The Volokh Conspiracy

when he says, “Like many liberal American Jews, when he looks at Netanyahu he sees a conservative Republican and he fails to understand how a Jew can be a conservative Republican. I think he looks at Netanyahu in much the same way he contemplates Eric Cantor, the Republican ‏(and Jewish‏) house majority leader. Like many liberal-leaning Jews, he might simply not understand how a Jew could be a Republican.”

But if Obama truly understands so little about Israel that he reduces things to “Netanyahu = conservative Republican” (something the Washington Post actually did quote an administration official as saying), as if Israeli politics somehow map on to an incredibly different American political scene, and truly has been so cloistered on the left that the idea of a Jewish Republican is somewhere between anathema and beyond his comprehension, Goldberg is not doing Obama any favors in pointing these things out. I actually doubt that Obama actually thinks these things, but I don’t doubt that a significant number of “liberal American Jews,” some of whom are or have been Obama advisors, do, and that there views filter down to journalists like Goldberg as Obama’s.

UPDATE: Put another way, there are some liberal Jews who are strong partisan Democrats who are both appalled by the notion of conservative Republican Jews and extremely resentful that (a) an influential group like AIPAC maintains strict partisan neutrality, which has the effect, given the baseline, of pushing the Jewish community and its donors effectively to the right; (b) there is a group of wealthy Republican Jews, exemplified by Sheldon Adelson, working for “the other side.”

There is little that can be done about “a” (JStreet is the attempt to do so) and nothing that can be done about “b” (though liberal Jewish groups did launch an abortive attack on Adelson last Summer). But given that Netanyahu has American friends and supporters from groups (a) and (b), one can take out one’s resentments on Netanyahu, entirely aside from one’s views on whatever policies he’s pursuing. We saw a fine example of this last Summer, when some were accusing Netanyahu of openly siding with Romney, and, when challenged to produce any evidence that this was true and failing to do so, kept insisting it was true nevertheless. (It was especially amusing to hear that Netanyahu was openly siding with Romney because they met when Romney came to Israel, when it turns out that Netanyahu met with Obama when he came to Israel in 2008, and lavished fulsome praise on him. Does that mean that Netanyahu even more openly sided with Obama in 2008?) So Netanyahu becomes a stand-in for all one’s Jewish or pro-Israel bogeymen, which, in my opinion, has not well served the Obama administration.

Thomas Friedman in the New York Times: “Israeli friends have been asking me whether a re-elected President Obama will take revenge on Prime Minister Bibi Netanyahu for the way he and Sheldon Adelson, his foolhardy financier, openly backed Mitt Romney. My answer to Israelis is this: You should be so lucky.”

I’m pretty sure it’s true that Netanyahu would rather have had Mitt Romney in office than Barack Obama. But “openly backed?” That’s just false. But note that Friedman cleverly gave himself plausible deniability for spreading this falsehood, by attributing it to his “Israeli friends.” And of course Friedman does want Obama to “take revenge” on Netanyahu, making the whole column an exercise in concern trolling. It’s too bad Israel can’t have a government that Friedman really admires, like China’s.

A new report on media coverage of the presidential campaign from the Pew Research Center looks at the balance of positive and negative coverage of the major presidential candidates. Among the report’s findings:

The study reveals the degree to which the two cable channels that have built themselves around ideological programming, MSNBC and Fox, stand out from other mainstream media outlets. And MSNBC stands out the most. On that channel, 71% of the segments studied about Romney were negative in nature, compared with just 3% that were positive-a ratio of roughly 23-to-1. On Fox, 46% of the segments about Obama were negative, compared with 6% that were positive-a ratio of about 8-to-1 negative. These made them unusual among channels or outlets that identified themselves as news organizations.

(Hat tip: Slate)

The Times reports that a potentially controversial Palestinian art exhibit at Brandeis’ Rose Art Museum hasn’t caused much controversy. As an alumnus, I can guess why. Unless things have changed dramatically since I was there, Brandeis students are only dimly aware of the museum’s existence, and it plays essentially no role in campus life. In short, students don’t know and don’t care what goes on at the museum. (In fact, if you had asked me during my tenure at Brandeis where the museum was located, I wouldn’t have been able to tell you.)

