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.

Liberaltarians Are So 2006

Will Wilkinson:

Of Matt Yglesias’s sensible approach to regulation, Conor Friederdorf writes:

Being someone who understands progressives, Mr. Yglesias makes the case for deregulation in terms likely to appeal to his colleagues on the left. What would be nice is if more people on the right could be similarly persuasive. Of course, capitalizing on common ground or winning converts on individual issues requires an accurate understanding of what motivates people with different ideologies, so it isn’t surprising that a Yglesias fan invoked Cato in that Tweet. It’s a place where several staffers are daily deepening our understanding of where liberals and libertarians can work together.

I’m glad Conor recognizes the value of the work some of us at Cato have been doing to make productive liberal-libertarian dialogue and collaboration possible. Alas, all good things must come to an end.

Via the Kauffman Foundation

Brink Lindsey Joins Kauffman Foundation as Senior Scholar

Economic researcher and author to contribute to Kauffman’s growing body of work on firm formation and economic growth

KANSAS CITY, Mo., Aug. 23, 2010 – The Ewing Marion Kauffman Foundation today announced that Brink Lindsey has joined the Foundation as a senior scholar in research and policy. Lindsey will use his expertise in international trade, immigration, globalization and economic development to identify the structural reforms needed to revive entrepreneurial innovation, firm formation and job creation in the wake of the Great Recession.

…

As for me, my official last day at Cato is September 15. Expect more blogging and sketches.

David Weigel:

The libertarian Cato Institute is parting with two of its most prominent scholars. Brink Lindsey, the institute’s vice president of research and the author of the successful book The Age of Abundance, is departing to take a position at the Kauffman Foundation. Will Wilkinson, a Cato scholar, collaborator with Lindsey, and editor of the online Cato Unbound, is leaving on September 15; he just began blogging politics for the Economist.

I asked for comment on this and was told that the institute does not typically comment on personnel matters. But you have to struggle not to see a political context to this. Lindsey and Wilkinson are among the Cato scholars who most often find common cause with liberals. In 2006, after the GOP lost Congress, Lindsey coined the term “Liberaltarians” to suggest that Libertarians and liberals could work together outside of the conservative movement. Shortly after this, he launched a dinner series where liberals and Libertarians met to discuss big ideas. (Disclosure: I attended some of these dinners.) In 2009 and 2010, as the libertarian movement moved back into the right’s fold, Lindsey remained iconoclastic—just last month he penned a rare, biting criticism of The Battle, a book by AEI President Arthur Brooks which argues that economic theory is at the center of a new American culture war.

Did any of this play a role in the departure of Lindsey and Wilkinson? I’ve asked Lindsey and Wilkinson, and Wilkinson has declined to talk about it, which makes perfect sense. But I’m noticing Libertarians on Twitter starting to deride this move and intimate that Cato is enforcing a sort of orthodoxy. (The title of Wilkinson’s kiss-off post, “The Liberaltarian Diaspora,” certainly hints at something.)

Ilya Somin:

There are two big problems with Weigel’s insinuation. First, Cato has not changed or even deemphasized any of its positions on those issues where they have long differed with conservatives including the war on drugs, immigration, foreign policy, and others. If they were trying to move “back into the right’s fold,” one would think they would pulled back on these positions at least to some noticeable extent. Yet a quick glance at Cato’s website reveals recent attacks on standard conservative policies on Afghanistan, and the “Ground Zero mosque,” among other issues.

Second, it is strange to claim that Cato got rid of Lindsey for promoting a political alliance with the left at the very time when Lindsey himself recently disavowed that very idea, stating that “it’s clear enough that for now and the foreseeable future, the left is no more viable a home for libertarians than is the right.” If Cato objected to Lindsey’s advocacy of an alliance with the left, one would think they would have purged him back when he was actually advocating it, not after he has repudiated it. Wilkinson does still favor liberaltarianism, but apparently only as a philosophical dialogue. He holds out little if any prospect of an actual political coalition between the two groups.

