Lawyers At Their Worst II

Last Friday, I posted a link to, and critiqued in fairly broad strokes, the DOJ's memo defending the NSA eavaesdropping program. Courtesy of O'D, Mechelle and the New York Review of Books, here is a link to a letter by a group of "liberal" constitutional scolars (Tribe, Dworkin, etc.) responding to an earlier version of that same defense.

While I like the scholars' conclusion a lot more than DOJ's, I was disappointed by both the arguments and the writing.

For one thing, there are entirely too many "ly" words in this for my taste. Tribe et al. are very nearly as guilty of "arguing by adverb" as is DOJ.

For another thing, most of the memo is devoted to critiquing the very much secondary argument that the AUMF provides an exception to FISA. The real issue here is the Constitution and I would have expected a bunch of constitutional lawyers to focus on that rather than the far more technical issues of statutory construction. Moroever, rather than addresing the substance of the AUMF head on the "scholars" rely instead on such legal technicalities as this:

First, and most importantly, the DOJ's argument rests on an unstated general "implication" from the AUMF that directly contradicts express and specific language in FISA. Specific and "carefully drawn" statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the question of domestic warrantless wiretapping, including during wartime, and it could not have spoken more clearly.

There are two problems with kind of argument. First, its highly technical nature deprives it of much force in a battle of Constitutional proportions. Surely, this is not a case that turns on canons of stautory construction. Second, this argument implicitly concedes that there is a "conflict" between FISA and the AUMF. One gets to the question of whether the specific controls over the general only if there is a conflict between the specific and the general. And, for there to be a conflict implies that the AUMF can plausibly be read to have authorized warrantless domestic eavsdropping. But if that point is conceded, then the entire statutory argument fails becuase, as DOJ points out, FISA itself contains an exception under which electronic survellience that would otherwise violate FISA can neverthelss be lawfully conducted if it is authorized by some other statute. In short, if the AUMF does, -- or can be read to -- authorize the NSA program then, there is no conflict between FISA and the AUMF. And, if there is no conflict, the canon of construction regarding the specific and the general has no relevance.

The point that one wishes the scholars had made is the much simpler one: a Congressional authorization "to use all necessary and approrpiate force" against the "nations, organizations or persons" who "planned, authroized, commited, or aided" the 9/11 attacks cannot be read to authorize domestic eavesdropping. An authorization to use force (to say nothing of an authorization to use only that force that is necessary and appropriate) does not expilictly authroize domestic eavesdropping. Thus, if this issue does turn on an issue of statutory construction, the "canons" that would be relevant would be those describing how to determine what (if any) requirments or authorizations are implicit in a Conressional act that does not explicitly speak to the question at issue. Traditionally, the lodestone of that inquiry has been Congressional intent, and I think it would be very difficult to demonstrate a Congressional intent, at the time the AUMF was passed, to authorize warrentless domestic spying. But, if one wants (as the scholars appear to want) to argue about stautory construction, it seem to me that this is the area one has to address rather than arguments over whether the specific controls over the general.

My third disappointment is the scholars' failure to address in any meaningful way the core Constitutional issues: (a) does Article II of the Constitution provide the President with the power to institute a program of domestic spying that is beyond Congress' power to control, and (b) if so, what (if any) limits on that power are imposed by the Fourth Amendment.

As to the first of these issues, the scholars offer only the following ipse dixit:

Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise.

The latter clause in this sentence is just plain wrong. Not only does DOJ "suggest" that Article II provides the President with powers in this area that are beyond Congressional reach, that contention is actually the core of its entire argument: but for the AUMF, they argue, "the consitutionality of FISA . . . would be called into very serious doubt."

The first clause, marked by the telltale "plainly," presumes the answer to the very question to be decided.

As to the role of the Forth Amendment, the scholars and the DOJ are in a "does too/does not" kind of an argument. DOJ says that the NSA program falls within the "special needs" exception to the warrant/probable cause requirment; the scholars say it does not. While I want to believe the scholars, DOJ actually does a far better job of arguing the point. After all, as DOJ points out, the courts have approved warrantless and indeed suspicionless searches of drivers at sobriety checkpoints and of students engaged in extracurricular activities. If these types of situations fall within an exception to the Fourth Amendment, why not warrantless eavesdropping in an effort to prevent another 9/11? To me, this is actually an argument against the Constitutionality of those other types of searches rather than in favor of the the NSA program. However, if you agree that sobriety checkpoints and mandatory drug testing for student athletes do not violate the Fourth Amendment, then it is a little hard to argue that warrantless eavesdropping is barred given the significantly greater governmental interests involved. In any event, if such an argument can be made, it certainly was not made by the scholars.

But by far the biggest disappointment, though, was the scholars' failure to even mention the implications of the DOJ argument. If DOJ is right and Article II does give the Presdident eavesdropping powers that are beyond Congressional (or presumably judicial control) what happens? To me, this is by far the most compelling reason for rejecting the argument, for if the President has any power that is beyond the control of either of the other Branches the whole concept of checks and balances among three co-equal branches would appear to be in grave danger.

Perhaps my alarm at this prospect is due to the fact that I am missing something obvious to the scholars, steeped as they are in Constitutional law and history. Perhaps, the alarm is justified and the scholars failed to discuss this issue becuase they can not believe the Administration is making the argument that it seems to me quite clearly to be making. Perhaps this issue was a victim of the fact that the letter was written by a committee. In any event, though, for a group of men and women such as this to write a rebuttal of the Administraion's claims without even reaching the implications of those claims is a disappointment. The scholars appear, at least, to have become so throughly engrossed in the leaves and branches that they cannot see even the tree, let alone the forest.

The Money Machine

Exxon Posts Record Profit: $10.7 billion for the 4th Q and $36.1 billion for the year. That' $3 billion per month. That's $100,000,000 per day. And that is profit.

What Happens In Vegas . . .

Just got back from 3 days in Vegas with a bunch of (male) friends. Apart from a bloody 25 minute stretch at the craps table it was a lot of fun. However, I have been repeatedly reminded that Vegas trips are not "blog-worthy." So the rest I leave to your collective imaginations.

Why Not Change It Then?

Gonzales' speech at Georgetown University yesteday got a fair amount of press coverage. The certerpiece of the speech was apparently a claim that "the requirements of a secret intelligence court are too cumbersome for rapid pursuit of suspected terrorists."

I am skeptical. But let's assume that is true. Isn't the remdy for that problem to go to Congress and have the law amended rather than simply ignoring it based on some trumped up legal theories that are both baseless and (if accepted) extraordinarily dangerous? Laws have a nasty way of being inconvenient at times. Where that inconvenience truly does interfere with effortts to protect the nation's security, I am aware of few (read no) instances in which Congress has refused to amend the law to address the problem. But to just arrogate to oneself (even when that self is the President) the power to simply ignore the law is to deprive the law itself with any meaning as a constraint on Presidential action. To me that is a far greater long term risk than any risk posed by terrorism.

The Coming Re-Alignment: Part II

Back in September, I wrote (somewhat hopefully) of a "coming realignment" in American politics. The basic premise was this:

The American electorate can, I believe, be broken down into three roughly equal groups. First, there are the traditional "liberals," more properly referred to as "progressives," who form the base of the Democratic Party. For these people, the political imperative is to assist the underprivileged, and they believe government programs are the best or at least only available instruments for furthering that goal. Second, there are the proto-libertarians who have, at least traditionally, formed the base of the Republican Party. These people believe that the best, maybe even the only, way to effectively help the poor is through economic growth and that economic growth and even freedom demands small government, low taxes, and low deficits. Finally, and newly come upon the scene, there are the social conservatives: those for whom the political imperative is to further and if necessary enforce a particular moral code. On issues other than morality, this group is amazingly diverse, including everything from ultra-progressive Minnesota DFLers to ultra-conservative John Birchers. But for all of them, morality now trumps any other domestic issue. The Republican Party has achieved its current political dominance by keeping most of the proto-libertarians within the Party while adding the social conservatives.

But, the proto-libertarians aren't all that happy with the arrangement. Being libertarian, they are pretty tolerant on social/moral issues. Moreover, the social conservative desire to see government take on an ever expanding role in enforcing morality is fundamentally at odds with the central premise of proto-libertarianism: that government governs best when it governs least. For this reason, I do not think that the current Republican coalition can endure.

I had a conversation this weekend that made me think I might be right about this.

I have a friend who has been a Republican since he was in high school and who has been very active in Republican politics for a number of years. I was at a party with him on Saturday, and he said something startling: he wanted to run for Congress so that he could vote articles of impeachment against Bush. "I am," he reminded me, " a Goldwater Republican." I said that I knew he had been at least, and I had been wondering where the heck he had been for the last several years. Apparently, he is back.

