Legal Fiction

Atrios (via CAP) says:

Tonight, ABC's "Nightline" will pay tribute to U.S. troops killed in Iraq by airing a 40 minute special – the names of the fallen will be read by anchor Ted Koppel as their photographs appear on screen. But Sinclair Broadcast Group – the country's largest owner of TV stations – will not allow its ABC affiliates to air the show.

This is PRECISELY the problem with excessive media consolidation. In an age where we rely on fewer and fewer sources for more and more of our news, there is a greater danger that we will not be able to get access to news. I elaborated on this exact point in a prior post in which I recommended that the day is approaching when we might need to apply First Amendment protections against actions taken by major private media groups such as Sinclair or Clear Channel that either chill or restrict speech. (Because these groups use the public "spectrum," there is at least a plausible link to the government action that would be necessary before the First Amendment could be applied).

It's really simple. If Clear Channel (or Sinclair for TV) owns most or even many of the major radio stations, and if Clear Channel favors Republicans, then a huge segment of the population will be denied access to news that is unfavorable to Republicans. Anyway, I'd encourage people to read my prior post.

Everyone should read today's NYT op-ed about how wealth significantly increases one's chances of being accepted to a university (especially a top university). It reminded me of a recent Harvard Law Review article by Lani Guinier (you can see a much shorter version of her argument in the Village Voice). She argued that angry whites, many of whom simply detest affirmative action, aren't understanding the true nature of college admissions. What they don't understand is that rich and upper-middle-class kids are taking many times more spots than minorities are. But instead of focusing on wealth inequalities, or unequal access to college prep and SAT classes, angry whites direct their rage at minorities - who take up a miniscule proportion of the admissions slots when compared to wealthier students.

The unfairness in college admissions is not race - it's economics.

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I haven’t posted anything about last weekend’s march in Washington for abortion rights. Abortion is an issue that I’ve struggled with all my life. Basically, I consider myself as pro-choice, but anti-Roe (sorry people - it’s just not in the Constitution). I’ve also always thought that men should defer to women on this issue, and as long as majorities of women continue to be pro-choice, then count me in as well – at least for the first trimester. For me, legalized abortion is the lesser of two evils – I’m not crazy about its legality, but I’m even more freaked out about the thought of imprisoning doctors for providing abortions to 15-year old girls. And even if abortions were illegal, people with money would still have them, and the poor and the young would suffer disproportionately. But that’s not what I want to talk about. Today, I want to encourage gay rights activists to adopt the political tactics currently being used by the pro-life lobby.

I think everyone can agree that the pro-life lobby has become much more politically savvy in recent years. Rather than taking on Roe directly, they’re chipping away at it with small, politically popular laws. For example, on both the state and federal level, pro-life activists have sought to outlaw partial-birth abortions, enact crimes for “killing” a fetus, and require teenagers to obtain parental notification. In pushing for all of these laws, the pro-life lobby has made very effective use of “plausible demagoguery.” For example, it’s damn near impossible for elected officials (especially in particular states) to vote against the partial-birth abortion ban. I mean, how can you go back and face your constituents when other legislators are showing pictures of skull-crushings and other horrible illustrations of the procedure. I have no idea if these alleged horrors are true (or have been exaggerated), but they can certainly be made into an effective, demagoging political ad.

In short, the new strategy of the pro-life lobby is to identify small, piecemeal measures that are politically unopposable and then push very hard for them. Over time, the thinking goes, the courts will be forced to recognize the “personhood” of the fetus under law.

In my opinion, this template for political action would be perfect for gay rights activists to adopt. As much as I support the right of gay marriage, I’m also aware of political reality. It’s going to take some time for a majority of Americans to come around (though it’s happening – just look at our nation’s colleges). My fear is that pushing too hard for gay marriage would set back the cause for several years.

Instead, the gay rights activists should adopt a piecemeal approach and focus on the most egregious forms of discrimination. For example, I think that even evangelical legislators would find it hard to oppose a bill that merely gave visitation rights to parents whom courts deem to be a “guardian.” As I explained in prior posts (here and here), under current law, a lesbian partner can be denied any and all visitation rights if the biological parent breaks off the relationship. This has actually happened – you can only imagine the heartbreak these parents experience when they are completely cut off from their own children. In addition to guardian/visitation rights, I think that gay activists would find it easier to push for laws allowing them adoption rights (there are bans on gay adoption in states certain states). You can imagine an effective commercial featuring an orphan or foster child who cannot be sent to a loving family just because of this immoral ban.

I could go on, but you get the point. Real-life activists could certainly provide even more examples of everyday discrimination. If these smaller efforts were successful, there would come a day when people would hopefully say, “If we grant them all these rights, what’s the harm in civil unions, or even marriage?”

History has shown that a strategy with gradual measures can work wonders. For example, Mark Tushnet has written an outstanding book on the NAACP’s desegregation strategy from the 1920s through the 1950s (which culminated in Brown v. Board). Brown didn't just happen - the NAACP laid the groundwork for it. Because the NAACP was centralized, it could pick its battles strategically. For example, before they went after elementary school integration, they tried to get graduate schools integrated. Southern whites weren’t as likely to get enraged about blacks attending graduate schools, so the NAACP established a beachhead of sorts (i.e., valuable legal precedents) from which they eventually launched Brown.

On an aside, some have argued that the NAACP actually didn’t go piecemeal enough. Michael Klarman, for example, who has an excellent new book on race and the Constitution in the 20th century, has argued that Brown triggered a backlash that forced Southern moderates off the political stage. He, and others, have explained that southern whites had a list of priorities with respect to integration. Graduate school was a very low priority, while elementary school integration was unfathomable. Klarman also makes the innovative argument that, when the NAACP pushed for elementary school integration, the subsequent backlash pushed the South to the right and created the necessary conditions for the violent crackdowns in Birmingham and Selma that led to the Civil Rights bills. So, in an odd way, Brown did lead to the later civil rights bills, but not in the way most people think.

I should add that Brown itself was virtually ignored by most southern states until 1964 when Congress finally got into the act after the Birmingham police launched their dogs (literally) on peaceful protestors. You can see the picture here that Kennedy claimed made him “sick.” Many others can be seen here. It's easy to forget how bad things were.

Anyway, back to 2004. I think that, like Southerners in the 1950s, “mainstream” Americans have a list of priorities with respect to gay rights issues. Marriage is at the top of that list, and so resistance will be the most fierce with respect to that issue. By starting at the bottom of that list and moving up, gays rights activists can establish “beachheads” from which to launch future attacks on discrimination. If nothing else, small local political battles could also mobilize a grass-roots effort. I would also encourage this battle to be done legislatively and not judicially (for the sake of legitimacy).

(Via Billmon) - Here are some pictures of Iraqi prisoner abuse by American authorities. Correct me if I'm wrong - but didn't we "liberate" Iraq to stop just this sort of abuse? I hope there's more to this story.

It seems that an agreement has been reached regarding Fallujah, so the Marines aren't going to be sent in on a pointless and counterproductive mission that would kill hundreds, if not thousands, of innocent civilians. Thank you President Bush - you did the right thing.

For more on why a Fallujah invasion would have been wrong (and why the first one was terribly misguided), see this column in today's NYT.

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I saw Kill Bill Vol. 2 this weekend (which was AWESOME). One of the martial arts tactics discussed in the movie is the “five-point palm exploding heart trick.” Basically, you strike someone’s chest with all five fingers. At first, nothing happens and your opponent can even walk away. But after several minutes have passed, your opponent’s heart suddenly explodes. I thought about the exploding heart trick this week as I read all the stories about Bush’s recent rise in the polls, which have been accompanied by variations of Dan Drezner’s argument that bad news in Iraq actually helps Bush (as evidenced by the polls) because it focuses the nation on national security. I really like Drezner, but I think this argument is rather absurd (or a case of some very strong wishful thinking). Let me explain why.

Obviously, most polls over the past couple of weeks have shown that Bush got a slight bump. I think the bump was attributable to several factors. First, presidents almost always get a bump after an attack on our troops, or after an outbreak of war. It’s natural for people to rally around the president when they’re scared. But second, Bush also got to give a prime-time press conference (apparently people didn’t stick around for the questions) and has spent $60 million over the past month in advertising. Given the convergence of these events, a bump was inevitable.

But war-related bumps don’t last that long. Bush’s 9/11 bump was almost back down to pre-9/11 figures until the country got Iraq fever. And the Iraq war also gave him a temporary bump that has more than vanished. I think that Bush’s bump is not only destined to be temporary, I think that the uprisings in Iraq and the 9/11 Commission disclosures have inflicted fatal wounds on the Bush administration.

As I explained in an earlier post, presidents don’t really get in trouble for unfavorable news unless that news undermines what voters perceive to be the president’s (or candidate’s) prime virtues. For example, the Clinton impeachment wasn’t successful, in part, because everyone knew from day one that Clinton liked to chase women and had struggles with the truth. But we accepted his morally casual attitude because he wasn’t elected for his moral virtues. He was elected to improve the economic plight of the middle class – and he did. The Lewinsky affair didn’t drastically change anyone’s view of Clinton, nor it drastically change the justification for the Clinton presidency. This idea of perceptions also explains why Bush can get up at a press conference and stumble over gaffe after gaffe and not suffer. Everyone has always known that he's not a great speaker, and people didn't vote for him because of his speaking skills.

