Legal Fiction

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I suspect I'll be taking the day off from blogdom. If I do post anything today, it will be early evening or not at all. As for tomorrow, I wouldn't expect anything very early.

Happy 2005 everyone! Just remember, it can't be any worse than 2004 (politically speaking).

[UPDATE: I accept.]

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Though I doubt Reihan Salam (guest-blogging for Andrew Sullivan) intended to give Democrats such a potent rhetorical response to the Bush/Norquist rhetoric of tax-cuts, I think he just did:

On the Right, the rhetorical firepower is with the tax-cutters. If you’re a conservative who believes that, as Stuart Taylor Jr. beautifully put it, the Bush administration “is obsessed with shifting the tax burden from the wealthiest Americans to future generations,” you’re out of luck.

Maybe that's the way to go. Frankly, I've almost given up on trying to make people understand that higher taxes at the top, or even slightly higher taxes for the middle class, would be in their financial self-interest if it reduced health care and education bills, or increased real wages (among other things). The rhetoric of tax-cutting is powerful, and more importantly, it's simple. It doesn't require understanding the concept of opportunity costs.

Traditionally, Democrats have tried to object on both moral and financial grounds to the GOP's tax cuts. But one thing they almost never do (I think Dean flirted with it) is to argue that the proposals are not actually tax cuts. Because the GOP (and America more generally) is unwilling to cut spending on the programs that eat up the lion's share of the federal budget, today's deficit-increasing tax cuts are merely shifting the tax burden to future generations.

Of course, that's all been said before, but not as a coordinated strategy disseminated by the national party leadership. When the debate to make the tax cuts permanent arises, why not argue that these proposals are actually tax increases upon our children? That line of argument is both simple to understand and emotionally compelling. Politicians anywhere in the country could say, "Hey, I love tax cuts. But these aren't tax cuts. These are tax increases upon our children and grandchildren. And it's time we got these big-government tax-increasing Republicans out of office."

If Rove can attack a decorated veteran for being a traitor, why not attack the GOP Congress for being big-government tax-increasers?

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Americans’ various perceptions of Bush and the Republican leadership trigger different reactions in me. Some of them make me disappointed. Some of them I simply don’t understand. Some of them I respectfully disagree with. But some of them drive me to the very edge of insanity. These latter perceptions seem so demonstrably opposed to reality that I sometimes wonder if I am lost in a dream world caused by a mental defect that forces me to view reality differently than the way it actually exists. Of all the insanity-causing perceptions, I think the granddaddy of them all is when people tell me that they support Bush and the GOP because of their perceived strength in the foreign policy and national security arenas. When I hear things like, “Well, I have my problems with Bush, but I support him because of his foreign policy decisions,” I quite literally want to stick my head in the oven.

To be blunt, George Bush and the Pentagon leadership have been wrong on every single major foreign policy decision they have made. Dead wrong. Reading Sy Hersh’s book crystallized for me just how wrong they have been at every step of the way. What’s frustrating – and tragic – about the 2004 election is that the Democrats may never again have such a perfect opportunity to shift people’s perceptions about which party can be trusted on the national security and foreign policy front. I like to call Feith “Never Right Feith.” Unfortunately, that label applies to everyone in the White House and Pentagon. I’m going to defend this assertion by looking back on the past four years, but I’m going to start with Bush’s incomprehensible silence about the tsunami.

For those who don’t know, I am not a world leader. Given my writing over the past year, I have a sneaking suspicion that I will never be a world leader. But if I were a world leader, I would think that humanitarian disasters in other countries would be the political equivalent of hanging curve balls. You really don’t have to exert that much effort to earn global goodwill. In fact, it's one of those rare opportunities where every single person on the planet would agree with you and appreciate your words. Even if you truly don’t give a shit that 100,000 people have died, even if you would rather clear brush for four days than worry about it, all you have to do is have a five minute press conference, express sympathy, and promise money somewhat in excess of what you could get at a couple of political fundraisers. In fact, the only way to blow such a golden opportunity to gain sorely needed goodwill (especially in the Muslim world) is to do exactly what Bush did – nothing. It was a rather remarkable feat.

Seriously though, it just staggers the mind. It is especially staggering when you’re in the middle of a battle for the hearts and minds of Muslims everywhere. Juan Cole nails it:

US President George W. Bush has missed an important opportunity to reach out to the Muslims of Indonesia. The Bush administration at first pledged a paltry $15 million, a mysteriously chintzy response to what was obviously an enormous calamity. Bush himself remained on vacation . . . Indeed, the worst-hit area of Indonesia is Aceh, the center of a Muslim separatist movement, and a gesture to Aceh from the US at this moment might have meant a lot in US-Muslim public relations.

Mind-boggling. Even if we provide a lot of help now, the moment has passed. The initial silence – something that could have been avoided with a two-minute public statement – will stand out and be remembered.

But sadly, this is merely a pattern of foreign policy incompetence that stretches back to early 2001. Bush and the Pentagon have been wrong about pretty much every single decision of consequence that they have made. Let’s begin at the beginning. Prior to 9/11, the administration decided to abandon the Clinton administration’s efforts with respect to both North Korea and Israel-Palestine. North Korea now has nuclear weapons and the peace process was abandoned. Warnings about al Qaeda were generally ignored even as the system started “blinking red.” Instead, the administration’s main focus was on a missile defense system, an anachronism rooted in Cold War thinking and a failure to adapt to the new reality and lethality of non-state actors.

Then there’s Afghanistan, which Hersh convincingly explains was hardly the success it’s made out to be (original New Yorker article here). As he points out in meticulous detail, the Pentagon (and especially Rumsfeld) made the wrong decisions over and over again. First, they failed to send in enough troops. Richard Clarke infamously noted that there were more cops in New York City than ground troops in Afghanistan. This big failure led to several other failures, some of which I had heard about, some I hadn’t. Hersh quotes military officials who concluded that the Pentagon relied too heavily on airpower, which both alienated the local population and was ineffective against the unconventional cell-like insurgency that quickly developed. The Pentagon also failed to close the border, which allowed many al Qaeda and Taliban leaders and foot soldiers to escape and scatter. The administration failed to provide enough reconstruction money in the critical early stages. Hersh noted that money – and troops – didn’t really start flowing in until early 2004, which was far too late. Finally, as Kerry pointed out in the debates, the Pentagon relied too heavily upon warlords in early 2002 to catch al Qaeda members near the Pakistani borders.

Yes, there have been elections and that’s great – even though Karzai is, as Hersh notes, essentially the mayor of Kabul and little else. Still, elections are good. If they lead to stability, it will be in spite of these foreign policy decisions that jeopardized our success. (Although people like Michael Scheurer think it was foolish to try to impose a Western-style democracy in Afghanistan).

Of course, the worst decision of all was Iraq. But even before we get to the more well-known failures in planning, there were a string of wrong decisions and missed opportunities between 9/11 and March 2003 that resulted from the administration’s obsession with Iraq. First, the more important mission in Afghanistan was jeopardized because the Pentagon already had its eye on Saddam. Highly trained special ops soldiers and linguists were moved out of Afghanistan to prepare for Iraq. According to Richard Clarke, this was also why we withheld troops and money from the Afghanistan operation.

Second, the obsession with Iraq – and blind ideology – prevented us from maintaining vital cooperation with countries like Syria and Iran. After 9/11, according to Hersh and a number of others, Syria provided a wealth of knowledge about al Qaeda. The CIA loved it and worked hard to keep the backchannel going. The Pentagon, always being wrong about everything, opposed it. It ended after our invasion of Iraq. Same deal with Iran. The post-9/11 period and the worldwide sympathy gave us a valuable opportunity for both a thaw with Iran and a new alliance for fighting al Qaeda. The Pentagon of course wanted nothing to do with it – and its mouthpieces at AEI are now advocating military strikes against both countries. The opportunity costs are staggering.

And then there’s Iraq itself. This is all familiar by now, but it's worth noting just how wrong Bush and the Pentagon (and AEI and the Weekly Standard) were about everything - even assuming the decision to invade was correct in the abstract (like Afghanistan). They were wrong about the number of troops needed (to be fair, the WS called for more troops). Rumsfeld repeatedly overruled plans that called for more troops. They were wrong about how we would be received. They were wrong in not developing a Phase IV plan. They were wrong in not sealing the borders. They were wrong about WMDs. They lied about nuclear weapon capability and phony sales in Africa. They were wrong about Saddam’s links to al Qaeda. They were wrong about how the rest of the world would react. They were horribly wrong about Chalabi and the exiles. They were wrong about dismantling the military. They were wrong about the size and nature of the insurgency. They were wrong about their interpretations of the Geneva Convention. They were wrong about applying “Copper Green” to Iraqi prisons.

Many of these errors could have been easily avoided. In fact, many were predicted or by exposed by the State Department and the IAEA prior to the invasion.

But the key is that these are not small errors. No Democrat would have been allowed to direct our military so carelessly and get away with it. People who make errors of this magnitude should be fired, much less re-elected on the very grounds of their biggest failures. These repeated and obvious errors have made us hated, made us less safe, and made the world less safe. I dearly miss Billmon, and last summer he penned an excellent, brooding post outlining his basis for pessimism. You should read the whole thing, but he pretty much captures a lot of what I’m feeling these days:

And what I see coming is failure – the most spectacular U.S. foreign policy failure since the last helicopter lifted the last marine off the roof of the American embassy in Saigon. . . . [C]ontrol of the Sunni Triangle is rapidly being ceded to neo-Baathist warlords (as in Fallujah) while Shi'a Iraq is slipping into the hands of the Iranian-allied militias of the Supreme Council of The Islamic Revolution in Iraq and the Da'wa Party - and, of course, Sadr and his army. Like the late Roman Army, Centcom isn't strong enough to conquer its enemies, and so must wheel and deal with them, pitting one against the other. But this only feeds the centrifugal forces that will eventually tear Iraq apart. And those forces are growing more powerful every day.

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Strategic failure on such a grand scale is obviously going to have huge repercussions, not just in Iraq, not just in the Middle East, and not just for the war against Al Qaeda. Much more than 9/11, a U.S. defeat in Iraq (or, at least, an outcome that is perceived as a strategic defeat both at home and abroad) has at least the potential to change, if not everything, then lots of things -- from the U.S. political balance of power, to the future of NATO, to the health of the global economy.

Old debates – about the limits of U.S. power and the consequences of U.S. decline – may be resurrected. America’s attractiveness as a destination for foreign investment – the main prop beneath our current prosperity – could be undermined. But the ultimate consequences of the Iraq fiasco are really almost impossible to predict. In other words, while we may not be looking into the abyss (to borrow Gen. Hoar’s phrase) we are certainly peering out over a dark and fog-covered landscape.

The fact that Bush won this election on foreign policy and national security grounds really tests the limits of my sanity.

I mean, really, how hard is to stop clearing brush to say a few words about a natural disaster of biblical proportions (that's what has made me shrill today).

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Matt Welch over at Reasononline has a good follow-up on my earlier post. Employing some actual empirical research (which I find overrated), he looks to see what prominent pro-war conservatives have actually said about prison torture. His answer is not much. As they say, read the whole thing.

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Before I begin, let me encourage everyone to take a moment and give some money to help the international relief efforts. I provided a link to the International Red Cross on the sidebar. If you don’t like the Red Cross, the NYT provided a long list of other aid agencies. If anyone has any recommendations, please comment below. As Josh Marshall stated, the casualties are mind-boggling (and may exceed 100,000) and it’s hard to find the appropriate words.

Witnessing the havoc wreaked by the tsunami, I was reminded of an analogy often used by a good friend of mine to describe the effects of such phenomena – the “invisible boxes” analogy. It’s very much related to a recent NYT editorial, so I’ll use the latter to introduce it (via Matthew Yglesias):

[T]he underlying story of this tragedy is the overpowering, amoral mechanics of the earth's surface, the movement of plates that grind and shift and slide against each other with profound indifference to anything but the pressures that drive them. Whenever those forces punctuate human history, they do so tragically. They demonstrate, geologically speaking, how ephemeral our presence is.

It’s the last sentence in particular that is related to my friend’s “box” theory. Basically, the idea is that we take a lot for granted. Our everyday life and all its pleasures and worries take place upon a certain set of assumptions – a stack of boxes, if you will – that are usually invisible until one of them is knocked out from beneath us. The idea is similar to Maslow’s hierarchy of needs. First, humans need basic essentials such as food, water, and shelter. After those have satisfied, you need protection for property and from other humans. If those are satisfied, then you can start worrying about your own status, and on and on it goes.

Obviously, if you’re starving, you won’t worry about, say, your lack of designer jeans. The fact that you are stressed about your jeans means that your most basic needs have been satisfied to some extent. You could conceptualize this as standing on a stack of boxes, with each box representing the satisfaction of the basic needs for food and for water and so forth. Natural disasters like tsunamis wipe out the boxes and return humans to a more primitive state in which they try to satisfy that most basic of needs – survival.

The people of India and Sri Lanka were going about their everyday business – working, buying things, worrying about their children. But all of these activities could take place because certain needs or preconditions had already been satisfied. They had food and water. They had shelter. They were protected from other humans by the mechanisms of the state (e.g., police and property rights). They were not in the middle of a war zone. But little did they know – and little do we ourselves realize – how precarious everyday life is. Everyday life depends upon the absence of forces that we rarely think about – e.g., starvation, war, sickness, and natural disasters. When these forces come, they thrust humans down Maslow’s ladder and force them to satisfy their more basic and primitive needs. In other words, they knock over the stack of boxes upon which society precariously rests.

In my friend’s view, this is why 9/11 was so traumatic. Unlike people in the Balkans or Israel, Americans were no longer worried about physical destruction by rival armies or militants. Given the number of years since our land was actually threatened, the “boxes” supporting things like the Internet boom and the New Economy were invisible to us. Then, the planes hit and we all realized just how precarious our everyday existence could be. If the 9/11 hijackers didn’t knock over a box, they at least shook them and made them visible. The attacks made us see how quickly a society – any society – could crumble in the face of a nuclear attack or a collapse of the financial markets.

Though I’m reluctant to inject Iraq into this post, I think the "box" analogy provides a good opportunity for people across the political spectrum to understand my good-faith aversion to war, especially in the Middle East. It’s not hostility to Bush or conservatives or America. More than anything else, it stems from a humanitarian desire to avoid mass death and dislocation – the same principle that animates many religious conservatives to demand action in Sudan. War always knocks out the boxes, which is why it should only be used when absolutely necessary.

In a nutshell, I fear that we’re playing with fire. In a quest to knock out one “box,” we’re risking unleashing forces that could knock out all the boxes underlying society in the Middle East.

For example, if Iraq breaks out into civil war, would it be contained within its borders? It’s not inconceivable at all that a regional conflict could develop. Iran and Lebanon might help the Shiites, which might lead Sunni states like Saudi Arabia and Syria join in. Or, the Kurds could declare independence, triggering an attack from Turkey, Syria, and Iran. If this drew Israel in, God only knows what would happen next. If the conflagration spread to Pakistan, or if Musharraf gets killed (with or without Iraqi civil war), it’s possible that undeterrable radicalized fundamentalists could gain access to nuclear weapons. One can imagine the effect all of this might have on the oil supply and the world’s financial markets, not to mention the innocent civilians of the area. Even if the war was contained within Iraq, it would surely be horrible. The people of Iraq would be thrust down Maslow’s ladder and would be struggling to survive.

I should be clear that this is a worst-case scenario, and is hopefully very unlikely. But it’s certainly within the realm of the possible. The lesson of World War I is that small hostile actions in volatile regions can trigger a chain reaction that leads to a larger and unstoppable tragedy of immense proportions. We should not play dice with human life so casually. Western Europe has never recovered - and can never recover - from the horrors of World War I.

Life is precarious enough as it is. Even without our efforts, the boxes can be toppled by something as uncontrollable as the shifting of the earth’s plates. I guess my point is that if we had a better appreciation for how easily normal life and our ephemeral societies can descend into chaos, perhaps we would be more hesitant to risk shaking the foundations upon which they rest.

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I'm heading back to DC today. Hopefully, regular posting will resume tonight.

