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Saturday, May 24, 2008
Which Side Are the Sexists On?
Donald Boudreaux ponders the implications of Senator Hillary Clinton's claim that her difficulties in the Democratic primaries are due to sexism.
So a woman who holds degrees from Wellesley and Yale – who has earned millions in the private sector, won two terms in the U.S. Senate, and gathered many more votes than John Edwards, Bill Richardson and several other middle-aged white guys in their respective bids for the 2008 Democratic nomination – feels cheated because she's a woman.
Seems doubtful. But hey, I'm a guy and perhaps hopelessly insensitive. So let's give her the benefit of the doubt and assume that her campaign has indeed suffered because of sexism.
This fact (if it be a fact) reveals a hitherto unknown, ugly truth about the Democratic Party. The alleged bastion of modern liberalism, toleration and diversity is full of (to use Mrs. Clinton's own phrase) "people who are nothing but misogynists." Large numbers of Democratic voters are sexists. Who knew?
But here's another revelation. If Mrs. Clinton is correct that she is more likely than Barack Obama to defeat John McCain in November, that implies Republicans and independents are less sexist than Democrats.
Meanwhile, Camille Paglia says "sexism has nothing to do it."
Hagee on Hagee:
Hagee explains his remarks on the Holocaust:
What has been disappointing has been to see my life's work - the great passion of my life - mischaracterized and attacked. I have dedicated my life to combating anti-Semitism and supporting the State of Israel. In taking a stand for Israel I have received death threats from anti-Semites and neo-Nazis, and I've had the windows of my car blown out beneath the windows of the rooms in which my children slept. To hear people who know nothing about me or my life's work claim that I somehow excuse the Holocaust is simply heartbreaking.
Let me be clear — to assert that I in any way condone the Holocaust or that monster Adolf Hitler is the worst of lies. I have always condemned the horrors of the Holocaust in the strongest of terms. But even more importantly, my abhorrence of the Holocaust and anti-Semitism has never stopped with mere words.
I have devoted most of my adult life to ensuring that there will never be a second Holocaust. I have worked tirelessly to eliminate the sin of anti-Semitism from the Christian world and to ensure the survival of the State of Israel.
The fact is that all people of faith have had to wrestle with the question of why a sovereign God would allow evil in the world. After Auschwitz, this question became more urgent than ever.
Many people simply could not explain how a loving God would permit such horrors. After the Holocaust, they abandoned their faith in a sovereign God who intervenes here on earth. While I disagree with this conclusion, I would never denigrate those who arrived at such a conclusion.
But I and many millions of Christians and Jews came to a different conclusion. We maintained our faith in a sovereign God who allows both the good and the evil that is in the world. We therefore search the scriptures for an explanation for that evil. We believe that the words of the Hebrew prophets such as Jeremiah may help us understand the mind of God. But our search for an explanation for evil must never be confused with an effort to excuse it.
H/T: Rosner
Friday, May 23, 2008
Does Religious Belief Increase Happiness?
Todd's excellent recent post on academics and happiness also raises the much broader question of whether religious belief causes happiness. Some studies, including Arthur Brooks' recent important work, do claim to show a correlation between the two. However, the argument that this proves that being religious makes you happier has two serious flaws.
I. Correlation vs. Causation.
First, even if we prove that there is a correlation between religious belief and happiness, that is not the same thing as proving causation. It could be that people who are happy for reasons unrelated to religion are more likely to be religious. There are a number of plausible scenarios under which this theory would be true. For example, it may be that a tendency towards social conformity makes people happier because they clash less with social norms and the people around them. And conformists are more likely to be religious than nonconformists (at least in an overwhelmingly religious society such as the US). An interesting test of this hypothesis would be to see whether religious believers are (controlling for other variables) happier than atheists in majority-atheist societies such as Denmark, Japan, and the Czech Republic.
II. Measuring Religious Belief vs. Measuring Attendance at Religious Services.
Second, and much more important, the studies do not in fact find even a correlation between happiness and religious belief. What they show is a correlation between happiness and attendance at religious services. For example, Brooks, in the article linked above, shows that "religious" people are much more likely to report being "very happy" in surveys than "secular" people. However, he defines "religious" people as those who say they "attend houses of worship at least once per week" and "secular" as those who say they "never" attend houses of worship.
This is a crucial distinction. It is highly likely that all Brooks' work and other similar studies have shown is that religious believers who go to services regularly are happier than those believers who never do so. Brooks' "secular" category includes some 20 percent of the American population. Yet other survey data shows that atheists and agnostics make up only about 3 to 9 percent of the population. Even if all the atheists and agnostics in Brooks' survey were counted as "secular," it would still be the case that the vast majority of his "secular" respondents (at least 55%), are in fact religious believers who don't go to services. Moreover, many atheists and agnostics do attend religious services at least occasionally (e.g. - for family or social reasons), and so would not be included in Brooks' "secular" category. Some would even be categorized as "religious." I have an atheist friend who regularly attends religious services with her believer husband. In Brooks' study, she would be considered "religious," even though she denies the existence of God and doesn't believe that the precepts of her husband's religion (or any religion) are actually true.
Why would believers who attend services be happier than those who never do? There are many possible reasons, and some of the most plausible ones do not apply with equal force to nonattendance by atheists and agnostics. For example, attendance at religious services is a social activity. We know from a great deal of social science evidence that people who build up "social capital" by participating in social and community activities tend to be happier than those who do. Understandably, religious people with high social capital will tend to participate in religiously-oriented groups. Equally understandably, atheists and agnostics will tend to focus on secular ones. For a religious believer, never attending services is a strong indication of low participation in social activities more generally. For an atheist or agnostic, it might just be an indication that he participates in secular activities instead.
Similarly, many religious people believe that they have a duty to attend services. Those who believe they have such a duty but never live up to it may well be down on themselves for what they perceive to be their own immoral conduct. Almost by definition, atheists and agnostics do not believe they have any moral duty to attend religious services. So they are extremely unlikely to engage in self-recrimination for failing to do so.
III. Limitations of the Argument.
It's important to be clear about the limitations of my argument. I'm not saying that the evidence shows that atheists are happier than religious believers. I'm not even saying Brooks' hypothesis that religious belief makes one happier is provably false. All I'm suggesting is that the evidence he presents doesn't substantiate it.
I'm also not suggesting that the lack of a connection between religious belief and happiness proves that religion is false. The validity of belief in God is independent of whether nor not such belief makes people happy. The same is true for the validity of atheism. I am an atheist because I think logic and evidence support the conclusion that God doesn't exist, not because I think that being an atheist will make me happy.
In fact, it's perfectly possible for belief in imaginary beings to increase happiness. For example, many children are probably happier because of their belief in Santa Claus or the Tooth Fairy. When they learn the truth, they tend to be disappointed, and their level of happiness declines (at least for a time). By contrast, belief in real beings is sometimes more unpleasant than blissful ignorance of their existence. For example, many Americans might be happier if they didn't know about Osama Bin Laden and therefore didn't have to worry about the threat he poses. The truth may set you free. But it won't always make you happy.
