Legal Fiction

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The David Brooks of Bobos and Atlantic Monthly came out of hiding this weekend to write a truly impressive op-ed. It's a strong argument, and interestingly, one that Lani Guinier made in attacking affirmative action from the left in a recent Harvard Law Review article (a briefer version can be found in this Village Voice article). Her point was that modern affirmative action is less about structural change and more about picking off a few like-minded minorities here and there to perpetuate the "elite" system. It's odd that an authentically "Left" column would come from Brooks - the first one on the NYT op-ed page since Ehrenreich left.

On an aside, this column helps explain why I find Brooks's regular stuff so infuriating. Anyone who can write this intelligently and this cynically just can't be a warm fuzzy Bill Bennett - and can't do the Hugh Hewitt hack thing in a credible manner. Hewitt is a blinded ideologue. Brooks is not - he's just being insincere. But not this weekend. This weekend we got Brooks at his finest and mostest bitterest.

And this was just great:

The educated elites are the first elites in all of history to work longer hours per year than the exploited masses, so voracious is their greed for second homes. They congregate in exclusive communities walled in by the invisible fence of real estate prices, then congratulate themselves for sending their children to public schools.

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In last week’s post on stem cells, I briefly discussed the idea of a “myth.” Though people tend to equate myth with fairy tales and fiction, that’s not the meaning I’m talking about. By “myth,” I’m referring to a conceptual framework that man (or a given society or individual) projects onto the external world to order it and understand it. By calling something a myth, I’m not necessarily saying that it’s true or false. Literally speaking, Newtonian physics is a myth in that it provides a universal framework for ordering and understanding the phenomena of the world. Christianity is also a myth in this sense, as is Greek mythology.

Throughout history, the world’s societies have adopted different governing myths to provide order to their existence and justifications for their actions. In my opinion, one of the most interesting aspects of a governing myth is how it is used to justify killing other humans in war. After all, people have been killing each other in wars for as long as there have been people. But they have done it for wildly different reasons. Today, I want to explore this relationship between myth and war by comparing our modern invasion of Iraq with the First Crusade. The issue I’m most interested is how myths are used to justify and rationalize the killing of humans.

I started thinking about all this after I finished Thomas Asbridge’s The First Crusade. It wasn’t really my favorite style of historical writing. It was what I call “eighth grade history” in that it spent far too much time talking about dates, battles, tactics, and “great men,” and too little time offering more general explanations or narratives. But still, given that I knew so little about the Crusades, it was worth the read.

On the surface, there are some interesting parallels between Iraq and the First Crusade, which preceded it by nearly 1000 years. In both, a powerful leader invokes atrocities, demagoguery, and false claims of an imminent threat from the Middle East to build support for an invasion. Even though there were material motivations for both wars (oil, land, plunder, etc.), both have a distinctly ideological edge as well. It’s undeniable that the idea (or myth) of Christianity played a large role in the Crusades. Similarly, even if people supported invading Iraq on the now-discredited WMD/terrorist grounds, the continued support for the war is based on the idea of promoting democracy and freedom. In other words, both wars were fought, at least partially, in the name of ideas. To reduce them to mere resource grabs or self-defense oversimplifies things.

Despite these similarities, the First Crusade is in many ways completely inaccessible to the modern Western mind. For those who (like me) fear the influence of the Ayatollah Dobson, reading about Europe in 1095 will make you feel better. Unlike today, the governing myth of Crusades-era Europe was an excessively strict Christianity that controlled everything. According to Asbridge, sin and guilt dominated the Western mind (which explains part of the Crusaders’ motivation – they were purchasing redemption with military service). What’s disturbing is how easily this myth was used to justify and rationalize the rape, murder, burning, and pillage of Muslims across the Middle East. It was a truly sobering look at what mankind is capable of doing in the name of religion.

Anyway, the reason I say it’s inaccessible to the Western mind is that we can no longer understand going off to fight and kill in the name of God. Bin Laden apparently still understands this mentality, but not Americans. Yes, Americans are religious. But I suspect very few would go kill or fight a war for the Pope or for Jerry Falwell. The reason is that, despite what I and others sometimes say, the Enlightenment has won in America. That doesn’t mean that people aren’t religious, or that religion is no longer respectable (far from it), but it does mean that most people no longer believe strongly enough to go kill in the name of religion. And I've always thought the most reliable test of a person’s beliefs is what he is willing to kill for.

This is what Nietzsche was getting at when he famously claimed that “God is dead.” What he meant was that the “myth” of religion could no longer motivate men like it once did. In 1095, by contrast, Christianity could do just that. It was an unspoken background assumption – it was not questioned, it was assumed to be universally correct. And it was the myth that rationalized war and violence.

Fast forwarding to 2005, it’s clear that Americans are still perfectly willing to go to war. It’s just that the myth that rationalizes the violence has changed. Whereas the Crusaders had religion, we have democracy. Democracy has become the religion of the United States. It is the God that motivates our actions. Or better yet, belief in democracy is the myth that orders our universe and justifies our actions just as Christianity once ordered the medievals' universe and justified their actions. It provides the foundation of our perceived moral superiority – the moral superiority that lies at the heart of both the Iraq invasion and neoconservative foreign policy.

The Crusaders believed in Christianity so strongly that they were willing to kill for it. We believe in democracy so strongly that we are willing to kill for it – and be killed. We are even willing to overlook the greatest intelligence failure in modern history (or at worst, the greatest lie) because of the administration’s success in incorporating the war into our governing myth – that democracy is the highest calling and it must be spread. In the name of democracy, we defy the international community. We invade nations. We blow up cities. We spend $300 billion dollars. We paint schools. We build hospitals. We help write constitutions. We send our loved ones far away. We bury some of them. All in the name of this idea – this myth of democracy.

[And on an aside, the Constitution has become our secular Bible – a sacred text that we adopt unquestioningly and are generally unwilling to challenge. In fact, we rarely even think about challenging it – it is an unspoken background assumption in that sense.]

Obviously, this is not a post criticizing democracy or the Constitution. That’s not my point. My point is to show that, when you think about it, “democracy” is a lot like religion in that it has become a myth that explains and motivates our actions, especially our military actions. It provides the rationalization for violence in this particular society at this particular point in history. This is a positive observation, and not a normative assessment.

But to get normative for a second, my worry is that while democracy (like religion) is good, it can easily become abused if it becomes an empty and abstract concept that is unquestioningly accepted as a justification for anything and everything. That’s what troubles me about Bush’s new freedom rhetoric. It’s not so much the idea of freedom, but what is being justified in the name of it.

[UPDATE: I should have been more clear on one point. I agree that democracy was an after-the-fact justification of Iraq. My point was that the public's seeming acceptance of this retroactive justification is interesting in and of itself. Remember, it wasn't inevitable that war support would continue after we found no WMDs. Frankly, it's rather amazing that people weren't up in arms about it.

Anyway, even if promoting democracy was not enough to launch the war, it's what justifies the war now in people's minds. More precisely, it's what allows us to justify the violence we now see. And that's interesting.

Of course, as an astute commenter pointed out, maybe it has less to do with our willingness to believe (and kill) for an abstract concept and more about the need to avoid cognitive dissonance for sending our troops to kill and die for a blatant falsehood.]

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When I discuss the Supreme Court with my friends in the Federalist Society, I always get to hear how wonderful Justices Thomas and Scalia are. I am told – ad nauseam – that lesser judges impose their policy preferences when they should be interpreting the law. Scalia and Thomas, by contrast, offer a logically coherent jurisprudence that interprets the law without any regard for political preferences or the consequences of their decision. It sounds nice and all, but it ain’t always true.

The mere fact that judges vote their politics sometimes doesn’t bother me. In fact, it’s likely inherent to the act of interpreting indeterminate text. What does bother me is when people try to dress up their policy preferences as neutral “interpretation.” To borrow loosely from Kevin Spacey in The Usual Suspects, the greatest trick that conservative political preferences ever pulled was convincing the world they didn’t exist.

Anyway, even though I do admire many aspects of the Scalia/Thomas jurisprudence, it’s important to understand that their decisions are often policy and political preferences dressed up as neutral interpretation. To illustrate this point, I want to use the recently decided Supreme Court case, Deck v. Missouri.

You’ll need to know a little bit about the case (and I’ll be brief). In Deck, the Court held 7-2 (with Scalia and Thomas dissenting) that a defendant could not be shackled in front of a jury during the sentencing phase of a capital trial. The idea is that seeing a defendant sitting there in shackles is likely to influence the jury – who are supposed to decide only on the facts before them and not upon their visual impressions of the defendant in chains. Shackling, therefore, arguably violates a defendant’s 14th Amendment right to due process. [On an aside, this is how I think substantive due process should work – it should be most robust when it is policing court procedures and tainted decision-making processes. In this case, the shackles are likely to influence the jurors’ decision-making, and that gives rise to a tainted process.]