This, of course, makes one wonder why the Times bothered to do a story about it. Here’s a guess. “We know what we do now will attract lots of attention,” said Christopher Bedford, the new director of the museum. “We want to capitalize on that attention.” Bedford, I’m guessing, contacted the Times (personally or through a P.R. rep.) to try to manufacture a controversy, and thus attention. The Times played along, but couldn’t find much to say, and was left to vaguely accuse pro-Israel students at Brandeis of not wanting to “engage” the Palestinian narrative. Pretty pathetic, if I’m right.

UPDATE: It’s like an onion headline: “Campus Art Museum Hosts its Most Controversial, Provocative Art Exhibit Ever; Students React by Studying and Drinking Beer”

FURTHER UPDATE: My college roommate emails: “We had a museum?”

Clive Crook offers two commentaries on the current rage of “fact checking” political arguments: One with a heavy dose of satire, and one without.

Arthur Brisbane, the NYT‘s public editor for the past two years, wrote his final column this weekend. In that column, he commented:

I had taken up the public editor duties believing “there is no conspiracy” and that The Times’s output was too vast and complex to be dictated by any Wizard of Oz-like individual or cabal. I still believe that, but also see that the hive on Eighth Avenue is powerfully shaped by a culture of like minds — a phenomenon, I believe, that is more easily recognized from without than from within.

When The Times covers a national presidential campaign, I have found that the lead editors and reporters are disciplined about enforcing fairness and balance, and usually succeed in doing so. Across the paper’s many departments, though, so many share a kind of political and cultural progressivism — for lack of a better term — that this worldview virtually bleeds through the fabric of The Times.

As a result, developments like the Occupy movement and gay marriage seem almost to erupt in The Times, overloved and undermanaged, more like causes than news subjects.

According to Politico, NYT executive editor has a different view:

Times executive editor Jill Abramson says she disagrees with Brisbane’s “sweeping conclusions.”

“In our newsroom we are always conscious that the way we view an issue in New York is not necessarily the way it is viewed in the rest of the country or world. I disagree with Mr. Brisbane’s sweeping conclusions,” Abramson told POLITICO Saturday night.

“I agree with another past public editor, Dan Okrent, and my predecessor as executive editor, Bill Keller, that in covering some social and cultural issues, the Times sometimes reflects its urban and cosmopolitan base,” she continued. “But I also often quote, including in talks with Mr. Brisbane, another executive editor, Abe Rosenthal, who wanted to be remembered for keeping ‘the paper straight.’ That’s essential.”

That’s the title of my article yesterday in USA Today, suggesting how the media can try to cover the crime in a way that does not increase the risk of a copycat effect.

Also on USA Today, I participated in a Web Chat with a pair of representatives of the Brady Campaign, available here.

A New York Times article today on Colorado gun laws quotes Eugene Volokh and me.

According to The New York Times (thanks to InstaPundit for the pointer),

NBC News has fired a producer who was involved in the production of a misleading segment about the Trayvon Martin case in Florida.

The Today show segment had Zimmerman saying,

This guy looks like he’s up to no good. He looks black.

Here’s what appears to be the actual 911 transcript:

Zimmerman: This guy looks like he’s up to no good. Or he’s on drugs or something. It’s raining and he’s just walking around, looking about.

Dispatcher: OK, and this guy — is he black, white or Hispanic?

Zimmerman: He looks black.

That’s the gist of this L.A. Times front page article by David Savage, but the headline instead promises
Signs of Supreme Court activism worry Reagan administration lawyers.

It turns out that the only “Reagan Administration lawyers” they are able to quote are Charles Fried and Doug Kmiec, both of whom quite publicly endorsed candidate Obama in 2008.  Kmiec, in fact, was rewarded with an ambassadorship for his service.

