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Loving and Constitutional Traditionalism

[ 16 ] May 5, 2008 |

In light of the passing of Mildred Loving, it’s useful to return to standard set out by Antonin Scalia to apply the equal protection clause in cases that don’t involve installing a political ally in the White House:

I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). Such formulas are essential to evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with that “equal protection” our society has always accorded in the past [sic]. But in my view the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them.

Under this standard, I think Loving is clearly wrongly decided. Bans on interracial marriage are not unambiguously prohibited by the Constitution, and there was an unbroken tradition of such bans in 1967. With Brown, at least, the traditionalist (while on exceedingly shaky ground) might be able to claim that apartheid was a minority, sectional tradition rather than a truly national one. But bans on interracial marriage existed in many states North and South, and in Gallup surveys taken in the 50s were supported by huge national majorities. If traditionalism is the right way of interpreting ambiguous constitutional traditions, Loving is wrong.

The point here, of course, if not that there’s any chance that Scalia would vote to uphold such a ban today, but rather that the idea that traditions of discrimination are self-justifying is a singularly unappealing way of reading the Constitution. The idea that we can’t consider inviduous gender distinctions (for example) an equal protection problem because they weren’t considered problematic in 1865 is unpersuasive in the extreme.

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A Legend Passes

Mildred Loving, who (along with her husband) successfully challenged Virginia’s anti-miscegenation law in 1967, has died. Loving’s case was a landmark for civil rights, but she never intended to be a boundary-breaker:

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard [NB: Richard Loving died in car accident in 1975] and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights. I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.—Mildred Loving, June 12, 2007, on the 40th anniversary of the Loving v. Virignia decision.

The Supreme Court’s decision in Loving is available here.


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See the Forest for the Trees, Man…

[ 0 ] May 5, 2008 |

Ronaldo picked up tranvestite hookers? Mr. Trend seems to think there are more important stories to talk about in Brazil. I’m unconvinced.

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Canada’s Contribution

[ 0 ] May 5, 2008 |

Back in 2005 I sat on a panel at the University of Kentucky library on the future of the wars in Iraq and Afghanistan. At one point the conversation became heated, with an interlocutor from the audience suggesting that those who opposed the wars should move to Canada, where (and I paraphrase) the people seemed to have little inclination for fighting in defense of liberty and freedom. I was forced to remind the questioner that Canada had entered the fight against Kaiserine Germany nearly three years prior to the United States, and Nazi Germany more than two years prior. In both conflicts, Canada suffered casualties proportionately far greater than the United States. Nevertheless, in the right-wing imagination Canada seems to exist as a Great Pacifist North, the area to which hippies flee to avoid the draft and which demurred from joining the crusade to liberate Iraq.

It’s in this context that articles like Samantha Power’s recent Time magazine piece are particularly important. Canada has borne a disproportionate share of the fighting in Afghanistan, and has suffered dreadful casualties. Eighty-two Canadians have thus far been killed in Afghanistan, as compared with ninety-five from the much larger UK contingent. The death rate has taken its toll on Canadian public opinion, but one lesson of the Power article is that Iraq continues to poison everything; to the extent that the Afghan operation is conceived of as part of greater US foreign policy, it becomes less popular.

Power suggests that NATO rules be altered such that members that contribute less in terms of fighting forces should be required to contribute more to the funding and reconstruction side. To be fair, much of this already goes on, but the interaction could nevertheless be further institutionalized. Given that the non-American percentage of casualties in Afghanistan has steadily increased since 2001 (this year, they outpace American 34 to 21), tensions that strain the NATO alliance seem likely to increase.

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Great Moments in Wingnut Overreaction

[ 21 ] May 5, 2008 |

So a group of Swiss biologists and philosophers produce a report suggesting that humans perhaps shouldn’t arbitrarily destroy plants. While the report was commissioned by the Swiss government, and though it attempts to flesh out certain concepts — like “dignity” and “living beings” — that are relevant both to the Swiss constitution and to recent biotech legislation, the report itself is merely advisory.

If you’re a reasonably sane person living in the United States, news of this report might strike you as uncontroversial, or innocuous, or maybe even a bit confusing, given the fact that your own country has spent several years waging a grotesque and fraudulent war in Iraq that’s squandered hundreds of thousands of human lives. What a strange and exotic people, these Swiss, to devote public resources to noodling over the ethical treatment of plant life.

If you’re a wingnut, though — particularly one who happens to be affiliated with the Discovery Institute — you know better than to let this pass without time an embarrassing freak out. And so:

What is clear, however, is that Switzerland’s enshrining of “plant dignity” is a symptom of a cultural disease that has infected Western civilization, causing us to lose the ability to think critically and distinguish serious from frivolous ethical concerns. It also reflects the triumph of a radical anthropomorphism that views elements of the natural world as morally equivalent to people.

