The Asteroid Can Hit If It Means We No Longer Have To Listen To Bad Aerosmith Songs

Mark Kleiman:

When I saw that Rand Paul (R-Comedy Central) had voted against a bill outlawing the use of lasers to blind airline pilots on the grounds that “the states ought to take care of it,” I was reminded of this week’s best Onion story imagining an effort by Republicans to repeal a law providing for the destruction of an asteroid coming at the Earth.

The Onion story didn’t mention lawsuits seeking to have asteroid-destruction declared unconstitutional as a violation of the limited, delegated powers of the Federal government. But I’d be grateful if one of our libertarian-leaning readers could point me to the specific provision of the Constitution under which the Federal government could spend money on asteroid destruction. It’s not, properly speaking, defense, unless the asteroid was deliberately launched at us by the Klingons. The asteroid isn’t “in commerce” at all, so it can’t be covered by the Commerce Clause.

No doubt some socialists would assert that the reference to “the General Welfare” in the first sentence of Art. 1, Sec. 8, plus the Necessary and Proper clause at the end of that section, would cover asteroid destruction. And I might agree with them. But of course from the libertarian perspective that proves way, way too much.

So I offer this as a challenge: If you think that the doctrine of limited powers forbids much of what the federal government currently does, please explain why that same argument wouldn’t forbid spending money to shoot down an asteroid.

Footnote If your objections to “big government” are based on economics rather than constitutional law, please explain why the public-goods argument that justifies shooting down the asteroid doesn’t apply to the programs you don’t like.

Pejman Yousefzadeh:

As a libertarian-conservative, I am glad to help resolve this question. Of course, it should be noted from the outset that the framing of these kinds of questions is a common Kleimanian tactic; he tosses out an appealing public policy approach, and then dares readers to conclude that the approach may not be constitutional. I certainly agree with Kleiman that asteroid defense cannot be covered by the Commerce Clause (thank goodness that there are some limits recognized by the Left on the reach and scope of the Clause), but I don’t see why he is so quick to dismiss asteroid destruction as a defense measure merely because the asteroid was not “deliberately launched at us by the Klingons.”Original public meaning jurisprudence assists us in showing how asteroid destruction can be justified by Art. I, Sec. 8 of the Constitution as being “for the common Defence.” I am indebted to Professor Larry Solum for his excellent and comprehensive definition of original public meaning jurisprudence, which is excerpted below:

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways.  For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.

Once originalists had acknowledged that vague constitutional provisions required construction, the door was opened for a reconciliation between originalism and living constitutionalism.  The key figure in that reconciliation has been Jack Balkin, whose influential 2006 and 2007 essays Abortion and Original Meaning and Original Meaning and Constitutional Redemption have argued for a reconciliation of original meaning originalism with living constitutionalism in the form of a theory that might be called “the method of text and principle.”  Balkin has called his position on the relationship between originalism and living constitutionalism “comptibilism,” but it is important to understand that this means that an originalist approach to interpretation is consistent with a living constitutionalist approach to construction.

Per Professor Solum’s definition, we have to ask how “the common Defence” would “have been understood by an ordinary adult citizen at the time it was adopted.” Specifically, we have to demonstrate that the notion of “Defence” against a threat does not depend upon that threat being initiated by a sentient being, or group of beings. This entails showing Kleiman that the non-presence of Klingons or any other sentient beings in a scenario which features an asteroid threatening life on Earth does not prevent the necessary countermeasures from being considered constitutional as acts of “Defence.”

In order to proceed along this line of inquiry, a definition of “defence” or “defense” (however one wishes to spell it) is needed. I can think of no better lexicographical authority than Samuel Johnson’s A Dictionary of the English Language. Consider especially the following bit of information: In his book Dr Johnson’s Dictionary: The Extraordinary Story of the Book that Defined the World, the writer Henry Hitchings quoted Joseph Emerson Worcester as saying that “[Johnson’s] Dictionary has also played its part in the law, especially in the United States. Legislators are much occuped with ascertaining ‘first meanings,’ with trying to secure the literal sense of their predecessors’ legislation . . . Often it is a matter of historicizing language: to understand a law, you need to understand what its terminology meant to its original architects . . . as long as the American Constitution remains intact, Johnson’s Dictionary will have a role to play in American law.”

So, Johnson’s Dictionary was/is quite useful when it comes to analyzing bodies of American law. Now, we have to ask what Johnson wrote about the definition of the word “defence.” Well, it just so happens that we can look. Feel free to examine the definitions of “defence,” “defenceless,” “to defend,” and “defendable.” One will find that none of the definitions in question make it necessary for a threat to have been launched by some form of sentient being, or group of beings, before one can be said to organize and implement some kind of “defense/defence” against that threat via preventive measures. Absent any competing definitions of similar or greater influence, one may reasonably conclude that “an ordinary adult citizen” would not have understood “defence” to mean a countermeasure against a threat set into motion by a sentient being, or group of beings–like Klingons, for example. A “defence” can therefore be mounted against a threat that appeared or emerged sua sponte, without any sentient beings or higher intelligence having brought that threat into being, and/or having directed that threat against us.

Indeed, if Kleiman wanted to get a libertarian legal analysis regarding this issue, he might have done well to ask Glenn Reynolds, whose blog is full of posts regarding the need for asteroid defense. I recognize that Kleiman loathes Reynolds, and has nothing but contempt for him, but it perhaps would not have been a bad idea for Kleiman to put his loathing aside and consider that Reynolds’s example might indicate that there are plenty of libertarians who (a) are concerned about defending the Earth against extinction-causing asteroids, and (b) might be able to justify it (as I have) constitutionally. As a general matter, it might be best for Kleiman to consult actual lawyers regarding constitutional or statutory interpretation, before trying to navigate legal thickets on his own. I mean, it’s his blog, and he can do what he wants, but it is worth noting that past Kleimanian efforts to play lawyer have ended quite poorly.

Jonathan Adler:

This post by Mark Kleiman is a good example, in that it puts forward a laughable caricature of libertarian and originalist constitutional thought that would have been discredited with but a moment’s investigation into the question (as I noted here, and Pejman Yousefzadeh discussed here).  To Prof. Kleiman’s credit, he backed off (a little) when other took the time to respond, but that a prominent, thoughtful academic would post something like this as an ostensibly thoughtful critique of right-leaning ideas says quite a bit about the state of much academic discourse.

Sasha Volokh:

I agree with Jonathan below that the Constitution (through the spending power) allows Congress to spend tax money to protect the Earth from an asteroid.

On the other hand — and at the risk of confirming Mark Kleiman in his belief that libertarians are loopy — I don’t speak for all libertarians, but I think there’s a good case to be made that taxing people to protect the Earth from an asteroid, while within Congress’s powers, is an illegitimate function of government from a moral perspective. I think it’s O.K. to violate people’s rights (e.g. through taxation) if the result is that you protect people’s rights to some greater extent (e.g. through police, courts, the military). But it’s not obvious to me that the Earth being hit by an asteroid (or, say, someone being hit by lightning or a falling tree) violates anyone’s rights; if that’s so, then I’m not sure I can justify preventing it through taxation.

Bryan Caplan once suggested the asteroid hypo to me as a reductio ad absurdum against my view. But a reductio ad absurdum doesn’t work against someone who’s willing to be absurd, and I may be willing to bite the bullet on this one.

On the other hand, if you could show that, once the impending asteroid impact became known, all hell would break loose and lots of rights be violated by looters et al. during the ensuing anarchy, I could justify the taxation as a way of preventing those rights violations; but this wouldn’t apply if, say, the asteroid impact were unknown to the public.

This does make me uncomfortable, much like my view that patents are highly useful but morally unjustifiable, so I’m open to persuasion

Matthew Yglesias:

I think this is a mistake about how a reductio works. The mere fact that Volokh is willing to bite this bullet has no real bearing on the fact that the conclusion is clearly false, and so the argument is either logically invalid or else proceeds from false premises. I’d say “false premises.” The best liberal thinking—classical, modern, whatever—proceeds from broadly consequentialist ideas about making human beings better off.

Brad DeLong:

So not only does Sasha Volokh claim that it is immoral to tax people to blow up an asteroid (or install lightning rods, or mandate lightning rods, or pay for a tree-trimming crew on the public roads), but it is immoral to tell people of an approaching asteroid so they can scramble to safety because it will cause violations of rights through looting.

Wow.

Ilya Somin:

That said, I don’t think that Sasha’s view is necessarily ridiculous or “insane.” Any theory based on absolute respect for certain rights necessarily carries the risk that it will lead to catastrophe in some instances. Let’s say you believe that torture is always wrong. Then you would not resort to it even in a case where relatively mild torture of a terrorist is the only way to prevent a nuclear attack that kills millions. What if you think that it’s always wrong to knowingly kill innocent civilians? Then you would oppose strategic bombing even if it were the only way to defeat Nazi Germany in World War II. How about absolute rights to freedom of political speech? If you are committed to them, that means you oppose censorship even if it’s the only way to prevent Nazi or communist totalitarians from coming to power and slaughtering millions.

Many such scenarios are improbable. But over the long sweep of human history, improbable events can and do happen. Had Kerensky suppressed the Bolsheviks in 1917 (as he easily could have that summer) or had the Weimar Republic done the same with the Nazis, the world would be a vastly better place, even though most political censorship (even of evil ideologies) causes far more harm than good. A civilization-destroying asteroid attack during the next few hundred years is also a low-probability event.

Thus, the potential flaw in Sasha’s view is one that it shares with all absolutist rights theories. Scenarios like the above are one of the main reasons why I’m not a rights-absolutist myself. But I don’t believe that all the great moral theorists who endorse such views from Kant to the present are either ridiculous or “insane.”

It’s also worth noting that Sasha’s approach would in fact justify asteroid defense in virtually any plausible real world scenario. As he puts it, “if you could show that, once the impending asteroid impact became known, all hell would break loose and lots of rights be violated by looters et al. during the ensuing anarchy, I could justify the taxation as a way of preventing those rights violations; but this wouldn’t apply if, say, the asteroid impact were unknown to the public.” It’s highly unlikely that news of an impending asteroid impact whose onset was known to the government could be prevented from leaking to the general public. Even if it could, “all hell” would surely break loose after the asteroid impact, resulting in numerous violations of libertarian rights by looters, bandits, people stealing food out of desperation, and so on. Either way, Sasha’s analysis ends up justifying asteroid defense.

If I understand Sasha correctly, he’s only partially a rights absolutist. He doesn’t believe that you can ever sacrifice rights for utilitarian benefits, even truly enormous ones. But he does think that you can justify small rights violations as a way of forestalling bigger ones. Sasha is an absolutist when it comes to trading off libertarian rights for other considerations, but a maximizer when it comes to trading off rights for greater protection of those same rights in the future. Effective defense against a massive asteroid impact easily passes Sasha’s rights-maximizing test.

Obviously, I welcome correction from Sasha if I have misinterpreted his views.

Mark Kleiman:

I’m glad that Adler agrees with me – and disagrees with many Tea Party lunatics, including some recently elected to the Senate and the House – that there’s no actual Constitutional question about funding the Department of Education or National Public Radio. That, of course, was my point.

I’m also glad that Sasha is standing by his guns, thus demonstrating that my argument was not directed at a mere straw man, though his objection to spending is philosophical rather than Constitutional.

Sasha worries that his honest and forthright response might confirm me in my belief that “libertarians are loopy.” That’s certainly a reasonable concern. But I would have thought that a bigger concern would be that the conclusion is, in fact, obviously loopy, and – like any good reductio ad absurdum argument, ought to lead to a re-examination of the premises that would lead to such a loopy conclusion.

Ilya Somin is right to point out that any theory that puts an absolute constraint on action runs into problems when inaction has catastrophic consequences. But if he really can’t see the difference between torture and income taxation – can’t understand why absolute opposition to torture is not analogous to absolute opposition to public spending on public goods – then “loopy” is entirely too weak a word.

Eugene Volokh:

I leave it to others to debate the constitutional and moral merits of government spending on asteroid defense (my view is that such spending is both constitutionally permissible and morally proper, but I have nothing original to add on the subject). I just wanted to add that one side of the debate is an unusually near-literal application of the saying, “Let justice be done, though the heavens fall.”

Noah Millman at The American Scene:

An impending catastrophe – asteroid strike – threatens to kill everyone in the society. That doesn’t violate anyone’s “rights” because you don’t have a “right to life” but rather a right not to have your life taken away by somebody else against your will. Therefore, the government has no right to tax you to protect you – and everybody else – from the asteroid.

So how is the asteroid to be stopped?

Presumably, everyone in society would agree voluntarily to cooperate to stop the asteroid. That is to say: we could still have collective action, but it would have to be voluntary, not coerced.

But would everyone participate?

The government goes around, passing the hat for contributions to stop the asteroid. A certain percentage of people, though, don’t believe in asteroids. Another percentage believe that the asteroid will bring the Rapture and so must not be stopped. These people are crazy, though, and crazy people are not interesting to talk about. Let’s hope there aren’t too many and ignore them.

Some people, though, notice that there are wealthier people than them in the society, and figure those other people should shoulder the burden of saving society. These are the “free-riders.”

Now, so long as this group is relatively small, no problem. Enough people will still put up enough money to stop the collective catastrophe. But so long as that is the case, free-riding is the economically rational thing to do. Indeed, in any large enough society, free-riding is always the rational thing to do: in a society with enough people putting up enough money voluntarily to stop the asteroid, free-riding is costless; in a society without enough such people, contributing is pointless.

The salvation of this ultra-libertarian society, then, depends upon the existence of a sufficient number of irrationally self-sacrificing people, people who ignore their rational self-interest in order to procure a social good for the group, without regard for the amount of “free riding” going on around them.

On the assumption – which I don’t think is pushing it at all – that there are a whole lot of communal problems that require collective action to address, libertarianism is only practical in highly communitarian societies.

I don’t know that that’s a knock-down argument against libertarianism. Wikipedia is a highly communitarian activity that grew up in a highly libertarian environment (the Internet), and most of the world is free-riding.

But it’s worth stressing nonetheless, because libertarians tend to talk as if rationality will lead to the necessary level of cooperation. But it won’t. In any case of communal threat where attempted free-riders cannot independently exposed to the threat, while contributors are protected, the rational thing to do is free-ride.

Some Dead Fish With Your Deep Dish Pizza

Eli Rosenberg at The Atlantic with the round-up

Chicago Tribune:

With startling arrogance and audaciously twisted reasoning, two appellate judges ignored more than 100 years of legal precedent, invented a new definition of “residency” and ordered Rahm Emanuel off the Feb. 22 mayoral ballot.

With the election just four weeks away, the appellate panel voted 2-1 to reverse the decisions of the Chicago Board of Elections and a Circuit Court judge. It’s an adventurous, flawed ruling that has immediate and profound consequences. The case is headed to the Illinois Supreme Court, but the ballots are headed to the printer — without Emanuel’s name. Early voting begins Monday.

In a blistering dissent, Appellate Justice Bertina E. Lampkin accused her colleagues, Thomas E. Hoffman and Shelvin Louise Marie Hall, of “careless disregard for the law,” and harshly criticized them for refusing to ask the Supreme Court for an expedited review.

Lampkin accused the majority of ignoring case law that clearly supported Emanuel’s argument —including a significant case in which Hoffman prevailed.

“The majority’s new standard is ill-reasoned and unfair to the candidate, voters and those of us who are charged with applying the law,” Lampkin wrote. The decision “disenfranchises not just this particular candidate but every voter in Chicago who would consider voting for him.”

Richard Hasen at Slate:

Illinois, like many states, requires anyone running for a municipal office to be a resident of the municipality. This sensible rule ensures that elected officials understand the interests and desires of their constituents. Emanuel long lived in Chicago and was a congressman representing part of the city for many years before he became President Obama’s chief of staff. At that point he moved his family to Washington, D.C., and rented out his house. But he kept family heirlooms and other items locked in the Chicago basement, indicating a plan to return. It was well known that Emanuel hoped to come back and run for mayor whenever Mayor Richard M. Daley decided to step down from that office.

When Daley announced his retirement and Emanuel filed to run in the race, his opponents challenged his residency—and lost before the elections board, which found that Emanuel had intended to return to Chicago after his D.C. stint for the president. A trial court affirmed the board. Now this intermediate appellate court says that’s wrong. Because Emanuel did not have a regular physical presence in Chicago in the year before the election, he is ineligible to run.