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In the spirit of George Constanza, my general rule of thumb in adopting foreign policy views is to figure out what AEI thinks, and then go with the opposite. For example, Reuel Marc Gerecht (of AEI and the Weekly Standard) makes the argument this week for a preemptive strike on Iran, which I think would be a horrible mistake - perhaps even worse than invading Iraq. It would be the single most effective method for strengthening the current regime. But my view is the opposite of the one adopted by Gerecht. He writes:

Iranians are not nationalist automatons--they are among the most profound, cynical patriots imaginable. They have learned to hate the clerical regime for the most intimate, in-your-face reasons. This disgust will not be long buried by a rush of patriotic passion provoked by an American bombing run on nuclear facilities. Given the Iranian character, it's likely to dissipate at an astonishing speed.

That's a pretty important assumption given that being wrong jeopardizes the entire democracy promotion project in Iran. But I have confidence that Gerecht is right given his impressive track record of analyzing the Middle East. You may remember Gerecht from such columns as "Why We Need a Democratic Iraq" from March 2003:

Denied control of the Iraqi military--which in its rank and file is majority Shia--the Sunni Arabs will have nowhere to turn for protection but to a vigorous democratic, federal system that protects minority rights and allows them considerable control of their lives in areas where they predominate. In a post-Saddam Iraq, the Sunni Arabs could well be among the most committed democratic-nationalists, underscoring the Iraqi identity over ethnic and religious loyalties. The United States should encourage them to move in this direction by superannuating the senior grades (try colonel and up) in the officer corps, and massively shrinking the size of the army, which has preyed on civilian rule throughout the modern history of the country.

And don't forget this jewel:

In sum, the Shia Arab identity is in flux. It could become democratic or dictatorial. The United States and its Iraqi friends--and among the truest of these is the Shia exile Ahmad Chalabi of the Iraqi National Congress, the leading Iraqi pro-democracy umbrella group--have an enormous opportunity to encourage the Iraqi Shia Arabs to make the right choice. If they do so, no other force in Iraq, or outside the country, will likely have the strength to fell Iraqi democracy.

Where have you gone Brent Scowcroft - a nation turns its lonely eyes to you. Woo-woo-woo.

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As regular readers know, this is not a religion-bashing blog. In fact, I’ve written many times about how I wish that progressives would co-opt religious narratives to defend their values - especially in Red America. Given political reality in America, the ultimate goal should be (and must be) to forge a majority coalition of secular and religious progressives that could unite around policies that further both groups’ values. But that said, I have zero tolerance for so-called “Intelligent Design” (ID). This garbage has absolutely no business in a science class. Though I could rattle off a number of objections (stunting science; failing to prepare our students for research positions; etc.), the main one I want to focus on today is simply why, as a matter of logic, ID is not – and cannot possibly be – science. In other words, I want to show precisely why ID is merely a clever attempt to introduce theology into biology classes.

I started thinking about ID again after reading yesterday’s Post:

The school board in this small town in central Pennsylvania has voted to make the theory of evolution share a seat with another theory: God probably designed us. If it survives a legal test, this school district of about 2,800 students could become the first in the nation to require that high school science teachers at least mention the "intelligent design" theory. This theory holds that human biology and evolution are so complex as to require the creative hand of an intelligent force.

The whole ID movement is an attempt to evade the Supreme Court’s conclusion that creationism could not be incorporated into the science and/or biology curriculum (I would have less problems with it in a theology or philosophy class). Essentially, ID adopts scientific lingo to argue that certain features of the human cell (among other things) are so complex that it suggests that an intelligent force “designed” it.

Essentially intelligent design posits that the human cell, among other organisms, is too finely tuned to have developed by chance. "The human cell is irreducibly complex -- what we find in the cell is stuff that looks strongly like it was designed by an intelligence," said Michael J. Behe, a biology professor at Lehigh University and leading advocate of intelligent design.

The issue is not so much whether ID is wrong or right, the issue is that it cannot possibly be tested. That’s why it cannot be included in a science class, which deals only with what can be observed or tested.

The logic of ID is essentially a two-step process. First, there are numerous observable complexities that Darwinism allegedly has not yet explained, or has explained poorly. Second, the nature of the complexities suggest that an intelligence designed them. From a scientific perspective, the basic problem is that the second and most important step cannot be proved or disproved because there is no empirical evidence that could ever be offered to support it. Nothing can possibly be presented to forge that final link in the chain. It really doesn’t matter how complex our cells are. Assume infinite complexity for all I care. ID can offer nothing to show that these complexities were the product of some divine intelligence. And unless we want to throw out the most basic assumptions of Western science, that should be the end of it.

An ID advocate might object and say, “If you found a watch on a deserted island, that would be evidence of design even though you could not present evidence of the creator.” That’s true. It would be evidence of design – human design. And it would be consistent with empiricism in that my conclusion would draw upon past observations. In the past, whenever I have seen these sorts of mechanical arrangements, they were invariably the product of human design, which is something I have observed and am familiar with.

But this argument doesn’t work for ID. Again, let’s assume for the sake of argument that a human cell is as complex as a modern watch. Let’s assume that the odds are extremely small that our cell could have developed the way it did according to Darwinian theory. Even if all that’s true, there is still nothing to establish the most critical link – that the complexity was the result of some other-worldly intelligence. To be blunt, we don’t know – and can’t know – a damn thing about other-worldly intelligence. There’s not even any empirical evidence of its existence, much less whether observable biological structures can provide evidence of its design.

One the real issues here is simply hostility to Darwinian evolution. If ID were limited to challenging Darwinism or noting its shortcomings, that would be fine (assuming it's honest and doesn't distort and ignore evidence to the contrary). In fact, challenging and testing current theories is the whole point of science. But ID builds a bridge way too far. It tries to challenge Darwinism to support its theory of design. These are two distinct issues. If Darwinism is wrong or incomplete, then it only means that Darwinism is wrong or incomplete. It provides exactly zero evidence of intelligent design. The ID logic is no different than saying, “See, Darwinism is wrong, and that supports my theory that the human cell was designed by a race of celestial Super Goats.”

This is also true if our cells are so complex that it seems to us (at this current stage of modern science) that they couldn't have developed through chance and evolution. That would only mean that we can't explain the complexities yet. It doesn't mean that the complexities are evidence of some intelligence that cannot possibly be observed.

Again, this is not intended to be a religion-bashing post. Far be it from me to claim expertise on the origins of life. I’m only saying that ID does not belong in a science class unless we want to abandon the most fundamental principles of science. This is something people need to fight against at a local level wherever it happens to pop up. We owe it to the kids.

[UPDATE: For those interested in the failure of the "science" used by ID theorists, Coturnix has a good roundup here (and in the comments). If you want to get into the nitty-gritty of Behe's biochemical and "irreducible complexity" arguments, check out "Answering the Biochemical Argument from Design."

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I've been spending my vacation reading Sy Hersh's book, which I strongly recommend for those who have not read his New Yorker articles over the past three years (I had read some, but not all). Hersh gave me the background necessary to understand the ins and outs of the Marshall/Rozen reporting on the Franklin investigation and its possible connection to the Niger forgeries. I really can't believe I hadn't taken the time to get on top of this issue. If it ever gets investigated, this is the controversy that could actually sink the Bush administration.

For those who (like me) were not quite grasping the gravity of this potential scandal, here's the chronology of articles you should read. Begin with Sy Hersh's New Yorker article and focus specifically on the forgeries from Africa. Then read Josh Marshall here, the Washington Monthly here, Josh Marshall here, and I would add Yglesias here.

The basic issue is whether a group of neocons within the Pentagon (Feith's office to be precise) attempted to "dupe" (Yglesias's term) the United States into war with Iraq and potential war with Iran. If it turns out that the Jacobins in Feith's office had anything to do with the forgeries, then the proverbial you-know-what will hit the fan and hit it hard.

What seems clear is that someone within the Italian military intelligence service (SISMI) disseminated rather obviously false documents about the much-ballyhooed uranium sale to Iraq that never took place. (Sy Hersh explained in his book that it took IAEA a few hours to discover that the documents were bogus even though they provided the main support for Bush's infamous sixteen words.) What is less clear is who created the documents or how they found their way to SISMI in the first place.

Enter Larry Franklin and uber-neocons Michael Ledeen and Douglas "Never Right" Feith. To understand the fuss, go read the Marshall/Rozen Washington Monthly piece. Marshall and Rozen don't come right out and accuse Ledeen at being at the heart of the Niger forgeries, but it's not hard to read between the lines. In one of several (unauthorized) meetings with Iranian dissidents in December 2001 in Italy, Ledeen and his Iranian buddies were apparently joined by some high-ranking officials in, you guessed it, Italian military intelligence.

The Washington Monthly has also learned from U.S. government sources that Nicolo Pollari, the head of Italy's military intelligence agency, SISMI, attended the meetings, as did the Italian Minister of Defense Antonio Martino, who is well-known in neoconservative circles in Washington.

Again, this is all speculation, but it sure smells funny - especially given the cast of characters. And since the Senate and the FBI don't seem too anxious to get the bottom of the issue, maybe the blogosphere could give the mainstream press some more prodding. It's possible that the FBI's investigation of Franklin or the Plame investigation has extended to the Iranian backchannel (which is problematic even if it had nothing to do with Niger), but you would think (as Marshall pointed out) that if this were true, someone would have interviewed Rocco Martini, the man who gave the Italian journalist the documents in the first place. (The Italian newspaper then forwarded them to the US Embassy and up they went - you'll learn all this from Hersh).

Of course, the Plame investigation stemmed from the Niger scandal. It would be nothing less than divine justice if the outing of Plame led authorities to the biggest potential scandal of the Bush administration. Abu Ghraib is certainly an outrage, and I'm sure there's much more to learn (and I'll be returning to prisoner abuse very soon). But the torpedo in the water is Africa and the uranium forgeries. It's probably the only thing that really keeps these people up at night. Prisoner torture will not sink the administration - this scandal could. And it's not just the forgeries. Pretty much everything related to the Niger story smells funny - from Plame to the pre-war claims that were not retracted after new evidence came to light before the war.

Everything I've written is merely repeating original reporting from others. But I will ask one question that I haven't seen anyone address: Did Boy Genius/Turd Blossom (Bush's pet names for Rove) know anything about this? I ask this only because I've heard that Rove and Ledeen are pretty tight. Here's an excerpt from a Post article from March 2003:

Though he is Bush's top political aide, Rove also has a seat at daily White House policy meetings, and his network of advisers includes those who talk to him about terrorism and foreign policy.

One is Michael Ledeen of the American Enterprise Institute, whose specialties include terrorism and the Middle East. His latest book, according to the official summary, asserts that "America must topple the regimes of the terror masters to eliminate the threat of terrorism."

The two met after Bush's election. "He said, 'Anytime you have a good idea, tell me,' " Ledeen said. Every month or six weeks, Ledeen will offer Rove "something you should be thinking about." More than once, Ledeen has seen his ideas, faxed to Rove, become official policy or rhetoric.

Perhaps the conversation went like this back in December 2001:

Rove: Hey Mike, how was your weekend?

Ledeen: It was great. I went to Rome. It was fabulous.

Rove: Any highlights?

Ledeen: No, not really. I just helped coordinate a plan to trick the United States into invading Iraq. You know, Straussian stuff.

Rove: Awesome. Ohio loves a good war.

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From the entire staff here at Legal Fiction, who will all be stuffing their faces today and not attending to their official duties.

And read today's Post (via Josh).

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Hey, I'm a "conservative hawk" - who knew? Sullywatch goes on to lecture me:

You scoffed and sneered back before March 19 when we told you this sort of thing could and would happen. . . . Yet you didn’t want to hear it. You instead worshipped the Gods of the Market, who promised these beautiful things.

Mr. Sullywatch, I've been called many things, but "conservative hawk" is a new one.

Ah, the many dangers of posting snark after reading only one post from a blog.

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Talking about the future of our military strategy in Iraq, Kevin Drum offers a line of argument that I expect to become more popular in the months ahead - the "crap-or-get-off-the-crapper" argument:

Even war enthusiasts ought to agree that you either fight a war to win or you don't fight at all, and the Bush administration has made it clear they're not willing to take the political risk needed to increase troop strength enough to put down the insurgency and stabilize Iraq, a step that everyone agrees is a precondition for democracy. . . . "Staying the course" is the worst possible strategy we can follow in Iraq. We either need to commit enough troops to get the job done or we need to pull out. Since the Bush administration isn't willing to do the former, the only option left is the latter.

I still have not come to a conclusion about whether things are so hopeless that we should pull out. But I do think that Kevin is wrong about increasing troop strength. More precisely, his timing is wrong. This argument used to be right, but things are so bad now that I'm not sure it is. I'm ultimately going to use game theory to explain why, but I'll introduce my argument with an important passage from Ignatius's last column:

Many of the recent attacks on Rumsfeld similarly miss the point. He is faulted for not having enough troops in Iraq, for example. Perhaps that was true during and immediately after the war, but it isn't now. The role of the additional troops we're sending today is mainly to protect the other U.S. troops there. More American soldiers mean more targets, not more security for Iraqis. Additional soldiers definitely are needed, but they should be Iraqis.

In other words, because of past failures, we now have the tiger by the ears. If we leave, civil war and ethnic cleansing will surely follow. If we increase troop strength, it's not clear that it would do anything but hurt us, strategically speaking.

In light of (or despite) this reality, I expect two major lines of argument to emerge in the near future. Some people will say crap (i.e., increase American troop numbers dramatically) and others will say get off the crapper (mass withdrawal). The problem with the former is related to the Nash equilibrium, a game theory concept developed by John Nash, who was featured in A Beautiful Mind. Here's how I explained it in an earlier post:

One of Nash’s contributions (to economics and game theory) was the so-called “Nash equilibrium.” Basically, it refers to the best possible strategy (or set of strategies) that one can adopt in response to an action by another player. To illustrate the concept, let’s assume you’re playing a game of chess. In any given game, there is a move (or set of moves) that is your “best move” (mathematically). However, once your opponent moves, it changes your Nash equilibrium. In other words, your opponent’s response creates a whole new “best move.” For example, if you suddenly lose your queen (the strongest piece in chess), your Nash equilibrium (or “best strategy” – or “best set of moves”) will change drastically. It’s more complicated than that, but that’s the gist of it. The basic point, for purposes here, is that one’s best possible strategy can vary wildly if circumstances change. And once the circumstances have changed, an earlier “best move” is no longer the “best move.”

One good example was the Dean-Kucinich debate about withdrawing troops during the Democratic primary. Dean, unlike Kucinich, favored increasing occupation strength even though he had opposed the war. That makes perfect sense when you remember the lessons of Nash. The best of all possible moves would have been never to have invaded at all. But once the invasion took place, an entirely different set of calculations were necessary. Once the invasion took place, the best move would have been to deploy hundreds of thousands of troops to maintain security, which would have limited the "fertile ground of anger" from which the insurgency - or any insurgency - emerged or emerges. Withdrawal at that point would have been disastrous.

But at the end of 2004, our "best strategy" is now far different than the "best strategy" of April 2003. The Sunnis hate us. The Shiites will hate us too if they think we're staying for a long time. Abu Ghraib, the civilian casualities, the destruction of Fallujah, and a million other things have combined to make us positively reviled by the Iraqi and Arab streets. In a variation of my new favorite Rumsfeld quote, this is the situation we have.

And from this position, increasing American troops is not our "best strategy." It used to be, but not any more. In essence, applying this argument today would be like playing a game of chess in which you think you still have your queen when you actually lost it long ago. Our queen is gone, and we have to try to salvage what we can given the position we're facing today.

I realize that the implications of what I'm saying probably support the "get-off-the-crapper" argument. Maybe they do. I honestly don't have much hope, but I'm not ready to call for a mass withdrawal - yet. For now, I prefer the slim chance of something stable to the certainty of war/genocide that would follow a mass withdrawal. Unlike Vietnam, mass withdrawal really could get some dominoes falling in a region where they don't need to be falling. On the other hand, if the CIA is privately telling Bush and Rumsfeld that it's hopeless, we need to pull out - today. I don't want to see the movie Fog of War II in 2040 where I see tapes of leaders publicly lying and sacrificing troops and families long after everyone privately concluded it was a lost cause and that a million more troops would do nothing to change that conclusion. If it's too late, which it may be, then Bush will have blood on his hands for every day he keeps people there strictly for political reasons. Again, I'm not there yet, but I'm not far from there either.