Both Lindsey and Wilkinson have done much important and valuable work, and Cato is the poorer for losing them. At this point, however, there is no evidence that their departure was caused by a “purge” of liberaltarians intended to bring Cato “back into the right’s fold.”

CONFLICT OF INTEREST WATCH: I am a Cato adjunct scholar (an unpaid position). However, I am not an employee of Cato’s, and have no role in any Cato personnel decisions. In this particular case, I didn’t even know it was going to happen until it became public.

Daniel Foster at The Corner:

I won’t speculate on what’s going on at Cato. But, as much as I respect Brink Lindsey, both he and Wilkinson often expressed contempt for conservatism andconservative libertarians — Cato’s base, as it were — that probably didn’t help their causes. In Lindsey’s case, it was tempered by a kind of anthropological aloofness; in Wilkinson’s, less so.

American libertarianism is queer in that it can admit both rationalists and conservatives in the Oakeshottian senses. Reading Wilkinson it becomes clear that he is a classic rationalist. He derives his libertarianism a priori — a set of propositions on a chalkboard. Contrast with, for example, the average tea partier, who gets his as a uniquely American historical inheritance — a full-blooded tradition. Like most rationalists, Wilkinson thinks this is not just silly and sentimental but pernicious (one of his biggest bugaboos is patriotism).

And so, holding the same set of basic principles, but with different reasons, sends these two kinds of libertarians in two very different directions: the rationalists off toward liberaltarianism; the conservatives the classic Buckley-National Review fusionism.

Matt Welch at Reason

Alex Pareene at Gawker:

Various libertarians (and, to a much lesser extent, liberals) have wondered, as Lindsey did in that 2006 piece, why libertarians so often align themselves with conservatives instead of liberals. Considering the number of anti-libertarian policies the conservative movement fights for, it seems slightly odd that libertarians would act as an arm of that movement. But I think the answer is sort of obvious: While some outlets, like those leather jacket-wearing rebels at Reason, just tend to go after whoever’s currently in power, most of the big libertarian institutions are funded by vain rich people. And these vain rich people care a lot more about tax policy (specifically a policy of not having to pay taxes) than they do about legalizing drugs or defunding the military-industrial complex. And if they’re keeping the lights on at Cato and AEI, they want Cato and AEI to produce research that relates more to hating the IRS and the EPA than to hating the NYPD or the FBI.

And Cato was born as a Koch family pet project. As in the Koch family that is bent on the political destruction of Barack Obama.

Anyway, Lindsey and Wilkinson aren’t saying anything about their departures, but, as Dave Weigel writes, it looks for all the world like “Cato is enforcing a sort of orthodoxy.”

A libertarian influence on the Democratic party in the realms of law enforcement, drug policy, and civil liberties would definitely be a good thing. But the big libertarian institutions are not really amenable to working with liberals.

Steve Benen:

But what’s especially interesting to me is how often we’ve seen moves like these in recent years. David Frum was forced out at the American Enterprise Institute after failing to toe the Republican Party line. Bruce Bartlett was shown the door at the National Center for Policy Analysis for having the audacity to criticize George W. Bush’s incoherent economic policies.

In perhaps the most notable example, John Hulsman was a senior foreign policy analyst at the right’s largest think tank, the Heritage Foundation. Hulsman was a conservative in good standing — appearing regularly on Fox News and on the Washington Times‘ op-ed page, blasting Democrats — right up until he expressed his disapproval of the neoconservatives’ approach to foreign policy. At that point, Heritage threw him overboard. Cato’s Chris Preble said at the time, “At Heritage, anything that smacks of criticism of Bush will not be tolerated.”

A few years later, Cato seems to be moving in a very similar direction.

Intellectually, modern conservatism is facing a painfully sad state of affairs.

John Quiggin:

These departures presumably spell the end of any possibility that Cato will leave the Republican tent (or even maintain its tenuous claims to being non-partisan). And Cato was by far the best of the self-described libertarian organizations – the others range from shmibertarian fronts for big business to neo-Confederate loonies.