UPDATE: In his article linked above, Brooks also notes that "people who pray every day are a third likelier to be very happy than those who never pray, whether or not they attend services." To my mind, this means of measuring religiosity is not sufficiently distinct from attending services. Like attendance at services, regular prayer is also often a social activity (e.g. - many people do it with their families and friends), and is thus likely to be correlated with "social capital." Similarly, many of those who say they "never" pray are likely to be religious believers rather than atheists or agnostics. They may simply belong to religions that don't require prayer; or they doubt its effectiveness despite belonging to denominations that hold otherwise. Thus, Brooks' use of the prayer variable likely proves only that religious people who pray regularly tend to be happie than those religious people who don't. Brooks himself offers a plausible explanation for this result when he notes (in a different context) that "what makes some religious people unhappy is an image of God as severe, unloving or distant . . . regular churchgoers who feel 'very close to God' are 27% more likely to be very happy than churchgoers who do not feel very close to God." If you are religious and believe that God is likely to answer your prayers, that may well make you happier than you would be if you believed in God but thought that he is - in Brooks' words - "severe, unloving, or distant." But that fact says little about the effects on happiness of not believing in God at all.
America, the Beautiful (What Comes After?)
Citizenship is a tough subject to address as an academic or otherwise. The popular ivory-tower conception of academics notwithstanding, most have nationality and are proud of it (liberals and conservatives alike). Most academics addressing American citizenship as an institution are themselves American. That makes it tough to have the sort of dispassionate discussion one might be able to have with respect to, say, copyright law. Everyone’s got something invested in citizenship. Nobody’s “against” it, in contrast to the related but distinct issue of immigration policy; it’s a consensus institution.
Which says a lot about its continuing vitality, and about the continuing vitality of American citizenship and national community in particular. Citizenship will be around in some form for a long time to come. There’s a lot of which to be proud in America’s history. The nation-state is a massive, perhaps unparalleled, achievement in the span of human history. And the United States surely marks its highpoint.
But that doesn’t necessarily make it for all time. There’s a natural tendency on the part of humans (and especially academics) to believe that they live in interesting times (even at the same time that it’s held out as a curse). But even discounting for that tendency, we may be witnessing watershed developments that point away from the state and towards other forms of association. It seems to me that academics can add some value by looking beyond immediate policy horizons to grappling with the shift and its many implications.
So what lies beyond citizenship in the state? One thing’s clear: it won’t be some sort of happy-go-lucky world citizenship. Community is inherent to our existence but community isn’t possible without difference. People will continue to distinguish themselves from each other on a group basis, and groups will find themselves in conflict. You can think of the Westphalian system as a sort of multiculturalism on a global scale, with sovereignty as a shield for protecting group difference. The new order we may be moving towards might be a more familiar sort of multiculturalism, beyond the confines of the state.
Can the lessons of citizenship in the state translate to new forms of association (or old ones, like religion) whose importance is rising relative to states? Even if we aren’t moving towards one-world government on the model of the state, how can citizenship translate to newly consequential supranational institutions? I close with some thoughts on that in Beyond Citizenship, and that’s where I’ll close here.
I’ve enjoyed blogging this week at VC, and thanks to commenters (excepting those who accused me of treason!) and to Eugene for hosting me here.
Academics and Happiness Revisited:
Todd makes many good points in his recent post on academics and happiness. I think that Todd is absolutely right that, relative to the general economy, the academic economy tends to be status-based. He is also right that the struggle for status among academics tends to generate unhappiness because it is inherently a zero-sum game. My status can't rise unless some other academic's status falls.
That said, I don't think this proves that academics, overall, are less happy than members of other professions. The zero-sum conflict over status is a source of unhappiness that is more prevalent in academia than elsewhere. But academia also offers unique opportunities for happiness that most other professions don't have, or at least not to the same extent. These include the ability to work on ideas that interest you, controlling your own schedule, and influencing public debate.
For the reasons I discussed in this post, I therefore continue to believe that, on balance, academics are no more unhappy with their jobs then people working in most other professions.
The status problem and other arguments claiming that academics are unhappy because of the nature of their jobs should be rigorously distinguished from claims that academics are unhappy because the people who go into academia tend to be unhappy for reasons unrelated to their jobs. Todd's argument that academics tend to be unhappy because they are disproportionately nonreligious falls into the latter category. Or at least it does so unless one claims that nonreligious academics lost their faith as a result of going into academia. I would guess, however, that most nonreligious academics held those beliefs even before they took academic jobs.
My view on academics' happiness is that they are generally happier with their jobs than professionals in most other fields. I am agnostic on the question of where academics' overall happiness with their lives ranks.
Men, Women, and Same-Sex Marriage:
I was under the impression that women tended to oppose same-sex marriage less than men did; consider, for instance, the July 13-27, 2003 poll noted here, in which oppose exceeded favor among women by 12%, and among men by 17%. This ABC News poll reflects the same gender gap.
It was striking, then, to see the opposite breakdown in the L.A. Times California poll. The question,
A proposed amendment to the state's Constitution that may appear on the November ballot would reverse the court's decision and state that marriage is only between a man and a woman. If the election were held today, would you vote for or against the amendment?
Men would vote for by a 43%-41% margin; women would vote for by a 58%-31% margin. As to "Do you agree or disagree with Gov. Arnold Schwarzenegger's decision to respect the court's ruling and not support a ballot initiative to define marriage as only between a man and a woman?," the disagree-agree margin for women is 7% higher than for men. As to "Do you believe that same-sex relationships between consenting adults are morally wrong, or do you believe that it is not a moral issue?," the wrong-not wrong margin for women is 13% higher than for men (though both sexes are more likely to say "not wrong" than wrong). As to "As long as two people are in love and are committed to each other, it doesn't matter if they are a same-sex couple or a heterosexual couple?," the disagree-agree margin for women is 5% higher than for men (though again both sexes are more likely to say "agree"); this last difference is likely statistically insignificant.
Oddly, as to "approve or disapprove of the California Supreme Court's decision last week to allow same-sex marriage in California," the margin is the same, 53%-42% among women and 51%-40% among men.
So some possibilities: (1) California women and men are quite different in this respect from women and men nationwide. (2) The poll was badly conducted. (3) People's views are so soft on the subject that the results aren't terribly reliable (though why would that affect the gender gap?). (4) Two or more of the above.
"Californians Barely Reject Gay Marriage,"
reads this L.A. Times headline (with "narrowly" instead of "barely" on the Web version). The opening paragraph reads, "By bare majorities, Californians reject the state Supreme Court's decision to allow same-sex marriages and back a proposed constitutional amendment aimed at the November ballot that would outlaw such unions, a Los Angeles Times/KTLA Poll has found."
It's only in paragraph 6 that reads learn that the amendment "was leading 54% to 35% among registered voters." It's true, as the paragraph says, that "ballot measures on controversial topics often lose support during the course of a campaign" and therefore "strategists typically want to start out well above the 50% support level." But despite this 54%-35% doesn't strike me as "barely"; likewise, the 52%-41% disapproval of the California Supreme Court decision doesn't seem likely "barely reject[ing]" to me.
So while 52% and 54% are indeed not much above 50%, they are much more than barely or narrowly above 41% and 35%. Formulating both the headline and the opening paragraph in terms of "barely" or "narrowly" and "bare majorities," without noting the large margins, strikes me as not the best way of presenting the data to the reader.
I should stress, by the way, that my point here is about the coverage of the poll, not about the likely November results. I suspect that the proposed amendment banning recognition of same-sex marriages will pass (assuming, as seems likely, that it will get on the ballot); but now is not November, and the voters haven't seen the campaigns on both sides. That the view "As long as two people are in love and are committed to each other, it doesn't matter if they are a same-sex couple or a heterosexual couple" polls at 59%-35% in favor suggests that public opinion may well be quite movable, if the issue is framed in that way.