The article does note  that Reagan appointee Laurence Silberman voted to uphold the mandate.  But as an appellate judge Silberman is bound to interpret precedent as best he can.  We don’t know from his ruling (a) what he would do if he were on the Supreme Court, where he could feel free to interpret precedent as he wished, or ignore it entirely; (b) what he would like the Supreme Court do do; much less (c) whether he’s “worried” about “signs of Supreme Court activism.”

So all the article tells us is that two prominent  lawyers who endorsed Obama, both of whom by all indications think his health care law was a good idea (Fried authored an amicus brief supporting it, and calls it a “free market alternative”; note to Fried: you don’t need a 2,700 page bill, supplemented by thousands and thousands more pages of regulation, to establish a “free market”) want it to be upheld.  That’s worth a front page article?

Erik Wemple (Washington Post) reports:

NBC told this blog today that it would investigate its handling of a piece on the “Today” show that ham-handedly abridged the conversation between George Zimmerman and a dispatcher in the moments before the death of Trayvon Martin. A statement from NBC:

“We have launched an internal investigation into the editorial process surrounding this particular story.”

Here’s what appears to be the Today show’s version of what Zimmerman said:

Zimmerman: This guy looks like he’s up to no good. He looks black.

Here’s what appears to be the actual 911 transcript:

Zimmerman: This guy looks like he’s up to no good. Or he’s on drugs or something. It’s raining and he’s just walking around, looking about.

Dispatcher: OK, and this guy — is he black, white or Hispanic?

Zimmerman: He looks black.

Unless there’s something I’m missing here, the editing seems extremely improper (“high editorial malpractice,” in the Washington Post blogger’s words). I say this not to opine on the merits of any possible criminal case against Zimmerman; this particular point isn’t about him, but about NBC.

Economist Robin Hanson has a blog post discussing a recent study showing that most people tend to limit conversations about politics to those who agree with their views. This is not just a matter of people tending to have friends and acquaintances who have similar views. Even when there are people in our social circle who have divergent political views, the study shows that we are far more likely to talk about politics with those we agree with. Much previous research reaches similar conclusions. Moreover, we see the same pattern in people’s choices about the media they follow on political issues. Conservatives are likely to watch conservative TV channels, and read conservative newspapers, magazines, and blogs. Liberals have the opposite pattern. If you are a regular VC reader, you are far more likely to to be a libertarian or a conservative than not. If you regularly read a liberal political or legal blog, chances are that you’re a liberal yourself.

When people do encounter opposing arguments, they tend to evaluate them in a highly biased way, in effect holding them to a much higher standard than they apply to arguments that support their own views. Moreover, as Diana Mutz shows, most of these tendencies are especially pronounced among people who are most interested in politics and have the most strongly held political views.

Perhaps the avoidance of political talks with people we disagree with is in part driven by a desire to avoid social awkwardness. But that can’t explain the avoidance of opposing media. Moreover, conversations about politics with those we disagree with are awkward at least in part because people tend to be intolerant of opposing views.

All of this is highly irrational if the goal of reading and talking about politics is to seek out the truth. As John Stuart Mill famously put it, a truth-seeker should make a special effort to seek out opposing viewpoints, and try to evaluate them in an unbiased way:

He who knows only his own side of the case knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side, if he does not so much as know what they are, he has no ground for preferring either opinion... Nor is it enough that he should hear the opinions of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. He must be able to hear them from persons who actually believe them... [H]e must know them in their most plausible and persuasive form.

The evidence is less puzzling if truth-seeking is not the main goal of most political conversations or most people’s efforts to read about politics. Rather, many people enjoy having their preexisting views reinforced and like the experience of associating with their fellow “political fans” who support the same side as they do. Because the chance that your vote in an election will be decisive is infinitesmally small, there is little payoff for seeking out political truths just so you can be a better-informed voter. And most nonexperts have few other incentives to seek out the truth either. Being exposed to opposing arguments is often emotionally unpleasant, and giving them a fair hearing can be even more painful – especially if you are strongly committed to your own opinions. And the payoff for all that pain is usually very small, so why bother? Unfortunately, while such ignorance and close-mindedness is individually rational, it can cause terrible collective outcomes.

