A Billion Rising (Or 51% of America, Anyway): The GOP Is Killing Itself With The Violence Against Women Act

In 1978 in Salem, Oregon, a married woman who had been a victim of domestic abuse accused her husband of rape.  The rape and the accompanying violence inflicted upon her by her spouse was not a new thing for the woman; the ability to have the state intercede on her behalf was.  Prior to 1978 Oregon rape laws mirrored those of the rest of the country, in that cohabitation was a legal defense against rape.  (In most states this defense was extended to husbands who were estranged or legally separated from their wives.)

The story sparked a national controversy.[1]  The concept that a woman should be allowed to refuse her husband’s sexual advances, violent or otherwise, divided the country’s progressives and conservatives along wholly predictable lines.  That the victim had been beaten, bloodied, and dragged about her house by the hair was not in dispute.  Nonetheless, most of the national press stories focused on the defense’s arguments that she was sexually dysfunctional, frigid, and might well have once had a lesbian encounter.  According to the defense attorneys (who did not deny that the defendant had forced himself upon her), criminalizing such violence was a “wholesale feminist view [of rape]” which would only be pursued by “a manipulative woman seeking either revenge or fame.”

Within three hours of closing arguments, the jury acquitted the husband.  The couple was divorced soon after the trial.  Once divorced, the defendent would break into his ex-wife’s house to continue the harassment; he was eventually jailed for these later transgressions.

By then the genie was out of the bottle, however.  Not surprisingly, the idea that women might have some say about the legal use of their bodies turned out to be extremely popular with women.  Within twenty years each state had done away with its cohabitation defense, and other similar grassroots efforts began to seed changes in how we Americans viewed rape.  In my freshman year my university announced that it would start pressing charges against male students who raped women while on a date.  At the time, it was a revolutionary step (If she didn’t want sex, why was she alone with him?!) and I remember that the newly minted phrases “date rape” and “no means no” were openly mocked as a feminist overreach created for the sole purpose of hurting men.

When I think back on the extreme, vitriolic conviction of those that fought bitterly against efforts to punish perpetrators of marital rape and date rape, I find myself asking the same question, over and over:

How is it possible that these people could not see how far on the wrong side of history they stood?

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As previous noted by both Zic and Nob, today is the day of One Billion Rising.  Ironically, it’s also a time when the expired Violence Against Women Act (VAWA) is in real jeopardy of not being reauthorized.  As with those who stood against the criminalization of marital and date rape, I find myself baffled that those looking to put the death knell in this law cannot see how history is going to view them.

Signed into law in 1994, the VAWA was a federal reaction to both widespread violence against women and the inability or unwillingness for local authorities to protect its victims or prosecute the attackers.  (As US News’s Anson Kaye wryly noted, prior to 1994 “if you robbed someone you were more likely to face punishment than if you raped them.”)

Far from a reach toward Utopian ideals, the VAWA’s mandates are relatively modest: It primarily provides funding for legal aid for victims, rape kits, shelters, crisis centers, awareness training, and community prevention programs.   In addition, it sets rape national shield standards, protects women being evicted due to being the victim of domestic abuse, and looks to establish special protection programs for disabled women. (It also created a mechanism for female victims to sue their attackers in federal court, since it was assumed that certain communities were more skittish than others about punishing men for alleged rape and abuse.  However, the Supreme Court struck down this part of the VAWA in 2000.)

If government statistics are to be believed, it’s hard not to declare the VAWA a success – at least in part.  Since 1994, incidents of “intimate partner violence” have decreased 76%; female murder victims in that same group have decreased 35%.  What’s more, state laws have begun to reflect the ideas and ideals set forth in the VAWA: Raping a victim that you know is no longer considered a lesser crime than raping a complete stranger and stalking has become illegal in all fifty states.  Victims of rape are no longer forced to pay for their own rape investigation.  The National Domestic Violence Helpline receives over 22,000 calls a month; 92% of those callers report that it is their first call for assistance.

And yet it now appears that the VAWA might well become a thing of the past.  Social conservatives within the GOP Senate unsuccessfully voted against extending the VAWA’s provisions, but it appears the House Republicans are in a position to scuttle the Act for a second year in a row.

There are a number of reasons offered by those voting against.  It is true that some of these objections have to do with the Act’s newest provisions:  The proposed VAWA now looks to extend its protections for victims of rape and abuse to partners in same-sex marriages, Native Americans on tribal lands, and undocumented workers – all of which is a step too far for many in the GOP.  But many of the objections are philosophical and ideological.  Many conservative Republicans simply do not like that it is a Federal program.  They see the previous system – where states were allowed to determine what extra protections and preventions, if any, should be afforded women – was a better model. But tellingly, at least from a historical perspective, was the reason given not only by social conservative Senators and Congressmen, but also the Heritage Foundation and FreedomWorks:

The VAWA will just encourage women to fraudulently claim they are the victims of violence and rape.

The more things change, and so forth.  This lynchpin argument for those opposing violence-against-women legislation remains the same today as it was twenty, forty and sixty years ago: If we criminalize such violence, women might run wild with false accusations and we men will be at their vindictive mercy.  I find this argument bizarre, and telling.  Of course it’s possible to falsely accuse people of rape or other violence against women – just like it’s possible to falsely accuse people of every other crime we prosecute.  When I was in my early twenties a disgruntled co-worker who had embezzled money from the company accused me of the theft in an unsuccessful attempt to throw corporate investigators off of his trail. I didn’t come away from that experience with the conclusion that we should stop prosecuting those who commit theft.

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It is perilously easy to forget how hard our culture has fought against the idea of protecting women from men within our own lifetimes.  The truth, however, is both that we’ve come a remarkable distance in the past few decades and that we’ve still got a fair way to go.  Politically speaking, this puts conservatives at a tremendous disadvantage since just about half of all potential voters in most elections are women.

In my lifetime, resistance to change in longstanding cultural traditions – and the seemingly irresistible urge to oppose “feminazis” – has put conservatives (initially) on the wrong side of history with issues such as the state’s ability to prosecute men for marital rape, date rape, spousal abuse, and domestic violence.  In addition, they (again, initially) stood opposed to women being able to find legal remedy for sexual harassment, unequal pay, family leave, employment termination due to pregnancy, ability to sue for unpaid child support, and paternity testing when a man refused to fess up to sexual dalliances.  In my father’s generation before me, conservatives fought hard to keep status quo laws that unilaterally allowed one gender to commit justifiable homicide in cases of marital infidelity, granted unwilled estates to sons rather than spouses or daughters, and disallowed prosecutions of rape where there were no third-party witnesses.

It would be a mistake to hang conservatives today for any of these positions (well, almost any of them, anyway), but mothers talk to daughters and cultural memory runs long.  Because of this, fair or not, the perception of being anti-women is a cross that conservatives must bear today.  What is less clear is whether or not they necessarily have to continue to bear that cross into the future.

It seems painfully obvious to me that on domestic violence legislation, the GOP is swimming hard against the inevitable tide of history.  (It certainly doesn’t help that their opposition to the VAWA follows so closely on the heels of mandatory transvaginal ultrasounds, threats to charge rape victims who take morning after pills with tampering with evidence, and statements that pregnancy shows you probably weren’t raped.)

They’re going to continue to slowly lose this battle, and they’ll do incalculable damage to their brand along the way.  And thus a choice: They can choose to reexamine their fear of allowing men to be as legally vulnerable to women as women are to men, or they can prepare to be forced to try to explain to the deaf ears of my kids’ generation of women why the accusations of misogyny are unfounded, leftist propaganda.

Conservative GOPers pride themselves on being the party that sticks up for the victim and are willing to get their hands bloody getting tough on the perp.  The last thing they need right now is to add an asterisk that says, “except in cases of violence against women.”

Republicans that want their party to get a whiff of 1600 Pennsylvania Ave. in 2016 might want to call their congressmen soon.

[1] Interestingly, even though it was a hot-button topic at water coolers around the country some Oregon newspapers refused to cover the story at all.  The Silverton Appeal-Tribune actually announced its refusal to dignify the story with an article in its editorial page, declaring “what goes on in a bedroom between a husband and a wife is only between them and their Creator… No jury would ever convict a husband under this new Oregon law.”

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195 thoughts on “A Billion Rising (Or 51% of America, Anyway): The GOP Is Killing Itself With The Violence Against Women Act

  1. The proposed VAWA now looks to extend its protections for victims of rape and abuse to …Native Americans on tribal lands,

    This is a huge problem that’s gone mostly unnoticed (because who pays attention to intra-tribal issues, right?). But it’s effectively open season on Native American women on tribal lands. The tribal authorities don’t want outside intervention, and don’t want to actually deal with the issues themselves, and states are mostly content to let what happens on tribal lands be the tribe’s issue.

    I can see arguments against getting involved at the state level (which is not to say I’m arguing for that), but the federal government has explicit constitutional authority over Native American tribes.

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    • I can see arguments against getting involved at the state level (which is not to say I’m arguing for that), but the federal government has explicit constitutional authority over Native American tribes.

      This is very true. There is no “should this be a federal issue” question here.

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      • Well, just to toss one out, how about questioning whether it’s the federal government’s job to impose white liberal Christian morals on Indian tribes, and whether this idea is being pushed by the exact same people who normally spend all their time trying to make everyone fell guilty about our past imposition of white liberal Christian morals on Indian tribes.