Ed Morrissey:

Emanuel moved to Washington DC and stayed there for 21 months, only returning when Richard Daley announced he wouldn’t seek another term.  Under that definition, the statute becomes essentially meaningless; anyone who lived in Chicago for any period of time could return and run for office on the shortest of notice and dare anyone to prove that returning wasn’t the intent all along.  The majority ruled that the legislature intended this requirement to apply to physical residence — which makes sense, because one wants a mayor who’s actually familiar with the city’s issues.

Eugene Volokh

Michelle Malkin:

Rahm gave a short statement to the press (no profanity delay buttons were necessary today). An appeal is on the way. He brushed off suggestion that politics played a role in court decision and said: “I have no doubt in the end we will prevail.”

Then, he cackled.

Ed Driscoll:

Just another day in the life of David Brooks favorite “Warmhearted Machiavellian.” But given that it’s Chicago, who know what will happen with the appeal. We’ll know it’s over if and when President Obama’s office Fed Exes Rahm another Luca Brasi-style dead fish.

Garance Franke-Ruta at The Atlantic:

If he is not granted that stay and the Illinois Supreme Court does not overturn the lower court’s opinion, it seems unlikely he would want take the Lisa Murkowski route and run as a write-in candidate, because the residency ruling would lead to a legal challenge to his being sworn into office.

On the one hand, there is no legal process to stop Emanuel from running a write-in campaign, according Ken Menzel, a legal counsel with the Illinois State Board of Elections.

“We don’t have a challenge process for write-in candidates in Illinois,” he explained. “You can’t prevent a person from being a write-in candidate.”

According to James Allen, a spokesman for the Chicago Board of Elections, Emanuel would have until Feb. 15 to file a write-in bid for the Feb. 22 Chicago mayoral primary election.

On the other hand — and more importantly — the state residency statute in question in the case decided today governs eligibility to hold public office, not eligibility to be on a ballot.

“The basis of the challenge is the allegation he’s not eligible for office,” Menzel said.

The finding that Emanuel failed to meet the state’s strict residency requirement, if not reversed, means a write-in campaign would begin in environment of uncertainty as to whether Emanuel could assume office, were he to win.

“I think you’re getting into uncharted waters if you get into a write-in campaign,” Menzel added. “This is the sort of thing that perhaps, if he were to try, we’d see some case-law made.”

Abdon Pallasch at Chicago Sun-Times:

The Illinois Supreme Court has ordered the Chicago Board of Election Commissioners to put Rahm Emanuel’s name back on the mayoral ballot, attorneys for Emanuel said Tuesday.

The court has not decided whether to hear Emanuel’s appeal of Monday’s Illinois Appellate Court ruling that tossed him out of the race to replace Mayor Daley. The Supreme Court granted Emanuel’s motion for a stay of the ruling, Emanuel attorney Mike Kasper said Tuesday.

There Are Cordoba Guitars And Cordoba Houses, Part II

John McCormack at The Weekly Standard:

The Anti-Defamation League, which describes itself as “the world’s leading organization fighting anti-Semitism through programs and services that counteract hatred, prejudice and bigotry,” released a statment this morning opposing the building of the 13-story mosque near Ground Zero.

“In our judgment, building an Islamic Center in the shadow of the World Trade Center will cause some victims more pain – unnecessarily – and that is not right,” says the ADL. Full statement here:

We regard freedom of religion as a cornerstone of the American democracy, and that freedom must include the right of all Americans – Christian, Jewish, Muslim, and other faiths – to build community centers and houses of worship.

We categorically reject appeals to bigotry on the basis of religion, and condemn those whose opposition to this proposed Islamic Center is a manifestation of such bigotry.

However, there are understandably strong passions and keen sensitivities surrounding the World Trade Center site.  We are ever mindful of the tragedy which befell our nation there, the pain we all still feel – and especially the anguish of the families and friends of those who were killed on September 11, 2001.

The controversy which has emerged regarding the building of an Islamic Center at this location is counterproductive to the healing process.  Therefore, under these unique circumstances, we believe the City of New York would be better served if an alternative location could be found.

Marc Tracy at Tablet:

The Anti-Defamation League has issued a statement opposing the construction of the Islamic community center a couple blocks from Ground Zero in lower Manhattan. (Earlier this week, a community board recommended that the Landmarks Preservation Commission allow the project to go through.) The release goes out of its way to grant Cordoba House’s organizers good intentions and to condemn the bigotry of some who oppose it. So what is the problem? “The controversy which has emerged regarding the building of an Islamic Center at this location,” the ADL argues, “is counterproductive to the healing process.”

It adds:

Proponents of the Islamic Center may have every right to build at this site, and may even have chosen the site to send a positive message about Islam. The bigotry some have expressed in attacking them is unfair, and wrong. But ultimately this is not a question of rights, but a question of what is right. In our judgment, building an Islamic Center in the shadow of the World Trade Center will cause some victims more pain—unnecessarily—and that is not right.

Founded in 1913, the ADL, in its words, “fights anti-Semitism and all forms of bigotry, defends democratic ideals and protects civil rights for all.” Except when it does the precise opposite.

Jeffrey Goldberg:

I have explained my support for the Lower Manhattan mosque project before, but let me restate two points:

1) The organization behind the project, the Cordoba Initiative, is a moderate group interested in advancing cross-cultural understanding. It is very far from being a Wahhabist organization;

2) This is a strange war we’re fighting against Islamist terrorism. We must fight the terrorists with alacrity, but at the same time we must understand that what the terrorists seek is a clash of civilizations. We must do everything possible to avoid giving them propaganda victories in their attempt to create a cosmic war between Judeo-Christian civilization and Muslim civilization. The fight is not between the West and Islam; it is between modernists of all monotheist faiths, on the one hand, and the advocates of a specific strain of medievalist Islam, on the other. If we as a society punish Muslims of good faith, Muslims of good faith will join the other side. It’s not that hard to understand. I’m disappointed that the ADL doesn’t understand this.

Greg Sargent:

This is basically a concession that some of the opposition to the mosque is grounded in bigotry, and that those arguing that the mosque builders harbor ill intent are misguided. Yet ADL is opposing the construction of the mosque anyway, on the grounds that it will cause 9/11 victims unnecessary “pain.”

But look: The foes of this mosque whose opposition is rooted in bigotry are the ones who are trying to stoke victims’ pain here, for transparent political purposes. Their opposition to this mosque appears to be all about insidiously linking the mosque builders with the 9/11 attackers, and by extension, to revive passions surrounding 9/11. To oppose the mosque is to capitulate to — and validate — this program.

On this one, you’re either with the bigots or you’re against them. And ADL has in effect sided with them.

Paul Krugman:

So let’s try some comparable cases, OK? It causes some people pain to see Jews operating small businesses in non-Jewish neighborhoods; it causes some people pain to see Jews writing for national publications (as I learn from my mailbox most weeks); it causes some people pain to see Jews on the Supreme Court. So would ADL agree that we should ban Jews from these activities, so as to spare these people pain? No? What’s the difference?

One thing I thought Jews were supposed to understand is that they need to be advocates of universal rights, not just rights for their particular group — because it’s the right thing to do, but also because, ahem, there aren’t enough of us. We can’t afford to live in a tribal world.

But ADL has apparently forgotten all that. Shameful — and stupid.

Update: Times staff briefly removed the link to the ADL statement, because it seemed to be dead — but it was apparently just a case of an overloaded server, and I’ve put it back.

Charles Johnson at Little Green Footballs:

Humorist Will Rogers once said about the repeal of Prohibition, “Repeal is all right, but the wrong people are for it.” In this case, the wrong people are against Park51, and if Abe Foxman and the ADL can’t keep their personal feelings out of the issue, they should have just kept quiet instead of handing the Bigot Brigade a public relations gift. What a disgrace.

Adam Serwer at American Prospect:

Let’s be clear. This is not about the proposed Islamic Center. There is already a masjid in the neighborhood, and it’s been there for decades. This is about giving political cover to right-wing politicians using anti-Muslim bigotry as a political weapon and a fundraising tool. By doing this, the ADL is increasingly eroding its already weakened credibility as a nonpartisan organization.

I learned a very important lesson in Hebrew School that I have retained my entire life. If they can deny freedom to a single individual because of who they are, they can do it to anyone. Someone at the ADL needs to go back to Hebrew School.

J Street:

Today, J Street President Jeremy Ben-Ami released the following statement:

The principle at stake in the Cordoba House controversy goes to the heart of American democracy and the value we place on freedom of religion. Should one religious group in this country be treated differently than another? We believe the answer is no.

As Mayor Bloomberg has said, proposing a church or a synagogue for that site would raise no questions. The Muslim community has an equal right to build a community center wherever it is legal to do so. We would hope the American Jewish community would be at the forefront of standing up for the freedom and equality of a religious minority looking to exercise its legal rights in the United States, rather than casting aspersions on its funders and giving in to the fear-mongerers and pandering politicians urging it to relocate.

What better ammunition to feed the Osama bin Ladens of the world and their claim of anti-Muslim bias in the United States as they seek to whip up global jihad than to hold this proposal for a Muslim religious center to a different and tougher standard than other religious institutions would be.

Joe Klein at Swampland at Time:

During the high-tide of anti-semitism, and then again during the civil-rights movement, and often since, the Anti-Defamation League transcended its Jewish origins to stand as a courageous American voice against prejudice. But now, it’s making a mockery of its original mission and, in the process, it has sullied American Judaism’s intense tradition of tolerance and inclusion.  I miss the old ADL and so does America. Foxman should be fired immediately. (Meanwhile, hooray yet again for Michael Bloomberg.)

Peter Beinart at Daily Beast:

Had the ADL genuinely tried to apply its universalistic mandate to the Jewish state, it would have become something like the Association for Civil Rights in Israel (ACRI) or B’Tselem (full disclosure: I’m on B’Tselem’s American board): Israeli human rights organizations that struggle against all forms of bigotry, and thus end up spending a lot of time defending Muslims and Christian Palestinians against discrimination by Jews. But the ADL hasn’t done that. Instead it has become, in essence, two organizations. In the United States, it still links the struggle against anti-Semitism to the struggle against bigotry against non-Jews. In Israel, by contrast, it largely pretends that government-sponsored bigotry against non-Jews does not exist. When Arizona passes a law that encourages police to harass Latinos, the ADL expresses outrage. But when Israel builds 170 kilometers of roads in the West Bank for the convenience of Jewish settlers, from which Palestinians are wholly or partially banned, the ADL takes out advertisements declaring, “The Problem Isn’t Settlements.”

For a long time now, the ADL seems to have assumed that it could exempt Israel from the principles in its charter and yet remain just as faithful to that charter inside the United States. But now the chickens are coming back home to America to roost. The ADL’s rationale for opposing the Ground Zero mosque is that “building an Islamic Center in the shadow of the World Trade Center will cause some victims more pain—unnecessarily—and that is not right.” Huh? What if white victims of African-American crime protested the building of a black church in their neighborhood? Or gentile victims of Bernie Madoff protested the building of a synagogue? Would the ADL for one second suggest that sensitivity toward people victimized by members of a certain religion or race justifies discriminating against other, completely innocent, members of that religion or race? Of course not. But when it comes to Muslims, the standards are different. They are different in Israel, and now, it is clear, they are different in the United States, too.

More Goldberg

Mark Thompson at The League:

I don’t have any real problem with those who take offense at the decision to build this project a few blocks from Ground Zero, and particularly those who take such offense having had deep ties to New York on 9/11/01.

What I do have a problem with is those who have determined that this is an appropriate issue for political activism, and particularly those supposed advocates of “small government” who view it as appropriate that government would step in here to restrict the property rights of a private organization.  What I do have a problem with is those who claim to advocate for “states rights” and federalism insisting that it is the job of the federal government to make sure that what is effectively a zoning decision of the New York City government is overruled.  What I do have a problem with is those who are using this proposed building to stir up anti-Muslim sentiment by branding it a “9/11 Victory Mosque,” and who presume to know more about Muslims than Muslims themselves and in the process create an “inescable trap” wherein all Muslims are either lying about not being jihadi terrorists or are just “bad Muslims.”

Jennifer Rubin at Commentary:

The left continues to feign confusion (it is hard to believe its pundits are really this muddled) as to the reasons why conservatives (and a majority of fellow citizens) oppose the Ground Zero mosque. No, it’s not about “religious freedom” — we’re talking about the location of the mosque on the ash-strewn site of 3,000 dead Americans. The J Street crowd and the liberal defenders of the mosque seem very bent out of shape when Americans want to defend the sensibilities of their fellow citizens and when they look askance at an imam whose funding appears to come from those whose goal is anything but religious reconciliation. Again, no one is telling Muslims not to build or pray in mosques; we on the right are simply asking them not to do it in the location where Islam was the inspiration for mass murder.

It is interesting that the word mosque is not employed by those excoriating the mosque opponents. As a smart reader highlights, why is it described as a “cultural center”? Pretty dicey to articulate exactly what position the left clings to — namely, that we must allow a mosque at Ground Zero. Well, when you are that precise, it does highlight the vast gulf between the left’s perspective and that of average Americans.  (And for the record, my objections to J Street obviously aren’t limited to the Ground Zero mosque. And I certainly do believe “you are either for us or you are for them” — when it comes to Israel and to America. That this notion disturbs the left tells you precisely why it is estranged from the vast majority of Israelis and Americans.)

Dan Senor is not confused in the least. He pens an open letter to the Ground Zero mosque imam, which gets to the heart of the matter. Recalling the 9/11 attack “committed in the name of Islam,” he explains:

We applaud and thank every Muslim throughout the world who has rejected and denounced this association. But the fact remains that in the minds of many who are swayed by the most radical interpretations of Islam, the Cordoba House will not be seen as a center for peace and reconciliation. It will rather be celebrated as a Muslim monument erected on the site of a great Muslim “military” victory—a milestone on the path to the further spread of Islam throughout the world. …

Rather than furthering cross-cultural and interfaith understanding, a Cordoba House located near Ground Zero would undermine them. Rather that serving as a bridge between Muslim and non-Muslim peoples, it would function as a divide. Your expressed hopes for the center not only would never be realized, they would be undermined from the start. Insisting on this particular site on Park Place can only reinforce this counterproductive dynamic.

This is not some right-wing, extremist view. It represents the views of a large majority of Americans and of mainstream Jewish leaders like Malcolm Hoenlein — as well as Juan Williams. But the left – which has become obsessed with universalism and finds particularism and nationalism noxious – thinks it unseemly for Americans to look after the interests of Americans, and Jews to look after Jews (as to the latter, we can only be grateful that so many pro-Zionist Christians do as well).

Peter Wehner at Commentary

Jonathan Chait at TNR:

Joe Lieberman comes out against building an Islamic Center in lower Manhattan:

“I’ve also read some things about some of the people involved that make me wonder about their motivations. So I don’t know enough to reach a conclusion, but I know enough to say that this thing is only going to create more division in our society, and somebody ought to put the brakes on it,” he said. “Give these people a chance to come out and explain who they are, where their money’s coming from.”

Sounds like he’s deeply troubled by the hilariously elongated chain of guilt-by-association constructed by critics.

Meanwhile, former Bushie Dan Senor writes:

9/11 remains a deep wound for Americans—especially those who experienced it directly in some way. They understandably see the area as sacred ground. Nearly all of them also reject the equation of Islam with terrorism and do not blame the attacks on Muslims generally or on the Muslim faith. But many believe that Ground Zero should be reserved for memorials to the event itself and to its victims. They do not understand why of all possible locations in the city, Cordoba House must be sited so near to there.

A couple things are striking about this argument. First, Senor claims that “Ground Zero should be reserved for memorials.” But the Muslim center is not being built on Ground Zero. It’s being built two blocks away, in a site that doesn’t feel especially connected to Ground Zero. Senor is suggesting that nothing but memorials should be built within (at least) a two block radius of Ground Zero. Forgive me for feeling skeptical that such a standard is being applied to any other proposed construction.

Second, there’s a very weaselly relativism at work here in his not-prejudiced plea to relocate the center. Senor is arguing, I support freedom of religion, and I believe that your group doesn’t support terrorism, but other Americans don’t feel this way. Of course this is an argument for caving in to any popular prejudice or social phobia whatsoever. Hey, I’m happy to let a black family move into the neighborhood, but other people here think you’re probably crackheads who spray random gunfire at night, so in order to prevent racial strife you should probably live somewhere else.

Justin Elliott at Salon:

Mayor Michael Bloomberg, who has emerged as the unlikely but passionate defender of the planned Muslim community center near ground zero, today traveled to Governors Island off the tip of Lower Manhattan to deliver a stirring plea for sanity in what he called “[as] important a test of the separation of church and state as we may see in our lifetimes.”