That’s not to suggest that people deliberately embrace political views they know to be false. But it’s easy to be cognitively lazy about seeking out opposing arguments and controlling your biases against them when you do run across them. Obviously, most people are not completely indifferent to opposing evidence on political issues. Sometimes the evidence against you is so obvious and overwhelming that it’s hard to ignore even if you want to do so. When Germany lost World War II, many Germans who had supported Hitler were forced to admit that he had led them to disaster. On most political issues, however, the evidence is much less stark and therefore it’s much easier to insulate yourself from possible challenges to your beliefs. Such insulation is not always impossible to overcome. Otherwise, no one would ever change any of their strongly held political views, except in the aftermath of WWII-like disasters. But it is often extremely difficult.

Last week, I posted a short piece on an article by Neil Lewis in the Columbia Journalism Review, discussing whether the New York Times reporting is hostile to Israel. As I noted, Lewis gets the basic story right–the Times’ isn’t anti-Israel, as such, but its reporting on Israel tends toward the adversarial, for two reasons. First, for several decades the Times’s Israel correspondents have typically had views on appropriate Israeli policy well to the “Left” of the governments in power in Israel. And, second, reporters find it naturally appealing to take the “David” (Palestinian) side in a David vs. Goliath (Israel) story. I should have added a third factor, noted by Lewis: the growth of leftist domestic NGOs in Israel strongly opposed to government policy (and often to Zionism), which–though Lewis doesn’t mention this–are typically staffed by English-speakers, often Americans, and that, because they are so far out of the mainstream of Israeli opinion, tend to focus on feeding stories to a more sympathetic international media.

The problem with the article is that Lewis seems to think that this is more or less the end of the matter. If the Times isn’t affirmatively anti-Israel, it doesn’t matter whether the Times’s reporters are nevertheless implicitly opposing Israeli government policy and/or supporting Palestinian claims by virtue of the stories they choose to pursue, how they frame those stories, what photographs they choose to run with the stories, and so forth–none of which he analyzes in any detail. Other critics, some much more vociferous than I, have noticed the same thing.

Indeed, even though Lewis acknowledges the points noted in the first paragraph, and he cites critics of the Times (including critics who think the Times is too favorably inclined to Israel), he manages to avoid acknowledging any instance where he agrees that pro-Israel critics of the Times’s coverage have had a valid objection. Instead, the piece comes off as suggesting that the only folks who could reasonably object to the Times’s coverage are right-wing Orthodox Jews who support the settlements. [FWIW, I'm neither Orthodox nor support the settlement enterprise, yet I've found the Times's coverage wanting on many occasions.] And he spends an awful lot of time on other matters that are peripheral to the issue he was supposed to be writing about, including the Times’s failure to adequately report the Holocaust as it was happening, and gossipy matters perhaps of interest to media insiders, such as confusion within the Times’s hierarchy over whether former Israel correspondent David Shipler is Jewish (he’s not, but who cares?)

Meanwhile, it turns out that I gave a poor, indeed, incorrect example of something that I said Lewis didn’t mention, but should have: that the far leftist Chris Hedges, who we now know as a vociferous critic of Israel, was the Times’s Middle East Bureau Chief from 1998-2001, when the Times’s coverage of Israel by Deborah Sontag was subject to particular criticism. It turns out that I was relying on misinformation from several websites that identified him as bureau chief at that time. In fact, Hedges was Middle East Bureau chief earlier in the decade (a fact that, oddly enough, Lewis didn’t know, as he acknowledged to me). So mea culpa on that.