        Will this become another case where we’ll all be berated for not supporting the proposal until we give in, and then spend the rest of our lives (along with our children and grandchildren’s lives) getting viciously browbeaten for passing it?

        The flip side of that argument is one I had a year or so ago with a libertarian who was outraged that we forced Indian children into schools. I pointed out that it would’ve been completely immoral for us to cruise down the highway in our Cadillac Escalades dodging hunter-gatherer bands, keeping an entire population virtually in the stone age with no access to modern education, medicine, or technology, just because we’d rather have children starve to death in the snow than feel a twinge of guilt about having made changes to a culture we were cohabitating with. Our stance is that no child should go without access to a modern education.

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          • Yeah. I used to work in Cherokee NC. Some of the girls talked about one of their giant coworkers who only liked to have sex by holding a girl upside-down by the ankles and banging her head on the floor. I thought that was odd.

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        • “the exact same people who normally spend all their time trying to make everyone fell guilty about our past imposition of white liberal Christian morals on Indian tribes.”

          FTR, I’m not sure that people’s horror at how we treated Native Americans was that we taught them “morals.”

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          • Yeah, I’m trying to figure out how borderline genocide and forced exodus and relocation parallels with “white liberal Christian morals.”

            And is it also forcing this morality on those tribes to protect the women of those tribes from rape? To give them some recourse from such an act?

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          • Indeed I was, Gaelen, and liberals were very proud of their efforts at bringing Indians rapidly into the modern age. Now they’re horrified. It’s easy to pass judgement in hindsight, but the alternative was to let them remain illiterate hunter-gatherers, and that wasn’t acceptable to anyone, even the Indians in the Bureau of Indian Affairs. We’d always had Indian military officers, quickly rising to the ranks of generals and admirals, and by the 1920’s we had an Indian Vice President.

            My qualms about the current measure is whether Indian tribes will end up with feds, total outsiders, second guessing all their police actions and court decisions and trampling all over everyone in a sanctimonious rush to “help” them some more.

            BTW, when I was working in Cherokee they were pissed off about Bill Clinton’s vast array of new death penalty offenses, which pretty much only applied to Indians since everyone else would face state prosecution instead. Of course, to qualify for some of Clinton’s death penalties, a Cherokee would have to be out in the Smokies with a firearm (they hunt all the time) somewhere near a patch of marijuana (which is everywhere down there). They laughed that it was his way of trying to finally exterminate them.

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            • “It’s easy to pass judgement in hindsight, but the alternative was to let them remain illiterate hunter-gatherers, and that wasn’t acceptable to anyone”

              Pass judgement . . . and think of better ways of handling both this situation, and ones similar to it. These problems, which people are still dealing with, require critical reflection on the past as a means of devising better alternatives in the future.

              “My qualms about the current measure is whether Indian tribes will end up with feds, total outsiders, second guessing all their police actions and court decisions and trampling all over everyone in a sanctimonious rush to “help” them some more.”

              This seems like how you should have answered Will’s question. I don’t know if I think this outweighs the travesty occurring right now, but it seems like a productive conversation.

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            • “It’s easy to pass judgement in hindsight, but the alternative was to let them remain illiterate hunter-gatherers, and that wasn’t acceptable to anyone”

              Our choices were genocide or poor reading comprehension skills? A shame we couldn’t have thought outside the box to come up with a third option.

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        • George, far from us imposing our Christian morals on native Americans, rape and abuse is criminalized on the state, federal, and tribal level. This is a jurisdictional amendment which only deals who has authority to investigate and try the alleged abuser.

          It’s also a little rich to talk about imposing Christian values about women’s rights on less patriarchal Native American societies.

          And, not to pile on, but do you honestly think those were the options? You can’t think of any other option to the plight of the Native American (whose starving child was caused by us), than forced education in the manner in which we chose to conduct it?

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        • Will this become another case where we’ll all be berated for not supporting the proposal until we give in, and then spend the rest of our lives (along with our children and grandchildren’s lives) getting viciously browbeaten for passing it?

          Just so we’re clear, what was the first one of these? Or the other one(s) you had in mind?

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          • Um, not only was rape condoned, in many tribes so was the murder of women and children. Chief Tecumseh became a leader in part because of his skill at sneaking up and killing unsuspecting women and children when they ventured to the edge of their village , which was considered a much braver act than killing enemy warriors because it involved much more extreme risk.

            Since Hindus weren’t here in any numbers, it was a question of letting that kind of behavior continue or putting an end to it with lots of Bible lessons.

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            • Come on man, pointing to the atrocities committed during war, when raping enemies was just as prevalent among Europeans (and, lets be honest, basically everybody else), doesn’t really deal with the issue. The problem is not with Native Americans not wanting to prosecute rapists, it’s with there lack of ability to do because of US law (which this fixes).

              There’s also the issue that your original comment is talking about the imposition of Christian values against rape in the present situation, then, when challenged, cite 150 year old military practices.

              “Since Hindus weren’t here in any numbers, it was a question of letting that kind of behavior continue or putting an end to it with lots of Bible lessons.”

              I don’t know your relationship Murali, so if this was meant as a joke sorry for taking it too seriously. But did you not notice that spousal rape was on the books in the US in the 1990’s? Or that the primary supporters of the law were fundamentalist/evangelical Christians.

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            • I’m not talking about atrocities committed during war. I’m talking about everyday life. The war season starts in the spring and runs through fall, pretty much every year. Each year’s crop of new warriors has to go out and prove themselves brave and worthy, which is best done by killing some women and children from a different tribe. If the war was bigger and more organized it would consist of a campaign of extermination and mass exodus.

              In many areas, an Indian woman who encounted a male from another tribe outside her village expected to be murdered. For just one example, when Lewis and Clark’s party encountered a pair of Indian women just outside one village in the Rockies, the women fell to their knees and started weeping over their imminent violent death, and it took the party quite some time to convince them that they weren’t about to be hacked up for trophies. The women were so overjoyed at this unheard-of turn of events that the exploration party was given a feast.

              Much further to the south, of course, thousands of Indian captives would be lined up on top of a pyramid to have their hearts cut out of their chests, which somehow kept the sun happy and shining. Their skins were then worn like coats to honor them, and of course the Flayed god.

              But back to the point, could this be another case where white folks are imposing a set of laws on Indians after about two minutes of thought, embellished by some sanctimonious grandstanding about puppies and babies, with the main purpose being to demonize some political rivals in Washington and not the slightest care if Indians want or need such legislation? To figure that out would take more than two minutes of thought, and apparently anyone suggesting that two minutes isn’t quite sufficient time for the consideration of the legal, political, and social ramifications is a misogynistic woman-hater who kicks puppies. Something like that was probably how we ended up rushing Navaho children into boarding schools in New Jersey.

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              • George,

                I want to use all caps, but raising my voice would be rude. We are not, I repeat not, imposing some laws on Native Americans. This law only allows Native Americans jurisdictions to deal with the problem, using laws that already exist (I really wanted to shout there).

                ” To figure that out would take more than two minutes of thought”

                This is rich. Maybe you should take a few minutes before typing something like that to at least check to see if this was a real problem that congress was trying to solve. This has been an issue for a while, Native Americans are none to happy that a they cannot prosecute a white guy who rapes a Native American women on tribal lands, but your probably right, they want the federal government to handle it.

                And no, Native Americans ended up in those Christian schools for the same reason they didn’t have jurisdiction to prosecute a white man–our paternalistic attitude which has little or no respect for their autonomy.

                You keep pointing to the admittedly horrible practices of Native Americans (still during war season), trying to prove what point exactly? That they needed our Christian values to be imposed on them? The fact of the matter is that inter-tribal violence (between tribes, Europeans and tribes, between Europeans, between pretty much everybody) was, and still is, horrific. I mean, these were things that, generally speaking, everybody did, and you point to the practice in Native Americans tribes as evidence that they were immoral heathens.

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                • And yet, in this same span of comments, we have arguments that the Federal government is merely empowering the Native American legal system to enforce their laws, and other arguments that we’re finally going to force those backwards, conservative, Archie Bunker Indians to advance past the 1970’s (see below).

                  Given that politicians are like used car salesmen, I’m suspicious of the argument that the police don’t have the power to enforce the law through some kind of legislative oopsie that we’ve only just realized was there – after a century or so. I’m suspicious when I see arguments that Indians want this new law, juxtaposed with arguments that we have to pass this new law because they don’t want it.

                  As an aside, there’s an episode of the police show “Longmire” that centers on corrupt white child and family services officials using false charges of child abuse to take native American children into foster care so they’d get federal money for it, paying kickpacks to Indian “informants” for calling in tips, and then making vastly more money by adopting the Indian kids out to white families. It’s just a mystery show, but one of the few that deals with Indian law enforcement and the tension between tribal a state law (and is A&E’s highest rated drama, staring Robert Taylor, Katie Sackhoff, and Lou Diamond Philips).

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                  • George,

                    Here’s the bill, its section 904. This really does just provide concurrent jurisdiction for tribal courts in cases of domestic abuse. Other than Kazzy’s somewhat ambiguous comment you seem to be the only one arguing that the law imposes our values on Native Americans.

                    On your second point. This wasn’t a legislative oopsie, the reason tribes did not have jurisdiction (and still don’t for many crimes by non-Indians) is exactly the arguments that Republicans are making now.

