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[ 0 ] April 12, 2009 |

As I blame Strunk and White for adding a year to my dissertation (and thus taking a year of my life), I’m deeply sympathetic with this argument.


Lying Is Exhausting!

[ 0 ] April 12, 2009 |

Apparently, America’s Moral Sage Rick Warren was too “exhausted” to appear on This Weak. This exhaustion seems to have been caused by his straining to come up with a good explanation for lying about his support for Prop H8.

I suppose it is a sign of progress that at least he feels to compel to lie about his support for enshrining bigotry in the California state constitution…

Quick Hits

[ 0 ] April 12, 2009 |

1. Captain Richard Phillips is freed after a brief firefight. Fabulous news, indeed.

2. Aaron Harang goes nine, strikes out nine, allows three hits and no walks against the Pirates. Had fabulous seats, three rows up on the third baseline. Harang has thus far pitched 14 innings, allowing 1 earned run. The rest of the Reds staff has pitched 31 innings, allowing 25 earned runs.

Bush vs. effective public transit

[ 0 ] April 12, 2009 |

Via DMZ, I learn that this year, the Metro shuttles that connected park and rides to Safeco field before and after Mariners games will no longer exist. The Mariners paid for some but not all of the cost and the riders paid three dollars. Congestion is pretty horrible before and after games.

Why has this ended? Because a private company put in a bid to provide the service, at roughly three times the cost, which the Mariners rejected as too expensive. But thanks to a Bush era change in FTA rules, as long as any private company puts in a bid to provide charter services for a public event, public transit agencies were prohibited from providing such services. The quality or the reasonableness of the bid notwithstanding.

The CEO of Starline, Gladys Gillis: “The Mariners want the taxpayer to pay for it.” This makes about as much sense as claiming downtown employers are soaking the taxpayers since Metro offers more and express buses during rush hour. The mission of Metro or any public transit agency is to provide affordable and efficient transportation to where people actually want to go, when they want to go there. Gillis’s argument is either an argument against the very idea of public transportation or it’s irrelevant. This regulation is a ham-fisted bit of ideological anti-government nonsense perpetrated by an intrusive and overbearing government regulation. As such, it nicely encapsulates the performative contradiction at the heart of modern conservatism. DMZ puts it nicely:

This is the whole point of public transportation. The system’s in place. The incremental cost for Metro, which has buses, drivers, maintenance, and all that infrastructure in place is low. For Starline, which has to pay people like Chief Executive Gladys Gillis to make objectivist arguments about the societal cost of bus systems, it’s higher.

A charter service put in a bid to provide this service for UW football games, but didn’t have enough handicap-accessible buses, so they subcontracted with Metro to provide the service. For attendees of the games, it appeared as if nothing changed, but UW was actually paying much more, and to a private company rather than Metro.

Original story about the regulation here. It’s not the most important thing in the world, but there’s really no defensible reason for the Obama administration to keep this rule in place.

With or Without Representation

[ 0 ] April 12, 2009 |

In addition to the other absurdities (and what shocking bias that the Emm Ess Emm would…cover a presidential campiagn!), you have to love what Reynolds considers worthy of quotation:

Hundreds of Nebraskans chanted no taxation without representation in protest of increased government spending spawned by the stimulus bill at the state capitol Saturday.

Very compelling — it is just like the Revolutionary War!. Except that 1)this is would be taxation with representation, and 2)unless the teabaggers are composed of people making in excess of 250 grand a year, most of them are getting tax cuts. (I suppose you could make an argument that because of increased spending these tax cuts will just lead to future tax increases, but leaving aside the implausibility of attributing this line of reasoning to the teabaggers, it certainly never occurred to Reynolds when he was celebrating Bush’s deficit-funded upper-class tax cuts.) Jeebus, this is pathetic stuff.

As a bonus, it’s nice to get this compilation of Reynolds’s prescient, unbiased coverage of the 2006 elections. Sample shorter verbatim: “LARRY KUDLOW says that Bush is turning things around for the Republicans. It does look that way now…”

As Nathan Bedford Forrest Said, "A Foolish Consistency is the Hobgoblin of Little Minds"

[ 0 ] April 12, 2009 |

Spencer handles the general idiocy of the Donnelly-Schmitt op-ed on the Gates defense budget...

