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Tag: "human rights"

It Really Doesn’t Even Sound Like Burke

[ 0 ] January 15, 2008 |

Charli Carpenter at Duck:

My quote, attributed to Edmund Burke, read “the only thing necessary for the persistence of evil is for good people to do nothing.” It is commonly quoted by human rights scholars and activists to caution against the bystander effect.

Porter’s essay, replete with exhaustive sources from multiple websites, is a genealogy of the use of this supposed Burkeism, but Porter concludes form his analysis that Burke never actually wrote anything like this.

I’m kind of surprised it took this long. The persistence of evil line doesn’t strike me as Burkean at all; it’s true enough that he supported certain kinds of activism (American Revolution, efforts to strangle the French Revolution), but there’s also such a large and clear strand in his thought that suggests that evil is caused by good people trying to do something, without a well-thought out conception of what that something should be.


Only Ten?

Blogger and commentator Heather Wokusch lists the top-ten worst Bush appointees for reproductive health and rights — the people whose noses Bush has allowed to intrude most into your bedroom.

Her choices are spot-on. Among them: Tom Coburn, the then-Representative (now senator) who believes that doctors who perform abortions should be executed and whom Bush appointed to the President’s Advisory Council on HIV/AIDS (PACHA); Lester Crawford and Norris Alderson, whom Bush appointed to run the FDA and who held up the approval of over-the-counter emergency contraception; and Eric Keroack and Susan Orr, Bush’s choices to head the Population Affairs office in the department of health and human services, the department that controls Title X funding for reproductive health services for poor women.

The only nit I’ll pick with Wokusch’s list is this: she’s got Chief Justice Roberts and Justice Alito as 6 and 7, respectively. While they might not be the most patently offensive choices (at least they are qualified for their posts, as opposed to Keroack), it’s clear to me that their appointments will have the longest-lasting and potentially most-destructive impacts on reproductive justice. Already we have seen their power in the Court’s decision in Gonzales v. Carhart. If this top-ten (or ten-worst) takes any account of the magnitude of impact of these appointees, seems to me that Alito and Roberts should be at the tippy-top.

The Steyn Complaint

[ 9 ] December 10, 2007 |

I agree with Jim Henley and Roy Edroso that the complaint filed in federal and provincial human rights commissions against Mark Steyn is a dangerous threat to free speech. Not because, as Maclean’s is saying in defense, Steyn’s writing isn’t “Islamophobic,” but because the suppression of political speech is exceptionally dangerous. Some people may object that the freedom of speech guaranteed by the Charter is, in Section 1, subject to “reasonable limits” that “can be demonstrably justified in a free and democratic society.” Well, even when the right to free speech (as in the American Constitution) is stated categorically and without explicit exemptions, free speech rights are never absolute. The direct advocacy of violence against groups and individuals, for example, can be regulated if it’s a serious threat. But limitations to free speech that go so far as to include political writing that some groups or individuals find offensive would swallow the right entirely; I can’t see how such limits can be “demonstrably justified.”

But even if we assume arguendo that the legislation permitting the complaint is legal as a matter of constitutional law, it remains true that the legislation is overbroad and that the filing of complaints against Steyn is a chilling attack on free speech. As Henley points out, “it’s naive to think that the political process, which is all about the deployment of relative power, can sustainably suppress the expression of the strong in favor of the expression of the weak.” As I’ve written before with respect to the Canadian Supreme Court’s well-intentioned but misguided attempt to permit the censorship of pornography on feminist grounds — which predictably led to the harassment of gay and lesbian bookstores — if such censorship is necessary it won’t work and if it can work it’s not necessary. The application of inherently vague standards to censor speech is highly unlikely to work to the benefit of groups with less access to political power in the long run. And a right to free speech that doesn’t include speech that one considers objectionable is not a right to free speech at all.

Paul and Abortion

[ 31 ] November 27, 2007 |

Ramesh Ponnuru makes an interesting point about Ron Paul: “What strikes me is what a throwback Paul is among libertarians. Hard money and anti-interventionism move him, but he seems utterly uninterested in the lifestyle questions that have taken up so much of Reason for the past decade.” Indeed, he’s not merely indifferent to all such questions but in fact is a proponent of using state coercion to force women to carry pregnancies of term. Gillespie and Welch try to get around this by using the classic federalism dodge, asserting that Paul “nonetheless believes that federal bans violate the more basic principle of delegating powers to the states.”