                    And on your third point, I’ve actually worked a little on these issues (emphasize little), and while that show is obviously a drama, your right that there are some very real problems there.

                    http://www.gpo.gov/fdsys/pkg/BILLS-113s47es/pdf/BILLS-113s47es.pdf

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              • Something that hasn’t been addressed in this thread, and that George in particular needs to take into account is that the issue isn’t just, or even mostly, about Indians raping Indians, but whites raping Indians. State courts can’t deal with it because they don’t have jurisdiction on tribal lands, and tribal courts can’t deal with it because they don’t have jurisdiction over non-tribal members, so nobody has jurisdiction over whites who rape Native Americans on tribal land, unless the federal government claims jurisdiction or allows tribes jurisdiction over non-tribal members.

                So if George wants to talk about a culture that values rape, maybe he should be pointing ha finger at white American culture instead of Indians. Maybe the real culture imperialism is our implicit agreement that Indians should be defenseless against white who want to rape them.

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                • My understanding is that it’s a bit more complex than that.
                  The act of crossing into federal land to perform a criminal act or to elude the authorities is the part that actionable, and not the criminal act in itself.
                  In the other case, the federal courts provide a cause of action, but this is a civil matter, and damages are limited to those actually incurred. There has to be monetary damages.
                  It’s really not so much an issue of rape, but an issue of law enforcement across the board.
                  And again, my understanding may be somewhat faulty or dated.

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        • George, are you suggesting that rape of their fellow tribal members is a part of traditional Native American morality? Because if protecting Native American women from rape is an imposition of white morality, then that sure seems to be the necessary implication?

          And from a libertarian here, forcing someone into school is one hell of a long way from protecting someone against forcible rape. I wouldn’t have imagined that any reasonable person would have found it hard to see a difference between the two, but apparently my imagination is more limited than I thought.

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  2. From what I have read the reason the conservatives are wary of extending the protection on Native American lands is:

    The current Senate version of VAWA would give tribal courts jurisdiction over the cases just described. That sounds simple enough, but it’s actually incredibly problematic for many conservatives. Tribal courts aren’t bound by the First, Fifth, and Fourteenth Amendments, and often “fail to provide due process,” as the Republican committee members’ report argues. So passage of the law would undermine the constitutional rights of American citizens. And if tribal courts have jurisdiction over these cases, why not give them jurisdiction over others?

    I couldn’t find the actual text of the reauthorization itself. I am always leery of a new article telling me the specifics of a bill, they sometimes forget to put in the important parts.

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      • I’m looking for that very thing. Still haven’t found it yet. Here is what I found for text of the bill. Now if I only understood how to read it. Do you have to have the text of the current bill to how the changes affect the overall text of the bill? Anyone have any tips for reading bills?

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          • So is the whole thing that the abuser is non-native and the victim is native? I’m trying to figure out why either the Native courts wouldn’t already have jurisdiction or the surrounding municipality would have jurisdiction.

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            • The Native courts don’t have jurisdiction because the Tribal Nations are still largely subjugated peoples. At least legally.

              The surrounding municipality doesn’t have jurisdiction because it’s tribal land. The tribe doesn’t have jurisdiction because the sovereignty of the tribes is not entirely fully recognized.

              In reality, if you’re on tribal land, you’re both on U.S. land and on Tribal land and on neither.

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            • Just Me,

              That is a big part of the problem. Tribal courts only have jurisdiction over tribal members, and state courts only have jurisdiction off of tribal lands. So white men are effectively unconstrained in raping tribal members on tribal land. Obviously most white men are doing no such thing, but it only takes a few to wreak havoc.

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            • From American Jurisprudence second,

              “The Indian Civil Rights Act is enacted in language taken nearly verbatim from the Bill of Rights of the United States Constitution; accordingly, due process under the Indian Civil Rights Act is the same as that guaranteed in the Federal Constitution.

              The legislative history of the Indian Bill of Rights makes it clear, however, that Congress intended that the provisions of the Fifteenth Amendment, certain procedural provisions of the Fifth, Sixth, and Seventh Amendments, and, in some respects, the equal-protection requirement of the Thirteenth and Fourteenth Amendments should not be embraced in the Indian Bill of Rights”

              The key exceptions for the statutes purpose seem to be a right to a public defender, and civil jury trials.

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                • All of this may be true, and if I remember the original kerfluffle a few months back, even Darrell Issa had an OK compromise idea, but my question is, yes, if you commit a crime on Indian lands, why shouldn’t you be under the laws of that tribe, even if you’re not Native? After all, if I got caught with an ounce of pot in New Jersey, I can’t say, “hey, I’m really from Washington, so you can’t arrest me!”

                  In addition, since domestic violence on native lands by non-native people is currently under federal and state law in many cases, they are hours away and lack the resources to respond to those cases. OTOH, tribal courts are on site and familiar with tribal laws, but have no jurisdiction when domestic violence is done by a a non-Native American individual.

                  I realize Indian reservations are in this weird place where they’re sovereign entities, but not really fully independent, but not really under the purview of state governments for many things, but it’s not as if you can be sent to some secret Native American jail for decades. By federal statue, tribal courts are limited to sentences no longer than one year and fines no more than $5000.

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                  • “The way that this is addressed” wouldn’t necessarily be taking jurisdiction away from the tribes. It would be to ensure that in domestic violence cases, the accused’s rights are adhered to. If the tribes want to take care of it internally, they add those protections (at least for these crimes). Otherwise, it would need to be under federal jurisdiction. That’s more along the lines of what I was thinking.

                    On the other hand, the limit of one year and $5,000 throws all of that into question. If those sentences are tribal maximums, then why do we want them handling crimes where penalties warrant a much greater punishment? So either those limits are being waived in the case of rape and we do need to add protections for the accused, or those limits are not being waived and we don’t want them handled under tribal jurisdiction.

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                    • Just thought I’d pass this along, from the National Task Force to End Sexual and Domestic Violence Against Women.

                      Fact: Under Section 904, tribal courts must provide defendants with the same constitutional rights in tribal court as they would have in state court. Defendants would be entitled to the full panoply of constitutional protections, including due-process rights and an indigent defendant’s right to appointed counsel (at the expense of the tribe) that meets federal constitutional standards. This includes the right to petition a federal court for habeas corpus to challenge any conviction and to stay detention prior to review, and explicit protection of “all other rights whose protection is necessary under the Constitution of the United States.”

                      It also requires that non-tribal members not be excluded from the jury pool.

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                  • my question is, yes, if you commit a crime on Indian lands, why shouldn’t you be under the laws of that tribe, even if you’re not Native?

                    I think there is a very obvious, and very correct, liberal answer to this question.

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                    • James,

                      Are you talking about possible problems with the substantive or procedural law of the tribes not being in conformance with our accepted notions of justice?

                      Being a liberal it feels like I should be able to knock this question out of the park, but I might be missing your point.

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                    • Sorry to be obscure. I think the problem is simply racism, the terrifying idea that red Indians might be allowed to sit in judgement over good ol’ white boys.

                      Congress has authority to fix any procedural concerns through simple statutes, but I would expect resistance even to that, and I would suspect racism, even though everyone would do their best to avoid any overtly racist language.

                      To folks who grow up in areas fairly removed from Indians, they still seem foreign and mysterious.* In regions where Indians are more common, there tends to be a surprising amount of racism, although not always overt, like the question my brother and I were asked after we spent a couple nights camped out on the side of the road on the Crow reservation in Montana: “Weren’t you scared?”

                      *I know a midwest born, raised, and educate college professor who has a particular interest in Native American legal issues. But he doesn’t know jack about Indians, and when one spoke at his college he treated her not as a person, as an individual, but as an Indian, a representative of all Indianness. He even pushed another colleague to talk about her collection of Southwest Indian art to this northern plains Indian, entirely clueless of the intervening cultural distance.

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                    • Ah, my bad, and that played into my preexisting biases so nicely.

                      “To folks who grow up in areas fairly removed from Indians, they still seem foreign and mysterious”

                      It’s funny you should mention that because I’ll cop to having that reaction. I grew up loving Native American history, and as it turned out I moved to Minneapolis for school, where my apartment was right by (or maybe even in (I was never clear on the precise boundary lines)) ‘Indian Country.’ I remember talking to the people in the neighborhood for the first time and thinking how exotic it felt. But lucky for me that was an easy habit to break as, when your in that situation, it’s either get over it or have your neighbors suddenly find other things to do when you come around.

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  3. At this point, we need to ask ourselves what is the GOP not killing themselves with?

    The keep on alienating women with VAWA and their constant crusade against rape victims, and women seeking abortions.

    They are alienating themselves among all immigrants, not just Latinos.

    And then there is the matter of Chuck Hagel.

    http://www.theamericanconservative.com/larison/senate-republicans-make-a-spectacle-of-themselves/

    http://prospect.org/article/why-asian-americans-are-so-democratic%E2%80%94-three-charts

    The GOP can probably (but shouldn’t) ignore the American Prospect. However, if Daniel Larison is telling you that something is completely useless and tone-deaf, then the GOP has a problem. Larison is no liberal.