Schmitt and Donnelly argue for a continuation of most of the programs Gates is cutting, and do so through some curious omissions and outright misstatements. The alternative to the F-22 Raptor jet is apparently “the 660 F-15s flying today, but which are literally falling apart at the seams from age and use” — not the F-35 Joint Strike Fighter that Gates and the generals are actually advocating as a replacement. Stopping the Army’s Future Combat Systems vehicle-modernization program means “future generations of soldiers will conduct mounted operations in the M1 tanks and Bradley fighting vehicles designed in the 1970s,” even though Gates said on Monday that he’s going to “reevaluate the requirements, technology and approach and then re-launch the Army’s vehicle modernization program.” And Gates is somehow “cap[ping] the size of the U.S. ground force,” even though Gates is seeking an extra $11 billion to expand the Army and Marine Corps. (I suppose, to be charitable, they could mean they want an even larger ground force, but that’s hardly clear from the op-ed, which implies that Gates is resisting the very expansion he’s funding.)

…and so I’d like to concentrate on a rather small point. Donnelly-Schmitt:

More often it rewards those who arrive on the battlefield “the fustest with the mostest,” as Civil War Gen. Nathan Bedford Forrest once put it. If Mr. Gates has his way, U.S. forces will find it increasingly hard to meet the Forrest standard.

Some have suggested a certain impropriety in quoting one of the founders of the KKK, but whatever; if you’re quoting specifically on military issues, then Forrest is a reasonable authority. The more serious issue is that Forrest, of course, said nothing of the sort. A casual glance at his wikipedia page would have revealed this. Now, while you can hardly expect AEI hacks to have even the most tenuous grasp on history, you do sort of wish that the Wall Street Journal would have dome some elementary fact-checking. Then again, it was the editorial page…

We Have Different Words Because They Refer to Different Concepts

[ 0 ] April 11, 2009 |

Annie Lowry:

We should stop calling them pirates and start calling them something like “maritime terrorists,” to end any remaining romanticization.

It would be better if we simply thought about pirates in less romantic ways, rather than discarding the term altogether. To refer to them as “terrorists” in insulting to both pirates and terrorists; it’s relatively easy to distinguish between the two. It’s not 100% true that pirates are indifferent to politics and just in it for the money, and it’s not 100% true that terrorists are indifferent to money and just in it for the politics, and of course there will always be borderline cases, but this is a situation in which I’m pretty happy with the linguistic distinction we have.

A Worthwhile Effort

[ 0 ] April 11, 2009 |

This is one hell of an accomplishment. H/t to Joseph M.

FDL Book Salon: Dateline Havana

[ 0 ] April 11, 2009 |

The most exciting piracy event in recent memory happened to correspond with a period in which I had almost zero time to blog. A bit more on that later, of course; also will produce a longer response to the comments on this post. Of more immediate interest is a Firedoglake Book Salon on Reese Erlich’s Dateline Havana, which I’ll be hosting this afternoon at 5pm. Make sure to drop by…

Rawls, religion, merit

[ 0 ] April 10, 2009 |

Background: John Rawls wrote an undergrad thesis on theology when he was deeply religious. He also wrote an unpublished essay in the 90’s on the role religion played in his thought. Thomas Nagel and Josh Cohen are now publishing these essays along with an interpretive essay on Rawls and religion. The latter is available in abbreviated form here; it occasioned a review and commentary by Rawls critic William Galston here. Jacob Levy initially likes the Galston review, but his commenters are more skeptical. See also Paul Gowder (1 2 3) and hilzoy.

I’m not a Rawlsian and I generally hold the view that Rawls dominates the discussion and agenda of political theorists to an unhealthy and outsized degree (not his fault, of course). But in spite of this, I find myself drawn in and have a couple of comments here. First, even if we concede that Rawls’ youthful religious views shaped his later argument about merit, I don’t find this all that important, and I certainly don’t find it useful in building a critique of Rawls. Lots of our secular rules, commitments and rights have arguably religious origins. See, for example, James Whitman on the “reasonable doubt” standard). Or just read Locke. I think Paul’s right that Galston is flirting with the genetic fallacy here, and suspect I’ll probably agree with Hilzoy that Rawls’ thesis illuminates his later writings without being indispensible to them, as hilzoy argues.