The Daily News’ Adam Lisberg reports that Bloomberg choked up at one point as he delivered the speech surrounded by religious leaders of different faiths, with the Statue of Liberty in the background.

Rather than attack the bigotry of the opponents of the so-called “ground zero mosque,” Bloomberg made several positive arguments for building the center. He traced the struggle for religious freedom in New York and affirmed the rights of citizens to do as they please with their private property:

The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right. And if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution.

Whatever you may think of the proposed mosque and community center, lost in the heat of the debate has been a basic question: Should government attempt to deny private citizens the right to build a house of worship on private property based on their particular religion? That may happen in other countries, but we should never allow it to happen here.

It’s worth noting that three Jewish leaders  — Rabbi Bob Kaplan from the Jewish Community Council, Rabbi Irwin Kula from the National Jewish Center for Learning and Leadership, and Cara Berkowitz from the UJA Federation — were present with Bloomberg during the speech, despite the Anti-Defamation League’s opposition to the project

Chris Good at The Atlantic:

Few events in recent memory have called up the resonant ideological debates of 9/11 as forcefully as the mosque being planned near the former site of the World Trade Center in Manhattan. It appears these are debates we will keep having, as New York City’s Landmarks Preservation Commission has voted to let the Cordoba Initiative and the American Society for Muslim Advancement proceed with their plans. Along with those plans will come more discussion of religious freedom, taste, and the specter of a Western/Muslim cultural World War

Ann Althouse:

Writes the NYT, reporting the city’s 9-0 vote against designating the building on the site a landmark. Now, as a matter of freedom of religion, it really was crucial not to let religion (or political ideology) affect the question whether that building should be classified under the law as a landmark, thus limiting the property rights of the owner. The requirement of neutrality in decisionmaking like that is fundamental to the rule of law.

One by one, members of the commission debated the aesthetic significance of the building, designed in the Italian Renaissance Palazzo style by an unknown architect.

That is clearly the way it had to be done. But what should not be lost, in understanding that, is that the owner’s freedom means that the owner has a choice. The owner is certainly not required to build a Muslim center and mosque on that site. Because it is a choice, it’s not wrong for the community to ask: Why are you making this choice? Why are you doing something that feels so painful to us? The community isn’t wrong to plead with the owner to choose to do something else with that property. It’s not enough of an answer to say we are doing it because we have a right to do it.

UPDATE: Will Wilkinson

Allah Pundit

Greg Sargent

William Kristol at The Weekly Standard

UPDATE #2: Dorothy Rabinowitz at WSJ

Alan Jacobs at The American Scene

Conor Friedersdorf at The American Scene

Joshua Cohen and Jim Pinkerton at Bloggingheads

Mark Schmitt and Rich Lowry at Bloggingheads

David Weigel and Dan Foster at Bloggingheads

UPDATE #3: Alex Massie here and here

UPDATE #4: Fareed Zakaria in Newsweek, his letter to Foxman

Abe Foxman writes a letter to Zakaria

Steve Clemons

UPDATE #5: Christopher Hitchens at Slate

Eugene Volokh

UPDATE #6: Jillian Rayfield at Talking Points Memo

UPDATE #7: Charles Krauthammer at WaPo

Jonathan Chait at TNR

John McCormack at The Weekly Standard

UPDATE #8: Joe Klein on Krauthammer

Michael Kinsley at The Atlantic on Krauthammer

UPDATE #9: More Krauthammer

Kinsley responds

UPDATE #10: Adam Serwer at Greg Sargent’s place

Steve Benen

Maybe If They Hire Joss Whedon Or J.J. Abrams…

Squid314 (Scott):

But then there are some shows that go completely beyond the pale of enjoyability, until they become nothing more than overwritten collections of tropes impossible to watch without groaning.

I think the worst offender here is the History Channel and all their programs on the so-called “World War II”.

Let’s start with the bad guys. Battalions of stormtroopers dressed in all black, check. Secret police, check. Determination to brutally kill everyone who doesn’t look like them, check. Leader with a tiny villain mustache and a tendency to go into apopleptic rage when he doesn’t get his way, check. All this from a country that was ordinary, believable, and dare I say it sometimes even sympathetic in previous seasons.

I wouldn’t even mind the lack of originality if they weren’t so heavy-handed about it. Apparently we’re supposed to believe that in the middle of the war the Germans attacked their allies the Russians, starting an unwinnable conflict on two fronts, just to show how sneaky and untrustworthy they could be? And that they diverted all their resources to use in making ever bigger and scarier death camps, even in the middle of a huge war? Real people just aren’t that evil. And that’s not even counting the part where as soon as the plot requires it, they instantly forget about all the racism nonsense and become best buddies with the definitely non-Aryan Japanese.

Not that the good guys are much better. Their leader, Churchill, appeared in a grand total of one episode before, where he was a bumbling general who suffered an embarrassing defeat to the Ottomans of all people in the Battle of Gallipoli. Now, all of a sudden, he’s not only Prime Minister, he’s not only a brilliant military commander, he’s not only the greatest orator of the twentieth century who can convince the British to keep going against all odds, he’s also a natural wit who is able to pull out hilarious one-liners practically on demand. I know he’s supposed to be the hero, but it’s not realistic unless you keep the guy at least vaguely human.

So it’s pretty standard “shining amazing good guys who can do no wrong” versus “evil legions of darkness bent on torture and genocide” stuff, totally ignoring the nuances and realities of politics. The actual strategy of the war is barely any better. Just to give one example, in the Battle of the Bulge, a vastly larger force of Germans surround a small Allied battalion and demand they surrender or be killed. The Allied general sends back a single-word reply: “Nuts!”. The Germans attack, and, miraculously, the tiny Allied force holds them off long enough for reinforcements to arrive and turn the tide of battle. Whoever wrote this episode obviously had never been within a thousand miles of an actual military.

Probably the worst part was the ending. The British/German story arc gets boring, so they tie it up quickly, have the villain kill himself (on Walpurgisnacht of all days, not exactly subtle) and then totally switch gears to a battle between the Americans and the Japanese in the Pacific. Pretty much the same dichotomy – the Japanese kill, torture, perform medical experiments on prisoners, and frickin’ play football with the heads of murdered children, and the Americans are led by a kindly old man in a wheelchair.

Anyway, they spend the whole season building up how the Japanese home islands are a fortress, and the Japanese will never surrender, and there’s no way to take the Japanese home islands because they’re invincible…and then they realize they totally can’t have the Americans take the Japanese home islands so they have no way to wrap up the season.

So they invent a completely implausible superweapon that they’ve never mentioned until now. Apparently the Americans got some scientists together to invent it, only we never heard anything about it because it was “classified”. In two years, the scientists manage to invent a weapon a thousand times more powerful than anything anyone’s ever seen before – drawing from, of course, ancient mystical texts. Then they use the superweapon, blow up several Japanese cities easily, and the Japanese surrender. Convenient, isn’t it?

…and then, in the entire rest of the show, over five or six different big wars, they never use the superweapon again. Seriously. They have this whole thing about a war in Vietnam that lasts decades and kills tens of thousands of people, and they never wonder if maybe they should consider using the frickin’ unstoppable mystical superweapon that they won the last war with. At this point, you’re starting to wonder if any of the show’s writers have even watched the episodes the other writers made.

I’m not even going to get into the whole subplot about breaking a secret code (cleverly named “Enigma”, because the writers couldn’t spend more than two seconds thinking up a name for an enigmatic code), the giant superintelligent computer called Colossus (despite this being years before the transistor was even invented), the Soviet strongman whose name means “Man of Steel” in Russian (seriously, between calling the strongman “Man of Steel” and the Frenchman “de Gaulle”, whoever came up with the names for this thing ought to be shot).

So yeah. Stay away from the History Channel. Unlike most of the other networks, they don’t even try to make their stuff believable.

Noah Millman at The American Scene:

So I Guess Maeby Was Right To Pass On That History Text

H/T pretty much everybody in the universe, but yes, I, too thought this was pretty funny.

Eugene Volokh

Charlie Jane Anders at I09:

If you think your favorite science fiction TV show is full of nonsensical plot twists and lazy writing, you should check out the World War II documentaries, suggests Squid314 on Livejournal, in the funniest blog post you’re likely to read this week. Who on Earth would believe that the Allies could actually win the Battle of the Bulge? It’s total nonsense, and “Whoever wrote this episode obviously had never been within a thousand miles of an actual military

[…]

I’m convinced. We should start a write-in campaign to get the writers of the twentieth century fired. Who’s with me? More incredible brilliance at the link.

Joe Carter at First Things:

There have been some great television shows that have explored the theme of war and combat (M*A*S*H, Battlestar Galactica, F-Troop). But I have to agree with the brilliant TV critic Scott that the ongoing series that runs on The History Channel isn’t one of them

[…]

Read the rest. You won’t want to miss the part about the “unstoppable mystical superweapon” the never appears in the sequels.

Ed Driscoll at Pajamas Media:

Part of the problem is that in the 1970s, television writers were a crazed, psychedelic lot, a bunch of stoner sixties retreads more into scoring controlled substances than scripting controlled plotting.

Take this rock star wannabe who appeared in several segments of the World at War, and his seriously seventies mullet:

Don’t recognize him? I only knew who he was because his voice preceded his image, but I did a double take when he finally appeared:

Yes, it’s Stephen Ambrose in the early 1970s, back when he was in his mid-thirties, decades before the plagiarism scandals, and prior to that, his more sober C-SPAN and PBS-friendly look:

So yes kids, World War II was pretty cliched, but back in the 1970s, when it came time to watch TV, it was either that or Maude and Adam-12. We made do, somehow.

Robert Farley at Lawyers, Guns, And Money

Matthew Yglesias:

These are all fair points. In terms of gritty realism and morally complex drama, you can make mine the Napoleonic Wars. The anti-hero at the center of the action has a great plot arc, the horses look cool, and the whole metric system conceit is so clever I’m surprised people don’t use it in practice. Even the North American spinoff is pretty interesting. It’s just too bad they didn’t let well enough alone after Elba—the TV movie special felt pointless and tacked on.

Doug Mataconis:

Just goes to show you that reality rarely makes good television.

Man Lied To Get A Woman Into Bed. In Other News, The Sky Is Blue.

Max Fisher at The Atlantic with a round-up.

Jo Adetunji and Harriet Sherwood at The Guardian:

A Palestinian man has been convicted of rape after having consensual sex with a woman who had believed him to be a fellow Jew.

Sabbar Kashur, 30, was sentenced to 18 months in prison on Monday after the court ruled that he was guilty of rape by deception. According to the complaint filed by the woman with the Jerusalem district court, the two met in downtown Jerusalem in September 2008 where Kashur, an Arab from East Jerusalem, introduced himself as a Jewish bachelor seeking a serious relationship. The two then had consensual sex in a nearby building before Kashur left.

When she later found out that he was not Jewish but an Arab, she filed a criminal complaint for rape and indecent assault.

Although Kashur was initially charged with rape and indecent assault, this was changed to a charge of rape by deception as part of a plea bargain arrangement.

Handing down the verdict, Tzvi Segal, one of three judges on the case, acknowledged that sex had been consensual but said that although not “a classical rape by force,” the woman would not have consented if she had not believed Kashur was Jewish.

The sex therefore was obtained under false pretences, the judges said. “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” they added.

The court ruled that Kashur should receive a jail term and rejected the option of a six-month community service order. He was said to be seeking to appeal.

Segal said: “The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price – the sanctity of their bodies and souls. When the very basis of trust between human beings drops, especially when the matters at hand are so intimate, sensitive and fateful, the court is required to stand firmly at the side of the victims – actual and potential – to protect their wellbeing. Otherwise, they will be used, manipulated and misled, while paying only a tolerable and symbolic price.”

Al-Jazeera:

The Israeli criminal code mentions “deceit” as a possible aggravating factor in sexual assault cases and the verdict in Kashur’s case is not the first time an Israeli court has sentenced a man for “rape by deception,” according to several Israeli lawyers.

The most notable case was in 2008, when Israel’s high court of justice upheld the conviction of Zvi Sleiman, a man who impersonated a housing ministry official and promised women apartments and benefits in exchange for sex.

A rape conviction sentence could be upheld, the court ruled, when “a person lies does not tell the truth regarding critical matters to a reasonable woman”.

Several other men have been convicted of “rape by deception” since that ruling.

But the Kashur case appears to be the first time a person’s race has been used as the determining factor.

“In this case, the ruling seems to say that if a ‘reasonable’ Jewish woman knew a man was an Arab, then she would not make love to him,” Abeer Baker, an attorney with Adalah, an organisation that advocates for Arab rights in Israel, said.

Baker called it a “dangerous precedent,” saying it would allow the Israeli government to interfere in the private lives of citizens.

“It’s interfering in a very intimate, personal decision,” she said. “That should be made between two people. The court should not interfere.”

Open hostility

Similar laws have been controversial in other countries, as well. A man in the United States was convicted in 2007 of impersonating his brother in order to have sex with his girlfriend. That conviction was overturned on appeal, though, after an appellate court ruled that rape laws apply only to non-consensual sex.

Kashur’s case also highlights the open hostility with which many Israeli Jews view mixed relationships with Arabs, who make up one-fifth of the population of Israel.

A poll conducted in 2007 by Israel’s Geocartography Institute found that more than 50 per cent of Israeli Jews thought marrying an Arab was “equal to national treason”. Jews are legally forbidden to intermarry in Israel.

The Sunday Times reported in 2009 on a squad of “vigilantes” in the Jewish settlement of Pisgat Zeev. The group has patrolled the streets for more than a decade looking for mixed couples.

And in 2009, the town of Petah Tikva established a team of counsellors and psychologists to “rescue” Jewish women from relationships with Arab men.

The Israeli daily Maariv reported in February that Tel Aviv had launched a similar programme.

Eugene Volokh:

Such “fraud in the inducement” would not suffice for a rape conviction under the law of most American states (see, e.g., this case), though it’s an interesting question why it’s a crime to get money by fraud but not to get sex by fraud. There are good answers to that question, I think, but they’re not so obviously right as to keep the question from being interesting.

For some thoughts from last year on a proposal in Massachusetts that might have allowed liability in such a situation, see here. Also, it appears that a few American rape statutes might already criminalize sex procured through false statements. State v. Tizard, 897 S.W.2d 732 (Tenn. Ct. Crim. App. 1994) holds that Tennessee law rejects the distinction between “fraud in the inducement” and “fraud in the fact,” which is what has prevented rape prosecutions in cases such as the Israeli one; the facts of Tizard, though, are rather different — the defendant was lying about the supposed medical reason of the sexual act (there, the defendant’s masturbation of the victim, though the analysis would be the same for intercourse) rather than about the defendant’s identity. And some states generally provide that “assent does not constitute consent if … [i]t is induced by force, duress, or deception” (to quote Colo. Rev. Stats. Ann. § 18–1-505), which would in principle apply to rape cases as well.

If anyone can point me to the written opinion in the case, I’d be much obliged, both so I can blog about it and so I can use it in my Criminal Law class this Fall (I have a unit on fraud in the section on the law of rape). Thanks to Mike Sheridan for the pointer.

UPDATE: Several commenters raise a point that was also made by one of the source cited in the article: “Gideon Levy, a liberal Israeli commentator, was quoted as saying: ‘I would like to raise only one question with the judge. What if this guy had been a Jew who pretended to be a Muslim and had sex with a Muslim woman? Would he have been convicted of rape? The answer is: of course not.’”

It’s certainly possible that a court would have — and still would in the future, even given this decision — acquit this hypothetical Jew-pretending-to-be-a-Muslim defendant. But I’m just not sure that one can categorically assume this, especially in light of the judges’ rhetoric. It seems to me that Jewish judges might well think the lying Jew’s behavior is as deceptive, manipulative, and injurious to “the sanctity of [victims’] bodies and souls” as a lying Muslim’s, and that the deceived Muslim woman should be as protected as a deceived Jewish woman. And this is so even given the undoubted psychological reality that judges, like other people, generally tend to empathize more with people who are like themselves. Despite this reality, judges may still empathize enough with people who are less like themselves.

Now I’m certainly not an expert on Israeli judges’ attitudes, and I’d be happy to hear the views of people who have lived in Israel and have a sense of how the Israeli legal system would deal with this situation. But I’m reluctant to accept the assumptions of the one Israeli commentator who was quoted, at least unless I hear a broader range of people confirming his judgment.

Jonathan Turley:

That reads uncomfortably close to old miscegenation cases where judges sought to protect women from “smooth-taking” black men.