One last thing you should know is that capital trials are generally bifurcated into two distinct phases – a guilt phase and a sentencing phase. Deck was about the sentencing phase. He had already been found guilty, and there was a whole new proceeding to decide if he should receive the death penalty. The Supreme Court had already banned shackling in the guilt phase under the 14th Amendment. In Deck, it had to decide whether the same rule should apply in the sentencing phase. And it found that it did.

Thomas dissented (opinion here). To Thomas, the act in question (shackling) only violates the 14th Amendment if there is a “deeply rooted legal principle that bars the practice.” [The subtext of this test is Roe, which is also a due process case and was clearly not based on a “deeply rooted legal principle.”] In Deck, Thomas found that there was no such deeply rooted legal principle and thus no constitutional violation. The problem with his analysis, though, is that it seems a lot more like result-driven advocacy than detached interpretation. In other words, I suspect Justice Thomas wanted a particular result and made his interpretation fit that result (perhaps even subconsciously).

Let’s begin with the “deeply rooted legal principle” (“DRLP”). Thomas explains that there are at least a couple of ways to determine if a given practice is barred by a DRLP. First, he looks to see if shackling before a jury was barred under the old English common law. Unfortunately for Thomas, it was. Shackling prohibitions go way way back. The lack of tradition is usually how Thomas and Scalia attack constitutional rights they don’t like. But that won’t work here. For once, the practice really does have a centuries-long tradition. But that doesn’t stop Thomas. He gets around it by arguing that, even though shackling has been illegal for a long time, it was illegal because a different purpose. In the past (according to his historical research), shackling was banned because it caused pain or prevented the defendant from speaking to his attorney. Because modern shackling is more about influencing the jury, courts can shackle away under the Constitution.

A couple of points here. First, it shows the problems inherent with relying on amateur historians to decide the scope of the constitutional rights that govern our lives. I mean, are we really so confident in Thomas’s reading of history that a centuries-long prohibition against shackling is now a-ok just because Thomas’s reading of history shows a different purpose of the prohibition? Are there really no historical sources from anywhere in common law history showing that the chains impermissibly influenced a jury? And even so, does it matter since we know the practice was banned? Second, it suggests that Thomas may be pushing for a desired result. To find that shackling prohibitions are not “deeply rooted,” Thomas has to argue that the centuries-long ban actually had a different intent and, further, that this different intent removes it from being “deeply rooted” even though it seems pretty damn rooted. Now, I suppose this is a plausible conclusion, but it seems equally (if not more) plausible to come down the other way. The point is that deciding between the two turns on one’s subjective preferences and not upon some objective neutral interpretation.

But that’s not the end of it. Another way to see if something is “deeply rooted” is to look to the practice of the states. Unfortunately, this is a loser for Thomas too. An overwhelming majority of the states ban shackling. But not ready to give up, Thomas declares that this practice started too late to count as being “deeply rooted.” I’ll let his language speak for itself:

State practice against shackling defendants was established in the 20th century. In 35 States, no recorded state-court decision on the issue appears until the 20th century. Of those 35 States, 21 States have no recorded decision on the question until the 1950's or later. The 14 state (including then-territorial) courts that addressed the matter before the 20th century only began to do so in the 1870's. . . . The practice in the United States is thus of contemporary vintage. State practice that was only nascent in the late 19th century is not evidence of a consistent unbroken tradition dating to the common law, as the [majority] suggests. The [majority] does not even attempt to account for the century of virtual silence between the practice established at English common law and the emergence of the rule in the United States.

Again, does this sound like someone who is weighing the evidence first and then reaching a conclusion? It doesn’t to me either. Because we, according to Thomas, lack evidence of shackling bans between the Jefferson and Grant administrations, the ban is not "deeply rooted" even though almost every state bans shackling and has banned it for quite some time (in some cases, over a century).

But there’s still more – and you’ll need to remember the guilt versus sentencing distinction I made above. All of the evidence above has to do with shackling at the guilt phase. Accordingly, Thomas concludes that even if there is a “deeply rooted” prohibition on shackling at the guilt phase, that prohibition doesn’t extend to the sentencing phase. He says:

Wholly apart from the propriety of shackling a defendant at trial, due process does not require that a defendant remain free from visible restraints at the penalty phase of a capital trial. Such a requirement has no basis in tradition or even modern state practice.

As for tradition, bifurcating capital trials didn’t even occur until the 1970s following a case called Furman. So that’s convenient. And it shows once again the limits of originalism. For instance, let’s say that all murder defendants started getting scarlet “M”s put on them at trial. Let’s also say that this practice began in the 1990s. To Thomas, this would apparently be fine because English courts from the pre-industrial, slave-owning, pre-women's suffrage, pre-modern police force era never did this. [As for his support for the claim about “modern state practice,” it consisted of three states that allow it and one that doesn’t.]

It’s not so much that any one point is damning. But when you put them all together – and think about the stretching necessary to reach each conclusion – it seems like Thomas is making his analysis “fit” his desired result.

Indeed, later in the opinion, he offers a policy-based defense of his conclusion – namely, that it protects courtroom safety. That’s a solid argument, and by far his best. Unfortunately, it’s consequence-driven. He’s saying we should adopt such-and-such rule because the result is good. Maybe I’m missing something (and tell me if I am), but isn’t that irrelevant to an originalist interpretation of the due process clause? I thought consequences didn’t matter. Unfortunately, Thomas’s most compelling argument seems to be the most repugnant to his jurisprudence.

The point here is that it’s pretty clear where Thomas is coming down as a matter of policy preference. The problem is that he seems to be making his historical “deeply rooted” analysis fit that result.

What’s maddening is that there is no objective answer to this question. It’s deciding whether impermissibly influencing jurors is a greater threat than courtroom safety. This is a policy argument and should be addressed as such. To dress the analysis up in originalist mumbo-jumbo is just to obscure the nature of the debate and disguise your policy preferences as the product of some neutral objective “interpretation.”

So just remember to take Thomas phrases like this with a grain of salt:

My legal obligation is not to determine the wisdom or the desirability of shackling defendants, but to decide a purely legal question: Does the Due Process Clause of the Fourteenth Amendment preclude the visible shackling of a defendant.

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This is an interesting argument from the Blog of the Year. Apparently, Muslims (and others) protesting the intentional desecration of the Quran are hypocritical because Saddam Hussein (yes, Saddam Hussein) allegedly once wrote a Quran with his blood (apparently exposed blood is "unclean"). This outrage triggered no mass protests, unlike the far far less objectionable practice of abusing the Quran in the context of torture that is specifically designed to exploit Islamic religious beliefs.

In other news, a neighborhood boy accused his parents of hypocrisy when they became angry that he broke an antique vase containing his grandparents' ashes. He claimed that the parents did nothing when his sister failed to eat her green beans last Tuesday. "It's just so hypocritical," he said.

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Wash. Post, today:

Pentagon officials said yesterday that investigators have identified five incidents of military guards and an interrogator "mishandling" the Koran at the U.S. detention facility at Guantanamo Bay but characterized the episodes as minor. . . .

Secretary Rice, 5/18:

Well, I, frankly, think it's appalling that this story got out which was not -- let's just say it was not on a very good basis. And it has done a lot of damage and we are doing our best to let people know that there is a story to be told about how the United States deals with this issue and it is a story of respect for the religious traditions of the detainees in Guantanamo, an effort to give them access to Qurans, to handle the Quran very, very carefully. I think you read the memo that went out just a year after Guantanamo was established telling people that this was an extremely sensitive issue. How you handle the Quran matters. People have been given prayer mats. They've been directed toward Mecca so that they can pray appropriately.

The United States is a country that believes deeply in religious freedom and in the equality of all to practice religion as they see it, and we would certainly never condone anything that would be a desecration of a -- the Holy Book of one of the world's great religions.

And so yes, it is a real shame that this story got out. It was bound to be volatile. And I just hope that through steady discussion now with the Muslim community -- and our people in the field are trying to do it -- that they understand the real story of how the United States has tried to deal with this question of religious practice at Guantanamo.

Anne Applebaum, Blaming the Messenger:

[I]nterrogation techniques designed to be offensive to Muslims were used in Iraq and Guantanamo, as administration and military officials have also confirmed. For example:

· Dogs. Military interrogators deployed them specifically because they knew Muslims consider dogs unclean. In a memo signed by Lt. Gen. Ricardo Sanchez in September 2003, and available online, the then-commander in Iraq actually approved using the technique to "exploit Arab fear of dogs."