On the other hand, breaks of this kind often lead to interesting intellectual evolution. There is, I think, room for a version of liberalism/social democracy that is appreciative of the virtues of markets (and market-based policy instruments like emissions trading schemes) as social contrivances, and sceptical of top-down planning and regulation, without accepting normative claims about the income distribution generated by markets. Former libertarians like Jim Henley have had some interesting things to say along these lines, and it would be good to have some similar perspectives

Chris Bodenner at Sully’s place:

With Lindsey and Wilkinson out, perhaps there’s a chance for Nick Newcomen, the Rand fan who drove 12,000 miles with GPS tracking “pen” to scrawl the message above?  If nothing else, his ideological chops are unassailable.

UPDATE: Heather Hurlburt and Daniel Drezner at Bloggingheads

Arnold Kling

Tim Carney at The Washington Examiner

Tim Lee here and here

James Poulos at Ricochet on Lee

UPDATE #3: David Frum at FrumForum

Michael Chabon Is Paged Several Times

Michael Weingrad in the Jewish Review of Books:

So why don’t Jews write more fantasy literature? And a different, deeper but related question: why are there no works of modern fantasy that are profoundly Jewish in the way that, say, The Lion, the Witch, and the Wardrobe is Christian? Why no Jewish Lewises, and why no Jewish Narnias?

My interest in these questions is partly personal. Tolkien and Lewis loomed large in my childhood and, as I read them to my own children, I wonder what they ought to mean to us as Jews. But my thoughts are also stimulated by the recent publication of some apparent exceptions to the rule: from the United States, The Magicians, a fantasy novel for adults by novelist and critic Lev Grossman, and from Israel, Hagar Yanai’s Ha-mayim she-bein ha-olamot (The Water Between the Worlds), the acclaimed second installation of a projected fantasy trilogy, which, when it is finished, will be the first such trilogy in Hebrew.

Asking these questions is hardly frivolous when fantasy, especially children’s fantasy, has today become a multi-billion dollar industry. In addition to the perennial popularity of Lewis and Tolkien, there is of course the publishing tsunami that is J. K. Rowling, as well as the lesser but still remarkable successes of recent fantasy authors such as Philip Pullman and Jonathan Stroud, all magnified immensely by the films based on their books. Fantasy is big business.

Indeed, one wonders why, amidst all the initiatives to solve the crisis in Jewish continuity, no one has yet proposed commissioning a Jewish fantasy series that might plumb the theological depths like Lewis or at least thrill Jewish preteens with tales of Potterish derring-do. Granted, popularity is rarely cooked to order and religious allegory sometimes backfires (a mother once wrote Lewis that her nine year old son had guiltily confessed to loving Aslan the lion more than Jesus). But still, what non-electronic phenomenon has held the attention of more children (and not a few adults) during the last ten years, than Rowling’s tales of Hogwarts? And, as Tom Shippey has shown in Tolkien: Author of the Century, the Lord of the Rings trilogy consistently tops readers’ polls of their most beloved books. Why the apparent aversion to producing such well-received books by the People of the Book?

Some readers may have already expressed surprise at my assertion that Jews do not write fantasy literature. Haven’t modern Jewish writers, from Kafka and Bruno Schulz to Isaac Bashevis Singer and Cynthia Ozick, written about ghosts, demons, magic, and metamorphoses? But the supernatural does not itself define fantasy literature, which is a more specific genre. It emerged in Victorian England, and its origins are best understood as one of a number of cultural salvage projects that occurred in an era when modern materialism and Darwinism seemed to drive religious faith from the field. Religion’s capacity for wonder found a haven in fantasy literature.

The experience of wonder, of joy and delight on the part of the reader, has long been recognized as one of the defining characteristics of the genre. This wonder is connected with a world, with a place of magic, strangeness, danger, and charm; and whether it is called Perelandra, Earthsea, Amber, or Oz, this world must be a truly alien place. As Ursula K. Leguin says: “The point about Elfland is that you are not at home there. It’s not Poughkeepsie.”