Why is this happening? Our accelerating rejection of the Judeo-Christian world view, which upholds the unique dignity and moral worth of human beings, is driving us crazy. Once we knocked our species off its pedestal, it was only logical that we would come to see fauna and flora as entitled to rights.

The remainder of the piece is worthy of Jonah Goldberg. That is, Swiss ethicists — posing genuinely interesting questions about the relationship between human and non-human organisms — are asked to explain why they aren’t revealing their true agenda, which would include mandatory abortion, euthanasia, organ-harvesting, sterilization, and forced human extinction. Of course, when you proceed from the conviction that biological science jumped the shark during the mid-19th century, subtlety is probably too much to ask.

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Fighting For What?

[ 0 ] May 5, 2008 |


Clinton is presently making a big deal about the fact that she is “a fighter”. After this primary season, I don’t think there can be any doubt about her willingness to fight. What Clinton’s gas tax proposal tells me is what she’s willing to fight for. She is not willing to fight for what she thinks is right in the face of public pressure. She’s not even willing to restrict her compromises to cases in which public pressure to do something stupid already exists. She will sacrifice principle and the public good when it’s expedient for her to do so.

I guess that has always been one of my two major problems with Clinton’s candidacy. Even if we concede that she’s a “fighter,” whether or not these fighting skills will be consistently used on behalf of progressive values is another question entirely. (There was a better argument to be made about this in terms of electability, but the result of the primary despite her large inherent advantages, her reliance on Mark Penn, etc. speaks for itself. Primaries, in this sense, do provide important information.) Having said that, I would find the gas tax stupidity considerably less objectionable if she had a non-trivial chance of winning the nomination. Given that Obama is nearly certain to actually be the candidate, agreeing with John McCain to not only endorse a bad policy bit reinforce GOP frames about the party’s nominee is pretty odious.

With respect to my other major objection, Hilzoy cites Clinton’s vote authorizing the Iraq War as another example. I’m actually not so sure; I think it’s entirely possible (indeed, I think, more likely) that Clinton thought her vote on the war was right on the merits. In terms of evaluating her as a potential president, though, I think this is worse.

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Projections of Puddle-Deep Minds

[ 0 ] May 5, 2008 |


Hillary and her posse pressed hard on their noble twin themes of emasculation and elitism.

Yes. Hillary’s theme.

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As if We Needed More

Further proof that Henry Wade (of Roe v. Wade — and other fame and/or infamy) was a total asshole.

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Sunday Book Review: Live From Jordan

[ 1 ] May 5, 2008 |

In mid-2002, Benjamin Orbach traveled to Jordan. Orbach was 27 at the time, and wanted to improve his Arabic language skills. This is hardly unusual; a handful of Patterson students travel each year to the Middle East and elsewhere to work on languages, an experience which is shared by any number of other young professionals. Orbach’s story is interesting for two reasons; he spent much of his time writing letters, and he lived in Jordan (and later in Egypt) during the build up to the Iraq War.

Live from Jordan is structured as a series of letters to friends in the United States. The book doesn’t simply reprint these letters; they’ve been edited and pasted together to make the whole more coherent. Orbach’s thoughts on the war were muddled; this is to be expected, I think, of what amounts to eight months or so of thinking through the long buildup to the conflict. Orbach made every effort to avoid Monday morning quaterbacking, although of course different things will appear important in hindsight than at the time. Eventually Orbach was forced to leave Jordan out of concern for his safety, moving to Cairo to continue his studies. He took advantage of his time in the Middle East to travel, visiting Syria, Palestine, and Turkey. Orbach is Jewish, but didn’t publicize the fact while traveling in Islamic countries. When I asked him about this he said that he’d act differently if he had it to do over again, but I kind of get the sense he made the right decision in 2002-3.

Like most good travel literature, Orbach portrays some scenes of genuine peril. His description of his first day in Jordan is interesting enough, but I found his accidental visit to a Turkish nightclub even more entertaining. The effort of the brother of one of his Jordanian friends was probably less dangerous, but somehow felt more disconcerting. That said, I’m not sure that his experience was all that different or more perilous than that of any American traveling this part of the world immediately prior to the war; I recall that even in Germany Americans were given warnings about how to carry themselves in public areas.

