Archive for November 2009

Politico Just Cold-Reporting Right-Wing Talking Points as News, Now

Wonder what lines the Republican Party views as particularly salient, in their ongoing quest to mislead the public and tear down President Obama? Wonder no more! Politico is happy to publish them as true, to keep you “informed”! In perhaps its most egregious offense, Politico acknowledges these “stories” are just that, and will only catch on if someone pays attention to them.

The Obama White House argues that all of these storylines are inaccurate or unfair. [. . .] But [these stories] all are serious threats to Obama, if they gain enough currency to become the dominant frame through which people interpret the president’s actions and motives.

Politico, of course, will happily pay them the requisite attention to establish that currency. What observer effect?

In Switzerland’s Failures, a Vindication for Our First Amendment

Minarets. Not so scary.

Underscoring yesterday’s post about the dangers of religious conflict, per the BBC, we learn that Switzerland voted, by referendum, to ban the construction of minarets, an iconic feature of Islamic architecture used in daily calls to prayer. The notion that this will “solve” the “problem” of “Islamization” in Switzerland is ridiculous, in its whole, and at every subsidiary part. The majority shouldn’t delude itself into thinking this is anything but what it is: oppression of a resurgent minority, sure to inflame an avoidable conflict about the nature, and adaptability, of European democracy.

Say what you will about America’s many, frequently serious problems: this could not happen here, no matter how desperately some of our countrymen may wish for it. Immigration and an influx of different cultures rarely become the existential threats to society that they’re so often billed as. But, should it come to that, there’s a middle road between accommodation and all-out conflict, which this ban does seem to forbode. Our Constitution commands us to find that middle road; that Switzerland declined to rise to the same challenge is a stain on their history.

Need Atheism Offend?

Jesse Galef at “The Friendly Atheist” has a strong, well reasoned and provocative rebuttal to Herb Silverman’s assertion (at The Washington Post) that atheism need not offend. Jesse defines atheism as a statement, one that is either right or wrong, excludes other realities, and therefore has the capacity to offend. He’s quite right about that, and arguments to the contrary misunderstand the unique role and history of religious beliefs in human society.

I do not mean to suggest that atheism is a “religious belief.” We needn’t resolve that argument to answer this question, and so we would do best to postpone it for another day. What is beyond contention is that atheism will — and must — bump up against religious assertions. This truth stands regardless of how one’s atheism is framed in personal interactions. Indeed, whether expressed readily and frequently, or quietly held, the expression of one’s atheism implies the certainty of one’s belief in it, and will strike believers as “wrong.” Coexistence without offense or controversy is possible (and advised!), but like so many other things in life, it takes two to tango.

History is full of examples of the faithful taking offense, and then taking up arms, against those viewpoints, religious or scientific, that tend to disprove or work against their faith. The heretic’s intent is almost beside the point. Neither Copernicus, nor Galilelo, nor Darwin (maybe) were looking for a fight, but because the fact or appearance of questioning religion are both viewed by the faithful as anathema, offensive, and mortally sinful, they found a fight. For the truly “faithful,” a heretic’s mere existence is a provocation.

This problem is precisely the reason that atheism, or at least official agnosticism, represent attractive ideologies at the national level. The fathers of the Enlightenment understood religion’s abnormal capacity to generate controversy, and so struggled to avoid its establishment at the state level, as did the fathers of our country. Official pluralism, or official neutrality, are the only ways to avoid religious wars, but this solution fails to trickle down to the personal level. There, if you are an atheist, surrounded by theists, only your complete silence will prevent offense. Because self-censorship is unacceptable, the only solution is to politely broach the subject of one’s identity, avoid deliberate offense, and make clear that whatever offense is generated is wholly brought by the other side. Religious conflict is almost unavoidable — and this is a problem that John Lennon understood all too well:

Imagine [. . .] nothing to kill or die for;
and no religion, too.

Full disclosure: I’m not an atheist, but many of my friends are, and because I’ll more often than not agree with their positions, I share their interests. And, I’m fortunate enough to count Jesse and his sister among my good friends.

Fox Stalls Glee; Censors Gay Cast Member

Showing once more the business acumen that killed Firefly, Arrested Development, Futurama, and Family Guy — but keeps The Simpsons going ten seasons after it stopped being funny — Fox decided this week to put Glee on hiatus, effective 12/9/09 through 4/13/10, to make room for American Idol. Apparently, neither profitability nor objective quality will stop Fox from gambling a show’s future on a whim.

This amidst news that Fox executives have kept a close watch on Chris Colfer (“Kurt,” the flamboyantly gay singer/football star). Chris himself is gay, which the network  has tried to keep under wraps, to the point of censoring quotes in interviews that appeared supportive of gay rights, and raised the issue of the very real dangers faced by “out” gay teenagers. The given reason for canceling the quotes (“protecting” Chris) don’t match the edit point. To hell with Carrie Prejean: here’s a real case of a star being muzzled by a politically-sensitive network.