Why Are Academics So Weird?
A few weeks back Ilya, Megan McArdle, and Arnold Kling had a go-around with the question of why academics are less happy in their jobs than other people. Assume for the sake of argument that is true, and I think there is some truth to it. I think I'm thinking along the same lines as Ilya, Megan, and Arnold, but here's how I think of it. This is all overgeneralized, but I think captures the essential dynamic.
Most Americans work in a money economy. The good thing about a money-based economy is that wealth is inherently a positive-sum game. Sure, there are some zero-sum aspects to it, but more money for by neighbor doesn't mean less for me. Thus, it is possible for all of us to get richer without any inherent zero-sum rivalry.
Academia, by contrast, is a status-based economy rather than a money-based economy. Status, unlike income, is an inherently zero-sum game. I can only have more status if you have less--status is all relative and positional. This means that at any given time those with less status are trying to gain more status. And those with high status are tenuously trying to hold on to their high status--with the threats coming from those with lower status trying to knock them off.
Now here's where it gets kind of twisted--given that the money-based economy is the default rule in America, who is it that are most likely to self-select into a status-based economy? You got it--those are are most motivated by status. So those who will self-select into the status-based economy are those who have a different tradeoff between status and income than the typical person. Indeed, the salary scale in academia is very flat when compared to that in other occupations, especially those comparable for academics such as law and business.
What this means is that we get those who are most obsessed and insecure about status entering into the status-based economy.
So I think this might explain some of the peculiarites of the sociology of our profession to outsiders. Outsiders often are baffled by the sorts of battles that consume academics and our obsession about things like whether our work is cited. "Who cares?" whether your article was cited asks my wife (well, she doesn't actually say it but you can tell she's thinking it). But that's the point--citations are not merely a means to higher income (as they would be in the standard economy) but in many ways they are the primary reward or income itself.
There is the old saying that "academic battles are so vicious because the stakes are so small." That's nonsense. There are middle managers all over America right this moment backstabbing each other for a nicer office or better parking space. What makes academic battles so vicious, I think, is that there is the status battle tied up in them.
Moreover, an academic's work is personal in a sense that most people's work is not. Your identity is tied to your work in a very different way from say, an electrician or a car manufacturer. It is an extension of your identity. So when your work is ignored or criticized, it is very difficult not to take it personally. Again, this reinforces the nefarious status dynamic.
So that's my view as to why academics are so weird. And why they often seem unhappy as well--it is difficult to be truly comfortable in your particular status ranking because there is always relative positioning going on. As Arnold Kling stresses, this suggests that the only way to be truly happy as an academic is to try to opt-out of the status arms-race: "Once you get on the ego treadmill, not only do you become bitter, but you have to start viewing others not for their intrinsic qualities but for their usefulness as stepping stones. If you can stay off of the ego treadmill, then success becomes more a matter of being near friends and living in an area with the type of amenities you prefer."
That's the main thing, I think. In talking about academics and happiness, however, as a purely empirical matter there is one possible other factor that might be relevant. And let me stress that this is being presented as purely correlation and not causation, positive not normative. Research indicates that those who are conservative and religious tend, on average, to be more likely to be happy than those who are not. To the extent that academics are disproportionately non-conservative and non-religious--which is plainly the case--as a purely statistical matter one would predict that academics would be less likely to be happy than the general population.
I was recently reading William F. Buckley's book Nearer, My God. He did make one interesting point in passing, which is something along the lines that he had known some people during his life who would have been happier had they known that a divine force was looking out for them. (I can't recall the exact quote as I thought the book itself pretty mediocre and got rid of it as soon as I finished reading it, so I don't have it here to reference the exact quote). But there is an interesting point here, which is that it seems that those of religious conviction are often happier and more contented with their life than others.
Critics might respond that perhaps they should be unhappier and that religion is just a delusion to keep them from confronting how terrible their plight in life is. But that's not the point--the point is that whether they should be unhappy or not, reserach indicates those who are religious in fact are happier than others and my casual observation of people suggests that conclusion seems plausible to me. I'll save my speculations on why that might be for another day (I think the argument looks something like this), and simply note here the empirical point and the plausibility to me of those empirical results.
Again, on this second point, the observation is purely an empirical conclusion, not a normative one, and would be a theory grounded in the type of people who are represented in academia rather than anything inherent in academia itself.
Update:
I should emphasize that I myself am not unhappy to be a law professor. In fact, I love it. And I've also worked in private practice and in the government. So this post is based on generalizations of those experiences.
The Demise of the Humanities:
Robert VerBruggen has a marvelous one paragraph summary of the current state of the study of the humanities in the modern university, summarizing Christopher Orlet's review of Anthony Kronman's book Education's End (got that?):
He makes the case that humanities are trending down for three reasons. One, in a tougher economy, it's not really worthwhile to spend a ton of money learning about the meaning of life instead of preparing for a career. Two, PC has taken away whatever value such moral studies used to have. Three, rather than grapple with big questions, the humanities have been focusing on minutiae.
I read Tony's book this past fall and thought it very good and very insightful. Kronman's analysis of the crippling effects of political correctness on the humanities is especially powerful. Kronman also presented the inaugural Janus Lecture this spring for the Daniel Webster Program at Dartmouth. I recommend the book for those interested in higher education today.
I don't recall Tony actually making point one above (that it is not worthwhile to spend a ton of money learning about the meaning of life) and it doesn't seem consistent with my take away from the book. The point itself, however, seems quite valid whether it is Kronman's or Orlet's. The three factors, of course, are mutually reinforcing--the triviality and PC'ness of much of the humanities contributes to the perception that they are a waste of time compared to the task of human capital development.
Maliciously Cheating on One's Lover = Soon-to-Be Felony in Missouri?
A few weeks ago, I blogged about how a proposed law in Massachusetts would (likely inadvertently) criminalize cheating on one's lover -- not just adultery, but cheating on nonmarital relationships as well. A few days ago, I blogged about how the Missouri legislature had passed a law criminalizing emotionally distressing another person.
But I completely missed the connection between the two: Under the Missouri bill (which will soon be law, assuming the Governor signs it), it will be a crime to cheat on a lover with the purpose of emotionally distressing them.
The law makes it a crime to "Without good cause engage[] in any [act other than communication] with the purpose to frighten, intimidate, or cause emotional distress to another person, [and thereby] cause such person to be frightened, intimidated, or emotionally distressed, [when] such person's response to the act is one of a person of average sensibilities considering the age of such person." Say someone cheats on one's lover in order to distress them, for instance to retaliate for the lover's past affair or other mistreatment, and then allows the lover to discover this. That's engaging in an act with the purpose of causing emotional distress to another person. It causes emotional distress. The emotional distress is what a person of average sensibilities would experience under the circumstances. And it's hard to see any "good cause" for cheating, though I suppose the defendant could try to persuade the jury to the contrary.
And it's not just cheating, in the sense of illicit sex. The same could be if you have a not-yet-sexual romantic relationship with Alan, and then let yourself be caught kissing Bob in order to distress Alan. The touchstone, after all, is just the intentional infliction of emotional distress.