He told me he was pulling together materials and was going to write an article, so I will wait for a fuller explanation. However, I think I already know the basic outlines. He came, (belatedly I think) to a realization that the Republican Party as it is presently constituted is a genuine threat to things he values even more than tax cuts and maybe even more that defense against terrorism. I suspect that the NSA eavesdropping program was the straw that broke the camel's back. But, now that the "good soldier" role has become intolerable, I am sure there is much more to it than that.

We'll see. I really do hope he writes the article.

Lawyers At Their Worst

The Justice Department came out today with an "unclassified" version of its defense of Bush's power to eavesdrop on domestic communications without judicial oversight. It's an embarrassment. As you skim through it (it's looooong, and its length is itself an indicium of how tenuous its arguments are) keep in mind the truism that when a person (and especially a lawyer) tells you over and over again that something is "obvious," or "clear," or "well-recognized," or "conclusively demonstrated," etc., etc., the exact opposite is invariably true. Adjectives and adverbs are not the tools of legal or even rational argument; they are a substitute for it. When you haven't got much authority, use an adverb. When you haven't got any authority, use a lot of them.

If you believe the memo's hysterical characterization of the dangers posed by al Queda, you might want to believe that the memo describes what the law actually is. But, before you go there, ask yourself this question: If the memo is right, is there anything that is forbidden to the President? If the memo is right, the only constraints are those of the President's own conscience. The memo relies heavily on this, arguing that the eavesdropping is reasonable because it is confined to contacts with persons having links to al Queda. One might justifiably be skeptical of such a claim. But even if is true, that is simply a limitation that the President has imposed on himself. Given the legal rationale advanced, there is nothing that does or could require him to observe such a limitation. He can, quite literally, do whatever he wants, at least so long as he can say that it has some bearing on the war on terror. That, to me, would be a scary proposition even if I had a great deal of confidence in the conscience of this particular President (which I do not, of course). However, even if you do, think about this: we are, if this memo gets accepted, establishing a precedent -- in fact a Constitutional principle -- that works as well for all subsequent Presidents as it does for Bush. Just think of the fun that Nixon -- to say nothing of a President along the Joe McCarthy lines -- would have with that.

There is one obvious irony in this that I cannot help but note. The very people who excoriate courts for finding individual rights in the "penumbras" formed by the Constitution's explicit provisions have no problem at all granting to the government vast powers that appear nowhere in the literal language of the Constitution. Reproduced below, for your reading pleasure, is Article II of the Constitution, in its entirely. As you will see, it has but three sentences that have even the remotest connection to this dispute. They are in red. Two of these are referred to frequently in the memo; the third is ignored. If any of you find in these three sentences an intention to grant to the President the sorts of powers he now claims to be so far "inherent" in his office that any act of Congress impinging on those rights would be unconstitutional, please let me know.

Article. II.

Section 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representatives from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--''I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.''

Section 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3.

He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 4.

The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The Onion Gets It Right -- Again

There is lots of breathless coverage of bin Laden's latest missive. But the Onion was the one that got it right -- back in 2001.

We are entirely too worried about bin Laden in particular and terrorism in general. That is not to say that we should forget about either. I want bin Laden captured or killed as much as anyone. And terrorism is unquestionably something we need to try to contain, control and ultimately eliminate, not just here but world-wide. But cancer, handguns and automobiles all kill a lot more people in than bin Laden or terrorism ever will. Indeed, in the pantheon of threats to American lives, terrorism ranks well below all three of these (and many, many others) and bin Laden himself is lost in the rounding.

There are all sorts of indications that we have lost our sense of perspective about terrorism:

We are willing to knowingly kill innocents based on a hope that "senior members of Al Queda" are intermingled with them. We are willing to countenance our government spying on us in the hope that this will prevent a new terrorist plot from maturing. We are willing to tolerate "black camps", kidnapping and torture. We are willing to hold hundreds, perhaps thousands of people indefinitely in what amount to concentration camps without charge or trial and, indeed, without any meaningful opportunity to challenge the basis for their detention. Our government tells us that it does all of this outside the Country precisely because this allows them to operate outside the jurisdiction of our courts and indeed our laws. Yet we say nothing. Indeed, at some level we seem to applaud their cleverness. And, when the courts ever so delicately do provide a forum for such challenges, we amend the law to deprive the courts of jurisdiction. We have a President who has baldly asserted that laws passed by Congress and signed by previous Presidents do not constrain his power so long as there is a nexus to the war on terrorism. Indeed, he claims that even laws which he himself signed do not provide constraints. We are in the midst of the greatest attack on our civil rights and liberties and our system of government since at least the Civil War. Yet we are for the most part accepting, feeling like the abandonment of everything we value and believe to be "special" about the United States is something, like airport security lines, that we have to accept because of the threat of terrorism.

Ladies and gentlemen, the price is just way, way too high. Terrorism just is not that great a threat. You are far more likely to get struck by lightning that you are to be a victim of a terrorist attack.

9/11 was unquestionably a wake-up call. Despite what in hindsight were clear warnings, we had complacently assumed that terrorism was something that happened somewhere else. We now know how pathetically naive that was, and we needed -- need -- to alter our behavior and security procedures to reflect that fact. But the nature of the response needs to be proportionate to the nature of the threat, and our government has done us a grave disservice first by greatly exaggerating the nature and extent of the threat and then, having convinced us that the threat is both dire a pervasive, persuaded us to stand idly by (indeed even to cheer) while the government betrays every ideal we have in order to respond to that threat.

We are in the midst of a mass hysteria not unlike the hysteria that gave rise to the internment of Japanese Americans and the Army-McCarthy hearings. Actually, the current hysteria is worse, since the threats posed by Japan in the 1940's and by Russia in the 1950's and 60's were far more significant than the threat posed by terrorism today.

Terrorists are unquestionably trying to attack us, and, if they succeed, Americans will die. But Americans are dying all the time from a host of evils too numerous to mention. We can and should battle to prevent all of those deaths. But we should not in the process abandon our ideals or our liberties. Some things are worth dying for.

Go back and read that Onion piece again and ask yourself if it isn't a whole lot closer to the truth than what you hear daily from Bush, O'Reilly and Taranto.

We need to get a grip.

"Covering" Differences

There were a bunch of things in Sunday's New York Times that caught my interest and on which I had originally set out to write yesterday. But then I got carried away on the Alito thing and ran out of time. But here's another one of them:

There was a long article in the Times Magazine by Kenji Youshino, a Yale law professor, on the pressure that society puts on minorities to hide or "cover" characteristics of their minority status over which they have some control. See"The Pressure To Cover." Youshino argues that the triumph of the American Civil Rights movement over the last 40 years has been to thoroughly discredit status-based discrimination. Today, it is not only illegal to discriminate against people because of their race, ethnicity, religion, gender or handicap; there is now a near universal acceptance that such discrimination is wrong. This is not to say that people no longer discriminate on these bases. However, it is to say that few people will any longer admit to doing so. Such status-based discrimination is just no longer acceptable in polite society, and those who retain such discriminatory impulses (all of us to some degree or another) recognize, for the most part at least, that acting on those impulses violates what has become a well-established cultural norm.

The general principle that underlies this norm is an agreement that it is wrong to discriminate against a person for things the person cannot change. (Note: religion is the one exception to this, since technically a person is able to change his religion, but that exception is explained by our shared commitment to freedom of religion). Gay Rights is still an active issue precisely because there is, as yet, no agreement on whether sexual orientation is or is not a matter of choice. Of course, homophobia is not at bottom a result of an intellectual distinction between choice and non-choice any more than race discrimination was (or is). Prejudice of all sorts springs first from the guts, not the head. However, when it comes down to defending or justifying discrimination, the only "principle" on which we can fall back is that of choice. That is, while we all agree that it is wrong to discriminate against a person because of what he is, we generally feel that it is OK to discriminate against him because of what he does.

Youshino wants us to re-think the second half of this distinction. He argues that, at least in some cases, individual actions are a form of self-expression and that where that self-expression is linked with the person's status, it is arguably no more valid to discriminate based on those actions than it is to discriminate based on the status itself.

He offers a number of examples, but two should suffice for our purposes.

1. A black woman employed as a stewardess for an airline wanted to wear her hair in "corn rows", but this violated an airline policy against hairdos comprised entirely of braids. The woman sued, arguing that the policy was racially discriminatory. She lost.

2. Youshino, who is gay, received the following (perhaps friendly) advice when he first arrived at Yale: " 'You'll have a better chance at tenure if you're a homosexual professional than if you're a professional homosexual." Youshino understood the speaker to mean that, since he was himself gay (and openly so), he would be better off professionally if he devoted his teaching, research and writings to areas of the law other than Gay Rights.
   

