Jerks

WorldNetDaily Hates Sex Now, Too

Conservative blog WorldNetDaily caught flak last week for printing a post by Pat Buchanan, reviving the old anti-Semitic meme that Jews exercise power out of proportion to their numbers:

If Kagan is confirmed, Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats. Is this the Democrats’ idea of diversity?

If we focus on Buchanan’s post, though, we risk forgetting that everything on WND is entirely insane — like this post, on the 50th anniversary of The Pill, excoriating women for having sex. Apparently, that women want or enjoy sex makes them no better than an animal:

I’ve seen the argument that sex is a natural part of human nature and to deny our urges is stupid and old-fashioned. “Why is sex made to be this big, sacred thing?” asks an Irish reader commenting on Welch’s article. “It’s completely natural, and if people want to sleep around that’s their business. Also, blaming the Pill is stupid. People had sex before contraception was invented, and what has it got to do with marriage anyway?”

Sure, go ahead and rut like an animal, sweetie. I hope it makes you feel empowered.

Are feminists telling me they can’t control themselves? That, like our cow in heat, they are mindlessly controlled by hormones? That they are incapable of keeping their pants on and therefore need artificial methods to allow them to advance their careers between sessions of mindless rutting? This is empowerment?

This could be forgiven as a general exhortation that we of both genders behave ourselves, and restrain our sexual impulses out of some paleo-conservative, neo-Platonic desire to focus on intellectual pursuits, like watching Glenn Beck, or reading WorldNetDaily. But male promiscuousness is generally forgiven, or expected, as the columnist acknowledges, and regardless, isn’t affected by the Pill. It’s women who benefit from medical advances such as the Pill, and women alone whose desires are cast as blameworthy and inhuman. This isn’t “standing athwart history”; it’s trying to roll back the clock to a time when the female orgasm was an unspoken horror, and women submitted to, rather than participated in, their partner’s sexual desires. Those days are behind us, and we, men, women, and couples, are better for it. If feminism, equality, and modernity are to have any meaning, they must mean that we stop blaming women for their own humanity.

But Pericles, Have You Gotten a Load of the Many?

In Alabama’s Republican gubernatorial primary, the central issue appears to be the slanderous allegation that Bradley Byrne may not, in fact, be a creationist:

He’s here to assure you that he is:

As a Christian and as a public servant, I have never wavered in my belief that this world and everything in it is a masterpiece created by the hands of God. As a member of the Alabama Board of Education, the record clearly shows that I fought to ensure the teaching of creationism in our school text books. Those who attack me have distorted, twisted and misrepresented my comments and are spewing utter lies to the people of this state.

This is where we are as a people. It’s now a good thing to promise your constituents that you’ll bend or break the law to teach a shallow creation myth as historical and scientific fact, thus contravening all sensible theology, risking expensive litigation, misleading students, treating them as pawns in a culture war in which they have no stake, and crippling the state’s scientific competitiveness. In stories like this one, we can see clearly the death of democracy.

Thanks to N.P. for acquainting me with the title line, Socrates’ famous rejoinder.

Reclaiming the Constitution… From the Supreme Court?

Huh?

The National Review’s culture war blog, The Corner, makes little sense on its best days. But a new soon-to-be series, headlined by Rob Clinton’s “Judicial Supremacy and the Constitution,” appears to transcend the genre of reactionary, paleoconservative folklore, even as it re-invents it. Truly, Clinton’s opener may well approach the Form of political absurdity, from which all lesser daemons — your Goldbergs, your Becks — emanate. We can only pray that he’ll be re-secured to the wall of his cave, and fast.

N.B.: this is a long post. Skip to § III for the beginning of the main argument, if you must. -Ed.

Continue reading »

By Republican Logic, What Else Is Unconstitutional?

CNN’s newest correspondent, Erick Erickson of RedState, offers this explanation of why the new healthcare act is unconstitutional:

Insurance contracts are not within the stream of interstate commerce. That’s why when you buy insurance for your house, your car, or your health you deal with state insurance commissioners, not a federal insurance czar.

