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Jason Kuznicki
As if I needed another blog! This one’s dedicated to translating some of the never-before-translated work of the French neo-Romantic poet Edmond Rostand, author of Cyrano de Bergerac and member of the Académie française.
Everyone knows Cyrano, of course, but much of Rostand’s lyric work has never been read in English before. I’m trying to change that, one poem at a time.
39% of Likely U.S. Voters believe the government should require a church or religious organization to provide contraceptives for women even if it violates their deeply held beliefs. Fifty percent (50%) disagree and oppose such a requirement that runs contrary to strong beliefs, while 10% more are undecided.
Which — alas — means that 89% of Americans didn’t care enough to challenge the question. We don’t know how many of them hung up in disgust, so perhaps there’s still hope. But to me, the real question is very, very simple: Does the institution take state money?
If yes, then the state may withdraw that money at any time for failure to comply with clearly stated policies for how it’s to be used.
If no, then the state needs to back off and let the church run its own affairs without interference. It doesn’t get a choice. That’s what it has to do.
Religious freedom doesn’t mean that you get to spend the public’s money in whatever ways your conscience dictates. It means you get to spend your money in whatever ways your conscience dictates. So discriminate all you like — with your money. With the public’s money, our representatives decide.
Democracy is wonderful — when it’s making decisions for the public’s money. When it’s making decisions for the private sector, it’s an abomination. And vice versa. Private religion is great, when it’s only spending private money. When it thinks it can take taxpayers’ money and do whatever it pleases, it oversteps the line.
So. That poll question deliberately obscures the only important issue. It embroils all of us even further in a conflict that doesn’t have any satisfactory solution. Why did they ask it? That’s why. That’s the whole point of it.
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Chat away. I’m having trouble reading the decision at the moment, but I understand that the Ninth Circuit affirmed the district court judgment — Prop 8 is no more.
Rational basis review just got a whole lot toothier, and substantive due process as well, at least by some views. I’m full of trepidation — I think it’s way too soon for the Supreme Court to reach the result I that think is correct — but I’ll enjoy it while I can.
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…so that makes it okay. Right?
In January, prodded in part by outrage over a series of articles in the New York Review of Books, the Justice Department finally released an estimate of the prevalence of sexual abuse in penitentiaries. The reliance on filed complaints appeared to understate the problem. For 2008, for example, the government had previously tallied 935 confirmed instances of sexual abuse. After asking around, and performing some calculations, the Justice Department came up with a new number: 216,000. That’s 216,000 victims, not instances. These victims are often assaulted multiple times over the course of the year. The Justice Department now seems to be saying that prison rape accounted for the majority of all rapes committed in the US in 2008, likely making the United States the first country in the history of the world to count more rapes for men than for women.
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The U.S. Constitution is full of terms of art — short legal phrases with deep implications and even deeper historical roots. One such phrase is the Fifth Amendment’s guarantee that no one will be “deprived of life, liberty, or property, without due process of law,” repeated as binding on the states in the Fourteenth Amendment.
What exactly do these phrases mean? We would probably all agree that they promise an impartial trial for anyone facing one of these deprivations. But do they go further? Can a law itself violate this clause?
Is there, in other words, a substantive component to the due process of law? One that reaches the laws themselves, as well as their mode of execution?
Left-liberals long professed a disdain for substantive due process. To them, it smacked of the economic liberties supposedly protected therein, and of restrictions on New Deal–era economic legislation. Substantive due process meant the bad old days of Lochner v. New York — until, that is, some cases started cropping up that looked an awful lot like substantive due process in their reasoning, but that reached left-liberal results. Roe v. Wade, I’m looking at you. Lawrence v. Texas, too. And so conservatives like Clarence Thomas have come around to the other other side, and opposed substantive due process, and round and round we go.
To shed some light on the subject, Timothy Sandefur has offered this month’s lead essay for Cato Unbound. In it, he argues that not all things having the formalities or trappings of law can properly bear the name of the law — laws passed for naked self-interest may be enacted according to the proper legal procedures, but we cannot say that they are just, and “due process of law” ought to exclude them, because law itself is orderly, regular, and done for the sake of the public good. Indeed, we only have the process and procedures of law — the easy parts of due process — for the sake of trying, imperfectly, to protect the substance of fairness. They would be exceedingly hard to justify otherwise.
Sorry if this is a little head-in-the-clouds. I try to do a mix of abstract and concrete stuff at Cato Unbound, and last month it was flying killer robots. This month, highbrow legal philosophy.