As Ponnuru also notes, however, this won’t wash because he voted for the federal “partial birth” abortion ban. Moreover, from a libertarian perspective the “partial birth” ban is, if anything, less defensible than voting for a total ban. Libertarians could in theory justify a ban because most would see the protection of human life as a legitimate use of state power (although in practice criminalization does very little to actually protect fetal life, and Paul’s libertarian positions on other issues would almost certainly increase abortion rates by a massive extent.) The ban Paul voted for, conversely, does nothing to protect fetal life, but simply tries to force doctors to perform abortions using less safe methods in some cases. Even on its face, therefore, such legislation is about regulating female sexuality and punishing women for making choices the state doesn’t approve of, which is as inconsistent with any coherent set of libertarian principles as it is with “states’ rights.” Paul is more consistent than most Republican-affiliated “libertarians” — he’s not willing to make up ridiculous arguments in favor of the Iraq War, for example — but his libertarianism doesn’t seem to apply to these kinds of issues of individual freedom.

The lesson here is the obvious one: like libertarians, people willing to forego strongly-held substantive preferences in the name of federalism “are as rare as pieces of the True Cross.” And when almost anybody tells you that by advocating the overturn of Roe they want to “send the issue back to the states,” they’re almost certainly lying.

Will He Also Get Some Ships Named After Him?

[ 22 ] November 26, 2007 |

With #2 Senate Republican Trent Lott apparently set to retire, it seems worth returning again to the Dixiecrat Platform that Lott endorsed in 2002:

4. We stand for the segregation of the races and the racial integrity of each race; the constitutional right to choose one’s associates; to accept private employment without governmental interference, and to learn one’s living in any lawful way. We oppose the elimination of segregation, the repeal of miscegenation statutes, the control of private employment by Federal bureaucrats called for by the misnamed civil rights program. We favor home-rule, local self-government and a minimum interference with individual rights.

5. We oppose and condemn the action of the Democratic Convention in sponsoring a civil rights program calling for the elimination of segregation, social equality by Federal fiat, regulations of private employment practices, voting, and local law enforcement.

6. We affirm that the effective enforcement of such a program would be utterly destructive of the social, economic and political life of the Southern people, and of other localities in which there may be differences in race, creed or national origin in appreciable numbers.

7. We stand for the check and balances provided by the three departments of our government. We oppose the usurpation of legislative functions by the executive and judicial departments. We unreservedly condemn the effort to establish in the United States a police nation that would destroy the last vestige of liberty enjoyed by a citizen.

8. We demand that there be returned to the people to whom of right they belong, those powers needed for the preservation of human rights and the discharge of our responsibility as democrats for human welfare. We oppose a denial of those by political parties, a barter or sale of those rights by a political convention, as well as any invasion or violation of those rights by the Federal Government. We call upon all Democrats and upon all other loyal Americans who are opposed to totalitarianism at home and abroad to unite with us in ignominiously defeating Harry S. Truman, Thomas E. Dewey and every other candidate for public office who would establish a Police Nation in the United States of America.

9. We, therefore, urge that this Convention endorse the candidacies of J. Strom Thurmond and Fielding H. Wright for the President and Vice-president, respectively, of the United States of America.

In fairness, after Lott’s claim that this platform would have effectively addressed “these problems,” which should have been unsurprising given his history of ties to racist origanizations, he was briefly demoted from being Senate Majority Leader to being only the powerful chairman of the Rules Committee…

Release & Re-Entry

It’s no surprise at this point to learn that the prison door is revolving. Recent studies show that up to 2/3 of those recently released from prisons are rearrested within three years. Recidivism is expensive. It’s also preventable, up to a point.