To answer the question of why Jews do not write fantasy, we should begin by acknowledging that the conventional trappings of fantasy, with their feudal atmosphere and rootedness in rural Europe, are not especially welcoming to Jews, who were too often at the wrong end of the medieval sword. Ever since the Crusades, Jews have had good reasons to cast doubt upon the romance of knighthood, and this is an obstacle in a genre that takes medieval chivalry as its imaginative ideal.

It is not only that Jews are ambivalent about a return to an imaginary feudal past. It is even more accurate to say that most Jews have been deeply and passionately invested in modernity, and that history, rather than otherworldliness, has been the very ground of the radical and transformative projects of the modern Jewish experience. This goes some way towards explaining the Jewish enthusiasm for science fiction over fantasy (from Asimov to Silverberg to Weinbaum there is no dearth of Jewish science fiction writers). George MacDonald’s Phantastes, thought by some to be the first fantasy novel ever written, begins with a long epigraph from Novalis in which he celebrates the redemptive counter-logic of the fairytale: “A fairytale [Märchen] is like a vision without rational connections, a harmonious whole . . . opposed throughout to the world of rational truth.” Contrast Herzl’s dictum that “If you will it, it is no Märchen.” The impulse in the latter is that of science fiction—the proposal of what might be—and indeed Herzl’s one novel Old-New Land was a utopian fiction about the future State of Israel.

Joe Carter at First Things

Will at The League

Samuel Goldman at PomoCon:

The article has taken heat from fans of the many Jewish fantasy authors. But most of them have missed the point. Weingrad isn’t asking whether Jews write fantasy or enjoy reading it. Instead, he’s concerned with why there aren’t any compelling fantasy “worlds” that incorporate Jewish folklore and tropes the way Narnia and Tolkein’s Middle Earth develop  Christian ones.

But is that really such a puzzle? In the first place, the landscape of most fantasy novels is essentially the numinous forest of the Teutonic Dark Ages. It is not so much a Christian world as a world on the cusp of Christianity: a pagan Götterdämmerung.

Jews can, of course, appropriate this setting for literary purposes. But I don’t think it has the same imaginative gravity that it does for Christians. Similarly, the warrior values that animate a lot of fantasy are not traditionally Jewish. One could, I suppose, write a story around around a learned rabbi–but surely that would not be as interesting as one focused on knights, errant wizards, and chieftains of mounted hordes. Finally, as Weingrad notes, there’s no fantasy without evil. And Jewish teaching on this subject is extremely ambiguous; unlike some Christian doctrines, Judaism tends to deny evil as a force independent of and opposed to God.

For these reasons, Jews drawn to speculative writing may have an affinity for the science fiction over fantasy. The technological rationalism and optimism of much science fiction is also, in a way, more American–and America has offered the broadest field for Jewish literary efforts since World War II.

But Weingrad neglects a “fantasy” genre founded by Jews, and arguably shaped by Jewish preoccupations. That’s the superhero comic book invented in the 1930s by the likes of Robert Kahn–Bob Kane to you. There could never be a Jewish Narnia that would preserve the features many readers find compelling (I confess that I always vastly preferred Tolkein, whose work is richer and less didactic). But the universes of Superman, Batman, and the rest are worthy counterparts.

Spencer Ackerman:

His name is Michael Chabon, you fool. Or Jonathan Lethem. Or, as my friend Sam Goldman insightfully observes, perhaps you ought to pick up a superhero comic. Practically every iconic superhero was created by Jews. Wrap your mind around two Jews, Jerry Siegel and Joe Shuster, creating an invincible hero called Superman in 1932.