Congress does not really regulate insurance contracts. They are contractual obligations at the state level, not goods and services in the stream of commerce. So can Congress then force you to buy a product not in interstate commerce to regulate interstate commerce, when insurance regulations are clearly within the purview of the states?

He goes on to argue that, a fortiori, this means that you’re now a slave. To a black man. Yeah, the rest of the article is worth a read, and it’s not race-baiting at all. Three cheers for intellectual integrity!

Anyways, try to parse the law from the rhetoric. It’s not easy, but Erickson’s argument seems to be that insurance contracts are regulated by the states, and therefore not “interstate”; and further, they’re not “goods,” and therefore not within the stream of commerce anyways, so neither do they constitute “commerce.” Let’s unpack and apply.

If state regulation rebutted the interstate quality of a good, nothing would be within Congress’ power. Most regulatory regimes consist of overlapping zones of federal and state power. For example, federal securities laws, like § 10(b) of the Exchange Act and its critical Rule 10b-5, coincide with state “Blue Sky” laws to create a regime for the punishment of fraud. None dispute that, despite state “Blue Sky” laws and strong state regulation, these financial products constitute “interstate”

In much the same way, “contractual obligations” are most certainly commerce, and comprise the greater part of the American economy. When I walk to work in the morning, I don’t pass factories: I pass securities clearinghouses, and the law firms that represent them. If you live in a city, you do too. These financial products enter the stream of commerce and have the potential to enrich, or wreak havoc on, the parties that control and are controlled by them. None dispute that they constitute commerce.

But under Erickson’s view of the Constitution, because they supplement or preempt state solutions, and concern neither goods nor services in the traditional sense, the Securities Act of ’33, the Exchange Act of ’34, and all related acts are flat-out unconstitutional.

Similarly, if you work for a large company, or state government, odds are your retirement plan is backed by the federal ERISA regime (Employee Retirement Income Savings Act). This is a good thing. It’s like an FDIC for your pension — at least in that it’s a safety net, and requires state-law plans to meet certain federal minima to guarantee solvency. Under Erickson’s logic, ERISA is gone too.

Erickson’s is not a responsible way of looking at the world. Going beyond these examples, Erickson’s reasoning would gut the Department of Labor — so long OSHA Occupational Safety and Health Act), FLSA (Fair Labor Standards Act), etcetera. That means a return to child labor, and a thousand new Triangle Shirtwaist incidents.

This is the world in which the newly mainstreamed, radical right wants you to live: a world where the Progressive Era and the 20th century never happened, where employees and families remain at the mercy of the unregulated market. The 1800s were not a happy time. We forget that at our peril, and repeat it at our pain.

CNN — fire this man.

RedState Insults the Declaration of Independence

From Erick Erickson, somehow a CNN correspondent now, for no goddamn reason:

But whether this legislation actually passes or not, the GOP can now do a couple of things:

1. Pledge immediate repeal in toto of Obamacare should it pass. No nibbling at the edges — the whole thing and we pledge our lives, fortunes, and honor to crushing any member of Republican leadership who refuses to get on the full repeal bandwagon.

From the Declaration:

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Now, I don’t begrudge conservatives their right to play dress-up, but this is a bridge too far. The Founders’ pledge of “our Lives, our Fortunes, and our sacred Honor,” was a literal pledge: by putting their names to the document, they in fact gave up their lives, and in fact committed all their resources to the defeat of an implacable foe who, if victorious, would lynch them, their families, and their friends, before surely decimating the country they sought to free.

By way of comparison, Erickson writes a blog. There, he tells people to send gag gifts to unpopular politicians, and calls Supreme Court justices pedophiles. Especially because his honor was long ago forfeit, he has nothing on the line here. It’s fine to spin pathos-laced equivalences with the Revolutionary War era, but to pretend that you’re actually risking as much as they did, well, that’s just insulting.