    These things don’t last forever. The GOP presumably still has a gerry-mandered advantage in many areas that makes purity possible. But I feel like they keep on shooting themselves in the foot even if this guy becomes the next governor of Virginia:

    http://www.slate.com/articles/news_and_politics/politics/2013/02/ken_cuccinelli_s_is_ultraconservative_and_likely_to_be_virginia_s_next_governor.html

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    • Possibly, though similar comparisons were made in the 90’s and those didn’t pan out. I find it very unlikely that the GOP will go the way of the Whigs. They may spend some significant time in the wilderness and come back a substantively different party (though with the same name).

      Thanks for sharing the Prospect link. Interestingly, it contradicted something I read the other day (the Prospect saying that native-born Asian-Americans are more conservative/Republican, the other link suggesting subsequent generations are actually more liberal).

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  4. Rand Paul gave a shout-out to Adam Smith in his State of the Union “response”, too.

    It’s no surprise that their views on women and economics are both stuck in 1760.

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      • The Theory of Moral Sentiments, Adam Smith’s first work which included his “invisible hand” theory, was published in 1759.

        Particularly this load of dung:
        “The rich only select from the heap what is most precious and agreeable. They consume little more than the poor, and in spite of their natural selfishness and rapacity, though they mean only their own conveniency, though the sole end which they propose from the labours of all the thousands whom they employ, be the gratification of their own vain and insatiable desires, they divide with the poor the produce of all their improvements. They are led by an invisible hand to make nearly the same distribution of the necessaries of life, which would have been made, had the earth been divided into equal portions among all its inhabitants, and thus without intending it, without knowing it, advance the interest of the society, and afford means to the multiplication of the species.”

        I’m not surprised you haven’t read the works that your views come out of, though.

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        • The publication of The Wealth of Nations is generally regarded as marking the birth of classical economics. The Theory of Moral Sentiments was more of a philosophical work.

          And no, I haven’t read them in full, but neither would I say that my views come out of them, except through a long chain of derivative works.

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          • Smith is history, basically, in the literal sense of the word. Much of what he wrote has withstood the test of time, but a great deal has been done to build upon the foundation he established. Learning economics from Smith is like learning physics from Newton.

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            • In engineering school I took Engineering Physics I and II, both of which were five credit-hour courses. The only five credit-hour courses I’ve ever seen or heard of. All of it was chock full of calculus.

              We didn’t get into non-Newtonian stuff, i.e., physics that couldn’t be derived from Newtonian principles, until the final two chapters, which were little more than an addendum. Unless you’re dealing with the really, really fast, or the really, really small, Newton rules.

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              • Sure, but physics is more than mechanics. There’s electromagnetism, for example. For that matter, did Newton actually fully develop what we now call Newtonian mechanics?

                My point is that you wouldn’t generally use a translation of Principia Mathematica as a physics textbook. Modern texts are preferable even if only in a pedagogical sense.

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                • Pedant alert: Newton’s book was entitled Philosophiæ Naturalis Principia Mathematica, and is often called Principia for short. Principia Mathematica means Russell and Whitehead’s landmark book about logic and set theory. And it’s a perfect example of what Brandon’s saying: a book of great historical interest you would never use as a textbook, because its approaches to both mathematical logic and set theory are seriously at odds with more modern ones.

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              • Newton was pretty thorough, and you could teach a good class just on what he covered in the Prinicipia, although aside from wave/particle duality we’d miss some energy methods like Lagrangians, most fluid flow (although hypersonic is still pure Newton), and thermodynamics. The big problem is that engineering students aren’t going to be very happy seeing pages of “Motus totius est summa motuum in partibus singulis, adeoq; in corpore duplo majore æquali cum Velocitate duplus est, et dupla cum Velocitate quadruplus.”

                Adam Smith, however, wrote in plain English for a wide audience. His genius is in his observations, perhaps unmatched until Hernando De Soto’s work in Peru.

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  5. The proposed VAWA now looks to extend its protections for victims of rape and abuse to partners in same-sex marriages, Native Americans on tribal lands, and undocumented workers – all of which is a step too far for many in the GOP.

    That’s odd. Indian reservations are one of the few places where Congress actually has legitimate jurisdiction over these issues.

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  6. I don’t see why the Family Violence Prevention & Services Act of 1984 is inadequate.
    And there is concern to me that additional legislation is ineffectual, if not outright damaging, were amending the previous legislation the real issue.
    The VAWA was written with re-authorization as a requirement because its provisions were not necessary for the establishment of permanent law.
    For any of the issues named: inadequacy of long-arm statutes, ineffectiveness of remedy at the state level, etc. — there exists a more functional remedy which addresses the issue at hand while addressing all similarly situated parties.

    The VAWA is a boondoggle for social workers, and little more. The VAWA provides some perverse financial incentives that are inappropriate in a number of ways.
    It strikes me as more politics-as-usual: The Left says, “We have a problem here (which is often a legitimate problem) which can only be addressed by everything under the sun!” after which, the Right becomes purely reactionary, and everyone loses sight of the issue at hand.

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  7. If government statistics are to be believed, it’s hard not to declare the VAWA a success – at least in part. Since 1994, incidents of “intimate partner violence” have decreased 76%; female murder victims in that same group have decreased 35%.

    To put this in context, since around 1990 crime has been declining pretty much across the board. Rape in particular peaked in the late ’70s and had already fallen nearly 50% by 1994. I can’t find statistics on domestic violence going back that far, but the overall murder rate has declined by nearly 50% since 1994.

    Another problem with this sort of post hoc reasoning, aside from the fact that it’s post hoc reasoning, is that the federal government is a weather vane for public sentiment. If public sentiment turns against racism, or sexism, or homophobia, then the government will pass anti-racist, anti-sexist, and gay rights legislation. And racism, sexism, and homophobia will decline, but probably more because that’s the way the wind is blowing than because of the federal legislation.

    I’m calling it now: Thirty years hence, big-government types will be talking about how the federal government taught tolerance for gays and lesbians to the benighted masses. Those of us who are old enough will remember that it was the private sector that lead the way, with corporations granting same-sex domestic partner benefits to their employees decades before the federal government finally jumped on the bandwagon.

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    • To be clear, I’m not saying that the VAWA act did no good. Only that this is not a very good argument for the claim that it did good, and that it certainly doesn’t deserve credit for all of that improvement.

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    • Much of the word funded by VAWA is work helping abused people — women and children mostly, but some men, too — get out of abusive relationships. Physically put distance between themselves and the person abusing, and build stable lives, both emotionally and financially, separate from the abuser. It’s value at decreasing crime lies in it’s value in decreasing opportunity

      You may call that a boondoggle for social workers, but from what I’ve seen, social workers are underpaid, overworked, and there are not enough of them to do the job they’re asked to do in helping families where there is ongoing domestic violence.

      It takes a lot of courage to get out. The process of getting out increases the danger, it seems to be the trigger for many of the murders that are classified as ‘domestic violence.’ To do it successfully and safely, abuse victims need help, VAWA made funds for that help available to many thousands upon thousands of battered souls.

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      • +1

        The VAWA has been part and parcel of ongoing efforts to educate people about the realities of domestic violence and help the victims get out of abusive relationships. It used to be taboo to talk about the subject but awareness has greatly increased over the last twenty or thirty years.

        The whole conservative meme that women will use the provisions of the act to make false abuse claims is insulting. Yes, in divorce cases, there are always some unscrupulous folks who’ll lie about abuse to score points. But the number is very small. When Republicans use this logic as a reason to vote down the bill, they further alienate a large number of women. Keep it up guys.

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        • Actually, I was the victim of restraining order abuse myself, in the context of a bankruptcy proceeding.
          I was in Milwaukee and the debtor in St. Louis. I hadn’t seen her for 9 months.
          Suddenly, after I hired a private detective to perform an asset investigation pursuant to the bankruptcy, she was “in fear of her life” due to “the stalker.”

          Compare Fed.R.Bank.P. 9027. (It’s something of a pair with Rule 9031; 9011 is the notice requirement.)
          But that’s how I know that Chapter 7 of the bankruptcy code contains its own definition of “domestic violence.”

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              • And to be clear:
                I’m not saying that the fears of the debtor were not very real.
                Were it me who had declared 56% of my income to the bankruptcy court, and there were a number of other persons I had enlisted in the alienation of property, I’m sure I would feel a bit fearful were someone to hire a detective to procure the documents necessary to establish the nature of the discrepancies.
                It’s just that the fears were fantastically misstated in this case.
                But that’s not the sort of thing that would give a family law court pause.

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      • If I believed this for a second, I might agree with you.
        However, from what I’ve seen, it speaks very much to the contrary.
        “Domestic violence” these days has very little to do with persons being battered.
        Some states are prone to significant abuses; others, not quite so much.
        From what I’ve seen & read, the main effect of VAWA is the proliferation of orders of protection in the context of divorce cases. They are now typically filed as a matter of course simply to create leverage, in removing the father from any manner of parental activity until the final decree is granted. That is, the VAWA harms families when the families are at their most vulnerable.
        The VAWA provides money to the states for every order of protection granted. And guess what happened to the number of orders of protection after that?
        This isn’t about common law battery or people living in fear (“domestic violence” stopped being about that sort of thing long ago). This is about Fourth and First Amendment abuses being underwritten by the federal government.

        Of course, every social worker under the sun needs MORE MONEY MONEY MONEY!!!!! because everything from stale bread to tooth decay could be cured instantly if only their one little hobby horse could be made into a golden idol to be carted through the streets.