What we need is stability. And no, I don't favor an all-out return to Kissinger realism. But we do have to face reality. Democracy would be great, but we have to play the hand we have, not the hand we would hope to have at a future date. To me, our only hope lies in engagement with Iran (in fact, I recommend full recognition of Iran for reasons I expressed here). Ironically, I think it's the only player in the broader geopolitical theater that could prevent the widespread chaos that would increase the global terrorism threat exponentially.

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I've been traveling all day. I'm now at home (home home) for the holidays, so the posting will probably be erratic for the next few days.

Happy Holidays!

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"I tremble for my country when I reflect that God is just, that His justice cannot sleep forever." Thomas Jefferson, reflecting on slavery

When it’s all said and done, the most shameful legacy of our post-9/11 conduct will be the official sanctioning of the torture of other human beings in blatant violation of the Geneva Convention – which, like the Constitution, represents one of humanity’s most noble milestones. Of all my gripes with this administration, this one is the hardest to tolerate. To me, Bush is undermining the foundation of one mankind’s greatest achievements, not to mention endangering our troops and future generations of troops. Phil Carter has the roundup of articles (and his own posts), and they pretty much speak for themselves:

[A] supervising special agent described abuses such as “strangulation, beatings, placement of lit cigarettes into the detainees' ear openings and unauthorized interrogations.” . . . In other instances, a female prisoner "indicated she was hit with a stick," according to a memo from last May, and in July, Army criminal investigators were reviewing "the alleged rape of a juvenile male detainee at Abu Ghraib prison."

Still other agents gave more detailed accounts of abuse.

In June, for instance, an agent from the Washington field office reported that an Abu Ghraib detainee was "cuffed" and placed into a position the military called "The Scorpion" hold. Then, according to what the prisoner told the FBI, he was doused with cold water, dropped onto barbed wire, dragged by his feet and punched in the stomach.

And there’s more drip-drip-dripping out – and the dots just keeping pointing toward DC, and even the White House. And though I’ve long since given up on this administration, I have not given up on Americans and honest conservatives. But I am wondering where the outrage is? Why isn’t this being recognized as the scandal it is? To his credit, Andrew Sullivan is the only prominent conservative who consistently denounces these abhorrent Soviet-secret-police tactics.

Perhaps part of the problem is that conservatives are seeing this scandal through the “tinted lens” of partisanship. That’s why I want to try to make them understand that the scandal is more than a left vs. right dispute. In fact, it violates their own most valued principles – and threatens their most strongly desired goals. In short, I want to make the conservative case for outrage.

Iraq War/War on Terrorism

If the prisoner torture should piss off anyone, it should piss off Iraq hawks the most. Although my views of the war are well-known, I know that there were many good-faith supporters of the war who believed strongly in the cause and who believe strongly in democracy promotion. But there is nothing – and I mean nothing – that undermines our efforts and our mission more than the torture of Muslims, especially when that torture is coldly calculated to exploit Arabs’ religious views. The whole thing has a level of sophistication far beyond what nineteen-year old reservists from West Virginia could devise. And to those we most need to persaude, it vindicates bin Laden’s claims that we are hostile to Islam.

You can’t defeat an insurgency – whether in Iraq or in the war on terror, which is essentially a global insurgency – by military force alone. That’s because an insurgency isn’t finite. Its numbers and resources expand and contract with public opinion. (This is the main reason why the whole "so-we-don't-fight-them-at-home" line doesn't make much sense, logically speaking. Our efforts have increased the ranks of those that hate us.) We can raze every city in the Sunni Triangle (and we’re well on our way), but we will never defeat an elastic insurgency if we can’t win the hearts and minds of the local population. If you care about the success of this mission, both in Iraq and more globally, logic demands outrage. I mean, imagine if an Islamic army conquered America. Then imagine if you watched your countrymen get raped, tortured, and murdered by a foreign army who you didn’t really like anyway. Do you think you’d sign up for the Iraq 2.0 police squad or would you join the local insurgency with your family and childhood friends?

When the administration authorized torture, it threatened our troops and it threatened our mission, most likely fatally and beyond any hope of recovery. It is hard to underestimate the damage caused by the ripples of Abu Ghraib.

Neoconservative Foreign Policy

Again, regardless of what I think of certain neocons, there are some good faith neoconservatives out there. Assuming that this is your view, I don’t see how you could be anything but enraged at the administration for this debacle. That’s because the torture scandal strikes at the very heart of your entire vision of foreign policy. To be grossly general, the neocons believe that the current international system is too restrictive upon the United States. They believe that we need to break away from some of these institutions (UN) and be proud to use American power in support of democracy and other human rights across the globe. There’s a sort of Nietzschean element to their vision – America must transcend the current order and, by acting, create a new and better world order.

Leaving aside the Marxist/Rousseauian/French Revolution aspects of this vision, it rests on one critical assumption – that America is a force for good. Without that pillar, the entire neoconservative edifice comes crashing down. Unless you’re morally superior (or at least "good"), there is no moral justification for ignoring international law and abandoning international institutions. These are not people who simply think “might makes right.” Like the French Revolutionaries, there’s a deep moralistic streak in their vision. America is good. If she acts boldly, others will follow and the world would be better. The justification of invading Iraq in spite of world opinion depends upon this assumption that we are a force for good.

The problem, though, is that the great neoconservative experiment ended with the hooded man with the electrodes on his testicles. In one snap of the camera, everything was lost. How can you convince the world to follow when you sanction Scorpion treatment? How can you regain the moral legitimacy that is the foundation of your vision? How can you convince your fellow citizens to abandon international law when this is what happens. It reminds people that there’s a reason we have laws. And that brings me to my next point.

Rule of Law

Most conservatives – especially George Will conservatives – would tell you that there are few things more important than the rule of law. And to some extent, I agree. There are some truly admirable features about the Roman/Anglo-Saxon legal tradition from which our laws derive.

Ideally, if these conservatives disagree with a law, they will respect that law or seek to change it through the proper channels (right Brett?). That’s Bork’s whole schtick about liberal judges – they seek to bypass the Article V amendment procedure to enact their pernicious "Happy Holidays" agenda. Above all, the rule of law must be respected. It's the foundation of society.

Fine. But I can’t think of a more flagrant violation of the rule of law than what we’re seeing by this group of, well, war criminals within the administration. If you disagree with the Geneva Convention, fine. If you disagree with the Convention Against Torture, fine. If you disagree with the federal statutes that ban torture, fine. Just withdraw from the treaty or revoke the statute. But you cannot unilaterally decide that you will no longer follow binding law. We have a name for people who do that – criminals. And that’s just exactly what some of the people in the Pentagon are, in the strictly literal sense of the term. They have violated laws, blatantly, and they should be punished for it.

Religion

But all of the legalistic jargon pales in comparison to the more important point – it’s just wrong. Horribly wrong. The things we are doing to people violate the tenets of every major world religion. If you are religious, and you support this administration, I think you need to ask yourself some tough questions about whether what we’re seeing is consistent with your religious views. If anything, I would expect activist Christians to follow the path of their ancestors when they were the moral vanguard in the fight against slavery and for civil rights. I would expect them to be louder than anyone.

But no one seems to care. We’re torturing and murdering prisoners and no one seems to care. It is becoming more and more clear that this torture was directed from on high, and no one seems to care. It’s time to get madder about this, especially if you’re a conservative. The torture undermines the war, threatens your foreign policy visions, jeopardizes our soldiers, exposes them to danger and death, undermines the rule of law, and violates the core tenets of your religion.

It’s time stand up for your values or shut up about ours.

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Macbeth - III.i

MACDUFF
O Banquo, Banquo,
Our royal master 's murder'd!

LADY MACBETH
Woe, alas!
What, in our house?

Lady McClellan:

MR. McCLELLAN: Let me finish. The President expects that there -- if there are allegations of abuse, that those allegations need to be taken seriously. They need to be fully investigated, people need to be held accountable and brought to justice if they're involved in wrongdoing, and that preventative measures and corrective measures are put in place to prevent it from happening again. The Department of Defense has a number of investigations ongoing into allegations of abuse. I think they show that they take these allegations very seriously, and that's what we expect.

Something about OJ and his "tireless search for the real killer" comes to mind. More to come tonight.

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Since it's a slow day today, I thought I'd solicit feedback. In the post below, I asked for some tips and/or resources for redesigning the website. I felt like I was ready for a new template. But some of the commenters resisted and said they liked the template the way it was - uncluttered. So please be brutally honest. Should I try to make it look more professional, or leave it the way it is? If I should change it, I would welcome suggestions about the best resources for doing that (and thanks to those who have already offered recommendations).

Thanks
The Management

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Well, it doesn't happen much, but tonight it happened. I spent hours on a post that I just never really liked, but I kept thinking I could salvage it. I was nearly finished when I realized that I hated the whole thing. On behalf of all the staff here at Legal Fiction, I apologize. We'll do better tomorrow.

But before I leave you with nothing, I have to say that it was really tough to pick the dumbest quote from Bush's press conference today for the byline above. Here were some finalists that didn't make the cut:

I believe [Rumsfeld is] doing a really fine job.

We vetted a lot of people in this administration. I mean, we vetted people in the first term. We're vetting people in the second term. And I've got great confidence in our vetting process.

And so, I just want to try to condition you. I'm not doing a very good job, because the other day in the Oval, when the press pool came in, I was asked about this -- the -- a series of questions -- a question on Social Security with these different aspects to it. And I said, I'm not going to negotiate with myself. And I will negotiate at the appropriate time with the law writers. And so, thank you for trying.

Well, that's going to fall in the negotiating with myself category.

Let me put it that way. I'm trying to be really brilliant. Now, what was the other part of your question?

I have heard the anguish in [Rumsfeld's] voice and seen his eyes when we talk about the danger in Iraq and the fact that youngsters are over there in harm's way. And he's a good, decent man. He's a caring fellow. [He always cries when he plugs in his letter-signing machine in the morning.]

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Although I'm stingy with my sidebar, I did want to point out three new permalinks for three excellent blogs - Lean Left, Total Information Awareness (Eric Martin), and Julie Saltman, who is hopefully drunk and out of commission tonight after finishing finals. Check 'em out.

Also, I have a request. I'm tired of the layout here. Now that I'm a fancy-pants lawyer, I'd be willing to spend a little money to make this site look a bit more professional. Anyone have any recommendations? I don't want to leave Blogger, I just want a better template.

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It's happening.

More Aggressive Congress Could Hinder Bush's Plans

President Bush's second-term plans to reshape Social Security, immigration laws and other domestic programs are facing a stiff challenge from a group that was reliably accommodating in the president's first four years: congressional Republicans.

. . .

The bigger a party's majority, often the harder it is to impose party discipline, several GOP observers said.

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Like Kevin Drum, I'm already sick of the newest front in the Great American Culture War - "Happy Holidays" vs. "Merry Christmas." Though it seems ridiculous, and though it is ridiculous, there is an important lesson that progressives could learn from it. In fact, it is a lesson that we must learn if there is any hope of recapturing any part of Red America in the near future. What we must understand is that the Christmas debate has nothing to do with Christmas, just as the Ten Commandments debate has nothing to do with the Ten Commandments. The Christmas debate is merely a proxy for the much larger battle against perceived societal decline.

In my opinon, the Democrats are not losing in Red America because of specific issues such as gays or abortion or "Happy Holidays." They're losing because they fail to grasp how these issues relate to the larger culture war that's raging in Red America. The Great American Culture War is not about specific issues. It's about a stubborn perception of moral and societal decline. Let me explain what I mean and I'll eventually wind back around to Happy Holidays-gate.

Immediately after the election, the first explanation for Kerry's defeat was "values", which generally meant gay marriage. As time went by, that explanation was rejected as more people attributed the loss to the national security gap. The problem is that both camps were right - they were just approaching the question from different perspectives. It's important to remember that there can be more than one explanation for political defeat (especially when you lose by two points). Imagine a Mapquest map that allows you to zoom in and zoom out. One explanation for Kerry's defeat is the "zoomed in" explanation that focuses on the narrow range of persuadable voters in the middle. From a "zoomed in" perspective, a better national security message probably would have won a couple of points in Ohio and Florida, and thus the White House.

But there's also the "zoomed out" explanation for Kerry's defeat. Here, the national security explanation doesn't seem as compelling. By "zoomed out," I'm referring to the broader political alignment of the entire country and not the mood of exurbs in swing states. Ask yourself - why are the South and West red? Why are the Northeast and West Coast blue? Does national security correlate with geography and urbanity so perfectly? I doubt it. Regardless of the empirical effect of gay marriage in Ohio in 2004, the reason the country is divided the way it is (and thus, one reason why Kerry lost) is because of values and the culture wars. It's why rich Connecticut votes Democratic, and why dirt poor West Virginia votes Republican. And that's why I think it's going to take more than national security to create a lasting progressive majority. To put a dent in the broader political alignment (from a "zoomed out" perspective), Democrats have to be smarter in the culture war (while sacrificing nothing). And it's not a hopeless goal, for reasons you're about to see.

But first, let me explain why I'm convinced that "values" is the main reason why Democrats are getting beat. For one, it's the most consistent with my personal experience (for whatever that's worth). I grew up in a farming town in southern Kentucky that had a lot of poor and working-class people. I also went to a Southern Baptist church every Sunday for the first 18 years of my life. I've spent my whole life around these people. I know them. And they vote Republican because of cultural issues (which includes welfare and affirmative action). Fortunately, these people don't hate abortion or gay people nearly as much as you think. What they worry about is their family, and the effect of society and culture upon their children. The Dobson pro-criminalization wing is loud, but they're not anywhere close to a majority of Southerners. Democrats will never get the Ayatollah Dobson camp, but they can get the middle-class churchgoers who just want their kids to turn out right, and who want the annoying Dobsonites to leave them alone too (generally the freaks of the congregation that everyone tries to smile at and ignore as they go home to watch football).

If you don't believe me, just ask Brad Carson - an articulate, telegenic, centrist Democrat Rhodes Scholar who got beat soundly in Oklahoma by a certified nutcase who sterilized one of his patients and supports the death penalty for abortion doctors. Here's what he wrote in the New Republic (and you should read the whole thing):

I do know this: The culture war is real, and it is a conflict not merely about some particular policy or legislative item, but about modernity itself. Banning gay marriage or abortion would not be sufficient to heal the cultural gulf that exists in this nation. The culture war is about matters more fundamental . . . Pace Thomas Frank, the voters aren't deluded or uneducated. They simply reject the notion that material concerns are more real than spiritual or cultural ones. The political left has always had a hard time understanding this, preferring to believe that the masses are enthralled by a "false consciousness" or Fox News or whatever today's excuse might be. But the truth is quite simple: Most voters in a state like Oklahoma--and I venture to say most other Southern and Midwestern states--reject the general direction of American culture and celebrate the political party that promises to reform or revise it.

Though I hope he didn't use the word "pace" too often on the campaign trail, he raises a vitally important point. Many Americans - especially in Red America - have internalized a belief that society is in decline. I have no idea what the cultural or psychological foundations of this belief are, but it's inherent to much of conservative thought. [For more detail, see my post - The First Culture War: Insights from the Renaissance - in which I contrasted the "progressive" and "Orthodox" mind.] Whatever the cause, it's been around for a long time. The belief in a idyllic golden age and a linear decline has been an important part of almost every fundamentalist (thus the term "fundamental") religious movement in history from the Protestant Reformation to Wahabbism. In probably my first good post back in January, I wrote that originalism and its worship of the Framers is a variation of this "decline-from-a-golden-age" view as well (which explains why conservatives are more likely to be originalists - it's consistent with their broader world view).

So here's the point. The reason that "Happy Holidays" and gay marriage and the Pledge are important is not that people really care about them, but because people view them as proxy battles in this war against decline. GOP Inc. and Fox News understands this well. That's why Bill O'Reilly is pushing this Christmas issue. That's why Fox News always has stories about school prayer and the Ten Commandments and gay marriage on. They're exploiting this perception of decline by linking these controversies with it. To progressives, saying "Happy Holidays" is merely a way to be polite. To conservatives, especially those who have never met a Jewish person in their life, it's just another assault on the values of the past.