But wait, there's more: Let's say that you're not trying to hurt your regular lover, but the regular lover is under seventeen (for instance, if you're both sixteen; sex among sixteen-year-olds isn't statutory rape in Missouri), and you recklessly let slip something in conversation with the regular lover that reveals your cheating. That too might be a crime, because it's "[k]nowingly communicates with another person who is ... seventeen years of age or younger and in so doing and without good cause recklessly ... caus[ing] emotional distress to such other person." I suppose that if you just confess to the lover, that probably wouldn't be a crime, since the desire to come clean might be seen as "good cause." But if you just let something slip, it's hard to see how the reckless causing of emotional distress would be seen as having a "good cause" (especially since the slip may make the cheating even more distressing than either successful concealment or a deliberate confession).
Fortunately, all this is just a class A misdemeanor -- except if you're a repeat offender: If you've been found guilty of violating the law before, subsequent violations are class D felonies.
Oh, and if you're a parent who recklessly lets slip to your under-17 child that you're cheating on the child's other parent, that's a class D felony, too, since the "[h]arassment" will have been "[c]ommitted by a person twenty-one years of age or older against a person seventeen years of age or younger."
And yes, I know that prosecutorial discretion will keep these cases from being filed often. But how much are you willing to trust prosecutors? What if the wronged lover -- or the wronged lover's parent -- is a prosecutor, or a police officer or other government official or prominent citizen who has the prosecutor's ear? What if the cheating unintentionally leads to harm (even suicide, which cheating sometimes does lead to), and the public demands retribution? Might it not be better to just avoid the problem by not passing such broad and vague laws to begin with? Related Posts (on one page): - Maliciously Cheating on One's Lover = Soon-to-Be Felony in Missouri?
- A Crime to Emotionally Distress People?
"No Charges Over [Anti-]Scientology Demo[nstration]":
The BBC reports:
Legal action has been dropped against a 15-year-old who faced prosecution for branding Scientology a "cult".
The teenager held up a sign which read, "Scientology is not a religion, it is a dangerous cult", in May outside its headquarters in the City of London.
City of London Police said it had received complaints and warned the teenager to get rid of the sign as it breached the Public Order Act.
More on the incident in this post. Here's my question:
A Crown Prosecution Service (CPS) spokesman said: "In consultation with the City of London Police, we were asked whether the sign was abusive or insulting.
"Our advice is that it is not abusive or insulting and there is no offensiveness (as opposed to criticism), neither in the idea expressed nor in the mode of expression."
Can anyone who is familiar with English law tell me what "abusive," "insulting," and "offensive," which are apparently terms of art, mean? ("Abusive" and "insulting" appears to be the statutory test; "offensive" seems to be the Crown Prosecution Service's interpretation of the terms.)
I would think that calling a religion a "cult" would be offensive and insulting in the lay sense of the word -- it may be quite right, and it should certainly be constitutionally protected, but despite its being offensive and insulting, not somehow "there is no offensiveness" there. So what's the legal rule in England about what's allowed and what's not?
Just to Make Sure I Have this Straight:
According to Brian Leiter, Phyllis Schlafly is a bigot, parochial, and an ignoramus, so much so that the fact that Rick Hills is perplexed that Leiter is so angry about her receipt of an honorary degree at Wash. U. reflects Hills's "silly prejudices."
But while Schlafly is beyond the pale because of the bigotry Leiter identifies (including rather tenuous evidence of bigotry, such as membership in the paranoid anti-Communist John Birch Society), but any criticism of Norman Finkelstein's anti-Semitic and misogynistic statements, (e.g., that leading American Jewish activists "resemble stereotypes straight out of [Nazi newspaper] Der Sturmer," and that a photo of two respected elderly Jewish women may "give you nightmares") is a "smear attack." [Update: To be fair, while Leiter thinks that Schlafly's membership in the John Birch Society and opposition to the '64 Civil Rights Act reflects bigotry, he denies that Finkelstein wrote anything anti-Semitic.]
Schlafly’s distaste for homosexuals is appalling, but pointing out that Joseph Massad argues that homosexual identity in the Arab world is purely a product of Western cultural imperialism via a conspiracy he calls "Gay International," and that Massad suggests that Arab homosexuals have basically invited Arab governments to persecute them because they are importing foreign ideologies, is a "smear attack".
And, finally, that Schlafly's hostility to evolution reflects ignorance born of ideology, but crude Marxist ideas such as "one can explain historical events by attention to how different economic classes pursue their material interests, which lead them into conflict with other economic classes" are "amply supported in numerous historical and sociological studies". And merely noting that the fact that many left-wing intellectuals continue to cling to discredited Marxist and Freudian ideology suggests that conservatives aren’t the only ones who reject the scientific method amounts to "mindless anti-intellectualism about other scholarly pursuits."
UPDATE: Leiter and I are in accord! He writes in the comments "Yes, I think you've got it straight, thanks."
Latest News in Dartmouth Alumni Association Election:
Voting is still ongoing in the Dartmouth Alumni Association election. The latest twist in the Dartmouth Association of Alumni election process is that the pro-Board-Packing slate is paying Dartmouth students to call alumni on its behalf. Apparently it is easy money:
I did it today and it was super easy. Hours 7-10:30 pm = $100. All you do is read a prompt sheet and call women Alumni. Martha Beattie is a super sweet woman and bought pizza an Vitamin water for us! We are going to call again on Monday and Tuesday (same hours). If you want to help please just come to the Coldwell Banker House (yellow house across from Psi U) Mon or Tues between 7-10:30pm. If you are concerned about calling because you don’t now what you are representing you can go to the org’s website: dartmouthundying.org and read up on the initiatives.
And remember as you read this that according to my colleagues on the Board it is the supporters of parity that supposedly "have politicized Dartmouth elections and have brought Washington-style politics to trusteeship." As Joe Malchow observes, "Of course, since these students are working against their own interests—in favor of a plan that would limit their voices—one is not surprised that they need to be paid."
In other news, the Byrne family--longtime and generous supporters of Dartmouth--have announced their opposition to the Board-packing plan and support for the pro-parity slate. I think they sum up the situation pretty well: "We urge you to vote for the Parity Slate. If we don’t elect them, your vote will never matter again":
The College-sponsored slate has the full tools of the College
propaganda machine; the Parity team do not, and must rely on partial,
obsolete mailing lists. That kind of undemocratic approach is key to
why we feel continued Alumni - elected involvement at the 50% level is
vital to the future of the College.
The first tool of the propagandist is the ad hominem attack. They don’t
really try to defend the indefensible, namely the implementation of the
Board-packing plan by stealth. Instead, they label their opponents,
especially the four petition trustees, as extremists, bent on taking
over Dartmouth.
We are not extremists, and we have never met the petition Trustees or
any of the Petition slate. We are two brothers, who love Dartmouth and
have consistently supported the College for many years. Frankly, we
expect that there would be important disagreements between us if we did
meet the petition Trustees. But these things are clear:
1) Because a few trustees got elected by petition, who had
differing views to those of the leadership, the college tried to change
governance by referendum, to make it harder for petition trustees to get
elected. They lost that referendum.
2) President Wright wrote to us shortly thereafter, promising an
end to the matter.
3) The matter was not, in fact, dropped, and a five man governance
committee managed to plan and narrowly pass a resolution to turn
Dartmouth’s Trustee’s Board into a self-electing elite, permanently.
The courts will decide whether this was a breach of contract. However
we don’t need a court to tell us it was a heavy-handed and undemocratic
thing to do.