These two examples present very different types of situations in that the first is a is a case of de jure "discrimination" whereas the second presents a much more subtle case of unspoken, even unacknowledged "bias". But, in both kinds of cases, Youshino argues, the underlying impetus is an implicit desire by the organizations at issue (the airline or Yale) to discourage actions that tended to emphasize or call attention to the person's minority status. He agrees that some discrimination based on action is justified. For instance, no one would argue that it is or should be either illegal or immoral to discriminate against arsonists in interviewing candidates for a job in the fire department. But Youshino argues that the action vs. characteristic distinction is often not enough of a justification. The question he wants us to ask in each case (both as courts and as people) is "why?" Why did the airline want to prohibit women from wearing their hair in corn rows? Why should a gay law professor be encouraged to devote his professional life to issues other than those surrounding sexual identity? More generally, he poses the question thusly:

[The "New Discrimination," as he calls it,] does not aim at groups as a whole. Rather, it aims at the subset of the group that refuses to cover, that is, to assimilate to dominant norms. And for the most part, existing civil rights laws do not protect individuals against such covering demands. The question of our time is whether we should understand this new discrimination to be a harm and, if so, whether the remedy is legal or social in nature. . . .

This distinction between being and doing reflects a bias toward assimilation. Courts will protect traits like skin color or chromosomes because such traits cannot be changed. In contrast, the courts will not protect mutable traits, because individuals can alter them to fade into the mainstream, thereby escaping discrimination. If individuals choose not to engage in that form of self-help, they must suffer the consequences.

I have to admit that I was shaking my head at this whole line of argument. The very idea of a "new discrimination" was appalling enough, since we continue to have trouble enough with the old. More important, his theory conjured up a whole new and nearly infinite universe of minority-based "entitlements" that would serve to only further exaggerate the "identity politics" that have led in no small part to the polarization of our society. "What is so wrong," I wondered, "with asking people to conform a bit, even if society has no good reason for the standards to which they are asking people to conform? After all, a shared set of standards and norms is the glue that makes us a society as opposed to an agglomeration of individuals. We should not have to have a rigorous justification for everything we ask of the members of our society." I was so far disgusted with the argument that I was about to quit reading when I came to this statement:

[W]e must shift away from claims that demand equality for particular groups toward claims that demand liberty for us all. This is not an exhortation that we strip protections from currently recognized groups. Rather, it is a prediction that future courts will be unable to sustain a group-based vision of civil rights when faced with the broad and irreversible trend toward demographic pluralism. In an increasingly diverse society, the courts must look to what draws us together as citizens rather than to what drives us apart.

The thing that "draws us together" in Youshino's view is our shared commitment to liberty.

For me, "liberty" is the magic word. Liberty is, indeed, the correlative to tolerance: no one can ever be free unless others are willing to tolerate some level of interference with their own freedom of action. Indeed, at some level, the invidiousness of discrimination has less to do with "equality" than it does with liberty. For instance, read literally, the Supreme Court's conclusion that "separate is inherently unequal" is simply wrong. Separate schools can be made equal. What is wrong with segregation is less a matter of inequality than it is of one group imposing unreasonable limitations on the liberty of another. Suddenly, I was ready to give Youshino's argument more thought -- at least enough more to get me through the rest of the article.

In the end, I don't think this is a useful legal distinction in any but the most extreme cases. There are unquestionably some cases where the organizational interests furthered by a prohibition on individual conduct are so insignificant (or even non existent) as to make the prohibition's imposition on individual liberty seem plainly wrong. The dreadlocks case would seem to be one good example of such a case. The airline policy wasn't really objectionable because it was unequal. It was objectionable because it was silly. In other cases, the interests of the individual are so strong that they are sufficient to overcome even some level of (arhgualbly) legitimate state interest. Consensual, private sexual relations between homosexual adults is one such example, and the Supreme Court has now struck down such prohibitions using a liberty-based analysis. Another is presented by one of the examples Youshino provides: a young woman, who was known to be a lesbian at the time she was hired by a state attorney general's office was subsequently fired when her employer learned that she and her partner had had a religious "commitment ceremony." The attorney general argued that this could have interfered with her ability to enforce state laws against homosexual marriages. In fact, I do not think that is a worthwhile or valid "interest" to begin with, but even if it is it is so ephemeral as to be an inadequate justification for the burdens the policy placed on the liberty interest of the woman.

But these are the easy cases, and the problem, at least in law, is that once you get away from the distinction between being and doing, it is very hard to figure out where to stop. If the woman in the airline case was entitled to wear cornrows, on what basis would we allow an employer to prohibit another person from wearing a bone in her nose.

Since a liberty-based analysis is necessarily a balancing of the liberty interests of the individual against the organizational interests in rules that apply to everyone, there are a nearly infinite number and gradations of respective interests, and the subjectiveness of any "weighing" of such conflicting interests makes this an area in which I do not wish to see the courts venture in any but the most egregious cases --i.e. really important individual liberty interests vs. really silly or non-existent institutional interests.

However, as a way of looking at our own relationships with people it does have some potential. When an employer makes rules, it ought to ask itself -- and perhaps its employees -- whether this rule actually has any legitimate purpose other than to demand conformity. If it does not -- and such rules frequently do not -- then maybe the rule should not be adopted, even if it would not be illegal.

To his credit, I think, Youshino reaches essentially the same conclusion. While he does see a role for the law in extreme cases, he also acknowledges that:

The primary solution lies in all of us as citizens, not in the tiny subset of us who are lawyers. People confronted with demands to cover should feel emboldened to seek a reason for that demand, even if the law does not reach the actors making the demand or recognize the group burdened by it. These reason-forcing conversations should happen outside courtrooms - in public squares and prayer circles, in workplaces and on playgrounds. They should occur informally and intimately, in the everyday places where tolerance is made and unmade.

What will constitute a good-enough reason to justify assimilation will obviously be controversial. We have come to some consensus that certain reasons are illegitimate - like racism, sexism or religious intolerance. Beyond that, we should expect conversations rather than foreordained results - what reasons count, and for what purposes, will be for us all to decide by facing one another as citizens. My personal inclination is always to privilege the claims of the individual against countervailing interests like "neatness" or "workplace harmony." But we should have that conversation.

Such conversations are the best - and perhaps the only - way to give both assimilation and authenticity their due.

Even here, though, I have my doubts. It all sounds so warm and fuzzy to imagine ourselves all having such "conversations." But who has time for that? And, moreover, is it really reasonable to expect such conversations to result in agreement? Human nature just does not work that way. The more likely outcome, I think, is increased hostility as some people's self-expression is approved and others' is not, for reasons that those denied will almost inevitably find "inadequate." At some point, I think, even if the effect is to constrain an individual's "self actualization" (my LORD I hate that word) we need in the name of efficiency if nothing else to grant employers and other organizations the right to be arbitrary at least in cases where the liberty individual liberty interests at stake would commonly be considered insignificant.

Alito's March to Confirmation -- And Why I Can Live With It

The Senate Judiciary Committe hearings on Alito's confirmation to the Supreme Court ended this week, and the consensus seems to be that, despite much hand-wringing on the Left, he is a shoo-in for confirmation. Unfortuantely, that apparently will not prevent either side from bombarding us with polemics over the next few weeks.

Schumer has apparently said that a filibuster is still a possibility, but a comet striking the Capitol in the next month is also a "possibility" and the latter seems to be the more likely of the two. In order to keep faith with their own "base," Schumer, Lieberman, Kennedy, et al. may make a stab at a filibuster, but it seems very unlikely that any such effort will amount to much given lackluster support for a filibuster among Democrats themselves. Diane Feinstein has already come out against a filibuster; Harry Reid and Patrick Leahy are thoroughly non-commital; and Senate staffers are apparently putting out the word that a filibuster is "very unlikely." There is also precious little support for a filibuster in the major liberal media. Indeed, the Washington Post has explicitly endorsed confirmation and theLA Times has at least implicitly done so as well. The New York Times is still a hold-out in this regard, arguing that Republican Senators who support abortion rights -- exactly those who would have to defect en masse to make a filibuster feasible -- should vote against Alito. But even the NYT appears to recognize that confirmation is a foregone conclusion and stops well short of urging a filibuster.

While I could not entirely escape the reporting on them, I intentionally ignored the hearings themselves, convinced that both the questions and answers would be thoroughly unenlightening on the substance and boring as theater. I gather from reading the post mortems (a particularly good one of which was Charles Isherwoods' in today's NYT Week In Review) that I was right on both counts.

But there was another reason as well. I don't think Judge Alito's confirmation is all that important.

There is a lot of sturm and drang out there right now about how Alito's ascension to the Supreme Court is, as the LA Times puts it, " likely to have an immediate impact in the areas of abortion, religion and the death penalty . . . [as well] as election campaigns and the environment." The New York Times, in the editorial linked above, argues that " there is every reason to believe that [Alito] will vote to overturn Roe v. Wade when the opportunity comes," as it may well even this term, since the Court already has two abortion cases on its calendar for this year.

