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Ex Post Facto

[ 0 ] October 19, 2007 |

To answer Atrios’s question, the constitutional prohibition on ex post facto laws has been held to apply principally to criminal, not civil, cases. Also, the implicit purpose of the provision is to act as a constraint on the state’s power to punish the individual by retroactively criminalizing acts; state action that exempts individuals (or corporations) from punishment or liability doesn’t really apply.

More importantly, of course, immunizing corporations who assisted the government in illegal acts regardless of the facts is certainly appalling even if it’s constitutional.

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The "You Always Have To Help Someone Else" Tactic

[ 5 ] October 19, 2007 |

Yglesias identifies a key strategy for opposing progressive change without openly opposing the underlying goals:

One has to keep in mind the broader picture here, too. The right’s main tactic whenever Democrats want to do something that might be helpful to any group of citizens everywhere is to identify some even more desperately poor group and claim that their opposition to helping out is driven by a die-hard commitment to these truly needy types. Try to help the working class, and the underclass are trotted out for moral blackmail. Try to help the middle class, and what about the poor? But then when push comes to shove, these are the same people trying to cut section eight housing programs, trying to cut food stamps, etc. The only people they’re really serious about helping are the extremely wealthy beneficiaries of their tax cuts.

Exactly. I think my favorite somewhat recent example of this feeble diversionary tactic was David Velleman’s opposition to grad student unionization at NYU on the grounds that janitors in Houston are even worse off. (And, of course, the fact that this unionization might lead to mild restrictions on his own privileges rather than someone else’s is just an amazing coinky-dink!)

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[ 0 ] October 18, 2007 |

Not that I don’t agree with McCarver about Ramirez not hustling, and if anything I’m cheering for the Tribe in this series, but how many times can they show the ball clearly bouncing over the yellow line and claim that the replays are indeterminate? Yeesh.

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Lest We Forget…

[ 0 ] October 18, 2007 |

When faced with something like this, it’s critical to remember that what we call “races” and “ethnic groups” are primarily socio-political categories rather than genetic concepts. Loomis elaborates, with evidence:

John Svan was a Finnish immigrant to the United States. He came to this country sometime before 1882. But he was not considered white by the United States government. Why? He carried with him the blood of his “Mongolian” ancestors. This meant he could not become a citizen. Various laws were passed in the late 19th and early 20th centuries, restricting US citizenship to those of the white and black races. These laws were intended to discriminate against Asians, but what about Finns? Were they white?

Read the rest.

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Sputtering Stupidity of the Day

[ 0 ] October 18, 2007 |

The House failed to override Bush’s veto of S-CHIP. Here’s what Dana Perino had to say about it:

The White House said President Bush was pleased with today’s result. “As it is clear that this legislation lacks sufficient support to become law, now is the time for Congress to stop playing politics and to join the president in finding common ground to reauthorize this vital program,” said Dana Perino, Mr. Bush’s spokeswoman.

There are no words.

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A 2008 Vanity Campaign From the Right?

[ 0 ] October 18, 2007 |

I’m still unconvinced.

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A Washington Naval Treaty for Submarines?

[ 1 ] October 18, 2007 |

Sonar kills whales, and Yglesias links to an interesting Hendrik Hertzberg article making the following proposal:

Any real solution would have to be international, involving some serious diplomacy aimed at a new kind of arms control. The cat-and-mouse games played by submarines may have made a certain kind of sense during the Cold War, but what is the point of them now? Russia is annoying, but it is no longer our mortal enemy. The Chinese have no desire to bury us, except under piles of sneakers and kitchen appliances. Al Qaeda’s navy, as the Cole incident showed, consists of the odd motorboat. The terrorists have no submarines. Perhaps the immense sums still spent on naval toys whose strategic rationale is obsolete could be redirected to teaching the relevant personnel, humans and dolphins alike, to speak Arabic.

I’m skeptical. To overly simplify matters, there are really two kinds of arms control agreements, and neither of them fit submarines very well. The first kind, into which the Washington Naval Treaty or the SALT agreements might fit, try to limit the numbers and types of roughly symmetrical weapons held by countries with roughly symmetrical capabilities. For example (and to simplify even further) the Japanese, British, and Americans recognized in the 1920s that it was okay to limit oneself to 15 battleships apiece as long as the other major powers did the same. It didn’t do anyone any good to have an unconstrained arms race that might invite pre-emption and increase tension, but that in the end would probably result in roughly the same balance of power. Similarly, strategic arms limitation between the US and USSR was based on the idea that both states could make do with just thousands of nuclear warheads, rather than many multiples of that number. The ABM Treaty was based on more or less the same logic.