4) The extremists are the ones who breached a hundred year old
deal because a handful of trustees had views they didn’t like.
We urge you to vote for the Parity Slate. If we don’t elect them, your
vote will never matter again.
If you are a Dartmouth alum and haven't voted yet, you still have time. A sample ballot for the Dartmouth Parity slate is available here.
When "Exclusive" Does Not Mean "Exclusive":
The Washington Post reports on a portion of an OLC memo -- just a sentence really -- concerning the Foreign Intelligence Surveillance Act (FISA) that reinterprets the word "exclusive" to mean something less.
A 1978 law appeared at first glance to be an impediment to using new procedures for such surveillance. It stated that the Foreign Intelligence Surveillance Act (FISA) provided the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."
But the administration did not want to follow FISA, because the law requires court approval. The administration has said that law could be a cumbersome obstacle in real-time efforts to intercept intelligence.
This created a quandary that then-Justice Department lawyer John C. Yoo resolved in the OLC memo. Until this week, members of the public did not know exactly what the memo said. But two Democratic senators who had read the classified version asked that a sentence in the memo be declassified, and this week they released the result:
The passage states that "[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."
In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration. . . .
The context of Yoo's statement is unclear, because the rest of the memo remains classified. . . .
The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.
He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.
Where'd the 5-4 Splits Go?
Linda Greenhouse's exploration of the relative paucity of 5-4 decisions thus far this term generally overlooks the most likely and plausible explanations: Last year's high proportion of 5-4 splits along ideological lines was itself and outlier and an artifact of the OT2006 docket. Last term had a relatively large proportion of exceedingly close and difficult cases, many of which concerned contentious, high-profiled issues. This term certainly has high profile cases as well, some of which have already been decided, but they have not been decided along traditional "conservative" and "liberal" lines. As a consequence, OT2007 is looking more like Chief Justice Roberts' first term on the Court, OT 2005, than it is OT2006.
Greenhouse's suggestion that conservatives on the Court have been chastened, and this explains the apparent lack of ideological division, is particularly unconvincing to me for two reasons. First, the big decisions in high profile cases (voting rights, child porn, lethal injection, Medellin), have largely gone in a "conservative" direction, just with larger majorities. So if any of the justices have changed their approach — and I am skeptical that any have — it would be those liberal justices who are joining conservative majorities. Indeed, one plausible theory (albeit not one I am endorsing) is that Justice Stevens has moderated his position in several cases so as to stay with Justice Kennedy, in the hope that he can have more influence on the swing justice in other cases.
Another problem with Greenhouse's suggestion that the conservatives have tempered their approach is that the conservative 5-4 decisions last term were not particularly aggressive or ground-breaking (a point I've made before). Few of the 5-4 decisions in OT 2006 made significant changes in the law (and the 5-4 decision that broke the most new ground, Massachsuetts v. EPA, went in a decidedly "unconservative" direction). Moreover, as Greenhouse herself noted at the time, several of the Court's conservatives expressed disappointment that the Court did not go farther.
OT2007 is not shaping up to be any more or less "conservative" than OT2006 (at least not yet). It just features a different line-up of cases, which are more conducive to larger majorities and less spirited dissents. This could certainly change — we have lots of cases to go, and plenty of opportunities for fiery divisions. Nonetheless, if I were to make a prediction it would be this: History will reveal that OT2006 was the outlier on the early Roberts Court, not OT2007.
UPDATE: Ed Whelan adds some thoughts here.
Why So Few 5-4 Decisions?:
Linda Greenhouse has an interesting article in the New York Times reporting on and speculating about the cause of the very surprising number of 5-4 cases at the Supreme Court so far this term: So far only 1, and in a statutory case. Some of Greenhouse's possible explanations strike me as plausible, although some strike me as quite unlikely (such as her theory that Chief Justice Roberts was chastened by a critical paragraph in Richard Posner's new book). My own speculation is that part of it is just a coincidence; a lot of cases decided so far this term were just lopsided by nature. Also, I would guess that part of it is the Justices settling in a bit with each other and realizing that they need to pick their battles more carefully than they did last Term.
Thursday, May 22, 2008
McCain Dumps Hagee Over Holocaust Remarks:
Sen. McCain has rejected the endorsement of Rev. John Hagee, whose controversial, inflammatory statements on a variety of matters have caused him to be a liability to the McCain campaign. The final straw was a sermon from the late 1990s in which Hagee said, interpreted biblical prophecy about the return of the Jews to the Land of Israel: "Then God sent a hunter. A hunter is someone with a gun, and he forces you. Hitler was a hunter. ... How did it happen? Because God allowed it to happen. Why did it happen? Because God said, 'My top priority for the Jewish people is to get them to come back to the land of Israel.'"
This is a pretty stupid idea, but I don't find it "anti-Jewish." That's probably because I've heard similar statements from Orthodox Jews. For example, when I was in elementary school in an Orthodox day school, we were discussing why the Holocaust happened. One of my classmates volunteered that his father told him something like that it was necessary "for us to get Israel." As I understood the comment at the time and his further elaboration on it, his father was saying something like "God did something horrible to us for reasons known only to Him, and then paid us back (collectively) with a lasting benefit."
Even as a fourth-grader, I thought this was a repugnant idea, and that anyone who believed it should cease worshiping this particular God immediately, unless they were only doing so out of fear of what nutty, cruel thing He might do next (an attitude that admittedly is reflected in many Jewish prayers). But it reflects the trap you're in as an orthodox (small "o") believer trying to make sense of the Holocaust. Either (a) God really hates the Jews (and there are plenty of Orthodox Jewish rabbis who have suggested that the Holocaust was punishment for the sins of the Jewish people); (b) God isn't all-powerful, or doesn't care to use His power to prevent horrific crimes against His people; or (c) the Holocaust had to be part of some broader Divine master plan that would ultimately redound to Jews' benefit. The fact that Hagee takes the latter position hardly makes him an intellectual giant, or speaks well of his moral imagination. But color me unoffended. Related Posts (on one page): - Hagee on Hagee:
- McCain Dumps Hagee Over Holocaust Remarks:
- Are Big Ideas Bad Ideas?
Future Legal Action Against the Texas Polygamists?
I should stress that many of the Texas FLDS members may still be in huge legal trouble, despite the conclusion that the raid was illegal (and likely unconstitutional) as to many of the children.
1. Rape / Statutory Rape Prosecutions: Most obviously, if indeed some girls (1) were physically forced into marriage or sex, or (2) had sex before age 17 with someone to whom they weren't legally married (whether there was no marriage ceremony or there was such a ceremony but it wasn't properly registered with the state for various reasons, such as the fact that it was an unlawful polygamous marriage), the people who had sex with them would be guilty of rape or statutory rape.
2. Prosecutions for Aiding and Abetting Rape / Statutory Rape: Criminal liability could also extend to those who sufficiently aided in the conduct, even if the aid consisted solely of encouraging the behavior (by which I mean encouraging the specific marriage, and not just teaching in the abstract that early marriage was good). This could include the girls' parents, religious leaders, or even friends and relatives who actively encouraged the conduct. The boundary between being a mere nonobjecting bystander (not criminal) and an active participant (criminal) is unfortunately sometimes quite vague. I suspect that celebrating the wedding with the couple or giving a wedding present wouldn't qualify as aiding and abetting, but even that's not completely obvious (see the English case Wilcox v. Jeffery, which some criminal law scholars see as being relevant to American law).
