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Defining Civil Rights Yet Further Downward

[ 0 ] December 15, 2010 |

Apparently being assigned a book that isn’t sufficiently aware of Jesus’ strong endorsement of supply-side tax cuts in the Sermon on the Mount is the worst civil rights violation in America since Juan Williams was reduced to having only one million-dollar sinecure to share his worthless political analysis.

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Hacktacular!

[ 1 ] December 15, 2010 |

It seems to be an ironclad rule that political analysis from people named “Roger Simon” will have no value.

Isn’t it just a testament to the power of filmic cliché?

[ 24 ] December 14, 2010 |

By “it,” I mean this clip that’s been linked everywhere today:

I don’t mean to sound like a jaded film theorist, but the only reason this works is that so many films rely on the same basic cinematographic and emotional principles.  You could splice some David Lynch in there, but only if you decontextualized scenes he intended to be ironic.

Iron Eating Microbes Undermine Earth Deterrent

[ 8 ] December 14, 2010 |

This is going to make it very difficult to mount a credible counter-offensive against the Gamilons:

Researchers have been studying the Titanic’s remains since they were discovered resting more than two miles beneath the ocean surface. And they’ve found that the ship has been not-so-slowly disappearing. Visitors have removed artifacts, and the hull is festooned with rusticles: icicle-shaped accretions of iron oxide, otherwise known as rust.

Nearly 20 years ago scientists took samples of that rust, and found that it harbors a mix of iron-munching microbes. Now, analyzing the DNA of these organisms, researchers have catalogued more than two dozen strains of bacteria, including a new one they’ve dubbed Halomonas titanicae.

The bacteria are bad news for the Titanic, which may only last another 20 years, say the scientists. The good news is such bugs could be used to hasten the decay of other, less cinematic wrecks.

Does the quality of legal argument in Supreme Court opinions matter?

[ 10 ] December 14, 2010 |

I have a piece at the Daily Beast about the ACA decision which suggests some reasons to be skeptical.

I’m particularly interested in the assertion that the professional quality — as measured by the craft values of the legal profession — of the arguments in SCOTUS opinions has or at least in certain circumstances can have a serious effect on the Court’s perceived legitimacy. It’s a commonplace of criticisms of particularly controversial Supreme Court decisions to assume this is the case. Indeed justices make the claim themselves routinely, as for example in the concluding passage of Justice Stevens’ dissent in Bush v. Gore:

It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

Is there any evidence of such an effect, either in regard to Bush v. Gore or other SCOTUS decisions?

Oh, Apparently Hitch is Angry About Something…

[ 40 ] December 14, 2010 |

People seem to be falling over themselves to link to Christopher Hitchens’ latest rant on Henry Kissinger. It’s a good rant, and I’m generally of the opinion that we should evaluate such work in terms of its per piece value, rather than in terms of our overall evaluation of the author. Nevertheless, I must concede that I have trouble taking Hitch seriously on the vile-creature-war-criminal-so-horrible-etc.-etc. slant in the wake of his consistent support for a war that almost certainly exceeded the worst of Henry Kissinger’s career in terms of destructiveness, criminality, and amorality, and of his apologia for men who have demonstrated no greater concern for human life than Kissinger ever exhibited. STFU, Hitch. You lost all your indignant moralistic rant privileges.

The Problem With the “Inactvity/Activity” Excuse for Striking Down the Mandate

[ 108 ] December 14, 2010 |

As others have noted, Henry Hudson’s opinion holding that the mandate provision of the ACA was unconstitutional contained the bizarre argument that “[i]f a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.” This not only contradicts nearly 200 years of precedent but is illogical on its face — if the necessary and proper clause merely gives Congress the power to do things it is authorized to do in other provisions, what is its purpose? Jason Mazzone argues that this argument becomes more coherent if you consider Scalia’s arguments about the importance of the necessary and proper clause in his Raich concurrence, which “uses the word [“activity”] 42 times.” While this makes sense of Hudson’s argument strategically, I still don’t think it makes any sense as an interpretation of the necessary and proper clause. If a regulation is necessary to a broader regulatory scheme, what difference does it make whether it is “activity” or “inactivity” that is being regulated?

Perhaps more importantly, it’s hard to see how the “activity/inactivity” distinction makes sense even when looking at the commerce clause alone. This Mark Tushnet post is brilliant:

Congress, according to Judge Hudson, has the power to regulate economic activity but not economic inactivity, that is, a failure to participate in some market such as the insurance market. This distinction seems to me unsound in principle but, more important, inconsistent with the governing precedents. The primary one is Wickard v. Filburn, which is usually described as holding that Congress has the power to regulate economic activities that, taken in themselves, have no substantial effect on interstate commerce but when aggregated do have such an impact. The economic activity in Wickard was the consumption on a person’s own farm of wheat grown on that farm.

What the farmer did, though, could just as easily — indeed, probably more easily — be described as a failure to purchase wheat in the general market. (Justice Jackson’s opinion made the point in this way: “The effect of the statute before us is to restrict the amount which may be produced for market and the extent, as well, to which one may forestall resort to the market by producing to meet his own needs” (emphasis added). Those who do not purchase health-care insurance “forestall resort to the market” by paying the full out-of-pocket costs of their medical care when they incur those costs (or at least assert that they are willing to do so) or by relying on charity to cover the costs (although I would think that in principle the person should forgo that portion of the charity care attributable to the public decision to grant tax-exempt status to charitable health care — or at least that Congress could require that the person do so).

