Submitted to a Candid World
Archive for June 2008
White Guys & Obama, and Good Luck to Tim!
We may not be post-race in America yet. At a store this past weekend in Manhattan, wearing my Obama t-shirt, I was asked by a black woman if I was, in fact, voting for Obama. When I told her that I was, there was a distinct note of surprise in her voice! It may be that I’m SO stereotypically white – satchel bag, Starbucks in hand, iPhone, fountain pen – that, clearly, I would no sooner vote for someone not my own race than I would socialize with them at the country club.
As you may have imagined, that evaluation is pretty far off, and after explaining to her that I was a big Obama fan, we had a pretty hilarious conversation about how bad McCain would be. Fun was had all around. The point, I think, is that people are sometimes suspicious when the majority takes the minority’s interest. Although Barack Obama surely is not “the black candidate” – to most, I hope, he’s just a candidate who happens to be black – it certainly would have been unheard of fifty years ago for a white man to campaign for a black president, and it surely takes time for some minority interests to trickle up to the majority’s attention. I still get glances for walking around with a Human Rights Campaign bag – apparently only a gay man would support gay rights. But the point of democracy is that the majority ought to care for the minority. Sigh. Some day.
Aside from that anecdote, the big news of the day is, Tim Brady is off to Iraq today to chronicle the country in the name of his organization, the Soulbird Music Project. I wish him the best wherever he is, and he’s missed here in New York.
Bob Barr is Crazy – Shine On, You Crazy Diamond
I’ve met this Bob Barr guy. He’s crazy, he’s a true believer, and he’s apparently out to be a Republican spoiler. While he may not be exactly on the level, as far as his libertarian credentials go, he inspires an eager neo-conservative following, and if he can manage to hitch his wagon to the persistent Ron Paul phenomenon, he’ll give Republicans angry with McCain’s waffling form of conservatism a chance to cast the protest ballot they so dearly long to cast.
I’ve hypothesized that the only reason McCain won the primaries was because the hard-core conservative vote was split between Huckabee and Romney. McCain’s nomination has left the hyper-conservative plurality of the Republican party furious, while failing to appeal to the independent/survivalist bloc of the party, which remains captivated by Paul. If Barr can appeal to both – or look like a viable protest vote to both – he will matter. In a big way.
The 2008 Presidential election is shaping up to be a perfect storm for the Republican party, and there’s nary a harbor in sight.
South Dakota: Where Harrassing Women is a Legal Imperative
I don’t usually write for this blog, but I’m concerned. Certainly there are plenty of things to arouse alarm these days (and we’re talking everything from an increasingly assertive Russia to the shunting of the next season of Project Runway over to Lifetime. This is no small range of fretting). Today, however, I’m concerned about South Dakota.
Specifically, a federal appellate court just okayed a South Dakota law that turns the informed consent a woman’s health doctor owes his patient into a political grandstanding event (Planned Parenthood’s press release here).
Unfortunately, this means that, if you’re a scared and pregnant woman in South Dakota who no longer wants to be pregnant, you are now going to be forced to hear (and in some cases, your doctor is being forced to tell you) that the fetus you wish to terminate is a “whole, separate, unique, living human being.” The speech the doctors are forced to give is, according to its proponents and to the court that overturned the injunction, biological in its nature. Of course, for those who have an even passing understanding of the pro/anti choice battle flowing through the courts these days, the language is blatant in its ideology. This is what keeps me up at night: the anti-choice movement has gotten very, very, very good at packaging their product. This means that they can bob and weave around the letter and spirit of the law with greater ease and effect… which is not good news for women who are hoping to retain their rights over decisions that affect their health.