Unfortunately, this logic does not apply to submarines. Despite the fact that the United States has the largest fleet of advanced nuclear submarines in the world, submarines remain, fundamentally, weapons of the weak. Submarines are relatively cheap, difficult to detect, and can kill much more expensive capital ships. Accordingly, states that don’t feel they have a chance in a normal naval encounter tend to build lots of submarines. Kaiserine Germany resorted to a submarine campaign after Jutland demonstrated the futility of trying to destroy the Grand Fleet. The German surface fleet in World War II was hopelessly outmatched by the Royal Navy, and thus resorted again to submarine warfare. After the war, the recognition on the part of the Soviets of overwhelming and long term Western naval superiority led down a similar path. Unsurprisingly, the PLAN (deficient in surface ships) has a strong submarine arm, the Russians have preserved their submarine fleet better than their surface, and the Iranians and the Venezuelans have both concentrated big ticket procurement on submarines rather than surface vessels. The USN launched a very successful submarine campaign against the Japanese in World War II (as part of a larger Mahanian campaign), but the US submarine fleet was primarily oriented towards the defense against and destruction of the Soviet submarine fleet during the Cold War.

What this means is that, unlike the situation with battleships and nuclear warheads, an effort to ban submarines would involve a significant redistribution of world naval power. If the Chinese and Russians can’t have submarines, then they might as well pack up and go home; the USN will go where it wants and do what it wants to whom it wants without difficulty. Now, as Hertzberg and Yglesias suggest, maybe major power war is obsolete and pointless, and anyway submarines aren’t terribly effective against terrorist. That may be true, but the problem is that you would have to get the major powers to agree for the very long term that they have no disputes susceptible to militarization, and thus no reason to worry that overwhelming US naval superiority will be used against them. In other words, in order to ban submarines you essentially have to get the big states to agree that they’ll be peaceful forever. If we could manage that, great, but while we’re at it, we should probably ban all other kinds of weapons as well.

The second kind of arms control agreement involves the declaration of some particular weapon type as immoral, and thus worthy of being banned. There’s some overlap with the first, certainly; the Washington Naval Treaty wouldn’t have come about without the slaughter of World War I, and the nuclear limitation agreements (although not necessarily the ABM Treaty) were premised on the idea that nuclear weapons are icky. Bans on chemical and biological weapons and on land mines would fall into this category. There was certainly some thought given in the interwar period to banning submarines; the British considered their use barbaric and in violation of international law, for example. Those efforts really went nowhere, however, in large part because of the recognition by weak states that strong states would always have an advantage in capital ships. Future efforts to ban the submarine (especially those with an environmental logic) would probably have to be along these lines, but for the reasons laid out above, I’m not optimistic. In particular, the primary reason for declaring submarines icky was that they would most often be used against civilian merchant shipping, and that their use would almost invariably violate the rules that regulated the interaction of civilian and military shipping. That logic no longer applies; no one expects the Chinese, in the case of a militarized dispute over Taiwan, to engage in an anti-commerce campaign. Instead, Chinese subs will target American carriers, which are legitimate military targets.

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Defending the Indefensible

[ 0 ] October 18, 2007 |

Ross Douthat tries to defend ineffective and inequitable abortion criminalization policies:

Whereas we know that when abortion was legalized in America in the early 1970s, the abortion rate went up dramatically; we also know that Western Europe, which has lower abortion rates than the U.S., also has (somewhat) more restrictive abortion laws. Which suggests if you’re serious about reducing the abortion rate in America (as opposed to taking the “more abortion is a good thing” line that Matt espouses), the Edelstein-Saletan answer is something of a cop-out; if some kind of restriction isn’t on the table, you probably aren’t going to get very far.