Against the Great Weight of Authority, and of History: Gingrich on Terror

There’s an old saying among litigators:

If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.

Not the best of advice — but it does have the virtue of explaining Newt Gingrich’s latest arguments on national security. Two days ago, Gingrich took to the Daily Show to argue against extending any rights to terror detainees. To exculpate Bush’s conduct on the same, Gingrich had to distinguish between Richard Reid (dealt with as a criminal under Bush), and Abdulmutallab (to be dealt with as a criminal under Obama).  He promptly got his facts wrong — not once, but twice — and, as on other areas, simply threw Bush under the bus.

Good! But Gingrich’s larger argument, that terrorists should be dealt with in a military framework at all times, ignores the fact that civil detention is not in a zero-sum relationship with larger counterterror goals , and glosses over an entire jurisprudence that doesn’t truly offer a President many options. Terrorists can be detained as combatants or as criminals, but one way or another, they’re going to get to a federal court. Obama’s decision to try Abdulmutallab in federal court, along with other lower-risk detainees, simply acknowledges this fact, and attempts to more fully validate the rule of law, and the simpler constitutional rules associated with criminal trials, whenever possible. This shouldn’t be controversial — especially from a limited government perspective. A worldview that won’t trust the government with money, but argues for unlimited trust on matters related to human dignity, goes awry at a fundamental level.

We should reject as false, as well, the idea that human dignity only attaches to our citizens. America was emphatically not built for the comfort of Americans alone. The Founders intended this country as nothing less than a complete restructuring of the relationship between sovereign and governed, with America as an experiment for the world to emulate. It serves this purpose to play by our own rules whenever possible.

Which leads, again, to the point that neither facts nor law support the conclusion that we must offer our enemies less legal protections than President Obama would now offer them. We must conclude that Gingrich is either unaware of the relevant facts, or that he regards limitations on civil rights as their own good. I don’t know which is worse.

Keith Olbermann is Officially Our Erick Erickson: to Hell with them Both

Whether it’s Jonah Golberg and Glenn Beck making “liberals” out to be “fascists,” or Keith Olbermann and Erick Erickson comparing their least favorite Supreme Court decisions to Scott v. Sanford (“Dred Scott”), it ought to be possible to criticize our political opponents without comparing them to the worst parts of human history.

Keith Olbermann’s equivalence between Citizens United and Dred Scott is particularly reprehensible. Although I most certainly don’t, if you buy Erickson’s premise — that every fetus is a human life — it actually makes sense to compare Roe to Scott, as a matter of scale if not of taste. But despite the obvious flaws in Citizens United, and the deleterious effects it shall surely work on the political process, it comes nowhere close to the evils of Scott, which literally multiply with every reading. The time has come for us to stop tolerating extremists on either side. If we’re going to boycott Glenn Beck, we should at least try to moderate Olbermann, or push him out of the mainstream.

Michael Savage Ghostwriter: Kennedy’s Death “Divine Intervention”

Also, swine flu was a conspiracy to push the public towards “socialized” medicine, and only “slutty” women get abortions. Ah, to live in such a simple, apocalyptic world!

National Review: Equality Isn’t American

To argue that gay men and women do not deserve equality, The Corner‘s Will Duncan quotes admiringly James Fenimore Cooper’s The American Democrat, for what he thinks is Cooper’s argument that equality isn’t a true American value:

Equality is no where laid down as a governing principle of the institutions of the United States, neither the word, nor any inference that can be fairly deduced from its meaning, occurring in the constitution. As respect the states, themselves, the professions of an equality of rights are more clear, and slavery excepted, the intention in all their governments is to maintain it, as far as practicable, though equality of condition is no where mentioned, all political economists knowing that it is unattainable, if, indeed, it be desirable. Desirable in practice, it can hardly be, since the result would be to force all down to the level of the lowest.