Probably more accurately, the Jewish CS Lewises are named Stan “Stanley Lieber” Lee and Jack “Jacob Kurtzberg” Kirby. Weingrad is asking the wrong question if he wants a one-to-one transposal of the Christian Lewis to Jewish creators, who are less likely to create direct parables because an impulse to convert doesn’t exist in Judaism, but questions of justice, power and responsibility — stuff that concerns Jews, I hear — are central to the Marvel Universe. Back when Jews still lived in urban enclaves, Lee and Kirby created the Thing, the first Jewish superhero (and probably the first Jew in space), to bring the ersatz-Lower East Side values of “Yancy Street” to the gentile masses and give the Yancy Street kids a relatable hero to look up to — the world scorned him for his appearance, but he was brave and strong and moral and had more heart than anyone. I don’t need to explain the civil rights allegory of the X-Men, but you could make quite the engaging Haggadah out of the “Days of Future Past” storyline. If it’s young-adult fiction you want, practically nothing will get kids into the habit of reading, and reading passionately, than comic books.

Farah Mendlesohn:

Don’cha just love utter rubbish? Simply off the top of my head:
Robert Silverberg; Esther Freisner; Peter Davison; Michael Burstein; Neil Gaiman; Marge Piercy (great grand-daughter of a Rabbi); Peter Beagle; Charlie Stross and Michael Chabon (by pure coincidence I have been reading Gentleman of the Road, set in the ninth century kingdom of the Kazars and, as he says in a post-script “Jews with Swords”, all day today).

I am sure others will add more.

Abigail Nussbaum:

Farah Mendlesohn pours out her wrath on Michael Weingrad’s article “Why There is No Jewish Narnia” in the inaugural issue of Jewish Review of Books, and its assertion that Weingard “cannot think of a single major fantasy writer who is Jewish, and there are only a handful of minor ones of any note. To no other field of modern literature have Jews contributed so little.”  Allegedly a review of Lev Grossman’s The Magicians and Hagar Yanai’s HaMaim SheBeyn HaOlamot (The Water Between the Worlds), the second volume in an Israeli YA fantasy trilogy, Weingard treats only briefly with his two subjects and mostly uses them as a backdrop to his theory of Judaism being a far less hospitable environment than Christianity for the development of a fantastic tradition, of “all the elements necessary for classic fantasy—magic, myth, dualism, demonic forces, strange worlds, and so forth.”  Farah responds by listing a dozen Jewish fantasy authors off the top of her head, and commenters to her post contribute quite a few more, but though it seems likely, reading between the lines of Weingard’s article, that these authors are either wholly unfamiliar to him or that he would be surprised to learn of their Jewishness, I’m not sure that this listing accurately addresses the point Weingard is trying to make.

It seems clear to me that the essay’s title is meant in earnest, and that Weingard is specifically hunting for Jewish authors of the same caliber, fame, and influence over the genre as Tolkien and Lewis, of which there are indeed none.  More importantly, when Weingard calls for a Jewish Narnia, he is calling for “works of modern fantasy that are profoundly Jewish in the way that, say, The Lion, the Witch, and the Wardrobe is Christian”.  As Jo Walton says in the comments to Farah’s post, “I think it’s more useful to ask what Jewish fantasy stories there are than what Jewish fantasy writers,” and again the answer would be that there are precious few.  The most well-regarded, famous and influential Jewish fantasy writer working today is probably Neil Gaiman, but Jewish elements in his fiction are few and far between, and the folklore and myths he draws on in his work are mostly Christian or pagan, with some forays into various Eastern traditions.  Which is understandable when one considers that Weingard’s argument about the relative paucity of the Jewish fantastic tradition is undeniable.  It’s a religion and a culture that is not only less rooted in and concerned with the numinous than Christianity is–the afterlife, for example, is treated in Judaism almost as an afterthought, and receives very little attention in the halacha or in Jewish scholarship–but whose folk tales and traditions seem to have almost no fantastic component.  There’s a reason that the golem and the dybbuk get so much play whenever the Jewish fantastic is mentioned–because there’s not much else out there, and very little that is common currency even among Jews.