It is certainly possible that such predictions will come true. But I doubt it. And, even if they did, that possibility holds nowhere near the terror for me that it apparently does for some people. On the abortion issue in particular, I think the importance of Roe v Wade is vastly overblown. (See this earlier post for a fuller discussion of this issue.) Indeed, while I am a firm supporter of abortion rights (at least in the first half of a pregnancy), overruling Roe would not end such rights (at least outside Kansas and Utah) and the ability to actually have a debate on this issue would be like lancing a boil. So, even if the NYT is right about Alito and abortion, that fact is not really all that much of a concern for me even though I would be opposed to any such decision.

But, abortion aside, I think the opposition to and concern about Alito's impact is vastly overblown.

First, I don't think radical changes in the law are likely and I certainly don't think they are imminent. For one thing, there are too many constraints to allow any one Justice -- or even a combination of Justices -- to rapidly make radical changes in the law. Stare decisis is one of those and the need to assemble a majority among the nine members of the Court is another. But most important of all is the humbling effect of having the final word on matters of enormous importance to the Country. It is easy to be a radical when your radicalism doesn't matter. It is far harder to endorse radical change when what you decide instantly becomes the law of the land. In any but the most ideologically committed, the weight of such responsibility imposes a powerful imperative to "go slowly."

Alito does not strike me as an idealogue. Yes, he tends to believe that the Constitution should be given the meaning that it had for the drafters and that, where that meaning no longer meets current exegencies, the remedy is to amend the Constitution rather than ask the Court to change or expand on the original intent. But, by the way, so did Sandra Day O'Connor. As she famously told the Senate Judiciary Committee in 1981: ''I do well understand the difference between legislating and judging. As a judge, it is not my function to develop public policy.'' Yet for all of that, Justice O'Connor is now a viewed by the Left as the near apotheosis of "the good Justice":

"I hope the president will select someone who meets the high standards that she set and that can bring the nation together, as she did," Sen. Edward Kennedy, D-Mass., said on the day O'Connor made her retirement announcement.

"We hope the president chooses someone thoughtful, mainstream, pragmatic -- someone just like Sandra Day O'Connor," said Sen. Charles Schumer, D-N.Y., on the same day.

In short, there is not nearly so much difference between O'Connor's and Alito's judicial philosphies as one might assume by reading the press releases. Nor, it seems to me, is there all that much difference in temperment. Alito is no Bork (thank God). He is not even a Thomas. He shares with O'Connor an appealing humility, a willingness to be open-minded, and dare I say it, a principled pragmatism that I find reassuring. As O'Conner's own history demonstrates, funny things happen to such people once they reach the Supreme Court.

In this regard, a 1981 NYT Op-Ed piece by Anthony Lewis on Sandra Day O'Connor seems as apt today with respect to Samuel Alito as it did then, no doubt, with regard to Justice O'Connor. I quote at length becuase I think it is well worth reading:

"I do well understand the difference between legislating and judging,'' Sandra Day O'Connor told the Senate Judiciary Committee as her confirmation hearings began. ''As a judge, it is not my function to develop public policy.'' And last week, when the Senate voted 99-0 to approve her nomination to the Supreme Court, President Reagan expressed his pleasure in a statement praising her judicial philosophy as ''one of restraint.''

Those are the pieties that are likely to surround any Supreme Court appointment nowadays. The conservatives who hold political power often speak of the need for judicial restraint, for strict construction of the Constitution, for judges leaving policy decisions to legislators. The dramatic element in this nomination - the first appointment of a woman to the Court - did not at all change the talk about desirable judicial philosophy.

But Justice O'Connor, as she now goes to work in that great marble palace on Capitol Hill, will find that the pieties do not get her very far. She no doubt knows that already. It is hard work interpreting the fundamental law of this country, and what is hard about it is that there are no formulas for decision. A few examples, new and old, will indicate how unhelpful the jurisprudence of a confirmation hearing is in deciding actual cases.

[Examples omitted]

The point is really that phrases such as ''equal protection'' cannot be defined by formulas. Much of the Constitution consists of concepts - ''due process,'' ''interstate commerce,'' ''unreasonable searches'' - that can only be given meaning in concrete cases. And the American system from the beginning has given the defining function to judges.

Because the Constitution is the supreme law of this country, and because its grand words acquire meaning in lawsuits, judges do make policy. There is no way for them to escape that burden. Whether they hold segregation constitutional or unconstitutional, judges make policy.

Some judges are by temperament less bound by precedent, readier to apply the Constitution in novel ways. That was true of the old conservatives on the Supreme Court who erected fences around property - who held minimum wage laws and restrictions on child labor unconstitutional, for example. It was true of the late William O. Douglas in his expansive views on freedom of speech.

But those abstract phrases of the confirmation hearing do not have much to do with what either conservatives or liberals seek in a Supreme Court justice. They are really interested in a nominee's substantive values: how she feels in her heart of hearts about the values of free speech, official secrecy, fair procedure, state power, religious freedom and so on.

The strange thing is that those ultimate truths are seldom known before a Supreme Court justice goes on that bench. Years ago a member of the Court remarked: ''In this job a man is reduced to the irreducible minimum.'' That is to say, the justice has to peel off all those layers of convention, of views expressed to go along with some faction or friend, and find out who he is inside; who she is. The process is about to begin with Sandra Day O'Connor, and it will be far more interesting to watch than her clever fencing with senators.

I want to repeat that last thought becuase it seems to me fundamental:

" 'In this job a man is reduced to the irreducible minimum.' That is to say, the justice has to peel off all those layers of convention, of views expressed to go along with some faction or friend, and find out who he is inside; who she is. The process is about to begin with [Samuel Alito] and it will be far more interesting to watch than [his] clever fencing with senators."

The thing that gives me comfort about Alito is that I sense that he is, at his core, a decent man. And, when the crucible that is the Supreme Court forces him to "to peel off all those layers of . . . views expressed to go along with some faction or friend and find out who he is inside," I suspect that we are likely to end up being as comfortable with him as we have become with Justice O'Connor. This is not to say that we will agree with everything he does. Far from it. But it is to say that he, like O'Connor before him, is likely to be seen as an intelligent, thoughtful, responsbile, and fully integral voice in the ongoing debate that is the essence of democracy. I can ask no more of a nominee.

DeLay Interrupted

Well, I guess I have to say something about the demise of Tom DeLay. But the only thing that comes to mind is this: it couldn't have happened to a more deserivng guy.

Oh, and there is also this: I told you so!

Iraq and Third World Poverty: Agreeing (Mostly) With The LA Times

There are two good opinion pieces in today's LA Times. They are "good," of course, becuase for the most part they agree with me!

One of these is an op-ed piece by Richard Haass, President of the Council on Foreign Relations entitled "Iraq and the Fortunes of War." Haass makes a series of points that will sound familiar those of you who read this blog with any regularity:

1. "To [withdraw the troops] under present circumstances would be irresponsible. It is not, as is often stated, that withdrawal would undermine the value of all sacrifices made until now. Rather, leaving too soon could lead to a civil war among the Sunnis, Shiites and Kurds that in turn would draw in the neighboring states.
   
   Why must that be prevented? Because chaos in a country of Iraq's resources and its location would be enormously costly. Terrorists would establish a stronger foothold there. Oil and gas production, the foundation of the world economy, would be disrupted. And perception among pro-Western governments that the United States is a reliable friend and ally would be gravely harmed."
2. At the same time, though, it is obvious "that we cannot sustain the current level of military effort given the strain on manpower and equipment; that force reductions would ease domestic political pressure on the White House and that they would address the argument that the insurgency is in part a reaction to the large U.S. presence. Near-term reductions also can be justified on the basis that the scale of American effort may actually be slowing the emergence of a capable Iraqi army, in that it reduces the urgency and breeds what some describe as a culture of dependency."
3. As a result of this tension, "[w]e will see the continued reorientation of U.S. forces away from offensive operations and toward the training and advising of Iraqis. More emphasis will be placed on holding secured territory and leaving the fight against the insurgency to Iraqi soldiers and police. This too should reduce U.S. casualties.

4. As to the probable outcome, "[i]t is, in principle, possible that Iraq one day [may emerge as] a successful democracy at peace with itself and its neighbors, providing a model for other states in the region to emulate. . . . Far more likely is something less and different: a barely functional Iraq, with a weak central government and highly autonomous regions, including a relatively secular, Kurdish-dominated north; a far more religious, Shiite-dominated south; a similarly religious, Sunni-dominated west; and a demographically mixed and unsettled center that includes the capital of Baghdad. . . . Still, a barely functional Iraq would be good, and at this point good enough. Sometimes in foreign policy, it is more important to avoid catastrophe than it is to reach for perfection. This is one of those times."
   