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Even people who have never read a page of Hobbes have probably seen the frontispiece of Leviathan.
It’s a body, made up of bodies. (Yeah, there are other bits down below. We’ll talk about those another time perhaps.)
As Michel Foucault reminds us, bodies carry cultural meanings. Bodies embody meaning. Simply: Bodies are places where we put meanings.
The meanings that an author or a culture attributes to the properties “having a body” or “being like a body” can change over time. So for Hobbes, what did it mean for the state to be like a body?
Two related things, I would say. First, a body has a creator. And second, a body has — or at least is capable of having — an ordering that is both harmonious and intentional. It is also capable of suffering disorder or disease. Usually not, however: Even Voltaire, who thought God was mostly indifferent to us, still marveled that God had so arranged the internal organs that they did not harm one another and that, in day-to-day life, a healthy person was nearly unaware of them.
The creator of the human body, of course, is God. God created man in his own image, so of course the body was built according to a perfect prototype. Subsequent infirmities are the result not of God or of his design, but of the Fall of Man. There is a harmonious ordering — created by a designer — and there is a constant danger of disorder. Both have normative valences.
As above, so below: The state and its laws were not created by God, but by a legislator, who stands in God’s place. A wise legislator will create a harmonious social ordering through an exercise of the will or the intention.
An interesting contrast can be made with naturalistic evolution. In it, the body is arranged not by a single, intentional design, but by selection according to reproductive fitness given various (and changing) environmental constraints. The result does appear harmonious, at least very often it does, but it is in no sense the product of an intentionality. And, as theory predicts, there are places where the harmony isn’t quite perfect — there always will be, too.
That’s what it means, to me, to have a body. So… if the state is like a body — yes, that’s a big if — we might suggest that it is at least a somewhat unintentional product, bringing with it hernias and hiccups that a fully informed and conscious designer would never have allowed. We can’t deny, of course, that there do exist consciously willed fashionings of the state-body, but the overall design just can’t be ascribed to any one legislator, not even in the most totalitarian regimes.
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For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery then. Over all, there are now more people under “correctional supervision” in America—more than six million—than were in the Gulag Archipelago under Stalin at its height. That city of the confined and the controlled, Lockuptown, is now the second largest in the United States.
The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education…
The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least fifty thousand men—a full house at Yankee Stadium—wake in solitary confinement, often in “supermax” prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.) Prison rape is so endemic—more than seventy thousand prisoners are raped each year—that it is routinely held out as a threat, part of the punishment to be expected. The subject is standard fodder for comedy, and an uncoöperative suspect being threatened with rape in prison is now represented, every night on television, as an ordinary and rather lovable bit of policing. The normalization of prison rape—like eighteenth-century japery about watching men struggle as they die on the gallows—will surely strike our descendants as chillingly sadistic, incomprehensible on the part of people who thought themselves civilized.
Some utterly gripping journalism from Adam Gopnik in the New Yorker.
It’s often been said, looking at our prison system, that either Americans are the most evil population in the world, or we are locking up way too may for way too little reason. There are very few other alternatives.
Law-and-order conservatives like to say that our carceral state is the reason why we enjoy such low crime levels today. Put away the bad guys, and they don’t commit crimes. Simple as that.
But this argument doesn’t really move us away from the original choices: Other countries enjoy lower crime rates without higher imprisonment rates. And we did so ourselves, in the past. So clearly either (a) we have become uniquely evil among the nations, thus requiring lots of prisons or (b) we could do things differently, and still enjoy a low crime rate, and thus we’re still locking up far too many.
(Doesn’t the very fact of locking up way too many also make us uniquely evil? Perhaps. But if I am going to be called an America-hater, let it at least be for the sake of setting more people free. I might also point out that Americans haven’t always been this way. The prison population boom happened entirely within my lifetime. Further, very few of us are actually running the system, and the rest of us could indeed change it. I still have hope.)