3. Bigamy (and Aiding and Abetting Bigamy): I suspect that the Texas bigamy statute -- which applies when a person "(A) purports to marry or does marry a person other than his spouse ... under circumstances that would, but for the actor's prior marriage, constitute a marriage; or (B) lives with a person other than his spouse in this state under the appearance of being married" -- wouldn't be interpreted as covering ceremonies that the parties understand not to be legal marriages. Clause A wouldn't apply, I think, if no marriage license were applied for, since without such a license the circumstances wouldn't constitute a legal marriage (Texas common-law marriage rules don't apply when one party is already married). Clause B is harder to figure out, but my guess is that this requires representation to others that one is legally married.
The Utah Supreme Court recently interpreted Utah bigamy law more broadly, to cover second marriages even when they aren't claimed to be legally valid marriages; but Utah law said simply that, "A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person," without the "under circumstances" language.
4. Regular Proceedings to Remove Children from Parental Custody: Naturally, if there is sufficient evidence of some past abuse of children, of imminent future abuse, or of parents' idly standing by when the children were abused by others, those children could be removed from parental custody, even in the absence of a criminal prosecution of the parents. It's just that this would have to be done through the normal procedures, at which specific evidence of abuse or likely future abuse of those children would have to be shown.
Are Big Ideas Bad Ideas?
Some conservatives argue that "big ideas" about politics are generally bad, and that conservatism should instead focus on protecting tradition and avoiding big ideas. Steve Bainbridge, the outstanding legal scholar and conservative blogger, provides a good example of this view:
I can’t think of anything more contrary to the spirit of Burkean conservatism than a seach for the “next big thing"....
Instead, it is the Libertarians and the progressives who are Big Idea people. Despite their obvious differences in philosophy, they share the absurd belief that if only their big idea(s) came to pass, society would inexorably progress towards some ideal.
In contrast, I stand with Buckley ("Don’t let ideologues try to create heaven on earth, because they’ll deprive us of freedom and make things a lot worse") and Bill Bonner ("Traditional American conservatism was not a doctrine of world improvement, but a mood of skepticism toward all “isms” and empire builders").
Why? Think about the Big Ideas of the 20th Century: Compassionate conservatism, Objectivism, Deconstructionism, Freudianism, Nazism, Conceptualism, Socialism, Syndicalism, Minimalism, Communism, Functionalism, Postmodernism, Dadism, Fundamentalism, Fascism. All of them turned out to be basically bad ideas.
Bainbridge is right that there have been many bad Big Ideas. Nonetheless, generalized conservative hostility to big ideas is misguided for two reasons:
First, it ignores the fact that there are many big ideas that have turned out to be extremely good ones (at least relative to the alternatives). Consider Liberty, Free Markets, Democracy, racial and gender Equality, Privacy, Charity, and many more. Without these big ideas and others like them, we wouldn't have many of the greatest achievements of Western civilization. Bad big ideas are best countered with good big ideas, not with a blanket rejection of big ideas as such. The most compelling responses to the biggest Bad Ideas of the last century - Communism and Nazism - were the good Big Ideas of Liberty, Free Markets, and Democracy. I doubt we could have persuaded many intelligent people to reject communism or Nazism merely because they are "Big Ideas."
Second, conservatism hostility to big ideas is internally contradictory. It is itself a Big Idea. Like advocates of other Big Ideas, conservatives who argue for rejection of "ideological" ideas do so because they think that acceptance of this general principle will make society better. Same with the "Burkean conservative" respect for tradition that we recently debated here at the VC, and which Bainbridge seems to endorse. You can't simultaneously reject "Big Ideas" and defend the big idea of broad deference to Tradition.
UPDATE: There is a possible ambiguity in Bainbridge's post. It's not entirely clear whether he thinks we should oppose all Big Ideas or merely new ones ("the next big thing"). I suspect the former, but the latter is also a plausible interpretation of his post. Even if his criticism is limited to new big ideas, it's still misguided in my view. All the great big ideas of the past were new at one time, including the ones I listed above. We should not exclude the possibility that further new big ideas might be beneficial as well. Each new big idea should be evaluated on its own merits, not peremptorily dismissed on the grounds that big ideas are likely to be bad.
UPDATE #2: In the comments, Steve Bainbridge clarifies his position to some extent:
If I can elaborate just briefly, my basic gripe with Big Ideas is that people with Big Ideas generally want to convert other people to their ideas. And that's usually a bad thing. As the Iraq war's taught us, trying to convert people to even good Big Ideas like democracy can sometimes work out quite badly.
Thanks to Steve Bainbridge for his clarification. I think his initial post did indeed make it seem as if he wanted to condemn all "big ideas" and not just the attempt to "export" them by force. However, I disagree at least partially with the narrower anti-export point as well. Many efforts to export democracy and other good big ideas by force have succeeded. Consider the cases of Germany, Italy, Japan, Grenada, Panama, and others - all of which are relatively successful liberal democracies today because the US and allies overthrew their previous governments by force. That doesn't mean that all such efforts are a good idea as a general rule, or that Iraq was a good idea in particular. It does mean that we shouldn't categorically reject them.
Lawsuits Against the Texas Department of Family and Protective Services?
Some commenters on the earlier post raised this issue, so I thought I'd speak briefly about it.
1. Fourth Amendment and the substantive parental rights doctrine developed under the Due Process Clause: From what I've seen of the circuit court cases, both constitutional provisions have been read as requiring at least reasonable suspicion of imminent danger to the child (or of past abuse to the child, which will usually also lead to individualized reasonable suspicion of imminent danger) before a child can be seized by child protective services, even briefly. Some courts require not just reasonable suspicion, but the higher standard of probable cause. See Doe v. O'Brien, 329 F.3d 1286 (11th Cir. 2003) (probable cause); Hatch v. Department for Children, Youth and Their Families, 274 F.3d 12 (1st Cir. 2001) (reasonable suspicion); Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) (probable cause, especially when read together with Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000)); Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999) (generally suggesting probable cause, though leaving open a "special needs" exception for unusual cases). The rule may be different when the child is detained briefly at a government-run school as opposed to in a private home or a private school, but that's not at issue here. As I read the Texas Court of Appeals decision, it looks like the state did not have probable cause or even reasonable suspicion of abuse as to many of the children involved in the raid, so the Fourth Amendment and the parents' parental rights have almost certainly been violated.
Of course, before any damages award is given, there'd have to be a finding that the law is well-established (or else the defendants would have qualified immunity. My quick search didn't find any Fifth Circuit or Texas state precedent that's entirely on point. But my sense is that the need for at least individualized reasonable suspicion is likely clearly enough established (even if only in other circuits), especially given the broader background Fourth Amendment principles requiring probable cause for seizures in private homes.
2. Procedural rights under the Due Process Clause: I know much less about this than I do about the Fourth Amendment and substantive parental rights, but I strongly suspect that the Due Process Clause has been read as requiring a hearing before one's children are removed, even temporarily, unless there are some exigent circumstances preventing that. Given the Texas Court of Appeals' description of the facts, it sounds like exigent circumstances were indeed absent here, at least as to many of the children.
3. State law rights: I can't speak to whether Texas law provides its own damages remedy for the violations of the law found by the Texas Court of Appeals.
