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More On Goldberg and the “Living Constitution”

[ 12 ] August 12, 2010 |

I’m out of town for a funeral and don’t time to fully get into this, but I couple of quick points to add to SEK’s demolition of Jonah below:

  • Note how tendentious Goldberg’s examples are.  He happens to choose a from the tiny handful of examples — the abolition of slavery, female suffrage — where a substantive right was granted by formal constitutional amendment.   But one could just as easily adduce examples such as school desegregation, the right to interracial marriage, other forms of gender equality, etc. — which were granted through changing understandings of the broad language of constitutional provisions.
  • We’re all “living constitutionalists.”   The ratifiers of the 5th Amendment “would be stunned to learn” that in 1791 had just created a rule preventing the federal government from ever using a racial classification, but that hasn’t stopped Scalia and Thomas from arguing this, with a notable lack of dissent from Goldberg or other conservative pundits.    When you add this to cases like Brown and Loving, which can be defended as “originalist” only defining terms at a sufficiently high level of abstraction that William Brennan could be called an “originalist,” nobody really thinks that the intentions of the framers are always binding.
  • Moreover, if the framers and ratifiers of the 14th Amendment had wanted to pre-empt a decision like Perry, they could have limited its reach to cases involving racial classification (as the 15th Amendment did.)   The language of the Constitution itself suggests that originalism as Goldberg defines it is non-originalist.
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Today’s dose of health scaremongering

[ 42 ] August 12, 2010 |

It hardly bears mentioning that The Huffington Post remains one of the least reliable sources of decent, scientifically-literate reporting on health and medicine, but this piece by natural diet guru John Robbins is nearly beyond belief. Inspired by vague, unconfirmed reports that a handful of Chinese babies have grown breasts after consuming infant formula, Robbins builds a meandering, tissue-thin argument that, as best I can reconstruct it, follows like so:

  1. Chinese babies are growing breasts
  2. Hormones in milk production are to blame
  3. Here are links to my books and website
  4. Something weird happened in Puerto Rico in the early 1980s
  5. Hormones are used in US milk production
  6. High levels of certain hormones are associated with certain cancers
  7. Monsanto is SO FUCKING EVIL
  8. Women should breastfeed their babies and restrict themselves to European cheese
  9. Read more…

An accurate description of your work requires adjectives I don’t have.

[ 55 ] August 11, 2010 |

Jonah Goldberg proves, as if we needed reminding, that the people “who talk about reverence for the Constitution … consistent with the ‘genius of our constitutional design'” are the ones who haven’t read it. For example, one such person, Jonah Goldberg, writes both the previous and the following in the same article:

When one discusses the Constitution on college campuses, students and even professors will object that without a “living Constitution,” blacks would still be slaves and women wouldn’t be allowed to vote. Nonsense. Those indispensable changes to the Constitution came not from judges reading new rights into the document but from Americans lawfully amending it.

Someone needs to remind this self-professed “strict constructionist” that “Americans” do not amend the Constitution, lawfully or otherwise. Know how I know? It’s in the Constitution:

Read more…

How About Some Collateral Damage Control?

[ 3 ] August 11, 2010 |

In an earlier post on the lessons of the Afghan War Diaries, I pointed out an unfortunate legal fact: that civilian harms aren’t necessarily evidence of war crimes.

But I also argued, as I long have, that such “unintentional” civilian casualties are unacceptably high.

Today, I have an op-ed in the International Herald Tribune that goes a bit further, suggesting a number of ways that the rules of war themselves could and should be updated to hold governments more accountable for civilian harms even when they’re unintended. Read more…

“This is not a joke.” Perhaps not, but you are.

[ 22 ] August 11, 2010 |

Greg Gutfeld circa 2003:

In 2003 [while serving as the Editor in Chief of Stuff], Gutfeld hired several dwarves to attend a magazine conference, on the topic of “buzz,” in his place. During one of the lectures, they chatted loudly on cell phones and munched potato chips. “The midget thing got me in trouble” he said. “And the reason I didn’t tell anybody about it in advance is because then it wouldn’t have happened. I thought it made perfect sense: There’s a conference on ‘buzz’ by a bunch of self-congratulating idiots—I’ll show you buzz.”

Greg Gutfeld circa 2010:

I’m announcing tonight, that I am planning to build and open the first gay bar that caters not only to the west, but also Islamic gay men. To best express my sincere desire for dialogue, the bar will be situated next to the mosque Park51, in an available commercial space. This is not a joke. I’ve already spoken to a number of investors, who have pledged their support in this bipartisan bid for understanding and tolerance.