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        • False accusations happen sometimes in divorce cases, making it more difficult to sort out the real cases of abuse from the false ones. But, every law has its abusers. If people weren’t trying to misuse this one, they’d be misusing another one, particularly in nasty divorce cases. There are all kinds of problems with the family courts and the whole field of family law, which varies a lot from state to state, especially when it comes to child custody issues and these issues have nothing to do with VAWA.

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          • That’s like saying a kitchen match and a forest fire are the same thing.

            In fact, it’s pretty much an admission that the very intent of the Act is to overlook abuses of it.

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              • Not really.

                This part:
                every law has its abusers. If people weren’t trying to misuse this one, they’d be misusing another one
                is pretty much giving any one a free pass to misuse the Act.
                Other than this, what could it possibly suggest?

                The fact of the matter is that this is done in a summary court, where there is very little due process.
                It’s inviting abuses.
                It’s stating that it is acceptable to provide tools to abusers knowing beforehand with reasonable certainty that they will abuse.

                It’s certainly not about making the world safer.

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                  • Not quite.
                    Try this:
                    [T]he admission that this particular law will have people that abuse the intent is proof that the intended purpose of its supporters is to quell such abuses.

                    That is, the true objective is other than the stated objective.

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            • I agree with Tod. Your logic here alludes me. Almost every law is open to abuse and there are remedies for that abuse. I used to practice family law and did deal with a case or two of false abuse accusations. In one case, not only did we show that there was no abuse, but we also won significant monetary sanctions from the accuser. The court doesn’t often award such fees. Not to mention the accuser’s credibility was totally demolished.

              Abuse of the law is an issue, but a relatively small one. Even without it, there will be false accusations in family court. Such is the nature of the beast when divorce is an adversarial process with lawyers on each side.

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              • Ok, it’s really not that idea that it may, at some point be abused, but the issue of the frequency of such abuse, the ease to which it may occur, and the egregiousness of the abuses which occur.
                Likewise, it’s not a matter of abuses of the law occurring in all jurisdictions, but a rather of, in those jurisdictions where such abuses exist, the egregiousness of abuse and its tendency to be widespread.
                And I’m thinking of one that has held over and over again that having a blog or a FB page constitutes “contact” for purposes of finding a person in violation of a no-contact order. That’s what “domestic violence” is these days– it has very little to do with “violent crime”* in most circumstances.

                Again, this has to do with the extraordinary success of the activist movement in securing their place by means of ever-expanding definitions.
                I fail to see why a order of protection hearing shouldn’t have the same level of scrutiny as a TRO & preliminary injunction.
                But, as another commenter states below:
                I know many judges who have had their eyes opened to DV by such training and regularly site the training they have received.
                meaning that if we did not tell judges what to think, then they wouldn’t know how to think.
                Meaning that there is a stated preference for judges to try cases before the facts are heard.

                Now, were this a matter of violent crime, I could sign on. But it’s not.
                Were this a matter of ensuring the safety of persons, I could sign on. But it’s not.

                Now, knowing beforehand that abuses of the law will indeed occur, and a lot of this is due to the nature of family law courts being summary courts, what measures would you recommend to be put in place to:
                a) inhibit such abuses; and
                b) to redress such abuses.

                * See 18 USC 16.

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                • “That’s what “domestic violence” is these days– it has very little to do with “violent crime”* in most circumstances.”

                  I think you might want to walk that back a little, maybe by inserting “can be” for “is.” Domestic violence today is still more than just a facebook page for many people.

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                  • Fair enough.
                    Point conceded.

                    However, the fact remains that the purpose of the VAWA is to provide funds to prosecute persons for having FB pages, and to pressure judges to try cases before hearing the facts.
                    At least, a portion of its purpose.
                    Failing to state otherwise is omitting important and relevant facts.

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                    • Will the only reason a FB page would come into play is if it used to make threats against someone else. I see a fair number of DV involved cases at my job. The only time FB or other social media has ever been an issue is when there have been threats or drug use described.

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                    • In most jurisdictions, that is the case.
                      In Wisc., the ‘true threat’ language has been added in the annotations to the statutes.
                      In Utah, it states in the statutes over and over again that the code is limited by the First Amendment rights of the parties.

                      But this is not the same in all jurisdictions.
                      Which was my point to begin with; that in those jurisdictions where abuses occur, the abuses tend to be particularly egregious.

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                    • But that has nothing to do with the claim that VAWA exists in part to prosecute people with FB pages. That is frankly nonsense. Threatening people is a bad thing and the law gives people recourse in some cases. It doesn’t stop people from being all sorts of stupid, but it is aimed at threats.

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                    • On a practical level, that is indeed its purpose.

                      Now, true threats are prosecutable at the criminal level.
                      True threats are compensable at the civil level.

                      Exactly why does there exist a need for further cause of action in consideration of the relation of the parties to one another?
                      Perhaps unearthing the answer to that one would lead to greater understanding of the essence of the issue, which would in turn enable greater efficacy in response.

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                • I have sat in a court room, and watched a judge tell a man and woman to go ‘work things out in the next room,’ just about 30 seconds after listening to a cop tell the judge how he beat the shit out of her. Circa 1989. Not folk I knew; just folk going before the judge as I waited with another woman, also victim of abuse, for her turn before the judge.

                  It’s very easy to get a protection from abuse order, intentionally so. It’s not so easy to maintain one; that requires the judges permission.

                  But given the numbers of women beaten and murdered every day by their intimate partners, the numbers of children that witness this, I’m really not sure how you can suggest this isn’t about violence. And I also suspect there’s another truth here: abusers accused in courts of abuse (public record and all that) say that their accusers a lying to protect their own chicken-shit asses.

                  You’re peeved that someone might cry wolf. Well, they will. Someone will also speed. They’ll cheat on their taxes. They’ll cheat on their spouse. They’ll lie to get a prescription from the doc. These things are all statistically predictable. But we don’t stop treating pain because some people lie for a fix. We don’t shut down the highways because people speed. We don’t not marry because of the potential of a cheating partner. Just because someone will misuse a law doesn’t mean the law’s stupid, it means you are alert to those statistical expectations of abuse.

                  And all your scare-mongering about people who will file false accusations are still a drop in the bucket to the opposite, the true claims of abuse and violence never reported.

                  Scroll up to the top of this post.

                  Look at that woman; not just the black eye. Look at her neck. She’s been scalded.

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                  • I would never suggest that acts of physical violence are not to be tolerated.
                    In fact, I believe that the focus on the act of violence itself misses a great deal of the true harm behind the act. The attendant loss of human potential is the part that’s truly horrifying to me.

                    Sadly, there is very little recourse when a judge acts inappropriately.
                    That’s a problem across the board; and seriously, I believe it’s more of an issue in criminal trials.

                    I have seen a number of instances where the police should have done something and didn’t.
                    There was a case in Wisc. of a little boy being killed by his father while the state social worker was doing an investigation. The father was prosecuted, but the social worker was off the hook. To me, that’s injustice.
                    I compare that to my own industry. (I report next week to a nuclear facility where I will go in as a piping inspector.) Were I to make a call that wrong, heads would roll.
                    State actors have an inordinate level of protection under our system.

                    Now, each of the concerns I have stated are easily fixable: provide definitions of terms within the Act that leave no waffle room.
                    It’s that simple.
                    Provide a cause of action for the redress of grievances. That simple.

                    The question is why those things were never a concern from the beginning when their need could be reasonably foreseeable.

                    And I still don’t understand why the 1984 Act couldn’t be properly amended.

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                  • But you did, Will: Now, were this a matter of violent crime, I could sign on. But it’s not.
                    Were this a matter of ensuring the safety of persons, I could sign on. But it’s not.
                    You’re attacking the law because some people abuse it, ready to throw the baby out with the bathwater.

                    Filing false accusations is a problem; but it’s a different problem then domestic violence.

                    You also suggested that judges are now told what to think; yet before they were educated about domestic violence, the status quo was let the family work it out. Domestic violence is the essence of a family’s inability to work it out.

                    Now maybe I’m taking what you said out of context due to the complexity of the thread; if so, I apologize. But if not, I hope you’ll reconsider. But making a false accusation is, perhaps, another type of family abuse; and I don’t know if it’s a crime or if it’s a crime equally throughout the various states; I can imagine that being all over the place. But it’s a different problem from domestic violence; and the problem of false accusation permeates many other areas of law, not just this law.

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                    • Filing false accusations is a problem; but it’s a different problem then domestic violence.

                      Well, exactly.

                      Maybe the general worry (not necessary Will’s worry) is not about what constitutes a false accusation (which is a legalistic term) but a legitimate/illegitimate accusation. It seems to me this much could be said for VAWA: the law would permit women to legitimately accuse (and hold liable) men of engaging in actions that the accused man also thinks are legitimate. (One example is redefining “rape” to include, rather than exclude, marital rape.) There’s clearly an equivocation on the term “legitimate” at that point, and the only thing deciding the issue is the way the law is (arbitrarily?) constructed.

                      Insofar as that’s right, I personally don’t have any problem with letting the law resolve the issue and I don’t think the measures are arbitray since I think the arguments are way (waaaaay) on the side of VAWA. But conservatives apparently don’t agree.

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                    • Will, in a legal definition (at least in my NAL experience) the term “includes” means an exhaustive list of all the conditions satisfying the definition. It’s not open ended. In my experience (again, as an NL) is that when the definition isn’t exhaustive, the term “includes” is followed by “but not limited to”.