The only point in this with which I have some disagreement is the argument that the "reorientation of U.S. forces "will be away from offensive operations" and that "[m]ore emphasis will be placed on holding secured territory and leaving the fight against the insurgency to Iraqi soldiers and police." While I agree a reorientation of US forces is coming, I think it will be in the opposite direction. The reorientation, it seems to me, will be away from the policing and patrolling functions that are necessary to hold previously secured territotry and toward the offensive operations that are necessary to allow such holding operations to begin. There will for some time yet be a need for US forces to undertake or at least participate in the sort of pitched battle offensive operations necessary to drive insurgent forces from their strongholds. But more and more, the job of holding such strongholds once taken will fall, of necessity, to the Iraqis.

The second piece, is an LA Times editorial suggesting that "2005 will go down as a turning point in the global war on poverty." The editorial makes three points that will again sound familiar:

1. "Although there are plenty of reasons for disappointment — most notably the lack of progress in the Doha round of trade talks — there are reasons to be hopeful that the world's attitude toward poverty has evolved: It's no longer hopeless, or somebody else's problem."
2. After 50 years of seeing poor countries as nothing more than pawns in the "Great Game" that was the Cold War, another 10 or so years of simply ignoring them, and a final 5 years of making grandiose promises that were not kept, 2005 was the year in which "[s]purred on by activists like Bono and Bob Geldof, philanthropists like the Gateses and world leaders like British Prime Minister Tony Blair, wealthy nations [finally] took a deep breath and opened their pocketbooks."
3. But the progress is agonizingly slow. "Especially disappointing was the failure by the World Trade Organization to make much progress in opening markets and reducing subsidies for agricultural goods, a critical step toward raising living standards in the Third World. Bizarrely, leaders of industrialized nations would rather give away money than free up their markets, which would boost their own economies as well as those of their trading partners. A better trade deal must be put at the top of the world's agenda in the coming year."

I have one small quibble with this as well. I think there are signs of hope even in the results of the Doha talks. True, the talks did not produce the reduction of the developed world's trade barriers and subsidies that are, admittedly, critical to raising Third World living standards. However, I think even here that significant progress was made in getting the developed world to recongnize both the importance and eventual inevitability of those steps. As such, even here, 2005 may prove to have been a turning point.

More On Intelligent Design

For those of you who are interested in this topic there is (to me at least) an interesting comment thread under this post.

Merry Christmas/Happy Holidays/Joyful Soltice

It's 2:20 am Christmas morning. The hurly burly of Christmas Eve is over. The children (and the significant other) are all wrapped snugly in their beds with visions of who knows waht dancing in their heads. (Fortuantely they no longer get up at 6 am!) And Mom in her nightgown and I still in my church clothes (sans tie and with scotch however) are on the verge of settling down for a short winter's nap. As soon as Ma gets done stuffing stockings that is.

And, while I watch that little ritual, I just had the urge to wish all of you a very Merry Chirstmas and a great new year. There was a lot about 2005 that could have been better. But, there was a lot more that could have been much worse. All in all, I'm feeling pretty lucky tonight. Hope all of you are as well.

Bill

Spygate

The print version of this article on the front page of the NYT today reads as follows: "Actions Without Warrants Are Callled Wider Than Yet Acknowldged."

This story is not going to go away, and the more deeply it is looked into the more will come out. We are on the verge, I think, of something big. I wonder if Bush tape records himself?

Religion In Schools: Sadly, It Ain't Over Yet

A propos of the Dover Intelligent Design Decision, a friend sent me the following e-mail yesterday:

Good old American Democracy worked pretty well here. The school board essentially got replaced, and the courts were there to protect the First Amendment. Freedom from religion was upheld. What more could you ask for?

I'm not sure, but I suspect that the "Freedom from religion" phrase was probably not a typo, but was a way of implying that the Dover decision was just one more secularist victory in the ceaseless "war" being waged on religion. If that is what is was, it is a cute little barb, but no less than the supposed "war on Christmas" the claim it makes is utter nonesense. There is no "war on religion" going on in America today. Quite to the contrary, the "war," if there is one, is on people who have beliefs different from James Dobsen, Tony Perkins and their ilk.

But let's ignore that for the moment and focus instead on the larger point. Yes, the system did"work." And, the part of this story I like the best is the congruence between the political and judicial. For once, the court is not out there by itself in rejecting this stuff. In fact, the voters themselves beat the courts to it.

(Note, though, that, as reported in the Washington Post, this political and judicial congruence has not prevented personal attacks on Judge Jones, nor has it vitiated the expectation that Bush's Supreme Court nominees will be sufficiently activist to bring an end to 50 years of Establishment Clause jurisprudence.

"This decision is a poster child for a half-century secularist reign of terror that's coming to a rapid end with Justice Roberts and soon-to-be Justice Alito," said Richard Land, who is president of the Southern Baptist Convention's Ethics & Religious Liberty Commission and is a political ally of White House adviser Karl Rove. "This was an extremely injudicious judge who went way, way beyond his boundaries -- if he had any eyes on advancing up the judicial ladder, he just sawed off the bottom rung.")

But the final question in my friend's e-mail message -- "What more could you ask for?" -- gives me some pause. It seems to me that there is a LOT more I could ask for, quite reasonably. The ballot box, and even more so the courts, are last lines of defense. They are like anti- ballistic missile systems: when someone lobs a nuke at me, I sure am glad such systems are in place and work; but, it is not unreasonable for me to also ask that people quit lobbing nukes at me.

Unfortunately, the effort to make the public school curricula conform to evangelical Christian theology is not going to end any time soon. Despite Judge Jones' best efforts, even intelligent design is far from dead:

[P]roponents of intelligent design emphasized that the court decision would not cast them into the political and cultural wilderness. They have pushed their theory, which holds that life is too complicated to have arisen without the hand of a supernatural creator, to the center of legislative debates in more than a dozen states, and they intend to keep it there.

It is still very much alive in Kansas, for instance, and true believers in Iowa and elsewhere are reported to be largely indifferent to a federal court ruling in Pennsylvania:

"I don't think that a judge in one state is going to be able to tell everybody in all other states what to do," said Paul Brooks, a school board member and retired principal in Muscatine [Iowa] who favors teaching intelligent design. "So I don't get too excited about what he said." . . .

In South Carolina, State Senator Mike Fair has introduced a bill to encourage teaching criticism of evolution. Mr. Fair is also on a state education committee that is evaluating biology standards. He said although he had not read the Pennsylvania ruling, it offended him because it impugned board members' motives because they were Christians. "This case hasn't settled anything," Mr. Fair said.

Moreover, intelligent design is not the only stratagem being pursued. There is also a whole movement to persuade school districts to offer "elective" courses that will are claimed to fit with the Supreme Court dicta noting that the objective study of the Bible as history and literature in a non-required course might well be permissible under the Establishment Clause. See this: Texas District Adopts Disputed Text on Bible Study. The problem, though, is that unless Roberts and Alito do work some radical shift in Establishment Clause jurisprudence, there is almost no chance that such courses will survive challenge for one simple reason: the proponents of such courses are not at all interested in presenting anything approaching a neutral, academic study of the Bible, especially in a comparative sense. As even a brief tour of the National Council On Bible Curriculum In Public Schools website will make clear, the goal is not to teach the Bible as literature or history; it is to teach the Bible as a source of truth and a guideline for living.

And, therein lies the problem. On the one hand, even my friend would agree, I suspect, that teaching the Bible as truth violates the Establishment Clause. Yet, in the end, this is what the people supporting these causes are committed to having the schools do. The efforts to hide this fact inevitably fail, as they did in the Dover case, because they are so obvioulsy pretenses.

Why won't they just stop? There are innumerable forums in which to teach religion to children, from the family dining room to Sunday School to private religious schools, to televangelism, to innumerable private organizations. Why is it also so very important that the public schools, which must also educate students having profoundly different religious beliefs from those held the the Christian Right, be involved as well?

Ever Vigilant, The House Takes Action To Save Christmas

Courtesy of the Washington Post's Emily Messner I discovered that the House last week debated, and passed overwhelmingly, the following Resolution:

Whereas Christmas is a national holiday celebrated on December 25; and

Whereas the Framers intended that the First Amendment to the Constitution of the United States would prohibit the establishment of religion, not prohibit any mention of religion or reference to God in civic dialog: Now, therefore, be it

Resolved, That the House of Representatives --—

(1) recognizes the importance of the symbols and traditions of Christmas;

(2) strongly disapproves of attempts to ban references to Christmas; and

(3) expresses support for the use of these symbols and traditions, for those who celebrate Christmas.

Can you believe this silliness?