Of course, Cooper predated the Fourteenth Amendment, which functions to insert the word “equal” before almost every clause of the document. Further, in context, Cooper only disclaims equality of result, or “social” equality, while championing political and civil equality (for all but slaves and women):

As regards all political institutions men are born equal, no sophistry being able to prove that nature intended one should inherit power and wealth, another slavery and want. [. . . .] All that the great American proposition, therefore, can mean, is to set up new and juster notions of natural rights than those which existed previously…

Cooper is quite right that society can’t make all men equal in wealth, social standing, and happiness, and maybe it shouldn’t strive to do so, either. But the Founders, Cooper, and the drafters of the Fourteenth Amendment all believed that men should be equal before the law, i.e., possess political and civil equality. This implies equal access to legal institutions, like marriage. This distinction is critical, especially in nineteenth century thinking, and one that National Review‘s crack team of faux-intellectuals can’t seem to pierce.

To be perfectly clear, gay Americans, like blacks and women before them, aren’t asking for us to like them. They’re asking for the chance to live normal lives, free of arbitrary restraint. That pointedly is the American dream.

Crime, War, and Punishment: No Easy Paradigm for Counterterrorism Work

Continuing conservative America’s latest trend — selectively remembering everything that happened before January 20, 2009 — RedState’s Erick Erickson today excoriated President Obama for daring to try the Christmas Day bomber, Umar Abdulmuttalab, as a criminal, because these proceedings will entitle him to a lawyer, and the right to reach a compromise with prosecutors through a plea bargain. According to Erickson,

Bush decided to send foreign terrorist enemies to GTMO for questioning by the military and, in a few cases, to be water boarded to get answers.

Sure. But Bush also saw to it that Richard Reid, the “shoe bomber,” whose situation most closely matches that of Mr. Abdulmuttalab, was tried in federal court and sentenced to life in prison without parole, where he remains to this day.

RedState distorting history isn’t new, and it isn’t really that exciting. But the question of whether we should try terrorists as criminals is interesting, and deserves an answer. The issue is essentially this: what paradigm should we use to fight terror? The warfare model, where detainees are treated as prisoners of war (or less), or the crimefighting paradigm, where detainees are entitled to the full protections of the criminal system?

Erickson’s fault, one duplicated by players on the right and on the left, is assuming that there must be one easy answer. There can’t be. Facts on the ground in Afghanistan most closely match a real shooting war — even if the enemy isn’t necessarily a state actor, day-to-day life comports with a traditional state of war. Accordingly it’s quite natural to expect that, on the battlefield, soldiers will (and should) shoot first, and detain prisoners with something less than the protections afforded criminal defendants.

On the other hand, settled law prevents the warfare paradigm from operating on American soil. In Boumediene v. Bush, the Supreme Court held that terrorists must be afforded some level of due process, depending on the exigencies of their particular situation, but always entitling detainees held within American sovereign territory to seek a writ of habeas corpus, or a similar instrument. Similarly, since President Lincoln’s time, and the Posse Comitatus Act, the army has had no law enforcement power on American soil. Violations of American laws on American soil are criminal acts thats, when the harm terminates or is prevented, must be redressed within the crimefighting paradigm.

To date, the crimefighting paradigm has proven quite effective to address problems like Mr. Reid, and Mr. Abdulmuttalab. Erickson assumes that lawyers and plea bargains will result in acquittals, or the release of the accused terrorist — but this assumption betrays a fundamental mistrust of the rule of law. The outcome of a criminal trial is committed to the discretion of the people (through the prosecuting attorney) and the court. The defendant plays a part, but he does not determine his own fate. Defense lawyers can offer plea bargains, and make arguments, but courts and prosecutors must accept both before either can matter. Erickson’s interpretation reads these safeguards out of the process, and treats lawyers as “get out of jail free” cards.

I expect that opinion bleeds over into a distrust of criminal law generally. If that’s the case, we may query to what extent Mr. Erickson, himself, believes in his country.