A few obvious problems here:

  • First of all, the comparative analysis cuts both ways. Since Western Europe also for the most part lacks powerful movements dedicated to opposing rational sex education and access to contraception for unmarried people and also has a stronger safety net (making it easier for poor women to bear children), its lower abortion rates don’t answer the dispute here; they’re just as consistent with the thesis that these policies lower abortion rates more than criminalization. Douthat also ignores Latin America, which has pretty much the exact mix of policies favored by most American anti-choicers (abortion bans, reactionary sexual and gender mores, threadbare safety net) and also has sky-high abortion rates.
  • Douthat also makes the common error of conflating the quantity of formal restrictions on abortion with access to abortion. Since most European abortion restrictions are either similar to ones on the books in most American states or affect only the tiny fraction of late term abortions, the assumption that European women have less access to abortion than American women on the ground is highly problematic. Moreover, of the common non-ban regulations the most important is denying funding for poor women — which is available in most of Europe and not in most American states. And finally, Canada — which has almost entirely unregulated and state funded abortions — also has lower abortion rates than the United States; the same is true of the Netherlands, which effectively has state-funded abortion on demand (unless you consider showing a “state of distress” after 12 weeks is a difficult standard) for pre-viability abortions. This suggests again that the level of abortion regulation has fairly marginal effects on abortion rates.
  • Finally, Douthat entirely ignores the key implications of the study. How could the marginal-at-best reductions in abortion rates possibly justify the arbitrary enforcement, grossly inequitable effects, and the great harm caused to women that are all endemic to the legal regimes Douthat advocates? Like most anti-choicers, Douthat simply hides under the table when the question comes up.
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GO CATS! And Huck the Fuskies…

[ 0 ] October 18, 2007 |

Indeed. One of the nice things about working at an SEC school is that literally ever other team in the conference is worthy of my loathing and derision (with Tennessee deserving a special kind of hate). So yes, go Cats, beat Florida.

Unfortunately, my attention on Saturday will be drawn away from Lexington and towards Seattle, where my beloved Ducks will do battle against the premier manifestation of evil in the modern world, the Washington Huskies.

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[ 0 ] October 18, 2007 |

Apparently, the holiday season is fast approaching. I know this because the number of catalogs I receive just shot up exponentially. But this year, I’m taking action and “unsubscribing” from virtually all of them — for free — here.

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Maine School Gets Smart

[ 0 ] October 18, 2007 |

Yesterday, a Maine school board decided to allow a Portland middle school to open confidential health clinic within the school. The clinic will provide basic health services (like immunizations) as well as sexual health counseling and birth control. Kids will not need their parents’ permission to obtain birth control, though they will need their parents’ permission to be treated at the health center in the first place.

Amazingly, all but two members of the 12 member board voted to approve the center.

And while the sane were represented at the hearing, so were the (wing)nuts:

“It has been shown, over and over again, that this does not increase sexual activity,” said Pat Patterson, the medical director of School-Based Health Centers.

Reaction was mixed.

“This is really a violation of parents’ rights,” Peter Doyle, a Portland resident, told the committee. “If there were a constitutional challenge, you guys would be at risk of a lawsuit.”

Pat Patterson is right, and I’m so glad to see her or him shooting down the right wing argument (advanced by foes of BC and EC) that the availability of birth control makes kids crazy sex animals. Regarding Peter Doyle’s argument, it’s not so clear whether he’s right or wrong. Parents definitely have a constitutionally protected interest to raise and educate their kids in the way they want to (within limits). But as kids grow up they too develop their own competing privacy rights. Some states already allow minors to access birth control without parental permission. If middle school kids can be sentenced to life in prison, there’s nothing incongruous about giving them (all teens) the tools to lead healthy lives.

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Yeah, Surrrrrrre…

[ 0 ] October 18, 2007 |

For those unclear on the concept of bluffing, here’s Brian Cashman:

But yesterday after meeting with the three Steinbrenners and other members of the Yankees brain trust, Cashman said the team absolutely does not plan to negotiate with Rodriguez if he opts out. Another source familiar with talks told Newsday the Steinbrenners are absolutely onboard with that.

“Yes, I can affirm that,” Cashman said. “If Alex Rodriguez opts out of his contract, we will not participate in his free agency. That is accurate and that is definitive.”

[5 second pause, entirely for effect] “I re-raise.”

This has been in a lesson in “transparently non-credible bluffing.”

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