The decision to risk Glee proves that Fox will stop at nothing to mess up every popular but off-the-beaten-path show that come before it. Because of its astronomical ratings, though, and iTunes-driven hyper-profitability, there’s a good chance Glee will survive, despite Fox’s best efforts. Keep the show strong — buy the songs, buy the episodes on iTunes if you can, and — of course — don’t stop believin’.

The Strange, Ill-Informed Cowardice of Phyllis Schlafly

Apparently you all didn’t find the special congressional race in upstate New York — or its would-be recount, and the potential fallout for New York’s new voting systems — all that interesting. For shame! That stuff was cool. Anyways, in partial atonement for my sins, this commentary on Phyllis Schlafly’s latest insanity (h/t Pi).  – Ed.

Federal courts play a curious part in modern America. Post-Brown, they can be engines of great good, leading the nation to justice in spite of herself, or, with just as much nobility of purpose, they can push too hard, galvanizing a dying movement and forcing culture war combatants back to the trenches.

What’s to be done? For hard-line conservatives, the answer, as in so many other cases, is to give up. Hence the far-right fascination with “jurisdiction-stripping,” the process by which Congress restricts the federal courts’ trial or appellate jurisdiction over particular issues. Strip all federal jurisdiction over school prayer, and bam! Problem solved, so much for that pesky First Amendment!

While a move like that would be troubling indeed, jurisdiction stripping has its uses. It’s a hell of a way to control docket congestion: with one stroke, Congress could (but won’t) eliminate wasteful and insulting litigation. And it’s not without history: during Reconstruction, Congress revoked military detainees’ rights to petition the Supreme Court directly for habeas corpus (ordinary habeas remained undisturbed). See Ex Parte McCardle, 74 U.S. 506 (1869). More recently, the Military Commissions Act of 2006 stripped federal courts of the ability to hear habeas petitions brought by Guantanamo detainees (§ 7) — before this provision, specifically, was ruled unconstitutional. Boumediene v. Bush, 558 U.S. ___ (2008).

Schlafly’s article — advocating for a re-stripping of federal jurisdiction over detainee trials — is thus a fascinating look at what happens when one ignores recent Supreme Court decisions, and glosses over earlier history. Boumediene, decided just over a year ago, explicitly forbids her proposed solution, and McCardle, upon which better-educated advocates of her position usually rely, doesn’t help, if you look just below the surface. The McCardle Court did little more than eliminate a novel vehicle for habeas corpus — it never terminated habeas altogether.

Besides, fear — be it of the deranged ramblings of a madman, or of a potential acquittal that’ll never happen — is a poor reason to do anything, and a particularly abysmal reason to surrender our values, and begin putting conditions on our faith in democracy.

For Glenn Beck, Which Comes First? Conservatism, or Sexism?

Tyranny always contains the seeds of its own downfall.

Sarah Palin is a disaster. But not because she’s a woman. Beck apparently came to the right conclusion for the way wrong reason.

The Nondelegation Doctrine in New York

It sure took some time, but New York’s latest financial crisis seems to have brought out the Machiavelli in Governor Paterson. Yesterday, after weeks of negotiating with the legislature over budget cuts, Paterson proposed a bill that would let the legislature “punt” the question to him. With the legislature’s carte blanche, Paterson’s staff and cabinet would unilaterally make cuts, effective upon his execution.

Of course, it’s never going to happen: if the legislature won’t make a decision with Paterson, why would they let him make the decision without them? But the bill sends a message — “if the legislature lacks the courage to make the necessary cuts, I’ll do it” — clearly designed portray Paterson as the exasperated but genuine public servant, just trying to get something done, and to hell with the cost.

Unfortunately, the cost may be the state constitution (kudos to Assemblymember Lancman for picking up on the constitutional issue — but might we tone down the Beckian rhetoric?).

One of the (few) ways in which modern constitutionalism preserves untarnished the Montesquieu/Locke “classical” model of separation of powers is to prevent the complete fusion of the legislative and executive powers: the legislature may not completely abdicate its authority to the executive. The legislature may partially delegate its authority to agencies under executive control, but only if the surrender of power comes with the guidance of an “intelligible principle,” thus preventing the executive from ever overstepping the scope of the delegation. See A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935).

The “nondelegation doctrine” — per Schechter — finds its textual hook in the Congress’ “vesting” clause. See U.S. Const., Art. I, § 1 (“All legislative powers herein granted shall be vested in a Congress of the United States…”). New York substantially duplicates that language, at Art. III, § 1. Our state constitution even adds another, more explicit ban on outright delegation, providing that “no law shall be enacted except by bill.” N.Y. Const., Art. III, § 13. Nondelegation concerns apply with more, not less force in New York.