Even in cases where women have been falsely told that a lover does not carry an STD, the matter is addressed in the United States as a matter of civil not criminal battery. Does this mean that any false fact used in a one-night stand is now a criminal matter deserving of jail or it is only Arab status that gets that level of punishment? For example, if a Israeli man says he is unmarried and looking for a lasting relationship, can he be jailed? If so, the Israeli jail would be stuffed to over-capacity.

We have been following a crackdown on Israeli women dating Arab men recently.

Richard Lawson at Gawker

The Jawa Report:

Frankly, one has to wonder about this case. I suspect it’s somewhat common for a man to tell a woman lies while trying to bed her.

In fact I heard about one case where a woman sued a man for lying because he said he would take her to Florida if she went to bed with him. The case was thrown out after the man explained that he never said he was going to take her to Florida, rather he said he was going to tamper with her.

Heh.

Robert Stacy McCain:

Obtaining sex “under false pretences” is a crime in Israel? It’s against the law in Israel to get sex by feigning interest in “a serious romantic relationship”? OK, you bachelors out there, let’s have a show of hands: How many of you guys have ever lied to get some nookie?

Everybody? I thought so.

Just don’t try that in Jerusalem, buddy. And let this be a lesson to you Israeli ladies: Just because a goyim tells you it’s kosher . . .

UPDATE: Tracy Clark-Flory at Salon

Not-So-Sweet Charity

Erin Miller at SCOTUSBlog:

In Holder v. Humanitarian Law Project (08-1498; 09-89), the Court affirms in part, reverses in part, and remands on a 6-3 vote.  Chief Justice Roberts writes the Court’s opinion, while Justice Breyer dissents, joined by Justices Ginsburg and Sotomayor.

• Holding: The federal material-support statute is constitutional as applied to the particular kinds of support that the parties in this case seek to provide to foreign terrorist organizations.  The Court concludes that, as applied to these individuals and groups, the statute does not violate the free speech clause of the First Amendment.
• Note: On the bench, Justice Breyer read from his dissent.

The full texts of the four opinions, and the briefs in the granted cases, appear after the jump.

American Constitution Society:

The Supreme Court, voting 6-3, upheld a federal law that bars “material support” of groups the government deems are terrorist organizations.  The Associated Press reports that the majority opinion, written by Chief Justice John Roberts, finds that the government “may prohibit all forms for aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities.” Roberts wrote that the “material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future.”In Holder v. Humanitarian Law Project a group of individuals and nonprofit organizations, including the Los Angeles-based Humanitarian Law Project challenged the constitutionality of the material support provision. The groups sought to provide financial support and legal and political training to the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). Both of those groups had been designated by the State Department as foreign terrorist organizations. Roberts wrote that the government “has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens.”

The groups and individuals who wanted to provide financial support and training for peaceful political purposes to the PKK and LTTE argued that the material support law violated their free speech rights and association rights, and that the law is unconstitutionally vague.

Ed Morrissey:

Hamas would be one such example.  It conducts terrorist attacks against Israel with one part of its organization while running charitable endeavors with another.  Fundraising for Hamas to support its outreach programs would allow Hamas to use the money elsewhere, or even if the specific money was applied to the charitable work, it would allow Hamas to not have to dip into the charity funds for its terrorist activities.

That has long been accepted legal theory in the US, but until now it hasn’t been applied to non-monetary support.  It’s a murkier question, as “advice” is not a fungible commodity.  Assistance in building a proposal to the UN doesn’t translate into terrorist activity as easily as money does, mainly because it’s specific to the task.  However, the Supreme Court has wisely decided that the basic issue is one of terrorist intent on the organization as a whole, and not the subordinate intentions of its internal agencies.  Supporting a designated terrorist group in anything is in essence material support for terrorism.

Justice Stephen Breyer, the AP reports, read his dissent aloud in a show of frustration with the majority opinion, rather than just release the written brief.  Breyer was joined by Sonia Sotomayor and Ruth Bader Ginsburg, in what would be no great shock.  The report fails to mention that John Paul Stevens, soon to retire from the Court, joined the conservative majority on this question.  That seems rather newsworthy, and the AP’s failure to mention it seems equally newsworthy.

Jacob Sullum at Reason:

Today the Supreme Court upheld the federal ban on providing “material support” to groups identified as “foreign terrorist organizations” by the secretary of state. The activists challenging the statute feared prosecution for encouraging the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam, both of which appear on the State Department’s list, to pursue their goals through nonviolent means. As described by the district court, the plaintiffs wanted to “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes,” “engage in political advocacy on behalf of Kurds who live in Turkey,” “teach PKK members how to petition various representative bodies such as the United Nations for relief,” and “engage in political advocacy on behalf of Tamils who live in Sri Lanka.” The Supreme Court’s ruling (PDF) says the activists were correct to worry that such projects, though speech aimed at promoting lawful activities, would be considered “material support,” which includes the broad categories of “training,” “expert advice or assistance,” “personnel,” and “service.” But in the view of six justices, this restriction on freedom of speech is justified as part of the fight against terrorism. While not ruling out the possibility that future applications of the law might violate the First Amendment, the majority opinion by Chief Justice John Roberts says the Constitution allows Congress to criminalize the speech contemplated by the plaintiffs in this case, based on the premise that any assistance to terrorist groups, no matter its nature or aim, helps legitimize them and continue their violent activities.

Eugene Volokh:

Let’s look at the general problem: American speakers can do many things that help foreign terrorist organizations, both those that are directly fighting us, such as al Qaeda, and those that aren’t, such as the Kurdish separatist PKK and the Tamil separatist LTTE. They can train them to more effectively engage in terrorism. They can train them to deal with international bodies (one of the issues involved in the Humanitarian Law Project case). They can coordinate publicity campaigns with them.

Speakers can also independently write newspaper editorials or op-eds praising the PKK and the LTTE, and arguing that they should be taken off the foreign terrorist organization list, or even be supported by the U.S. government. They can independently organize demonstrations making the same arguments. They can independently write academic papers making the same argument, or appear on television making it. Politicians and candidate for office can make the same arguments.

And all these things, both those coordinated with the groups (the first paragraph) and those done entirely independently will undermine “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.” The undermining will be indirect, and will happen through means such as increasing the groups’ perceived legitimacy, helping them acquire more resources to engage in terrorism, and letting them reroute their already-acquired resources to terrorism. (It might even embolden the groups to keep fighting, in the hopes that if they hold out long enough, the politicians who praise them might gain power and change American foreign policy in a way that supports the groups.) But as the Court pointed out in Holder v. Humanitarian Law Project, such indirect threats to the compelling government interest may nonetheless be real threats. Therefore, if one really takes seriously the Court’s assertion — which has often been made in other cases — that content-based speech restrictions are constitutional if they are “narrowly tailored to serve a compelling state interest,” all this speech, including the independent advocacy, could be criminalized.

But this can’t be so, it seems to me — which is why the majority (1) took pains on several occasions to note that the law didn’t apply to independent advocacy, (2) said that “In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations,” and (3) stressed that, “Finally, and most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.” We Americans must have the right to try to persuade our fellow citizens, and our government, that our government is on the wrong side in various foreign policy controversies, that groups that the government says are bad guys are actually good guys (or at least less bad than the really bad guys), or that we should change our policies about which kinds of support to the bad guys are barred and which are allowed. To do that, we need to be able to make arguments defending or even praising those groups, even when such arguments help designated foreign terrorist organizations, and thus interfere with “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.”

If I’m right, then this means that in this situation speech can’t be restricted even when the restriction is indeed necessary to serve a compelling government interest. The free speech rule there isn’t that the restriction is valid only if it passes strict scrutiny — it’s that the restriction is per se invalid. That’s the argument I make as to other restrictions in my Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417 (1997); and I think that the majority’s ruling in Holder v. Humanitarian Law Project is not inconsistent with that argument. To be sure, the majority doesn’t hold that a ban on independent advocacy would be unconstitutional even though such a ban might be necessary to serve a compelling government interest; it expressly reserves that question. But I think that the majority’s repeated stress that the law doesn’t restrict independent advocacy suggests that the Court would indeed strike down such a ban that applied to independent advocacy. And I think it would have to do that, if it takes seriously the importance of speech to democratic self-government (which I think the Court has indeed done in recent decades).

The Jawa Report:

Good on them! Now add IHH to the list, the so called Humanitarian aid group that sponsored, along with the backing of the Turkish Prime Minister, the Jihadi Flotilla of hate.

Digby:

The bottom line is that money is now considered equivalent to speech in more ways than just electioneering. If you believe that multi-national corporations are exercising a right to free speech by spending unlimited funds to influence elections to their benefit, then you would naturally assume that exercising your right to free speech to influence organizations is equivalent to giving them money. The consistent concept for this court isn’t free speech at all, it’s their belief that money equals speech. I don’t find this outcome surprising in the least. Once you make the leap then this is the logical outcome. And I would guess it won’t be the last time we see this.

I’m Shocked, Shocked To Find Mean Things On This Twitter

David Kravets at Wired:

An anonymous blogger critical of Pennsylvania Attorney General Tom Corbett plans to challenge a grand jury subpoena ordering Twitter to reveal the blogger’s identity.

“It doesn’t really matter why we are criticizing him,” said ”Signor Ferrari,” one of the two Twitter users targeted in the subpoena from Corbett, who won the Republican gubernatorial primary Tuesday. ”It’s our First Amendment right to criticize him no matter who we are,” said Signor Ferrar said in a telephone interview Wednesday. He uses that pen name on the CasablancaPA blog.

The bloggers received an e-mail from Twitter on Tuesday evening saying the micro-blogging service would respond to the subpoena (.pdf) in a week “unless we receive notice from you that a motion to quash the subpoena has been filed or that this matter has been otherwise resolved.”

The subpoena follows a string of similar efforts to unmask anonymous writers, with mixed results. A Louisiana politician dropped a defamation suit Tuesday against 11 anonymous commenters on The Times-Picayune website after the outlet refused to release their identities. In August, however, Google unmasked the operator of the “Skanks in NYC” blog after being subpoenaed by an Australian model who claimed the site defamed her. And on Monday, a federal judge prevented Yahoo from revealing the identity of a message-board poster critical of USA Technologies.

While those efforts involved civil subpoenas, Corbett is apparently treating his online critics as potential criminals, using his power as the state’s top law enforcement official to issue a grand jury subpoena. The subpoena does not state what kind of crime the grand jury is investigating.

The subpoena to Twitter was dated May 6 and required Twitter to respond by May 14 with all identifying information it has on the Twitter accounts of bfbarbie andCasablancaPA, which is also Signor Ferrari’s handle on Twitter. The deadline had been extended, Signor Ferrari said.

Robin Wauters at TechCrunch:

The account @CasaBlancaPA, whose owner is identified as ‘Signor Ferrari’ (a criminal in the film Casablanca, played by Sydney Greenstreet) on Twitter, links to this blog in the bio section. The blog, hosted on Google’s Blogger service, is dedicated to “exposing the hypocrisy of Tom Corbett” according to its subtitle.

Some choice tweets that may have gotten the @CasaBlancaPA account owner in trouble:

– “Is it wrong to mix campaign work with taxpayer business? Apparently not when Tom Corbett does it bonusgate #pagovrace” (tweet, blog post)

– “Corbett erupts at campaign event; security tries to eject questioner #bonusgate #pagovrace” (tweet, blog post)

– “Quiz! Who sputters with indignation over failure to recuse from cases involving contributors? #bonusgate #pagovrace” (tweet, blog post)

In 2008, a lawsuit was filed by a former state employee against the Pennsylvania Attorney General’s office that alleges public dollars were “illegally paid out to vendors” and contends wrongful termination. However, there have been no charges filed or evidence of criminal wrongdoing by Corbett.

We’re digging further into this.

Update: ‘Ferrari’ writes:

We believe this is more about the blog than the Tweets. We have not received notification of a subpoena to Blogger, so we really don’t know. We are seeking legal representation and plan to ask Twitter not to comply.

Although the subpoena was to appear last week, we believe Twitter asked for additional time because we received notification last night. We believe in the constitutionally-protected right of Americans to criticize public officials anonymously.

Update 2: Timothy Yip, Legal Counsel for Twitter issued this statement:

We protect and do not disclose user information except in limited circumstances. We notify a user, if we believe we are allowed to by law, when we receive any request for their information that we may be required to comply with. This policy is designed for maximum transparency and gives users an opportunity to object.

Robert Quigley at Geekosystem:

Even if Tom Corbett has the legal authority to do this, which is open to debate, it doesn’t seem as though it could possibly be a good idea. Whoever is behind the two accounts criticizing him, they have fairly tiny followings — which is likely to change now that they’re the subject of the wrath of the Attorney General’s office. It’s a classic case of Streisand Effect, and it’s all the more a head-scratcher for the relative tameness of the Tweets in question: You could do a lot worse in most corners of the political blogosphere.

Eugene Volokh:

The striking thing is that this is a subpoena to provide evidence in a criminal investigation. If it had been a subpoena related to a civil libel lawsuit, then either Twitter or the anonymous poster could try to quash the subpoena, and then the court would have to decide whether the plaintiff had, at least, a legally sufficient libel case (i.e., the statements were factual allegations and not opinions, and there was some reason to think the factual allegations were false). If the plaintiff did have such a case, then the plaintiff would indeed be able to discover the identity of the defendant, so he could know whom to sue, and so he could get further factual information relevant to the case (such as what the defendant knew about whether the statements were true or false). That’s the emerging rule in many states (though there are important variations in detail). There are no Pennsylvania appellate cases on the subject, but I expect that Pennsylvania courts will follow this rule, as several Pennsylvania trial courts in fact have.

But this is a grand jury subpoena, so presumably the theory is that the subpoenas are relevant to some criminal investigation. My sense is that one should be able to quash such a subpoena as well, if there is no legally sufficient basis for the investigation, or for the conclusion that the information would be relevant to the investigation. Yet that requires us to know what is being investigated. It can’t be an investigation of libel, since Pennsylvania doesn’t have a criminal libel statute. In principle, since some tweets from the relevant twitterers might be read as accusing Corbett of criminal misconduct, the twitterers’ identities might be relevant so they could be asked for further evidence of such misconduct. But I have no reason to think that Corbett is indeed being so investigated.

So this looks like an interesting case; I hope Twitter does move to quash the subpoena, so we can get some better sense of whether the subpoena indeed has a legal basis. And if you have any further information you can share about the underlying investigation, please let me know. Thanks Steve Piercy for the pointer.

Jed Lewison at Daily Kos:

Corbett’s office hasn’t yet responded to inquires from TechCrunch or Smith to explain why on earth he’d subpoena Twitter to unearth the identity of his anonymous critics. Corbett will face Democratic nominee Dan Onorato, the chief executive of Allegheny County.

More Kravets at Wired:

Pennsylvania prosecutors are dropping their grand jury subpoena to Twitter demanding the identity of two account holders who used the microblogging service to criticize Attorney General Tom Corbett, a spokesman said Friday.

Corbett, the Republican candidate for governor, was seeking to unmask the account holders ahead of Friday’s sentencing of Brett Cott, whom Corbett targeted in a political corruption investigation.

Corbett wanted to know if Cott was the one anonymously disparaging Corbett and the ongoing probe, Corbett spokesman Kevin Harley said in a telephone interview. Prosecutors believed that linking Cott to one of the Twitter accounts criticizing Corbett would show the defendant had a bad attitude that should earn him a higher sentence, Harley said.

Harley said they wanted to unmask the account holders “to show the court Cott was demonstrating a lack of contrition and remorse.”

On Friday, Cott was handed up to five years in prison for his role in the political corruption scandal known as Bonusgate. Dauphin County Judge Richard Lewis said he did not consider any online criticism in his sentencing decision.

The grand jury subpoena targeted Twitter accounts CasablancaPA and bfBarbie. Both received an e-mail from Twitter on Tuesday saying the company would respond to the subpoena (.pdf) in a week “unless we receive notice from you that a motion to quash the subpoena has been filed or that this matter has been otherwise resolved.”

The subpoena demanded “all subscriber information” regarding the two Twitter accounts, including “name, address, contact information, creation date, creation Internet Protocol address, and any and all login Internet Protocol addresses.”

The two had enlisted Public Citizen and the American Civil Liberties Union to fight the subpoena. They said it was an abuse of power by Corbett to use the power of a criminal grand jury to unmask his critics.

“It’s clear they were on a fishing expedition to see if these Twitter users were Cott,” Witold Walczak, legal director for the ACLU of Pennsylvania, said in a telephone interview. “That’s not only an abuse of the grand jury process but a real affront to political speech rights … The government just can’t go on fishing expeditions like that to unmask critics because it might be helpful on sentencing.”