Antitrust lawsuit against OPEC:
On Tuesday, the U.S. House overwhelmingly passed a bill authorizing Sherman Act enforcement against OPEC. Among the proponents of the idea is The Heritage Foundation. A radio report which includes my take on the issue is available in MP3 and transcript. However, it's in Russian, for the Russian station of Radio Free Europe/Radio Liberty, and may be difficult for non-Russophones to follow.
My basic analysis is: OPEC's actions are plainly contrary to the Sherman Act. In Hartford Fire Insurance Co. v. California (1993), the Supreme Court ruled that the Sherman Act could be applied to the acts of foreign corporations committed in foreign countries, if the purpose and effect the foreign acts was in part aimed at the U.S., which OPEC's actions obviously are. So even without the explicit language in the House bill, the Sherman Act allows anti-OPEC lawsuits. (And, notably, the Sherman Act, as amended by the Clayton Act, is much friendlier to civil enforcement by private parties than are the antitrust laws of most other nations.) Accordingly, the real barrier to an anti-OPEC Sherman case is the Foreign Sovereign Immunity Act. Indeed, in 1978 the International Association of Machinists and Aerospace Workers brought a Sherman Act case against OPEC, only to lose the case on FSIA grounds. So the House bill creates an exception to FSIA for anti-OPEC suits.
Although I am in general an antitrust skeptic, my objections do not apply when governments are the monopolists.
Still, my view is that there are more important steps that the U.S. could take to reduce its dependence on OPEC, such as opening up ANWR, building more nuclear and clean coal plants (even though OPEC oil is a small part of US electricity production), importing more oil from Alberta, and allowing the current high prices of gasoline to encourage market solutions for less use of OPEC gasoline.
A Misconception About Slippery Slope Arguments:
Rick Hills roundly condemns slippery slope arguments:
The California Supreme Court's recent decision on gay marriage has predictably revived that old perennial favorite of arguments against substantive due process arguments for sexual privacy — the "slippery slope."
You know the drill: If courts strike down x law regulating sexual conduct, then it will be logically impossible to avoid striking down y, z, a, b, and c laws.... The obvious response to the "slippery slope" is the "conceptual ledge": There are lots of natural resting places for the mind, if one only bothers to look for some fine-grained moral/legal theory.... So why do patently unconvincing slippery slope arguments grow like black mold in a leaky attic every time a court makes a decision about sexuality? ...
It's true that arguments that it will be logically impossible to distinguish a future case from this case are usually very weak. Very few distinctions are logically impossible.
But slippery slope arguments endure partly because they are often cast, much more plausibly, as arguments that if X is done, it will become more likely that Y will be done — not that X and Y can't be treated differently, but that they won't be treated differently. These arguments aren't about logical consequences, but about psychological consequences (plus some other consequences). And as such they can't be rebutted simply by pointing out that a distinction could be drawn.
The other reason that slippery slope arguments endure is that slippery slopes do often seem visible. I say "seem" because it's often impossible to tell for sure whether X increased the likelihood of Y, or whether Y would have happened in any event. But sometimes there's good reason to think that slippage has happened, often despite the express insistence of backers of X that of course X won't help lead to Y.
I discuss this in detail in my Same-Sex Marriage and Slippery Slopes. I start by pointing to two examples:
The slippage from contraceptive rights for married couples (Griswold) to contraceptive rights for unmarried couples (Eisenstadt) to abortion rights (Roe) to sexual autonomy rights (Lawrence), which happened despite the express assurance of some backers of the first step that it wouldn't lead to later steps. The reliance of the Massachusetts and California same-sex marriage decision and the Vermont same-sex civil union decision on the enactment of other gay-rights laws, which happened despite express assurances of some backers of the earlier steps that they wouldn't lead to the later step.
I also explain how some specific arguments for same-sex marriage, if accepted, can indeed weaken public, legislative, and judicial resistance to calls for polygamous marriage — for instance, "all people have a right to marry whomever they choose," "it’s none of my business whom someone else marries," "people who want to enter into same-sex marriages should have equal rights with those who want to enter into opposite-sex marriages," or "love should prevail over arbitrary legal restrictions" (see the article for citations).
This having been said, I conclude that it seems unlikely that accepting same-sex marriages will materially increase the chance that society will accept polygamous marriages. But that kind of decision has to be tied to a pretty careful analysis of the likely psychological and political processes that are likely to take place. It can't be based on a simple categorical refusal to consider slippery slope arguments whenever a logical distinction is available, or a simple categorical acceptance of slippery slope arguments whenever a similarity can be logically pointed to.
Roger Koppl Responds to Comments on His Column:
A few days ago I posted a link to Roger Koppl's column in Forbes. Roger has read the Comments you posted and has sent me this response:
Hi Todd,
I’ve been enjoying the comments on your post quoting my Forbes article. “JCCamp” warns against “ignoring the investigative assistance an in-house lab can provide for law enforcement.” You bet. Good principles will give you bad results if you don’t recognize the relatively intricate design problem involved. The example JCCamp raises is relatively easy to handle by clever task separation: The experts who do blind testing should be different from the “case manager” who has all case information and shields domain irrelevant information from the forensic scientists doing the tests. A group of us has worked out a template for doing that in DNA profiling. Our template will be published in the July Journal of Forensic Sciences as a letter to the editor (“Sequential Unmasking: A means of Minimizing Observer Effects in Forensic DNA Interpretation”). I would put J. F. Thomas’s concerns about chain-of-custody in the same category. It’s a huge issue, but it is not really that tricky to handle. My institute’s website addresses lots of these issues, especially on the research page.
My Forbes article doesn’t address sequencing. If you want a set of improvements that sticks, then you need to need to put them in place in the right order. An improvement may lose its effect over time if the affected parties learn compensating behaviors. A substantive right of defendants to forensic science expertise, however, would be self-sticking because the defense experts would work to maintain their place in the system. The simultaneous existence of defense and prosecution experts would apply pressure needed to make other changes stick.
Cheers,
Roger
Thomas Frank and Three Common Fallacies About Libertarianism:
Thomas Frank manages to pack three common fallacies about libertarianism into one short Wall Street Journal column. Two of them occur in this passage:
Here, in the very home of the taxing, regulating leviathan, the libertarian is such a commonplace and unremarkable bird that no one gives him a second glance. Here he is a factotum of the establishment, a tiny voice in a vast choir assembled by business and its tax-exempt front groups to sing the virtues of the entrepreneur.
And therein lies his dilemma. Almost by definition, our young libertarian's job is to celebrate the profit motive from the offices of a not-for-profit organization. He is subsidized, in other words, to hymn the unsubsidized way of life. Rugged individualism may be his creed, but a rugged individual he ain't.
Frank's first fallacy is the assumption that libertarianism is about the "celebration" of the "profit motive." In reality, libertarianism advocates the superiority of the private sector over government. Parts of that private sector are mainly driven by the profit motive, others are not (e.g. - families, many civil society organizations). There is nothing in libertarianism that is inconsistent with working in a "subsidized" organization so long as the subsidies don't come from the state. On the other hand, many government programs are themselves driven by the profit motive: for example, government subsidies for large agribusinesses; protectionism for powerful domestic economic interests, and so on. Libertarians have no problem denouncing these programs despite the fact that they arise from the profit-seeking of their beneficiaries.