The debate on this resolution is high farce. The supporters are so damn earnest about their deep concern over the relentless attacks on baby Jesus that it is just sickening. What fun there is comes from the opponents, with the high point being John Dingell's submission of the following "poem":

'Twas the week before Christmas and all through the House,
no bills were passed 'bout which Fox News could grouse.
Tax cuts for the wealthy were passed with great cheer,
so vacations in St. Barts soon should be near.
Katrina kids were all nestled snug in motel beds,
while visions of school and home danced in their heads.
In Iraq, our soldiers need supplies and a plan,
and nuclear weapons are being built in Iran.
Gas prices shot up, consumer confidence fell.
Americans feared we were in a fast track to ... well.
Wait, we need a distraction, something divisive and wily,
a fabrication straight from the mouth of O'Reilly.
We will pretend Christmas is under attack,
hold a vote to save it, then pat ourselves on the back.
Silent Night, First Noel, Away in the Manger,
Wake up Congress, they're in no danger.
This time of year, we see Christmas everywhere we go,
From churches to homes to schools and, yes, even Costco.
What we have is an attempt to divide and destroy
when this is the season to unite us with joy.
At Christmastime, we're taught to unite.
We don't need a made-up reason to fight.
So on O'Reilly, on Hannity, on Coulter and those right-wing blogs.
You should sit back and relax, have a few egg nogs.
'Tis the holiday season; enjoy it a pinch.
With all our real problems, do we really need another Grinch?
So to my friends and my colleagues, I say with delight,
a Merry Christmas to all, and to Bill O'Reilly, happy holidays.
Ho, ho, ho. Merry Christmas.

I was sad to note, though, that in the end Dingell could not apparently bring himself to vote against the resolution.

We are one sick society right now.

I Laughed Out Loud At This

The Dover Intelligent Design Decision

Here is a link to Judge Jones decision in the Dover PA "Intelligent Design" decision. It is 132 pages long, but it is double spaced and is actually a pretty quick (and interesting) read. But for those of you who want the "Cliff Notes" version here it is:

Intelligent design posits -- indeed depends on -- the unsubstantiated supposition that there is a supernatural creator. As such, it is a theory rooted in religion, not science. Everyone knows that. And, everyone also knows that a state endorsement of intellgent design it is an endorsement of a particular religious belief. State endorsement of religious beliefs is prohibited by the Establishment Clause of the US Constitution. In addition, the evidence in the case makes clear that the purpose and effect of the Board in mandating that teachers inform their students of the Intelligent Design alternative was to advance a particular religiously based belief on the origins of life. For both of these reasons, the school board's action violated the constitutional ban on establishment of religion.

The more intersting aspect of the case actually has little to do with the Constitution. Judge Jones goes on at considerable length to address the scientific substance of Intelligent Design, concluding, essentially, that it is utter nonesense, at least from anything that approximates a "scientific" perspective. This part of the opinion owes much to "Finding Darwin's God" by Kenneth Miller, who was a Plaintiff's expert witness in the case. And, if I may say so, Miller's conclusions are summarized both more succinctly and more eloquently in my own post on the subject in August.

Be that as it may, what's interesting is why Judge Jones felt compelled to spend 50 or so pages of his decision rebutting intelligent design on the scientific merits. The question of whether ID is "right" or "wrong" or whether it is "scientific" or "unscientific" has nothing at all to do with the Constitutional issue, which is settled once the court concludes (as it pretty obviously had to given the evidence) that the purpose of the the Board's action was to advance a religious belief as to the origins of life and it's effect was to amount to an endorsement of that belief.

My sense is that one reason for the digression was Judge Jones' (probably vain) hope that he could drive a stake in the heart of the Intelligent Design, and thereby save other courts from havng to deal with the issue. In addition, though, it may be a reflection of the fact that "truth" or at least "believability" of intelligent design was important to the Judge himslef. That is, despite the evidence of religious purpose and effect, he needed to prove to himself (and others) that the theory was also bad, bad pedagogy. It is as if the judge felt compelled to say that, beyond the formalistic legal problems, the theory itself was nonsense and that he would not stand idly by while such nonsense was taught to our children.

In this, the decision seems, at least subconciously, to accept Sam Harris' admonition that, for the good of us all, we have to start calling religious belief by it's real name: lunacy.

I don't disagree. But as a lawyer, bound as I am to think about these issues in terms of precedent and legal formalisms, I must confess to a bit of unease here. How does the "free exercise" clause fit into this? The core complaint of those advocating intelligent design is that evolution is anathema to the religious beliefs they are trying to pass on to their children. Their cri d'couer is: "But, you honor, they are teaching my children things that are inconsistent with my (and their) religious beliefs! Do I not have any right to object to public school teachings that are directly contrary to my own religious beliefs? How is that not inconsistent with the Constitutional guarantee that I will be free to believe as I want to believe?"

The only answer to this question is, I fear, that YOU are free to teach your children whatever you want. But, when it comes to public schools, that are run by the state and that are teaching ALL of the children in the community, we are not going to teach intelligent design any more than we are going to teach alchemy, astrology or animism just becuase there are lunatics out there who believe that nonsense. In short, YOU are free to believe whatever you want to, and to try to inculcate such beliefs in your children. But the state is going to insist that there be some evidence to support the thoeries it teaches all children.

Maybe Sam is right. The debate at this level is actually far more candid and, in the end, far fairer to both sides that are the arid formalisms of the Supreme Court's Establishment Clause jurisprudence.

Maybe There Is A Crime

On Sunday, I speculated that the only thing that separated the second Bush term from the second Nixon term was that "there is (as yet) no hint that Bush himself may have been involved in criminal activity."

When I wrote that, I was aware of Bush's internal spying program and even of Bush's passionate defense of that program. It occurred to me that this issue could be the "crime" that would complete the analogy to Nixon, but I pretty quickly dismissed that idea, concluding that internal spying probably didn't have enough "legs" to create an actual legal problem for Bush, especially since he was not trying to cover it up -- which all have concluded was Nixon's big mistake.

I am not so sure now. What I had failed to appreciate at the time is the extent to which Bush has thrown down a direct challenge to the power, even the relevancy, of Congress. He is basically asserting that the Constitution gives the President the power to ignore federal statutes if he concludes that the strictures imposed by those statutes interfere with what he feels he needs to do to protect national security. Nothing upsets Congress so much as a President telling it the Constitution makes it irrelevant on such questions. As such, this issue may very well prove to have as much "legs" for Bush as Watergate did for Nixon.

One thing seems clear. Unlike most Washington scandals, this one will not involve perjury, obstruction of justice, or other such derivative, investigation-induced crimes. For once, the issue is going to be the action itself rather than the cover-up. And, for that, at least, I give credit to Bush. He is not going to try to hide what he did. He is going to defend it.

Ironically, though, this tactic may make it all the harder for Congress, even a Republican controlled Congress, to ignore the issue, since it is hard to imagine a more brazen assertion of executive pre-eminence and Congressional subservience. Entirely apart from the affront this poses to the hubris of individual Congressmen, Congress as an institution can hardly let such a challenge pass without abandoning any pretense that it is a co-equal branch of government.

The issue has legs in another sense as well. There are going to be investigations. Arlen Specter, a maverick Republican, but a Republican nonetheless, has already said that the Senate Judiciary Committee will hold hearings on the spying authorizations. There will also be press investigations, with each reporter imagining himself to be the next Bob Woodward, the reporter to bring down a President. There will be adverse commentary, and not all of it from the Left. No less of a Bush fan than George Will is already questioning the legality of Bush's actions and, while continuing to give Bush the benefit of the doubt pending the availability of additional information on how and why Bush used his claimed powers, even Bill Kristol concedes that "Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn't." And, especially after the Valerie Plame incident, it is awfully hard to imagine how Bush could resist opening a criminal investigation into who leaked the information to the New York Times. Indeed, at his news conference on Monday, he indicated that, while he had not ordered such an investigation, he "presumed" the Justice Department had already opened an inquiry into who leaked the information about the NSA program. When the President presumes, Justice reacts.

The firestorm, in short, has started, and Bush will no more be able to control the outcomes than Nixon was. More facts on more questionable activities are certain to come out, and, as they do, Congress and the press will get more and more aggressive. With mid-term elections less that a year away, expect a fair number of Republicans, especially those from Blue States, to run for cover. If the Democrats happen to pick up a majority in either House in those elections, the "I" word (impeachment) will start to be heard. The issue, in short, is all set up for the kind of cluster-f**k that can undermine a Presidency.

Stayed tuned. This may get interesting.

The End Of Another Imperial Presidency

It feels like deja vu all over again.

