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Disparate Treatment and Equal Protection

[ 0 ] July 1, 2009 |

Scalia’s concurrence in Ricci elaborated an alleged conflict between equal protection and the disparate treatment of the Civil Rights Act. I won’t call this a false conflict, exactly — as with many legal and constitutional values, there is potential tension in marginal cases. But I think Ginsburg’s response gets it right:

Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate-treatment and disparate-impact provisions. Cf. ante, at 20. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending workplace discrimination and promoting genuinely equal opportunity.

Yet the Court today sets at odds the statute’s core directives.

I’ll leave a discussion about how the Court’s conservatives have used different standards of evidence to prove discriminatory intent for another post. But, in general, not only is paying attention to disparate impact consistent with enforcing civil rights and the equal protection of the law, it’s necessary. To use the old analogy, it’s silly to pretend (as the ahistorical formalism practiced by the Court’s conservatives* demands) that a woman kept in chains and fed bread and water and a woman given a professional training regimen are in an equal position because they both start at the same line. The effects of history don’t vanish when the law changes. Legacy admissions in formerly racist colleges, for example, perpetuate white supremacy whether they are intentionally discriminatory or not, because they provide a benefit to some whites that are not available to black people. This isn’t to suggest that dealing with a history of discrimination is easy, of course, but there’s a reason why virtually nobody who supported civil rights contemporaneously thinks that John Roberts’ empty homilies are an adequate response.

*Of course, this applies only to assessing discrimination against African-Americans. When you’re asserting discrimination against an Italian-American firefighter, any lurid, implausible, race-bating conspiracy theory is plenty good enough.


How Not to Organize a Country

[ 0 ] July 1, 2009 |

One of the many things I find utterly fascinating about my adopted land is its unwritten constitution. Writing on the strength of an unwritten constitution, a book review in the recent Economist states it well enough:

The constitution was not a set of fundamental and broadly unalterable rules but simply “what happened”. The fact that government’s workings could easily and unobtrusively be changed was accounted a virtue: Britain escaped the ancestor worship that fixed canons like America’s imposed. Its elusive constitution seemed to ensure both stability and freedom. It was envied abroad and taken for granted at home.

Its strength of flexibility and malleability is at once its primary weakness: while it does an admirable job of adapting in most respects, on occasion the lack of clear and precise principles beyond the sovereignty of Parliament (and technically the Monarch) can lead to a ludicrously botched state of affairs. The piece in The Economist is rather quiet on the weaknesses inherent to the British constitution save for an observation attributed to the Queen herself: “The British Constitution has always been puzzling and always will be.” It is perhaps at its most puzzling when it comes to devolution of some powers to some regions.

I won’t get into the history much, but England sort of ended up dominating this island I live on, and tried to dominate the island to the west as well (while they mostly failed in that project ultimately, there are some residual manifestations). Possibly as a result, some people who live in the non-English bits of these islands view the English with some reservation bording on disdain. Indeed, it strikes me as provincial that supporters of Scotland, Wales, and Northern Ireland aren’t merely unconcerned if England win or lose, they actively root, support, plot, and facilitate England’s demise. Now I’ll admit to generally not supporting UCLA, USC, or, god forbid, the Oregon freaking Ducks in their daily endeavours, yet when these teams reach the Rose Bowl at the expense of the University of Washington (a fairly safe bet these days unfortunately) I instinctively root for the Pac-10 against the heathens from the Midwest. Not so on these islands.

The constituent nations, even, yes, Cornwall, have also over the years appealed for a degree of, if not absolute, political autonomy. In a measured implementation, this I can appreciate and support (i.e. short of outright independence). However, in the tradition of the unwritten constitution lacking any set of guiding principles beyond what the Government of the day deems politically astute, the Labour implementation of devolution to Scotland and Wales was predictably botched.