None of this is to say that I don’t sympathize with Farah’s exasperation with “Why There is No Jewish Narnia.”  Weingard’s essay is riddled with so many staggering assumptions, sweeping generalizations, and plain untruths that even its most self-evident arguments come to seem suspect.  Chief among these is the fact that though he deftly analyzes the philosophical differences between Christianity and Judaism which render the former so suitable to the Tolkienian mode of fantasy by noting that Christianity is rooted in a dualism between good and evil, whereas Judaism balks at placing any power on an equal standing, or even in opposition, to God, Weingard touches only lightly on the real-world factors that discouraged Jews from exploring the fictional avenues that Tolkien and Lewis did.  To put it bluntly, there is no way that a Jewish writer working in the early decades of the twentieth century could have produced The Lord of the Rings, a work steeped in a yearning for a lost pastoral world that Jews, who have for various reasons tended to congregate in urban and commercial centers, would have had little or no experience of.  Similarly, the naked didacticism and unabashed proselytizing of the Narnia books is entirely antithetical to Judaism, an anti-missionary religion.  One might as well ask why there is no Jewish Divine Comedy.

Ross Douthat:

Part and parcel of Judaism’s resistance to explorations in the realm of faerie, he goes on, is a discomfort with the semi-dualism that’s necessary to classic fantasy — the idea of a Devil figure, in other words, who seems capable of actually conquering the mortal world (be it Narnia or Middle-Earth, Fionavar or Osten Ard) and binding it permanently in darkness. As Weingrad notes, correctly I think: “Christianity offers a far more developed tradition of evil as a supernatural, external, autonomous force than does Judaism, whose Satan (or Samael or Lilith or Ashmedai) are limited in their power and usually rather obedient to God’s wishes.” Tolkien’s Sauron makes sense in a Christian universe; he makes less sense in a Jewish one.

But once you add up these insights, they jostle uneasily with Weingrad’s professed desire for a Jewish Tolkien, or a Jewish Lewis. What he seems to have demonstrated is that modern fantasy depends on Christianity, or at least a Christian-pagan synthesis, for its forms, conventions, and traditions. This suggests that you could write a novel that embodies a kind of Jewish critique of fantasy — in much the same way that China Miéville’s novels are a kind of Marxist critique of Tolkien, Marion Zimmer Bradley’s “Mists of Avalon” was a feminist critique of Arthurian-based fantasy, Philip Pullman’s “His Dark Materials” trilogy is an atheist’s critique of C.S. Lewis, and so on. (And indeed, Weingrad’s essay reads Lev Grossman’s new novel “The Magicians” as a kind of crypto-Jewish critique of Narnia and/or Harry Potter.) But the genre itself will remain irreducably Christian, and a truly Judaic fantasy would have to belong to, or invent, a different genre altogether.

UPDATE: Rod Dreher

Jonah Goldberg at The Corner

Ilya Somin

Charlie Jane Anders at IO9

Razib Khan at Science Blogs

UPDATE #2: E.D. Kain at The League

As We Sailed Into The Mystic

Jonah Goldberg at The Corner:

Thanksgiving is actually my favorite holiday. I’ve discussed this a bunch of places. But here are the bullet points of why I love Thanksgiving:

• It’s not commercialized because there are no gifts. Kay Jewelers has not yet figured out how to pimp-out American womenfolk for Thanksgiving (“every drumstick begins with second-base” never caught on as a slogan).

• It’s America’s only nationalist holiday. The Fourth of July, President’s Day, and even Veterans’ and Memorial Day are celebrations of the nation-state created by the American founding. In short, our other holidays are about patriotism, not nationalism. Thanksgiving meanwhile celebrates a pre-constitutional relationship with the Almighty. I wouldn’t quite say it’s a pre-modern or blood-and-soil holiday, but it is about Providence and the great gift being here, in this place, is. A little mystic nationalism is a good and healthy thing because it provides the emotional sinew that helps us hold onto our patriotism. This country is great and good for many reasons. But one reason for its greatness,  too often forgotten, is that it is ours.