It was Lewis himself who alerted me to my error via a response he asked be posted here. Here it is, with a bit of additional commentary from me following it.

here is my comment as i would like it published/posted:

i am the author of the cjr piece abt the times and israel.i try not to respond to the range of comments it has produced — people are entitled to ....etc. if someone thinks i failed to analyze specific articles enough, i think they did not read my article thoroughly, but that’s their view and i have no need to try and rebut.

but i found the comment [by prof. bernstein] so exquisitely typical of the ignorance of many i have read, i thought i would respond.

the facts: chris hedges, heartily disliked by fervent supporters of israel, was not debbie sontag’s superior or supervisor. ever. he was, for a time, the correspondent based in cairo (and i am not sure their times much overlapped if at all).

but mr bernstein says he was “middle east bureau chief” and thus he extrapolates he was sontag’s supervisor. this is a “salient” fact to explain her coverage, he writes that i omitted.

this has all the elements of the conspiracy-spinning mind that snatches at odd facts (and untrue notions) and puts them together in a way to confirm some previous notion.

as i suggested above, it has been heartily dismaying to read so many nonsensical comments — from people who come at the issue from both sides– as it demonstrates the obstacles such obduracy presents to honest, or even minimally intelligent discussion

From this comment, one can perhaps see the origins of the problems with Lewis’s piece. First, Lewis implies that Hedges is apparently not reasonably considered hostile to Israel by anyone except “fervent supporters of Israel.” Recall that Hedges has expressed a strong preference for Hezbollah and Hamas in their conflict with Israel. I should think that any person who values liberal democracy over Islamic theocracy and terrorism would find Hedges’s views objectionable; Lewis apparently disagrees. Moreover, it’s hardly just supporters of Israel, much less just “fervent” ones, who have objected to his radical foreign policy views. But Lewis’s attitude is consistent with the notion implied in his article that only the fringe is likely to see anything worth criticizing in the Times’s Israel coverage.

Second, while I can understand why Lewis was annoyed by my misstatement of fact, it’s a long way from such a misstatement to being “ignoran[t]” and having a “conspiracy spinning mind” incapable of “intelligent discussion.” (Mr. Lewis, did the Times never have to issue a correction for any of your articles? If so, does that make you ignorant etc.?) This, however, is apparently what Lewis thinks the Times’s more vocal critics, an attitude that occasionally reveals itself in his article. Indeed, Lewis is so caught up in what he sees as the unreasonableness of his critics that he failed to note that I started my post by agreeing that the basic thrust of his piece was correct, i.e., that its general take on the Times’s coverage reflects what every “fair-minded observer already knows.” But hey, I’m just a simple-minded ignoramus.

Finally, what does Lewis’s piece say about the attitude of the MSM toward its critics on the right? Lewis seems to acknowledge that the Times’s coverage of Israel has a point of view (i.e., a “bias”), but seems perplexed that anyone cares or objects when that bias manifests itself in the Times’s reporting.

I’ve blogged before about the New York Times’ coverage of Israel, so I thought I’d point out a piece in the Columbia Journalism Review by former Times reporter Neil Lewis on that precise topic.

Unfortunately, it’s trite, largely repeating what any fair-minded observer already knows: first, that the Times is not hostile to Israel, per se, but its reporters’ and editors’ views of “proper” Israeli policy have for decades leaned far to the “left” of actual Israeli policy, which in turn makes much of its coverage implicitly adversarial (and which also explains why folks that are truly hostile to Israel think that the Times is a Zionist rag); and, second, that in a David vs. Goliath story, reporters tend to strongly favor David. As the narrative of the Arab-Israeli conflict has shifted from little Israel defending itself against tens of millions of Arabs to stateless Palestinians demanding rights from Israel the advanced military power, reporters, including reporters at the Times, have a natural inclination to skew their stories to favor the Palestinian Davids, with much of the context of the conflict–including those tens of millions of neighboring Arabs still largely unremittingly hostile to Israel–often lost in the shuffle.

Meanwhile the piece misses some opportunities to point out various occasions where the Times’s has deviated from anything resembling fairness to Israel. For example, while Lewis notes that Deborah Sontag, the Times’s Israel correspondent from August 1998-2001, was considered even by her bosses at the Times unduly unfriendly to Israel, he then adds that the Times considered replacing her with Jeffrey Goldberg, a clearly pro-Israel (albeit, as one would expect, left-leaning) writer.