UPDATE: Peter Suderman at Reason

Red Family, Blue Family, Yellow Family (Wait, That’s Just The Simpsons)

A new book by Naomi Cahn and June Carborne called Red Families v. Blue Families

The authors on Huffington Post:

It is big news that women who go to college, join the workforce, and delay having children don’t lose money when later on they do combine work and family. A recent study by researchers from the University of Maryland and UCLA looked at the economics of women who didn’t have children until they were over the age of 26, and found that their earnings were comparable to women who had never had children. Earlier studies add that women with a college education are much less likely to opt out of the workforce when they have a baby than are women with less education.

This is great news, unless of course you worry that all these older, ambitious working mothers are shortchanging their children, but this turns out not to be true either. As we show in our book, Red Families v. Blue Families, the college educated, who postpone childrearing until the parents achieve a measure of financial self-sufficiency and emotional maturity, have become more likely to marry and less likely to divorce than the rest of the population, with two-parent families that remain intact, replicating the statistics that existed before no-fault divorce, the pill and legalized abortion.

Perhaps more surprisingly, these mothers spend no less time on childcare than similar mothers of earlier generations — it’s housecare, not childcare that’s changed. Indeed, Princeton University sociologist Sara McLanahan observes that “Children who were born to mothers from the most advantaged backgrounds are making substantial gains in resources. Relative to their counterparts 40 years ago, their mothers are more mature and more likely to be working at well-paying jobs. These children were born into stable unions and are spending more time with their fathers.” By contrast, the rest of the country has seen skyrocketing rates of non-marital births, divorce, and single-parent families, magnifying the effects of income inequality on children. And these poorer mothers are the ones more likely to cycle in and out of the workforce, limiting their earnings potential while feeling pressed to adequately care for their children.

How do dual career families manage the juggling act so much better than more traditional families? The well-kept secret is that investments in human capital, in college degrees, specialized training and experience, and workforce stability pay off for employers as well as employees. Employment studies show that the greater a woman’s education and experience the more likely she is to work in a flexible labor environment and to live in a state that mandates greater parental leave and other family benefits. Younger, less educated, and less skilled women find that they bring less to the bargaining table in negotiating with their bosses. When they cannot get sufficient maternity leave to manage the second child, they quit. When their children require more after school time, they may find it easier to switch employers than to switch schedules. They are more likely to return to school after their children complete elementary school than before they are born. As a result, they find work-family balance harder to manage than their better off peers — and their children fall farther behind in the share of society’s resources they enjoy.

Jonathan Rauch in National Journal:

Can it be? One of the oddest paradoxes of modern cultural politics may at last be resolved.

The paradox is this: Cultural conservatives revel in condemning the loose moral values and louche lifestyles of “San Francisco liberals.” But if you want to find two-parent families with stable marriages and coddled kids, your best bet is to bypass Sarah Palin country and go to Nancy Pelosi territory: the liberal, bicoastal, predominantly Democratic places that cultural conservatives love to hate.

The country’s lowest divorce rate belongs to none other than Massachusetts, the original home of same-sex marriage. Palinites might wish that Massachusetts’s enviable marital stability were an anomaly, but it is not. The pattern is robust. States that voted for the Democratic presidential candidate in both 2004 and 2008 boast lower average rates of divorce and teenage childbirth than do states that voted for the Republican in both elections. (That is using family data for 2006 and 2007, the latest available.)

Six of the seven states with the lowest divorce rates in 2007, and all seven with the lowest teen birthrates in 2006, voted blue in both elections. Six of the seven states with the highest divorce rates in 2007, and five of the seven with the highest teen birthrates, voted red. It’s as if family strictures undermine family structures.

Naomi Cahn and June Carbone — family law professors at George Washington University and the University of Missouri (Kansas City), respectively — suggest that the apparent paradox is no paradox at all. Rather, it is the natural consequence of a cultural divide that has opened wide over the past few decades and shows no sign of closing. To define the divide in a sentence: In red America, families form adults; in blue America, adults form families.

Cahn and Carbone’s important new book, Red Families v. Blue Families: Legal Polarization and the Creation of Culture, from Oxford University Press, is too rich with nuance to be encompassed in a short space. But here is the gist.

For generations, American family life was premised on two facts. First, sex makes babies. Second, low-skilled men, if they apply themselves, can expect to get a job, make a living, and support a family.

Fact 1 gave rise to a strong linkage between sexual activity, marriage, and procreation. It was (and still is) difficult for teenagers and young adults to abstain from sex, so one important norm was not to have sex before marriage. If you did have premarital sex and conceived a child, you had to marry.

Under those rules, families formed early, whether by choice or at the point of a shotgun. That was all right, however, because (Fact 2) the man could get a job and support the family, so the woman could probably stay home and raise the kids. Neither member of the couple had to have an extended education in order to succeed as spouse or parent.

[…]

But then along come two game-changers: the global information economy and the birth-control revolution. The postindustrial economy puts a premium on skill and cognitive ability. A high school education or less no longer offers very good prospects. Blue-collar wages fall, so a factory job no longer cuts it — if, that is, you can even find a factory job.

Meanwhile, birth control separates decisions about sex from decisions about parenthood, and the advent of effective female contraception lets men shift the moral responsibility for pregnancy to women, eroding the shotgun marriage. Divorce becomes easy to obtain and sheds its stigma. Women stream into the workforce and become more economically independent — a good thing, but with the side effect of contributing to a much higher divorce rate.

In this very different world, early family formation is often a calamity. It short-circuits skill acquisition by knocking one or both parents out of school. It carries a high penalty for immature marital judgment in the form of likely divorce. It leaves many young mothers, now bearing both the children and the cultural responsibility for pregnancy, without the option of ever marrying at all.

New norms arise for this environment, norms geared to prevent premature family formation. The new paradigm prizes responsible childbearing and child-rearing far above the traditional linkage of sex, marriage, and procreation. Instead of emphasizing abstinence until marriage, it enjoins: Don’t form a family until after you have finished your education and are equipped for responsibility. In other words, adults form families. Family life marks the end of the transition to adulthood, not the beginning.

Red America still prefers the traditional model. In 2008, when news emerged that the 17-year-old daughter of the Republican vice presidential nominee was pregnant, traditionalists were reassured rather than outraged, because Bristol Palin followed the time-honored rules by announcing she would marry the father. They were kids, to be sure, but they would form a family and grow up together, as so many before them had done. Blue America, by contrast, was censorious. Bristol had committed the unforgivable sin of starting a family too young. If red and blue America seemed to be talking past one another about family values, it’s because they were.

When you understand all of that, you also understand why you can do a good job of predicting how a state will vote in national elections by looking at its population’s average age at first marriage and childbirth. In 2007, for example, the states with the lowest median age at marriage in 2007 were all red (Arkansas, Idaho, Kansas, Oklahoma, and Utah). The states with the highest first-marriage age were all blue (Connecticut, Massachusetts, New Jersey, New York, and Rhode Island). The same pattern holds for age at first childbirth. Massachusetts is highest (about 28 years old), Mississippi lowest (about 23 years old).

A further twist makes the story more interesting, and more sobering. Cahn and Carbone find an asymmetry. Blue norms are well adapted to the Information Age. They encourage late family formation and advanced education. They produce prosperous parents with graduate degrees, low divorce rates, and one or two over-protected children.

Eugene Volokh on Rauch

Andrew Sullivan on Rauch, giving us a link to Lexington at The Economist:

I have nothing but respect for Rauch, both as a journalist and as an exemplar of true family values. His recent Atlantic piece on caring for his dying father was incredibly moving. Full disclosure: he’s also a friend.

But I wonder about his headline. First, consider the limitations of the data. A state is a very large unit, and only slightly more than half the people in it have to vote Republican for it to count as “red”. The most socially conservative states are in the South, where the group with the largest problem with family breakdown—African Americans—votes solidly Democratic. So I’d want to unpack the numbers a bit more.

It may be that preaching about family values forces people into premature or shotgun weddings which then fall apart. But it seems equally plausible that this story could be, in large measure, about class. Americans in poor red states are surrounded by family breakdown, so they fear it more, and make it into a political issue. The college-educated classes, who trend blue, have low rates of divorce and single parenthood. They are also better equipped, financially at least, to cope with the consequences of family breakdown should it occur. So they don’t worry about it as much, and are repelled by politicians who wax sanctimonious about it.

I really don’t know the answer, so I’ll have to read the book.

Doug J. on Rauch

David Frum at FrumForum on Rauch

E.D. Kain at The League:

Having children young or before you’ve both finished your degree and found fantastic careers and so forth is much more difficult financially. My wife and I really did have a lot of growing up to do, and the lifestyle change was difficult (though the sleep, or lack thereof, was certainly the hardest change).

Then again, I think it goes quite a ways beyond that. It has a lot to do with your family’s economic situation and level of educational achievement also. If you come from a solidly middle or upper-middle class family and you get married young you also stand a much better chance of getting a helping hand from grandparents and probably have a better chance in the job market due to education and connections and so forth. Certainly it is harder having children young and not having two incomes or not having finished all your education, but for us and for many of the younger couples I know, it is not an insurmountable challenge – if those families come from a stable economic background.

I am lucky to have highly educated parents who are generous and willing to help both with the kids and, should the need arise, financially. Perhaps I would need less help if I had waited seven or eight years to have children, but I can’t say that for sure, nor can I say the quality of my life would be any better. I might have just spent a lot more time going out on the town and playing music with friends and not really getting serious about anything. That’s all fine and good, but it pales in comparison to the joy I experience – the real, fierce, raw joy of having a daughter.

I think in the end you can look at issues like this and you can say – sure, traditional social customs don’t necessarily work in modern times, that they have precisely the opposite of the intended effect. Birth control really can improve the lives of young people, especially in the global economy we live in. Abstinence really is something of a pipe dream for most people. Divorce happens regardless of faith. But you have to also look at the economic and educational starting point of these people and ask yourself – even with birth control, even without marrying young or having kids young, how do people from poorly-educated, lower-class families ever break out of these cycles?

Andrew Koppelman at Balkinization:

The red-state, conservative ethic has always been suspicious of sex education. Evangelical Christians, who are the most militant proponents of the red-state ethic, are three times as likely as non-evangelicals to believe that sex education should not be taught in schools. (108; all page references are to Cahn and Carbone’s book.) Government support for contraception, especially contraception provided to teenage girls without their parents’ knowledge or consent is anathema. Such girls should not be having sex at all. Contraceptive information is likely to encourage them to flout moral norms with impunity. Unwanted pregnancy is unfortunate but valuable as a deterrent to premarital sex.

It was this ethic that produced the move to abstinence-only sex education, which is now the predominant approach in a third of American schools. (110) But there is no evidence that such education makes abstinence until marriage more likely (96% of Americans have sex before they marry, see 175), or produces a decline in teen or nonmarital births, and some evidence that it produces an increase in both, because it is more likely that a girl will not know how to contracept at the time of her first sexual experience. (3, 111) The effect is particularly pronounced with respect to black and Latina girls, who are disproportionately exposed to abstinence-only education. Two-thirds of white women, but fewer than half of black women, have received instruction about contraception before their first sexual encounter. (111)

It is no accident, then, that the United States has the highest rate of unplanned teen pregnancies in the industrialized world. (8) Three in ten teenaged girls become pregnant before they turn 20, and four-fifths of these pregnancies are unplanned. (91) In 2006, half of all pregnancies were unplanned, and these were concentrated below the poverty line. (90) The rate of unintended pregnancy is 69% for African-American women, 54% for Latinas, and only 40% for white women. (173)

Here is where abortion comes in. Among African-Americans, 43% of conceptions end in abortion, compared with 25% of Latinas and 18% of whites. It should be no surprise that the rate of abortion correlates heavily with the rate of unplanned pregnancy. African-American teen births dropped in the 1990s, but this was true in large part because abortion rates, which fell for white teens, remained higher for minority teens (172).

If you want to lower the abortion rate, then, the most obvious way to do it is to provide better information about contraception to the women who now are experiencing high rates of unintended pregnancy, in schools and also by providing comprehensive sex education to women over 18 (173).

The Republican leadership, however, has opposed any such funding. Most recently, they succeeded in pressuring Obama to strip out expanded funding for family-planning services from the stimulus bill. House Minority Leader John Boehner emphasized that any such funding would benefit Planned Parenthood, which delivers abortion services. He did not mention that such funding would lower the rate of abortions.

Republicans worry that sex education will lead to more premarital sex. There’s not much evidence that this is true of any particular sex ed program. The major effect of such programs is to prevent sex that was going to happen anyway from leading to pregnancy and disease. (It is true that the birth control pill helped bring about the sexual revolution of the 1960s, but it’s too late to reverse that.) But even if keeping girls ignorant would reduce the rate of premarital sex to some extent, how many abortions would be too high a price to pay for that?

The argument I’ve just been making is, of course, a classic blue-state argument. I’m not really the one who can make it effectively to pro-lifers, since I’m a strong supporter of abortion rights: I still endorse the much-reviled argument that such rights are required by the Thirteenth Amendment.

But somebody on the religious right ought to be reflecting on the now-obvious fact that the policies that they have been supporting are directly responsible for millions of abortions. If leadership is now going to be exercised in order to reduce the abortion rate, it will have to come from them. Opposing contraceptive education is politically popular in the red states. But how can a politician who sincerely believes that abortion is the killing of a person, and who is aware of the data I’ve just described, ethically take advantage of this opportunity?

Maggie Gallagher at Townhall:

The more you look at this provocative thesis, the more improbable it becomes.

The elephant in the room is the one issue Cahn and Carbone want to avoid because they wish to tone down the culture wars around the family: abortion.

The five states with the highest abortion rates, they note, are all blue family states: New York, Delaware, Washington, New Jersey and Rhode Island. By contrast, the states with the lowest abortion rates are mostly red or at least purple: Utah, Idaho, Colorado, South Dakota and Kentucky.

Could attitudes toward abortion be the real source of the red family/blue family divide?

Fueling this suspicion is the data that Cahn and Carbone provide on the out-of-wedlock birthrates. For here, the neat red/blue lines break down, especially once race is taken into account. In 2004, the five states with the highest white out-of-wedlock birthrates were a politically mixed lot: Nevada, Maine, West Virginia, Indiana and Vermont. States with the lowest rates of unwed childbearing were also mixed by party dominance: Utah, New Jersey, Connecticut, Colorado, Idaho and the District of Columbia. The authors note this fact but never integrate it into their theory.

The data that do not fit are usually the most important data.

The blue state/red state family divide appears to be largely driven by different values regarding abortion. Red states have more opposition to abortion politically (which makes them red), which would tend to result in more early childbearing, earlier ages at marriage and a more mixed record with regard to out-of-wedlock births. (More traditional commitment to marriage would drive down the out-of-wedlock birthrate, but greater moral objection to aborting unexpected pregnancies would drive up a state’s out-of-wedlock birthrate.)

The marriage gap has a great deal to do with social class. People with graduate degrees may be more sexually liberal in theory, but end up surprisingly conservative in actual practice. They tend to discount the importance of public moral norms around sex and marriage because they see their families flourishing under postmodern conditions, and because they and their children have the most access to “private” social, human and moral capital.

Nonetheless, in spite of their theoretical imperfections, if Cahn and Carbone can convince progressives that reducing divorce and early unwed childbearing are not traditional family values at all but postmodern blue ones to be embraced as the happy fruit of liberal social values, they will have done a service to our country.

Ross Douthat in NYT:

To Cahn and Carbone’s credit, their book is nuanced enough to complicate this liberal-friendly thesis. They acknowledge, for instance, that there are actually multiple “red family” models, from the Mormon West to the Sunbelt suburbs to the rural South.

More important, Cahn and Carbone also acknowledge one of the more polarizing aspects of the “blue family” model. Conservative states may have more teen births and more divorces, but liberal states have many more abortions.

Liberals sometimes argue that their preferred approach to family life reduces the need for abortion. In reality, it may depend on abortion to succeed. The teen pregnancy rate in blue Connecticut, for instance, is roughly identical to the teen pregnancy rate in red Montana. But in Connecticut, those pregnancies are half as likely to be carried to term. Over all, the abortion rate is twice as high in New York as in Texas and three times as high in Massachusetts as in Utah.

So it isn’t just contraception that delays childbearing in liberal states, and it isn’t just a foolish devotion to abstinence education that leads to teen births and hasty marriages in conservative America. It’s also a matter of how plausible an option abortion seems, both morally and practically, depending on who and where you are.

Whether it’s attainable for most Americans or not, the “blue family” model clearly works: it leads to marital success and material prosperity, and it’s well suited to our mobile, globalized society.