· Nudity. We know (and the Muslim world knows) from the Abu Ghraib photographs that nudity has been used to humiliate Muslim men. More important, we know that nudity was also approved as an interrogation technique by Donald Rumsfeld himself. He signed off on a November 2002 policy memo, later revised but also available online, that specifically listed "removal of clothing" as a permissible, "category II" interrogation technique, along with "removal of facial hair," also a technique designed to offend Muslims who wear beards.

· Sexual harassment. The military's investigation of U.S. detention and interrogation practices, led by Vice Adm. Albert T. Church III, stated that at Guantanamo there were "two female interrogators who, on their own initiative, touched and spoke to detainees in a sexually suggestive manner in order to incur stress based on the detainees' religious beliefs." Although the report said both had been reprimanded, there is no doubt, again, that the tactic was designed for men whose religion prohibits them from having contact with women other than their wives.

· Fake menstrual blood. When former detainees began claiming that they had been smeared with menstrual blood intended to make them "unclean" and therefore unable to pray, their lawyers initially dismissed the story as implausible. But the story has been confirmed by Army Sgt. Erik Saar, a former Guantanamo translator, who told the Associated Press that in a forthcoming book he will describe a female interrogator who smeared a prisoner with red ink, claimed it was menstrual blood and left, saying, "Have a fun night in your cell without any water to clean yourself."

There is no question that these were tactics designed to offend, no question that they were put in place after 2001 and no question that many considered them justified.

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This must-read WP article provides a good deal of support for an argument I made last August. Basically, I argued that the true historical ancestors of the Bush adminstration and the current GOP leadership are the Bolsheviks. It's all there - (1) a hierarchical top-down command structure with power centralized within a small circle; (2) loyalty enforcement (with carrots and sticks); (3) conflation of party's interests with nation's interests; (4) belief in power of a small vanguard to change "H"istory.

Anyway, if you're interested, you should read the whole thing.

[On an aside, I'm limiting the similarities to the characteristics of their governing style - it doesn't mean I'm accusing Bush of doing everything that the Bolsheviks did.]

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Insta-Goering at his very finest - 5/15:

AUSTIN BAY writes that the Newsweek Koran-flushing debacle may turn out to be the press's Abu Ghraib. It's a must-read post . . . As I've warned before, if Americans conclude that the press is, basically, on the side of the enemy, the consequences are likely to be dire.

WP today:

Detainees told FBI interrogators as early as April 2002 that mistreatment of the Koran was widespread at the military prison at Guantanamo Bay, Cuba, and many said they were severely beaten by captors there or in Afghanistan, according to FBI documents released yesterday.

The summaries of FBI interviews, obtained by the American Civil Liberties Union as part of an ongoing lawsuit, include a dozen allegations that the Koran was kicked, thrown to the floor or withheld as punishment. One prisoner said in August 2002 that guards had "flushed a Koran in the toilet" and had beaten some detainees.

Dumbass.

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I have an ambivalent relationship with reason. On the one hand, I’m firmly within the Enlightenment rationalist/empiricist camp. That is my “myth” – in the literal sense of the word – in that it best explains and provides order to the universe I perceive. At the same time, though, I am skeptical of humans’ capacity for reason. Given that we’re still controlled by advanced monkey brains developed for life in the wild, I remain eternally humble about our ability to develop abstract logical systems that correctly order and provide meaning to the phenomena we see.

I say all this because I think one of the underlying issues in the stem cell debate is how much confidence we should have in our logical abilities. Ironically enough, I think one of the errors made by the anti-stem cell advocates (such as Ponnuru) is that they are too confident in their logic. Put another way, they are not humble enough about the logical system they are projecting – Procrustes-like – on to the stem cell debate.

Before I explain what I mean, I should make one quick point. On one level, logic plays no role in the position of many stem cell opponents. One of the reasons why debate is often futile is that the two camps (let’s call them “anti-stems” and “pro-stems”) are operating within two completely different conceptual paradigms. Most anti-stems base their position on religion. Most pro-stems base their position on the practical consequences of the research (cost versus benefit). When the two sides debate, not only are their respective arguments unpersuasive, they aren’t even relevant to other side. The anti-stems say “because God says so.” Consequences are irrelevant. The pro-stems say “because of the immense benefits and low costs.” God is irrelevant.

But the anti-stems rely on more than just religion and its assumption of a divine soul (which of course cannot be verified or rejected). The secular version of the anti-stem position has a certain logic to it, and that logic is coherent. Basically, this position assumes that the embryo is human “life.” Because even the most raving atheist believes that murder is immoral, an anti-stem can argue that whatever makes murder immoral, that same reasoning must be applied to the embryo because it too is “life.” Again, the equation of the embryo with the already-born human is the key jump.

From this more secular perspective, the Catholic Church’s “culture of life” platform is also logically coherent. The Pope opposes abortion, stem cell research, euthanasia, capital punishment, and war. This entire system is based on the theoretical foundation that all manifestations of human existence – from fertilization to brain-deadness – are equally “life” and should be protected. Say what you will about it, it is internally consistent – unlike many American conservatives who view the “culture of life” as an a la carte menu.

But as logically consistent as it is, the logical implications of it are difficult to swallow. If you really took it seriously, abortion doctors should be guilty of first-degree murder. If you really believe that stem cell research kills, you should – as a matter of logic – support charging scientists with murder. That was the whole point behind my question to Ponnuru. Assuming you’re relying on more than a divine soul, the same logic that leads you to believe that a microscopic cluster of undifferentiated cells is the same as a human child requires you to support criminalizing stem cell research.

But to most Americans, that just doesn’t seem right. They tend to reject the logic of this argument on a gut level and view things more pragmatically. It’s the “oh, come on” argument. And for those of us who are humble about our logical powers, it should not be dismissed lightly. There is a good deal of wisdom in human intuition.

Assuming I’m right about this gut level reaction, I think what we’re seeing here is an example of how abstract formal logic can often be divorced from pragmatic reality. A logical system is, essentially, just a label we use to organize various phenomena we see or think about. It is our attempt to project order on the outside world. But the label can do more harm than good if it causes us to lump together certain objects or things that don’t really fit.

For instance, the word “life” is used by anti-stems to classify various manifestations of biological development. All stages – from fertilization to being brain-dead in Florida – are lumped together under the linguistic label “life.” But to me, that is classic Procrustes-style chopping. We are squeezing the outside world into the labels that we project upon it. To me, a cluster of undifferentiated cells with no brain, no nervous system, and no anything remotely resembling a human is simply not the same “thing” as a living breathing baby, or even a third-trimester fetus. We may call the baby, the fetus, and the embryo “life,” but that seems more like projecting our own make-believe order on to the outside world. And that order just doesn’t seem to fit.

And as loathe as anti-stems may be to admit it, I think they agree. Charging stem cell researchers with murder doesn’t seem right even to most ardent anti-stems. And the reason it doesn’t is because, on some level, they are hearing the “oh, come on” in the back of their mind. They realize – perhaps subconsciously – that an embryo is not a human, and “destroying” it should not trigger a capital murder charge.

With that in mind, I can explain what I meant when I said that anti-stems are too confident in their logical system. (Of course, this doesn’t apply to those whose only justification for being anti-stem is based on a divine soul.) Their logic leads them to value an abstract notion of “life” over the concrete “life” of living, breathing, suffering human beings whose "life-ness" is not controversial.

In an abstract sense, I can see the anti-stem’s point. But I can also see the real-life people whose lives they are potentially destroying by refusing to allow the research to continue. Compared to the abstract questions of whether a microscopic cluster is “alive,” I see the grim reality of watching a loved one die slowly and painfully of a degenerative disease such as Parkinson’s or Alzheimer’s. I can – and have – seen the absolute hell it puts families through. I can also see the real-life pain and sadness of being a paraplegic. But it’s not all negative. I also have a positive vision of seeing people stand up from a life in a wheelchair. I can see a parent with Alzheimer’s return to reality. I can see the elimination of blindness, diabetes, and Parkinson’s.

And so, if the anti-stems, in the name of their abstract logic, are going to deny American scientists the ability to eliminate so much pain and despair, and if they are going to prevent so much joy and happiness, they damn well need to be sure that their abstract logic is right. And I don't think it is, to put it mildly.

On a final note, we need to remember that if we are talking to the divine-soul-only anti-stems, then arguing about consequences won’t matter. To convince them, we need to convince them that God doesn’t think what they think God thinks. And to help with that, I’ll leave you with my crude summary of a joke from the late great Jerry Clower (one of my favorite Mississippians). It goes something like this:

One day, the townspeople heard over the radio that a great flood was coming. The police warned everyone to evacuate. As they did, one man refused to do so. His neighbor asked, “What’s wrong with you, don’t you know the flood is coming?”