But he somehow neglects to note a much more salient point than the Times’s flirtation with Goldberg: that the head of the Times’s Middle East Bureau during Sontag’s time (and assumedly therefore Sontag’s direct supervisor) was a leftist ideologue named Chris Hedges. As I noted in 2006, we’ve since learned that Hedges thinks that Israel is far worse than either Hamas or Hezbollah. One wonders, in fact, how much of the bias many saw in Sontag’s writing was attributable in one way or another to Hedges. But my main wonder is how someone could write a lengthy essay on this particular topic, and discuss specifically the period when Hodges was in charge of the Times’s overall Middle East coverage, and never even acknowledge Hedges’ existence.

Correction: Hedges was the Times’s Middle East Bureau Chief, but earlier in the decade.
I’m not going to be available to moderate comments tomorrow, so comments will be open, but not indefinitely. But I stand by my general point, which is that even though Lewis acknowledges in the abstract that the Times’ coverage of Israel is often adversarial, he fails to point out ANY instances where agrees that the Times’s coverage was actually unfair.

Note: This is the second of two book “reviews” I’ve been hoping to do since about August, but my fall got so busy with actual paying work that they were both pushed off until the delightfully slow week between Christmas and New Years.  “First Thing We Do, Let’s Deregulate All the Lawyers” was the first, but Jonathan kinda beat me to that.  This is the second.

=====================

We’re all lawyers here, right?

If you’ve ever regretted your career choice, I have the antidote:  Paul B. Spelman’s “Even Worse Than We Had Hoped: A Journey Through The Weird Wild World Of Local TV News,” the memoir of a former local TV news reporter who is now a lawyer at the Federal Trade Commission (and until 2010 was an associate at my firm).

After leaving the truly small time as a radio reporter in Telluride, Colorado—where Christie Brinkley made a donation to his station in gratitude for Spelman’s lack of killer instinct in investigating the story of her ski accident, Spelman’s first assignment as an on-air TV reporter was in the perfectly named Whiteville, North Carolina, where he found a sign outside one of the 86 (no joke) local churches reading “Let Jesus Fix Your Achy Breaky Heart.” Spelman is “something of a curiosity” to the townsfolk as a “half-Jewish New Yorker whose only religious experiences came from attending classmates’ bar mitzvahs.” (I am confident that many Whiteville residents are, like you, puzzling over whether that should have been “B’nai Mitzvah.”) There, Spelman gains experience operating a one-man news “bureau,” or “one-man band” in industry argot, simultaneously serving as his own cameraman as he videotapes himself reporting from the scene day after day. Spelman explains how local reporters work to turn mundane events into seemingly hard-hitting stories—the book’s title comes from a statement a local anchor supposedly made to the reporter covering a story about how an accident had been worse (and thus more newsworthy) than expected.

One sample grab comes describes how Spelman, by then working in East Tennessee, was dispatched to get footage of the farm of a former judge who had been arrested for growing marijuana there. By this point, Spelman had achieved the seniority necessary to warrant having an actual cameraman, Dan, accompany him to cover his stories. Because of delays in finding the farm, the judge had posted bond by the time they got to the scene, and Spelman’s admirable efforts to explain his rights to collect footage from a public roadway came to naught when the judge pulled a rifle case from his truck. Recognizing that the judge had the better of the argument,

We drove off, but unfortunately, we drove in the wrong direction, heading farther down a windy back road that didn’t seem to lead anywhere. So with a sinking feeling, we realized we’d have to turn around and head back to the farm. We decided that if we were going to get shot, we should try to get it on video, so I drove and Dan got in the back seat with the camera. I generously allowed that if the guy started shooting Dan was permitted to duck. “But keep rolling,” I said, “if we survive it’ll be good footage.”