The first attempt at devolution to Scotland and Wales was held in 1979. Both failed in referenda, convincingly in Wales and technically in Scotland. The version of devolution we have with us passed overwhelmingly in Scotland, barely in Wales, in 1997, possibly one of the few referenda that Labour have promised in their various election manifestos that they have carried through on. The resulting Scottish Parliament and Welsh Assembly are close to powerless when contrasted with an American state, or even city in many cases. Scotland can vary the basic tax rate by up to three pence on the pound, which at least affords that body some democratic leeway (but, critically, not business tax, nor does the Scottish Parliament have any say over what remains of North Sea oil). Wales has neither the oil nor the taxation power. However, both Scotland and Wales do have a large say over how certain aspects of the budget allocated to them from Westminster, and it is here where some of the most striking anomalies arise.

The key fault with the current implementation of devolution is its asymmetry vis-a-vis the central government. Scotland has more power than Wales, they both have more and less than Northern Ireland, and everybody has more than any region in England. Tam Dalyell pointed out this anomaly back in 1977 with the so-called “West Lothian Question“. I assume that anybody who has read this far knows what it is, but in a nutshell, Scottish and Welsh MPs can vote on issues that affect England (and English voters), while English MPs are not eligible to vote on issues devolved to the Welsh Assembly or Scottish Parliament.

The West Lothian Question is best illustrated, at least in my current setting in my office in the Politics & International Relations department at an English university, by variance in university fees. Universities in the UK are funded, and ultimately administered (albeit very loosely) by the state. The Higher Education Act of 2004 basically tripled the tuition fee that students are responsible for paying, but not in Scotland, where higher education is a devolved power. It barely passed, by only five votes if I recall correctly. While there were obviously a large number of Labour rebels voting against the Blair Government, the overwhelming Labour majority in Scotland was critical in getting the Act passed. Remove these Scottish MPs from the equation, it fails. I often wonder how such an arrangement is consistent with basic democratic norms (and you can bet that I invite my students to consider this as they pay their fees).

Alex Salmond, First Minister of Scotland and Leader of the Scottish National Party, has been getting a fairly easy ride through his term of office, due in large part to Scotland historically receiving a higher than average per capita spending from Westminster, now in effect a grant given to the Scottish Parliament to spend (on those policy areas not reserved to Westminster). No Scottish Government, Labour or SNP, have had to take advantage of the basic taxation rate. This may change, which is a good thing.

This is not meant to be a rant against the British “Constitution” per se, and as Walter Bagehot wrote in his brilliant Victorian treatise The English Constitution, the American system is also far from perfect. Indeed, this paragraph made me chuckle this morning:

A hostile legislature and a hostile executive were so tied together, that the legislature tried, and tried in vain, to rid itself of the executive by accusing it of illegal practices. The legislature was so afraid of the President’s legal power, that it unfairly accused him of acting beyond the law. And the blame thus cast on the American Constitution is so much praise to be given to the American political character. Few nations, perhaps scarcely any nation, could have borne such a trial so easily and so perfectly. This was perhaps the most striking instance of disunion between the President and the Congress that has ever yet occurred, and which probably will ever occur.

Bagehot was writing about the impeachment of one Mr. Johnson. I also do not mean to suggest that there aren’t similar anomolies in the U.S. (see the District of Columbia for a hilarious example) or that Scotland, Wales, or even Cornwall deserve some degree of autonomy.

All I ask is that it be done right, and this clearly isn’t.

Not to pick nits, but it’s not really an island, either, is it?

[ 0 ] July 1, 2009 |

I’m slightly embarrassed to admit I didn’t know Rhode Island’s full name, so while I would support efforts by states to make their names longer and goofier, I guess don’t especially care if the Ocean State decides to change it based on flimsy historical interpretations of the term “plantation.” The broad argument made by the bill’s sponsors and advocates are reasonable enough; apparently, it’s possible to get an education in Rhode Island and not learn much about the significant role it played in the colonial slave trade. I doubt that altering the state’s official letterhead will do much to correct the problem, but Rhode Islanders — unlike the supporters of the Honduran coup — don’t seem to be especially threatened by the notion of a public referendum, so more power to them.