It’s not hard to see why recidivism rates are so high in the U.S. In 1994, Congress cut federal Pell Grant funding for prison education programs, effectively eliminating college education programs for incarcerated men and women (with the exception of a few privately-funded programs, including one in NY run and financed by Bard College). This despite the fact that about one-tenth of one percent of Pell funding went to prison education programs to begin with and despite the knowledge that virtually every study to address the issue shows that educating people while they are incarcerated dramatically reduces recidivism rates. The genesis of such a punitive (pardon the pun) attitude toward the incarcerated is clear:

Even though crime rates were actually dropping in the 90’s, many argued that judges were letting felons off too lightly and that the ”rights” of victims needed to be taken into account. Thus, beginning in the early 90’s, prison regimes were tightened, even as mandatory minimum sentences and three-strikes laws meant more and more people came into the system and stayed. In this climate few politicians were ready to stand up for higher-education programs for prisoners. Before 1995 there were some 350 college-degree programs for prisoners in the United States. Today there are about a dozen, four of them in New York State.

Education can do a lot, but it can’t fix the recidivism problem alone. Support for those re-entering society upon release is vital, too – job training, help navigating the internet, a place to stay while finding a way to be financially independent and stable. But few to none of these support systems exist in any organized, state-funded way. An unusual exception can be found in Texas, where state officials are reacting to the high societal and monetary costs of recidivism by providing job training classes, drug treatment programs, and psychiatric counseling to re-entering men and women.

Still, even those who most undeniably deserve re-entry help — men and women who were falsely convicted and have since been incarcerated — are not receiving much in the way of support. As the NY Times reported in a huge multimedia feature today, exonerees often re-emerge into a world they don’t know, without familial or community support. They often face depression and PTSD, with many even wishing to return to the predictable daily rhythms of prison life. Some receive compensation from the states in which they were convicted, while others get no financial help at all.

It seems to me undeniable that prison education, in-prison counseling, and re-entry support would reduce recidivism rates and make communities safer. It’s not “soft on crime” to want programs that are efficient and, yes, humane. Yet there’s no move to restore even minimal federal funding for prison education, and re-entry programs fight tooth and nail for what little money there is. Still, we pretend that we don’t throw away the key.

Telling it Like it is.

It’s Monday, which means it’s time for another round of your [semi-]weekly Adam Liptak appreciation. This week, Liptak takes a closer look at the effect of Female Genital Mutilation on applications for political asylum in the U.S.

When Alima Traore was a young girl in Mali, parts of her genitalia were cut off, which is the custom there.

“In my country, usually there is an old lady who does circumcision,” said Ms. Traore, who is 28, lives in Maryland and works as a cashier. “They have a small knife that they cut the intimate parts with. It is very atrocious.”

In September, the Board of Immigration Appeals rejected Ms. Traore’s plea for asylum and ordered her sent back to Mali. It ruled that she did not face persecution there, because the cutting, while “reprehensible,” could not be repeated. “The loss of a limb also gives rise to enduring harm,” the board said, but it would not be a good enough reason to grant asylum.

The standard for asylum under US immigration laws is that a person must have a “well founded fear” of persecution if they are forced to return to their country of origin. Apparently, having your clitoris sliced with a dirty knife and without anesthetic at some point in the past and being told by your father that if you return home you will be forced to marry your first cousin does not provide a “well founded fear” of persectuion. Keep in mind, however, forced sterilization or abortion is per se enough to show a well founded fear of persecution, even though forced sterilization is not repeatable.

So what gives? Some think that decisions like this one are a result of a male-dominated immigration judicial system:

Karen Musalo, the director of the Center for Gender and Refugee Studies at Hastings College of the Law, said that reasoning was the product of a judicial system dominated by men.

“Are women’s rights human rights?” Professor Musalo asked. “Isn’t it a human right not to be forced into a marriage?”

Professor Musalo had a theory about why the board treated forced sterilization differently from genital cutting. Sterilization affects procreation and motherhood, which are valued by men. Genital cutting, by contrast, affects only women’s sexual pleasure and autonomy.

Makes sense to me. It also seems like a further extension of Bus Administration reproductive policy. The thinking goes like this: we must condemn forced sterilization and especially forced abortion because we think abortion is bad and that women should be able to have babies…in fact, they should be popping them out! But we don’t really care if women have to endure tremendous pain every time they have sex because of genital cutting or are forced to marry their first cousins, so long as they keep birthing those babies! Sex isn’t about pleasure for women” anyway.” With that as the context, developments like Ms. Traore’s case aren’t all that surprising.

Happy Anniversary!