The real strength of the Bush presidency relies on the perception that he is honest and that he is the best leader to fight terrorism and/or Iraq. Thus, the reason why the uprisings in Iraq are so dangerous for Bush is that they contradict one of his most important perceived virtues – competence to fight the war on terror. And the ongoing failure to find WMDs and al Qaeda connections contradicts his other main strength – the perception that he’s honest.

Quite simply, when majorities start thinking that Iraq was a mistake, or that it undermined the war on terror, there is simply no compelling reason to re-elect Bush. That’s why I think that, even if the uprisings give him a temporary bump, the long-term damage from the uprisings will cause an even greater amount of harm. The uprisings are like the five-point palm exploding heart trick. Bush has been hit, and he looks fine right now, but the fatal blow has been struck. And if things don’t improve fast, his heart is going to explode. And it’s because the nationalist uprisings contradict almost everything the administration had been saying about the war – most Iraqis welcome us; most want us to stay; democracy is possible; our coalition is strong; we have plenty of troops; we have a clear plan; we were right to disband the army; Iraq is part of the war on terror; and on and on. The key here is that these events have strongly contradicted people's perceptions of Bush and his entire Iraq policy. Again, Bush isn’t hurt by bad environmental news because voters knew he wasn’t going to be a Greenpeace-friendly president when they voted for him. Bad environmental news doesn’t undermine his perceived strengths. But the Iraq uprisings strike him right in the heart of his perceived strengths.

Already, a new CBS/NYT poll is showing deep ambivalence, if not disapproval, of Bush’s policy in Iraq. So, the bump may already be over. If these numbers hold, it’s simply impossible for Bush to win, despite Drezner’s any-Iraq-news-is-good-for-Bush argument. (Though the Democrats, like the Red Sox, are experts in snatching defeat from the jaws of victory.) In short, it’s all about perceptions. While a lot of people still favor Bush because they think he’s honest and is the right man to lead us in Iraq/war on terrorism, a lot of people no longer think that. And because of his Iraq mistakes, Bush can never get them back. That’s the nature of tragedy. Certain actions cannot be undone. Had Bush not invaded Iraq, he would have been untouchable. And if MacBeth hadn’t killed Duncan, he would have remained a hero.

We still have judgement here, that we but teach
Bloody instructions which, being taught, return
To plague th’inventor. This even-handed justice
Commends th’ingredience of our poisoned chalice
To our own lips. (Macbeth I.vii)

The Supreme Court today issued a fractured opinion in which it declined to act against partisan gerrymandering. So, gerrymandering is here to stay. As I explained in this post, gerrymandering cannot be remedied through the normal political (legislative) process. It's a classic example of an issue in which judicial "activism" is necessary to reinforce the democratic process (which is the only time activism should be tolerated - because the idea is that the legislature can never fix this). Yet another reason why the two-party system needs to be destroyed.

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I think it's over [unless there's a recount] – and Specter held on by the skin of his teeth. I know there are a lot of broken-hearted conservatives out there, but they shouldn’t be upset – they should be popping open the champagne. Specter’s victory is a very good thing for the GOP. Here’s why.

The Specter-Toomey race had important implications over both the short-term and the long-term. I think Specter’s victory is clearly a good thing for the GOP over the long-term, but I had questions about whether a Toomey victory would help or hurt the GOP over the short-term (i.e., in the Senate and Presidential race in 2004). Whether Toomey helps in the short-term depends on what sort of election strategy you subscribe to. The classic model for winning elections is that the successful candidates must be able to appeal across party lines and snatch up the “moderate” middle. Karl Rove has rejected this model. His view is that “there is no middle.” The key to winning elections (given the dynamics of modern split-in-half America) is to mobilize the base. Rove’s gamble is that, by energizing the base, he thinks he can make up (mathematically) for the loss of votes from the center by mobilizing more voters within the base who would not otherwise vote (thus, the gay marriage amendment). For example, some have argued that the 1998 midterm elections (in which the Dems picked up seats) can be explained by the Democratic base’s anger and mobilization at the impeachment proceedings. Likewise, the 2002 elections are thought to be the result of a highly mobilized (and happy) Republican base and a demoralized Democratic one (which created the necessary conditions for Dean’s rise).

To be honest, I simply don’t know which model is more correct. If the Rove model is correct, then a Toomey victory would be a short-term gain for the GOP. A happy energized base would come out to vote for Toomey, and while they were there, they’d pull the lever for Bush too. If, however, the “capture-the-middle” strategy is correct, then Toomey would cost the GOP both the Senate seat and possibly the Electoral College vote as well. I think that both models are probably correct in certain situations, but on the whole, I think that Toomey would hurt over the short-term given the dynamics of modern Pennsylvania. First, Specter sucks up a lot of the votes and fund-raising from Dems in the Philadelphia region. Toomey would simply get crushed there – with the help of the Rendell (Governor (D)) machine, of course. Pennsylvania has also been trending Democratic for years, and so I think that Toomey costs the GOP a valuable Senate seat and doesn’t do that much for Bush.

Over the long-term, however, I’m certain that a Toomey victory hurts the GOP. Whatever the merits might be in Rove’s “energize-the-base” strategy, it’s a long-term loser. As Stanley Greenberg and others have explained, the Republican Party is growing increasingly dependent upon a stagnant demographic. Greenberg (in his fabulous The Two Americas) borrows heavily from Ruy Teixeira’s The Emerging Democratic Majority to explain why the GOP could be in trouble over the long-term.

Like the Democrats, what is called the “Republican Party” is essentially a coalition of smaller groups. To be grossly simple (there are many other, smaller groups), white evangelicals (mostly from South and Great Plains/Rockies) are in a coalition with more socially liberal urban, coastal Republicans (like Specter) who like low taxes and tolerate the social conservatives unless they get too scary. Thus, the Jerry Falwells of the world are on the same “team” with the old Rockefeller/Gerald Ford Republicans such as Giuliani, Whitman, Schwarzenegger, Pataki, and Specter.

Rove, however, has pursued a strategy that increasingly anchors the GOP in the land of Jerry Falwell. His policies threaten to limit the GOP to a white, largely southern, evangelical base. Likewise, by moving the GOP right, especially on social issues like the FMA and abortion, Rove is threatening to chase the Rockefeller Republicans (or the Northeast and West Coast Republicans) out of the party altogether. The problem with Rove's strategy is that this demographic is shrinking. As Greenberg explains, the groups who tend to vote Democratic or are trending Democratic are increasing in numbers – i.e., post-graduate women, college graduates, minorities, urban areas. The so-called “Exurbs” (suburbs in the Sun Belt and Southwest that are trending Republican) are also growing, but not at the same rate. America is also becoming increasingly secular (nearly 40% go to church never or only on holidays). In other words, Rove is hitching his wagon to the wrong horse and driving it over a cliff. If the GOP is to remain viable, they have to expand their base beyond white evangelicals and Exurbia. And that brings us back to Specter.

As much as some conservatives hate him, Specter is surely better than a Democrat. But if Specter lost, it would simply speed up the ongoing process of purging Northeastern (and moderate) Republicans from the party. In today’s 50/50 world, there is simply no room for error. Conservatives must either accept the fact that the Specters of the world are necessary for their coalition, or the GOP must split up (which is what I wish both parties would do – and never come back – they’re both historical anachronisms).

A Toomey victory will force all Republicans to the right, and quite simply, Northeastern and West Coast Republicans can’t go much further right and expect to win state-wide offices. Moving right means that Democrats will win. The Toomey crowd just doesn’t realize that their social issues, when combined with their passionate opposition to affirmative action and down right xenophobia about Latino immigration, is leading to their marginalization. Of course, if anyone could fuck things up, it's the incompetent Democratic Party - but that's a post for another day.

(Via Atrios) -- When all you neocons (the paleo-conservative wing is largely against the Iraq war) are reading your Frum/Perle book and getting romantic notions in your head of the glory of American conquest, perhaps you should consider the reality behind those dreamy, abstract visions. Here's a small taste - an MSNBC article explaining the surge in brain and head injuries from Iraq:

More and more in Iraq, combat surgeons say, the wounds involve severe damage to the head and eyes -- injuries that leave soldiers brain damaged or blind, or both, and the doctors who see them first struggling against despair. For months the gravest wounds have been caused by roadside bombs -- improvised explosives that negate the protection of Kevlar helmets by blowing shrapnel and dirt upward into the face. In addition, firefights with guerrillas have surged recently, causing a sharp rise in gunshot wounds to the only vital area not protected by body armor. The neurosurgeons at the 31st Combat Support Hospital measure the damage in the number of skulls they remove to get to the injured brain inside, a procedure known as a craniotomy. "We've done more in eight weeks than the previous neurosurgery team did in eight months," Poffenbarger said. "So there's been a change in the intensity level of the war." . . .

"These injuries," said Lt. Col. Stephen M. Smith, executive officer of the Baghdad facility, "are horrific." . . . "We're saving more people than should be saved, probably," Lt. Col. Robert Carroll said. "We're saving severely injured people. Legs. Eyes. Part of the brain." Carroll, an eye surgeon from Waynesville, Mo., sat at his desk during a rare slow night last Wednesday and called up a digital photo on his laptop computer. The image was of a brain opened for surgery earlier that day, the skull neatly lifted away, most of the organ healthy and pink. But a thumb-sized section behind the ear was gray. "See all that dark stuff? That's dead brain," he said. "That ain't gonna regenerate. And that's not uncommon. That's really not uncommon. We do craniotomies on average, lately, of one a day." . . .