We haven’t seen many nondelegation doctrine cases lately. In fact, the doctrine’s often thought of as dead. Modern agencies take more and more discretion from the legislature, and that’s probably a bad thing (a subject for another day). But we also don’t often see attempts to delegate as much power as Paterson is proposing.

Modern democracy necessitates muddying classical separation theory — but only to a certain extent. Still, the prohibition against the fusion of the executive and legislative powers is ancient indeed, and with good cause.* Paterson’s bill sends a compelling public relations message, but espouses a theory of legislation that ought not come to pass, and will not.

Testing…

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More than a Feeling

The right’s ever-present critiques of “judicial activism” are probably best understood as expressing discomfort with the notion of the Constitution as a sword, a way of not just halting, but affirmatively rolling back prior encroachments by the majority into the minority’s solace. How curious, then, that Obama’s ascendancy would coincide with conservative attempts to use the Constitution as a means of social change — in the opposite direction, and without the intellectual backing that continues to power the progressive Constitution.

More and more, we hear conservatives tout the Constitution as a document of “limited government,” therefore antithetical to everything President Obama stands for (e.g.). Although we’ve previously addressed that question specifically, and legally, we might be giving our opponents too much credit. While the Constitution does create a “limited government,” no conservative commentator has ever truly traced the logical steps between that point and the conclusion that, say, health care reform would be unconstitutional. Rather, most commentators seem content to rest conservatism’s case on the general sentiment that government is and ought to be “limited,” whatever that means.

For a political theory premised elsewhere on the idea that constitutional “feelings” shouldn’t compel constitutional rules, this intellectual laziness is unforgivable. The “rights” revolution that, over the course of the twentieth century, transformed the Constitution into a profoundly countermajoritarian document relied upon a rigorously intellectual attempt to re-ground the Constitution in democratic theory, addressing its flaws while preserving its strengths. At the movement level, progressive rhetoric on rights has always been accompanied by well-grounded legal arguments, originalist or otherwise. By omitting this intellectual core and proceeding on rhetoric alone, the conservative “limited government” movement manages to do little more than become their own straw-man version of liberalism in reverse.

The Constitution was drafted by men who understood that sentiments and feelings have little meaning unless reduced to rules by which we must all abide. The 20th century’s progressive leaders — those men and women who gave us Brown v. Board, Loving v. Virginia, and a new way of addressing the countermajoritian difficulty — appreciated the distinction.  Middle-aged men dressed up as Revolutionary soldiers, waving the Gadsden Flag and wielding Obama/Joker posters, can hardly claim to be the equal of either.

Republican Party Fails its Own Test

For the Republican Party, the gap between image and reality widened again yesterday, with the RNC’s decision to promulgate a “test” for whether or not a candidate can be properly termed a “Republican,” and receive the party’s blessing. Apparently, following a bit of complex calculus derived by Pres. Reagan himself, any candidate ought to meet eight of  the ten following criteria before asking for RNC money, or thinking themselves safe from inevitable betrayal, without regard for the nuances that animate American regional politics (“Scozzafava-ing”). Without further ado, the requirements:

1. Smaller government, smaller national debt, lower deficits and lower taxes by opposing bills like Obama’s “stimulus” bill
2. Market-based health care reform and oppose Obama-style government run healthcare
3. Market-based energy reforms by opposing cap and trade legislation<!–
4. Workers’ right to secret ballot by opposing card check
5. Legal immigration and assimilation into American society by opposing amnesty for illegal immigrants
6. Victory in Iraq and Afghanistan by supporting military-recommended troop surges
7. Containment of Iran and North Korea, particularly effective action to eliminate their nuclear weapons threat
8. Retention of the Defense of Marriage Act
9. Protecting the lives of vulnerable persons by opposing health care rationing and denial of health care and government funding of abortion
10. The right to keep and bear arms by opposing government restrictions on gun ownership

Well, let’s see how recent leaders stack up!

• Pres. Ronald Reagan (FAIL): loses 1 (increased deficit); 7 (met with Soviet leaders without preconditions, funded terrorists); 9 (did little but talk on abortion).
• Pres. George W. Bush (FAIL): loses 1 (increased deficit); 5 (pushed for “amnesty”); 6 (stalled on “the surge” until McCain pushed him into it).
• Sen. John McCain (R-AZ) (PASS): loses 1 (voted for the bailout); 5 (pushed for “amnesty”).

This is easy, because almost every Republican in the last 20 years will fail #1, at least. Remember, contrary magazine-style “purity quizzes” notwithstanding, Republicans treat McCain as the emblematic “RINO,” and Reagan as God himself. Please, add your own!