[ 19 ] October 24, 2007 |

Via Roy, I see that conservatives are whining about the great day 20 years ago on which arch-reactionary Robert Bork was justly rejected by the Senate. First if all, it’s worth repeating that in this case the Senate functioned as it should, focusing on constitutional philosophy rather than trivial details, and that attempts to turn “Borking” into a pejorative notwithstanding, it’s ridiculous to argue that the President can consider ideology in nominations but the Senate cannot consider in in confirmation.

In addition, for the occasion it’s worth once again excerpting Bruce Ackerman’s devastating review of Bork’s shoddy, transparently outcome-orietnted attempt to defend his “originalism” in The Tempting of America:

Bork has succumbed to his own temptation. Proclaiming his fidelity to history, his constitutional vision is radically ahistorical. Pronouncing an anathema on value relativism, his jurisprudence brings skepticism to new heights. Insisting on the sharpest possible line between law and politics, his bitter concluding section transforms a legal treatise into a Red-baiting n3 political tract. Tempting reveals that Bork’s ordeal has transformed him into a human type that I, at least, had previously encountered only in Dostoyevsky novels. Mutatis mutandis, he is America’s Grand Inquisitor — grimly excommunicating heretics in the name of a Cause he has inwardly betrayed.


The historical vacuum at the core of Bork’s orthodoxy may seem surprising, since the man spent much of his life as a professor at Yale and had the time to engage in the disciplined historical reflection that his orthodoxy demands. The mystery dissolves when one recalls that Bork’s principal academic specialty was antitrust, not constitutional law. He did not win national leadership in this field by dint of historical research, but by championing the Chicago School of Economics’ notably ahistorical and theory-laden approach to antitrust. Few readers of Bork’s major book, The Antitrust Paradox, would guess that its author would next try to make a name for himself by championing the use of historical methods against the seductions of abstract theory. Indeed, one question left unresolved in Tempting is the extent to which Bork himself is aware of the tension between the ostentatiously theoretical methods of Paradox and the putatively historical concerns of Tempting.

Particularly telling is Bork’s remarkable dismissal of the Ninth Amendment, and its obvious implications for his jurisprudence:

Perhaps we should be grateful, then, that Bork tries to decipher the Ninth Amendment without an independent examination of extrinsic sources. Sticking to the text, he reports that it “states simply, if enigmatically, that ‘[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'”

The puzzle here is why Bork should find the text “enigmatic.” It seems, almost preternaturally, to be written with him in mind. What Bork is up to is precisely to use “the enumeration in the Constitution, of certain rights” to “disparage” the idea that there are other constitutional rights of fundamental importance. I especially admire the Framers’ choice of the word “disparage.” I can think of no better word to describe Bork’s general tone. Nonetheless, Bork finds the text enigmatic and yearns for greater clarity…


It is, of course, an old lawyer’s trick to create uncertainty by writing hypothetical texts that, in the writer’s mind, do a better job than the Framers’. Bork, however, does not seem to recognize that what the Framers wrote is stronger, not weaker, than the texts he considers as replacements. His hypothetical “clarifications” would narrowly address the courts and explain to them that they should not “disparage” unenumerated rights. In contrast, the Ninth Amendment speaks to all interpreters of the Constitution, presidents no less than courts, citizens no less than legislators, and expressly cautions all of them against committing the interpretive blunder that Bork would impose in the name of the Framers.

Bork’s jurisprudence in fact had a great deal to do with reaching conservative policy outcomes and very little to do with “originalism.” From the right, Glenn Reynolds makes a similar point.

Of Mothers & Morality

Sui Generis has been following the case of Bobbijean P., the child taken away from her parents – two homeless people struggling with crack addictions. In the neglect proceeding regarding custody over the girl (initiated wholly on the basis of the child’s positive drug screen at birth), her mother was told by a New York family court judge that she must not become pregnant “until she has actually obtained custody and care of (her child) Bobbijean P. and every other child of hers who is in foster care or has not been adopted or institutionalized.” Two weeks ago, a mid-level appellate court unanimously threw out the judge’s order, holding that the family court judge had “no authority to impose the ‘no-pregnancy’ condition.”