The improvised bombs are extraordinarily destructive. Typically fashioned from artillery shells, they may be packed with such debris as broken glass, nails, sometimes even gravel. They're detonated by remote control as a Humvee or truck passes by, and they explode upward. To protect against the blasts, the U.S. military has wrapped many of its vehicles in armor. When Xenos, the orthopedist, treats limbs shredded by an IED blast, it is usually "an elbow stuck out of a window, or an arm." Troops wear armor as well, providing protection that Gullick called "orders of magnitude from what we've had before. But it just shifts the injury pattern from a lot of abdominal injuries to extremity and head and face wounds."

Wars are not video games. They are not to be entered lightly, and only when necessary. And that's why we ought to send Richard Perle to go patrol Fallujah for a few days. Let him, for once, see the reality of war - the war he helped to create.

In a post this weekend, I had mentioned the panel at the LA Festival of Books entitled "The Seduction of War" that I happened to catch on CSPAN (because I'm a CSPAN junkie like all cool people). Anyway, Phil Carter caught it live and was similarly impressed. I'll let you know when the transcript or video becomes available.

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I wanted a break from politics this weekend, so I read Paul Johnson’s “The Renaissance: A Short History.” It’s a good, brief summary, though it’s heavy on the art (which would be fine if there were illustrations to guide the artistically ignorant like myself). But even while I was reading about the 15th century, my mind was stuck in 2004 politics. And what I noticed was that the 2004 culture wars are hardly new. They’ve been around for a long time. In fact, one could argue that the very first culture war (as we understand the term) occurred in the 1400s. Understanding this first culture war will give us some insight into the more modern culture wars.

It’s hard to imagine it, but the idea of “skepticism” is relatively new. By skepticism, I mean the practice of examining texts (including historical texts) critically. It’s what happens in modern universities every day. Before the Renaissance and the Enlightenment, however, people generally took texts (such as the Bible) at face value. They might debate the theology, but they didn’t apply a critical eye to the text itself in order to challenge its authenticity, accuracy, and historical context.

According to Johnson, the Greeks first practiced skepticism, but it fell out of use during the Middle Ages until a man named Lorenzo Valla (1407-57) revived it. Valla used his innovative approach to critique the [Catholic] Church. Specifically, he cast a skeptical eye on the Donation of Constantine (written somewhere between 750 and 850), which was the document that allegedly justified the supremacy of the popes (who were enormously powerful in those days). As Johnson explains:

It [the Donation] had been challenged before . . . [b]ut Valla subjected it to textual scrutiny based upon the principles of what was to become modern historical criticism, and showed, beyond any reasonable doubt, that it was a deliberate forgery.

Obviously, the Church didn’t care for his insights and he soon faced the Inquisition. But his techniques spread like wildfire across Europe to people like Erasmus, who applied textual criticism to the Bible. Johnson argued that “revival of the skeptical approach . . . was one of the most striking aspects of the recovery of antiquity and the most explosive.” Valla’s criticism was thus the first culture war of the modern age. And at the heart of that battle was the struggle between orthodox certitude, on the one hand, and skepticism on the other.

Fast forward to the 21st century. The battle lines between Valla and the Church seem eerily similar to today's culture wars. In fact, I think that the modern culture wars, from the Renaissance through the FMA, can be described as one long, ongoing battle between skepticism and certitude. James Davison Hunter wrote a great book in the 1990s called “The Culture Wars: The Struggle to Define America.” He describes the American culture wars as the battle between what he calls “Orthodoxy” and “Progressivism.” I couldn’t find my copy of the book, but here’s how a Stanford website defined these terms (as Hunter uses them):

Those inclined toward Progressivism, be they Catholic, Jew, Protestant, etc., believe that morality (and hence politics) should be informed by facts and experience that we learn as we travel through life. Morality is subjective to the times in which we live. The only ultimate truth we can know is that which we define for ourselves. Those inclined toward Orthodoxy, on the other hand, be they Secular, Protestant, Jewish, etc., believe that morality (and hence politics) is not only definable and unchanging, it is external and transcendent, as explained by the revelation of God in the Bible.

In other words, Orthodox people believe strongly in objective morality, usually as defined by some revered source (such as the Bible or Constitution). I would add that, for Orthodox people, this reverence is also more easily extended to treasured concepts such as “America” or the military, or even one’s political party (assuming they too are on the Orthodox side). That’s because the Orthodox are simply more comfortable with seeing certain things as objectively good, and are less inclined to see nuance or the bad sides of their treasured concepts. Progressives, by contrast, tend to see issues of morality and politics in more relative, or skeptical ways. I think this skepticism is also applied more frequently to concepts such as “America” and the military – and sometimes it's not always a good thing. Before conservatives get too upset, please notice that Hunter himself believes that religious people can be progressive, and that secular people can be orthodox (as I noted in my post about “rule-liberals”).

In my opinion, however, it seems clear that modern conservatives are (statistically speaking) much more Orthodox in their thinking, and that modern liberals are more Progressive. This ideological divide mirrors the divide that began when Valla first challenged the Donation way back in the 1400s. I think that when you look at the modern conservative and liberal movements, you can clearly see that Hunter is on to something.

Let’s start with religion-related issues such as abortion and gay marriage. To the Orthodox camp, these issues have been clearly banned by the Bible, which is definable, knowable, and unchanging. Thus, all arguments about unfairness or the importance of choice aren’t really addressing their position. These things are wrong to them because the Bible says they are wrong. The only hope (and one that I wish more progressives would adopt) is to challenge this views on their own terms. People should use the Bible’s message of love and tolerance to challenge these views. For progressives, the issue is viewed more pragmatically and many can’t understand the thinking of the Orthodox. To them, homosexuality is perfectly acceptable, and may be as immutable as race and gender. Thus, it just seems cruel to deny them rights. But again – these are pragmatic arguments consistent with the Progressive spirit.

On to foreign policy. The current neo-conservative foreign policy that has assumed power in this administration relies heavily on Orthodox thinking. You simply cannot believe in the teachings of Richard Perle and Kristol unless you first think that America is really really good. Because America is so unambiguously good, we need not worry about international institutions or foreign opinion. We can remake countries in our image because we are good. Progressives simply cannot stomach these simplified views of America’s virtue - and they are often unfairly maligned for sharing these thoughts (which are equally sincere). To them, America is part of a larger world. It’s better in some ways, worse in others. But it’s certainly not so clearly good that we can ignore the world and go around invading countries we think are bad. Vietnam was very much part of this cultural battle. To the Orthodox, it seemed like treason to accuse our troops and our government of doing such awful things. That’s because America and the American military are seen in similar ways as the Bible is seen – that is, as being unambiguously good.

On to law. The whole originalism/pragmatism debate in constitutional law is very much part of the larger Orthodoxy/Progressivism debate. Originalists such as Bork and Scalia see the Constitution as a transcendent, definable morality of sorts that must be obeyed. Whether or not they care to admit it, this sort of originalism is heavily suffused with the sort of religious Orthodox thinking that characterizes religious fundamentalism. The Constitution and the Framers are, in the legal world, the equivalent of the Bible. Their literal word must be followed regardless of how absurd the consequences seem in modern society. It's a perfect example of Orthodox thinking.

Finally, Orthodox thinking also characterizes the modern Republican Party. As many have noticed, the discipline of both the Bush team and the Republican Caucus in the House is nothing short of military-like. The party is very much run as a top-down, hierarchical organization. And as the NYT Magazine wrote this weekend, this top-down approach even extends to their Ohio ground operation – which is a pyramid-like structure similar to Amway sales strategies. My point is that this hierarchical top-down structure is very consistent with Orthodox thinking. Republicans are more comfortable with the idea of falling in line to authority that they deem as morally good, whether that “authority” be Bush, or the Constitution, or the Bible, or the military, or America. And that’s also why when Orthodox Republicans turn on Bush (or Republicans like Specter and Bush I), they turn on them for good. There’s simply very little room for ambiguity or nuance. You’re either in, or you’re out. For now, Bush II is still in. But Bush should heed the warning of Revelation 3:16: "So then because thou art lukewarm, and neither cold nor hot, I will [spit] thee out of my mouth."

That’s also why I don’t think Democrats will ever be able to attain the same level of ideological and voting discipline that Republicans have enjoyed lately (I mean, look at Nader and the lack of a clear party-machine choice for President and compare it to the backroom coronation of Bush in 2000 by party leaders). That’s no accident – it’s actually very consistent with Progressive skepticism. And that skepticism has a long and rich tradition.

Before I end, I should say that I obviously don’t think conservatives are mindless followers – far from it. These things are always questions of degree along a spectrum. It’s just that conservatives are more willing to see in the world in objective, black-and-white terms. Sometimes that’s good – like in Afghanistan. But more often, I think it's bad – like in Vietnam and Iraq.