It would certainly be nice if the debate in Rhode Island were to spur similar reflections in certain other states — say, those of the defeated Confederacy — where the public landscape is littered with memorials to actual slaveholders and their political and military defenders, all of which would serve a more useful purpose if they were hauled away by crackheads meth addicts and sold as scrap metal. I suppose I shouldn’t hold my breath on that one.

Ricci and Sotomayor

[ 0 ] June 30, 2009 |

Attempts to use Ricci to derail Sotomayor’s nomination won’t work, but (as Paul also said earlier today) they do show how silly the whole “empathy” criticism is.

Senator Al

[ 0 ] June 30, 2009 |

Finally. And, while perhaps this overstates his rationality, now that Coleman has conceded it’s hard to imagine Pawlenty making the courts issue a writ to force him to act.

Getting Out

[ 0 ] June 30, 2009 |


It’s a “carnival” in Baghdad, according to the Post‘s Ernesto Londono, filled with Iraqi troops grinning as they take their lives into their own hands and graffitti writers further south demanding, “Pull your troops from our Basra, we are its sons and want its sovereignty.” Don’t tell them tomorrow is just another day. These are the people in whose name the U.S. justified six years of a blunder. Like any rational people enduring a foreign military occupation, they light candles and wave banners and sing patriotic songs when the occupier pulls away.

Occupier — what a nauseating word to hear; what an enfeebling thing to be; what a distorting condition to bear. Remember when Zell Miller told us that nothing made that Marine madder than to hear U.S. troops described as occupiers and not liberators? His complaint should have been registered with the man who made them into such a thing, not with those who wouldn’t speak euphemistically or patronizingly about it. What U.S. troops have endured they have endured heroically, in a manner that those who haven’t served can’t comprehend. I consider it more heroic that they’ve done it in spite of the war’s maculate conception.

Spencer puts his finger on something that I’ve never quite understood about Tom Ricks’ “unraveling” series; elite and popular Iraqi opinion (with the partial exception of Kurdistan) is united around the idea of the United States leaving. Whether or not the precarious peace created in part by the Surge holds is pretty much irrelevant to that point. The Iraqi preference for an American withdrawal has held steady pretty much from the day the Americans arrived (public opinion in Afghanistan has always been different, although the gap is closing). Any talk of staying on to “finish the job” or “hold things together” is just so much nonsense in the face of this strong, consistent Iraqi preference. Iraq may unravel, and it will in some important sense have been our responsibility, but by the Iraqis’ own account it’s not our job to prevent that from happening.

See also Stephen Walt.

Have you ever looked at the lyrics of Rush songs really closely?

[ 0 ] June 30, 2009 |

That was the question a young man who stopped by my office a few months ago had for me. He had read something I’d written, and was so impressed by my powers of perception regarding what’s really going on that he felt he could share with me certain recondite truths, including but not limited to

(1) The rock band Rush controls most of the world’s economy. The members of the band hold controlling voting shares of stock in Microsoft, Oracle, Sun, Intel, and several other of the world’s largest corporations.

(2) They use their power of international commerce in the service of Satan.

(3) They used their powers a few days earlier to have him arrested by local law enforcement.

(4) All this and much more is practically self-evident to anyone who makes a close examination of the lyrics of their albums. It’s all right there if you’re just willing to look.

It was an interesting conversation, but one thing I didn’t do was argue with the guy about potential flaws in his theory.

I was reminded of that conversation by this Thomas Sowell column, replete as it is with barking paranoia of the most unhinged sort. I don’t want to argue with Sowell either. I mean what would be the point? He’s a crazy person.

(h/t Yglesias)

Ricci, Sotomayor, Scalia & Empathy

[ 0 ] June 30, 2009 |

The new hit album.

Giving Away The Show

[ 0 ] June 30, 2009 |

I’ll have more tomorrow, but like Publius I was amazed to come home and read Alito’s remarkable-and-not-in-a-good-way concurrence focusing on the Scary Black Guy who allegedly caused New Haven to jettison its testing process for promotions. As Adam also points out, Ginsburg was devastating in noting that Alito’s stories were strikingly unencumbered by any evidence that Kimber actually had any influence at all on the politically insulated commission that reached the decision, let alone more influence than the other interests that strongly supported the lawsuit. Indeed, not only is there no evidence, there isn’t even a plausible chain of causation; it’s just wingnut innuendo all the way down.