By comparison, the “red family” model can look dysfunctional — an uneasy mix of rigor and permissiveness, whose ideals don’t always match up with the facts of contemporary life.

But it reflects something else as well: an attempt, however compromised, to navigate post-sexual revolution America without relying on abortion.

Via Douthat, Eve Tushnet here and here. Tushnet:

The idea is that families in “blue states” are relatively adept at transmitting some aspects of a marriage culture to their children. Massachusetts, e.g., is home to families where the children mate for life. Meanwhile “red states” produce children (they produce more children, usually, by the way) who marry in haste and repent in somewhat-delayed-haste, lots of divorces and out-of-wedlock births and similar signs of family-values hypocrisy. When I say “this isn’t new,” I mean, “I got 10 cents off my Caribou coffee by knowing that Mississippi has an extraordinarily high rate of out-of-wedlock pregnancies more than a year ago.”

These are facts, and there are a lot of ways of responding to these facts. You can explore ways in which the contemporary economy and culture, by (for example) prioritizing postsecondary education and stigmatizing living with one’s parents, has made it extraordinarily difficult to sustain a culture of more-or-less postponing sex until marriage. You could criticize the notion of marriage as the capper on life’s to-do list, to be sought only once all the other boxes are checked and you’re “stable,” rather than a foundation for a later stable life. You could, in other words, ask why a consumerist culture is so hostile to a communal and marriage-based way of life.

You could maybe talk about Protestantism! Catholic states tend to have very different problems from Protestant ones: They tend to be aging states–whether we’re talking about Massachusetts or Italy–where divorce is rare but birthrates are low. What can the competing Christian cultures teach one another?

You could look for institutions and traditions within so-called “red state” cultures which promote lifelong marriage and serve to more-or-less-okay manage the problem of intercourse. You could find heroes and show how “red state” life works, when it works, and which conditions need to be in place for it to work.

These are all things you could do.

The other really fun thing you could do, though, is blame “red state” families for being Not Our Kind, Dear. It is just so sad that their pathetic religious delusions make them slutty hypocrites. (Yum, by the way; I think hypocrisy makes your breasts bigger.) You could argue that they’re really promoting abortion, ’cause it’s their fault they haven’t adapted to the contracepting, college-educated ways of the elite. It’s not about poverty, or the fatalism it breeds, or the terrifying knowledge of how close you really are to falling off the ladder. It’s about Baptists suck.

You could wage class war, in other words, on the side of the privileged. You could focus on shaming people who are really different from you, and not on figuring out how marriage and family life can be strengthened across a variety of religious and moral beliefs and a variety of class and cultural backgrounds.

Of course, if the (for example) Catholic view of marriage is simply doomed and pathetic, then I guess it’s just ripping off the Band-Aid quickly to say so. But I really think if you spend any time with actual humans actually trying to make decisions about their sexual lives, their unborn children, their religion, and their relationships, you will not sound the way a lot of the “red vs. blue families” commentators sound.

More Douthat

Noli Irritare Leones

UPDATE: Ross Douthat and Naomi Cahn at Bloggingheads

Who Knew “Pull A Larry Summers” Was A Phrase?

Kashmir Hill at Above The Law:

Here is the full email from CRIMSON DNA:

… I just hate leaving things where I feel I misstated my position.

I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent. I could also obviously be convinced that by controlling for the right variables, we would see that they are, in fact, as intelligent as white people under the same circumstances. The fact is, some things are genetic. African Americans tend to have darker skin. Irish people are more likely to have red hair. (Now on to the more controversial:) Women tend to perform less well in math due at least in part to prenatal levels of testosterone, which also account for variations in mathematics performance within genders. This suggests to me that some part of intelligence is genetic, just like identical twins raised apart tend to have very similar IQs and just like I think my babies will be geniuses and beautiful individuals whether I raise them or give them to an orphanage in Nigeria. I don’t think it is that controversial of an opinion to say I think it is at least possible that African Americans are less intelligent on a genetic level, and I didn’t mean to shy away from that opinion at dinner.

I also don’t think that there are no cultural differences or that cultural differences are not likely the most important sources of disparate test scores (statistically, the measurable ones like income do account for some raw differences). I would just like some scientific data to disprove the genetic position, and it is often hard given difficult to quantify cultural aspects. One example (courtesy of Randall Kennedy) is that some people, based on crime statistics, might think African Americans are genetically more likely to be violent, since income and other statistics cannot close the racial gap. In the slavery era, however, the stereotype was of a docile, childlike, African American, and they were, in fact, responsible for very little violence (which was why the handful of rebellions seriously shook white people up). Obviously group wide rates of violence could not fluctuate so dramatically in ten generations if the cause was genetic, and so although there are no quantifiable data currently available to “explain” away the racial discrepancy in violent crimes, it must be some nongenetic cultural shift. Of course, there are pro-genetic counterarguments, but if we assume we can control for all variables in the given time periods, the form of the argument is compelling.

In conclusion, I think it is bad science to disagree with a conclusion in your heart, and then try (unsuccessfully, so far at least) to find data that will confirm what you want to be true. Everyone wants someone to take 100 white infants and 100 African American ones and raise them in Disney utopia and prove once and for all that we are all equal on every dimension, or at least the really important ones like intelligence. I am merely not 100% convinced that this is the case.

Please don’t pull a Larry Summers on me,
CRIMSON DNA

We’re a legal blog, not a science blog. But personally, when it comes to intelligence, I’m in the nurture rather than nature camp.

One tipster who passed it along said, “It’s unfortunate that this person appears to be on paper a highly educated individual, yet her viewpoints prove otherwise, and is likely to be put in positions of influence.”

(Is it so surprising? As the Broadway musical Avenue Q hilariously noted, everyone’s a little bit racist.)

Another tipster said there would be repercussions:

The firestorm that has resulted has been EPIC. [A member or members of] Harvard’s BLSA sent the email, along with CRIMSON DNA’s name and information, to the BLSAs at other Top 14 schools. The BLSAs are meeting to discuss what should be done about this and judging from the craziness on the listservs and at meetings, this is going to get ugly. They want to go after her clerkship offer, so this one might make the news.

UPDATE: The leaders of Harvard BLSA deny that BLSA is trying to have DNA’s clerkship offer rescinded, and they also emphasize that the email did not go out over an “official” BLSA list-serv. See here.

Anna N. at Jezebel:

Above the Law wouldn’t reveal the name of the Harvard Law School student who made waves with her racist email. But people talk, and they name names. Turns out, Stephanie Grace has a history of interest in race.

The email in question contained such comments as “I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent.” But when it went viral, Above the Law’s Kashmir Hill found the inclusion of the sender’s name “troubling.” Apparently not troubled was blogger Jonathan Pitts-Wiley, who posted the sender’s name: Stephanie Grace. Why he thinks she’s “kind of a hero” is a question only he can answer, but a number of Twitter users also name Grace as the sender. User berrygraham, who seems to be a law student in the DC area, writes:

Crzy_Sxy_Cool, who tweeted before the Above the Law or Pitts-Wiley posts went up, added a helpful hashtag:

Harvard sources we spoke to also identify Grace as the emailer. While her name was relatively easy to find, Grace’s online footprint is pretty small. She’s an editor at the Harvard Law Review, graduated from Princeton in 2007, but doesn’t appear to have any publications online (at least in obviously searchable form).

Eugene Volokh:

Here’s my thinking on the e-mail itself; I’ll have a few more posts shortly about some of the reaction to the e-mail.

1. Whether there are genetic differences among racial and ethnic groups in intelligence is a question of scientific fact. Either there are, or there aren’t (or, more precisely, either there are such differences under some plausible definitions of the relevant groups and of intelligence, or there aren’t). The question is not the moral question about what we should do about those differences, if they exist. It’s not a question about what we would like the facts to be. The facts are what they are, whether we like them or not.

Given this, it seems to me that the proper approach to this question is precisely the same as the proper approach to other questions of scientific fact. One absolutely should not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent. Likewise, to give examples involving three groups I myself belong to, one absolutely should not rule out the possibility that Jews are (say), on average, genetically predisposed to be more acquisitive, or more loyal to their narrow ethnic group than to broader groups, or that whites are genetically predisposed to be more hostile to other racial groups, or that being nonreligious is genetically linked, and that people who have those genes are genetically predisposed to be more likely to commit crime or cheat on their spouses or what have you. One should also obviously be willing to be convinced by evidence that shows that, by controlling for the right variables, we would see that those groups are, in fact, identical to other groups under the same circumstances.

One should not rule out possibilities in the absence of conclusive evidence, for the simple reason that one then has no factual basis to rule out those possibilities. And since on many things the evidence will rarely be conclusive, one shouldn’t rule out those possibilities categorically at all. And one should also be open to the evidence that exists, and to being convinced by it in one or the other direction (to the degree of conviction that is warranted by the evidence).

Now some claims may be so contrary to our current understanding of the world that we might say something like this: We shouldn’t rule out the possibility in principle, but in practice the probability is so vanishingly small that we should exclude it from our analysis. That, for instance, might be one’s view about claims that werewolves exist. First, it’s just hard to imagine, given current science, what possible mechanism there might be that would turn humans into wolves every full moon. Second, one would think that if werewolves existed, we’d have good evidence of them, since proving their existence would be pretty easy.

But we still know very little about which genes produce intelligence, how exactly those genes operate, and even how intelligence can be defined. We obviously have vastly more left to learn about this. And there is certainly reason to believe that intelligence is heritable in some measure among individuals (though there is hot debate about the degree to which this is so). Such heritability, coupled with the possibility of differing selection pressures in different environments, provides a potential mechanism through which there conceivably could be intelligence differences among racial or ethnic groups.

So at this point it seems to me that the only scientifically sensible conclusion about this question, which I stress again is a question of what the facts really are, is that we can’t be sure that there are no such differences: Again, we cannot rule out either the possibility that there are racial differences in intelligence, or that there aren’t.

Or at least we cannot rule them out as a scientific judgment. (Perhaps there’s some expert somewhere out there who is so knowledgeable and brilliant that he feels he can accurately predict all that we will ever know about this field, and therefore can rule out one or the other possibility; I doubt it, but in any case I’m pretty sure that no-one is this discussion is that expert.) Obviously, each of us has the perfect right to rule any factual possibility out as a matter of faith, moral, religious, or whatever else. We can say “I don’t care what the evidence might say, I rule out this possibility because of my moral beliefs.” Or we can say “My moral beliefs are actually capable of indicating to me not just what I should do, but what the scientific facts about the world actually are, and therefore I am completely confident about what those facts are, based on my confidently held moral beliefs.”

But surely there ought to be no obligation on other people to adopt this sort of faith-based view on scientific questions. That’s why it seems to me that the author’s statement that “I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent” — or a similar statement, as I suggested, about Jews, or whites, or the irreligious — is perfectly proper, and in fact is the way that people should approach scientific questions of all sort.

2. Of course, I take it that some people were inferring from the e-mail that the author doesn’t actually mean just that she doesn’t rule out this possibility, but rather that she actually thinks the possibility is likely true. If so, then to critique the e-mail one would have to further discuss whether in fact the possibility is likely true under the current, highly limited state of scientific knowledge.

But there is no need to do that here. This e-mail was a follow-up to an earlier conversation, which apparently was not recorded. It was intended to be a private e-mail to other students who were parts of that conversation. One can’t tell whether the e-mail was (a) actually a means of implicitly asserting that there probably are intelligence differences, or (b) a rebuttal to an allegation that the author wasn’t scientifically minded enough in the discussion over dinner and was wrongly foreclosing scientific possibilities, or (c) part of a discussion about the nature of scientific evidence, or anything else. Sometimes, one might legitimately draw inferences about a person’s views based on a statement that was meant to be self-contained, to the point of justifying public criticism of the inferred views and not just the literally stated ones. But one can’t infer from this snippet of the broader conversation that the author means anything other than what she says: that she does not rule out a certain possibility, a possibility that I think cannot scientifically be ruled out.

I considered whether some of the language of the e-mail, such as (emphasis added) “In conclusion, I think it is bad science to disagree with a conclusion in your heart, and then try (unsuccessfully, so far at least) to find data that will confirm what you want to be true” suggests that the student believes that there is no existing data strongly suggesting the absence of genetic differences. If that were the right interpretation, then we’d have to discuss whether there is indeed such data.

But my reading of this, given both this sentence and the rest of the e-mail, is that the author is saying that there has been no success in (to go further down the paragraph) “prov[ing] once and for all that we are all equal” in intelligence, and in providing evidence that would make one “100% convinced that this is the case.” That’s a restatement of the first sentence in the e-mail, and again it strikes me as being quite scientifically accurate: There can’t be, at this stage of our knowledge (and possibly at any stage), proof “once and for all” that there are no such racial differences in intelligence.

3. On then to just a brief response to what I imagine would be some likely reactions.

a. Some might argue that belief in racial differences in intelligence could cause all sorts of immoral and harmful social and legal reactions. That might be so. But it’s different from the question that the student was writing about, which is what is actually true. Lots of other facts that are actually true can yield, and have yielded, harmful social and legal reactions. That doesn’t make those facts any less true — nor does it make it somehow improper for people to even be open to the possibility that certain facts might, in fact, be true.

b. Some might point to the history of unsound claims about racial differences in intelligence. And the history of errors in a field should indeed teach people to avoid those particular errors. But there’s no “three strikes and you’re out” for scientific theories: That some people in the past have posited various unsound theories with some general thesis doesn’t mean that all theories with a related thesis are guaranteed to be false. One still cannot rule out the possibility that some other theory in that genre will in fact be correct. Again, that’s just the way facts are: If something is true, people’s having thought a bunch of similar-sounding things that are nonetheless false doesn’t affect that truth.

c. Some might point out that intelligence and race are “socially constructed,” which is certainly true in the sense that different societies may draw racial lines in different places, and may define what constitutes intelligence — or how it should be tested — differently. But while we can’t just assume that there are some obviously correct definitions of either term, science often operates with terms that don’t have an inherently correct definition. What usually happens is that people come up with possible definitions, there’s debate about those definitions, there are studies done using different definitions, some results emerge that are common over a wide range of definitions and others that are highly sensitive to the definitions, and so on. Yet the right approach throughout this process is, again, precisely to “not rule out the possibility” that under some set of plausible definitions some result might be true, and to be willing to “be convinced” that under some set of plausible definitions some other result might be true.

It’s also possible that over time it will turn out that the definitional question is so difficult (or the required measurements are so difficult) that no real pattern emerges in the results. Say, for instance, that under some definitions of intelligence one sees one result and under others one sees the opposite result, and there seems to be no good basis to choose any particular definition over another. That might mean that we have to reformulate the question, and that the original question might be abandoned as not accurately answerable in its original form. We can’t rule out that possibility, either. But neither can we just assume that this is sure to happen.

d. Finally some might just argue that even the openness to the possibility that there may be racial differences in intelligence will offend people, and that the author should have recognized that the e-mail she sent to a couple of people might be forwarded to others who might be offended.

But this presupposes that it’s somehow wrong for people in a free country to discuss scientific questions because of the possibility that some people might learn about that and be offended. That can’t be right.

It especially can’t be right for students at a research university. But I think that it can’t be right for anyone anywhere. I realize that in the real world there might be bad consequences to speakers who offend others, however legitimate the speaker’s position — which, I stress again, is a position of openness to scientific evidence — might be. But we should work against that phenomenon, and its tendency to suppress honest discussion about scientific questions. We should not just give in to it as inevitable and, worse still, somehow right.

More Volokh, responding to his commenters

Ann Althouse:

Grace has apologized. Of course, she’s sorry now. “I am heartbroken and devastated by the harm that has ensued. I would give anything to take it back.” Note the passive voice: “the harm that ensued.” A  new way to say I’m sorry you were offended. She also says “I understand why my words expressing even a doubt [that African-Americans are genetically inferior] were and are offensive.” She’s learned something: This is a subject where you can’t play with ideas and speculate. People get very angry, and the speaker had better be ready to deal with it.

Did Dean Minow handle this the right way? One question is: Why does the dean even get involved with something one student said in private email? If the answer is because the Black Law Students Association came to her and demanded a response, then maybe the question should be why did the  Black Law Students Association go to the dean for help? Why didn’t the students all just argue and debate and express themselves to each other? These are Harvard students. Law students. Why not dig in and have it out and show your stuff? Why go to the nearest, biggest authority figure? Stephanie hurt me!

Here‘s the full text of Minow’s message. (By the way, Martha Minow’s father was FCC chairman Newton Minow, the man who called television “a vast wasteland.”)