Clearly, the man has grown more dignified these past seven years: whereas he previously used minorities as props to create “buzz” for Stuff, now he’s using them as props in a “bipartisan bid for understanding and tolerance” of a lifestyle he thinks so highly of he wants to use those who practice it as props.

Just in case you thought—I know you didn’t—that this proposal amounted to anything more than a puerile prank, Gutfeld elaborated on Glenn Beck:

Read more…

Who Will Make it Three?

[ 5 ] August 11, 2010 |

Dan Rostenkowski, 1928-2010.  The quintessential Chicago pol.

“New Law Requires Women To Name Baby, Paint Nursery Before Getting Abortion”

[ 7 ] August 10, 2010 |


New Law Requires Women To Name Baby, Paint Nursery Before Getting Abortion

I’m not sure which is more dead-on: the satire of arbitrary abortion regulations, or the satire of the pundit reaction…

Statecraft and the State

[ 15 ] August 10, 2010 |

Reading this post reminded me that I had thoughts, a year or so ago, about the disconnect between how the academic literature breaks down the state and the way that policymakers consistently seem to fail to understand that other states have domestic politics. In particularly, I was frustrated by the belief, apparently endemic to the US pundit and strategic class, that authoritarian states don’t operate under domestic constraints, and consequently can do whatever they want. It’s not quite right to say that academy has figured out how to successfully integrate domestic politics into theories of foreign policy behavior, but we’ve certainly worked on the question. The policy community, however, seems almost utterly uninterested in this literature, to the extent that “well, Ahmadinejad/Putin/Chirac/Chavez/Milosevic/Calderon/Netanyahu/Kim could comply with our demands, but his domestic coalition would almost certainly fracture, and it’s tough to expect leaders to do things that will lead to their downfall” becomes a repetitive refrain.

Then it occurred to me that hey, I teach in a policy program, and I can teach pretty much anything I want for my elective, so better to light a candle than curse the darkness. Accordingly, last spring I taught Statecraft and the State, a course geared towards breaking down the idea of the unitary nation-state, of understanding the state as one actor within society, of appreciating the role of domestic politics in foreign policy, and finally applying these insights to Iraq and Afghanistan. I ran the course as a seminar, with a student leading discussion each week.

We started off with what I took to be the basics, including Weber’s Politics as a Vocation and Tilly’s Coercion, Capital, and European States. The former lays out a basic definition for the state, while the latter gives a good account of how the state moved from being one coercive actor among many to becoming the central purveyor of societal violence. I included the Geary as a useful corrective about the myths behind nationalism, as well as the development of modern nationalism; I considered going with Benedict Anderson, but thought that he was a touch too academic for the course. In retrospect, I probably should have just gone with the Anderson.

The heart of the course was the combination of Joel Migdal and James Scott. Migdal places the state as an actor within society, one purveyor of “narratives” within many. The state can’t simply do what it wants; it competes with other actors in order to provide services and communal understanding. In order to reinforce the idea that the state and the State are different things, we then moved on to James Scott’s Seeing Like a State. The students loved Scott, but I think that it ended up being just a little bit too powerful for the course. The students did a good job with Scott, but from that point forward interpreted everything within the context of his argument about high modernism. The Migdal, on the other hand, didn’t catch on nearly as well, and the Migdal is pretty important to tempering our understanding of Scott. This is to say that discussion became a little bit too state-focused, and not enough society focused.

We then moved to some works that straddled the academic policy divide. On the academic side, we read Jack Snyder’s Myths of Empire and Robert Putnam’s the Logic of Two Level Games. The latter was my concession to the 50% or so of our program that deals with economics and trade policy, although the concept works with any negotiation. On the policy side, we read the Beginners Guide to Nation-Building, which was really a guide to state building. This was written as a template for US foreign policy agencies to approach state-building in places like Kosovo, Iraq, and Afghanistan. It’s an interesting, readable document that crystallizes many of the lessons learned over the last fifteen years. It also suggests just how terrible the US approach to state-building has really been.