Although the GOP runs every branch of government, their success (ironically) depends upon maintaining a perception that conservatives are a persecuted minority whose values are being assaulted by modernity. That's why stories such as "Happy Holidays" or Janet Jackson or Rathergate or some random uber-PC school board in New Jersey are so important - and why Fox News and others emphasize them so much. They are perfect vehicles for reinforcing these views of decline and assault. It's an "Other" that is exploited to maintain the GOP's political coalition.

And it's working. We're losing. [Remember that you have to distinguish "is" from "ought." America ought not to think this way, but it does. And in many areas of the country, getting to 51% requires you to win the votes of at least some of the people who view the world in "declinist" terms.]

So what to do? On a more academic level, we need to start exposing and discrediting the idea of golden ages and declines among the chattering class. On the level of short-term political strategy, we need to understand the prevalence of this view. It's been around for, well forever really, and it's not going to go away before 2006 or 2008. What progressives must do - especially in conservative areas - is to pick new proxies. It's similar to saying we support anti-terrorism, we just think you're fighting it the wrong way. Progressives need to say that we understand the anxieties of parents. We understand the fears of losing children far too early to sex, drugs, and god knows what else. In short, we need to empathize with their fears and say, "here's what the Democratic Party is doing to address them."

Clinton's V-Chip and focus on crime were perfect examples (and yet another reason why he was the master). But there are other proxies that Democrats could use. Stronger discipline and penalties for misbehavior in public schools would be a perfect proxy that would also improve education. But even traditional Democratic programs such as universal health care could be co-opted as a proxy. Say stuff like, "Too many parents are working too hard for too little benefits. Helping families with health care would free up time and remove stress - and that would give parents more time to spend with their children." Make it emotional - incorporate pathos.

Even gay marriage could be reconceptualized as a way to fight off decline. Candidates could say, "I share your concern about the decline of the family. Strong families are the backbone of this nation and we need to do all we can to strengthen them. See, now I know that there are some who say civil unions are a threat. They're completely wrong. Civil unions create families. The benefits give people incentives to join together and stay together. It allows them to share the efforts of their hard work with their children. Denying these rights destroys families. And Lord knows America needs more strong families."

I wouldn't recommend using the latter in the Mississippi governor's race, but you get the point. The Democrats can snatch many voters in Red America if they could convince them that they too are taking a stand against decline. Remember Carson's words, "Most voters in a state like Oklahoma--and I venture to say most other Southern and Midwestern states--reject the general direction of American culture and celebrate the political party that promises to reform or revise it." You might not like my examples, but the general point remains. There are surely other policies that are progressive - and don't require selling out on any issue - that can be marketed using the language of reform and sticking up for values. Clinton understood this well, and he won - twice.

So yes, the Christmas debate is ridiculous, but there is a lesson to be learned. Progressives have to change the "zoomed out" map to win, especially given the strong socially conservative beliefs of such vital constituencies as blacks, Latinos, and union families. It's not a matter of changing any policies, it's a matter of narrative framing and cultural empathy. It also requires a modicum of creativity within the current Democratic Establishment, which is why of course we don't see it.

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Phil Carter articulates one of the most difficult, gut-wrenching dilemmas faced by people across the political spectrum who opposed the Iraq war:

Does support for the troops mandate support for their mission? And if not, how do you reconcile the inherent dissonance between supporting the soldier and opposing his mission?

That's a damn tough question - and a crucially important one too. I watched The Fog of War this weekend, so the issue has really been on my mind. I'm going to gather my thoughts on this issue and try to write about it this week. Any preliminary thoughts or opinions are welcome.

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In today's WP, Dana Milbank wins the "Journalistically-Acceptable-Alternative-to-Saying-Bald-Faced-Lie" Award. Apparently, Col. David Hackworth discovered a few weeks ago that Rumsfeld does not actually sign the condolence letters sent to the families of dead soldiers. Instead, he has a machine do it (which is a fitting metaphor on so many different levels). When asked, Rumsfeld's spokesman lied through his teeth. Here's how Milbank reported it:

The controversy arose when soldier-turned-writer David H. Hackworth penned a column on Nov. 22 reporting that two Pentagon-based colonels told him that Rumsfeld "has relinquished this sacred duty to a signature device rather than signing the sad documents himself." . . . Hackworth wrote that a Pentagon spokesman, Jim Turner, dutifully told him that "Rumsfeld signs the letters himself." Now, that assertion turns out to be inoperative.

I don't want to pick on Milbank - he's one of the few honest journalists left. It's just interesting that journalists aren't allowed to use the word "lie." Clearly, Turner would have checked with Rumsfeld. And he clearly knew the truth. But he told Hackworth a straight-up lie, probably thinking there would be no way to verify it. He was wrong, again. But it's just funny that the lie must be reported as an "inoperative assertion."

An on an aside, Rumsfeld really does just lie about everything. EVERYTHING. It's amazing.

[UPDATE: Well, it seems the joke is on me (thanks to commenter praktike). I'm assuming that Milbank was alluding to Nixon's clueless Scotty McClellan - Ronald Ziegler. Apparently Ziegler - during Watergate - used the term "inoperative." My irony detector is usually pretty good, so I'll blame this one on my youth. On an aside, it's pretty funny - I should have known Milbank wasn't letting me down.]

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I don't write posts this short very often, but in this case, I'll just say Amen. It is interesting (on a psychological level) why so many conservatives repress the fact that Reagan was forced to raise taxes repeatedly after the deficits caused by his 1981 tax cuts.

foreshadowing: [n] the act of providing vague advance indications; representing beforehand

I have to say, I've been enjoying Josh Marshall's ongoing coverage of Bush's star-crossed nominee and the Phantom Nanny (wasn't that a Scooby Doo villain?). But every time I start to laugh, I suddenly remember that this guy was going to be in charge of keeping 300 million Americans safe from terrorism, and then it's not so funny anymore. Then again, I doubt that Kerik would have actually been deciding anything. He was merely a public face. But still, the Kerik nomination is frightening for reasons that have nothing to do with Kerik himself. What's truly scary is that we got a clear glimpse of the process - the fact-finding procedures - used by this White House to reach decisions on important matters. And even though the Kerik nomination is comical, I fear it is merely a foreshadowing of some truly horrible decision in the not-so-distant future - and one that cannot be so easily undone.

As I've explained many times, the real problem with Bush's obsession with loyalty, and with his intolerance of dissent and being challenged, is essentially procedural. Arguments, challenges, and dissent are the foundation of both science and the legal system because they are most efficient way to generate good information upon which to make an informed decision. I've spelled out this general argument in detail (in the links above), so I won't do so again. But just look at how well the Kerik nomination supports the argument.

First, it was clear that Bush liked this guy. He made it well-known within his inner circles that this was "our guy." Rather than subject this gut instinct to empirical scrutiny, he had his loyal circle of yes men vet and "grill" Kerik. Amazingly, despite all of the problems now bubbling to the surface (problems that even a simple FBI background check would have detected), the vetters and grillers gave Kerik their stamp of approval. I don't think people like Gonzales were stupid enough to withhold information. But I do think that Bush's enthusiasm for Kerik made them more reluctant both to go digging, and to report potentially troubling leads to people who quite clearly didn't want to hear about it. The result was predictable. A small insular group made an uninformed decision. That decision was not subjected to rigorous challenge. Information was not generated. And the White House made a horrible, horrible decision. Iraq happened the exact same way.

[On an aside, I suspect that if judges were only allowed to read the briefs of the plaintiffs, they might not come to a good decision either.]

What's scary, though, is not so much that Bush nominated a shady guy with mob ties to DHS. What's scary is that this is the process that the White House has in place to make decisions about war and peace, life and death, and our nation's (and world's) fiscal policy.

If this is the sort of rigorous, adversarial fact-finding process used to select arguably the most important cabinet position in the country right now, then why should we expect it to be any different on other even more important decisions such as, oh, partial privatization of Social Security and/or a military strike against Iran. The Kerik nomination, I fear, is merely the tremor before the real earthquake.

For my conservative readers, this is exactly why I have no confidence in Bush - especially when he's making a "bold" decision. It's not really an issue of conservative vs. progressive policies. My real gripe with Bush is that he rejects the principles of empiricism - and the Enlightenment more generally - in reaching decisions on really really important issues.

Yes, yes, I know. This faulty policy process has already given us Iraq. So it's not really fair to call Kerik a foreshadowing of something worse. Fair enough. But if there's one thing I've learned about this administration is that just when you think they can't possibly get any worse, they always rise to the challenge and prove you wrong. As hard as it is to imagine, striking Iran would be worse than invading Iraq (for reasons I explained yesterday - the opportunity costs would be staggering). And as bad as the fiscal policy has been, just imagine what will happen to the dollar if Bush makes his tax cuts permanent at the same time we're pouring out hundreds of billions for Iraq, the Medicare Rx bill, and the partial privatization of Social Security. I'm not joking at all when I say that a full-blown financial collapse is about to enter the realm of the possible (though not probable. . . yet).

So yes my friends, things can get worse. And if the Kerik nomination is any indication, they will get worse. And we know that because we know that Bush's decisions and policies will not have been subjected to rigorous analysis and dissent. Instead, they will likely have been the uninformed product of a small group of uninformed loyalists. I think that the band Ben Folds Five sums it up pretty well in their song "Video": Oh, what fun. I can't wait 'til the future gets here.

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I agree with Digby on what must happen in the upcoming Social Security debate (which I'll be discussing in more detail in the future):

We are right to formulate the argument for those occasions when we are dealing with people who are really interested in the details, but we should not make the mistake of thinking that reason is going to win this fight. This fight will be won on emotion.

That is absolutely right. While I normally try to be rational, as a matter of political strategy, there's a very simple strategy that the Democrats should adopt - DEMAGOGUE THE HOLY SHIT OUT OF THIS PROPOSAL. Scream. Accuse. Attack. Crush them with it. Do as you have had done unto you. Maybe you might win something.

Many a Republican has suffered political death attacking the foundation of the New Deal. It could happen to the modern GOP too. The Democrats can't let up. This the best opportunity they will have to win back something (anything) in 2006.

And one more thing - if the national Democrats sell us out and abandon the safety net that our seniors have enjoyed for 75 years (and the values underlying that safety net), I'm through with them. I will renounce my membership in this party. I'll go with Dean if he leaves the party, or with someone else if he doesn't. I watched this party roll over for the war, and it almost caused me to leave. Social Security would be the last straw. I would be outta here - and I'm pretty sure I'd have some company. Better to lose for ten years while building something new than continue support cowardice and patheticness.

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It looks like the missile defense system (a horrible idea ill-suited to non-state terrorism) failed miserably. That might stop a less bold President, but not this one. I am confident that the missile defense system will be awarded a Medal of Freedom, or even a high post in the Pentagon. Nothing has been as well-rewarded as failure in this administration.

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Let me see if I have my history right. America was in the middle of the Cold War. One of its major anatagonists in that conflict was Maoist China - a country that was growing more powerful in the region (for reasons anyone who could add could have understood). It had opposed our efforts in the recent and current wars in the region. It was our sworn enemy. And yet, in 1972, a president who had spent his entire political career denouncing Communism re-established diplomatic and economic relations with China because he had the domestic political capital to do so. So I'll ask the question - why not recognize Iran?

This is more of a thought experiment than full-blown advocacy, so I would welcome comments. But it's not that crazy, is it? More specifically, what could be said about Iran that could not also be said about China in 1972? Corrupt rulers . . . check. Sworn enemy . . . check. Illiberal political system . . . double check. But despite all of these negatives, think about all the positives we gained from Nixon's boldness. First, it gave us diplomatic leverage over the Soviet Union and the broader geopolitical theater. Second, it vastly expanded our trade and our access to markets - benefits we reap today (outsourcing bogeymen notwithstanding). Third, the world has leverage over nuclear-powered Communist China because the tentacles of the global market have ensnared it. In short, China is "connected" (see Ignatius) - it's a part of the "connected" world and has an interest in not blowing it up, or supporting those who do.

I see a lot of similarities with modern Iran, and a lot of good reasons to reach out. First, we need to recognize that Iran has been the big winner from our misadventure in Iraq. The future of the Middle East belongs to the Shiites, both in Iran and in soon-to-be Shiite-dominated Iraq. That's just a fact. We would be well-advised to get out of the way if we can't lend a hand. We can rail against the inevitable, or we can use it to our advantage (as we're sort of doing now in Iraq - the south has been very quiet lately). Some wise steps today could reap generations of benefits.

Second, Iran has a vested interest in preventing civil war and chaos in the Middle East. Iran has also shown a willingness to stand up against al Qaeda, which is a force for chaos (as I may have read Matt Yglesias write somewhere - he seems to be toying around with a more Iran-friendly policy).

Third, there have been numerous indications that Iran desires (behind the scenes of course) a better relationship with the US. I seem to remember an article that it had quietly offered assistance with al Qaeda after 9/11 before the Iraq mess (does anyone have a link or know the article I'm talking about? - I thought it was the NYT).

Fourth, engaging Iran would make them more "connected" to the world and its markets. Stop terrorists with iPods, I say. Unlike Iraq, Iran actually has the underlying infrastructure to support a viable democracy. It has a broad, educated middle class. It's not as ethnically divided. And the nation's youth are sick of theocratic rule, and quite pro-Western (relatively speaking). Before Bizarro Napoleon Bush spread anti-Westernism across the Middle East, the reformers were making a good deal of progress. Engaging Iran economically would help both nation's economies and it would provide crucial leverage with which to seek reform, and/or to create the conditions in which reform could occur more organically (see China). Diplomatically, a more friendly Iran could be a huge help in fighting al Qaeda, influencing Middle East policy, and securing oil resources.

There are some downsides. First, there is the hostility to Israel. I think this is actually reason to engage Iran. If you want to threaten the long-term health of Israel, then by all means, go bomb targets in Iran and piss the nation off for a generation. And when Tel Aviv gets hit by nuclear terrorism in 2015, thank your friendly neighborhood AIPAC agent. No, the way to protect Israel is to engage Iran. Make it dependent upon foreign markets and we'll have far greater leverage to stop the funding of Hezbelloh and future nuclear attacks against our close ally. Are there no capitalists left in the Republican Party? Unite people, unite!

Second, the regime is atrocious (like China was). And recognizing Iran would certainly contradict the spirit, though not the reality, of our democracy-promotin' wizards in the White House. But here too, I think that democracy promotion is a reason to engage and recongnize Iran - and get it hooked on Britney Spears. I believe in democracy promotion too - I just think that military tactics often have the opposite result. Economic engagement would strengthen the underlying infrastructure that is necessary for democracy. Do you think Iranian women will be better off under an Iranian economy fully engaged with American business, or with an isolated, angry regime infuriated by military strikes (especially if they come from Israel with our support)? Money is power, and the more that gets spread to the people, the more likely they will seek reform. Again, look at China.

Obviously, I'm not a Middle East expert, so perhaps my analogy to China doesn't work. But maybe in some ways, it's even stronger. I suspect that China's economic infrastructure (education, middle class, etc.) was nowhere close to modern Iran. I really think it's where America's democracy-promotion efforts should have been directed - but with iPods and dumb movies, not bombs and liberating death.

As for Bush, he is in a unique position in that only he could take the steps necessary to recognize Iran and not get crucified. The genocidal wing of the GOP wouldn't be happy (Glenn Reynolds), but sane Republicans might give him some leeway - especially if you appeal to their wallets. It would also appeal to Bush's desire to be a Great Man.

I suppose the wild card is al Qaeda. If the regime is actively helping them (as opposed to housing bin Ladin's half-sister twice-removed for a few weeks in 1989), then the calculations change. But I'm not sure what the Iranian regime's position on al Qaeda is (though I'm sure the populace is hostile). I suspect that the connections are exaggerated and could be cut off if the price was right, given Iran's desire for stability and regional dominance. But again, I welcome comments from those more knowledgable than myself on these matters.

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Now that the election is over, I’m going to take a break from law and politics every so often to address the really burning questions of pop culture. Don’t be fooled by the title though – I think there are actually some deeper philosophical ideas in this soon-to-be-eternally-recurring debate.