This sad and unfortunate incident prompts both reflection and reassertion of important community principles and ideals. We seek to encourage freedom of expression, but freedom of speech should be accompanied by responsibility. This is a community dedicated to intellectual pursuit and social justice….Law school is a community with shared ideals. One of the ideals could be: When a student makes a point that contains what you think is an outrageous statement, unless she’s been actively insulting to you, you should engage her in debate and not not expose her to a public trashing. And don’t bring the dean into the fray as your champion. More from Minow:

As news of the email emerged yesterday, I met with leaders of our Black Law Students Association to discuss how to address the hurt that this has brought to this community. For BLSA, repercussions of the email have been compounded by false reports that BLSA made the email public and pressed the student’s future employer to rescind a job offer.I was going to say that “the hurt” to Grace and her reputation was much greater than the hurt to those students who only read the email. It’s not as if she shouted ugly words in their face. But now I see that the BLSA students had reason to worry that they were the ones who would look bad because they were believed to have overreacted and taken some nasty revenge. Minow may have been activated by the need to clear their reputation.

A troubling event and its reverberations can offer an opportunity to increase awareness, and to foster dialogue and understanding.Minow tries to be even-handed and control the fallout. She frames it as a teaching moment. But what has everyone learned?

Jill at Feministe:

Stephanie Grace sent out an email suggesting that black people are genetically intellectually inferior to white people. That is not a new point; it is not a point that should have to be rationally debated anymore, any more than we would rationally debate whether or not the Earth is flat. If a PhD candidate in a science program suggested that the sun revolved around the Earth, I can just about guarantee that there would be no calls for rational debate on the issue — whoever she said it to would roll their eyes and label her a complete jackass. If she sent out an email screed about it, it would probably be forwarded for laughs and for shared outrage at how a person this ridiculous could have gotten into this academic program and institution. It would not be defended under the pretense of free speech or academic freedom or “Isn’t this program all about rational scientific discourse, you guys?”

But I want to go back to this line: “Rational debate. Isn’t that what free speech and academic discourse — and, incidentally, the practice of law — are all about?” Well, yes and no — free speech is, unfortunately, not all about rational debate, not hardly. But that aside, free speech is not a shield from criticism and consequence. Yes, it is a shield against government persecution for your speech, but it does not mean that other people are not permitted to speak out against you; it doesn’t mean that other people should have to accept what you say without attaching words like “racist” or “sexist” or “bigoted” to what you say. The right to speak and to control how other people feel and respond to your speech is not a right that any of us hold. And it is not a sign of irrationality to point out that some arguments are, yes, racist, any more than it’s a sign of irrationality to point out that some arguments are ad hominem or illogical or red herrings or anecdotal.

I’m obviously troubled and disgusted by Stephanie Grace’s email and her arguments. But I’m even more disgusted by many of the responses — the ones that say the email wasn’t really racist, that it’s somehow irrational to use terms like “racist” or “sexist,” and that any idea, no matter how horrific, should not only be introduced but also should not be met with any level of offense. I wonder if the people making those arguments — and David Lat is only one of them — have for even a minute put themselves in the shoes of individuals whose family members were enslaved or gassed or rounded up for their perceived genetic inferiorities. I wonder if they’ve put themselves in the shoes of people who hear all the time that they don’t deserve to be where they are; that they’re lazier, stupider, just not as naturally intelligent or adept.

Some comments and beliefs do not merit a rational response. The fact that we are not only debating the merits of Stephanie Grace’s argument that black people may be genetically inferior, but also suggesting that the people who are offended are the ones with the problem, is more demonstrative of a profession-wide and society-wide race problem than any single email or racist tome.

Silvana Naguib at Tapped:

Young, privileged students interpret the principle of “academic freedom” to mean “I can say whatever I want and you can’t criticize me.” This atmosphere of polite disagreement, no matter how odious the position offered, was stifling to me as a law student. It was based on the notion that we law students were all in this together, and therefore should “play nice,” even when there were other students whose stated political aim was to deny rights to women and people of color, rights whose denial cut to the very core of my being. Meanwhile, no one seemed to consider the impact on academic freedom caused by allowing discourse that was overtly hostile to minority groups.

The hyper-intellectual, logic-focused law school environment denigrates feelings. Even when the issues were deeply personal, we were supposed to regard classroom and extracurricular discourse as purely academic. This mentality goes beyond the confines of the university. I am reminded of the ridicule heaped upon Obama when he suggested a Supreme Court justice should have empathy, rhetoric he’s backed away from the second time around.

But empathy has a place in the law, and it needs a more prominent home in law schools.The legal system is built to try to address unfairness and injustice, to make sure everyone gets their due process and fair share. If we didn’t care about the well-being of our fellow citizens, we wouldn’t need justice at all.

It matters how people feel. It matters whether racist arguments are tolerated, and whether other voices rise to their aid. When lawyers go on to serve as judges, senators, policy-makers, prosecutors, and presidents, an e-mail isn’t just an e-mail. The e-mail and the ambivalent response to the odious attitudes expressed in it exemplify the serious empathy deficit in our law schools.

When I look at the product of these law schools — a legal system where if you are poor, black, or both, you simply cannot get a fair shake — I think, is it any wonder? An academic structure that glorifies logic and consistency, and denigrates empathy, will never produce justice.

Thoreau:

I am not going to defend the content  in the Harvard law student’s email on race and intelligence.  I find the content quite disturbing.  I am, however, going to argue for a bit of benefit of the doubt on the person who sent the email, as opposed to the contents of the email.  The email starts off indicating that it is picking up where a longer conversation left off from earlier in the evening.  And while it starts off pretty bad, it contains statements like “I absolutely do not rule out the possibility…”  It’s not that long ago that I was a student who liked to argue and didn’t have much of a clue.  (As opposed to my current status:  Professor who likes to argue and doesn’t have much of a clue.)  When I see a statement like “I absolutely do not rule out the possibility…” from what is likely a smart, argumentative, but clueless student, I suspect that we’ve got some late night bull session philosophizing (of the non-philosophy major sort) going on.  Some pretty bad stuff gets said in those sessions, not because the people necessarily believe all of it, but because they’re too full of shit to realize that they should be more critical of their musings rather than throwing them out and arguing passionately while not getting why the argument is (rightly!) falling completely flat.

This hunch of mine, that we’re seeing late night bull session mode rather than statement of sincere conviction mode, is further strengthened by paragraph two, in which she actually makes a sort of decent case (by the standards of late night bull sessions) for the opposite of what she was musing on in the first paragraph.  And the third paragraph talks about a seriously hypothetical experiment.  More proof of late night bull session mode.

Now, “late night bull session” is not an excuse for spewing bullshit.  Although a lot actually gets  learned in those sessions, a lot also gets learned in the fallout.  Usually the fallout means that your roommate chews you out and his girlfriend won’t talk to you and an angry mob is waiting to confront you in the dorm lounge.  (Aka “spring of my sophomore  year.”  And no, my transgression had  nothing to do with race or gender.)  She deserves fallout, but it is unfortunate that the fallout happened in the national spotlight.  I guarantee you that all sorts of bull sessions, some with conversations even more repugnant than that email, are going on right now in Harvard dorms.  (Or the dorms at my school, for that matter.)  It was a dick move to forward the email, rather than confronting her in person and making the fallout more contained (but still intense).

So, what I’m trying to say is that the email doesn’t really reflect a sincere or strongly-held opinion on her part.  It reflects a lot of stupidity and some serious gaps in her understanding of the world (and I’m not just saying this because she got caught), and those things should not just be waved off as no big deal.  However, it is a mistake to take her email at face value.

Ann Althouse and Jim Pinkerton at Bloggingheads

UPDATE: Julian Sanchez and Conor Friedersdorf at Bloggingheads

You Already Know The Words To That Old Janis Joplin Song

David Boaz at Reason:

For many libertarians, “the road to serfdom” is not just the title of a great book but also the window through which they see the world. We’re losing our freedom, year after year, they think. They (we) quote Thomas Jefferson: “The natural progress of things is for liberty to yield and government to gain ground.” We read books with titles like Freedom in Chains, Lost Rights, The Rise of Federal Control over the Lives of Ordinary Americans, and yes, The Road to Serfdom.

The Cato Institute’s boilerplate description of itself used to include the line, “Since [the American] revolution, civil and economic liberties have been eroded.” Until Clarence Thomas, then chairman of the Equal Employment Opportunity Commission, gave a speech at Cato and pointed out to us that it didn’t seem quite that way to black people.

And he was right. American public policy has changed in many ways since the American Revolution, sometimes in a libertarian direction, sometimes not.

[…]

Has there ever been a golden age of liberty? No, and there never will be. There will always be people who want to live their lives in peace, and there will always be people who want to exploit them or impose their own ideas on others. If we look at the long term—from a past that includes despotism, feudalism, absolutism, fascism, and communism—we’re clearly better off. When we look at our own country’s history—contrasting 2010 with 1776 or 1910 or 1950 or whatever—the story is less clear. We suffer under a lot of regulations and restrictions that our ancestors didn’t face.

But in 1776 black Americans were held in chattel slavery, and married women had no legal existence except as agents of their husbands. In 1910 and even 1950, blacks still suffered under the legal bonds of Jim Crow—and we all faced confiscatory tax rates throughout the postwar period.

I am particularly struck by libertarians and conservatives who celebrate the freedom of early America, and deplore our decline from those halcyon days, without bothering to mention the existence of slavery. Take R. Emmett Tyrrell, Jr., longtime editor of the American Spectator. In Policy Review (Summer 1987, not online), he wrote:

Let us flee to a favored utopia. For me that would be the late 18th Century but with air conditioning….With both feet firmly planted on the soil of my American domain, and young American flag fluttering above, tobacco in the field, I would relish the freedom.

I take it Mr. Tyrrell dreams of being a slave-owner. Because as he certainly knows, most of the people in those tobacco fields were slaves.

Take a more recent example, from a libertarian. Jacob Hornberger of the Future of Freedom Foundation writes about the decline of freedom in America:

First of all, let’s talk about the economic system that existed in the United States from the inception of the nation to the latter part of the 19th century. The principles are simple to enumerate: No income taxation (except during the Civil War), Social Security, Medicare, Medicaid, welfare, economic regulations, licensure laws, drug laws, immigration controls, or coercive transfer programs, such as farm subsidies and education grants.

There was no federal department of labor, agriculture, commerce, education, energy, health and human services, or homeland security.

Then he writes:

Why did early Americans consider themselves free? The answer is rooted in the principles enunciated in the Declaration of Independence. As Thomas Jefferson observed in that document, people have been endowed by their Creator with certain fundamental and inherent rights. These include, but are certainly not limited to, the rights to life, liberty, and the pursuit of happiness.

But wait. Did “early Americans consider themselves free”? White Americans probably did. But what about black Americans, and especially the 90 percent of black Americans who were slaves? Slaves made up about 19 percent of the American population from 1790 to 1810, dropping to 14 percent by 1860. (In that period the number of slaves grew from 700,000 to about 4 million, but the rest of the population was growing even more rapidly.) Did Mr. Hornberger really forget that 4 million Americans were held in bondage when he waxed eloquent about how free America was until the late 19th century? I know he isn’t indifferent to the crime of slavery. But too many of us who extol the Founders and deplore the growth of the American state forget that that state held millions of people in chains. (I note that I’m not concerned here with self-proclaimed libertarians who join neo-Confederate organizations or claim that southerners established a new country and fought a devastating war for some reason other than the slavery on which their social and economic system rested; I just want to address libertarians who hate slavery but seem to overlook its magnitude in their historical analysis.)

Will Wilkinson:

What Boaz calls “thoughtless and ahistorical exhortations of our glorious libertarian past” is a central element of the fusionist conception of traditional American identity. But it’s just wrong. I call the syndrome of questionable conservative cultural assumptions and habits of thought that continue to pervade the libertarian movement the “fusionist hangover.” I say it’s time to sober up.

Eugene Volokh

Doug Mataconis at Below The Beltway:

Does that mean that the infringements of liberty and encroachment of the state that we see today is acceptable ? Of course not, but it does mean that we need to recognize that the idyllic American past never really existed and that the fight for liberty is a fight for the future, not the dead past.

Roy Edroso:

at Reason David Boaz suggests (albeit gently) that maybe America wasn’t more free, in the way libertarians like to think about it, back when it was full of slaves. The Perfesser reads Boaz’ piece, and is much more concerned with the tragic loss of American liberties under Jimmy Carter.

Also funny: the Hit & Run commenters to the story. I especially liked the guy who says the Donner Party was “perfectly libertarian” because “they were free to make a bad decision, made it, and suffered the consequences.” I couldn’t have put it better myself!

Mori Dinauer at Tapped:

Boaz points out the obvious omissions to this false nostalgia, women and slaves, and wisely asks of his fellow libertarians to have a little historical perspective: “Libertarians have not opposed those appeals for freedom, but too often we (or our forebears) paid too little attention to them. And one of the ways we do that is by saying ‘Americans used to be free, but now we’re not’ — which is a historical argument that doesn’t ring true to an awful lot of Jewish, black, female, and gay Americans.” It’s all well and good to have a conversation about whether taxation and the federal bureaucracy are infringing on freedom. But compared to the struggle to simply gain equal recognition as human beings — there’s simply no contest.

Jacob Hornberger at Reason:

Boaz raises another point that needs addressing: He attempts to diminish the significance of what our American forebears achieved.

It is true that the principles of liberty on which our ancestors founded the U.S. government were not applied to everyone, especially slaves; and there were, of course, other exceptions and infringements on freedom, such as tariffs and denying women the right to vote.

But should those exceptions and infringements prevent us from appreciating and honoring the fact that our ancestors brought into existence the freest, most prosperous, and most charitable society in history?

I don’t think so. I believe that it is impossible to overstate the significance of what our American ancestors accomplished in terms of a free society.

Let’s consider, say, the year 1880. Here was a society in which people were free to keep everything they earned, because there was no income tax. They were also free to decide what to do with their own money—spend it, save it, invest it, donate it, or whatever. People were generally free to engage in occupations and professions without a license or permit. There were few federal economic regulations and regulatory agencies. No Social Security, Medicare, Medicaid, welfare, bailouts, or so-called stimulus plans. No IRS. No Departments of Education, Energy, Agriculture, Commerce, and Labor. No EPA and OSHA. No Federal Reserve. No drug laws. Few systems of public schooling. No immigration controls. No federal minimum-wage laws or price controls. A monetary system based on gold and silver coins rather than paper money. No slavery. No CIA. No FBI. No torture or cruel or unusual punishments. No renditions. No overseas military empire. No military-industrial complex.

As a libertarian, as far as I’m concerned, that’s a society that is pretty darned golden.

Will Wilkinson responds:

Nope. Sorry.

How about the female half of the population? By 1880 coverture laws, which basically denied married women any meaningful property rights, were still in place in many states. (Coverture laws persisted in some states until the 1920s.) And there were  plenty of further paternalistic regulations on the sort of work women were allowed to undertake. Of course, women in 1880 had almost no meaningful rights to political participation, ensuring that they were unable to demand recognition and protection of their basic liberty rights through the political system.

Slavery was gone in 1880, but systematic state-enforced racial apartheid was going strong. The economic and political rights of blacks were severely curtailed under the various antebellum state Black Codes and then under the Jim Crow laws. What formal rights Southern blacks did have were often denied in fact by extralegal enforcement of racist norms by lynch mobs and other campaigns of terror.

By 1880, most of the the U.S.’s imperialist efforts to secure North American territory against the claims of competing European imperial powers were complete. But the government’s campaign of murder, theft, and segregation against native populations continued.

One could go on and on in this vein in gruesome detail. But this is enough to establish the point: 1880’s America was a society in which well more than half the population was systematically and often brutally denied basic liberty rights. If that’s golden, I’d hate to see bronze.

It’s just plain wrongheaded to cast the libertarian project as the project of restoring lost liberties. Most people never had the liberties backward-looking libertarians would like to restore. I know the rhetoric of restoration can be very seductive, especially in a country unusually full (for a wealthy liberal democracy) of patriotic traditionalists. But restoration is a conservative project and liberty is a fundamentally progressive cause.

Boaz responds at Cato:

I am a great admirer of the Founders, as I write on many occasions. When I talk about the progress we’ve made in expanding freedom for blacks, women, gays, and other once-excluded groups of people, I often say that we have “extended the promises of the Declaration of Independence — life, liberty, and the pursuit of happiness — to more and more people.” I love and respect those promises, I appreciate the extent to which the Founders made good on them immediately, and I am glad that they have indeed been extended.