Unfortunately, the appellate court did not address the constitutional issues at stake — most centrally, who gets to decide whether, when, and how a woman will bear a child? I’m willing to venture that the state should play no role in that decision — and most certainly should not impose a bar to it.

It seems to me that the U.S. has especially little to say about when and how women can become parents (this applies both to abortion rights and to the rights at stake in this case), when it does so little to support women who do choose to become parents and when it seems to care so little about their health and humanity. Not sure what I mean. Take this excerpt from Sarah Blustain’s recent TAP piece, “No Country for Mothers”:

According to new government numbers, the rate of Americans dying in 2004 (the most recent year to be calculated) hit a record low, while life expectancy — for blacks and whites, men and women — hit a record high. Men were closing their historic life-expectancy gap with women, and African Americans were closing their life-expectancy gap with whites. Even the babies were doing well: The infant mortality rate dropped, too.

Sadly, however, if you are a pregnant mortal living in the United States today, your chances of dying appear to be greater than ever. Yes, the total number of women who die in childbirth in America is low. But according to the Centers for Disease Control’s new “National Vital Statistics Report,” the number of women dying in or around childbirth has risen — putting the United States behind some unsurprising countries, like Switzerland and Sweden, and some surprising ones, like Serbia and Macedonia, Qatar and Kuwait, in its rate of maternal mortality. In rankings calculated on 2000 numbers, the World Health Organization (WHO) ranked the United States at No. 29 on the list, even though, according to the most recent statistics, there is only one country, Tuvalu, that spends more on health care as a percentage of gross domestic product than the United States.

Blustain identifies undertreatment as a central cause of this high mortality rate. Undertreatment because so many millions of pregnant women lack healthcare, especially poor women who most desperately need prenatal care to up the chances that they will give birth to healthy children. How much of a difference does care make? Well, a lot.

Perhaps the most notable fact in the CDC’s new report is that African American women are nearly four times as likely as white women to die in child-birth. That is, while 9.3 white women per 100,000 died in childbirth, 34.7 African American women died.

Admittedly, race is not necessarily a proxy for the level of care. But it’s undeniable that there remains in the US a correlation between race and poverty, and it’s equally uncontrovertible that poverty is linked to lack of access to prenatal care.

To me, the connections seem clear: women like Bobbijean’s mother are punished for being unable to simultaneously carry a pregnancy to term and kick a drug habit. And the state spends plenty of time meddling in her carrying out of her reproductive life. But when it comes to providing affirmative support to pregnant women (drug treatment, prenatal care, whatever), the state just can’t be bothered.

(Sui Generis via Michelle M.)

Proving Too Much

[ 17 ] October 22, 2007 |

You may have heard about this embrace of utter crackpottery from new social conservative darling Mike Huckabee:

Speaking before a gathering of Christian conservative voters, GOP presidential hopeful Mike Huckabee said legalized abortion in the United States was a holocaust.

“Sometimes we talk about why we’re importing so many people in our workforce,” the former Arkansas governor said. “It might be for the last 35 years, we have aborted more than a million people who would have been in our workforce had we not had the holocaust of liberalized abortion under a flawed Supreme Court ruling in 1973.”

Leaving aside the rather problematic economic assumptions here, we have two classic pieces of stupidity and exploitation common to the rhetoric of the forced pregnancy lobby. First, if abortion is a “holocaust,” one wonders why most anti-choicers believe that the alleged primary perpetrators of this genocide should face fewer legal sanctions than if they spat on the sidewalk. And Huckabee would have signed the North Dakota law that also exempted women from punishment for contributing to the “holocaust.” Does Huckabee believe that Eichmann should have been exempt from punishment? Or maybe he should stop using this idiotic and spectacularly offensive analogy?

In addition to the bizarre causal logic, the “Oh no! Giving reproductive rights to women means more furriners undermining the values of Good White Americans by coming here to feed their families!” argument has perhaps broader implications than he intends. If the key problem with abortion is lower birthrates, forget abortion: we need to stop the production and distribution of contraception immediately! Passing arbitrary laws forcing poor women to obtain unsafe abortions will do nothing while Trojans are freely produced! Oh the humanity!

Again, there are few things as bizarre in American politics as “pro-lifers” who demand constant congratulation for having Unyielding Moral Principles as they advance positions that are a moral, legal, logical, and political shambles.

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