I also incline strongly toward Gopnik’s southern explanation:
The other argument—the Southern argument—is that this story puts too bright a face on the truth. The reality of American prisons, this argument runs, has nothing to do with the knots of procedural justice or the perversions of Enlightenment-era ideals. Prisons today operate less in the rehabilitative mode of the Northern reformers “than in a retributive mode that has long been practiced and promoted in the South,” [Robert] Perkinson, an American-studies professor, writes. “American prisons trace their lineage not only back to Pennsylvania penitentiaries but to Texas slave plantations.” White supremacy is the real principle, this thesis holds, and racial domination the real end. In response to the apparent triumphs of the sixties, mass imprisonment became a way of reimposing Jim Crow. Blacks are now incarcerated seven times as often as whites. “The system of mass incarceration works to trap African Americans in a virtual (and literal) cage,” the legal scholar Michelle Alexander writes. Young black men pass quickly from a period of police harassment into a period of “formal control” (i.e., actual imprisonment) and then are doomed for life to a system of “invisible control.” Prevented from voting, legally discriminated against for the rest of their lives, most will cycle back through the prison system. The system, in this view, is not really broken; it is doing what it was designed to do. Alexander’s grim conclusion: “If mass incarceration is considered as a system of social control—specifically, racial control—then the system is a fantastic success.”
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There’s been a lot of discussion of Charles Murray’s “How Thick Is Your Bubble” quiz from Coming Apart: The State of White America, 1960-2010. Surprisingly, I think we all generally agree on a few things:
1. This wasn’t a scientific survey. It was a conversation-starter, intended for use among American elites who are either actually white or who think themselves well-acquainted with white American culture.
2. The thesis it’s meant to point up is that you as an educated elite know less about the culture of middle- and lower-class whites than you imagine. (I, Charles Murray, am aware of that fact, and I want you to be aware of it too.)
3. At least in our group, that thesis fails. People seem to be scoring a lot higher than Murray expected. I didn’t expect this either.
4. It’s been debated whether the point here is that conservatives “get” ordinary Americans better than liberals. I don’t think that that’s the point, but I can’t rule it out without reading the whole book. My sense is that conservative elites are pretty out of touch, too, but that the media declines to write about them that way.
5. Ilya Somin could very well be right — the divide in white America is real, but it isn’t new. It seems we mostly agree on this, and I know I do. Anyone who has read Paul Fussell’s Class knows that there were class divisions in white American culture long, long ago, and members of the elite were in a lot of ways ignorant of their prole counterparts even in the 60s-80s (without that division, the book would in some ways be unnecessary). Fussell spent almost no time on race and how race inflects class, but he certainly should have included it. Instead what he wrote was a book about white people, a lot like Charles Murray’s, apparently, but without “white people” in the title.
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I’m curious what left-leaning types around here think of Charles Murray’s quiz — How Thick Is Your Bubble? Here’s the underlying thesis:
As the new upper class increasingly consists of people who were born into upper-middle-class families and have never lived outside the upper-middle-class bubble, the danger increases that the people who have so much influence on the course of the nation have little direct experience with the lives of ordinary Americans, and make their judgments about what’s good for other people based on their own highly atypical lives…
Many of the members of the new upper class are balkanized. Furthermore, their ignorance about other Americans is more problematic than the ignorance of other Americans about them. It is not a problem if truck drivers cannot empathize with the priorities of Yale professors. It is a problem if Yale professors, or producers of network news programs, or CEOs of great corporations, or presidential advisers cannot empathize with the priorities of truck drivers. It is inevitable that people have large areas of ignorance about how others live, but that makes it all the more important that the members of the new upper class be aware of the breadth and depth of their ignorance.
You may do well to take the quiz yourself before reading any further. [click to continue…]
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I never watch the damn thing. I hate applause. But here are my reactions to the prepared remarks.
We gather tonight knowing that this generation of heroes has made the United States safer and more respected around the world. For the first time in nine years, there are no Americans fighting in Iraq. For the first time in two decades, Osama bin Laden is not a threat to this country. Most of al Qaeda’s top lieutenants have been defeated. The Taliban’s momentum has been broken, and some troops in Afghanistan have begun to come home.
If this were a sitcom, there’d be some canned laughter after the first sentence. (Okay, maybe it’s a very bleak sitcom.) Invading Iraq made us less safe and less respected around the world. Iraq was no serious threat to us. Iran is now stronger, the result of no longer having a serious adversary on its borders. Hundreds of thousands resent us now for destroying their homes and killing their loved ones. These people will raise the next generation of terrorists.
All of this is undoubtedly true, whatever you may have thought about the war ex ante.
The previous administration worked tirelessly to reinforce the idea that Iraq was a harbor for al Qaeda, that Iraq played a role in 9/11, and that 9/11 justified our actions there. They did so not by saying it outright, which would have been too bald-faced a lie even for them, but by always mentioning them in the same breath — knowing full well that large majorities of Americans already believed this falsehood.