“Don’t worry,” the man replied, “the Lord’s gonna take care of me.”

As time went on, the waters started to rise and the man had to go upstairs in his house. A police boat came by and urged the man to get in.

“Don’t worry,” the man replied, “the Lord’s gonna take care of me.”

The waters continued to rise, and the man scurried upstairs to the attic. Again, a police boat came by and offered another chance to escape.

“Don’t worry,” the man replied, “the Lord’s gonna take care of me.”

Finally, the waters rose so high that the man had to climb out on the roof. A helicopter came by and pleaded with the man to get in.

“Don’t worry,” the man replied, “the Lord’s gonna take care of me.”

As it turned out, the man drowned and went to heaven. When he got there, he turned to God and said, “God, what happened? I thought you were going to take care of me.”

God replied, “You dummy, I sent you two boats and a helicopter.”

Maybe stem cell research isn’t against God’s will. Maybe stem cells are the “two boats and a helicopter” that God sent to help us live happier lives.

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The generally reasonable Ramesh Ponnuru summed up the House’s stem cell vote over at the Corner:

Expanded funding for research that kills human embryos passes 238-194--well short of a veto-proof supermajority. Republicans voted 180-50 for the pro-life, anti-subsidy position. Democrats voted 188-14 the other way.

Earlier, in summing up an admittedly strained analogy used by Rep. Barton (R-TX), Ponnuru said:

[Barton] doesn't deny that the embryos are living human beings--he explicitly says that he believes that they are.

From this, I’m assuming that Ponnuru believes that stem cell research kills human beings. Ok - so here’s my question. Does Ponnuru – or anyone who shares this view – believe that stem cell researchers should be charged and convicted with murder? If Ponnuru sincerely believes that stem cell research kills human beings, how can stem cell research, as a matter of logic, not be murder?

I’ll have a more lengthy discussion of the stem cell debate later today – and I’ll elaborate on why this is actually a serious question - and not flippant snark - that implicates weighty issues of abstract formal logic and pragmatism.

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Here are a few more scattered thoughts on "the deal" in no particular order (you can see my initial reaction here):

The "Baseline" Problem

The question of who "won" depends on what baseline you are using to define success. From one perspective, the "nuclear option" strategy was wildly successful as a bargaining tactic. In response to the blocking of a tiny minority of judges, Frist proposed to break the rules to get them through. In an ideal world, the Democrats wouldn't even dignify this proposal with negotiations. It's sort of like hearing the threat, "I won't cut off your finger if you give me all your money," and then negotiating for more finger. But this is not an ideal world, and to borrow from Rumsfeld, you must negotiate within the political reality that you have. Realistically, the Democrats had no choice but to negotiate and do the best they could. But anyway, back to Frist . . .

Essentially, Frist used the credible threat of cheating and breaking the Senate rules as a successful negotiating tactic to get a few judges through and to create a climate in which it will be at least marginally easier to get more extreme nominees through going forward. Bush's confirmation rate will now rise above 95%. If the Dobson wing were sane, it would realize just how successful Frist has been in getting the Bush nominees through and would shut up and work in the shadows to get their people on the bench.

Frist only failed if your baseline of "success" is drastically different - and detached from reality. And unfortunately for Frist, that's the baseline that people eventually adopted, largely because of his own fumbling and the outrageous give-up-nothing demands of the Ayatollah Dobson and his radical clerics. Rather than using Bush's overall confirmation rate as the appropriate baseline for success, the Dobson/Hewitt/Frist crowd defined success as the elimination of the filibuster, and thus total unchecked power for the majority. Josh Marshall nailed it (and his post inspired this particular section of this post):

Having said all that, the whole tenor of the Republican ultras on the Hill today is to demand unimpeded power, to push past conventions and limits, to go for everything. And here they got turned back. A sensible Republican party might be satisfied to have gotten three of its nominees -- numerically speaking, they did fairly well. But this whole enterprise was based on wanting it all, on not accepting limits, on rejecting government by even a modicum of consensus with a sizeable minority party. They got stopped short. And the senate Republican leadership is undermined.

So this isn't a pleasant compromise. But precisely because the Republicans -- or their leading players -- are absolutists in a way the Democrats are not, I think this compromise will batter them more than it will the minority party, which is after all a minority party which nonetheless managed to emerge from this having fought the stronger force to something like a draw.

That's exactly right. If Frist "lost", it is only because he allowed success to be defined as nothing - and I mean nothing - short of total victory. In that sense, he lost - miserably.

Now, it is true that the agreement contains enough vague language to allow Senators to weasel out of the deal by invoking lawyerly legalisms. But the thrust of the agreement is clear - no nuclear option in exchange for rare filibusters. Objectively, this is a success for Frist. Subjectively (which is all that matters in love and politics), it's a loss.

The Lower Courts

Even though everyone is rightly focused on the implications for the next Supreme Court nomination, you shouldn't lose sight of the implications on the make-up of the lower courts as well.

It is of course true, as Josh pointed out, that Bush could put a lot of pressure on the foundation of this deal by appointing a steady stream of "hard right" nominees. But still, the Democrats can take solace in the fact that preserving the filibuster made that scenario less likely. It's simply economics. By retaining veto power, the Democrats have raised the costs of appointing hard right nominees. Bush can do it, but he knows it's going to trigger a fight. And on the margins, this veto threat could influence Bush (or whoever picks his judges) to pass over the super-contentious nominees for more acceptable ones. If Frist had won, the cost of appointing horrendous judges would have essentially been zero. The floodgates would have been opened.

I'm not saying we'll like the judges he does nominate, but when you lack the White House and have 44 Senators, you need to take what you can get.

The Future of Frist

If I may flip-flop on what I said earlier, I wouldn't be too quick to dismiss Frist's political futures with the Dobson wing. This statement from Dobson stood out to me (via Kos):

We are grateful to Majority Leader Frist for courageously fighting to defend the vital principle of basic fairness. That principle has now gone down to defeat. We share the disappointment, outrage and sense of abandonment felt by millions of conservative Americans who helped put Republicans in power last November. I am certain that these voters will remember both Democrats and Republicans who betrayed their trust.

If Frist can deflect the anger to the deal-makers, then I think he's still very much in the hunt in 2008. He's probably lost a great deal of power as the Senate Majority Leader. But to be honest, he could probably care less so long as he can get out in 2006 in the good graces of the GOP primary voters.

So don't be too hasty in announcing the political death of Billy-Boy - especially if Rove and Bush decide he should be the heir apparent.

Schiavo

I have no empirical evidence for this, but I think Schiavo sealed the deal. Minus Schiavo, I think it's very likely that Frist would have won it all. After Schiavo, the nuclear option fit a bit too snugly within the claim that the GOP was abusing power to placate religious extremists.

A Quick Thank You

To the Republican deal-makers. Unlike some of the Democratic Senators, there simply is no political pressure on people like McCain and Warner and Graham to strike this sort of deal. Like Voinovich on Bolton, they seem to be voting on principle - and it's a refreshing thing to see.

[UPDATE: The best line ever from Yglesias:

As I see it, three different things were at stake. One was the high-level principle about whether or not it was okay for the Senate to operate under Calvinball rules.

If you didn't catch that reference, shame on you. Go out and buy a collection of Calvin & Hobbes.]

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Well, it ain't great, but it's still a win for Reid. And the reason I say that is because of Part II.B of the agreement (via NRO):

B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

In other words, the nuclear option is off the table through the end of 2006. Remember that this entire drama is about the Supreme Court. And the text-in-bold ensures that the Democrats will retain the right to filibuster an extreme nominee at least through the next election. Assuming good faith on the part of the Senators, retaining this veto power ensures that Bush can't nominate a Dobson theocrat or, more importantly, a Norquist anti-government extremist.

Retaining veto power (i.e., the filibuster) is the key to everything. And that's why Billy-Boy Frist is doing some wishful thinking when he says:

But with this agreement, all options remain on the table, including the constitutional option.

I suspect Dobson won't be pleased. Yes, the worst of the worst will get Article III power, but this is really about retaining veto power of a future Supreme Court nominee and Dobson knows it. That's why he won't be pleased, and that's why I think Frist's already cool relationship with these people will sour.

Another key part of this deal is that buys the Dems some time. If the Democrats can pick up a few seats in the Senate in 2006, then it will become much easier to block extreme judges and retain the right to filibuster without giving up anything in return. And again, Dobson knows this. He knows that now is the time to get an anti-Roe Justice on the Court and he doesn't want to risk losing the strong GOP majorities.