The second fallacy is the assumption that libertarians defend the interests of "business." On some issues, that is indeed true. But it is not a general rule. There are many, many, businesses that lobby for and depend on government handouts of various sorts. Libertarians and libertarian organizations - including the "beltway libertarian" groups that Frank attacks in his piece - regularly criticize these businesses and the government programs that benefit them. Indeed, as I discussed in this post, libertarian groups have often had to distance themselves from business interests in order to be effective - precisely because the latter often have an interest in promoting big government.
Finally, Frank makes the common but wholly untenable claim that today's government policies are mostly market driven and that the market has somehow crowded out "public service" - thereby rendering libertarian advocacy unnecessary, or at least superfluous. This is simply false, given the reality that government spending at all levels is more than one third of GDP, that regulation is also at very high levels, and both have grown massively during the years of the Bush Administration.
Frank does indirectly hit on one ironic reality: if not for the existence of big government, there would be little need for libertarian organizations or "beltway libertarian" advocacy. But that is true of professional advocates of any cause. There would be far less need for them if the cause prevails. There would be little need for environmentalist organizations if pollution is largely eliminated, for anti-racist groups if racism declines to insignificance, and so on. Frank himself is most famous for advocating government policies to reduce income inequality. If income inequality ever is reduced to levels that liberals and radicals find acceptable, Frank would probably have to find another line of work.
The symbiotic relationship between libertarian advocacy and big government does create a risk that professional libertarians will pull their punches in criticizing the state so as to avoid killing the goose that lays their golden eggs. So far, however, I see little evidence of that happening. Indeed, Frank's concern seems to be that libertarians spend too much time criticizing government (which he claims is somehow inconsistent with their supposed support for the "profit motive"), not too little. Related Posts (on one page): - Thomas Frank and Three Common Fallacies About Libertarianism:
- Frank on Beltway Libertarianism:
- Does the Libertarian Party Matter?
Texas Appellate Court Rules Against State's Seizure of the FLDS Children:
From the opinion, which is a sharp and detailed rebuke of the Texas Department of Family and Protective Services (emphasis and some paragraph breaks added): Removing children from their homes and parents on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children is an extreme measure. It is, unfortunately, sometimes necessary for the protection of the children involved. However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary. [Tex. Fam. Code. Ann. § 262.201.]
In this case, the Department relied on the following evidence with respect to the children token into custody from the Yearning For Zion ranch to satisfy the requirements of section 262.201: - Interviews with investigators revealed a pattern of girls reporting that "there was no age too young for girls to be married";
- Twenty females living at the ranch had become pregnant between the ages of thirteen and seventeen;
- Five of the twenty females identified as having become pregnant between the ages of thirteen and seventeen are alleged to be minors, the other fifteen are now adults; [footnote: One woman is alleged to have become pregnant at the age of thirteen. She is now twenty-two years old.]
- Of the five minors who became pregnant, four are seventeen and one is sixteen, and all five are alleged to have become pregnant at the age of fifteen or sixteen;
- The Department’s lead investigator was of the opinion that due to the "pervasive belief system" of the FLDS, the male children are groomed to be perpetrators of sexual abuse and the girls are raised to be victims of sexual abuse;
- All 468 children were removed from the ranch under the theory that the ranch community was "essentially one household comprised of extended family subgroups" with a single, common belief system and there was reason to believe that a child had been sexually abused in the ranch "household"; and
- Department witnesses expressed the opinion that there is a "pervasive belief system" among the residents or the ranch that it is acceptable for girls to marry, engage in sex, and bear children as soon as they reach puberty, and that this "pervasive belief system" poses a danger to the children.
In addition, the record demonstrates the following facts, which are undisputed by the Department: - The only danger to the male children or the female children who had not reached puberty identified by the Department was the Department's assertion that the "pervasive belief system" of the FLDS community groomed the males to be perpetrators of sexual abuse later in life and taught the girls to submit to sexual abuse after reaching puberty;
- There was no evidence that the male children, or the female children who had not reached puberty, were victims of sexual or other physical abuse or in danger of being victims of sexual or other physical abuse;
- While there was evidence that twenty females had become pregnant between the ages of thirteen and seventeen, there was no evidence regarding the marital status of these girls when they became pregnant or the circumstances under which they became pregnant other than the general allegation that the girls were living in an FLDS community with a belief system that condoned underage marriage and sex; [footnote: Under Texas law, it is not sexual assault to have consensual sexual intercourse with a minor spouse t0 whom one is legally married. Texas law allows minors to marry—as young as age sixteen with parental consent and younger than sixteen if pursuant to court order. A person may not be legally married to more than one person.]
- There was no evidence that any of the female children other than the five identified as having become pregnant between the ages of fifteen and seventeen were victims or potential victims of sexual or other physical abuse;
- With the exception of the five female children identified as having become pregnant between the ages of fifteen and seventeen, there was no evidence of any physical abuse or harm to any other child;
- The Relators have identified their children among the 468 taken into custody by the Department, and none of the Relators' children are among the live the Department has identified as being pregnant minors; and
- The Department conceded at the hearing that teenage pregnancy, by itself, is not a reason to remove children from their home and parents, but took the position that immediate removal was necessary in this case because "there is a mindset that even the young girls report that they will marry at whatever age, and that it's the highest blessing they can have to have children.”
The Department argues that the fact that there are five minor females living in the ranch community who became pregnant at ages fifteen and sixteen together with the FLDS belief system condoning underage marriage and pregnancy indicates that there is a danger to all of the children that warrants their immediate removal from their homes and parents, and that the need for protection of the children is urgent. [Footnote: The Department's position was stated succinctly by its lead investigator at the hearing. In response to an inquiry as to why the infants needed to be removed from their mothers, the investigator responded, "[W]hat I have found is that they're living under an umbrella of belief that having children at a young age is a blessing therefore any child in that environment would not be safe."] The Department also argues that the "household" to which the children would be returned includes persons who have sexually abused another child, because the entire Yearning For Zion ranch community is a "household." ...
The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief” that condones polygamous marriage and underage females having children. [Footnote: The Department's witnesses conceded that there are differences of opinion among the FLDS community as to what is an appropriate age to marry, how many spouses to have, and when to start having children—much as there are differences of opinion regarding the details of religious doctrine among other religious groups.]
The existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger. The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators' children are pubescent females and whether there is any risk to them other than that they live in a community where there is a "pervasive belief system" that condones marriage and child" rearing as soon as females reach puberty.
The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children. [Footnote: The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a "household" under section 262.201.]
There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators' children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a "pervasive belief system" that condones underage marriage and underage pregnancy.
Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the Department contends, there is no evidence that this danger is "immediate" or "urgent" as contemplated by section 262.201 with respect to every child in the community. [Footnote, slightly moved: The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.] ... Evidence that children raised in this particular environment may someday have their physical health and safety threatened is no evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue as required by section 262.201.
Finally, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators' children [as required under §262.201]. The evidence is that the Department went to the Yearning For Zion ranch to investigate a distress call from a sixteen year-old girl. [Footnote: The authenticity of this call is in doubt. Department investigators did not locate the caller on the ranch.] After interviewing a number of children, they concluded that there were five minors who were or had been pregnant and that the belief system of the community allowed minor females to marry and bear children.
They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents. This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of Relators....
Theories of American Identity (and Why They Are Wanting):
I see four theories of American identity, none of which seem sustainable in the face of the developments I have been describing in previous posts.
The New Nativism: The new nativists sing the praises of an ethnic America, that is, a white one. Their platform ha |