I meant to write this post many months ago when Matt Yglesias first raised it in September:

[T]onight, a great dispute arose revealing what is, perhaps, the most profound divide in America today. In short, one friend asserted -- absurdly, in my view -- that Pearl Jam is better than Nirvana.

Unlike most topics I write about, I am uniquely qualified to weigh in on this one. I spent my early high school years cruising Kentucky back roads listening to both bands over and over again (among other things). In high school, I liked Pearl Jam much better. But since Cobain’s suicide, my love for Nirvana has grown and grown. Today, it’s not even close - Cobain is king. To understand why, you need to understand some of the central ideas in Nietzsche’s Birth of Tragedy.

In Birth of Tragedy, Nietzsche laid out his famous distinction between Dionysus and Apollo in the context of discussing art and Greek theater. To be grossly general, the world of Apollo is a world of individualization. It is the world of appearances and rationality where one idea, person, or concept is individually distinct from another. Dionysus refers to the precise opposite. This site captures it well:

Drunkenness and madness are Dionysian because they break down a man's individual character; all forms of enthusiasm and ecstasy are Dionysian, for in such states man gives up his individuality and submerges himself in a greater whole: music is the most Dionysian of the arts, since it appeals directly to man's instinctive, chaotic emotions and not to his formally reasoning mind.

Here’s another way of thinking about it. Let’s say you’re really really mad. The emotion is swirling around inside you, driving you crazy. But then imagine if you said, “I am really mad.” The word “mad” can never capture the reality of the underlying emotion that gave rise to the word. It’s like trying to pour the ocean into a bottle. It just doesn’t fit. This is what Nietzsche meant when he said, in one of Harold Bloom’s favorite quotes, “That which we can find words for is something already dead in our hearts; there is always a kind of contempt in the act of speaking.” If you can find words to express it, you’re necessarily destroying the power of the Dionysian emotion (which by its nature cannot be reduced to words). That’s Nietzsche’s point in Birth of Tragedy. He thought art declined because it had abandoned its more primal (or primordial) roots, and opted for inferior Apollonian reason instead.

Here’s where I’m going with this: I think Nirvana is far more Dionysian than the more Apollonian Pearl Jam. I believe that the bands approached songwriting from opposite ends of the Dionysus-Apollo spectrum. Nirvana started with an emotion – pain, anger, angst, sadness – and worried less about concepts. Many of their lyrics were essentially nonsense. Pearl Jam (even though Vedder could sound angry) started with a concept and tried to squeeze emotion out of it. In the end, even though Nirvana’s lyrics didn’t make much sense, they resonated more deeply with people because they were a more direct expression of emotion. Essentially, Cobain’s gutteral screams were more musical, if you buy the idea that music is a more perfect expression of emotion than words. In that sense, Cobain was "folk" in the same way that slave spirituals or early bluegrass harmonies were "folk." Here's a great line from Birth of Tragedy:

Nor should it be difficult to show by historical evidence that every period which abounded in folk songs has, by the same token, been deeply stirred by Dionysian currents. Those currents have long been considered the necessary substratum, or precondition, of folk poetry. But first of all we must regard folk song as a musical mirror of the cosmos, as primordial melody casting about for an analogue and finding that analogue eventually in poetry. Since melody precedes all else, it may have to undergo any number of objectifications, such as a variety of texts presents. But it is always, according to the naive estimation of the populace, much superior in importance to those texts.

Cobain is "primordial melody." [Think too about the 60s - very Dionsyian; lots of folk revivals.]

Some songs will show what I mean. Look at some of Pearl Jam’s well-known songs – Even Flow, Alive, Daughter, Better Man, Small Town song. They all start with concepts. "Even Flow" talks about the homeless. "Alive" is about Vedder's lost relationship with his real father. "Daughter" and "Better Man" attempt to voice the frustrations of women. "Small Town Song" is about the sadness of leaving your home and watching you and your friends change. They’re good songs and all, but they start from distinct individual concepts. Pearl Jam sat down and said, “I want to write a song about a girl in a bad relationship,” and wrote "Better Man." It was an attempt to summon the listener’s emotions by appealing first to a concept (or to the Apollonian).

Nirvana, by contrast, rarely if ever tried to be this conceptual. Cobain was a troubled guy, full of anger and rage and sadness. Unlike Pearl Jam, Cobain didn’t sit down and say, “I want to write about being angry, so here’s a song about a guy who’s angry.” Instead, the anger just sort of poured out of him more naturally through the medium of nonsense lyrics. The emotion is therefore more im-mediate. In some Nirvana songs, listening to him makes you feel viscerally shaken (“Rape Me”), whereas listening to “Better Man” makes you think, “Golly, that girl is in a bad relationship.”

Obviously, these are subjective views, and Pearl Jam could get Dionysian at times (“State of Love and Trust”) and Nirvana could get Apollonian (“I tried hard to find a father, instead I had a dad.”). But in general, you can just sort of feel or intuit the emotion in Cobain’s lyrics. You feel his deep angry sadness resonating within you. Personally, the song that gives me chills every time I hear it is the cover at the end of the Unplugged CD when he starts shrieking “My girl. My girl. . .” Even though the song is a conceptual one about betrayal and infidelity, you actually start feeling the depths of the betrayal at the end when you hear it coming from his primal screeches.

Getting away from this particular debate, the general principle of emotion-before-concept can be applied in many other areas as well. For example, when you see a sappy TV show or movie clearly attempting to make you cry, it is sometimes hard to articulate why exactly you hate it so much. Why exactly is “sappy” so intolerable? Now you know. Sappiness is an attempt to summon an emotion by starting first with a dead concept and then trying to squeeze emotion out of it. The writer sits down and says, “I want to make people cry, so I’ll do it by writing about a sick baby. That’ll get ‘em.”

But great art doesn’t work that way. A better approach is to begin with an emotion rather than a concept. If you're a writer, tell a story that resonates deeply for reasons you don’t completely understand at first. Tell the story that you find yourself strangely drawn to and let the concepts arise more organically without your heavy-handed control. That’s why I love Hemingway's The Sun Also Rises. At its essence, it’s a story of deep loneliness. But Hemingway doesn’t smack you in the face with it, or with the concept that he’s writing about the aftermath of World War I. He just tells a great story, and when Jake is alone at the end, the concepts just arise and haunt you viscerally.

I’ve seen that bloggers have been offering their holiday books – well, there’s mine. It’s my favorite book of all time.

[If we must inject some politics, this is a model that can work for Democrats. Rather than starting with a concept you think will summon emotion, just list the policies you believe in and see what concepts arise organically. On some level, it's just another version of empiricism. Gather the evidence and then allow the evidence to provide the conclusions.]

[UPDATE: Music is in the air today. Science and Politics (Coturnix's blog - a frequent and insightful commenter here) takes an interesting look at country music lyrics - check it out.]

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I've been busy today, so I haven't had time to write a real post. But, that won't stop me from introducing Scotty's First Law of Visible Discomfort:

The number of references to "moving forward" is inversely proportional to the comfort level of the current White House Press Secretary (aka, Scotty).

Just as before, these are all taken from yesterday's press briefing:

David, I think Commissioner Kerik has addressed this matter. Our focus now is on moving forward to name a new nominee as quickly as possible.

But we are moving forward now to name a new nominee.

We respect that decision; now we are moving forward. I understand your interest in looking back, but we are moving forward to name a new nominee as quickly as possible.

[ed. note - This exchange has to be bracketed to show how Scotty overcame an interruption to inspire our continued forward motion]:

MR. McCLELLAN: It was his decision to withdraw himself. We were moving forward --

Q Right, I understand that [we all do]. But there was nothing else that you're aware of that would have affected his --

MR. McCLELLAN: We were moving forward with the nomination process when this issue was brought to our attention by Commissioner Kerik, and it was his decision to withdraw his name from consideration.

But now it is time to move forward and put in place a new nominee to be Secretary of Homeland Security.

Like I said, I don't think it serves anyone to get into the speculation from this podium. We're moving forward now.

The elections continue -- well, the Iraqi people continue to move forward on holding elections on a timetable that was set up by the Independent Iraqi Election Commission. We support that timetable and we are doing what we can to assist and move forward to meet that timetable. The President indicated again last week at Camp Pendleton that as we move forward on elections, the Saddam loyalists and terrorists will become more desperate. We will continue to see violence as we move forward to building a free and peaceful Iraq for the Iraqi people. And that's what the President has said before.

I think there will be different ideas expressed within the conference about how we move forward on these different issues. But I think, generally speaking, you'll have people that share his philosophy. But they're going to have different ideas about how to move forward on some of these issues.

But the President is continuing -- and this is part of -- this economic conference is obviously part of transitioning to a second term, as well, where we're talking about some of these high priorities on the agenda for the American people and how we can work together, moving forward, to accomplish great things.

The President said that would guide some of his thinking going forward [it's close enough]. He laid out some very clear principles upon which he is moving forward to strengthen Social Security, and we look forward to working with members of Congress to get it done.

You're talking about these 527 groups, I assume, when you're referring to that? I'm sure you're not asking me to try to give ideas to the Democratic Party about how they should move forward, but --

The only silver lining of Bush 2.0 is that we have Scotty for a few more years.

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Since I'm only offering scattershot posts tonight, let me make one more brief point. Digby has been on a roll this week (see especially here and here). I will quibble with this point though:

The father of the modern Republican party (perhaps modern American politics) is not sunny Reagan, it’s darkling Nixon. Until we finally grasp the nature of the opposition we will continue to lose. It is the central problem we face.

Not exactly, though he's correct that Nixon did use the strategy that we are seeing today on both the "moral values" and "national security" fronts. I explained Nixon's "positive polarization" strategy here:

In 1980, Reagan was merely following Nixon’s so-called “Southern Strategy.” One of the architects of this strategy was Nixon advisor Kevin Phillips, author of the 1970 book “The Emerging Republican Majority.” Phillips explained that the goal of politics it to understand “who hates whom”:

“That is the secret.” The trick was to use the emotional issues of culture and race to achieve what Phillips’ mentor and boss, John Mitchell, called a “positive polarization” of American politics. (By “positive,” Mitchell meant that Republicans would end up with more than 50 percent of the voters once the electorate was divided into warring camps.)

But the real father of this strategy is not Nixon. In fact, it's not even a Republican at all - it's George Wallace. The people we now call "Reagan Democrats" should actually be called "Wallace Democrats" for reasons I explained in that same post:

As crafty as Nixon’s team was, the true architect of the polarization strategy (according to Carter) was George Wallace (who was, I must concede, a political genius). Wallace was the first person to really exploit white (especially Southern white) backlash to developments in the 60s. What people may not remember is that he was very popular. In his third-party run in 1968, Wallace won five states and 13% of the national vote. As 1972 approached, Nixon feared Wallace would siphon votes from him. So, (and this is still controversial), Nixon and Wallace probably made a deal in which Nixon arranged to stop a federal tax investigation of Wallace if Wallace would run as a Democrat in the 1972 primary. He did, and as Nixon expected, he ripped the Democratic Party in two by running on race and social issues. In fact, had he not been shot, he would likely have won. For example, Wallace won the Florida primary easily, and almost won the Pennsylvania and Indiana primaries despite being outspent eight-to-one by Humphrey and his labor support. By the middle of May, Wallace was ahead of Humphrey and McGovern by roughly a million votes each. On May 15, he was shot and that was it.

Fast forward to 1980. Despite the fact that the South went back to the Dems in 1976 (with the Southerner Carter in the wake of Watergate), Reagan knew that there were a lot of Wallace Democrats out there (who later became “Reagan Democrats”).

Karl Rove is the latest branch on the sordid family tree that runs from Wallace to Nixon to Atwater to Turd Blossom himself.

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Wampum is currently taking nominations for the 2004 Koufax Awards under several different categories. So if you're feeling froggy. . .

I'm not sure what I consider the "Best Blog" to be now that Billmon is gone. I waver between Fafblog and Washington Monthly (though I like Talking Points and Yglesias's posts quite a bit too). Thoughts? Are there any blogs that I never cite to that you would recommend? I feel like I need to find some new ones.

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I haven't written anything about Social Security yet (I've just been reading Kevin Drum instead), but that's obviously going to change as the battle heats up this year. Leaving aside details for now, what's striking to me at this early stage of the battle is the Bush marketing strategy. It's exactly the same as what we saw applied to pretty much every major policy initiative Bush has fought for, especially Iraq. More precisely, we're seeing the familiar pattern of what I call the "Head & Shoulders" marketing strategy, coupled with blatantly misleading statements, at best, and outright lies at worst.

Regular readers are familiar with the "Head & Shoulders" marketing strategy (explained here and here). It's quite simple, and is used everyday by American advertisers. First, stimulate a fear. Second, offer a product (your product) that can eliminate or reduce that fear. In the Head & Shoulders commercials, the stimulated fear was the embarrassment (the horrid embarrassment) of having flakes of dandruff on your shoulders. The shampoo was the product to eliminate that fear. Zit-cream commercials work the same way.

Obviously, the clearest (and most tragic) example of this marketing strategy was the Iraq War. Fear was stimulated by public statements about mushroom clouds, yellowcake, sarin, and al Qaeda - all with 9/11 fresh in Americans' mind. Removing Saddam was the "product" offered to eliminate that fear. It's very simple and the simplicity is why it works so well.

Considering Bush's successes in the 2002 and 2004 elections, there is simply no rational incentive to stop using this strategy (and there's certainly no threat posed by the American media). So he won't. And already we're seeing it applied to the Social Security debate (via Reuters):

President George W. Bush said on Saturday Social Security must be overhauled to avoid a "looming danger" of insolvency, as he launched a public push for his proposal to add private accounts to the program. . . . "The Social Security system is essential, yet it faces a deepening long-term problem," Bush said in his weekly radio address. "While benefits for today's seniors are secure, the system is headed towards bankruptcy down the road. If we do not act soon, Social Security will not be there for our children and grandchildren," he added.

Ignoring for now the blatant lies, just look at the thrust of the message. Bush stimulated the fear - and that will surely be echoed by administration officials, talk radio, Fox News, and hack bloggers. Eventually, he will offer his product (private accounts) as a way to eliminate that fear. It's the Head & Shoulders strategy in action.

But it's more than that. The fact that one uses the Head & Shoulders strategy doesn't necessarily mean that it's "bad" in some sense. Sometimes it can be the only way to wake people up to real problems. The real problem with Bush - and one that we have seen throughout his presidency - is that he uses lies and/or grossly misleading statements to stimulate the fear. And this is part of the more general problem that I explained here by using Judge Bork's critiques of liberal judges as an analogy: Bush knows that his policies would never command majority support at the polls, so he lies about them. This seems a bit counter-intuitive given last month's elections, so let me explain.

I would argue that almost every one of Bush's major legislative/policy victories would not have commanded majority support if the American people were fully informed when they were "deliberating" on them. Because they would lack majority support, Bush and his team were forced to mislead the public in order to get them passed. I laid all the arguments out in a prior post, so I'll only briefly recap (for sources, go the prior post).

First, if the American people had known the true distributional effects of the various tax cuts, they would not have supported them. That's because they quite obviously went to the top (one can agree that this is a good or bad thing normatively, but you can't disagree with it as a descriptive or positive statement). So, Bush used a number of dishonest tactics to disguise what was really happening (statistically unrepresentative families, "average" tax cut, etc.) Second, if Americans had known there were far less viable stem cell lines than the administration told us, they would not have supported his policy. Third, Americans would not have supported Iraq in a million years if they had known the true extent of the al Qaeda ties and the absence of WMDs. Democracy promotion may work as a retroactive justification, but it would not have worked in October of 2002 when visions of mushroom clouds danced in the air. Fourth, the Medicare Rx bill would not have passed if Congress and/or the American people knew the true costs (which were known only to the administration and suppressed by them).

And it's not just the major initiatives. The more general support of this administration requires that the American people not understand the true nature and significance of the deficit, the state of the economy, the scientific reality of various environmental measures, the scientific reality of global warming, the beneficiaries of the estate tax, the "global test", Kerry's nationalized health care plan, the effect of Iraq upon Arab radicalization, and on and on.