But it's not all peaches for the Democrats. Two absolutely atrocious judges - Owen and Brown - will exercise the judicial power of the United States. As one of Josh Marshall's astute readers noted, Owen is actually less of a big deal. The 5th Circuit is already a lost cause, and the only thing Owen can do is push it closer to the prestigious title of "Worst Circuit in America" - a title currently claimed by the 4th Circuit. Adding one more stinky fish to a barrel of already rotten fish doesn't much affect the stench. Brown is more of a problem. Aside from being a raving idiot, she will alter the balance on the closely-divided D.C. Circuit.

One little-noted benefit of this deal for the Dems is that it keeps Saad off the 6th Circuit. Currently, that circuit is divided 6-6 between Republican and Democratic appointees. Saad would have tilted the balance. For now, it remains balanced - and contentious.

There is one more potential problem. Basically, the Democrats' veto power relies on whether the seven Democratic "signatories" believe (in good faith) that the "extreme circumstances" necessary for a filibuster are actually present. That means that veto power over a potential Supreme Court nominee depends on the discretion of Nelson, Lieberman, Pryor, Byrd, Landrieu, Salazar, and (?) Inouye. Except for Lieberman, I don't have any problem with these Senators at all, but I do worry that they could be pressured into supporting an extreme nominee of the Dobson variety. I have more faith in them when it comes to opposing Norquist nominees.

But still, Brown? I've got to think that Brown was the price that Democrats had to pay to get the nuclear option off the table until 2007.

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I’m still catching up on the news (I literally read nothing for over a week), but it seems that I was lucky enough to miss the latest attack of the Lynch-Mob Hyena Chorus on Newsweek. I found the story interesting not so much for its individual merits, but rather for what it reveals about the mob attack itself. After all, I read enough Reynolds and Hindrocket to know that they write about media bias and errors all the time. But not every outcry against the media generates the sort of hyena unity necessary to gain political traction. So, my basic question is empirical: Why do some stories trigger the mob, while others do not? What elements do stories like Newsweek and Rathergate possess that others do not?

I’ve been thinking about this post for some time, but I think that the recent flaps over the Martinez memo on Schiavo and Koran-flushing have finally given me a sufficiently large sample size to make some conclusions. By my scorecard, there have been five major unified hyena attacks that had (or almost had) a major impact on the media: (1) Rather; (2) Swift Boats; (3) Eason Jordan; (4) Schiavo/Martinez memo; and (5) Newsweek. For now, I’m going to put the Swift Boat story aside because it’s analytically different. It involved an attack on a political candidate rather than on the media itself. In the other four, the mob demanded the head of someone in the media itself.

When you put these four stories side-by-side, you can see some common characteristics. First, and most obviously, they all include negative critiques of either the administration or the Republican leadership more generally. But more critically, they all involve specific types of critiques. With the exception of Jordan, they are all subsets of larger critiques that are almost indisputably true. These larger critiques are also the sort of critiques that trigger immense cognitive dissonance for Bush supporters. In my expert psychological opinion, the lynch-mob hyena attack is a defense mechanism against cognitive dissonance rather than sincere outrage against media bias.

Let’s start with Rather. Again, Rather was guilty of sloppy fact-checking. No one is denying that. Perhaps his rush to publication was motivated by bias. I won’t disagree with that. But allegations of error and bias are not enough to trigger the lynch mob. They need to be certain types of allegations. More precisely, they need to be allegations relating to certain kinds of broader critiques. Rather’s story was about Bush using his privileged family connections to avoid Vietnam and then promptly shirking his Guard duties. Now every sentient being knows that Bush’s wealth and connections got him into the Guard. And it’s also clear that he blew off some of his duties once there. That’s the larger, more general critique and it’s true regardless of whether Rather published a story too quickly about one specific aspect of it.

Because Bush exploits our emotional attachment to individual soldiers and demonizes as anti-troop those who disagree with his war, Bush’s past probably generates a bit of cognitive dissonance among his supporters. Indeed, one of the most bizarre aspects of the 2004 election was that many Bush supporters willingly ravaged Kerry – a decorated war hero – for his conduct in war at the same time they were supporting a privileged draft-dodger who never served a day in combat. You can’t really do this in good conscience, so you ignore and repress the inconsistencies. If Freud is right, you don’t really get rid of them, you just push them – iceberg-like – under the waters of conscious thought. [This might also explain the appeal of the Swift Boat attacks, psychologically speaking.]

When Rather came along, it gave all these subconsciously tortured Bush supporters with a way out – media bias. The general allegations were still true. But the Rather story made things better because it helped people rationalize the story away as a product of media bias. In an economic sense, the Rather story supplied a need and that’s why it spread like wildfire across the fruited Hindrocket plains. In this sense, Reynolds and Hindrocket aren’t really the cause of the frenzy. They are constant wells of outrage against bias. It’s just that sometimes their fire spreads, and sometimes it doesn’t. The frenzy, then, is the product of the audience’s receptiveness to the Reynolds/Hindrocket Hyena Chorus (which is a function of their need for the Chorus’s sweet venom).

The Newsweek story is remarkably similar to Rather in this respect. Even in these polarized times, I don’t think that people completely ignore their consciences when it conflicts with their favored political party. I suspect that many moral conservatives are bothered (deep-down) by the administration’s adoption of torture and torture rendition as an official antiterrorism policy. As Anne Applebaum explained better than anyone I’ve read, much of the torture seems specifically tailored to offend Muslims. It seems odd that few reservists who knew nothing of Islam could produce such efficient torture techniques in several different prisons across Iraq, Cuba, and Afghanistan. The Red Cross and others have even complained about American interrogators’ desecration of the Koran long before the Newsweek article.

The point is that even if the Newsweek reporter was sloppy, the larger critique is true – and everyone knows it. We torture people and tailor our torture to offend their specific religious and cultural beliefs. And this understandably bothers Bush supporters who like to preach about their morality and the moral superiority of our foreign policy. So they ignore it. But the dissonance doesn’t go away. And thus when Isikoff comes along with sloppy fact-checking, the Hyena Chorus pounces and their shrieking strikes a chord precisely because it eases cognitive dissonance and distracts Bush supporters form the fact that they are ignoring a policy that will go down with Tuskegee and Japanese internment as one of the great moral stains of American history. This is also why the White House was so eager to jump on it. I suspect that even they have some sleepless nights when they reflect on what they have done, and how a tribunal at the Hague may view it years down the road when the full story is known.

The Schiavo/Martinez memo is obviously much smaller stakes, but the same principle applies. Everyone knows that the Schiavo circus was orchestrated for political purposes. And if you were having a beer privately with a Republican friend, they would admit as much. And so even if the Washington Post story was written hastily, it’s obvious that Schiavo was a top-down planned event intended to court the Dobson base and wedge the Democrats on a divisive social issue. I doubt that cognitive dissonance played a huge role here. But still, it’s similar to the other two stories in that the overall critique (that the GOP was using Schiavo for political purposes) was obviously true and that the Post article provided a way to distract the public from this more obvious and more damning critique.

The CNN/Jordan story may be a little different and doesn’t fit the model as well. Because I’m not willing to say that our military targets journalists, I can’t say that what Jordan said was part of a larger indisputably true critique. I should point out that, if Control Room is to be believed, we did target Arab journalists during the war. But I doubt most people know about this, much less feel cognitive dissonance about it. But still, the Jordan frenzy may have been a case of protesting too much. I think that even strong war supporter are, assuming they are informed, a bit defensive or conflicted about how it has been executed. Maybe Jordan provided a convenient outlet for repressing their own doubts, much like homophobia provides an outlet for those who want to repress their own sexual desires. Or maybe not. Again, the Jordan flap doesn’t fit as well, so I wouldn’t judge the overall argument on how well it fits.

But in the case of Rather, Newsweek, and the attempted beheading of Mike Allen, I think a pattern is emerging. The lynch-mob hyena attack is most common when a reporter publishes an error in the context of a larger critique that is indisputably true. Sometimes (Rather, Newsweek) the Hyena Chorus pounces on the error to reduce the cognitive dissonance relating to the larger indisputably true critique. In other cases (Martinez memo), it’s simply a cynical ploy to distract people from the obvious truth by muddying the waters with claims of bias.

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Today's NYT:

Even as the young Afghan man was dying before them, his American jailers continued to torment him. . . . Several hours passed before an emergency room doctor finally saw Mr. Dilawar. By then he was dead, his body beginning to stiffen. It would be many months before Army investigators learned a final horrific detail: Most of the interrogators had believed Mr. Dilawar was an innocent man who simply drove his taxi past the American base at the wrong time.

. . .

Like a narrative counterpart to the digital images from Abu Ghraib, the Bagram file depicts young, poorly trained soldiers in repeated incidents of abuse. The harsh treatment, which has resulted in criminal charges against seven soldiers, went well beyond the two deaths.