While I won't pretend to have done any rigorous comparison, the second Bush term seems strikingly similar to the second Nixon term. We are in the midst of a war with little popular support, highly questionable origins, no clear connection to the national interest, no clear exit strategy, and no credible definition or even likelihood of victory. Scandals and charges of corruption abound. High administration officials are under indictment. Stories on violations of law and civil liberites are coming out almost weekly, with the administration defending them on the basis of national security. The press smells blood and is following the scent like ravenous sharks finally released from their cages. The President's party, terrified of the looming mid-term elections, is in disarry and any sembelence of party discipline -- long the has defining characteristic of the Administraion -- has evaporated. And, most telling of all, the President is utterly incapable of reasserting control over the national agenda. He keeps trying, but nothing he says or does makes any difference. The old hot button phrases that have served him so well in the past -- phrases like "war on terror" and "national security" -- have not only lost their political punch they have actually become liabilities. Not only do people no longer believe that his acts serve those purposes, they have come to believe that the phrases themselves are cover-ups. Bush, like Nixon at about the same point in his presidency, is a man utterly at bay. About the only real difference I can see between the two adminitrations is that there is (as yet) no hint that Bush himself may have been involved in criminal activity. That difference plus the fact that his Party controls Congress, will doubtless save him from Nixon's fate. But the spectacle of a President who has utterly lost control is hauntingly familiar.

Fighting Faith

I am about two-thirds of the way through "The End Of Faith" by Sam Harris. I may not finish it. It is one of those books that should have been an essay: an interesting thesis that could have been fully expounded in 10,000 words but that the author felt compelled to expand to 277 pages by making the same point over and over again.

The thesis, though, is one worth thinking about.

Harris' starting point is a commonplace: that faith -- particularly but not exclusively religious faith -- has been and continues to be a source of enormous evil in the world. Indeed, he spends much of his book describing case after case after case s of faith-based evil. His primary targets are the 14th Century Christian Inquisition and the 21st Century Muslim Jihadism. However, he also touches on a litany of other religiously based evil and even takes on such secular "faiths" as National Socialism and Communism. In doing so, he makes, at least implicitly, the point that the evil springs less from what is believed than from the fact of belief itself.

A deeply held belief that I am right and you are wrong on any issue important to either of us inevitably builds resentments between us that can easily escalate into hatred and violence. This is all the more likely where our disagreement is over something that is both (a) profoundlyimportant to at least one of us (e.g. the prospects of and eligibility for an afterlife) and (b) inherently incapable of being proved or even examined in any rational way. These are exactly the characteristics of religious belief, and it is for this reason that the evil produced by religion dwarfs into insignificance anything perpetrated by the Nazis or the communists or the Khmer rouge or all of such secular beliefs combined. But the point is still the same: true believers are dangerous. It is just that religious true believers are most dangerous of all.

If this was all Harris had to say, the book would be trite. But while the point tends to get lost amid a nearly endless catalogue of evils perpetrated in the name of faith, Harris' real message is that it is time for the world to start naming the evil out loud. He rightly points out that in today's society it is pretty much unthinkable to challenge another person's religious beliefs. These are matters that are considered, in the West at least, to be so personal and private as to be utterly beyond criticism. We may, of course, criticize the person's acts or the positions he takes. But even when it becomes obvious that the person's actions or positions flow directly from his faith, we have no ability to attack the faith itself despite the contempt we have for the actions or positions. All we can do, if we are so inclined, is to get into a hermeneutic debate as to whether the undergirdings of his faith (e.g. the Bible or the Koran) really do mandate what he believes they do. At the point at which we have exhausted that avenue (usually very quickly since hermenuetics for most people is itself an act of faith) we simply grow quiet. We feel it is wrong somehow to tell the person or the world that his beliefs themselves are utter nonsense

It is this squeamishness Harris wants us to outgrow.

A belief in a proposition for which there is no evidence is lunacy. We have no difficulty accepting that principle when the things believed in are alien abductions, ouiji boards, seances, invulnerability to bullets; the healing power of the snake oil salesman; etc. But when it comes to the question, say, of whether there is a heaven or hell and who will be eligible for each, we feel compelled to "respect" any belief whatsoever. We are not required, obviously, to ourselves accept what the other believes, but we are constrained by our devotion to "freedom of belief" to forbear from telling the person that his beliefs qualify him as a lunatic. But they do. The psychotic who hears voices telling him he is God has more evidence for that belief that the religious have for their belief in an afterlife. At least the psychotic has the evidence of his own senses. The believer in an afterlife does not even have that. He is in the position of one who believes that the psychotic is God simply because the psychotic told him he was.

There are many lunacies we put up with because they don't do us any harm. If Joe Blow wants to believe he was abducted by aliens, we let him because it really doesn't make any difference to us what Joe Blow believes. But things change when Joe Blow starts recruiting others to blow up things because the aliens told him to. In that case, we have no compunction about telling the potential recruits that Joe is a lunatic. Yet, if Joe tells his recruits to blow up stuff because God commands it (and will reward them with paradise in the after life) our willingness to label Joe a lunatic is significantly vitiated. We may, and do, try to stop the recruits from acting on Joe's instructions. But our argument is always that Joe is misinterpreting scripture or God's commands or whatever. We are very reluctant to call the belief itself lunacy. For if we do, there is no stopping. If belief in propositions for which there is no evidence is a good working definition of lunacy, then all religious belief is lunacy and we have no basis for condemning Joe's particular brand of lunacy any more than we do the lunacy shared by more peaceful co-religionists. All we can condemn are his acts or the acts he is advocating. But this leaves Joe with his most dangerous weapon -- his faith -- unchallenged.

But what about all the good that has been done in the name of religion? First of all, religion hasn't done that much good. Mother Teresa is famous precisely because she is so exceptional. And, for every Mother Teresa there are dozens of pederast priests. Second, the good has been done in the name of religion is far outweighed by the evil that has been done in he same cause. Religion has killed far, far more people than it has saved (in the corporeal sense). Finally, there is (again) no evidence that religion has anything to do with whatever good that has been done by religious people. An equally plausible explanation is that the religious people who have done good have done it because of who they are and would have done the same thing whether or not they were religious. That is, it is at least as likely that the impulse to do good leads some people to be religious as it is that being religious leads some people to do good.

Harris acknowledges a profound difference between 21st Century Christians and 21st Century Muslims. Rarely do you see Christians blowing themselves up in pursuit of their faith (although the actions of Christian fundamentalists shooting abortion doctors and bombing abortion clinics in the name of God seems different only in degree). But, he argues, convincingly I think, that the reason for the general differences between Christians and Muslims today is that Western Christians have largely moved beyond the principles of their faith, at least as those principles are set out in the Bible while the Muslims have not. There are whole swaths of the Bible that most modern Christians would find abhorrent if they ever bothered to read it. If you don't believe me, try reading Leviticus, Deuteronomy and Joshua some day. Indeed, most modern (i.e. non-fundamentalist) Christians see the entire Old Testament as being something of an anachronism in a religious sense. How half of the inerrant Word of God could become anachronistic over time without shaking people's faith in the rest of it is something that is hard to fathom. But it is a commonplace in modern Christian churches for the faithful to blithely dismiss the Old Testament as having been "superseded" by the New. What? The infallible deity changed his mind?

But even if we accept that convenient little sleight of hand, the New Testament itself has more than enough in it to make the modern Christian uncomfortable. Take Revelations for a starter. All of this creates enormous cognitive dissonance for the modern Christian. Yet rather than questioning his faith, he handles the dissonance by simply ignoring the "bad parts" and concentrating on the "good parts": the Sermon on the Mount, the Beatitudes, the Psalms, etc.

There is some of this going on in the Muslim world today. Western Muslim clerics and believers repeatedly stress that Islam is a religion of peace. But Harris makes a pretty good case for the conclusion that they can do this only by ignoring much of the Koranic text and/or by putting on that text "interpretations" that bear little resemblance to the actual language. This is what Christians have also done over the 600 years since the Inquisition. But this civilizing process is not (yet perhaps) taken root in the larger Muslim world. The Muslim masses still believe all of it. And they believe that the words mean what they appear to mean. So, when the Koran says that the reward for dying in the battle against the infidel is eternal salvation (and unlimited sexual promiscuity) that actually believe that. So they go out and blow themselves and their "enemies" to smithereens. Lunacy indeed. Yet the fact that Western Christians do not today share a correlative lunacy has more to do with the fact that Western Christians are today simply more willing to ignore more of their holy text than Muslims are. That was not always the case, though. Witness the Inquisition. And it may not always be the case. As much as we might hope that Islam is headed for its own Enlightenment, it seems at least as likely that Christianity is in the process of a retrograde movement toward Islam. Indeed, American fundamentalists appear to be proving Harris' point: the more believers come to truly believe that the Bible (or the Koran or any religious text) is actually true, the more intolerant, violent and dangerous they become. If we are to stop this, Harris argues, we have to be willing to go beyond condemning the acts and condemn the lunacy that produces them.

I'm not sure where all this leaves me. On a macro scale, much of Harris' thesis is hard to dispute. The historical evidence is just too overwhelming. And, if there is any merit to the injunction to "speak truth to power" perhaps Harris is right to suggest that we all ought to be telling James Dobson and anyone else who listens that he is a lunatic, not just for his positions but for his beliefs.