The Iraq and Afghanistan sections both went pretty well. I had not previously read Charles Tripp, and found his History of Iraq an absolute gem, especially for this course. He takes what amounts to a state and society approach, discussing in depth the relation between the Iraqi state and the various vested interests in Iraqi society. We also read Ali Allawi’s The Occupation of Iraq, which is a crushing narrative of the various failures of the US occupation that also focuses on state and society. For Afghanistan the Robert Crews edited volume had some quite good articles on the rise of the Taliban and its statecraft, including a nice discussion of the reasoning behind the destruction of the Buddhas of Bamyan; the author argued that Al Qaeda pushed for the demolition in order to drive a wedge between the Taliban and the international community.

Altogether I think that the course worked, although if I teach it again I’ll make some changes. I would have liked to devote some attention to Iran, not because I suspect that my students will soon be nation-building there, but rather because it’s the focus of international coercive efforts and because its internal politics are of great consequence for those efforts. Unfortunately, I probably won’t teach the class for a few more years. I’d be interested in hearing alternative approaches to the same subject, however. I’m also curious whether anyone else has ever developed a class entirely in response to a pet peeve.

Could Simple Automated Tools Help Wikileaks De-Identify Afghan Informants?

[ 68 ] August 10, 2010 |

Julian Assange has a problem. When pressed by human rights organizations to redact any current or future published documents because they too feared the effects on Afghan civilians, he reportedly replied that he had no time to do so and “issued a tart challenge for the human rights organizations themselves to help with ‘the massive task of removing names from thousands of documents.'”

Leaving aside his alleged claims about the moral responsibility of human rights groups for his own errors, the charitable way to think about his reaction is that Assange wants to do the right thing but simply doesn’t have the capacity. Indeed, in a recent tweet he implored his followers to suggest ideas:

Need $700k for our next harm-minimization review… What to do?

Fair enough. Here’s an idea: how about using information technology? Read more…

Gibbs

[ 155 ] August 10, 2010 |

It’s not just that his comments were foolish on the merits. They would seem to demonstrate that he’s completely incompetent. I’m pretty dubious about the efficacy of the “Sister Souljah” routine in any case, but in this specific case it’s all downside and no upside. How many of the low-information centrist voters who are hypothetically supposed to find attacks on liberal activists pleasing read the Hill or the blogs that would discuss it? The audience being attacked is the only audience who cares and is paying any attention. And the non-walkback walkback certainly doesn’t help anything.

We need our own Ari Fleischer; even if he can’t be as accomplished a liar, at least he’d know to keep his focus on his actual enemies.

On a long enough timeline, the survival rate for everyone drops to zero

[ 6 ] August 10, 2010 |

RIP Ted Stevens.

[UPDATE BY ROB] I’m sure that Dave intended to post this…

Are you looking for 70-542 & 70-683 exams help? You can download our 70-431 and MB6-819 demos to pass in a hassle free way of 70-523 exams.

Judgifying Wingers Don’t Like

[ 6 ] August 10, 2010 |

Seeing this made me want to check in on Conservapedia and see what their classic entry on judicial activism looked like these days.   Fortunately, it’s still enough to make you think the site was a parody, improved by the fact that we now know it’s not.    It starts off in relatively neutral-sounding terms:

Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action.

Hmm, let me try to think of a recent example of that last phenomenon….anyway, eventually they cut to the chase:

In this regard, judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate.

So judicial activism is something that, by definition, liberals and only liberals do. I wish it was only wingers who accepted this as opposed to a lot of “centrist” pundits. But things get even better:

Judicial activism should not be confused with the courts’ Constitutionally mandated rule in preserving the Constitutional structure of government, as they did in Bush v. Gore, Boy Scouts v. Dale, and D.C. v. Heller.

Yes, if anything is fundamental to our structure of constitutional government, it’s that ballots cast under different voting systems must be counted in the same way if this is necessary to elect a Republican president, and in no other cases. And of the three cases they mention, it’s also instructive that they pick one that involves limiting the reach of civil rights laws. Conveniently, their examples of “judicial activism” draw a line under this:

# Brown v. Board of Education – 1954 Supreme Court ruling ordering the desegregation of public schools.
# Griswold v. Connecticut – 1965 Supreme Court ruling establishing a constitutional right to posess [sic], distribute and use contraception.
# Loving v. Virginia – 1967 Supreme Court ruling requiring the legalization of interracial marriage.

Well, at least they’re consistent! Your classier wingnuts tend not to apply their views in such a logical manner. I’m disappointed, however, that they didn’t add to this a traditional Republican complaint about how Ted Kennedy “slandered” Robert Bork by mentioning his publicly stated views in public. And hopefully from somebody Pajamas Media will add some information about how liberals “litigate from the bench”….