To expand on the last point a bit, the “activity/inactivity” distinction is particularly meaningless when considered in the context of actually existing health care policy. Perhaps if we lived in a libertarian dystopia in which people without insurance were denied access to emergency rooms, the distinction would be meaningful. But given the safety net that actually exists, refusing to buy insurance is economic activity in all most the most formal sense.   It just defers economic activity to a later time and places the burden on the taxpayers, and at the same time affects the “activity” of the insurance market immediately.   Either way, if the mandate is integral to a broader regulatory scheme — and it obviously is — I think it is quite clearly constitutional under existing precedents.

Policy and the Practice of Political Science

[ 4 ] December 14, 2010 |

While I can’t attend the workshop (lame prior commitment with stupid friends), I would like to associate myself, in a wholly disinterested manner, with this part of Dr. Walt’s comment:

What is also needed is a change in academic practice, including the criteria that are used to make key hiring and promotion decisions. The standards by which we assess scholarly value are not divinely ordained or established by natural law; they are in fact “socially constructed” by the discipline itself. In other words, we collectively decide what sorts of work to valorize and what sorts of achievement to reward. If university departments placed greater weight on teaching, on contributions to applied public policy, on public outreach, and on a more diverse range of publishing venues — including journals of opinion, trade publishers and maybe even blogs–then individual scholars would quickly adapt to these new incentives and we would attract a somewhat different group of scholars over time. If university departments routinely stopped the “tenure clock” for younger academics who wanted to do a year of public service, that would enable them to gain valuable real-world experience without short-changing their long-term academic futures. It would also send the message that academia shouldn’t cut itself off from the real world. And it probably wouldn’t hurt if deans, department chairs, and university presidents welcomed controversy, encouraged intellectual diversity, and defended the slaying of sacred cows. As I’ve said before, academics really shouldn’t count it a great achievement when students have no interest in their classes, and when people outside the ivory tower have no interest in what we have to say.

Emphasis added totally at random. As I said, I have no particularly large pack of dogs in any of these fights, and my promotion of these views should not be associated with any specific professional career interests that I may or may not have.

Lee To Yankees: “It’s Not Me, It’s You.”

[ 74 ] December 14, 2010 |

Ha-ha.

Granted, this conflicts with my non-resentment-based rooting interest — if the Mets showed any sign of being competitive in the near future, this would bother be.  But as it stands…Lee taking his talents to South Philly is the lesser evil.

The Yellow Ribbon…

[ 23 ] December 13, 2010 |

Read this fantastic essay over at Best Defense.

I meet a lot of veterans of Iraq and Afghanistan through my work, as students, guest speakers, and through the various other interactions that allow a foreign policy MA program to function.  I can’t remember ever thanking a veteran for his or her service.  There may have been some instance that I don’t now recollect where it seemed appropriate, but it’s certainly not my normal behavior.  I also can’t ever remember trying to shake the hand of a veteran, unless such behavior was otherwise appropriate.  This isn’t because I don’t have respect for the contribution of veterans (I feel that the profession of soldier is legitimate, however I may feel about a particular war), but rather because it seems… cloying.

The vets I’ve met are as diverse in outlook and experience as you would imagine.  They lean somewhat right, but not necessarily in predictable ways.  I’ve met very few vets who adopt the left anti-imperialist critique of American foreign policy, although I’ve known some who are pretty happy with Andrew Bacevich’s formulation of much the same argument.  At least a large minority believed that the war in Iraq was a mistake, but I’ve heard far fewer critiques of the decision to go to war in Afghanistan.  Most have thought DADT pointless.  Even among those vets who believed Iraq was a mistake, I can’t remember talking to anyone who believed that it was wrong or unjust that they personally had been sent there; the critiques of the Iraq War that concentrate on the experiences of American soldiers (stop loss, poor people being sent to fight a rich man’s war, etc.) do not resonate with my experience of veterans.  I have also known very smart, capable veterans who served in Iraq and believe that it was the right thing to do, as well as some who joined for the opportunity to fight.

The essay at Best Defense was interesting to me because I don’t think that progressives quite get the veteran thing right.  The refrain “if you support the troops, don’t send them to war” isn’t quite right; none of the vets I’ve known has resented being sent to war.  Many of them, especially the most recent, signed up when they knew that a war was already on, and most of those (in my experience) didn’t sign up because of economic factors, etc.  That said, we don’t quite get the veteran thing wrong, either.  The growing number of veterans who have turned to progressive politics (and this percentage is much higher than in the 1990s) suggests that conservatives probably get the veteran thing even less right.  I think that the linked essay gives some sense of why that’s the case; conservatives start with a set of assumptions about veterans that do violence to the diversity of actual veteran experience.  I should also say that I’m not convinced by the case for conscription, or the more general argument that a volunteer military inherently means that the burdens of war are shared unfairly.  I’m also not convinced that the United States has anything approaching a serious civil-military relations crisis, or that the percentage of veterans serving in Congress represents any particular problem.

RIP Richard Holbrooke

[ 3 ] December 13, 2010 |

If you believe that US foreign policy can accomplish anything positive (and I do) then Richard Holbrooke’s loss is sad and unfortunate.

Today’s Health Care Ruling…

[ 18 ] December 13, 2010 |

…matters if the Supreme Court will uphold it.    I continue to think that this is very unlikely, and if they did it would probably produce a better health care policy anyway.