Now, we're going to see the same exact pattern in the Social Security context. If people knew that Social Security was not in much trouble at all, they would certainly not support a new round of heavy borrowing (in times of war, deficits, and the potential collapse of the dollar) for something that is extremely risky and will eventually cost us more money when people make bad investments or the market nosedives. Atrios makes a good point:

No, it is not "headed towards bankruptcy." At worst, if zero changes are made and pessimistic growth assumptions come true, at some point around 2045 (depending on which estimate), the system is predicted to only be able to pay out 75% of promised benefits. Of course, that 75% of promised benefits is still going to be equal to or higher in real terms than current benefit levels. So, while there would have to be a drop in payouts if no changes at all were made in the system, that drop would still lead to benefit levels roughly equal to or even greater than current benefit levels. And, then, those affordable payouts would continue to grow...

Every Democrat should be on TV tomorrow saying some version of "The president is lying to the American people about this vital program..."

I'll start (if anyone wants to put me on TV). The president is lying to the American people about something really important, again.

What really frustrates with the state of American politics is that we can't have a real debate about this stuff. Look, I welcome rational debate with conservative policies. That's what democracy is all about. If you want to enact private accounts, fine. If you want to redistribute taxes to the top, fine. But for God's sake, make your argument and stop hiding behind lies and "technically true" deceptions. If you like these policies, you should not be afraid to say, "Even though Social Security is not in imminent danger, we should still have these accounts because of X." "Even if these taxes go to the top, it's good because of X." But that's not what we get. We get fear-mongering and lying. We get "looming danger" and "most tax cuts go to the bottom." I mean, it's not that hard. Bush's argument rests on an empirical premise (not a theological one) - that Social Security is facing bankruptcy. It's not, for reasons explained by Atrios and a million others. If the premise doesn't work, the argument doesn't work. But as long as Bush makes the statement, many people won't worry about the logical implications of refuted empirical premises. To them, the fact that Bush says it makes it a theological premise that cannot be refuted by reason.

I don't expect this post (or similar arguments raised by others) to stop the administration from doing what it does best. But it would be nice if conservative pundits (even those hostile to the New Deal) would abide by the rules of rational, empirical discourse. And it would be nice if, for once, journalists would start punishing people for lies and stop being such pathetic, tragedy-assisting jokes.

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I'm taking the night off. Have a good weekend. But do go check out this post from the new blog Political Spectrum. Via Paul (a reasonable conservative), you'll get to read some of Steve Sailer's VDARE columnists and their enlightened views on Monday Night Football and interracial sex (see Tapped too). You may remember Steve Sailer from such columns as last Tuesday's masterpiece by David Brooks.

[Disclosure - I have quoted Sailer once before, but I did not know about VDARE. Maybe the same is true for Brooks.]

[UPDATE: It seems that Sam Francis, the author of that Nazi garbage linked to above (and that's not an exaggeration) is not strictly a VDARE columnist. He's a nationally syndicated columnist with Creators' Syndicate, and VDARE apparently runs his column. Here are the other Creators' columnists. If you want, you can contact the Creators' National Sales Manager, Margo Sugrue (310.337.7003) and ask her why they continue to pay people who write stuff like this:

But the ad's message [Desperate Housewives ad on Monday Night Football] also was that interracial sex is normal and legitimate, a fairly radical concept for both the dominant media as well as its audience.

Nevertheless, for decades, interracial couples of different sexes have been sneaked into advertising, movies and television series, and almost certainly not because of popular demand from either race. The Owens-Sheridan match is only the most notorious to date.

. . .

Breaking down the sexual barriers between the races is a major weapon of cultural destruction because it means the dissolution of the cultural boundaries that define breeding and the family and, ultimately, the transmission and survival of the culture itself.

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Senator Reid managed to bring some unity to the blogosphere this weekend by pissing off the entire political spectrum when he called Justice Thomas "embarrassing". Feddie has a good roundup of the offended, which includes progressives like Unlearned Hand and TNR's Noam Scheiber. Well, if no one else is going to defend Reid, I will (sort of). I think Reid is guilty only of a poor choice of words. As a legal thinker, Justice Kennedy - Protector of Human Liberty and Balancing Tests - is far more embarrassing. But make no mistake - Thomas is a horrible Justice. Don't misunderstand me though. He's a brilliant jurist, and quite likely the most principled coherent Justice on the entire Court. But he also is an honest-to-God radical with dangerous French, Kerry-like tendencies. His jurisprudence is strikingly activist, completely unrestrained, and would create a world that I suspect most of us would rather not live in. He's not just Bizarro Earl Warren - he's that plus a lot more.

Before I begin, let me make an important point. Justice Thomas is by all accounts a warm, friendly man. His clerks love him (I've had them for professors - and Thomas guest lectured in one of my classes). But everyone needs to divide the man from the jurisprudence. Attacking one is not necessarily attacking the other.

As I said, Reid's error was in using the word "embarrassing," as it implies that Thomas's opinions are somehow unprincipled or intellectually lightweight. That's not true at all. Thomas's jurisprudence is the most coherent and principled of all the Justices. But that's not to say it's good. One can be principled and wrong (Scalia, Thomas). Or, one can be unprincipled and right (O'Connor, Kennedy).

Here's the problem. When people talk about a Justice being "right" or being "good," they could be talking about one of two very different concepts. On the one hand, they could be talking about the soundness and coherence of the Justices' legal analysis. On the other hand, they could be talking about the political desirability of that analysis. These are different animals and should be treated as such. Scalia and Thomas (and Souter on the left) are the "best" Justices in terms of their coherence and faithfulness to sound legal reasoning. Kennedy and O'Connor are dreadful - their principles never constrain them from reaching a decision that matches their political preferences. However, as a matter of politics, I think Scalia and Thomas's conclusions are dreadful, while I tend to agree (politically) with the conclusions of O'Connor and Kennedy.

Remember that sound legal analysis can usually be applied to reach mutually opposing conclusions depending on your starting premises and assumptions (and that's where political preferences often enter the process). You can have a principled castle built upon a pile of crap (e.g., originalism - it's principled, coherent, and premised upon crap).

Turning back to Thomas, I would argue that even though he's principled, he has produced some truly truly horrible opinions, far beyond those of Scalia (who I have a weird love/hate thing for). What's amazing is that the theoretical underpinnings of some of Thomas's opinions owes much more to the French Revolution than any Burke-style conservatism (but I'll get to that in a second). The first, and by far the worst, of these opinions was his concurrence in Hamdi. This was one of the post-9/11 cases involving the detention of a U.S. citizen who was unilaterally declared an "enemy combatant" and deprived of access to the courts. Of the nine Justices, only Thomas believed that Hamdi had no due process rights because such a decision was part of the president's war powers.

In other words, Thomas would allow the executive to be completely unrestrained in wartime and also be the final arbiter of his or her own powers. Under this theory, Bush could deprive any America citizen of due process rights in wartime by labeling that person an enemy combatant. This is radical stuff, especially considering that conservative thought is supposedly premised upon individual liberty and restraining the power of government. The Magna Carta offered citizens more protection against the executive than Thomas's concurrence. He's turning back the clock about 800 years. There's nothing necessarily unprincipled about this conclusion. It's just a horrible one.

Second, Justice Thomas in the Pledge of Allegiance case argued (alone) that the First Amendment's ban on the establishment of religion should not apply to state governments. That's right. If Thomas gets his way, Texans could be forced by law to subsidize, or even to attend, church. I have a more nuanced examination of Thomas's concurrence here, so I won't repeat it again. It's not as crazy as it sounds from an abstract legal perspective. But from the world of political reality, it's scary, radical stuff. Here's a brief excerpt of what I wrote:

[I]f the Establishment Clause is not incorporated [i.e., if Thomas is right], then in theory any state government could establish its own religion. In addition, under this new understanding of the Establishment Clause, the states could also compel attendance to church, tax citizens to support the church, delegate certain authority to church groups, limit certain government positions to members of a certain church – I could rattle off dozens of hypotheticals, but you get the point. People should understand what’s going on – this is a very big and radical step that Thomas is advocating.

And just for shits and giggles, I should add that the same reasoning that would allow established religion would also allow state governments to infringe upon speech and the press.

The third horrible opinion came from Lopez - which I explained to the non-lawyers here. To make a long story short, Thomas wrote (alone) that he would like to return to a pre-New Deal understanding of the Commerce Clause. If that were actually adopted, it would almost entirely eliminate the administrative state.

Finally, Thomas has expressed several times that he gives no weight to precedent (or stare decisis) if he feels the Court has gone astray from the "original understanding" of the Constitution. In other words, Thomas is willing to throw away generations of collective wisdom and impose his own views upon the Constitution, which in turn depend entirely on how he chooses to interpret and apply fragments of materials from the 1790s to 21st century problems.

This is about as anti-conservative and pro-French as you can get. Classical Burke/Kirk/George Will conservativism is based on epistemological skepticism. What I mean is that true conservatives value the past not because it is the past, but because it helps them understand the world and supplement the weaknesses and passions of their mind. The idea is that are important lessons to be learned by carefully weighing the collective wisdom of mankind across many generations. From their study of history, they have learned that bad things happen when mankind tries to radically change society in an instant in the name of some abstract principle (see, e.g., the French Revolution and Iraq). But that is exactly what Thomas is doing. He is throwing out the collective wisdom of past courts and radically transforming the Constitution in the name of his abstract idea of original understanding. The Frenchmen in me loves it, but I doubt America will come around. [His jurisprudence is also completely unrestrained, which is something conservatives usually find distasteful.]

Again, all of these opinions and principles are not lightweight at all. They're very coherent. But we live in a democracy. And no matter how dazzling one's abstract legal coherence may be (Bork), you cannot ignore the real-world effects your decisions would have. Thomas has a perfectly coherent jurisprudence that would (1) unfetter the executive in wartime; (2) allow state-established religion; (3) invalidate much of the administrative state; and (4) toss out all precedent that is deemed contrary to his perception of originial understanding. I don't know if "embarrassing" is the right word, but it's not too far off the mark.

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The Post reported today that the real-life versions of the characters Slater, Wooderson, and Randall "Pink" Floyd from the seminal Dazed and Confused are suing Universal Studios for defamation and infliction of emotional distress.

To fully comprehend the subtle legal issues of the case of Wooderson et al. v. Universal Studios Inc. et al., it helps to have seen "Dazed and Confused" six or eight times.

Thanks to my "disciplined exertion" (to use George Will's phrase) in high school and college, I can say that I completely prepared to comprehend the legal issues at stake, and then some.

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Last week, I watched part of Peter Bergen's speech at the al Qaeda 2.0 conference on CSPAN. He was discussing whether it would really matter if we killed or captured bin Ladin. He thought it would, he explained, because of his belief in the "Great Man" theory of history. Frankly, I've never cared much for that theory. But lately, I'm starting to come around. Ayatollah al-Sistani has made me a believer.

The "Great Person" (yes, I'm that PC) theory is a response to one of the most fundamental questions in the discipline of history: What is the source of historical change? To me, I've always thought that this theory provided a kindergarten-level answer to that question - or at best, training wheels that get you ready for the real lessons. For example, when people first start learning about history in school, they inevitably begin with some variation of the Great Person theory. Hitler caused World War II. Lincoln saved the Union. George Washington was the cause of the American Revolution. Given the horrendous state of our history education, Americans don't learn until college (or never at all) the role of broader economic, demographic, and social forces.

Put another way, the Great Person Theory provides a tip-of-the-iceberg view of history, and that view usually extends to current events as well. For example, focusing on OJ or Rodney King is less important than understanding the underlying racial and economic tensions that elevated these news stories on to the national scene in the first place. Similarly, focusing on George Washington is less important than understanding the underlying economic tensions that led to the American Revolution. Likewise, focusing on Brown v. Board is less important than understanding the broader effects of World War II, the Great Migration, the growth of the black middle class, and the efforts of brave civil rights workers.

But there is a more advanced level of the "Great Person" theory that must grappled with (sort of like in Mike Tyson's Punch-Out when you fight the easy Bald Bull early, and then the really tough Bald Bull later on). The Great Person theory is a subset of contingency theory. The contingency people would argue that history is far less determined than people like me tend to think. To them, what we call "the present" is usually the product of random, arbitrary (or "contingent") events that could have easily gone the other way. For example, if Robert E. Lee had formed a guerrilla army (which he toyed around with), the American South would have fought on for many more years, if not generations (sort of like Northern Ireland) - and our country would be a lot different. If George Bush hadn't invaded Iraq, things would be very different in the Middle East.

The Great Person theory is certainly more aesthetic. The idea that Lincoln willed America's survival by being where he was when he was is worthy of ancient Greek theater.

Still, I generally find that the focus on individual people or events obscures the larger tectonic forces bubbling underneath. The answer is one of degree, but one that I have always thought fell on the side of determinism. But al-Sistani is making me rethink these things.

By almost any objective criteria that a determinist would use, Iraq looks like it will be a disaster. Even if we manage to avoid civil war and succeed in setting up a democracy (and these odds are low), it could still be a disaster if our democratic government becomes a Shiite cleric state allied with Iran. What's amazing - and what gives me some hope - is that al-Sistani is emerging as the potential "Great Person" - the potential Lincoln of Iraq - who has the credibility necessary to give Iraqi democracy some time to grow roots. Just look at the following excerpt from Ian Buruma's piece in the NYT Magazine Sunday:

The ayatollah insists that an Iraqi constituent assembly must be chosen through direct elections and that "any basic law written by this assembly must be approved by a national referendum." He makes only cursory reference to Koranic law as the basis for that legal code. . . . In mid-October, he issued a fatwa requiring all men and women to vote, equating voting with such basic religious duties as fasting during Ramadan. It is the duty of the Shiites, according to the ayatollah, to protect Sunni and Christian interests as well. And although he opposed a plan to allow Kurds, who make up 15 to 20 percent of the Iraqi population, veto power over the constitution, he has not squelched Kurdish hopes of preserving some degree of autonomy under a new government. All these are fine words, of course, yet to be tested in reality. But they are remarkable words for a Shiite cleric born in Iran and should be taken seriously.

It was al-Sistani that brokered the deal with al-Sadr. It was al-Sistani who has united the Shiites, and helped keep them at bay. America is incredibly fortunate to have this man in this place at this time. In fact, he's our only hope. As Juan Cole explained, most of the other major Shiite parties "want Islamic law as the law of the land, and some may want eventual clerical rule." Determinists usually argue that individuals are merely manifestions (or "iceberg tips" or "superstructures") of the broader underlying forces they represent. Al-Sistani seems much different.

In short, we are witnessing contingency in action. If Iraqi democracy succeeds, historians could make a good argument that it was because of the rather arbitrary, contingent fact that al-Sistani was there to make it happen. If al-Sistani dies or gets killed, it would be one of those arbitrary events that would change the course of history. For example, one could argue that the assassination of Lincoln ended all hopes of a successful Reconstruction. Had he been assassinated in 1861, we might literally have a Red and Blue America.

I don't know. Perhaps al-Sistani is more of a product than an existential agent. But if I were the Bush admininstration, I'd put a few extra guards by his door.

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Via Kevin Drum, I see that Judge Posner has started his blog. I knew I was in trouble by the beginning of the second paragraph:

A rational decision to go to war should be based on a comparison of the costs and benefits (in the largest sense of these terms) to the nation.

Reading this language was, for me, a little like hearing the voice of an old high school classmate that annoyed the hell out of you for years. Or like hearing fingernails scrape across the chalkboard. Unfortunately for me (and you too if you are a current law student), I attended law school during the high point of the movement called “law and econ.” During law school, I was also responsible for screening and evaluating article submissions to our law review (legal “scholarship” is horrendous, but that’s another post). Needless to say, a whole generation of law professors have now spawned that parrot Posner’s economic lingo and adopt it as a quasi-religious narrative through which to interpret the world. To be honest, it’s a little like listening to 19-year olds coming home from college and trying out the new big words they learned on campus.

Snark aside, I actually do a have a non-snarky substantive objection to the Law & Econ movement specifically, and the applicability of economic jargon to everything more generally. First, let me say that I am an economic determinist, which means I believe that most of what happens both now and throughout world history is and has been the product of economic forces. But that’s not what I’m talking about when I object to Posner and the millions of marching brooms emerging with their buckets of economic jargon from the Sorcerer’s office at the University of Chicago.