But second, I don’t think Rawls’ critique of merit needs to be interpreted in the a particularly controversial way. In comments, Jacob Levy says:

Bill Clinton’s Galstonian “The American dream that we were all raised on is a simple but powerful one: If you work hard and play by the rules, you should be given a chance to go as far as your God-given ability will take you” is the kind of thing that we do seem to reach for as evaluators of social orders. And it’s something that’s long made a lot of people uncomfortable about Rawls (as well as, e.g., Hayek) that his theory seems to leave no room for or even meaning for that kind of appeal.

If one reads this bit of rhetoric as a straightforward philosophical argument, it is in tension with Rawls’ views on merit (behind the veil of ignorance, we don’t know whether we’ll be advantageously socially positioned, but we also don’t know whether we’ll be driven or lazy). But less literal leading of this claim might take us in a different direction. This statement might be meant to convey that if you’re an ordinary person (‘work hard and play by the rules’), the rules that govern our social and economic outcomes should be designed to give you a decent comfortable life without exposing you to enormous risk. Should policies be enacted to move our society in this direction, we’d be a more just society on Rawlsian terms. Rawls rules out an appeal to desert/merit as a first principle, but I don’t see why Rawlsian philosophy necessarily rules out the rhetoric of merit to move society towards a more just social order, especially given that most people haven’t seen the light on Rawls’ critique of merit and in a democratic society, they need to persuade people who’ve failed to adhere to a Rawlsian position on merit.

In other words, the Galstonian statement seems like a perfectly appropriate bit of political rhetoric in a society in which (for example) a brief gap in one’s health inusrance coverage can leave someone uninsurable and exposed to health/financial disaster. That the rhetoric isn’t precisely philosophically accurate needn’t be a major concern.

The left/liberal/progressive/non-wingnut case against judicial review

[ 0 ] April 10, 2009 |

In comments, LP and geo requested a post about this subject. My purpose is not to make the case; I’m a poor candidate for such a task as I’m not persuaded. In the current debate between Scott and Paul I’m largely in agreement with Scott. But some commenters in recent judicial review threads have expressed some skepticism that a non-wingnut or progressive case against JR would be made. This isn’t terribly surprising, as this argument is largely absent from popular political discourse, even when, as now, Republican appointees increasingly dominate federal courts.

Nevertheless, the case has been made and made seriously, and has certainly scored some hits. While there may be more, I see three general sources of arguments against JR. It’s also important because taking these ideas seriously helps protect against status quo bias.

1) Legal Theory. A number of well-known legal scholars have made substantial arguments against JR, from what appears to be a vaguely populist-left perspective. This trend includes Larry Kramer’s The People Themselves and Mark Tushnet’s Taking the Constitution Away from the Courts, and a few others I can’t recall at the moment. I’ve never given these books more than a quick skim, and I suspect Scott, Paul, and a few dozen of our regular commenters would be better suited to discuss them, so I’ll simply note their existence and move on.

2) Political Theory. A number of democratic theorists have taken positions that lead them to be suspicious or hostile to the practice of judicial review. One area you see some of this is in some of the more Rousseauian corners of communitarian thought, as part of the more general critique of “rights talk” as the central term in political life. More interestingly, at least to me, are the cases against judicial review made more recently by Jeremy Waldron and Richard Bellamy. Waldron argues that constitutional judicial review violates the equal right to political participation in Law and Disagreement, and presents his positive case for legislative supremacy in The Dignity of Legislation. His arguments about judicial review have been expanded and extended in numerous writings in the last decade, but happily he’s provided a nice summary in his 2006 article, The Core of the Case Against Judicial Review, which is available online to all. Waldron makes his case broadly against judicial review of legislative acts (see below for a discussion of a possible exception) but has no problem with judicial review of the constitutionality of executive actions. Waldron argues that even if there’s broad agreement on rights, the interpretation and implementation of said rights are the stuff of political disagreement, which is the very essence of democratic political life. In order for the equal right to political participation to have meaning, these decisions should not be outsourced to alleged specialists (who, Waldron notes, often resort to majority decision, the same method the rest of us use to settle such disputes). Waldron’s case suffers from a number of problems. One Scott has noted repeatedly, treating judicial review as ‘special’ or ‘deviant’ when there’s a tremendous number of powerful countermajoritarian institutions in democratic societies. Furthermore, he tends to consider judicial review in its flawed reality, but considers legislative decision-making in a sort of theoretical-ideal form that conforms more or less ideally to majority decision procedures. Oddly, though, at the end of The Core of the Case, he concedes that his critics have some serious plausibility in the case of the rights of ‘discrete and insular minorities’. He concludes with some pretty unpersuasive efforts to minimize this admission. Bellamy has a bit more consistent of a case as his argument for democratic constitutionalism rules out both judicial review and a permanent written constitution. Again, although for slightly different reasons than Waldron, I think Bellamy falters when he considers the relationship between his ideal theory (a republican society that exercises popular constitutionalism following norms of non-domination and political equality) and a more non-ideal account. He argues that instead of judicial review we should democratically craft constitutional rules, and we (the people) should have equal political resources in doing so. Once that proviso is attached, it seems we’re in a realm of ideal theory that has little to say to actually existing practice.