As a 27-year old, I'm very very sick of America's Vietnam obsession. And I would have objected strongly to making Bush's Guard "service" an issue if Bush and his chickenhawks had not opened the door to this debate by their outrageous accusations. First, they implied that Kerry's wounds weren't quite bad enough. Second, they're making a big stink about whether Kerry actually threw away his "medals." As Kos explains (and he provides military links to prove it), the small rectangle ribbons are referred to as "medals" by the military (of which Kerry is a part). These are what Kerry threw onto the Mall. There's no lie. No flip-flop. Only vicious personal attacks on someone who fought in combat.

That's why I love this:

"If George Bush wants to ask me questions about that through his surrogates, he owes America an explanation about whether or not he showed up for duty in the National Guard. Prove it. That's what we ought to have," Kerry told NBC News in an interview. "I'm not going to stand around and let them play games."

Welcome back to the news cycle, Lt. Bush. We missed you.

Here's an experiment. Add up all the verses in the Bible that stress love, forgiveness, compassion, and tolerance. Then add up all the verses that reference homosexuality and compare them. I suspect it's about 1,000 to 1. If we can agree that, as a matter of strict textual interpretation (which seems to be the way people interpret it these days), Judeo-Christianity is far more concerned with compassion than gay-bashing, then perhaps someone can explain to me why this new Michigan law should be considered remotely Christian:

Michigan House Votes in Favor of 'Conscience' Clause

Here's what the Sun-Times had to say:

The legislation would allow health care workers and insurers to refuse for reasons of conscience to perform procedures, fill prescriptions or cover treatment. The legislation would not apply in medical emergencies.

''As written, this law would allow a health care provider to not provide health care services to someone based on their actual or perceived sexual orientation,'' said Democratic state Rep. Chris Kolb, the Legislature's only openly gay lawmaker. ''It's very worrisome and disturbing.''

This is pure malice and bigotry. You know, as much as I disagree with the FMA, I will concede that it's at least a plausible position to oppose gay marriage if you firmly believe your religion bans it. But it is quite another thing to allow a fellow human being to be denied medical treatment. I mean, we provide medical treatment to wounded al Qaeda members captured in Afghanistan.

This is simply cruel - and I hope conservatives will agree that it's also profoundly un-Christian. And if your religion says otherwise, you need a new religion.

In the post below, I argued that American polarization has become so strong that it's actually infected the way people perceive the world. I would point out, though, that I think the cause of this polarization has more to do with the structure of our current political process than with the voters themselves. The polarization has been created by a combination of factors including primary elections, national centralized parties, and the current two-party, winner-take-all system. I explained all of this in one of my earliest posts.

I don't think I'm being inconsistent, I just think that the current polarization (though it has become very real) was caused by, and reinforced by, flaws in our political system that tend to reward polarizing candidates. If, for example, we got rid of primary elections, there would be many more centrist candidates such as Schwarzenegger (who would have lost in a primary election for the reasons that Specter might lose in Pennsylvania). Anyway, I explained everything in the earlier post and I would encourage people to read it.

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A recent Knight-Ridder article (KR is awesome btw) pointed out that Americans still hold a number of misperceptions about Iraq:

A new poll shows that 57 percent of Americans continue to believe that Saddam Hussein gave "substantial support" to al-Qaida terrorists before the war with Iraq, despite a lack of evidence of that relationship. In addition, 45 percent of Americans have the impression that "clear evidence" was found that Iraq worked closely with Osama bin Laden's network, and a majority believe that before the war Iraq either had weapons of mass destruction (38 percent) or a major program for developing them (22 percent).

There's no known evidence to date that these statements are true.

Gotta love that last line. Another recent Harris poll came up with similar numbers. And let’s not forget about last September’s poll showing that about 70% of people thought it was likely that Saddam was involved with 9/11, despite exactly zero evidence. These misperceptions are troubling for a number of reasons. First, and most generally, democracy only works if the people are informed about the relevant issues. Second, and more specifically, these widespread misperceptions make debates about the wisdom of the invasion almost pointless. That’s because the wisdom of the invasion depends heavily upon the existence of certain facts – such as the existence of WMDs and the connection to al Qaeda. If people are disagreeing about these most basic facts, everything else is a waste of time.

There are a couple of conclusions we could make from these disturbing polls. First, we could conclude that American voters are profoundly ignorant (not dumb, uninformed) about the major issues facing them. I mean, if people are this uninformed about 9/11 and the Iraq war, how much confidence should we have in their knowledge of the effects of environmental regulations, or macroeconomic policy? It really does call our most basic assumptions about democracy into question. The second, and less pessimistic, conclusion one could draw is that these polls aren’t reflecting Americans’ ignorance – they’re reflecting the effects of partisanship on the American mind. I subscribe to the second conclusion. I’m not ready to give up on Americans. I think that these polls are reflecting Americans’ conscious our unconscious decision to see the world in a way that’s consistent with their partisan loyalties. But let’s back up.

In an ideal world, people would develop their political views in the following rational way: First, they would learn about the facts surrounding a given issue as best they could. Second, they would then evaluate those facts in light of their own material interests, or religion (or whatever), and come to a final position. Finally, they would throw their support behind the candidate or party who shares their position (or shares a majority of their positions) with respect to a given issue or issues. In other words, in this ideal world, people would reach conclusions first, and only pick a political party (or a political label such as “liberal” or “conservative”) after they had reached their own independent conclusions. That’s why I’m so suspicious of people who follow the party-line with respect to every single issue. It’s a good indication that there’s not a lot of critical thinking going on.

But in modern, ultra-polarized America, this process has been reversed. People seem to picking political parties or labels first, and then relying on the parties (or “liberals” or “conservatives” in the media/blogosphere) to tell them what to think about all other issues. For example, let’s assume that Joe can only perceive the world through a clear glass window. He cannot observe the world any other way – everything is seen through the window. Now let’s assume that with respect to a given issue (let’s say welfare reform), someone has come along and splashed some red paint right on the part of the window through which Joe sees welfare reform. Joe can now only see the issue by looking through the red paint, which twists and distorts the way he sees it.

Essentially, this is what happens when people lose themselves in partisanship. The entire window becomes either blue or red. So, it becomes impossible for them to see any issue as it actually is – they can only see through the lens of partisanship which will necessarily distort their view. Again, try to imagine it on the most basic epistemological level. When looking at external events, Americans see the color of the window first, and then the actual issue, which always appears to them in that color. Or, to put it another way, when Americans perceive the world, they first reaffirm their political affiliation in their own minds, and then view the issues through the tinted lens of that political affiliation.

And this is where Fox News comes in (and where Air America aspires to come in). The entire GOP Inc. media strategy is to provide people who view the world through the “red” lens with a way to make sense of the world. Fox News, talk radio, and conservative blogs provide an absolutely vital function. They tell people what the party-line is. From an economics perspective, these media outlets lower information costs. People don’t have time to read books and magazines on every issue, so talk radio comes in and gives them quick, easy talking points on every single issue. If something bad comes up, like Richard Clarke, talk radio and Fox News gives them a way to think about it that’s consistent with their partisan preferences (i.e., “He’s not credible for reason X, Y, and Z. It’s all a liberal plot – just look at Gorelick. Nothing to see here. Bush made us safer. What we really need to be worrying about are all the queers getting married.”).

That’s the only way I can explain many polls I’ve been seeing lately. For example, Americans split along party lines about whether to believe Richard Clarke. That’s insane. Honest conservatives even admitted that this guy was for real, and not a liberal hack. But that’s not how most Americans saw it. That’s because they were seeing Clarke through their tinted lens of partisanship. To be fair, liberals do the same thing with respect to many issues. For example, many Dems liked Clarke a lot more than they should have (given his hawkish tendencies) simply because they were viewing him through the “blue” lens.

In my opinion, this idea of the “tinted lens” is the best way to explain the polls about Iraq cited above. The war was very much a partisan issue. And it was presented in a way that was intended to connect it to WMDs, 9/11, and al Qaeda. These potential threats became the paint, so to speak, through which many people perceived Saddam and Iraq. So, part of the problem is just that people initially conceived of the war in this way, and inertia has set in and it’s going to take a lot to make them stop seeing it in this way.

Another part of the problem is cognitive dissonance. A lot of people really believe in Bush. They think he shares their values, and that he's a good man. But good men with Christian values don’t send people to war on the basis of falsehoods. The two are mutually exclusive. So, in order to reconcile the two, they simply continue to believe that WMDs did exist, or that a connection to al Qaeda or 9/11 did exist. It’s a common psychological defense mechanism. It’s like saying my daddy is good, but my daddy does bad things, so I’ll pretend that he doesn’t so that my preconceived notions of him won’t be damaged. To be blunt, the cold reality of Iraq is simply too much to bear for many Americans. The thought that we’ve lost 700 soldiers (4,000 wounded) and killed God knows how many Iraqi civilians (many times the number lost on 9/11) for a war that was unnecessary and sold on false premises is, as Samuel Johnson said of King Lear, “too horrid to be endured.” So we don’t endure it. We assume that weapons existed, even though we have ZERO evidence. We assume that Saddam was linked to 9/11, even though we have ZERO evidence. The thought that the President who we so clearly identify with in terms of values and spirituality could do such a thing is unthinkable.

So have hope. Americans aren’t totally ignorant, they’re just totally partisan. And that partisanship has infected our most basic perceptions of the external world.

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I'm working on a longer post for tonight, but I'd thought I briefly offer some thoughts from this weekend's news.