Here’s my objection in a nutshell – Posner and his marching brooms adopt subjective values judgments and dress them up as objective empirical conclusions by using a facade of economic jargon. Like Bush (though in a much more subtle or even unconscious way), Posner is actually flipping empiricism on its head. His methodology (in practice) allows him to begin with a conclusion and subsequently justify it by playing around with the completely unquantifiable concepts of “costs” and “benefits.” Even if he doesn’t actually reach a conclusion, he is still articulating a process (or methodology) that does little more than to give people a way to mask values judgments as empirical conclusions by using economic jargon. This is what I’m talking about:

Suppose there is a probability of .5 that the adversary will attack at some future time, when he has completed a military build up, that the attack will, if resisted with only the victim’s current strength, inflict a cost on the victim of 100, so that the expected cost of the attack is 50 (100 x .5), but that the expected cost can be reduced to 20 if the victim incurs additional defense costs of 15. Suppose further that at an additional cost of only 5, the victim can by a preventive strike today eliminate all possibility of the future attack. Since 5 is less than 35 (the sum of injury and defensive costs if the future enemy attack is not prevented), the preventive war is cost-justified.

This is the kind of crap I had to endure in some of my law school classes. Look, the basic idea is right (and about as non-controversial as it gets). You take an action when the benefits outweigh the costs. Or in other words, you do something when it’s good to do something. The problem is that when you take this cost-benefit analysis out of the areas where it was intended to apply (such as contract and tort law), it doesn’t work on anything but the most abstract level. I mean, it’s easy to do a cost-benefit analysis when you’re calculating the respective costs and benefits of breaking your lease. It’s quite another thing to try to quantify these costs when it comes to war or “optimal wars.” Using the jargon in these areas is simply a fancy way of saying “we’re doing it because it’s good.”

Look again at Posner’s quote above, and assume that we actually want to use its methodology for something other than a barroom conversation. How does one determine the “costs” and “benefits” of war? Money? Casualties? Religious freedom? Democracy? Stress on families? Civilian losses? Civilian stress? How does one determine the cost or benefit of actions that the other side may never take? And remember that these are not two-dimensional graphs that we’re talking about. It's impossible to graph this stuff. I suppose if there were an all-seeing, all-knowing Calculus god, perhaps he could plot the graph with all the correct data points. Richard Posner cannot.

The point is that Posner’s methodology is not restraining, even though it seems like a rigorous empirical exercise. One could reach a subjective conclusion about preventive war (in a given context), and then play around with the respective costs and benefits to make them support a favored conclusion. But even if you assume infinite good faith, it simply isn’t possible to weigh the costs and benefits of certain issues or actions in a quantifiable, statistical way (e.g., religious freedom). Even if it were, there's still the problem of our monkey brains being incapable to do it because of the strength of our passions and emotions. The latter are like ink injected into the waters of your brain that color and blur your perceptions of how the appropriate costs and benefits should be weighed. Your passions and political preferences will always put a thumb on the scale, especially when the costs and benefits that you’re using are ethereal to begin with.

Again, on some level everything is a cost-benefit analysis. More precisely, everything is either good or bad – however you define those terms and whatever you call the process that gets you there. My point is that many of the issues that Posner and others discuss are really about non-quantifiable values and subjective political preferences. What really annoys me (and what annoyed me in law school) is when I see a facade of objective, empirical calculations masking subjective political preferences. The former works when you’re calculating whether to settle a tort, but they don’t work at all when you’re deciding what your policy for sending human beings to die should be.

Welcome to the blogosphere, Judge.

[UPDATE: The subtext here (if it's not obvious) is that the people I'm griping about - and the professors/students who used these arguments in law school - were invariably using the jargon to justify conservative/Republican positions. Now, there's obviously nothing wrong with trying to justify those positions - that's what a university is all about. But too often, the jargon was used as a way to avoid an honest debate on these positions, especially among new law students who lacked experience with either legal or economic positions.

I'm not bashing economics - I love economics. I'm bashing the faux-economics of Posneric (the word of the day) jargon.]

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Man oh man, things are heatin' up in the liberal blogosphere. Atrios bashin' Yglesias. Yglesias hittin' back. Kevin Drum joinin' in. It looks like the New Republic has struck again, leaving a trail of chaos in its wake.

Despite Atrios's protests, the issue really is (as Yglesias argues) about whether military force is ever justified in any situation other than actual invasion. He should just admit it and make an argument for what is not an unreasonable position. It's one I disagree with though, largely because I think force can and has been a force for good in American history (Civil War, World War II, Korean War, Afghanistan). I also think that military force could have been a force for good in Rwanda and the Balkans. Any coherent theory of pacifism will have problems with these conflicts, I think. But given the insanity and absurd tragedies of World War I and Vietnam, there's certainly an argument to be made for adopting pacifism. In a perfect world, Atrios would be right. In our world, I'll have to go with Drum and Yglesias.

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While I continue to believe that the GOP’s recent embrace of gay-baiting is a long-term loser, I fear that things are going to get worse over the short-term before they get better. The reason has as much to do with the internal dynamics of primary elections and political science as it does outright bigotry. But the most important concept to understand is the power of the median voter. More precisely, you need to understand the role of the median voter in a state or district where the primary election is essentially the general election (e.g., Georgia Senate race). When you understand how these concepts intersect, you’ll be able to see why some very hideous laws could easily get proposed (and passed) in the near future.

To see how this works, let’s go to Alabama where State Representative Gerald Allen plans to sponsor a bill that would ban novels with gay characters from public libraries (including university libraries) (via Andrew Sullivan):

Allen said that if his bill passes, novels with gay protagonists and college textbooks that suggest homosexuality is natural would have to be removed from library shelves and destroyed.

"I guess we dig a big hole and dump them in and bury them," he said.

. . .

When asked about Tennessee Williams' southern classic "Cat On A Hot Tin Roof," Allen said the play probably couldn't be performed by university theater groups.

Allen said no state funds should be used to pay for materials that foster homosexuality. He said that would include nonfiction books that suggest homosexuality is acceptable and fiction novels with gay characters. While that would ban books like "Heather has Two Mommies," it could also include classic and popular novels with gay characters such as "The Color Purple," "The Picture of Dorian Gray" and "Brideshead Revisted."

I’ve got a better idea. Let’s burn them. And just to make sure our children are safe, let’s make all the gay people in Alabama wear little stars on their shirts. And while we’re at it, maybe we should just round them up in camps – can’t be too sure these days. (For more, see the General who is, as usual, on the case). Uggh.

The first reaction among progressives and reasonable conservatives is that this guy is a nutcase and the bill will never pass. Don’t be too sure – if not this bill in particular, then others like it.

Here’s why. In any election, the goal is to win the median voter. If there are 100 voters in a district, then the 51st voter would be the median voter. To win, the candidate has to develop a message or strategy that will net at least 51 votes. The same is true for primary elections. For example, let's assume that our hypothetical group of 100 voters were divided into two political parties – 50 and 50. The winning candidate in each primary election would have to win 26 votes. In these primary elections, the 26th voter would be the median voter.

In certain states and districts, however, the people aren’t divided equally. For example, in a district that generally votes 65% Democrat, and 35% Republican, the Democratic primary winner will always win. In this district, the winning candidate doesn’t need to worry about the preferences of the Republican voters. He or she only needs to win the median voter within the Democratic voting bloc. Thus, the median Democratic voter (Voter #33) essentially becomes the median voter for the general election as well.

This is how polarization develops, especially in gerrymandered districts. The winning Republican never needs to worry about anything other than maintaining the loyalty of the median Republican voter, as opposed to the median voter in his or her entire district. Thus, this candidate can safely ignore the Democrats or centrism more generally. For example, let's say that our 100-person district consists of 65 Republicans and 35 Democrats. 33 Republicans support banning novels with gay characters. All 35 Democrats oppose it. And 32 Republicans oppose it, but not so much that it would make them defect from the GOP. Even though the total is 33 "yea" and 67 "nay," the GOP legislator (assuming she is rational) would vote "yea" (pro-book burners) because of the power of the median voter. [On an aside, this is why I would like to eliminate primary elections. Without primaries, the median voter would always be in the center rather than closer to the edges. The California gubernatorial recall is a perfect example of the type of centrist candidates that would be produced in the absence of primaries. Arnold could never have won a GOP primary with his views on social issues.]

You can see where I'm going with this. The 2004 gay-baiting strategy was a successful one. Even if you assume it didn’t sink Kerry, it certainly played a big role in getting radicals like Coburn and DeMint elected (not to mention various state legislators as well). There’s no reason (nor rational incentive) for GOP candidates not to continue bringing this issue up. In many districts, though, the only real election is the GOP primary. So, what you’re going to start seeing is an increasingly aggressive effort for candidates to get to the right of each other on the gay issue. In a variation of George Wallace’s infamous statement (though he denied saying it), GOP primary candidates will never let themselves get “out-queered” in an election. The internal dynamics of these primary elections are going to move the debate further and further to the right, and produce some horrid proposals.

History is full of examples of the polarizing influence that median voters in primary-as-general elections can have, especially with respect to social issues. In this year’s Georgia Republican Senate primary, all of the candidates were pro-criminalization (i.e., “pro-life”). However, one important dispute was whether abortion should be legal for rape and incest. Cain said no, Isakson said yes – and Cain used this “soft” stance on abortion to attack him hard from the right. Even though Isakson won, you can how this process works. Southern political history is full of this stuff. Especially after 1954, Democratic candidates tried to get to the right of their opponents on race (back when the South was a one-party Democratic region). And because of the dynamics of the primary, politicians were moved further and further to the right on racial issues.

The Alabama book-burying example above is not a perfect example of this dynamic because Democrats still control the legislature. But across the South, these state legislatures are becoming (or have already become) Republican. This is addition to other states or congressional districts that are already solidly GOP. As the GOP primaries in these areas heat up (Madison's revenge), I fear we’re going to start seeing more bills like the Book Burning Bill. Even if this particular proposal is too Nazi-esque for a GOP primary, it isn’t hard to imagine others that could command the support of the median GOP primary voter. I predict we'll see more calls for bans on gay adoption, bans on gay teachers, and criminalization of sodomy. All of these could become heated issues in future GOP primaries. Given this year's election, what rational incentive do politicians have to not bring it up? The wrath of the New York Times' editorial page? In short, I fear we’re about to start seeing in certain GOP primaries what we saw in Democratic primaries in the 1950s (which also provided no rational incentive not to race-bait – those people never lost as George Wallace learned after his defeat in 1958 for being too soft on race).

If I’m right, the only hope is that these people overplay their hand and trigger a backlash. That’s what happened in the South. It was Bull Connor’s disgusting crackdown in Birmingham that led to the Civil Rights Bill of 1964. There’s actually a really interesting theory on this from University of Virginia Professor Michael Klarman. If I get some time this week, I’ll explain his “backlash theory” and how it might relate to the current civil rights battle.

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I'll be in a cabin far away from all news and computers this weekend, so I won't be posting again until Sunday night or Monday. Have a good weekend everyone.

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For those who haven’t read Peter Beinart’s New Republic piece, you should (you should also read Kevin Drum’s response). As Kevin explained, Beinart’s argument is that “Democrats need to take the threat of Islamic totalitarianism more seriously.” It’s very good and lays out the argument as clearly and passionately as anyone I have seen. It’s almost enough to make up for his magazine’s endorsement of Lieberman. But seriously, I found myself agreeing with an awfully lot of what he said. But there is one aspect of the argument that bothers me. Like so many others, Beinart conflates the concepts of means versus ends. According to Beinart, it’s not just that Democrats need to get on board about the threat of radical Islam and its contradiction to liberal values (I agree 100% here), it’s that Democrats have to become more enthusiastic about war as well. Call me a hippy, but that’s where get off the train.

But before I get into that, I should say that I agree with his article almost whole-heartedly. I think that democracy-promotion and taking a tougher line against radical Islam are noble goals that should be resonating more deeply to American progressives. And he’s right that the Left simply hasn’t made fighting terrorism a priority. When you heard Michael Moore say that Iraq distracted us from al Qaeda, he's right, but it was obvious that his heart wasn’t in it like, for example, Richard Clarke’s was.

But there is little liberal passion to win the struggle against Al Qaeda--even though totalitarian Islam has killed thousands of Americans and aims to kill millions; and even though, if it gained power, its efforts to force every aspect of life into conformity with a barbaric interpretation of Islam would reign terror upon women, religious minorities, and anyone in the Muslim world with a thirst for modernity or freedom.

It’s an important point to remember. At times, we need to sit down, pierce through the hatred of Bush and imagine being a women in Kabul or Fallujah. Imagine being born under the Taliban. These are nasty people who represent everything we don’t. And though I don’t equate the threat with that of communism, I don’t want to lose a billion people to this movement out of humanitarian concerns.

But here’s the problem. If Beinart were simply arguing that we need to get serious about fighting the spread of radical Islam, then I would be 100% on board. That’s a worthy goal. But Beinart makes an important, though subtle, move. He seems to suggest that taking Islam more seriously (and strengthening our foreign policy cred more generally) requires us to become more comfortable with the idea of war as well.

For top Kerry foreign policy advisers, such as Richard Holbrooke and Joseph Biden, Bosnia and Kosovo seemed like models for a new post-Vietnam liberalism that embraced U.S. power. And September 11 validated the transformation. . . . As National Journal's Paul Starobin noted in a September 2004 profile, "Kerry and his foreign-policy advisers are not doves. They are liberal war hawks who would be unafraid to use American power to promote their values." At the Democratic convention, Biden said that the "overwhelming obligation of the next president is clear"--to exercise "the full measure of our power" to defeat Islamist totalitarianism.

This is what annoys me. And it’s not just Beinart – he just made me think about it. So many others conflate the goal with the means to achieve that goal. Andrew Sullivan. The neocons. George Bush. They need to understand that war is a means, not an end. And it’s not a particularly effective means to our common goals. For example, I support democracy-promotion, but I don’t support using military force to do it. I support fighting radical Islam, but I am extremely skeptical that military force is an effective means to achieve that goal (especially given the decline of nation-states as actors). This is what baffles me about America, and even mankind I suppose. Why do we love war so much? Why is it that one’s enthusiasm for war is the metric used to brand one a “centrist” or “moderate” Democrat. I don’t like war. I don’t like sending soldiers to die in wars. I don't like thinking of what military families are going through right now. I also don’t like what it does to the other side. I don’t like killing anywhere from 10,000 to 100,00 innocent civilians. I don’t like displacing a quarter million people and destroying their city. Wars are real, goddammit. They’re not video games.

Timothy Noah expressed it perfectly a few months ago:

But the oddest outcome concerns not those who were wrong about Iraq, but those who were right. The political mainstream shuns them. . . . Not long ago, I spoke with a Democratic moderate about the war in Iraq. He said he considered support for the Iraq war to be a necessary prerequisite to assuming any powerful role in the party [because] it shows that the person in question is willing to project U.S. force abroad. . . . What this man was saying was that it was better to have been wrong about Iraq than to have been right. That's the prevailing (though not always conscious) consensus in Washington, and it's completely insane.

Maybe the idea of Iraq was right, maybe it wasn’t. But it’s impossible to argue against the notion that we would all have been better off waiting - and more likely, never going in at all. In other words, the anti-war people were right.

Look, I don’t mean this to be a raving pacifist speech. I’m not. I agree with Beinart that force needs to be on the table. And progressives need to understand that freedoms and values sometimes require the ultimate sacrifice. If any of you have ever enjoyed Western Europe, go pay your respects at the World War II memorial here on the Mall. They earned it. If you want to see the potential benefits of force, fly over North and South Korea and note the differences. Go visit some slave quarters on an old plantation, or your Jewish friends. Military force is not an unambiguously bad thing. At times throughout history, it’s been the ultimate guardian of progressive values. We need to make ourselves understand that and internalize it.

But that said, people need to understand that force is not an unambiguously good thing either. And it’s for damn sure not something to celebrate and get excited about. And one’s willingness to send other’s children to combat should not be the metric we use to sift “hard” Democrats from “soft” Democrats. I detest war, and will accept it only when it’s strictly required. The word itself completely fails to convey the horrors that “war” visits upon all involved. That’s why I bring a very strong “presumption of peace” to foreign policy. It’s not absolute, but it takes a lot to overcome it. Genocide does. Harboring al Qaeda camps does as well. Iraq does not. It didn’t even come close – and it’s probably going to thwart our shared goal of fighting radical Islam.