At any rate, I’m sure Alito’s excessively candid sharing of beside-the-point race-baiting Republican talking points should provide some comic relief when Republican Senators claim that Sotomayor is insufficiently impartial, what with her “empathy” and all.

Question the timing

[ 0 ] June 30, 2009 |

Erik Loomis happened to be in Honduras the other day, just as Kermit Roosevelt happened to be in Iran during the summer of 1953.

Israel Ditches the LCS

[ 0 ] June 29, 2009 |

It appears that the Israelis have ditched plans to purchase the Littoral Combat Ship:

In a radical revamp of its surface fleet modernization program, the Israel Navy has shelved long-held plans to purchase Lockheed Martin-produced Littoral Combat Ships (LCS), as well as a fallback option involving corvetees built by Northrop Grumman.

Instead, sources say, the Navy is pushing to establish a combat shipbuilding industry through customized, locally built versions of a German corvette design.

The German option is a longer, larger version of the A-100 corvette. This is interesting, because there are multiple potential Israeli motivations.

The central tasks of the Israeli Navy are to prevent infiltration into Israel, prevent smuggling into Gaza, and support IDF land operations in Lebanon and Gaza. There’s good reason to think that the LCS would do all three of these jobs better than the A-100. As Galrahn has pointed out repeatedly, the LCS is best understood as a mothership for small boats and UAVs, and not as a surface combatant. These capabilities give it the capability to monitor and act in a substantial portion of Israel’s sea space, and also to contribute to operations on land. The LCS was originally envisioned as the Navy’s contribution to network-centric warfare, extending surveillance and fire capability across the littoral (which includes both the sea and the coast). This fits in well with the IDF’s vision of how war ought to be fought. The LCS was also conceived in response to the threat presented by swarms of small, fast boats, which is exactly the problem that Hezbollah and Hamas might pose in the maritime sphere. The LCS is also some 16 knots faster than the A-100, giving it the ability to respond more quickly to problems, and to evacuate itself more quickly from dangerous situations. Although it’s unclear that the Israelis would have much use for the LCS’ modular nature, it’s fair to say that the LCS is a *much* more capable platform than even a modified A-100.

That said, there are good reasons why the Israelis would prefer the A-100. First, the technology is much more mature, and the design is operationally tested. The first littoral combat ships remain in trials, and won’t be used operationally for some time. They might not achieve full operational capacity for quite a while. Second, the cost of the LCS is much higher than the A-100. To this day, no one quite knows how much a fully operational LCS will cost. For a state more focused on its land frontiers than its littoral, the less expensive corvette makes some sense. Third, the LCS isn’t necessarily a street fighter. No modern warships can be expected to have a lot of staying power, but the LCS is particularly vulnerable because of its light construction. The LCS also costs more per unit, which means that more Israeli treasure is bound up in a specific ship. This matters, because people occasionally fire surface-to-surface missiles at Israeli ships, and also sometimes blow up small boats next to Israeli vessels. Finally, it appears that the modified A-100s will be built in Israel, and job-creating defense projects are always popular with politicians.

The wild card is this; while the Israeli decision to quit the LCS can be explained purely through military and economic factors, you have to wonder whether there’s also a political motivation. Given recent assertions about Israel’s capacity to “go it alone,” and mildly increasing tensions between the Obama and Netanyahu over settlements, it’s possible to read this as a message to US defense contractors (and perhaps more importantly, to US congress-critters) that Israel can say no, and that there are potential economic consequences for playing hardball. Now, just because an action can be read as a message doesn’t mean that a message is being sent, and I may well be over-interpreting the Israeli decision on this point.

See also Galrahn.

*Blech* Twitter

[ 0 ] June 29, 2009 |

We now have *shudder* a Twitter feed. Adjust your behavior accordingly. We expect that the feed will include not only self-serving links to LGM posts, but also unique examples of the quality socio-political commentary you’ve come to expect from LGM, distilled down to 140 characters.