of. They’ve been tallying reports of strikes since 2004. They limit their data to those reported by:

“news organizations with deep and aggressive reporting capabilities in Pakistan (the New York Times, Washington Post, and Wall Street Journal), accounts by major news services and networks (the Associated Press, Reuters, Agence France-Presse, CNN, and the BBC), and reports in the leading English-language newspapers in Pakistan (the Daily Times, Dawn, the Express Tribune, and the News), as well as those from Geo TV, the largest independent Pakistani television network.”

This gives them a systematic, if conservative, estimate of total fatalities. They then gather, archive and code the data in a transparent and replicable way – unlike other estimates of drone strikes that don’t provide evidence of how they derive their statistics. Bergen and Tiedemann’s results gives us a descriptive picture of how drone strikes have increased over time and changed by location and impact. Their website includes a set of helpful visualizations:

While I find the effort impressive and have sometimes cited Bergen and Tiedemann’s data as decent mid-range estimates of drone-strike fatalities, I am developing some reservations about the coding methods being used and the inferences being made after looking more closely at their dataset. In particular, Bergen and Tiedemann’s estimates of the ratio between civilian to militant deaths by strikes bears closer examination. Read more…

Constitution-Revering Republicans Propose Unconstitutional Law

[ 101 ] January 6, 2011 |

As if to provide a perfect example for Dahlia Lithwick’s demonstration of the superficial and selective nature of Tea Party reverence for the Constitution, Steve King has decided to open the new Congress by introducing a flagrantly unconstitutional law. And by “unconstitutional,” I don’t mean “contradicts one possible reading of an open-ended constitutional provision.” I mean “is inconsistent with the unambiguous, specific language of the Constitution”:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Most constitutional disputes involve a clause that is subject to multiple plausible interpretations. The “debate” over birthright citizenship is an exception — it’s like running a 21 year-old for president. But King has a very convincing argument in response:

Though others have called for changing the 14th Amendment, King said that ending birthright citizenship through statute makes sense because it’s easier to do.

Similarly, it would be “easier” for the president to abolish the Senate through executive order than to call a new constitutional convention — let’s do that! I guess that reading of the Constitution will have to skip some parts…

Blowing up slowly

[ 6 ] January 6, 2011 |

I put the word “slow” in the title of the course with the unsatisfactory title because it’s defining feature of menace: if something is stationary, it’s unthreatening; if something is celeritous, it’s frightening.  For something to be menacing requires pacing.  Tension does not “build” in films: it must be built.  Moreover, like all well-built things, its construction must be deliberate and methodical, and those qualities translate in film as a slow pace.  I’m employing “building” as a metaphor here because 1) everyone knows about Rome, but more importantly, 2) it allows me segue neatly into a conversation about the relationship of space to pace (about which more shortly).  All of which is only to say that because I’m claiming slowness to be an essential quality of a mode of horror, I need to quantify it; that is, I need to define what it means, mechanically, for a film to be slow.  Where better to turn for such a definition than to a filmmaker universally acclaimed for that quality?

So then, why is Michelangelo Antonioni’s Blowup considered such a slow film?

Read more…

Alomar and Blyleven elected to the HOF

[ 69 ] January 5, 2011 |



Alomar was a slam dunk once the idiot “first ballot” convention was dispensed with, and his name was on 90% of the ballots. Blyleven’s election (79.8%) is a bit of a tribute to the power of saber-knowledge.

Others: Larkin 62%, Morris, 53.5%, Lee Smith 45%, Bagwell 41.3%, Raines 37%, Trammell 24.3%.

McGwire was named on 19.8% of the ballots; Palmiero on 11%.

Changing the Rules of the Game

[ 14 ] January 5, 2011 |

is undemocratic and evil, unless it suits your agenda.

Both houses of Congress tweak their rules on the first day of a new session.  The rule changes for the 112th Congress, while not revolutionary, are more sweeping than usual.  In the Senate, the Senator Tom Udall (D-NM) hopes to ever so slightly modify the rules of the asinine filibuster, which over the past 30 years has morphed from a genteel oddity of parliamentary courtesy to effectively requiring a supermajority in order to flush the Senate toilet.  This is anomalous, and not explicitly designed into the institution by the Constitution save for the handful of cases where it is (e.g. passing a treaty, over-riding a veto, deciding guilt at a trial of impeachment).