3) Comparative Legal Scholarship. While I’m sure there are others, I have in mind Ran Hirschl’s impressive study, Towards Juristocracy. Hirschl examines the recent creation of constitutional judicial review in South Africa, Israel, Canada and New Zealand. Hirschl’s case is that these new constitutional courts are primarily an effort to constitutionalize the political priorities of a declining but still powerful political faction that, in each case, held a set of political positions that represented not liberalism but neoliberalism, constitutionally prohibiting a number of possible measures that might enhance economic justice. Hirschl’s work, then, is actually more about judicial review creation than judicial review per se. I have no problem with his general argument; it’s certainly plausible that there are certain circumstances under which the creation of judicial review would be pretty clearly undemocratic and worth opposing. (His case that this was, in fact, what was at work in these four cases varies considerably). But a number of issues remain—the countries under question were undergoing a general neoliberal shift in the 1980s and 90s. While he convincingly shows that judicial review and the new constitutional courts don’t buck this trend, he doesn’t offer a very compelling case that these courts were an independent factor pressing in this direction. Furthermore, when critics found examples of women, gays and lesbians, and indigenous peoples’ rights being enhanced by judicial review in these cases (McClain and Fleming, Texas Law Review 2005), Hirschl largely conceded the point, but stressed the lack of economic justice provided by courts. At a minimum this certainly complicates the case. And, of course, there’s the issue of case selection: If he had looked at, for example, one of several of the new Constitutional Courts of Eastern Europe, they would have confounded his narrative (see Scheppele’s work on the fascinating story of the Hungarian court in the 90’s—long story short, Parliament was a perennially unpopular joke, the court was overwhelming popular and effectively ran the country for several years. The Chief Justice during the 90’s was recently elected President).

Two points in summation: One thing that I hope should be clear from my rundown here is that I remain unconvinced that the judicial review/democracy relationship is primarily a theoretical question. Like many other questions of institutional design and power diffusion in democratic societies, the answer is likely to be contextual. If you hold to a democratic theory that is substantive and procedural, I think this position is inevitable. Second, I think there’s a much stronger case to simply eliminate the power of constitutional judicial review of legislation than to group it into good and bad categories as Paul wants to do. To be against “creative” or “expansive” or “aggressive” judicial review but in favor of the good kind demands a theory of proper and correct constitutional interpretation, which must then be defended against alternatives, and so on and so on. With respect to, say, privacy, this already happened, and Paul’s preferred interpretation lost (in court and in public opinion). It might yet win again; the “liberty of contract” people won in 1905 and then went on to lose in subsequent decades. As long as Paul supports he some constitutional judicial review, he’s not actually critiquing judicial review, he’s arguing for his own preferred interpretive strategy, just like all the other lawyers. Except he’s very reluctant to actually do this, beyond asserting that these decisions are just transparently nonsensical and/or excessively political. I think that’s what’s got a lot of people confused and a bit irritated—if you’re going to argue about constitutional doctrine, do it, if you’re going to critique the practice of judicial review, do that, but it would be helpful to be clear about which one you’re doing.

Defending Koh

[ 0 ] April 10, 2009 |

See IntLawGrrls and Publius. Meanwhile, Weigel has an invaluable piece explaining the origins of the smear campaign.