Now I wouldn’t imagine that it’s an easy thing to walk into a clinic or doctor’s office seeking an abortion- I wouldn’t imagine it’s a choice anyone makes lightly or leaves behind them after they are through. Clearly every woman seeking termination is not a doctor or privy to advanced medical training, but I think it’s insulting and paternalistic in the extreme to assume that women lack some fundamental understanding about what an abortion will do to their body and psyche. To lecture a woman who is making an already difficult choice, to imply that she is committing murder, to heap guilt onto what may already be a sizable share, these are practices bordering on cruel and unethical.
I find this all very disturbing, both as a woman and as an American, but what disturbs me most about this situation is the fact that this is one more crack in the already weak dam of women’s reproductive rights in this country. Remember that story about the Dutch boy who saved his town by plugging the hole in the dam with his finger? Each new case, each new spin campaign, and each new piece of anti-choice legislation, no matter how outrageous, is yet one more crack in this dam, and the little Dutch boy can only reach so far to plug these new holes.
To further flog this metaphor, what we need in this country is a better dam. Roe is built on poor foundation and, while it has held back the waters so far, the halls of the Supreme Court are becoming less and less sympathetic to the sentiments behind the bulwark of caselaw shielding a woman’s right to choose. The small victories of the anti-choice movement (i.e.: allowing pharmacists and entire pharmacies to deny prescription birth control or emergency contraception to women) add up to an alarming picture of the future.
Ahoy hoy! Carnival of the Elitist Bastards #2
Three cheers to Dana Hunter for hosting the second carnival – here. Topics include the ease of ignorance, the hypocrisy of those who will call you an elitist, and how elitists can and should change the world for the better. And we’re on it again too! Read and be merry.
Texas Supreme Court: Religion is a Complete Defense to Child Abuse
Texas’ high court ruled yesterday that a former parishioner could not sue her church for emotional distress incurred as a result of a traumatic and disturbing exorcism. The ruling essentially allows religion to be a shield against laws of general application; if you perpetrate some bizarre ritual that potentially damages the emotional or physical well-being of your parishioners, as long as you plead a religious exemption, you’re immune from suit. While Bobby Jindal may be okay with that ruling – we know how he feels about exorcisms – this is wrong on law and wrong on policy.
The opinion – available here (the operative sections are below the line, with citations removed) – holds that, where a parishioner alleges purely emotional distress at the hands of the church, the Court cannot inquire into the nature of the ritual, and therefore cannot pass on the complaint.
The main problem with this reasoning is that, to get to that conclusion, Justice Medina misconstrues the nature of the complaint, characterizing the plaintiff’s bona fide emotional trauma as a sectarian dispute, in which the court cannot involve itself. To say that Medina is wrong is to be generous; more accurately, he can’t see the forest (emotional distress) through the trees (religious ritual). That a defendant pleads religion as a defense does not require a court of law to inquire into doctrine; an injury is an injury, whether or not it comes from a religious source, and it should be evaluated as such. Religion doesn’t excuse restraint & psychological abuse (“[a]ccording to Laura, church members forcibly held her arms crossed over her chest, despite her demands to be freed”), just like religion doesn’t excuse drug use.
“No” doesn’t mean “yes,” just because it’s inside a church. That you’re a member of a church doesn’t mean that you consent to psychological torment. It’s that simple. Doctrine need not be involved. I’m applying to clerk for the Texas Supreme Court, so I say this with a certain reluctance, but Justice Medina is categorically wrong.
Racism on Fox News: Sign the Petition
I’m just not surprised by anything Fox News does anymore. I’ve covered incidents of their racism in the past, and it has to stop. It probably won’t, but at least we can say something. Sign the petition to send a message that they won’t listen to.
Creationism in Louisiana, Courtesy a Potential McCain Running Mate
Bobby Jindal, a potential pick for John McCain’s running mate, has chosen to sign into law Louisiana SB 733, yet another of Trojan horse for creationism. As friend-of-the-site PZ Myers points out, Jindal has (hopefully) committed political suicide. If McCain picks a confirmed creationist for his slate, he’ll at once win a small group, and lose a big group by proving that he is, in fact, another right-wing religious avatar. Apparently, the bill was controversial in Louisiana, and Jindal chose to ignore one controversy, while teaching the other. The mere fact that McCain was considering this man as a running mate ought to tell us enough about him. Let’s hope this is as far as Jindal goes in American politics.