Will Wilkinson:

I strenuously disagree that a little mystic nationalism is “a good and healthy thing.” But I heartily agree with what I take Jonah to imply: that patriotism has little emotional substance without mystic nationalism.

Here’s your good and healthy:

Pascal-Emmanuel Gorby at The American Scene on Wilkinson:

Well, that’s just great.

Will, I heard you like capitalism, so I put some capitalism in your capitalism and here’s what capitalism looks like:

LOL!

The great thing about the internet is that if you caricature an opponent you win, and if you can prove that something can sometimes have bad consequences, you’ve proven that thing is always bad.

Oh, wait. That’s not actually how it works! How it works is that you argue in good faith, come to reasonable disagreements, don’t call each other names, and maybe, every once in a while, convince the other guy or let yourself be convinced. In short, you behave better than 8 year olds in a schoolyard. At least, that’s how it should work.

But of course this is unlikely to happen when one (or both) protagonist(s) is convinced that they are the only ones who are objective and reasonable (ahem).

So yes, I agree with Jonah, I do think that a little “mystic nationalism” is a good and healthy thing because the union of the national polity around a common identity is the necessary precondition of its health.

And patriotism does have an irrational side, like most everything else we flawed creatures come up with. Of course the bad impulses of nationalism must be checked, as with the bad impulses of democracy, of free enterprise, and of everything else that we consider good and healthy.

How great it must be to be so enlightened, so above the morbid miasmas of irrational attachment, to be able to view the whole world unmoored from belonging. How irrational, how icky it must seem to be actually attached to something so quaint as one’s country. How coarse must be the dark bread of patriotism when one can feast on the fine brioche of enlightened cosmopolitanism. Let the world eat brioche! Cosmopolitans of the world unite, you have nothing to lose but your chains!

I’ve long meant to pen here an elaborate defense of so-called “national greatness conservatism” intended for libertarians and conservatives who view every stirring of government as a threat (a generally healthy instinct to be sure but, like all instincts, one that must sometimes be checked).

The thrust of my argument would probably be this: that a strong national polity, cemented by a common identity, is the yin to democracy’s yang. Democracy is not about a ballot box, or even only about fundamental human rights. Democracy, at its core, is a national community choosing the rules and values that it wants to live by. And it is a great and wonderful thing that there are hundreds of nations, each different, each with its own specific quirks, ideas, and thoughts. And the fact that, in time, hopefully, each of these nations will secure for its members a universally shared set of human rights, will not mean that they can or should be subsumed in a globalist glob.

Conor Friedersdorf at TAC:

Mr. Wilkinson and PEG, for all their disagreements, seem to regard patriotism as beyond reason, and nonsensical without nationalism, but is it? The colonists of 1776 managed to begin a rather intellectually rigorous Revolution. I won’t pretend that everyone who fought in that struggle coldly reasoned things out, or delve into the many reasons that soon-to-be Americans rebelled against the British, but it is certainly the case that even after their victory, the generation that fought thought they owed primary allegiance to their states, and drew up the Articles of Confederation as a democratic expression of their values. That wasn’t a document of nationalists or National Greatness Conservatives! Indeed, the Constitution of 1789 stopped far short of what Weekly Standard national greatness conservatives would recommend for our polity.

5) In recent years, when patriotism has been used as an explicit argument for some policy or other, disaster has been the result far more often than any other outcome, and it is difficult to think of a particular good that it’s brought us. I’d argue that is explained by the fact that since 9/11 we’ve seen a perversion of patriotism.

If loving the United States of America means admiring, upholding and defending the values found in the Declaration of Independence and the Constitution, patriotism is a good thing indeed, even if that intellectually driven love is bolstered by an emotional attachment to our community, our friends and our culture. That is my feeling, and I therefore consider myself a patriot. But if loving the United States of America is severed from admiring, upholding and defending those values — if America is supposed to be some ill-defined thing, and I am supposed to lend my support to whatever the person elected as its president decides — then patriotism is better guarded against than embraced.