In some instances, testimony shows, it was directed or carried out by interrogators to extract information. In others, it was punishment meted out by military police guards. Sometimes, the torment seems to have been driven by little more than boredom or cruelty, or both.

In sworn statements to Army investigators, soldiers describe one female interrogator with a taste for humiliation stepping on the neck of one prostrate detainee and kicking another in the genitals. They tell of a shackled prisoner being forced to roll back and forth on the floor of a cell, kissing the boots of his two interrogators as he went. Yet another prisoner is made to pick plastic bottle caps out of a drum mixed with excrement and water as part of a strategy to soften him up for questioning.

. . .

Although incidents of prisoner abuse at Bagram in 2002, including some details of the two men's deaths, have been previously reported, American officials have characterized them as isolated problems that were thoroughly investigated.

. . .

Yet the Bagram file includes ample testimony that harsh treatment by some interrogators was routine and that guards could strike shackled detainees with virtual impunity. Prisoners considered important or troublesome were also handcuffed and chained to the ceilings and doors of their cells, sometimes for long periods, an action Army prosecutors recently classified as criminal assault.

. . .

Meanwhile, many of the Bagram interrogators, led by the same operations officer, Capt. Carolyn A. Wood, were redeployed to Iraq and in July 2003 took charge of interrogations at the Abu Ghraib prison. According to a high-level Army inquiry last year, Captain Wood applied techniques there that were "remarkably similar" to those used at Bagram.

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Sorry to be negligent on posting and responding to email lately - but I have a good excuse. My daughter was born this weekend! So, I trust that everyone will understand if my posting is a bit erratic over the next few weeks. Thanks for your patience.

[UPDATE: I really can't thank everyone enough for all the kind words in the comments and emails. It means a lot. And also, I don't know how much nurses get paid, but it's not nearly enough.]

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Gone to a wedding, actually. So I'm out for the weekend. In the meantime, Feddie has responded to my Brown post.

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Via Feddie, I saw this NRO column by former Scalia clerk Edward Whelan about Brown v. Board and originalism. Great topic, though I almost stopped reading after his first line - “The Left invokes the Orwellian euphemism of the ‘living Constitution’ as it promotes and applauds lawless judicial decisions.” Ugh. (“RRRRoar!!” sez the Evil Liberal Dragon. “Me luvz lawless Orwellianism! Rrroarrr!”).

Fairy-tale villains aside, Whelan raises a very interesting subject. The best back-and-forth on Brown and originalism that I’ve read is the exchange between Professor (now Judge) Michael McConnell and Michael Klarman in the 1995 Virginia Law Review. McConnell is an originalist and seeks to justify Brown on originalist grounds (i.e., the framers of the 14th Amendment understood it to ban school segregation when they ratified it). Klarman disagrees, as do I. I’m going to be relying on several points raised by Klarman today, but doesn’t mean I think McConnell is a slouch. [You can find all three articles at 81 Va L Rev 947, 81 VLR 1881, and 81 VLR 1937 (1995)].

Anyway, to understand why this is such a potentially thorny issue for originalists, you need to know a bit about Brown – or more precisely, the way people have come to think about Brown. One of my favorite law professors once explained that Brown “had become a premise” of constitutional law. What he meant was that Brown has come to be seen as self-evidently correct, a “first principle” if you will. Whatever your pet theory of constitutional interpretation happens to be, it must be able to justify Brown. If it can’t, you need a new theory.

This is a rather remarkable evolution given that Brown is questionable from a strictly legal standpoint. Shortly after it was published, even the solidly liberal Herbert Wechsler (big-shot law professor in the 50s and beyond) claimed that it would have to be accepted “on faith” because no legal principle could justify it.

Because it so universally accepted, Brown presents a serious problem for originalists. That’s because, to put it lightly, there’s no way in hell the Fourteenth Amendment would have passed if Americans thought it was mandating the integration of their children in schools. This is a big problem for originalists. To them, Brown can only be correct if the text of the Fourteenth Amendment was understood at the time of its drafting (1866) and ratification (1868) to ban school segregation. Because it wasn’t, they are faced with a difficult choice – either Brown is wrong or their theory is wrong.

McConnell’s article (and the NRO article) are attempts to reconcile originalism with Brown. The problem is that history isn’t on their side. The overwhelming scholarly consensus (from Robert Bork to Mark Tushnet – the Alpha and Omega of the legal political spectrum) has been that history simply cannot justify Brown. In fact, I think McConnell’s main point was less about disproving the scholarly consensus, and more about showing that the historical evidence is more equivocal than people think. In other words, McConnell is trying to make Brown a closer call, not necessarily to say that the entire consensus was wrong. I don’t think he succeeded in showing much more than that were more Republicans that favored integration than most people realized. But it’s still an interesting read. [If people are interested in the nuts and bolts of the historical record, I’d be happy to do a follow-up post. But the articles are also helpful.]

Anyway, the fact that originalism can’t justify Brown wouldn’t matter if originalism were a more humble form of constitutional interpretation. It is originalism's stubborn and cocksure inflexibility that makes Brown a problem. If you really take it seriously, the theory becomes so formally rigid that, taken to its logical extreme, all consequences become irrelevant. In fact, everything becomes irrelevant. Once you have your original understanding, nothing else matters – not precedent, not policy, nada. The law is what it was understood to mean in 1789. If that requires dismantling the administrative state, so be it. That’s not our problem. Take it up with Article V. If that requires watching our economy sink under the weight of the Great Depression, so be it. Consequences are irrelevant. Just listen our NRO man:

The legitimacy of originalism as the only proper method (or class of methods) of constitutional interpretation inheres in the very nature of the Constitution as law and does not depend on the results that originalism yields.

For an originalist, the problem with Brown is that, to accept it, you have to inject concern for consequences into your interpretation. What’s really going on is that originalists like Whelan are making an exception for Brown because of their political preferences (which understandably, are hostile to segregation). But that is precisely what they accuse librul judges of doing. If you take originalism seriously, the fact that your interpretative theory allows segregation doesn’t matter. In fact, it’s not even relevant to the analysis.

Of course, I’m not saying we should ignore history. We should look to history. But we should look at lots of other stuff too – history, text, policy, precedent. Interpretation requires a toolbox. Originalists (the “strong” originalists, that is) think you can build a house with a hammer alone.

Brown is less of a problem for “weak” originalists – those people who put a high value on originalism, but don’t go so far as to see all other forms of interpretation as illegitimate. To them, this is just one of the areas where originalism doesn’t work.

But getting back to “strong” originalists like Mr. Whelan, there’s actually another questionable tactic they use in justifying Brown on historical grounds. Klarman called this the “level of generality” problem in the VLR article. I’ll call it the “ladder” problem.

Let’s say you accept the assumptions of originalism – i.e., you accept that constitutional text only means what it was understood to mean at the time of ratification. Your goal, then, is to discover how exactly it was understood. The problem is that the understood meaning of the 14th Amendment depends upon the level of generality you apply. You can think about it as a ladder, with the “understanding” becoming less specific and more generally abstract as you go up each “rung.”

On the most specific level (the “lowest rung”), the 14th Amendment was meant to constitutionalize the 1866 Civil Rights Act that outlawed the Black Codes that arose immediately after the War. Under that view, the 14th Amendment would have a very narrow scope. Go one rung higher, and you might say that the 14th Amendment was meant to protect black people’s more general civil rights of contract, property, and the right to sue (Back then, “civil” rights were formally distinct from “social” rights and “political” rights like voting – thus the need for the 15th Amendment.).

Go one rung higher, and you might argue that it was meant to protect civil and political rights of black people. Go one rung higher, and it would protect all of these rights for all races. Go one rung higher, and it means a ban on racial discrimination generally. Go one rung higher, and it means forbidding discrimination (gender, sexual orientation, etc.). And so on, until you get so abstract that it loses all meaning and the “understanding” merely becomes a vehicle for imposing your policy preferences on the text (which is constitutional law in a nutshell).

What originalists often do is climb and up down this ladder depending upon the subject matter at hand. With Brown, they have to climb way up. The logic is something like this: the 14th Amendment was understood to end racial discrimination. Segregation is racial discrimination. The 14th Amendment was understood to ban segregation. The problem is that the 14th Amendment was not understood to ban all discrimination. Otherwise, there would be no need for the 15th Amendment. To reconcile Brown with originalism, you have to approach the understanding from such a high level of abstract generality that you are essentially imposing your political preferences on to both the text and the history. In other words, you are embracing a “living Constitution.” (strike scary music and women screaming).

When it comes to gay marriage, originalists scurry back down the ladder and hang close to the ground. Because gay marriage was, shockingly, not around in the 1790s or in the 1860s, it is simply tyranny to find gay marriage bans unconstitutional.