First, read Dana Milbank's article in the Post. He explains:

Political strategists and public-opinion experts say a good part of this resilience of public support for Bush and the Iraq war stems from the president's oratory. They say Bush has convinced Americans of three key points that strongly influence overall support for the war: that the United States will prevail in Iraq; that the fighting in Iraq is related to the war against al Qaeda; and that most Iraqis and many foreign countries support U.S. actions in Iraq.

So, as Milbank points out subtly, two of Bush's three key points - the key points deemed necessary to maintain public support - are just flat wrong, and Bush's rhetoric has been misleading. This is very much related to what I'll be posting later tonight.

Second, Milbank includes another passage from a Bush aide regarding Iraq and Kerry:

Dowd also said Bush has been aided by a Kerry position on Iraq that mixes support for the war with criticism of Bush. "The public has decided [Iraq] has problems. But whose vision do we support?" he asked. "Kerry has supported either no viable or no acceptable alternative."

This is a great example of burden-shifting. Bush, who is 100% responsible for Iraq (for good or bad), should have the burden to explain either why his policies have been successful, or why he should be re-elected if they were not. What Dowd does is to shift the burden to Kerry to prove that he has a "viable alternative." While I agree that Kerry should present an alternative (which he has), I'm not sure Dowd's logic works. I mean, if your friend is driving drunk, you need to get him out of the car, even if he says "you can't replace me until you have a viable alternative - the burden is on you."

Third, I saw a great panel on CSPAN this weekend from the LA Festival of Books on "The Seduction of War." It included Anthony Swofford, the marine who wrote Jarhead (which is outstanding) based on his combat experience in the first Gulf War, and other authors and veterans. The question before them was why war is so strongly supported, and why humans turn to it again and again, despite its horrors. They reminded me of why I oppose war in almost every situation. They explained that people simply don't understand the horrors of combat. They blamed all of us for allowing the war to happen, not just Republicans. I agree. America (and I include myself) has once again bought into all the pre-World War I abstract visions of glory and honor, and used them to justify the invasion/occupation with no real understanding of the reality and the horror of experiencing combat. As Swofford said, these words become obscene to soldiers in combat. Once combat starts, they fight for each other and their unit, not for abstract glory. And war is hell. Remember Hemingway's words from A Farewell to Arms: Abstract words such as glory, honor, courage, or hallow were obscene beside the concrete names of villages, the numbers of roads, the names of rivers, the numbers of regiments and the dates.

They also explained that the word "wounded" is a poor choice of words because it doesn't real convey the severity of the injuries. People simply don't understand that "wounding" includes blindings, getting half of your face shot off, losing limbs, becoming paralyzed, and all other sorts of horrors. And nearly 4,000 soldiers have been wounded (and God only knows how many Iraqi soldiers and civilians). We at home don't understand because our pictures of war are all sanitized. We don't see piles of bloody limbs. We don't see skulls with holes. War isn't real to most of us - it's not possible to conceive its horror. The lesson is that we shouldn't go to war unless it is absolutely necessary.

The panel also cited a military study that concluded that 60 days of sustained combat is the limit for human beings. After that, people just start losing it - and the psychological damage done to soldiers in combat has been well documented. Many of these soldiers will suffer psychologically for the rest of their lives. They also added (and I have no way to verify these stats) that 90% of all casualties in modern war are civilian casualties. And it's interesting that everyone in the administration who had been in war (Powell) opposed it, while the people who had never seen combat supported it (Bush, Cheney, Wolfowitz, Rumsfeld, Rice).

Finally, I've got a really bad feeling about this supposed need to re-invade Fallujah. Fareed Zakaria just warned (on TV) that it has long been a goal in guerilla warfare to sucker the occupier into striking with great force in retaliation. For guerillas to succeed, the occupier must continue to be hated. Thus, razing Fallujah is exactly what they want us to do, just as invading Iraq is exactly what bin Laden wanted us to do. These actions increase the public support for both al Qaeda and the Iraqi insurgency. Thus, re-invading Fallujah is not only dumb as a military tactic, it's also going to create a humanitarian disaster that we in America will of course be shielded from.

I take Saturdays off from the blogosphere. In the meantime, you should check out these articles (here and here) (thanks for the tip steve, on the first one). Apparently, a majority of Americans STILL think that Iraq had an al Qaeda connection, and had WMDs despite exactly zero evidence. Unless something else comes up, I'll be writing about these misperceptions tomorrow.

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I was in the public library yesterday and saw a chart that floored me. It was a list of the number of AIDS infections by continent. Europe had about 600,000 - North America, roughly 1 million. Then I looked at Africa - 28 MILLION. That's equivalent to 1 out of every 10 people in America. I had no idea. This is like the Plague, and we're letting it happen on our watch. I dug around and confirmed this number in an LA Times article. It added that nearly 38 MILLION people were threatened by starvation. STARVATION. It kind of puts things into perspective back here in the land of no-carb diet. I suppose we should be grateful that our politicians have the luxury of getting furious about stupid, trivial shit.

Anyway, I was amazed at these numbers. There's no excuse for remaining ignorant about this massive humanitarian crisis. I'm going to inform myself about some of these issues, and I hope to have several posts about Africa in the months to come. If anyone has reading suggestions, or ways to help, please email me or comment below.

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There’s a saying in the legal world that when the law is against you, argue the facts. And when the facts are against you, argue the law. I think this maxim should be applied to politics – when you’ve got a bad platform, run on the candidate. And when you’ve got a bad candidate, run on the platform. It’s becoming increasingly clear that Americans, for whatever reason, just like Bush better than they like Kerry (maybe it’s the Southern accent Bush developed at Andover). That’s why the Democrats need to expand the scope of this election. The Democrats will lose if the election becomes a popularity contest between two men, as it was in 2000. Instead, the Dems need to depersonalize this election, and transform it into a contest between two administrative branches. Let me explain what I mean.

The belief that a presidential election is a choice between two individuals is probably the biggest fallacy in American politics. What you are actually voting for is an entire Executive branch of government, along with the judges or Justices it appoints. Unfortunately, too many people conceptualize the presidential election as a one-on-one contest between individuals, rather than between two potential Executive branches. When you think about it, reducing everything to an individual level is actually a common cognitive error in American thought. For example, terrorism is not a systematic phenomenon, but something caused by Osama (and which can be fixed by killing Osama) – which is the wrong way to think about it. Or, people think that capturing al-Sadr will end the uprising, which is an equally wrong way to understand the situation. Similarly, I think it’s somewhat irrational to base your vote primarily upon a candidate’s personal characteristics – which of course is always the main focus of our media (i.e., the way they look, or smirk, or talk).

I’m sure people would object and say that choosing the right individual is important. After all, the President makes the final decision on important issues like going to war. In addition, in the digital age, choosing the right individual is also important because a president must be able to sell his policies to the public over TV. That’s all true of course. I’m not saying that individual characteristics aren’t important. I’m just saying that they are HIGHLY overvalued in comparison to their actual relevance to most of the everyday activities and policies of the Executive branch. Just take Bush. Yes, Bush made the final decision on the war, and he had to go on TV and sell it. But where do you think the plan to invade originally came from? More generally, where do you think every single policy he has ever mentioned in his speeches comes from? They all come from his appointees, or his appointees’ appointees. And the way Bush talks, or clears brush in Crawford, has nothing at all to do with 99.9% of what goes on in the Executive branch every day.

The important point is that we are not choosing between individuals – we’re choosing between two machines, or corporations, or collective entities, or however you want to conceptualize it. Bush is merely the CEO, or the public relations person, who has been given final say-so and who must communicate to the shareholders, if you will. Consider Bush as the 24 hour commercial that attempts to persuade people to support the larger entity’s political preferences. Bush himself has very little to do with either the creation or implementation of most of these policies. You’ve got to keep in mind how these things work on a micro-level. Administrative officials are appointed, and are given an enormous amount of discretion to enact policies within their own department. Bush may approve or reject these policies, but the prime movers are the underlings, not the President. For example, Ashcroft runs DOJ. God only knows what creatures he has appointed to serve under him. But whoever they are, these people have more influence over the everyday actions of the DOJ than Bush does. The same is true of the EPA - it's run by people who don't care about the environment. Just ask them. And let’s not forget Iraq. The idea of invading Iraq was planned during the 90s by Perle, Wolfowitz, and the other Jacobins over at American Enterprise. Bush merely approved what was, in reality, Wolfowitz’s baby.

On to Kerry. If Kerry allows this race to become a personality contest, he’s going to get crushed. He needs to redefine the debate in a way that Gore could not. People need to realize that this race is about two massive entities - GOP Inc., and Democrats, Inc. – and not two individuals. And what's really at stake in this election is which of these two entities will get to place its people throughout the entire Executive branch. Kerry, of course, can’t say any of this. If he admitted this weakness, it would be demagoged like crazy. But that’s what underlings are for. Kerry’s underlings need to make 2004 a referendum not just on Bush, but on his entire administrative branch. In other words, a vote for Bush is not just a vote for the man, it’s a vote for Bush’s EPA, for Ashcroft, for Richard Perle, for Rumsfeld, for the people in HHS who lied about the Medicare bill, and for his energy team (i.e., Cheney). Kerry’s underlings have to de-emphasize the individual, and focus on what’s really at stake – total and complete control of the entire Executive branch and all the appointees of the Judicial branch. I suspect that support for the nut-cases currently running our administrative agencies is much lower than support for Bush, the man. But that's why it's so important for the GOP to focus on Kerry's Frenchness, or his wordiness, or the fact that he's from Massachusetts. The GOP has a bad platform, so they're running on the individual.