                      Maybe Burt can correct me if I’m wrong about this, but the default understanding (maybe by convetion!) is that the term “includes” is restrictive.

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                    • And to continue for a bit, the distinction is relevant because in normal English the word “includes” means that the thing(s) mentioned are merely members of the referred to set. But as I said, it’s my experience that definitions that include the term “‘include” (see what I’m doing here?) are exhaustive unless otherwise mentioned. And the statute you cited was a definition.

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                  • The issue is one of family law courts being summary courts. The discovery process is lacking: no requests for admissions, requests for production, no discovery sanctions, etc.
                    In short, due process violations.
                    It’s the rules that they go by. In some jurisdictions, the probate courts handle family law matters, and they don’t seem to fare much better overall. It’s the summary nature of the procedure established which opens it up for abuses far more than they would be in a chancery division.

                    False and misleading statements to obtain warrants or similar orders constitute an unreasonable seizure and are actionable under section 1983, as well as the Fourth Amendment providing an inherent cause of action.
                    However, the domestic relations exception prohibits the hearing of the majority of such matters.
                    County prosecutors are typically unconcerned with matters of perjury occurring within courts of equity.
                    Meaning that, although a remedy may exist in theory, it is widely unavailable in practice.

                    Again, there’s an easy fix for that.

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                    • The discovery process is lacking: no requests for admissions, requests for production, no discovery sanctions, etc.

                      Not sure what state you’re in, but family courts in California certainly did feature a discovery stage in contested divorces.

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                • Now, knowing beforehand that abuses of the law will indeed occur, and a lot of this is due to the nature of family law courts being summary courts, what measures would you recommend to be put in place to:
                  a) inhibit such abuses; and
                  b) to redress such abuses.

                  My personal solution: stiff fines for wasting the court’s time as well as awarding attorney’s fees to the party required to defend against false charges, and the presumption that it is not in the child’s best interest for the false accuser to be awarded primary custody.

                  It’s a tough line to walk though. A lot of times accusations of abuse come down to he said, she said; it’s an uphill climb for the accused to prove abuse didn’t happen. And often vice versa.

                  My experience with family law in two states (and dealing with my husband’s whacked ex) is that the deck is often stacked in favor of the woman. It varies by state; California, for instance, was far better and more balanced than Illinois. But family law, in general, needs a massive overhaul to make the system more about finding workable solutions as opposed to pitting two people against each other with the kids often used as pawns.

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                  • My experience with family law in two states (and dealing with my husband’s whacked ex) is that the deck is often stacked in favor of the woman. It varies by state; California, for instance, was far better and more balanced than Illinois.

                    Can you be more specific here — are you speaking about custody or handling of abuse allegations or both? I agree that custody is stacked in women’s favor all too often. But I haven’t heard much about a lack of seats in programs to help men who abuse; I haven’t hears much of anything in the way of programs, and less in the way of research on effectiveness.

                    Have you seen systems where there were court-appointed guardians? If so, how did that work? I’ve seen problems there, in particular with force paid supervised visits at the guardian’s facility based on lies the guardian told the court; I’ve seen a guardian lying in court for his/her interests, not the children’s. Lead’s me to assume there’s also abuse of the law by the domestic-violence support industry.

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                    • I work in family court. There is huge difference between states. There used to be a huge bias towards women in family courts which has been slowly waning away.

                      However I’ve been told that in North Carolina lawyers tell their female clients in divorce cases never to claim they have been abused because that is always taken as an underhanded tactic to win. Does that obviously mean some abused women don’t mention abuse…well of course. There are also judges who still believe in the outmoded “tender years” theory which posits women are better parents by their nature for young children. Bias goes both ways but it is getting better for men in divorce cases in general.

                      DV is often inherently hard to prove and involves many judgements with limited info on clearly problem filled relationships. Judges screw up in both directions.

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                    • I was talking mostly about custody although, in California, the preference was mostly for joint custody with parents sharing time as equally as possible. In Illinois, primary physical custody usually went to the woman unless she was shown to be somehow grossly unfit.

                      As to abuse allocations, my experience was mainly in California, where the courts seemed to be pretty balanced.

                      I haven’t had any experience with court-appointed guardians although I have heard tales of abuse.

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    • “Thirty years hence, big-government types will be talking about how the federal government taught tolerance for gays and lesbians to the benighted masses”

      Right, kind of like how we all forgot about that civil rights leader . . . whose name escapes me at the moment.

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    • I’m calling it now: Thirty years hence, big-government types will be talking about how the federal government taught tolerance for gays and lesbians to the benighted masses. Those of us who are old enough will remember that it was the private sector that lead the way, with corporations granting same-sex domestic partner benefits to their employees decades before the federal government finally jumped on the bandwagon.

      Actually, I’d say it was gays and lesbians themselves who led the way, persuaded enough of their fellow citizens to agree with them, and that both the private and public sectors responded to social pressures. Which is how it’s worked since the 19th century in many countries when it comes to cultural or civic change.

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      • Politicians actually did help to move things along by responding to views of their constituents speaking out and providing leadership. Pushing the gov to move forward helped to move the private sector and the private sector dragged along the gov. It was both moving forward pushed by actual gays and lesbians, with the help of politicians and dramatic changes in the culture.

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  8. Let me be clear:
    1. Legal aid for victims of rape and domestic violence is an unambiguous good thing.
    2. Rape kits are important crime detection tools and all emergency rooms and police stations should have quality kits on hand.
    3. Domestic violence crisis shelters are unambiguous good things.
    4. Domestic violence and rape awareness training and community prevention programs are unambiguous good things.
    5. Rape shield laws are a necessity and establishing national uniformity in them is a very good idea.
    6. Evicting a woman because she is the victim of domestic abuse is an odious thing to do*.
    7. Rape and domestic violence victims ought to have robust civil remedies against their attackers for the wrongs done to them.

    That’s the whole laundry list of things VAWA does. I like each and every one of them. You know there’s a “but” coming.

    The principled argument against VAWA is that there is little to no Federal interest in any of those things. This is stuff that states do, stuff that falls within the police powers of states. VAWA is a well-intentioned overstepping of limits on Federal power. I see a real logical validity to that argument; the reasoning in United States v. Morrison seems right to me. The up-for-renewal VAWA is better on this point than the sunsetting law because it addresses these problems in parts of the country where the Federal government actually does properly exercise police power: in the District of Columbia, on Federal enclaves like military bases, in Indian reservations.

    Now, taking the position “VAWA is a good idea but it needs to be done at the state level” is a fairly nuanced and technical position, one which translates poorly politically. A large number of people either do not understand or do not care about federalism. The political incentive here seems to point in favor of adopting this overstep on Federal authority.

    A step from there, one which maybe rescues VAWA from the federalism problem, is to say that it is indeed a model law and states that adopt it get a Federal subsidy for their state-level law enforcement. There’s some issues there, too, in terms of spending money. But doing that lets a lawmaker thread the needle of the constitutional problem and still take a pro-VAWA posture. “I enthusiastically encourage my counterparts in state legislatures to adopt these model laws and make their states eligible to share in VAWA subsidy funds.”

    Instead, we get objections that some women make false accusations of rape. Which is not a principled position, but looks like a thin veneer on a formation of some really creepy and reversionary ideas about women and their role in society — and the accumulated cultural taint Tod writes of in the OP of being consistently on the wrong side of history and the wrong side of the moral evolution of our society makes adopting a more principled and nuance position all the harder for a conservative.

    This is just another example of how the GOP may need to get worse before it ever gets better, and it exposes, again, the shame of it all because I think that if someone were in a position where they could under political cover raise the federalism issue without looking like a creepy weirdo, a decent discussion could be had about what we really want the Federal government to do for us. But today’s GOP is in absolutely no position to even attempt a maneuver like that.

    * Less clear to me is evicting someone because she hasn’t paid the rent, and then she shows up in court and it turns out she’s been getting beat up by her boyfriend and is so badly hurt most of the time she can’t get a job and the reason the rent isn’t paid is the neighbors got so tired of the noise they complained and the cops came and dragged the shitheel boyfriend to jail. The landlord justifiably wants the rent paid (she has a mortgage to pay, after all, and has committed no crime or moral wrong herself) but the situation is absolutely heartbreaking. Worst is when the woman tenant tries to protect the boyfriend from the credit implications of the lawsuit because she fears/knows that when he gets out of jail, he will retaliate violently against her. I’m at a loss for how, as a landlord’s attorney, I could help that situation.

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    • The federalist argument is a principled one but, were I a woman living in a really red state, I don’t think I’d find it comforting. I suspect that part of the reason VAWA exists is because it provides a standard for all states regarding treatment of victims of rape and domestic violence. Given the statements of some conservatives about rape and women in the past electoral cycle, I’d have to wonder if some states would be willing to provide the level of protection required by VAWA.

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      • Yeah, that’s right. There’s no comfort at all in adopting a principled position; sticking to principles sometimes means reaching a conclusion of considerable discomfort. I find discomfort with it for exactly the reason you articulate. That discomfort is why principle is so difficult to stick to politically.

        But the amazing thing here is that while principled opposition to VAWA is possible, it’s not the reason being articulated to oppose it. The articulated reason is one that suggests that as a practical matter, principle would become subject to immediate perversion.