Of course, I’m not saying that liberals don’t let their politics influence their interpretation. They do. It’s inherent to the very act of interpreting indeterminant text. Originalists just have a better narrative for it, which is a kind way of saying that liberals are less full of shit when they do it.

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I haven't said a lot about the new Scopes II controversy and the Kansas State Board of Education. But I thought this statement by one of the Board members was interesting:

There are alternatives. Children need to hear them. We can't ignore that our nation is based on Christianity - not science.

Just to be devil's advocate (yuk yuk), you can make a strong argument that our nation was based on science. First, Enlightenment thought and philosophy had a deep effect upon the Framers and the rationalist Constitution they produced. But more specifically, a lot of Madison's famous Federalist #10 bears a striking resemblance to Newtonian physics and its idea of vectors canceling each other out.

Remember that the revolutionary idea of Federalist #10 was that "factions" were less likely to abuse power in a large republic because there would be too many of them competing. According to Madision, they would essentially cancel each other out - just like Newtonian vectors.

Couple that with the lack of any reference to religion in the Constitution (other than banning religious tests for public office), and I think you could make a pretty strong case that science was more instrumental to our Founding than Christianity.

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I've hit another busy spell at work (still waiting for the revolution and all). So I'm going to go out on a limb and make a quick movie prediction - the new Star Wars prequel will be good. I don't have any confidence in Jar Jar Lucas or anyone even mildly associated with those last two abysmal trainwrecks. But I'm just thinking that no one - not even Doug Feith - could blow this one. I mean, the premise is the birth of Vader. You can't screw that up, right? You take $100 million and you make a movie about the rise of Vader. It's the best premise ever. Even I could make a good movie if I had that premise, just like I could go several rounds in the playoffs if I coached Shaq and an non-indicted Kobe.

But that said, the first prequel was, without a doubt, the biggest piece-of-doo-doo I have ever seen. Given the money, talent, time, and resources available (not to mention the cultural capital), it was the worst movie that has ever been made.

The Mock Turtle seems to agree with me, though he defines success as crossing the critical "doesn't-blow-goats" threshold, which is indeed a lofty one given the last two.

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I don't have time for a long post tonight, but I ran across this at Donkey Rising (Ruy Teixeira's site) and it seemed relevant to our discussion of class, education, and the 2004 election. Here's Ruy:

For example, among non-college-educated whites with $30,000-$50,000 in household income, Bush beat Kerry by 24 points (62-38); among college-educated whites at the same income level, Kerry actually managed at 49-49 tie. And among non-college-educated whites with $50,000-$75,000 in household income, Bush beat Kerry by a shocking 41 points (70-29), while leading by only 5 points (52-47) among college-educated whites at the same income level.

The other thing to remember is that these are snapshots. According to this study, the white college-educated are trending Democratic, and the white non-college educated are trending Republican.

So the million dollar question is why? Why do people making $62,500 with a college degree break even, while people making the exact same income without one break 40 points for Bush? I think it's further proof that people are voting first and foremost on cultural issues (though I think these views are determined by class). And if that's right (and it's a big assumption), then it raises the question of what exactly is it about going to college (or not going to college) that influences one's views of the culture wars.

I'll have more to say on this later. But if any of you have thoughts or reactions to this data, I'd love to hear 'em.

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I wanted to follow up on one point I made in passing in my critique of David Brooks’ column yesterday. It’s relatively common to criticize the GOP for shifting the tax burden from “wealth to work” as they say. But as I noted in yesterday’s post, tax burdens are merely a subset of the various costs that the GOP is shifting (or reallocating) to the working classes. It’s important to understand this point.

The GOP’s tax-shifting is easy enough to understand. When you cut the percentage of taxes that corporations and higher income brackets pay, you are necessarily increasing the percentage of the burden that must be paid by everyone else (assuming spending stays the same or increases – which it has). The last five years of GOP rule has witnessed a shift of the tax burden away from capital and the wealthy (e.g., estate tax, dividend, high income brackets) and on to work (e.g., wages) and future generations (deficits). Because spending has skyrocketed, there is no such thing as a Bush tax cut. There has only been a Bush tax shift. Future generations will pay for the subsidies currently enjoyed by Paris Hilton and her comrades in the high income brackets.

But that’s only one part of the overall picture. Remember that “costs” aren’t necessarily financial. If you lose your arm in a car accident, that’s a “cost” even though it’s not a loss of money. Tax-shifting, then, is only a subset of the larger set of costs being shifted on to American working and middle class families. The shifting of non-financial costs is most obvious in two areas – health care and the environment.

Turning to “costs” within health care, I’m reminded of the argument made by one of my law professors – government action doesn’t reduce costs, it merely reallocates them. It’s the “no-free-lunch” principle. Someone has to pay for it, the question is who. The professor’s argument oversimplifies things, but it provides a helpful way to think about many health care “costs”, especially for working class families.

When a factory worker’s daughter gets sick and needs medical attention, someone has to pay for the costs of her illness. If the father qualifies for federal assistance (e.g., Medicaid), the cost is shifted to the government. If the father no longer qualifies for federal assistance because Medicaid gets sharply cut, the father must pay. The big lesson here though is that the government hasn’t reduced one penny of costs by cutting services. It has merely shifted the costs of caring for the daughter to the factory worker himself (and his wages). The total societal costs remain the same. Same deal when Wal-Mart or a factory cuts benefits – they aren’t reducing costs, they are shifting them to the workers who are usually less capable of paying them.

In one sense, these costs are financial. The government used to pay for the daughter’s hospital visit – now the father must. But if Medicaid gets drastically cut (and our tentative budget does just that), people simply won’t go to the doctor when their daughter gets sick because they can’t afford it. As a result, the daughter will get worse or stay sicker longer. In this sense, the “cost” has been shifted to the daughter. One cost (tax-funded government assistance) has been traded for a different non-numerical one (prolonged sickness).

That’s why I consider it immoral to cut Medicaid by $10 billion at the same time you’re cutting taxes by nearly $100 billion. You are essentially shifting (not cutting) health-care costs (both financial and otherwise) on to families least able to pay them. The federal government is better able to pay these costs because it, like an insurer, gets to pool resources and spread the risk.

Same deal in the environmental arena. Let’s take mercury pollution as an example. Obviously, there’s a cost involved in preventing mercury emissions (or any pollution for that matter). When the Bush administration proposes to ease restrictions on mercury emissions, they are not reducing the costs created by environmental regulations. To be sure, they are reducing the financial costs on companies who have to pay to comply with the regulations. But easing the restrictions doesn’t reduce total societal costs, it merely shifts them to the general public who will “pay” for them by suffering mercury poisoning and fetal defects.

And this is true of most other environmental protections – they exist to protect the public and shift the costs of pollution on to the parties responsible. Easing the restrictions on mountaintop removal, for instance, hurts local Appalachian families who have to breath the poisoned air and drink the poisoned water. The costs of this practice have now been shifted to the lungs and stomachs of the residents of eastern Kentucky and West Virginia.

To sum up, not only is Bush and the GOP shifting financial burdens on to America’s middle and working class families, they’re also shifting non-financial costs to them as well. It’s a matter of values. And because they so successfully demagogue "values" issues such as abortion and gay marriage, these other issues of values get pushed off the radar – which is exactly where Wal-Mart and the mercury polluters want them.

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I would say that two of my biggest disappointments over the past few years have been (1) the new Star Wars movies; and (2) David Brooks’ NYT columns. Having only read Bobos and his Atlantic Monthly articles (which are both awesome), I was really excited when I heard he was joining the op-ed page. But today’s column is an example of why he’s been such a disappointment. Once again, he’s opted for the role of dishonest hack rather than the engaging public intellectual that he was and could again be.

There are actually two gripes I have with Brooks’ NYT columns. The first is that he too often writes sappy insincere crap that he doesn’t actually believe, especially about religion and the humble virtues of Red State culture. Brooks is, by nature, a cynic – and that’s why I loved his writing. What made Bobos and his other writings so entertaining was the sharp cynical eye he has for much of American culture and his ability to express his observations in humorous sarcasm. The sappiness of something like “Stuck in Lincoln’s Land” is not his true voice. And I suspect that the same people he so sappily praises on the NYT page are the same people he pokes fun of at dinner parties. In short, there’s just something very insincere about a lot of his columns.

But the second gripe is more significant – that he chooses to be a hack too often. Today’s Social Security column is one of the worst, most fundamentally dishonest Brooks columns I’ve ever read. And here’s the worst excerpt of his worst column:

Over this time, Democrats have been hectoring President Bush in the manner of an overripe Fourth of July orator. The president should be summoning us to make shared sacrifices for the common good. The president should care for the poor, and stop favoring the rich. He should make the hard choices and impose a little fiscal discipline on government.