I share Hornberger’s commitment to a world with no income tax, no alphabet soup agencies, no central banking, no drug laws, and so on. I’m just not sure that the world of 1880 — much less the world of 1850 — is actually more free, on balance, for Americans as a whole, than today’s world. But that’s a reasonable argument, and I am happy to engage Hornberger and others in it.

Of course, the world is full of unreasonable arguments, too. In case anyone’s been reading some of them in the Reason comments or elsewhere on the Web, let me make just a few comments: I did not “attack” or “malign” Jacob Hornberger; I criticized an article he wrote. In fact, I took pains to call him one of the “libertarians who hate slavery” in distinction to some self-styled libertarians who sound like neo-Confederates. I did not say that “we have to accept” the Civil War, anti-discrimination laws, the income tax, or anything else as the price of abolishing slavery; I just said that we shouldn’t overlook the crime of slavery when we write paeans to 19th-century freedom, and that on the whole we may very well be freer today than in antebellum America. I did not say that “it was necessary to reduce everyone’s freedom drastically before we can morally allow anyone to have more freedom than another.” Here’s a tip: If you’re shocked by what someone says my article said, please read the article.

OK, that’s all for this topic. I have a D.C. power-elite meeting to go to, and then a Georgetown cocktail party.

Arnold Kling:

I would rather live with the group-status configurations that we have today than with those that prevailed in 1880. For that matter, I would rather live with the plumbing and dentistry that we have today than that which prevailed in 1880. But it’s a swindle to suggest that if we had a libertarian polity we would be back in the days of Jim Crow or women’s subservience. Just as it is a swindle to suggest that if we had a libertarian polity we would be back to using outhouses and having our teeth pulled without anesthetic.

If what you really, really care about are group-status issues, and you really, really think that those battles should be fought politically rather than culturally, and if you are really, really scared of where you think some older Americans stand on those group-status issues, then you can end up where Will Wilkinson is–deeply frightened of the Tea Party movement in spite of its libertarian focus. In that case, your plan is to slip something into the ruling intellectuals’ drink to make them amenable to your free-market seductions.

Wilkinson responds to Kling:

What I really, really care about is liberty. If the culture and the law denies liberty to some groups, then I think we ought to fight culturally and politically to win equal freedom for the members of those groups. If people have been denied liberty on the basis of group membership, caring about liberty then entails caring about the “group status issues” standing behind historical oppression.

I am not scared of the fact that older Americans are more racist, sexist, and homophobic that younger Americans. I regard this as a hopeful sign that historic inequalities in status and freedom are on their way out. And I’m not frightened of the Tea Party movement (which is not especially old.) In fact, I hope it helps deliver divided government by helping Republicans win a bunch of seats. I just don’t think it’s very substantively libertarian. It is a populist movement centered on a certain conservative conception of traditional American identity. Libertarian rhetoric is definitely part of that, but rhetoric is rhetoric.

By contrasting the Tea Party with “ruling intellectuals,” Arnold seems to recognize that it is as a populist movement, and he seems to prefer it for that reason. But, contrary to what Arnold implies, a distaste for conservative identity politics and a disinclination to see much real libertarian potential in the Tea Party does not leave the libertarian with no alternative but to “slip something into the ruling intellectuals’ drink to make them amenable to your free-market seductions.” One thing a libertarian might do is to publicly set forth persuasive arguments that over time shifts the balance of both elite and popular opinion. Why Arnold thinks that straightforward persuasion is possible only through some kind of subterfuge or seduction eludes me.

It is true, though, that you’re more likely to be taken seriously by “ruling intellectuals,” and lots of other people besides, if you acknowledge that the rights and liberties of women and historically persecuted minorities really do count. And rightly so. But I have the sense that Arnold thinks that this is not rightly so, and that a libertarian would only acknowledge this sort of “group status issue” strategically, as a way of sucking up to elites so that they will be more likely to listen to your free-market ideas. Please tell me I’m wrong Arnold.

John Holbo:

Obviously Kling and Hornberger could not have done a better job of proving Boaz’ original point. It’s tempting to accuse them of just not caring about liberty for anyone except white men. How else could they miss this stuff? But I doubt that’s it. (Anyway, aren’t they Jewish? It’s hard for me to imagine men named Kling and Hornberger seriously believe they, personally, would be made more free by being transported back to the late 19th Century.) It seems to me the most probable explanation of this truly bizarre blind spot – it really is bizarre and there’s no other word for it – is a sort of strange entrapment in the conservative ‘restoration’ narrative, but perhaps induced by Hayekian rather than conservative rhetoric. If the 20th Century was the Road To Serfdom, it can hardly have been a long march to increased freedom. If progressives and liberals are the authoritarian enemy, it can hardly be that their victories have, on the whole, made us more free. Since the 20th Century was when the bad stuff really got going, how can it NOT be appropriate to be thoroughly nostalgic for the 1880’s as a Lost Golden Age?

I guess I’ll leave it at that. Libertarians really ought to know better than to try to argue against the utterly obvious points Boaz made in that post. That’s just basic intellectual hygiene, surely.

Orestes Brownson at FrumForm:

Fair enough; one can easily see that ending slavery certainly ought to have been a libertarian end.  However, it was accomplished with stunningly anti-libertarian means (not that I’m complaining; I’m not a libertarian), and by a political coalition — the Republican coalition — that held no other libertarian ends.

Look, the Republican party was anti-free trade, for “corporate welfare” to railroads, for a national bank, for expansive executive powers, and wanted to use the federal government’s powers to ban marriages not between one man and one woman during the polygamy controversy.  Once the Civil War was over, they pretty much got what they wanted.

So, some liberties and alleged liberties went by the wayside, to create a greater liberty.  ”A new birth of freedom,” even.  But what I don’t see among a lot of libertarians today is the same willingness to make tactical compromises to accomplish their greater ends.

Mark Kleiman:

The main occupation of the U.S. Army between the end of the Civil War and the beginning of the Spanish-American war was “Indian fighting,” or, as we call it today, “ethnic cleansing.” Of course Wilkinson blames it all on “the government,” as if much of the work hadn’t been done by free individuals exercising their right to keep and bear arms in defense of the private property they were engaged in stealing.

But even if we look only at heterosexual males of European descent, and even if we agree to treasure such rights as the right to grow up without schooling and to be free of employment discrimination against eight-year-olds, the right to consume adulterated food and drugs, and the right to starve to death if incapacitated from earning a living by misfortune, disease, or old age, in one respect the 1880s were much less free than, say, the 1950s. In 1880 any attempt to form a labor union was treated by the courts as a criminal conspiracy. It was also likely to be met with extra-legal violence by the Pinkertons (and sometimes the national guard). Today, however, the right of workers to organize is an internationally-recognized human right (except in El Salvador and Libertarianland).

In practice, the right to unionize has been under siege from union-busing consultants, aided by capital mobility and a complaisant NLRB. But even post-Reagan, American workers remain free, in principle, to try to bargain collectively with their employers. This is not, of course, a right that libertarians cherish; Brink Lindsey lists the collapse of private-sector unions as a gain for liberty. But the utter helplessness of a railway worker, textile operator, or coal miner of the 1880s (who enjoyed, thanks the the “fellow sevant” doctrine, the right to be injured at work without receiving compensation) in the face of the tyranny of the boss and the foreman is not a condition to which all of us aspire to return.

Daniel McCarthy at The American Conservative:

Which model provides a better starting point? Should a libertarian prefer a decentralized republic along broadly Jeffersonian lines, but without slavery and government discrimination (though this may mean tolerating private discrimination) or a large and centralized rights-enforcing government akin to the New Deal state but with an emphasis on personal liberties instead of redistribution? And of these two models, is one more inclined than the other to decay into its illiberal form? That is, would slavery or segregation re-emerge in a restored Jeffersonian republic more readily than redistribution and other evils would arise in a purified New Deal state?

It seems to me that the tutelary ambit of the modern progressive state logically inclines toward providing for the basic material necessities of its wards as well as for the protection of their rights, and to ensure provision of needs and protection of rights a great educational apparatus may be desirable. The freedom of the tutelary state is the freedom of a free-range dairy cow: in exchange for care and protection, you pay your taxes and may frolic in the fields as much as you please. It’s a timid sort of freedom, but it is freedom of a kind.

An alternative based on the older American tradition, by contrast, need not logically lead to a slave-state; indeed, most of the Founders recognized that slavery was inconsistent with the principles of their system. That system, even in its most benign form, would not be purely libertarian, of course: there too state schools would be desired to inculcate proper values into republican citizens. Private discrimination would be permissible, and if states or localities adopted unfair or unjust laws, one would have little recourse to federal remedies. But you could move to a different jurisdiction more in keeping with your ideas of liberty. It’s an uneven but robust freedom.

This is what libertarians who laud the old America have in mind. Why slander them as being ignorant of slavery, when liberaltarians do not want to be slandered as social democrats? If the socio-political order that libertarians like Hornberger desire really does naturally incline toward the sorts of injustices Boaz names, then make that case and argue against the model on those grounds. But I don’t think Boaz even believes that, let alone that he can present a convincing argument for it. On the other hand, those who believe that the modern state naturally tilts toward social democracy or worse have frequently and cogently made their case –not least in that “great book” Boaz mentions in his first paragraph, The Road to Serfdom.

Jason Kuznicki at The League:

We can only think to ask such a question if we radically discount the experiences of nearly all other people in society. And this violates one of the fundamental formulations of libertarian political thought, the law of equal freedom:

Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.

Language issues aside, under a standard like this, it’s impossible to justify, for example, the fact that marital rape was never a crime in the nineteenth century. Or that women surrendered all of their property, present and future, to their husbands at marriage. Or that women at marriage couldn’t have a legal place of residence separate from their husbands. Or that children were presumed in law to belong solely to the husband, and never to the wife. Or that (contra Bryan Caplan) contracts between husband and wife were typically invalid under law, so one couldn’t escape the shackles by contracting around them with a well-intentioned husband. Or that cohabitation without marriage — another attempt to escape the bind — was plain illegal. Or that divorce was exceptionally hard to obtain.

To put it bluntly, the white men of 1880 were for the most part brutes and tyrants. Even if they didn’t want to be, the law forced them. They either claimed, or had foisted upon them, all kinds of “freedoms” that intrinsically infringed on other people. And I’m not even talking about what they did to blacks in the South or Asians in the West, though I easily could.

I certainly wouldn’t want everyone today to be in the same position that white men had in 1880. Putting them there would require that we find some rather large population for them to personally oppress, to rape, to steal property from, and to hold in permanent thrall.

Neither slave nor master has any place at all in utopia.

Bryan Caplan:

I largely agree with David Boaz’s recent attack on libertarian nostaglia.  While many Americans were freer in the Gilded Age than they are today, plenty were not.  But precisely who belongs on the list of people who have more libertarian freedom in 2010 than they did in 1880?

Boaz mentions “Jews, blacks, women, and gay people.”  For blacks, his case is obvious and overwhelming: Slavery was finally over, but blacks still suffered from both Jim Crow and private racist brutality.  The case for gays is similarly strong: If you were openly gay in 1880, you probably would have been prosecuted under the sodomy laws – and lived in fear of private violence even if the law left you alone.  However, it’s hard to see why Jews belong on the “freer than they used to be” side of the ledger; 19th-century America not only had legal religious toleration, but as far as I’m aware, pogroms and other private anti-Semitic violence were virtually absent.

It’s when we get to women, though, that things get interesting.  Women are more than half the population.  If they’re freer today than they were in the Gilded Age, we can truly say that most people in America are freer today than they were before the rise of the welfare state.  On reflection, though, this is a very big if.

Without a doubt, women lived much harder lives in 1880 than they do today.  So did men.  In those days, almost everyone endured long hours of back-breaking toil.  But of course the standard libertarian take on this is that while freedom causes prosperity in the long-run, prosperity and freedom aren’t the same.

In what ways, then, were American women in 1880 less free than men?  Most non-libertarians will naturally answer that women couldn’t vote.  But from a libertarian point of view, voting is at most instrumentally valuable.  Will Wilkinson seems aware of this when he writes:

[W]omen in 1880 had almost no meaningful rights to political participation, ensuring that they were unable to demand recognition and protection of their basic liberty rights through the political system.
Yet the fact that women were unable to vote in defense of their “basic liberty rights” doesn’t show that American political system denied them these rights.  Did it?

Caplan responds to critics. More Caplan and more Caplan. And even more Caplan

Will Wilkinson:

Kerry Howley sensibly suggests that we approach the question of how much “libertarian freedom” women enjoyed in the late 19th century by looking to see what a libertarian woman of that era had to say about it.

Kerry suggests this passage from Voltairine de Cleyre’s Sex Slavery (1890):

He beheld every married woman what she is, a bonded slave, who takes her master’s name, her master’s bread, her master’s commands, and serves her master’s passion; who passes through the ordeal of pregnancy and the throes of travail at his dictation, not at her desire; who can control no property, not even her own body, without his consent, and from whose straining arms the children she bears may be torn at his pleasure, or willed away while they are yet unborn.

I would not characterize this as an illustration of one form “libertarian freedom” might take. But Bryan Caplan might persist in arguing that women were in some sense free to opt out of this sort tyrannical arrangement. If de Cleyre could opt out, other women could as well, right? I don’t think it’s that easy. Bryan is unjustifiably ignoring the developmental prerequisites for autonomous or robustly voluntary choice. One way to deny an individual the ability to choose really freely is to raise her in a way that constantly cultivates and reinforces a set of preferences and expectations that fit comfortably within a social and legal order of paternalistic control and systematic inequality of status and rights.

One time-honored criticism of paternalism is that it infantilizes adults and leaves them unprepared to make wise choices on their own behalf, thereby reinforcing paternalistic laws and norms by making them seem necessary. I wonder if Bryan thinks this is an ineffective criticism of paternalism? I take it that he would be unwilling to endorse slavery even if slaves could be conditioned from childhood to consent to their chains?

John Holbo on Caplan:

Having made one non-libertarian-related post, I can now say, with a good conscience, that Bryan Caplan has responded to his critics. It is a wonder to behold.

I will make two notes. (No doubt you yourself will come to have your own favorite moments.) First, a lot of the trouble here obviously rotates around the issue of systematic social oppression. Caplan barrels straight through like so: “there’s a fundamental human right to non-violently pressure and refuse to associate with others.” That hardly speaks to real concerns about violence. But beyond that Caplan doesn’t notice that, even if he’s right about this fundamental human right, he’s no longer even defending the proposition that women were more free in the 1880’s, never mind successfully defending it. He’s defending the proposition that there is a fundamental right, which can be exercised, systematically, to make women much less free, that was better protected in the 1880’s. So if women value this libertarian right more than freedom, they might rationally prefer that sort of society. But even so, they should hardly regard themselves as more free, for enjoying this right. Rather, they should regard themselves as (rationally) sacrificing liberty, a lesser value, for love of libertarianism, a higher value and separate jar of pickles altogether

DJW at Lawyers, Guns and Money

Matt Steinglass at DiA at The Economist

Tyler Cowen:

Bryan Caplan set off a debate which has spread to many corners of the blogosphere.  I have no interest in recapping and evaluating the whole thing but I’d like to make a simple but neglected point: negative liberty and positive liberty are not separable.

Here is one simple scenario.  Let’s say the government tells me I have to buy and place a five-foot ceramic grizzly bear statue on my front lawn.  How bad an act of coercion is that?  If I have an upper-middle class income, it’s an inconvenience and an aesthetic blight but no great tragedy.  If I have a Haitian per capita income, it is a very bad act of coercion and it will impinge on my life prospects severely.  I either give up some food or they send me to jail.

In other words, even theories of negative liberty — purely libertarian theories where only negative liberty seems to matter — require standards for degrees of coercion.  Those standards will very often depend on how much wealth the victims of the coercion have and they will depend on a more general concept of positive liberty.  Negative liberty standards can’t help but seep into a concern with consequences.

Fast forward to said debate.  When people are poor, apparently small interventions can be quite crushing and quite coercive.  To cite the “smaller” interventions of 1880 doesn’t much convince me.  The real impact of the depredations against women was very, very large, even from some “small interventions” (and I don’t think they were all small).

(Also, I would not in this case take the *legal* oppressions to be a stand-alone or exogenous variable, separable from more general societal attitudes.  There were various male desires to oppress women, which took a mix of legal and non-legal forms.  Asking how bad the “government-only” restrictions were is an odd division of the problem, since the governmental and non-governmental restrictions were an integrated package which worked together in non-linear fashion.)

Every negative liberty theorist is a positive liberty theorist in disguise and this comes out once they start citing degress of outrage, degrees of harm, degrees of coercion, and the like.

UPDATE: More Holbo