Originalism and Multiple Narratives in the Court’s Gun Case
Advance warning: I will be using a picture of Mal Reynolds in all my future gun-related posts. Now, to the issue…
First, I’d like to re-emphasize that Heller, the Supreme Court opinion that codified what we already knew about the second amendment, is not a big deal. As Judge Kozinski said, in happier times, “the parties are advised to chill.” Anyone who ranks Scalia’s Heller opinion above his opinion in R.A.V. v. City of St. Paul either doesn’t know their constitutional law, or doesn’t think that defining the first amendment is that important. For God’s sakes, based on Obama’s reactions, the case isn’t even going to be a campaign issue. Scalia crafted a well-written, but uneventful tract on guns in America, incorporating into the U.S. Reporter what politicians (outside of D.C. and San Fransisco) already knew. Move on!
I’ll say this much about the decision: Heller does show us one interesting thing, but it’s not about guns. It’s about about law and constitutional decisionmaking in general. Scalia approached the decision from a textualist, and originalist perspective, breaking down the second amendment line-by-line, and then putting each part of it in historical context. It’s a very good textual decision from that perspective. It’s also a very good originalist decision. In fact, it may be one of the best originalist decisions ever written. The problem is, that doesn’t say much.
Originalism is hailed by conservatives as the best canon of constitutional interpretation, because it is allegedly “objective.” It freezes a moment in time and uses it to govern all future moments. Thus, an originalist judge, ideally, isn’t interpreting so much as mechanically channeling history and applying it to a given fact set. In theory, there can be no “legislating from the bench,” since an originalist judge is bound to the historical narrative. For the originalist judge, the story goes, personal feelings never enter into the picture.
By relying upon history, and calling it “objective,” originalism presumes that there is only one historical narrative. But there are always competing historical narratives. Judges have read the second amendment’s history in precisely the opposite manner that Scalia did – legitimately, too. [1] And academics have never been able to agree on how the historical records speaks. [2] In the (scant) legislative history of the second amendment, one can reach different conclusions by selecting or emphasizing different historical facts. Scalia wasn’t being objective by falling back upon “original meaning”: he was just being less obviously subjective. Thus, at best, originalism is still subjective, because a judge still must choose the historical narrative to credit.
At best. At worst, the historical confusion is so all-encompassing as to make originalism completely useless in constitutional interpretation. In the first amendment context, falling back on originalism would eviscerate the modern understanding of “free speech”: most states banned blasphemy at the founding, and about half of the Founding Generation thought speaking against the government should get you deported. Neither of these perspectives jive with our modern values; they ought not control our society today, and, since all admit that originalism is useless when touching the first amendment, they don’t.
All of this is to say that, essentially, Scalia wrote a good, moderate, political opinion. But let’s put to bed the myth that he, and other originalist judges, make law by objectively channeling the Founders. Continue reading
Don’t Miss: NPR on Extradition for Rumsfeld
Schadenfreude time. According to Philipe Sands, international human rights lawyer (interviewed on “Fresh Air”), top Bush administration officials up to and including the Man himself may face criminal penalties upon leaving office. Being in a Nuclear Five nation didn’t save Mr. Pinochet from extradition to a foreign country (although his failing health ultimately did); why, Sands asks, would it save Rumsfeld, or even Bush? His conclusion: it won’t, and neither will a presidential pardon, so the U.S. ought to crack down on these fellows come January ’08, before some other countries try to jump into it.
Also – and I’d be a terrible person if I didn’t tell you about this – apparently Barnes & Noble is having a DVD sale, an opportunity you MUST avail yourself of. Buy 2, get 1 free. It was a very good day.