I’m not sure that Live From Jordan is a must read from a policy standpoint; there’s some interesting stuff here, but it’s not really eye popping. For example, his description of America-hating terrorists as “nihilists” really misses the mark, although it is unfortunately reminiscent of Christopher Hitchens; people who believe in nothing rarely take the time, trouble, and expense to suicidally blow things up. Still, as a travel book there’s a lot to like. Orbach has a lot of experiences that seem pretty typical of an American visiting the Middle East, and anyone who’s about to venture to that area (or anywhere else unfamiliar, really) could find a lot that’s of use in his work. I do have to wonder whether the epistolary travel narrative is long for this world, however. It seems to me that the blog will come to dominate this kind of story, having the advantage of near real-time distribution and of immediate feedback. Several friends of mine have travel blogs, and Ben himself now has a blog.

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Russian SSBNs not Patrolling

[ 0 ] May 4, 2008 |

Hans Kristensen has a good post on the inactivity of Russian SSBNs:

The number of deterrence patrols conducted by Russia’s 11 nuclear-powered ballistic missiles submarines (SSBNs) decreased to only three in 2007 from five in 2006, according to our latest Nuclear Notebook published in the Bulletin of the Atomic Scientists.

In comparison, U.S. SSBNs conducted 54 patrols in 2007, more than three times as many as all the other nuclear weapon states combined.

The low Russian patrol number continues the sharp decline from the Cold War; no patrols at all were conducted in 2002 . The new practice indicates that Russia no longer maintains a continuous SSBN patrol posture like that of the United States, Britain, and France, but instead has shifted to a new posture where it occasionally deploys an SSBN for training purposes.

Kristensen notes that the SSBN schedule stands at odds with the tempo of the rest of the Russian Navy, which has increased substantially over the past year and a half or so. The short explanation, I suppose, is that SSBN operations don’t really convey all that much prestige; they sail into the Arctic and hide, but don’t impress anyone other than a few whales. Taking this a step farther, I think that it confirms impressions that the Russian Navy operates today primarily as a public relations organization.

I would also guess that the survivability of those Russian SSBNs in a hot war is pretty low; the Russian Navy is no longer capable of providing layered “fortresses” for its boomers as it did in the Cold War, and the old Deltas can’t be much of a match for modern US attack boats. Fortunately, no one seems to care.

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[ 0 ] May 4, 2008 |

Let me second Yglesias’ recommendation of this Dave Meyer post on signaling. Meyer concentrates on the public relations aspect of signaling behavior in a democracy, but here are some assumptions that have to hold for a strategy of “signaling”, such as invading small countries in order to demonstrate that we’re tough, to work:

  1. Signals are unambiguous: The meaning of our signaling is not subject to interpretation, such that different people could, based on different priors, carry away different meanings.
  2. Signals always indicate what we want them to indicate: This is related to the first; if we are trying to send a signal of strength, then we send a signal of strength, not a signal of mean, stupid, crazy, etc.
  3. We never develop a bad reputation, except for weakness: This is related to the first two; our effort at signaling strength doesn’t have reputational costs. If we invade his country, the Other will understand us as strong, rather than as brutal, imperialistic, crusading, evil, etc.
  4. No one ever considers that we might be trying to deceive through signaling: This is probably the most important. If signaling is about creating a reputation for strength, and if a reputation for strength is a positive good, then obviously there’s an incentive to lie about being strong. The entire premise of signaling depends on no one noticing that we have an incentive to lie about our own strength.
  5. We know our own strength: Our effort to communicate the true level of our resolve is dependent on knowing what that level is. However, the resolve of the American people to crush enemies of the American public is a value that is unknown to anyone, including our leadership. At best we’re guessing, which basically means that every effort to signal is essentially deception.

Unfortunately, none of these assumptions hold. Worse, in an effort to signal that we have the will to crush small countries under our boot, we often seem to gut our capability to do so; even if attacking Iran were a good idea, the military deployment in Iraq has made such an effort impossible.

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How Apropos

So, I am studying for my last-ever law school exam. And it’s in professional responsibility, which, for you non-lawyers (and I hope there are lots of you), is an ABA requirement. Even though I have already taken (and passed) the MPRE. And let me tell you, I am struggling. Not only am I just plum out of steam, but also this is not the most scintillating topic ever.

At least I’ve got the NY Times (and my buddy Adam Liptak) trying to help me out and keep me interested. And I have to say – the question the article addresses (namely, the extent of a lawyer’s duty of confidentiality to a now-deceased client when the lawyer has information that would exonerate another person) is an interesting one. The article suggests that ethics experts like drawing a clear line at preventing imminent death, which is to say that a lawyer can violate a confidence if doing so would exonerate someone facing the death penalty, but not someone serving life. In some ways, this rle makes a lot of sense. Bright lines are easier to patrol and we have to make sure that we protect the relationship of trust between a client and his or her attorney, particularly in the criminal defense context. But when we balance a life sentence against a dead client, I’m just not sure our current rule makes sense.

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