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    • Regarding the federalism issue:

      I think the argument for a federal mandate regarding violence against women (and the punishment of those that inflict it) is the same as arguments used with the civil rights movement: If state and local governments are unwilling to uphold basic laws made to protect the more vulnerable members of its citizenship, the basic human rights of those citizens should outweigh the rights of the state and local governments to be free from the federal hand.

      Like civil rights, federal intervention for VAWA did not occur in a vacuum; it occurred because there were too many places where male dominated local governments were OK with an unacceptable status quo.

      It is possible that those times have come and gone in the past two decades, but until states stop nominating national-office candidates who think that getting someone pregnant is an acceptable defense against a charge of rape I am inclined err on the side of federal intervention still being necessary.

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        • Me, I see a direct Federal interest in voting rights sufficient to justify the Voting Rights Act. Similarly in access to public accommodations and employment opportunities sufficient to justify Title VII. I think for both of those, you can rely on the Fourteenth Amendment, and for Title VII the Commerce Clause too. There’s no need to go beyond the law and appeal to more fundamental and abstract notions of basic human rights.

          I also don’t disagree with the suggestions made by you, or Tod, or Michelle, that there are states whose leaders will make bad choices. Not for a second do I doubt that there are people in positions of power who would enact the backwards-looking thinking described and rightly condemned in the OP, enshrining yesterday’s values into tomorrow’s culture to the pain of people who deserve better.

          It’s just that I’ve got my guard up for the deviation from legal principle, in part because I see a tension between principle and a policy goal I consider highly desirable. That’s when you have to be the most careful about being willing to disregard means while pursuing ends.

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          • It seems to me, then that the objective on principled grounds should be to find less objectionable means (modifications to the law, for example) instead of simply standing on legal principle. This goes doubly so, I think, for people who are in a place where the legislation’s failure does not materially affect them.

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              • While I would agree on a principled level, we’ve seen with the example of the PPACA and education funding that there are substantial numbers of governors who will say “fuck you, Federal government” and basically ignore the financial incentive to adopt new responsibilities.

                That is to say, I don’t think this model would really do all that much to place a minimum standard of legal protections for women absent a more coercive mechanism.

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              • What percentage of law enforcement is themselves involved with domestic abuse? If I recall correctly, it’s a staggering amount.

                You’d think we’d want the funding going to an agency that is somewhat less involved with making the numbers worse.

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              • It seems to me that VAWA is an appropriate instance of a satute passed by Congress to enforce he Equal Protection Clause of the 14th Amendment, to put a constitutional text to Tod’s rejoinder a few up. Sec 5 of the Aendment expressly allows for it, and to the extent US v. Morrison is inconsistent (if it is; the private right of action in federal court against private individuals is not under discussion here) , it is wrongly decided.

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      • Count me as one of those people who doesn’t give a damn about federalism.

        Ideally it would have good uses, such as Colorado decide not to imprison people for weed. But in practice federalism seems to be ignored most often when something good is about to happen at the state level.

        In practice federalism has mostly been used to protect local tyrannies such Jim Crow , and other such legal abominations. So screw it.

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      • Yeah, the civil rights argument is the natural counter to the federalism argument. For my own part, the really objectionable part (from federalistic grounds) was struck down by the courts. On the other hand, you need to find more than some congresscritters spouting off to clinch the deal. Namely, jurisdictions that actually treat pregnancy as a defense against rape. I mostly agree with Burt… it’s about finding a way to thread the needle, where possible. This could mostly be solved through bribery, I think. “Hey, you want an office of domestic violence in your DA’s office? Here’s what you do…” and few DA’s are sufficiently in favor of domestic violence (or turning a blind eye to it) to decline such an offer.

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        • I have no problem considering a thread-the-needle attempt to address the issue if it will ease the federalism issue. Like you and Burt, I would prefer such a system were it done properly.

          However, Evil Tod will believe that the same people who are trying to kill the law will replace it with state, local or other less-federalist measures when he sees it.

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  9. In the OP, Tod credits VAWA with substantially reducing crime:

    Since 1994, incidents of “intimate partner violence” have decreased 76%; female murder victims in that same group have decreased 35%.

    It’s worth noting that since 1994, violent crime of all sorts has declined significantly, for reasons which are hotly debated; violent crime was already on the decline in 1994 anyway. It won’t ever go away no matter what the government does, but it’s clearly been reducing for a generation. It’s not clear that this law or that law or any law is responsible for it. Maybe it’s because of three-strikes laws. Maybe it’s because we now have legal abortions. Maybe it’s because we have better education. Maybe it’s because we’ve adopted a different attitude towards violence in our popular culture and media than in the past. Maybe it’s because police have adopted “broken windows” philosophies.

    Maybe it’s a whole lot of things all working together and the only thing that teasing out a single thread from the cloth would do is make the cloth weaker and render the thread on its own useless.

    So again, I like each and every idea in VAWA and I would prefer to see those ideas appropriately enacted in law. But I doubt that we can properly credit VAWA, at least in isolation, with causing the reported reduction in crime.

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    • Getting out front of history is better than playing catch up. Activist refs have proven to be indispensable in ensuring that outcome. But let’s be honest: liberal’s aren’t all that great at it, they’re just better than conservatives who seem to be so stuck in the past they can’t get in front of anything.

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      • That progressives should get credit for positive social changes and blamed for badly thought out changes, and that conservatives should get credit for preventing the execution of poorly thought out ideas but take the blame for impeding positive social change seems true in a very fundamentally definitional way.

        Arguments otherwise are just revisionist propaganda.

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        • I dunno about that Badly Thought-Out Changes business. These positive social changes could be managed in the Congress, where they’d be amendable and fixable. But the majority of meaningful social changes are the product of the courts, especially SCOTUS, after Congress refuses to fix things, viz. School Bussing. SCOTUS remedies give everyone a bad haircut.

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        • conservatives should get credit for preventing the execution of poorly thought out ideas

          There’s a whiff of tautology coming off that sentence, I think. Do you smell it too?

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          • I might argue that conservatives deserve credit for preventing the execution of poorly thought out ideas, but they don’t often receive it. After all, if a bad idea isn’t executed, it commonly still seems like it might have been a good one.

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            • Yeah, there’s no doubt that creating the awesome, shiny new thing gets you a lot more kudos than than preventing the terrible, crappy dangerous thing from being built. No one builds statues of the guy that kept us from doing something stupid.

              This is one of the reasons I actually have a bit of sympathy for conservatives that try to co-opt progressive victories of the past. It’s not easy never being the cool kid.

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              • Let’s go to specifics: what terrible crappy things have conservatives prevented from happening?

                If there are (??), what terrible crappy things have liberals prevented from happening?

                How do we determine “terrible crappy” without begging the question?

                How do we determine what constitutes “preventing” without begging the question?

                Etc and so on.

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                • Stillwater,

                  Do you think liberals deserve credit for preventing conservatives’ poorly thought out ideas from coming to pass?

                  If you do, you can answer your own question.

                  If you don’t, well, then I think you’re operating on a very different set of assumptions than Tod and Jason, and this conversation isn’t likely to go anywhere very useful.

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                    • James, I know I stopped my series of posts half way (because a lot of things came up and I was concentrating on other things) but the whole idea of political liberalism or political libertarianism is that such socio-economic orders can be defended whatever one’s own value system. The idea is that there are some political ideas that (though not necessarily the best) are reasonably good from any value system. To put it one way, even if a neoNazi may think that a liberal* society is not the best kind of society, The NeoNazi based on his own beliefs and commitments still has sufficient reason to go along with a liberal order. Why? Because a liberal order still gives a person sufficient jurisdiction over his own life that he can to some degree still live life accordin to the values that he finds important.

                      *I mean liberal in a broad sense that included libertarian as well as modern welfare liberal.

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                    • Eh, I remain unpersuaded. I remember hearing a job candidate giving a similar talk to folks in my grad program years back, and I wasn’t persuaded then.

                      If my values are to deny others the right and opportunity to have jurisdiction over their own lives, then a liberal order would seem unacceptably counter to my beliefs because it absolutely denies me the opportunity to put my beliefs into practice as real public policy, and I can only put my beliefs into practice as policy by destroying the liberal order.

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                    • If my values are to deny others the right and opportunity to have jurisdiction over their own lives, then a liberal order would seem unacceptably counter to my beliefs because it absolutely denies me the opportunity to put my beliefs into practice as real public policy, and I can only put my beliefs into practice as policy by destroying the liberal order.

                      It is true that the Nazi cannot fulfill one significant part of his values. But the Nazi is still not indifferent to how his own life is organised and who he gets to associate with. Maybe you’re not talking about a Nazi but a completely malevolent egoist. Even then as long as he is sane, he still cares about his own well being. A liberal society still affords him sufficient jurisdiction over his own life that he has reasons to coordinate acording to liberal norms.

                      Now, maybe, you can try to jury rig some kind of value system according to which a person will gain nothing of importance in a liberal order but will have to give up everything or almost everything of importance. There is a problem with that

                      1. No one thinks like that
                      2. Or at least no one sane does.
                      3. In fact, such a person is incapable of living in any kind of human society. No social order can be comprised of people like him

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                    • Yeah, you can make the argument tht even a Nazi can derive some benefit from a liberal order. E.g, won’t get thrown in jail for denouncing the Jews. But you have to deal with the fact that the Nazi values the liberal order so little that he wants to overthrow and destroy it. If you can reconcile the Nazi desire to destroy the liberal order with a claim that even Naziism values the liberal order, that will be a good trick.