But the overall point today is that I strongly agree with 95% of Beinart’s article. We do need to redouble our efforts to promote economic, social, and political reform across the world. We need to get more serious about the reality of political Islam, even if the threat to us is overblown. And we need to do so in the name of progressive values. The best part of Beinart’s article was his astute observation that many progressive policies are far superior to achieving these precise goals.

For all the Bush administration's talk about promoting freedom in the Muslim world, its efforts have been crippled by the Republican Party's deep-seated opposition to foreign aid and nation-building, illustrated most disastrously in Iraq. The resources that the United States has committed to democratization and development in the Middle East are trivial, prompting Naiem Sherbiny of Egypt's reformist Ibn Khaldun Center to tell The Washington Post late last year that the Bush administration was "pussyfooting at the margin with small stuff."

Many Democratic foreign policy thinkers favor a far more ambitious U.S. effort. Biden, for instance, has called for the United States to "dramatically expand our investment in global education." But, while an updated Marshall Plan and an expanded Peace Corps for the Muslim world are more naturally liberal than conservative ideas, they have not resonated among post-September 11 liberal activists.

That’s good stuff.

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It’s not every day that you read something profound on National Review Online, but credit where credit is due. Jonah Goldberg could not possibly be more correct than he was yesterday. In what seemed like a casual aside, Goldberg stumbled on to something much, much bigger:

[O]ne of the reasons Gingrich was such a useful foil for Clinton is the inherent contradiction within the conservative movement. Conservatives are the chief defenders of a capitalist, free-market system, and the capitalist, free-market system is perhaps the most profoundly unconservative social force in human history. Markets topple established customs, they raze settled communities and erase whole ways of life.

A-friggin’-men. I’ve made this precise argument before (since I was in college, really), though I haven’t been able to find where I did (those archives are getting longer). Anyway, I cannot stress how important - and interesting - this point is. It exposes the massive internal contradiction that lurks within much of modern conservative philosophy.

Aside from the pure libertarian wing (which isn’t that large), the heart of the modern Republican Party is a strange hybrid of economic libertarianism (or classical liberalism) and social paternalism (or illiberalism). An example will help explain what I mean. My friend Feddie over at Southern Appeal wrote a post this week lamenting the rampant individualism and the “me culture” that he sees with respect to various social issues in America today. Obviously, I disagree with many of his views on the merits, but that’s not the point today. The point is that Feddie, like many other social conservatives, is most certainly not a libertarian with respect to social issues. His argument is that social libertarianism is amoral and lacks the values necessary for a healthy society:

Sadly, most Americans have bought into the idea that nothing matters more than their personal happiness. But embracing this form of radical individualism has a profound effect on society: It creates a culture of death and despair.

Fine. But here’s my question. Why isn’t that exact same logic applied in the economic sphere as well? You know who Feddie sounds like when he talks like this? Karl Marx. Marx viewed Western liberalism (classical liberalism - meaning libertarianism, not Ted Kennedy) as morally bankrupt as well. The freedoms of Western liberalism were inherently amoral because it was content to let people "freely" starve and live horrible lives under the control of the more powerful. Marx wanted to impose a value-laden order upon an amoral economic libertarianism. It’s the exact same logic that Feddie was applying, except that Marx applied it to the economic realm rather than the social realm.

So the question is – why? Why aren’t more social conservatives favoring Democratic economics (which are – at least on the margins – more concerned with intervention in the name of values and empathy). There’s been a big debate about why working-class conservatives seem to be voting against their financial self-interest. The standard conservative response is that these people are (rightly) valuing morality over materialism. Fine, but that doesn’t answer the question. Specifically, it doesn’t explain why working-class constituents continue to favor economic policies that hurt them. I mean, they could have both, right? If they were being purely rational, they would support socially conservative policies and economic policies that value everyday Americans over the plutocracy. Blue-collar conservatives aren’t irrational because they’re voting Republican. They’re irrational because they support policies that hurt them (especially from an opportunity costs perspective) even after Republicans win and the threat of Democrats is long gone (see, e.g., the South).

I’m getting a little off-track. Here’s the big point I wanted to make, and this is what Jonah was getting at. I think that most conservatives are blaming the wrong victim. They look around and lament the decline of the moral order, the decline of the community, the decline of the family, and the increase of various social ills from drug use to teen pregnancy. The problem, though, is they blame it on the wrong man. They blame it on the moral decline caused by 1960s, or Hollywood, or rap music, or college professors, or ending school prayer, or the lack of the Ten Commandments. To them (and this is critical), the real problem is some abstract notion of a “decline” in “moral values,” however that concept is defined.

But that’s the wrong man, my friends. The real culprit is free-market capitalism. So much of what conservatives see as the breakdown of traditional social orders were caused by concrete economic forces, and not by some abstract decline of the even more abstract concept of moral values.

Look at what Jonah said - “Markets topple established customs, they raze settled communities and erase whole ways of life.” That’s got to be true, right? What do you think is causing the worldwide fundamentalist backlash? Values? What does that even mean? No, it's caused by the concrete stresses of globalization. The markets are changing the world order and scaring the hell out of people – whether through technology or immigration or economic dislocation.

But let’s look at the more local issue of the perceived breakdown of the American family. Is this supposed breakdown of families and communities caused by a decline in values? Again, what does that mean – and how can you test your theory? Doesn’t it make more sense to argue that these breakdowns have been caused by the economic necessities that force both parents to work longer and longer hours with fewer vacations? Or by the relentless pressure put on children to get into a good college from age 3 on? Or by the financial stress of lacking health care (over 40 million Americans)? Or by the gadgets that we stare into all day (Playstation, TV, Internet) – gadgets that isolate us from our family and human connections? Or by the economic pressures and hardships that force families to uproot and leave their friends and communities again and again and again? Perhaps it’s caused by not stopping mass chains like Wal-Mart and McDonald’s from sucking local color and money out of smaller communities, and replacing good jobs with horrible ones. [All of these explanations can be assessed empirically.]

It’s not that morals have declined. It's that economic stresses are taking their toll. It’s that Americans are working themselves to death, and usually to buy stupid shit that no one needs, but is purchased only to compete in the ridiculous status game of “Who Can Conspicuously Display Their Wealth?” Americans are tired, they’re isolated, they’re sad, and they’re lonely. And when you feel this way, you don’t feel like helping your neighbor or hanging out with your kids. Quite simply, we have decided to sacrifice our lives to our jobs. In doing so, we have also sacrificed family life.

You want to know why I’m a Democrat? It’s because I think we could be doing more to relieve the concrete economic stress that dominates so many American households – especially those in the middle and at the bottom. I mean, just think of how much better life would be for so many people if everyone had health care? What if no parent ever had to worry about lacking the money to pay for their child's injury or illness? This concrete measure would do so much more than putting up a plaque of the Ten Commandments in a classroom (which would have approximately .0000000000000000000001% effect on people's lives).

Anyway, that’s the contradiction. Most conservatives are supporting economic policies that are in perfect contradiction to their social values – and actually are at the root of most of the social problems they perceive.

The whole issue comes down to a deeper philosophical question about the role of economic causation. I tend to be an economic determinist, which means I think most everything is about money first and foremost. The problems of the inner-city and Appalachian poverty are, at essence, economic problems. Yes, culture plays a role, but it’s not an either/or. If we assign percentages, I’d say the problems endemic to the inner-city are 90% economic and 10% something else.

Again, before you think I’m off singing proletariat songs, I would urge everyone to stop thinking in dichotomies. No one is a pure socialist and no one is a pure capitalist – both are equally stupid. The question is simply what good things can we take from each to increase overall happiness. Personally, I think we need to move a few percentage points left on economics, and we need to move several percentage points toward libertarianism on social issues.

I suppose people could argue that I have the same internal contradiction, except in reverse – less economic libertarianism and more social. Perhaps, but I think my view stands up better. Even though I often feel alienated from Red America, I share many of the same goals of those who call themselves social conservatives. I too want to help families and communities – the microstructures that form the foundation of society. I also want people to be as happy as possible during their short stint on earth. Those are my goals. And I think that targeted, progressive economic intervention is the best way to achieve those goals. Just look at life in 1896 versus 2004 - just look at how much better life has become because of economic intervention. Go read The Reckless Decade and see what urban life was like before the administrative state. Jonah Goldberg, not understanding this, almost ruins a solid column by throwing in this bit of, well, horseshit:

Freedom without economic freedom is a farce. And economic security provided by government planners has, historically, been the security of guaranteed impoverishment.

I wonder what Jonah would say if he were forced to choose (behind-the-veil) whether to be born in 1970 or 1870 without knowing the family he would be born into. I suspect he would choose to live in the era of "guaranteed impoverishment."

[UPDATE: Commenter Paul made an interesting objection that is worth a brief response. He asks how I can say that modern capitalism has caused the decline of morals, when I later go on to say that government intervention has softened the effects of the "free market." In other words, how can capitalism cause the decline in morals when unfettered capitalism was much stronger in 1870 than 1970?

Here's the problem - and one I should have made more clear. I don't believe in the notion of "declining morals." Even if I did, I'm not sure how you would test for it. Times change and people have (for as long as there have been people) treated these changes as a fall from a past golden age. The belief in a "decline" requires a very selective reading of our culture. For example, many are complaining about the decline of religion even though college campuses are far more religious than they were 30 years ago. Also, I believe our country is a much better place, morally speaking, because of the various forces collectively known as the 1960s. Again, it's not an either/or. Some things are better (racism), some are worse (media consolidation and war frenzy).

But here's the point. Modern capitalism isn't destroying morals, but it (and not moral decline) is responsible for certain concrete changes in family and community structures that lead to the problems currently attributed to "moral decline." For example, urban wage workers had a crappy life in 1890, but they did live in more clan-like structures with stronger communities and extended families (because capitalism was still fairly new and hadn't "razed" these older micro-structures yet). Modern wage workers have better working conditions but are more atomized, and face more pressure from the rise of mass commercialism (as another commenter pointed out).

In short, I don't think capitalism has led to a decline of morals. But I do think modern capitalism is responsible for a host of stresses on the family and community, which social conservatives have been attributing to "moral decline." So Paul - the overall point is not that capitalism is the source of a decline (I don't believe in that). The point is that the stuff that social conservatives complain about is largely caused and exacerbated by economic conditions (even if those conditions have improved since 1890).]

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I've argued before that federalism or "states' rights" is conceptually barren. The basic idea is that arguments about states' rights are always pretexts for some other underlying argument:

Federalism does not exist in a vacuum - it can only have meaning in relation to some external debate. Thus, whenever anyone says, “I support states’ rights,” he or she is actually saying, “I support granting the states this or that particular power.” And it’s the merits of “this or that particular power” that are actually debated under the guise of states’ rights.

This is why one's enthusiasm for federalism usually depends upon the specific issue being debated. With respect to gay marriage and drug laws, conservatives suddenly lose their states' rights fervor. To be fair, progressives also pick and choose when to apply states' rights. So the real question is whether we can develop some coherent theory of federalism that is more than just a facade for one's political preferences on a given issue. I think we can, and I think we should. Despite its problems, federalism is a powerful narrative to use to justify one's policies.

Here's the basic idea behind my unified theory of federalism, or what I will call post-federalism. Progressives should abandon federalism in the economic and regulatory realm, and strengthen it within the realm of social issues. To justify this division along economic and social lines, let's look at each subject in turn.

The notion of states' rights is borderline absurd in the economic and regulatory arenas. To begin, states and state lines are purely contingent historical accidents, and are to some extent anachronistic relics from a past era. They are utterly ill-suited for a world of globalized markets, and for governing modern metropolitan areas that span more than one state (e.g., Chicago, DC).

But even if you still believe in the concept of states, there are powerful justifications for reducing their role in governing and regulating our economy and, among other things, our environment. The most powerful reason is that the fifty states suffer from severe collective action problems and are susceptible to "races to the bottom." Think about it. All fifty states compete with each other for residents and business. Because businesses and people can always move, it's almost impossible for states to raise enough revenue to meet their needs. And they don't.

To see a perfect example of what I'm talking about, just look at Social Security. A committed federalist could argue that retirement should be subsidized on a state level and not by the federal government. The problem, though, was that before the New Deal, states were unable to raise the revenue to fund the needs of the elderly because they were in a collective action problem. The New Deal's federally-subsidized Social Security program can be thought of as a response to this specific collective action problem. This wildly popular program is funded and administered at the federal level not because people love big guvmit, but because it's theoretically impossible that states would do so if we assume that they are self-interested, rational actors.

A similar problem can be seen in the regulatory arena. On issues such as wage protections and environmental protections, there is a zero-sum game between the public interest and the interests of private business. Forcing companies to obey environmental regulations increases their costs and they simply won't do it unless they are forced to (if you doubt it, just look at history). The problem with gutting the EPA and leaving environmental protections to the states is that businesses have more bargaining power, or can exert more leverage, over states than over the federal government. Businesses can always leave, especially given the advances in telecommunications and transportation. States, which are desperate to keep and attract jobs, face another collective action problem with respect to environmental regulations. If they strengthen them, it will cost jobs. No politician can do that, so they won't. In the area of environmental regulation, it's either federal regulation or nothing. Leaving it to the states is simply not a realistic option, just as a matter of economic logic.

[Looking far ahead, this same economic logic will eventually lead to a world government as business and capital can move more freely from country to country. In some respects, you can already see this happening in the rise of institutions like the EU and WTO - both of which can be seen as solutions to global collective action problems.]

But when we turn to social issues, none of these concerns exist. There are no collective action problems here. In the realm of taxes and regulation, delegating power to local entities will cause widespread harm. But in the realm of social issues, delegating power to local entities will enhance little-"d" democracy and strengthen communities' right of self-determination. If Mississippi wants to ban medicinal marijuana, it could have that power. If California doesn't, it too could have that power. Obviously, we can't allow states to violate the Constitution. But I say if it's not included, let the states decide it.

In fact, I'll go one step further. I believe that, with respect to most social issues, the final decision should be made at the most local level possible - even down to counties and cities. For some issues such as marriage, the state is probably as low as you can get. But other issues can be decided on a much smaller level. In Kentucky, for example, many counties have yet to repeal the Prohibition-era ban on alcohol. I grew up in one of these "dry" counties (though I courageously stood up to oppression by subsidizing Tennessee bootleggers). But that's what federalism is supposed to be about - letting communities decide without outside interference from some faraway government. For the reasons explained above, we can't let them decide economic issues or we would risk disaster (think about the interest rate, for example). But no such obstacles exist with respect to social issues.

So that's my unified theory of post-federalism - abandon states' rights in the economic and regulatory realm and embrace it in the social realm.

For constitutional law junkies, here's how that would work in practice. Whenever courts are faced with indeterminate text or if the legal conclusion could go either way, apply a presumption towards federalism on social issues and away from it on econcomic and regulatory ones. For example, take the medicinal marijuana case that was argued yesterday. [By the way, non-lawyer readers should be able to understand Slate articles like this one much better after our lesson on Lopez and Morrison. That's all this case is - an enumerated powers question.] If you assume that Lopez is correct, I think it's crazy to say that there is a clear determinate answer about whether a marijuana prescription should be considered as "commerce." You can go either way (which is the problem with the Lopez line of cases - it cannot be applied consistently). Anyway, because the issue here is largely a social one, the Court could become post-federalist and leave this issue to the states. On the other hand, if the constitutionality of the Clean Air Act comes up, the Court should apply post-federalist principles and uphold it because it is a regulatory act. Obviously, the line could get fuzzy between what is "social" and what is "regulatory." If it does, courts should uphold the law and respect the legislative will.

The same principle would apply to state sovereign immunity - a doctrine dreamed up by the Rehnquist Court without the slightest textual justification. Courts could apply post-federalist principles to get rid of this stupid doctrine that is ill-suited for the global economic realities of 2004.

So that's post-federalism. I'm open to different names for this concept, assuming people buy the argument.

[UPDATE: As usual, Fafblog has the web's best discussion of medicinal marijuana and enumerated powers.]