But that’s the problem for the Dems. Democrats, Inc. is rather pathetic compared to GOP, Inc., and I doubt they can match GOP Inc. in six months. GOP, Inc. is much larger and much more connected. That’s because the GOP isn’t really a political party – it’s a massive corporate/media/legislative conglomerate that we call the Republican Party. Bush himself is only one important cog in this much larger entity. The coordination within this entity is absolutely amazing. The GOP has an unholy Trinity between the White House, the Congress, and the media (talk radio, Drudge, and Fox News). These are all entities, which, in an ideal world, would serve as checks on one another (this is one of the ways that political parties water down the checks-and-balances of the Constitution). For example, the White House (or the Executive branch) comes up with a plan. Talking points are distributed to everyone on Capitol Hill and to the sympathetic media. And before people can even wake up, the army is marching lockstep all over TV and radio (and the Internet), almost always on message. Bloggers can quickly figure out what the talking points are, and they parrot them too. The ruthless efficiency is amazing, if not a little too Orwellian.

The genius of GOP Inc., though, is that the behind-the-scenes coordination itself is unknown to those who don’t follow the news closely (by which I mean 90% of Americans). To these people, the election is not about the machinations of two large entities, jockeying behind-the-scenes for votes; neither is it about voting for an Executive Branch that will implement policies that affect all Americans significantly. To them, it’s about which individual they like better. I concede that Kerry is wordy on TV, but that doesn’t have one damned thing to do with what’s going on in 99.999999% of the Executive branch. And whether Bush prays to God or secretly sacrifices dogs to Satan while wearing goat leggings has nothing to do with 99.999999% of what goes on everyday within the Executive Branch.

But I fear this is one cognitive error that’s going to stick. It’s very hard for people to see the Presidential election for what it is – a contest for control of the Executive branch, rather than as a reward for the person who seems like a “good guy to have a beer with.”

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OK - I can't let this one slide. Via CAP, I just read what is quite possibly the most ridiculous op-ed ever written. I've really been working on trying to strike a more cordial tone lately, but this is simply too much. The author is Edwin Fuelner, Ph.D - he's the president of the Heritage Foundation, a major conservative think tank. His argument is that economic growth is the best way to help the environment. I think that argument is fairly ridiculous, but it's at least plausible. But it gets worse:

If we want the rest of the world to be as clean as we are, we should shun the guerrilla tactics of the radical environmental activists. What’s needed are the free-market ideas that have fueled our economic growth and led to prosperity. . . In the meantime, of course, Americans are still giving environmentalists plenty to complain about, because we drive gasoline-powered cars. But with technology improving our vehicles all the time, they’re not really the disaster some claim. Our environment has improved markedly over the last three decades, even as the population rose 30 percent, the number of licensed vehicles jumped 87 percent, and vehicle miles traveled increased more than 125 percent.

Consider, too, the jobs generated by cars. They include everything from high-paying manufacturing, repair and sales jobs to entry-level gas station attendant positions. Plus, by allowing us to get around quickly and easily, cars enabled people to move out of crowded cities into suburbs, where they’re in closer contact with nature. And let’s not forget what autos replaced: horses. Back in the days when horse-drawn carriages were the main means of transportation, our streets were filled with manure. This waste was itself a dangerous form of pollution.

Horses required tons of hay, which meant thousands of acres of farmland were needed to grow food for animal use, not human consumption. The invention of the car actually helped clean our streets, clear our air and free land for more productive use.

Where to begin. First, I should point out that this guy is probably not actually a moron, he may just be employing highly disingenuous arguments to persuade people that environmental regulations don't help. Let's hope so. Anyway. . .

Let's begin with the very first claim that free-market ideas are needed to clean the environment. Lest anyone forget, it was the excesses of the late 19th century free market that destroyed our environment in the first place. It was only after the Progressives (like Teddy Roosevelt) started imposing government controls on the free market that the environment improved (that's also when national parks started being created). It's possible of course that the current regime could incorporate some market incentives to achieve its goals, but the underlying government controls must stay even if they might need tweaking sometimes. But make no mistake - the free market, left on its own, would destroy our environment (given the inherent collective action problems, race to the bottom, etc.).

Second, he cites statistics (the opiate of the partisan masses) that show that environmental conditions have been improving even though the use of cars has dramatically increased. Uggh. For one, those conditions have improved because Congress passed strict pollution control measures in the 1970s (which Bush is slowly but surely undermining). Second, Fuelner uses these stats to imply that cars aren't really that much a threat. This is just wrong as a matter of logic. Just because environmental conditions have improved doesn't mean that they've improved as much as they could or should have (if, for example, we switched to electric cars), or that cars don't pose a threat. I mean, have you been to Los Angeles?

Third, he cites all the jobs related to cars. I'm not sure what his point here is. No one that I know is advocating a ban on cars. People are just saying that cars should be made cleaner and more efficient, which would not cost a single job (though I would love to ban SUVs - in the name of national security, energy independence, etc.).

Finally, I'm not even going to discuss the claim that cars freed us from the horrors of manure pollution. Merely responding would imply that the argument has a modicum of merit - which it doesn't.

It's really quite simple. People like this want to undo environmental regulations. I honestly don't know if they simply don't care about the environment (or don't value protecting it for future generations, or for God, if you prefer), or they actually believe that the free market can make the environment better. I almost hope it's the former, because the latter just means they're out of touch with history and reality more generally.

I've been pretty busy at work, so I doubt I'll be posting anything substantial until later tonight (Thurs. night). In the meantime, Kos has an excellent round-up of Kerry's war records (which are compared to Bush's for your convenience). I get the feeling that the RNC might have walked into a trap by demanding the release of these records. For the next few days, the papers are going to be filled with glowing reviews of Kerry's military records, which is not exactly the issue that the Bush '04 team wants in the headlines. And by the way, what genius decided it would be a good political move to challenge a veteran's Purple Heart because the wound wasn't "bad" enough? Is that really a fight that Bush can win? Who are these people?

[Update: Slate has some choice quotes from the Woodward book. Here are my favorite:

Gen. Tommy Frank talking about Douglas Feith (undersecretary of defense): ""I have to deal with the fucking stupidest guy on the face of the earth almost every day." This is the same Feith whose office Powell referred to as the "Gestapo." And this is the same Feith who leaked bogus, discredited intelligence to the Weekly Standard in an attempt to link Iraq and al Qaeda.

Page 127: When Karl Rove worries about the perception in the media that he's meddling in foreign affairs, Bush says: "Don't worry about it. Condi's territorial. She's a woman."

Page 11: Bush as glutton: At a Pentagon briefing, staffers lay out peppermint candy for each attendee. Bush scarfs down his peppermint, and then begins to eye Bill Cohen's treat, which the former secretary gladly relinquishes. Gen. Hugh Shelton, the chairman of the Joint Chiefs, "noticed Bush eyeing his mint, so he passed it over."]

One argument I've been hearing lately is that Kerry's support of abortion means that he should be denied Communion, or that he should quit the Church. Here's what Southern Appeal had to say:

It is really quite simple. You cannot be a devout Catholic and support abortion rights. If supporting abortion means more to you than your faith, I suggest you join this "church" and quit pretending to be Catholic.

Here's my question - does this mean that all politicians who support or use birth control should also quit the Church? Unless I'm mistaken (and please tell me if I'm wrong), the Church comes down pretty strongly against birth control (which seems to be in tension with its stance on abortion). Unless you say yes, then you have to come up with a way to distinguish abortion from birth control. Otherwise, you have to admit that people can be good Catholics and not agree with every single aspect of the platform.

After a brief vacation, Billmon has returned to form. He articulated something that I have been thinking about lately, and something that even all war supporters need to at least consider. First, the war may no longer be about successfully creating a Western democracy. Our mission may now have been reduced to preventing all-out chaos and disaster. In other words, we may not be playing to win, only not to lose. Second, even though I hope (desperately) that I'm wrong, I am growing increasingly resigned to the belief that America may have fucked up the Middle East for several generations. For example, if we have opened the storm-gates of Arab rage the way I think we have, I fear that all of our friends in Egypt, Saudi Arabia, and Jordan may go the way of the Shah in Iran. And then, assuming we're still addicted to oil, we really will have a necessary war on our hands. Billmon says it better:

Access to cheap oil may or may not have been a neocon motive for the conquest of Iraq, but it could easily become the main motive for the next Middle Eastern invasion, if the chaos in Iraq spills over into rest of the region. In other words, the neocons may have screwed the pooch (to borrow a bit of pilot slang from Tom Wolfe's The Right Stuff) so ferociously the poor beast can't be patched back up again. Instead of World War IV, America may find its been dragged into a Middle Eastern version of the Thirty Years War, if not the Hundred Years War.
. . .

We seem to have reached the point where a half-baked strategy for endless war in the Middle East is actually easier to sell politically than a sensible energy policy, an end to America's fawning subservience to worst instincts of the Israeli national security state, and a focused, relentless campaign to destroy Al Qaeda while drying up the pools of hatred in which jihad festers and grows.