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                    • On many things the Nazis were extremely liberal. Even their tiger tank training manuals were filled with pictures of hot topless babes. They often denounced dour-minded conservatives who kept trying to uphold obsolete German values.

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                    • James, there are two conditions that have to be satisfied if the Nazi is to coexist peacefully in a liberal order.

                      1. The liberal order is not a comprehensive one. Contrast with J. S. Mill who thinks that the ideal citizen is one who develops all sorts of higher order capacities and is each his own quirky individual in his own way. i.e. the liberal order must a purely political one. It does not ask for your soul. And it should require compliance only with those things which are required to

                      a) live peacefully with others and
                      b) ensure the stability of the liberal order such that the social order does not degrade into an illiberal one

                      2) On the Nazi’s part, the Nazi has to not be dogmatic. A dogmatic Nazi, conservative, anarcho capitalist, communist or anyone won’t be able to live peacefully in any other society other than their own perfect version. To be non-dogmatic is to be willing to live with less than perfect. So, for the non-dogmatic Nazi, even though he would be much happier in an illiberal order, he will still be able to find a liberal order legitimate because the cost of him individually defecting from that coordination point is too high. A Nazi in a liberal order can still join with other similarly minded folk and associate in their aryan supremacist organisation. They can choose not to patronise jewish establishments. They can choose to form their own legal, medical and banking services. The only thing they cannot do is exterminate the Jews or prevent others from associating with them

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                    • Sure, the dogmatist may not end up actually accepting a liberal society, but of even the dogmatist, we can say that his value system provides him fairly weighty reasons to accept a liberal society. Liberal society is still acceptable to him even if he doesn’t accept it. He is just being an ass for holding out for perfection (according to his own value system). The dogmatist is like the unabomber or those guys who blow up abortion clinics. We can point to things they actually believe and things they actually are committed to which make it the case that a liberal system doesn’t treat them shabbily at all. That they don’t in the end accept a liberal order just means that they are being unreasonable. We have no choice but to coerce these people if they insist on staying on in a liberal order

                      The “reasonable” anti abortion guy my have extreme views about whether or not abortion is permissible, but he thinks that the current abortion regime is still legitimate even if seriously unjust. They have got too much to lose by doing something stupid like attacking abortion providers. The dogmatist doesn’t. Very very few people are so dogmatic as to risk all the valuable things they have (and can potentially get) in a liberal society and stop coordinating with society according to those rules.

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                    • but of even the dogmatist, we can say that his value system provides him fairly weighty reasons to accept a liberal society. Liberal society is still acceptable to him even if he doesn’t accept it

                      You’re trying to speak for the dogmatist and tell him that what he does not accept is in fact quite acceptable to him. I find that….unpersuasive.

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                    • He does seem pretty dogmatic about it. ^_^

                      Here’s a 1939 response where Nazis argue the importance of a unified worldview because it’s better, instead of just letting people wander around thinking any old thing.

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                • Still, I’m not talking about the round-robin-musical-chairs-with-issues conservatives and progressives the way we look at it today here; I’m talking about the historical forces of fighting for status quo vs. fighting to fundamentally change society.

                  A lot of progressives fought for civil rights, the end of Jim Crow laws, and women’s suffrage – just to name a few biggies. But in the 1930s there were a lot of progressives that argued we were missing out on the cool, shiny new government they had popping up everywhere over in Europe; in the 40s and 50s there were even more that couldn’t figure out why we didn’t all agree with them that Stalinism was the way to a better tomorrow.

                  I get that today liberals might think, I hate the Nazis and I’m a liberal, so it must have been the conservative traditionalists in this country that wanted to emulate them… Just like conservatives seem to have the bizarre notion that it was conservatives that kept progressives from starting slavery and Jim Crow and segregated bathrooms or some such nonsense. But that’s just not true.

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                  • Not many people thought Stalin was the bee’s knees. Communism in general was sort of popular in the 30’s and into 40’s but that is bit different. Partially that is due to that little Great Depression thing that made capitalism look bad.

                    Its also really important to keep in mind that plenty of people thought Hitler was actually pretty good in the 30’s. Right here in the US he was liked by many. This isn’t a left or right issue per se since information about Russia and Germany and pretty much the entire world was really limited back than. In fact most people didn’t travel all that far at all. Plenty of people in NY didn’t know much about Cali. It was a lot easier to have a positive view of distant dictators with the very limited knowledge people had back then. Pointing at lefties who liked Stalin is of limited use.

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                    • Well first off, I’m not talking right/left; I’m talking conservative/progressive.

                      As to who “liked” Hitler and Stalin, that’s a little to the side of my point. I like the Queen; I’m not arguing that we recreate our government to mirror Britain.

                      Communism amy be right or it may be wrong. The same is true with a capitalistic democracy. We can each have our opinions about both. But saying “I think we need to completely tear down the entire way our country works and has always worked, and do it this new way” is progressive and not conservative – by definition of those actual words.

                      Hence my insistence that the far right on this country are not conservative except in self-identifying label – they’re incredibly radical. Whether they’re right or wrong doesn’t shouldn’t take away from that simple, definition-of-words truth.

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  10. Is what we want this law to do measurable?

    I mean, if the law goes away, will we be able to say that “this measurable number will go up, that one will go down”? If it stays, will we be able to make reasonable predictions about what the numbers will do under those circumstances?

    Are the numbers secondary to what we, as a society, hope to communicate to us, as a society, by passing the law?

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    • Well yeah lots of this is measurable. Rape kits for all victims without them having to pay. Laws that mandate X. Laws that say husbands can’t rape their wives. Numbers of DV shelters. Calls to DV hot lines. Hours of DV training to cops and courts ( that stuff matters a hellava lot. I know many judges who have had their eyes opened to DV by such training and regularly site the training they have received.)

      Decreases or increases in reports of DV and rapes are harder to judge since there are many variables but can still be useful data.

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      • Looking at the government stats, it certainly *SEEMS* like we should be able to say that the numbers would do something if the law is allowed to sunset and do something else entirely if it is not allowed to sunset.

        I’m certainly not opposed to this law but I can’t help but suspect that the reasons the numbers are changing have to do with changes in culture (or stuff like lead abatement) than with this law passing and then being enforced.

        The changes in the culture strike me as what need to be cultivated. To the extent that this law does that, awesome. To the extent that it doesn’t, I think that it’s going to do more to make people think that something has been done than actually do anything.

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        • Jaybird, one of the biggest things the laws changed was providing resources to assist domestic violence victims; most particularly, assistance to get out. And getting out of the house, separating from the abuser most definitely contributes to a decrease in violence. If you’re not there to punch, you can’t be punched.

          Another aspect has been the creation of advocates, social workers with a lot of experience, who actually will speak on a victim’s behalf in the court room. Again, the benefit is distance; it’s not so easy for a judge to tell an abused person to go into the other room alone and negotiate something with his or her abuser.

          I don’t think it’s the only thing that’s decreased violence; but I think it contributed to many peoples safety and saved thousands of lives simply by putting those at-risk souls out of harms way for a bit. So a lot of this isn’t enforcement at work, it’s protection at work.

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        • Well Zic has said it mostly. Changing the law pushes changes in culture. Correctly i would say in this case. The law has led to advocates to help the abused. It has led to training not just for judges and cops, which i mentioned, but for cops and teachers and CPS workers and doctors and nurses, etc. That stuff matters. Without the training and knowledge people can’t know what they are missing.

          The enforcement is a huge deal. Just changing the laws mattered a lot to women who had been raped by their husbands. Having shelters has given many, many an actual option to get away.

          This is somewhat OT, but having a social welfare system that is run by the gov not religious groups is also a positive boon to many victims. I’ve worked with quite a few families where the woman was told by family and religious leaders that her job was to stick it out with the drunken abusive lout because that is what that book in all the motels says to do. If social services were solely the provision of non-gov actors it would likely have been churches or church affiliated groups that could refuse help to people who don’t believe the right way.

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  11. “They’re going to continue to slowly lose this battle, and they’ll do incalculable damage to their brand along the way.”

    Is there any way of telling how much damage this is doing in the public mind? I tend to gauge these things by what my parents think and I’m gonna wager that neither of them know about the VAWA.

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  12. A political question: Joe Biden wrote NAWA. It’s his bill. Is GOP opposition to the bill just more saying, “No.” to Obama, like he’s a Nike show they don’t want to buy instead of taking care of the people’s business — in this case, the business of men, women, and children living in abusive families?

    And another political question: In wondering about NAWA, you have to consider the other laws that fill the need. One would be the Patriotic Act; domestic violence could be considered a form of terrorism; particularly because DV murders frequently take other family members and friends or co-workers.

    What laws would you prefer take precedence to fill the need, for the need is unquestionable, despite George’s protestations to the contrary. But he raises a very good point — men are often victims; they benefit too, even though the law was created to cover the needs of women, named after that need, it protects any victim, and sets out the rights and responsibilities owed to violators, man or woman.

    I’d also note that many of the provisions of the law aren’t fully enacted; thousands of women who request help are turned away every year for lack of resources. That’s the real problem social workers face; how do you help them all who desperately need safety. Safety from his or her own family.

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