. . .

Over the past few weeks, the president has called their bluff. By embracing the progressive indexing of Social Security benefits, the president has asked us to make a shared sacrifice for the common good. He's asking middle- and upper-class folks to accept benefit cuts so there will be money for the people who are really facing poverty. . . . So how has the St. Francis of Assisi wing of the Democratic Party responded to Bush's challenge? Does it applaud him for doing what it has spent the past years telling him he should do? Of course not.

I really don't know where to start. The first fundamental dishonesty is the way he characterizes the purpose of the benefit cuts. He suggests that benefit cuts are necessary “so there will be money for people [in] poverty.” Yeah, that’s why Bush & Pals are pushing Social Security “reform” and benefit cuts – to make sure that the system is there for poor people. That's probably why Wachovia joined a pro-phase out lobbying group - to help the poor. I can understand Scott McClellan tossing this out – after all, he’s paid to do so. But not Brooks.

The purpose of the benefit cuts is to redistribute money from the working and middle class families to higher income brackets and favored interest groups. Period – end of story. And Brooks knows it. Remember that the problem with Social Security is not really the system itself, but our deficit. If the economy grows and productivity increases at rates higher than the Social Security Administration is assuming (which is practically certain, if it follows historical patterns), then there isn’t any problem at all – or at least a very small one far into the future. The real problem is that the federal government has spent the Trust Fund’s money on, among other things, massive tax cuts. Bush’s tax cuts caused a huge deficit and now he wants to pay for them by shifting Social Security benefits from American families.

The second fundamental dishonesty is the way that Brooks treats Bush’s proposed indexing as a policy for the little man. He didn’t bother to say that Bush’s plan keeps benefits the exact same for those making less than $20,000, but cuts them – and cuts them drastically – for those making $20,001 and above. It is the people who make $20,000-$70,000 that are already facing so many financial squeezes – from gas to education to health care. To argue that Bush is looking out for the little guy by slashing these families’ benefits to pay for grossly unfair tax cuts is reprehensible.

A third objection I have is a more general one, but it’s related to one above. It’s this notion that Bush’s economic policies can be portrayed as populist, pro-working-families measures. Bush has – from day one – set out to shift the tax burden to the middle class. In John Edwards’ underused phrase, he’s shifting it from wealth to work. But it’s more than just taxes – he is shifting costs from wealth to work too. That’s the common thread that runs through the massive income tax cuts, the estate tax repeal, Social Security reform, the cuts in Medicaid and other services, the bankruptcy bill, and class action reform. These are all about shifting costs (taxes, health care costs, etc.) from those most able to pay them to those least able to pay them.

But Brooks says:

[Bush is] asking middle- and upper-class folks to accept benefit cuts so there will be money for the people who are really facing poverty.

He has asked us to redistribute money down the income scale. Why should programs for children and families be strangled so Donald Trump can get bigger benefit checks?

Excuse me while I go vomit.

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Kos says:

Blair's "New Labour" policies, moving rightward to grab more of the center, has been thoroughly rejected by the British electorate. The peculiar nature of the British electoral system protected Blair's lead, but he won't last long.

I'm not sure what he's basing that on. Blair's control of the political center is what allowed him to win despite Iraq. Minus Iraq (which really shouldn't be measured on a left-right spectrum, especially in the UK), Blair would have demolished both parties. The idea that his moving right is what cost him his huge majority seems fairly ridiculous. Iraq did. Labour only started winning again by moving to the center.

I think this may be an example of Kos - Rorschach-like - projecting his own political preferences on to the data. He doesn't want the Dems to move to the center in America, so he sees that policy's failure in the UK.

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The other night I spent a couple of hours trying (unsuccessfully) to complete a post in response to the Washington Monthly’s forum on democracy promotion. Some of the contributors argued that progressives should embrace Bush’s calls for freedom and democracy promotion, but hold him to his words. I agree – and I tried to write a long post saying that we should do exactly that. But I couldn’t finish it.

Where I started spinning my wheels was on the argument I wanted to make about how progressives should allow their thoughts on Iraq to evolve. I was even going to quote Lincoln. After all, when the Civil War began, the country had to be reassured that it was not about slavery. But after two years, and a hundred thousand or more dead soldiers, people’s thought began to evolve. And in one of the greatest political speeches in the English language, Lincoln – a self-educated lawyer born in the backwoods of Kentucky – walked up on a stage in a little town in Pennsylvania and transformed the war for all time:

It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom.

In light of the sacrifice, the war needed to be about more. And Lincoln – and the soldiers he commanded – ensured that it did.

So here’s where I was trying to go. Yes, we did not invade to promote freedom and democracy. But even so, can the war evolve? Can it become about promoting freedom? We’ve got 1600 dead soldiers, and the thought that it was all for nothing is, as Samuel Johnson said of King Lear, “too horrid to be endured.” What I wanted to argue was that the sacrifice has raised the stakes. The sacrifice means that if we’re going to claim that the war is about democracy promotion, we need to mean it. That requires taking torture seriously, increasing foreign aid, taking a hard line on West Bank settlements, and asking for domestic sacrifices to fund the military and their families. Half-assing a war is obscene.

In other words, I wanted say that it’s time to get behind the war and make sure that these dead shall not have died in vain. Even if we never wanted this to happen, we now owe it to them to do the best we can.

Well, I tried to write that post – but something really bothered me about it. I was having trouble believing what I was writing. I mean, I really wanted to get behind the war, but something wouldn’t let me. When I read the post, my words sounded too much like a sappy, insincere Brooks column. I couldn’t figure out why – until I read the recently leaked UK July 2002 memo. And then I understood – I’m still too angry. It has nothing to do with being for or against the troops (which is an absurd dichotomy) – it has to do with the continuing resentment I have for the administration’s conduct in taking us to war.

Here are some choice excerpts from the UK memo (that Kevin Drum also emphasized):

Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime's record. There was little discussion in Washington of the aftermath after military action. . . . [T]he timeline [will begin] 30 days before the US Congressional elections.

Un-fucking-believable. No wait, believable. Why this isn’t being blasted on every newspaper cover baffles me. The British government didn’t deny its contents. These are Blair officials corroborating what Clarke and O’Neill said – that the administration had decided early on to go to war no matter what. On top of that, there’s a line about “fixing” intelligence and “facts.” At the very least, we should know what the official meant by that – and what exactly he was referring to. The memo provides further corroboration that the postwar planning was completely ignored. And last but not least, we have more corroboration that the war was explicitly incorporated to serve the GOP’s midterm election strategy. And the black comic irony of it all was that they had the gall to accuse Democrats of politicizing national security in 2002.

Clinton would have been impeached for this – and he should have been. If true, these are serious accusations. You don’t lie about sending people to war. You don’t squander post-9/11 national unity to help your party in the midterm elections. It’s the lack of respect for our military that is most appalling. The idea that they cared so little for the sacrifices about to be made that they would twist intelligence, fail to plan for the occupation, and politicize war is thoroughly disgusting.

Anyway, that’s why I was having trouble writing that post. It’s not so much the war itself (people could disagree in good faith on that), it’s the lying, the carelessness, the politicization. It’s the lack of respect for human life. To ask a family to give up their husband or wife or son or daughter for something you know you’re lying about? To fix the intelligence and the facts? To incorporate it into the election cycle? Bush the Elder did the opposite in 1991 – he waited until after the election.

Watching the UK elections tonight I realized that I still want someone to pay. Someone should be held accountable. No one has. Not one single person. It’s just not right.

So this is the dilemma. I desperately want to succeed in Iraq. Our soldiers’ sacrifices should not be ignored and they have raised the stakes for all of us to take Iraq more seriously. At the same time, if the memo is true, the administration did a great wrong to all of us and they should bloody well pay for it. This memo (again, if true) is literally one million times more significant than Watergate. The administration should be denounced and punished for it.

Are these desires compatible, or do you have to give up on one of them for the greater good? I don’t know – I really don’t. I’d welcome your comments.

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Assuming the current projections hold, it looks like Blair is going to win, but that Labour will only have a 40-to-60 seat majority. Given the structural electoral biases toward Labour, that's a pretty crappy night for Blair. It's look like Iraq - after lying dormant in the election for so long - finally caught up to Blair. Or more precisely, Blair's dishonesty about the war finally caught up with him.

It seems like the ideal result - Labour wins, but Blair gets punished at the same time. As I said last week, this is a mixed bag for me. I really respected Blair and how he repositioned Labour into a political centrist majority. I also think his heart in the right place, domestically speaking. But despite all his positives, the lying about Iraq was simply too much to tolerate. It's one of tragic acts that you simply can't undo.