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As everyone knows, the Supreme Court heard arguments in the Gitmo case yesterday. I had originally intended to read many of the briefs and provide some detailed analysis in non-legal jargon, but I’ve been too busy. I may still write that post, but for now I want to make one general observation about the Gitmo case: the case is, at its essence, a question of how much we should trust the Executive Branch.

A Matter of Trust

I did manage to do a quick scan of the main briefs and the lower court opinion. Like so many important Supreme Court cases, there simply isn’t a clear answer to the jurisdictional question (i.e., whether the detainees can even get to court to air their claims). The law could easily justify either outcome. In other words, the law is indeterminate on this particular question. For example, one important issue (probably the most important issue) is whether Guantanamo Bay should be considered as a territory over which the United States is sovereign (if so, the government probably loses). And both sides can make strong arguments. The government points out that the lease from Cuba clearly states that Cuba retains “sovereignty.” However, the lease also gives complete “jurisdiction and control” to the United States, and it’s clear that Cuba has nothing to do with the military base, and that other federal laws apply there (such as the Endangered Species Act). The second important issue is how the Court should interpret an old 1950 case called Johnson v. Eisentrager. I won’t bore you with all the details, but the case has significant similarities to, and differences from, the current Gitmo case. Different aspects of the case could be used to support or oppose either side’s arguments.

There are also strong policy arguments that both sides could raise. For example, the government clearly has a strong interest in keeping the courts from second-guessing its military decisions. Rejecting the government’s position could also create an administrative nightmare, as Volokh has pointed out. On the other hand, if the Court accepts the government’s position, it means that an innocent person who was mistakenly taken captive could literally remain in prison until he dies, without any right to challenge the detention and without any right to see his family or his lawyer. It’s a very tough call.

In short, the government is asking the Court to give the Executive Branch an enormous power with literally no oversight. And that’s why I think the case is ultimately about institutional trust (or trust between the “branches” of government). In other words, the outcome will depend on how much the Court (the judicial institution) trusts the President (the executive institution). To give the President this power (when the law doesn’t force the Court to do so) is essentially saying, “We trust that the Executive Branch will not abuse this authority.” I, on the other hand, do not trust the Executive Branch and that’s why I hope the Court does find that the detainees have a right to be in court. Let me explain why.

First, it’s not so much that I distrust Bush, or the current Executive Branch (though I do), it’s that I don’t particularly trust government institutions in general. Don't get me wrong, I have a great deal of trust in government programs, but not in the governing institutions themselves. In my opinion, it is hard-wired into the genetic code of man to seek more power. Government institutions are made up of humans, and thus, all government institutions will seek to increase their power – unless they’re checked. To me, the real genius of the Constitution was its heavy reliance on separation of powers, along with checks and balances. I don’t deify the Framers (who were slave-owning aristocrats), but the basic governing structure they created was truly brilliant. Each branch is a check on the natural desires of the other branches to attain more power. That’s why communism (a more beautiful idea than liberal democracy) failed so miserably. It took a much too optimistic view of mankind. The original government worked well (and honestly) for a while, but it soon grew corrupt because there were no checks on it. Power, once given, will inevitably fall into the wrong hands or be used for the wrong purposes. I’m not saying that mankind is naturally bad (though many people think so), but I am saying that humans seek to increase their power and that government structures (or designs) must have a way of resisting this natural behavior.

That's why I’m so skeptical of the Gitmo detentions, the Patriot Act, and all the other post-9/11 actions that rely so heavily upon the discretion of the Executive. Once you give the Executive this power, it’s naive to hope that the government won’t exercise it improperly. That’s what governments (or institutions of government) do – you give an inch, they take a mile. Already, we’ve heard that the Patriot Act powers have been used for drug investigations. And I’m sure that the CIA in the 50s would have loved to have the Court’s blessing to round up Communist leaders, label them “enemy combatants,” and dump them in Guantanamo for the rest of their lives. If the legislature or the courts don’t provide a check (or the credible threat of one), these powers will eventually be used in bad or unintended ways. And remember my Republican friends, there will be a Democrat in the White House again and then they will have all of these powers. And boy would it suck if the government started using the Patriot Act to monitor militias for terrorist-related program activities. Actually, I’m surprised that more conservatives aren’t opposing the detainment and the Patriot Act (though some are). After all, the most paranoid people on earth with respect to government power are American conservatives (the intellectual heirs of the super-paranoid anti-Federalists). The basic point is that everyone needs to view this issue through a non-partisan lens because the power will be ultimately be used by Presidents from both parties. And as I pointed out yesterday, I am very uncomfortable with the extent to which the Legislative Branch has already allowed the Executive Branch to assume full control over the war powers (and Iraq has only increased my concerns over the current levels of Executive power and secrecy).

The idea of checks and balances is the most central and most important aspect of our Constitution. I hope the Court doesn’t ignore it. Because God knows Congress won't do anything about it. "Yes, Mr. Bush, if you say it's about terrorism, we'll approve it. We'll approve anything. Even wars. Can we shine your shoes while we're at it?"

As I said below, one of the reasons I support renewing the draft is because it would act as a deterrent against unnecessary wars of choice by the President. The Framers included such a deterrent in the Constitution by granting Congress alone (not the President) the power to declare war. The thinking was that this provision would force Congress - being the most accountable branch - to think long and hard about commiting to a war. Unfortunately, this provision has essentially been read out of the Constitution by the vastly-expanding Executive Branch and the increasingly-wussified Legislative Branch (it makes you miss Newt). Congress hasn't formally declared war since World War II - and we've had a few major wars since then.

Of course, people could point to the approvals of force in both 1991 and 2002. I'm not sure that's enough of a deterrent. First, the resolutions were voted only after thousands of our troops were deployed. War seemed inevitable (Bush even said he didn't need Congressional approval), so it's almost impossible to ask Congress to resist the President after he has strengthened his bargaining position by sending troops to the combat area. The resolutions should have been voted on before the troops were deployed. The President can simply rely on demagoguery ("you oppose our troops!") once the troops are in place and war seems inevitable. Because Congress has become the boot-lickers of the President, we can't count on existing procedures anymore. Renewing the draft would stiffen their spine - and it would make the wealthy donors (who have no personal stake in the war) think twice too.

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As casualties started to spike this month, many progressives began expressing increased anger and sadness about the plight of both the soldiers and their families at home. One common response I’ve heard from war supporters is some version of the following: “The troops freely volunteered to take this risk.” Although that statement has some truth to it, it’s not entirely true. Today, I want to focus specifically on the question of whether American soldiers “freely” decide to join the military. The best answer to this question is “sorta.”

Whether we have a true volunteer army depends on what is meant by the word “free.” In my opinion, too many people conceptualize “freedom” in a binary, either/or sense. To them, you are either totally free, or totally not free. If this is the proper definition of freedom, then we certainly have an all-volunteer army. No one is using the threat of jail or physical pain to get people to sign up for the military. So, in the most basic sense of the word, soldiers “freely” volunteer for military service.

But let’s consider another way of conceptualizing freedom. Instead of thinking about freedom in terms of either “100% free” or “100% not free," let’s assume that these are the extreme ends of a spectrum and that everything else falls somewhere between these two extremes. For example, let’s assume that you reach a fork in the road and I say, “I’m going to kill you if you don’t go left.” In this situation, you are 100% not free – your decision is 100% coerced. If, by contrast, you reach a fork in the road and I say, “Pick whatever road you want” – you are 100% free to decide which way to go. These are the extremes. Now let’s muddy the waters. Let’s assume that upon reaching the fork in the road, I say “If you go left, I’m going to burn down your house.” It’s not as coercive as the threat of death, but it’s closer to that extreme than to the other one. Similarly, imagine that I say, “If you go left, you get $100,000. If you go right, you have to give me $100,000.” Again, this example probably falls closer to the “100% free” end of the spectrum, but I think we can all admit that it’s not completely free of coercion (even if we lowered the amount of money).

The point is that coercion is not an either/or concept. It is best conceptualized as existing along a spectrum that ranges from very light to very strong. And that brings us to the modern American military.

The key to my entire argument is that, as many people have noted, the American military has a strong class dimension. Our soldiers come from the working classes disproportionately. The wealthy – the patriotic wealthy who are unwilling to pay more in times of war – are almost entirely absent. Here’s some excerpts from the NYT article cited above:

A survey of the American military's endlessly compiled and analyzed demographics paints a picture of a fighting force that is anything but a cross section of America. With minorities over-represented and the wealthy and the underclass essentially absent . . . America's 1.4 million-strong military seems to resemble the makeup of a two-year commuter or trade school outside Birmingham or Biloxi far more than that of a ghetto or barrio or four-year university in Boston.
. . .

Confronted by images of the hardships of overseas deployment and by the stark reality of casualties in Iraq, some have raised questions about the composition of the fighting force and about requiring what is, in essence, a working-class military to fight and die for an affluent America.

Such a widespread phenomenon strongly suggests that there is a systematic cause for the class dimension in the composition of our military. And that cause is economics – pure and simple. The military provides a host of economic benefits – as it should. Soldiers learn important skills, they obtain medical benefits, and their education and retirement are subsidized by the government – as they should be. In pure economic terms, these benefits are more valuable (in a mathematical sense) to working class people than to wealthy people. Wealthy children are less likely to worry about affording health care, or college education, so the benefits offered by the military are not worth as much.