When a highlight of your career is deciding how to caption your response to a sur-reply brief, that is infotainment. Spelman’s book is filled with this kind of gentle, self-deprecating humor, the observations of a person who in many ways is a visitor in his own country. Spelman spares no details, even (or especially) when it is embarrassing; his account of one evening when he spent so long in a courthouse bathroom that he arrived late to cover an aviation mishap ends with the memorable phrase, “luckily for me, it’s unwieldy to remove plane wreckage.” (His account of how he got the story anyway, maybe better than his speedier competition did, is illuminating.)

Admittedly, I grew up in Peoria, Illinois. My standards for a good time may not be the same as for some of you swells who grew up where “entertainment” consisted of something more sophisticated than listening to AM radio in the back of a Plymouth Belvedere as you drove out to a strip mine to shoot beer cans with BB guns. But as I read this book, I kept thinking, “There is a movie in this.”

When I was in my second year at law school, I went to go see the movie Black Robe, about a Jesuit priest trying to make converts in 17th Century Canada. There is a scene where the priest has been captured by hostile Iroquois and he stands waiting, hand held fast to a post, as the Iroquois chief impatiently sorts through clam shells to find one suitably dull to maximize the pain when he uses it to sever his guest’s finger. I left that movie thinking that, even though I had chosen to be a lawyer, life could be worse. Reading Paul Spelman’s book, I had the same feeling. But I laughed a lot more.

That wasn’t her intent, of course–Greenhouse was famously rebuked by her editors at the New York Times for marching in an abortion rights rally in 1989 in D.C.–but consider her recent blog post:

Earlier this month, the American Bar Association traveled north to Toronto for its annual meeting. Doing some homework for a panel I was to moderate, I came upon Section 1 of the Canadian Charter of Rights and Freedoms, added in 1982 to the country’s mid-19th century constitution. Section 1, the “limitation clause,” makes the Charter’s many guarantees subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” A Canadian judge assured me that this requirement of “proportionality,” as various European constitutions with a similar principle refer to it, is invoked constantly and forms the basis for Canadian constitutional interpretation.

Proportionality strikes me as worth considering in preference to the arid absolutism that seems to have taken hold of the United States Supreme Court.

Greenhouse is alluding primarily to the Court’s recent First Amendment cases, but surely Roe v. Wade is the most absolutist case the Supreme Court has ever issued, on a variety of levels–it invalidated the abortion laws of all fifty states; created a regime that permitted virtually no regulation of abortion for the next eighteen years, giving the U.S. the most liberal abortion laws in the world; was significantly out of line with public opinion; gratuitously went well beyond what the Court needed to say to rule in favor of Jane Roe; and invented a right to abortion that’s awfully hard to justify based on either the Constitution’s text or American tradition.

So if the principle of “proportionality” should apply to freedom of speech, an explicit and enumerated right, surely the same principle should apply to allow “reasonable” limits on the unenumerated right to abortion. And surely the USSC should interpret reasonableness in the abortion context with the same leniency that the enlightened Canadian Supreme Court has applied to freedom of speech. Right Ms. Greenhouse? Ms. Greenhouse?

UPDATE: Of course, I’m aware that Casey limited Roe to some degree, and that Carhart v. Gonzalez allowed further regulation of abortion, importantly by not allowing the “health of the mother” exception to trump otherwise acceptable regulations on partial birth abortions (in practice, this exception would swallow the rule). This is why I wrote “for the next eighteen years,” i.e., between Roe and Casey. But in 1989, Greenhouse was marching in favor of Roe, and of course even in Casey the Court’s liberal wing continued to defend Roe. If someone can provide me with some evidence that Greenhouse nevertheless in fact thinks Roe went too far and is comfortable with significant limits on abortion rights [this "news analysis" from 2007, this Q & A from 2008, and this very recent defense of Roe against liberal "backlash" critics, are evidence to the contrary], I’ll be happy to recant. Otherwise, the point–not that the Court is currently “absolutist” on abortion [or, as a couple of commenters who obviously didn't read the Canadian link, bizzarely conclude, that I actually support both speech restrictions and abortion restrictions], but that Greenhouse consternation over “absolutism” is really just a reflection of her own political beliefs–stands.