If George W. Bush had said the above paragraph, it would have fit the pattern perfectly, and his critics would rightly have objected. Barack Obama just said it. And so what do we make of it? Some people will pass over it in silence. I won’t. This was something that the left would have howled about a few years ago. Why not now?
These achievements are a testament to the courage, selflessness, and teamwork of America’s Armed Forces. At a time when too many of our institutions have let us down, they exceed all expectations. They’re not consumed with personal ambition. They don’t obsess over their differences. They focus on the mission at hand. They work together.
Imagine what we could accomplish if we followed their example. Think about the America within our reach: A country that leads the world in educating its people. An America that attracts a new generation of high-tech manufacturing and high-paying jobs. A future where we’re in control of our own energy, and our security and prosperity aren’t so tied to unstable parts of the world. An economy built to last, where hard work pays off, and responsibility is rewarded.
I know that I will be reviled for what I’m about to say, but to imagine that our economy and the rest of our society should be run just like the military is the very essence of fascism.
Don’t achieve your personal ambitions. Don’t try to be different from others. Conform. Work together. We can be great, but only — only — if we are regimented and disciplined like the military. I will lead you.
Again, if George W. Bush had said this, the left would howl. They would have been right to do so. (No, it’s cool. I’ll howl for you. Just this once.)
What’s happening in Detroit can happen in other industries. It can happen in Cleveland and Pittsburgh and Raleigh. We can’t bring back every job that’s left our shores. But right now, it’s getting more expensive to do business in places like China. Meanwhile, America is more productive. A few weeks ago, the CEO of Master Lock told me that it now makes business sense for him to bring jobs back home. Today, for the first time in fifteen years, Master Lock’s unionized plant in Milwaukee is running at full capacity.
I care about swing states. Foreigners are scary.
There follow a bunch of proposals — vague, and it may be a stretch to call them “proposals” — for cutting taxes on corporations. (Are you sensing a theme here?) Then more about scary foreigners and how much we love one of our tribe’s favored groups — educators.
The parts about shale gas — that is, fracking — were unexpected to me. Sure, it’s not coal, but the praise for fracking isn’t going to endear Obama to his base. Am I being too cynical when I speculate that most people won’t know enough to connect “fracking” and “shale gas”?
I recognize that people watching tonight have differing views about taxes and debt; energy and health care. But no matter what party they belong to, I bet most Americans are thinking the same thing right now: Nothing will get done this year, or next year, or maybe even the year after that, because Washington is broken.
Can you blame them for feeling a little cynical?
No. No, you can’t. This is what happens when you try to run the economy like a military. Everyone loves the cohesion and camaraderie of the military, the competence, the can-do attitude. It’s really and truly great — for some purposes. But not for all. A military has a relatively clear purpose or objective, to which all things are subordinate. An economy exists to satisfy all kinds of different wants and needs, and it isn’t at all clear which ones should take precedence. The illusion of camaraderie and competence evoked by military analogy falls apart at first contact with this enemy. Bickering takes its place. And then? Well, we need a strong, military-type leader to set things right:
One of my proudest possessions is the flag that the SEAL Team took with them on the mission to get bin Laden. On it are each of their names. Some may be Democrats. Some may be Republicans. But that doesn’t matter. Just like it didn’t matter that day in the Situation Room, when I sat next to Bob Gates – a man who was George Bush’s defense secretary; and Hillary Clinton, a woman who ran against me for president.
All that mattered that day was the mission. No one thought about politics. No one thought about themselves. One of the young men involved in the raid later told me that he didn’t deserve credit for the mission. It only succeeded, he said, because every single member of that unit did their job – the pilot who landed the helicopter that spun out of control; the translator who kept others from entering the compound; the troops who separated the women and children from the fight; the SEALs who charged up the stairs. More than that, the mission only succeeded because every member of that unit trusted each other – because you can’t charge up those stairs, into darkness and danger, unless you know that there’s someone behind you, watching your back.
So it is with America.
Gulp.
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9 pages
Plinko 
Ryan Bonneville 
wardsmith 
Will Truman 
Burt Likko 
Kim 
DensityDuck 
Borat: “I do a picture, only small, of the Tishnik Masacre. Where many Uzbeks…crushed!”
Kindly Gray Hippie: “How did you feel when you drew this?”
Borat: “Very proud!”.
KGH: “I’m just listening with sadness…a little sadness for your people…?”
Borat: “Yes…no, it is not sad. It is us who do the kill!”
When in doubt,