What I take from all of this is that there is some element of economic coercion involved in our methods of military enlistment (remember, it’s a spectrum). In terms of opportunity costs, it’s more rational (as compared to the wealthy) for the working class people to enlist. Many of them simply could not obtain the same level of economic benefits or social advancement if they did not join the military because many of them didn’t have the good fortune of having been born in a wealthy family. It’s similar to our fork in the road example. If you turn left (and enlist), you may have to risk your life, but there are a host of economic benefits. If you turn right (and don’t enlist), you’re going to have a harder time affording education, health care, and retirement benefits. Thus, for many, the decision to join the military is not entirely free, nor is it entirely coerced – but it's somewhere in the middle. I think we can all concede that there is at least some element of economic coercion involved (how else do you explain the demographics?).

And that’s why I say bring back the draft. And do it now. As Charles Rangel has stated, “It's just not fair that the people that we ask to fight our wars are people who join the military because of economic conditions, because they have fewer options.” I agree. All of America benefits from the sacrifices of our soldiers. It’s not fair for that burden to fall on a less affluent subset of the population. (One interesting question for some reporter would be to find out how many of the people attending Bush’s $2,000-a-plate fundraisers have children or close relatives in the military).

I’m not sure that we should completely replace our current system with a draft. But I think that we should pass a law (or amendment if necessary) that requires the President to authorize a draft before any major military operation begins. In other words, if the President wants to go to war, he’s got to authorize a draft. Consider it a "contingency draft." It’s time for ALL of America to start sharing the burden of combat.

In addition, authorizing a draft would ensure that the American population (and especially the disproportionately influential wealthy Americans) will think long and hard about supporting a conflict. I think that many people in the wealthy faction of the Republican Party supported the idea of the Iraq war more strongly because they didn’t have to risk anything. Creating this sort of “contingency draft” would help deter Presidents from sending our young men and women into war in all but the most necessary of situations.

One obvious objection is that, under my theory, the “underclass” (as the article so eloquently put it) should be highly represented, but they’re not. I have two responses. First, it might be the case that people in poverty have too many problems to overcome or face circumstances that prevent them from enlisting. I don’t really know. But second, even if my argument doesn’t explain the behavior of the poor, people still have to explain why the wealthy are virtually absent from our working-class military. I'll certainly change my mind if someone can provide a more compelling explanation for the demographics.

[Update: Atrios disagrees.]

Drezner has another post today arguing that outsourcing creates jobs (especially small business jobs). I must confess that I'm far from an expert, but Drezner's positions seem very plausible. I do have a question though: At what point does outsourcing become morally objectionable regardless of the economic benefits? The standard argument is that outsourcing lowers labor costs, which helps businesses make more money and expand and create jobs at home. But where do we draw the line? I mean, I don't think we could justify lower labor costs if we are allowing jobs to be sent to a slave-based economy. I'm not trying to invoke a straw man. I'm merely pointing out the ends of the spectrum - slavery on one end and strong labor and environmental protections on the other. Again, I don't know for sure, but it seems that many of our jobs are being sent to countries that are approaching the slave-end of the spectrum.

So, I guess my question is: What is the point at which outsourcing becomes morally objectionable, and are there any instances of American jobs going to a country that is beyond this line, so to speak? And I apologize if this question has been clearly answered in a post that I have not read.

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So I watched Woodward on 60 Minutes tonight. This administration never ceases to amaze me. I hope they have a really REALLY good explanation for the unconstitutional $700 million slush fund (I mean, Bush had at least heard of Iran-Contra, right?). But today, I don’t want to talk about Iran-Contra II, or the price-fixing deal made with the Saudis, I want to look at the specific type of process Bush used to decide to go to war. As I’ve said before, reasonable people can disagree about the wisdom of the invasion. But if Woodward is correct, I think everyone should be very disturbed at the defects in the decision-making process that Bush used in deciding whether to invade. Bush’s process was not intended to generate discussion, gather information, or encourage dissent. He simply asked a handful of people (who were inclined to agree with him) about whether to invade, and then he simply told everyone else about his decision. That was his decision-making process. To understand why this is so troubling, let’s look at some parallels in the law.

When any Supreme Court case comes down, there are always two aspects of the opinion that should be evaluated: (1) the result of the case; and (2) the process by which that result was made. For example, let’s imagine that the Supreme Court struck down segregation in a two sentence opinion that said: “First, the Court is omnipotent and whatever we says, goes. Second, in light of this power, we find segregation unconstitutional.” It’s an absurd example, but it raises an important point. Even though the result was proper, the process by which the result was reached (i.e., “Court in omnipotent”) was not. If the Court continued deciding cases based on this sort of decision-making process, it would inevitably reach very bad results.

The law has also long recognized the importance of creating and protecting procedures (i.e., “processes”) to ensure that courts will arrive at informed and just decisions. The goal of these numerous procedural protections is not so much to ensure a given result, but to ensure that, whenever courts do make a decision, that decision will have been made in an adversarial setting where claims and witnesses are challenged, and where factual or legal support has been presented. Just take a look at the Bill of Rights (especially Amendments V-VII). When you look at these amendments as a whole, you can see that the Framers were very concerned about creating an effective process for courts to follow.

For example, before anyone can be convicted of a crime, the government must follow a number of procedural requirements. The government must inform criminals of the nature of the charge against them. They must then be indicted by a grand jury, which requires the prosecution to present evidence. The case must then go to trial, and the trial must meet the standards of “due process” (in other words, certain procedures must be followed such as allowing witnesses to testify). The case must be decided by a jury. The criminal also has the right to an attorney and a right to confront any witness who might testify against the criminal.

You can think of all of these rights as information-producing. The idea behind forcing information to be produced is to ensure that the decision is fair. Requiring the prosecution both to inform the criminal of the accusations against him or her and to present its evidence to a grand jury ensures that people won’t be thrown in jail because the sheriff doesn’t like them. The criminal’s right to counsel and to confront adverse witnesses is a way to make sure that the government’s accusations will be challenged. We feel more confident about sending people to jail because we know the Constitution has required that these decisions be made in a setting where claims are challenged, and where facts and empirical evidence are presented and scrutinized.

“Information-producing” is also the animating principle behind the Framers’ decision to limit the federal courts’ jurisdiction (under Article III) to “cases and controversies.” The idea is that courts make better decisions when there are two self-interested parties presenting the best legal case possible. We see the same thing in the “notice-and-comment” requirement for administrative agencies. The point of all this is to show that information is good. Dissenting views are good. When there is no process to ensure that information will be generated and that dissenting views will be presented, the ultimate decision is likely to be uninformed (and more likely to be wrong).

Which brings us to Bush. Regardless of what people think about the wisdom of invading, I think we can all agree that the process Bush employed to reach that decision is very troubling. It was the opposite of “information-producing.” According to Woodward, Bush never even asked several important people in his cabinet (such as his Secretary of State – the only one with any combat experience in the whole cabinet) about whether he should go to war. According to the Post, the only war cabinet member whom Bush asked was Rice. He explained that he knew what everyone else thought so there was no need to ask them. NO NO NO NO!!

I’m sorry, but that doesn’t cut it. Not by a long shot. I understand that intelligence and war plans had been trickling in for a year. But when the time came, Bush should have called everyone (not Cheney and Rice – everyone) together and said, “Ok, everyone has seen the evidence. Let’s think about the best arguments for and against invasion, in light of everything we've seen.” In this hypothetical universe, Powell could have challenged Cheney’s paranoid delusions (err. .. I mean, intelligence reports), and the hawks could have challenged Powell’s reliance on diplomacy (which had its own shortcomings). Everything would have been laid out on the table and scrutinized. But that’s not how Bush did it. When the time came to make the final decision, he relied on private, Iago-like conversations with Cheney. To make a long story short, Bush made the ultimate decision to invade by relying on a handful of like-minded hawks in his cabinet. In doing so, he deprived himself of contrary views and dissenting opinions. And now we’re paying for it.

Even if a better process would not have changed the ultimate decision, I think many things would have been done differently had Bush been better informed. He apparently did not understand the full consequences of "owning" Iraq – a state with a long history of ethnic hatred and almost no democracy-supporting institutions. I imagine things would have been different if Bush had been told, “Look, there’s a decent chance that the Iraqis will resist and that we’ll have to be there for a long time with a lot of troops. You don’t want Americans doing that alone. We’ve got to build a real coalition.” Or, “Mr. President, we must deal with the possibility that there are no weapons. Is America really ready to make the sort of sacrifice necessary for democracy-building?”

To me, it seems that all of our problems in Iraq have been failures of information. We were wrong about WMDs; wrong about al Qaeda; wrong about our post-war occupation planning; wrong about the effect of disbanding the army; woefully ignorant of Sistani and the Shiites; and on and on. These are ALL – everyone one of them – problems that could have been foreseen and planned for if Bush had employed a process that was more about producing information and less about affirming his divinely-inspired support for the war. For God’s sake, when you go to war, don’t rely only on those who are pushing for war. That’s the whole point of the adversarial process – interested parties don’t always share all the relevant facts (isn’t that right, Mr. Vice-President?). You need other interested parties there to challenge these views. Bush ignored the dissenting views by failing to make his decision through a process that would help him arrive at an informed decision.

And now our troops are paying the price.