How do the Democrats plan to change the filibuster rule in a body that is only marginally more democratic (and in descriptive terms, probably less representative) than the House of Lords?  By requiring that the Senator executing the filibuster have the temerity to be on the floor of the Senate itself. Which, as anybody who has seen Mr. Smith Goes to Washington understands, is how it ought to be.

Republicans, of course, are seething, but what else is new?  Senator Alexander (R-TN):

“Voters who turned out in November are going to be pretty disappointed when they learn the first thing Democrats want to do is cut off the right of the people they elected to make their voices heard on the floor of the U.S. Senate,”

Except of course that’s precisely what the rule change will effect – ensuring that their voices are indeed heard.

This is a procedural alteration that should have limited impact on the actual execution of the filibuster, yet “Mr. Alexander and others have warned Democrats to brace for a backlash should they act unilaterally.”

Which is exactly what the Republicans are doing in the House.  The rule changes in the House are more substantive and clearly more political and ideological.  To wit:

“Members offering bills for new programs will have to explain how they will pay for them, not by raising new revenues but by finding other ways to cut costs. Each bill introduced will also have to cite the specific constitutional authority for its contents.”

Unless, of course, one wants to repeal health care reform:

“A big exception will be the bill to repeal the health care law that House Republicans plan to bring up next week. That bill will not be subject to amendments, nor will Republicans have to abide by their own new rules that compel them to offset the cost of new bills that add to the deficit; the health care repeal and tax cuts are not subject to this new rule.”

So in the Senate, the Democrats are suggesting a modest procedural change that does little more than return the filibuster to its original spirit, which has Republicans promising a “backlash”.  Yet Republicans in the House have no compunction against establishing rules that have an explicit political and ideological motivation and result, with the added dollop of hypocrisy in exempting their own pet project from their very rules.

This will be a fun Congress to blog about.

Now That’s Restraint

[ 65 ] January 5, 2011 |

In pointing out that it’s hard to square Antonin Scalia’s assertions that the 14th Amendment provides no protection for gender equality with the rest of his jurisprudence, I didn’t even haul out the heaviest artillery. I think it’s safe to say that none of the framers or ratifers of the 14th Amendment thought they were voting for the principle that “states have to have uniform standards for vote counts and recounts,” let alone “states have to have uniform recounts if non-uniform ones might lead to the defeat of the candidate favored by a majority of the Supreme Court, but not in any other case.”

…on a somewhat realted note, Scalia’s originalist take on pizza reminds me of Sherry and Faber on latkes and constitutional theory. Of course, the Scalia entry should be modified to read “unless the election of George W. Bush requires making latkes, in which case any recipe will work.”

Just Another Mad, Mad Day on the Road

[ 9 ] January 5, 2011 |

Apologies for my recent light blogging, as I was home for the holidays.  To cap it off, today the fine folks at Delta in their eternal wisdom saw fit to move my first flight up six hours.   My layover in Minneapolis was so long that the Twins lost three postseason series to the Yankees while I was at the Caribou Coffee.    (In fairness, it was only nine games, and the Twins saw an average of 43 pitches a game.)

More regular blogging should commence soon.   I will try to remember that I’m back in the U.S. and try to avoid posting about the world junior tournament, but you can’t fully take the Canada out of the boy:

Zombie Dick Cheney Update

[ 28 ] January 4, 2011 |

In what can only be described as a dubious victory for Medicare, Dick Cheney’s pulseless, mechanically-assisted heart — which I wrote about in greater detail last year — has evidently allowed him to resume “his old life, including hunting and socializing.”

And then there’s this:

Mr. Cheney’s pump was placed near his heart. With most patients, a power line emerges about waist level and connects to a controller, a minicomputer that plugs into a pair of one-and-a-half-pound, 12-volt batteries. Patients wear a black mesh vest over their clothing that holds the controller and batteries. They usually cannot shower and have to be satisfied with sponge baths.

Go ahead. Bitch about your job now.

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