But when one comes down to the individual level, things get dicier. I have often said that my mother-in-law, Margaret, is probably the one "true" Christian I have ever met. She is profoundly religious yet never have I seen her faith impel her to condemn anyone, even me, her lost sheep. Is there really a need for me to confront Margaret with the fact that her faith is lunatic? Even if I did, she would just smile and say, "Oh Billy. You don't really mean that." Or some such. The fact of the matter is that, religious faith exerts a positive force in the lives of some, perhaps many, people. They recognize that portions of the Bible are problematic, but they just choose to believe that those parts are part of the inscrutable mystery of God. Our problems with the "bad" parts is not a problem with the Word; it is a reflection of our inability to fully understand. While I find this sort of faith hard to understand and impossible to practice, do I really wish that, even if I had the power to do so, I could take that faith from them. In the case of Margaret, at least, the answer is clearly no. Even if it is lunacy, it is a lunacy that is at the very worst harmless and at best a positive force in her life and the lives of those with whom she interacts.

So in the end, the problem Harris has identified -- that much evil is done in the name of faith -- is clearly true, but trite, and the solution he proposes fails because it is overbroad. It is not faith per se that is the problem. The problem lies in what people do with that faith. And, one cannot condemn all faith simply because some of the faithful use their faith for evil purposes.

Thus Spake Zarathustra.

Agricultural Subsidies and the Developing World

I haven't done much blogging for the past month. My wife heard an interview with some guy who has written a book on bloggers and who indicated that something like 85% of bloggers quit after about a year. My first post on this blog was almost exactly a year ago and Judy suggested that maybe I was one of the 85%.

There may be something to that. But I don't think ennui is really the reason. The real reason is that I find I have little new to say. There is a lot going on in the world about which I care a lot. But it seems like it's just the same thing over and over again. So, when I see something that seems comment worthy, I realize that I have already said everything I have to say about that. And I wonder, "Why say it again?"

Well, whatever the reason, I found something today that piqued my interest again. Actually two things, both op-ed pieces, one in the LA Times and the other in the NY Times Both are on a subject -- the role of trade policy in helping the 3rd World -- that I have been discussing/debating some with my youngest son, who is an International Relations major at the University of Wisconsin.

The LA Times piece argues that eliminating the developed world's agricultural subsidies and other restraints on trade in agricultural goods would be one of the most important steps the developed world got take in assisting economic development in the third world.

Seventy percent of the world's poor live in rural areas and depend on agriculture to earn a living and feed their families. But instead of being able to freely sell what they produce, they are often denied entry into markets as rich countries protect and prop up their own farmers — subsidizing products and imposing high tariffs on imports.

Rich countries — primarily the U.S., Japan and the members of the European Union — spend $280 billion annually on agricultural support. That's $5 billion a week to protect their often-rich farmers from competition. Ultimately, it is the taxpayers and consumers in these countries who shoulder the costs of these support programs. Economists estimate that consumers pay $168 billion a year because of tariffs, and taxpayers pay $112 billion a year for direct subsidies.

But the real damage is done to farmers in poor countries, because high tariffs keep them out of key markets, and tariffs and subsidies together drive down the world price of their exports. Without the income that trade could provide, it is their children who go hungry and who are deprived of clean water, medicines and other basic necessities of life.

Tariffs also hurt poor countries by blocking them from moving up the production chain. Even though 90% of the world's cocoa beans are grown in developing countries, they produce only 4% of its chocolate. One reason is that tariffs often escalate with the degree of processing — in the EU, producers of raw cocoa pay a tariff of 0.5% of the value of the beans, semi-processed cocoa pays about 10% of its value and chocolate even more.

If the rich countries would agree to level the playing field, everyone would see enormous gains. The World Bank estimates that full liberalization of trade in goods alone could generate $300 billion per year for the global economy. Developing countries would gain $86 billion of this share. And these numbers can grow as producers in poor countries take advantage of new markets.

The NY Tmes article does not really dispute this, but it makes painfully clear the significant practical obstacles that stand in the way:

It's true that the European Union needed to reform its agriculture policies. But any farm sector can absorb only so much reform at once. Unlike the nongovernmental organizations calling so vociferously for cuts in subsidies, governments have responsibilities to the citizens who elect them. The changes we have already begun are having an extensive impact on Europe's farm regions. As a result of the sugar reforms, producers in Ireland and Finland may well go out of business. We have seen no comparably bold action by any other major W.T.O. member, the United States included.

As the talks begin today, our fellow negotiators should be in no doubt that all the European Union's governments agree that there is no reason to move further on agricultural tariffs. They all agree that the time has come for others to respond in other areas of the Doha agenda, like lowering industrial tariffs and liberalizing service industries, to the moves we have already made.

Ignore for the moment the absurdity of basing international trade policy on the interests of Irish and Finnsih sugar farmers. (Are there such people?) The argument being made here is that the EU should not be asked to lower agricultural supports and tariffs unless and until the 3rd world countries lower their tarriffs on services and manufactured goods.

It is this point that my son has so much difficulty with. If the goal were actually to help the 3rd world to develop, then lowering barriers to our agricultural markets while allowing them to protect their nascent manufacturing businesses would make a whole lot of sense. Take the choclate example. Country A grows cocoa beans, most of which it exports. It would make sense for them to move up the manufacturing chain and start making cocoa and perhaps even chocolate. But, they have enough trouble competing with the developed world's chocolate manufacturers under the best of circumstances. When that is compounded by high tarriffs in the only markets with significant demand for chocolate, they have no real chance of developing a chocolate manufacturing business. If the goal of the developed world were to help Country A develop, it would be entirely consistent for the developed world to agree to eliminate their tarriffs and subsidies on both cocoa and finished chocolate and yet agree to allow Country A to maintain tarriffs on imported chocolate and subsidies for domestically manufactured chocolate. The effect would be to give Country A greater acccess to the devloped world's markets for both cocoa an finished chocolate and yet allow it to protect it's nascent chocolate industry from competition by establieshed chocolatiers.

There is an obvious asymetry here, but that asymetry is really not all that significant for the developed world. While it is critical that Country A's manufacturers have access to the developed world's chocolate markerts, the converse is probably not true: after all exactly how much chocolate can the people of Country A be expected to buy? Moreover, if the Country A chocolate market is significant, the developed world can get around the tarriffs by building maufacturing plants in Country A. This would allow them to compete in that market and at the same time contribute to Country A's economic develpoment by providing (relatively) good paying jobs to its citizens.

In short, if the goal really were to help the third world, the approach outlined in the LA Times piece would make all kinds of sense even if the third world were not required to reciprocate. As the NY Times piece makes clear, though, helping the 3rd world is not really the goal. The goal is to help the workers and businesses in the developed world. The workers and businesses in the developed world have competing interests, of course, with some wanting to protect exisiting domestic businesses from foreign competiton while others want to expand exports to those same countries. Those conflicts are what drive these countries to even be willing to consider "free trade." But, for concessions to be politically saleable, getting something in return is a necessity. Specifically, if Country A wants access to developed markets in what they presently produce (e.g. agricultural goods) then the developed countries will insist that they give up protections with respect to those things that they ultimately want to produce (manufactured goods). One can easily see how this quid pro quo demand can be seen (or at least portrayed) as a way for the developed world to prevent the 3rd world from ever being able to compete in areas beyond agricultural goods.

The politics of all this is very real and one cannot ignore that reality and continue to be relevant. However, it occurs to me that there is one interest that is being ignored here. Absent economic development, the 3rd world is going to continue to pose security challenges, even threats, to the developed world. Even if it costs us some jobs, mitigating that threat may be worth the cost.

One final point: If you haven't peeked already, who do you suppose wrote the the LA Times piece? Some mushy headed liberal do gooder no doubt, right? Hardly. The author is none other than that arch neo-con Paul Wolfowitz, the man who did more than any other to bring us the war in Iraq. I admit that the thought of agreeing with PW on anything cuases me some significant cognitive dissonance. But there it is. In the 21st Century it gets harder and harder to figure out where on the left-right political spectrum anyone really is.

The Vatican Position on Gays

Ellen Goodman had a column today that did a lot to help me crystallize my own queasiness about the Vatican's recent ruling on gays in the priesthood.

She starts off recognizing that most peoples' feelings about gays in general and gay civil rights in particular depend on whether they believe homosexulaity is a choice or a trait. Those who believe it is a trait -- something that is intrinsic to who they are -- are generally tolerant of gays and supportive of their civil rights claims. Those who believe homosexuality is a choice are generally intolerant of gays and opposed ot civil rights claims in particular.

Goodman then goes on to point out that the Vatican has turned this common sensical division on it's head, saying that those who are truly gay cannot be priests regardless of how they act while those who have simply dabbled in it are OK.

Mindboggling.