Daniel Larison:

This is a lot of nonsense, which is just what we should expect from Wilkinson on this topic. For Wilkinson, patriotism and nationalism are virtually indistinguishable, so it suits him to accept Goldberg’s mistaken “mystic nationalism” line when he can use it to indict the former. In fact, patriotism has considerable emotional substance that nationalists have exploited for centuries. “Mystic nationalism” in itself is usually the product of a simplistic retelling of history mixed with a hefty dose of self-congratulation. It is the antithesis of patriotism as much as anything can be.

Goldberg is utterly, laughably wrong when he says that Thanksiving is “America’s only nationalist holiday.” There is nothing even remotely nationalist about Thanksgiving. Nationalism elevates the nation and, in its later manifestations, the nation-state to a position of virtual religious sanctity. Few things are capable of greater impiety than nationalism. To the extent that it has any political dimension, Thanksgiving is the negation of the arrogance, presumption and self-absorption that nationalism teaches. The celebration of Thanksgiving is supposed to be a recognition that all things are owed to God’s Providence, and that without Him we can do nothing. Nationalism is an obsession with our own virtues and a boast of our own strength. An act of thanksgiving is an acknowledgment that we are utterly dependent on God for everything.

If nationalists have since tried to hijack the story of the Pilgrims, who were as far removed in spirit from ideas of national greatness and power as possible (as they were both religious dissidents and political exiles), that has nothing to do with Thanksgiving. It is a reminder that nationalists have no respect for history, and that they will distort the past in whatever way they can to advance their cause.

UPDATE: Ilya Somin, here and here.

Goldberg responds

Wilkinson responds to Goldberg

Don’t Ask The Libertarians To Save The Whales

Kerry Howley in Reason:

I call myself a classical liberal in part because I believe that negative liberties, such as Min’s freedom from government interference, are the best means to acquire positive liberties, such as Min’s ability to pursue further education. I also value the kind of culture that economic freedom produces and within which it thrives: tolerance for human variation, aversion to authoritarianism, and what the libertarian economist F.A. Hayek called “a preparedness to let change run its course even if we cannot predict where it will lead.”

But I am disturbed by an inverse form of state worship I encounter among my fellow skeptics of government power. This is the belief that the only liberty worth caring about is liberty reclaimed from the state; that social pathologies such as patriarchy and nationalism are not the proper concerns of the individualist; that the fight for freedom stops where the reach of government ends. It was tradition, not merely government, that threatened to limit Min’s range of possible lives. To describe the expanded scope of her agency as merely “freedom from state interference” is to deny the extent of what capitalism has achieved in communist China.

As former Fundamentalist Church of Jesus Christ of Latter-Day Saints leader Warren Jeffs can tell you, it’s possible to be an anti-government zealot with no interest whatsoever in individual liberty. If authoritarian fundamentalist compounds are your bag, the words personal agency will hold no magic for you, and Min’s situation will smack of social chaos. But libertarians for whom individualism is important cannot avoid discussions of culture, conformism, and social structure. Not every threat to liberty is backed by a government gun.

Convention creates boundaries as thick as any border wall and ubiquitous as any surveillance state. In Min’s village, women are constrained by a centuries-old preference for male descendants. (Men are also constrained by this tradition, as families are less likely to permit their valuable sons to migrate to the city.) Most people will accept their assigned roles in the village ecosystem, of course, just as most Americans will quietly accept the authority of a government that bans access to developmental cancer drugs while raiding medical marijuana dispensaries. A door is as good as a wall if we cannot imagine walking through it.

It ought to seem obvious that a philosophy devoted to political liberty would concern itself with building a freedom-friendly culture. But the state-wary social conservative flinches when his libertarian friends celebrate the power of culture itself to liberate: the liberty of the pill, of pornography, of 600 channels where once there were three. The social conservative will refer to these wayward anti-statists as “cultural libertarians,” by which he means libertines. And it will always be in his interest to argue that the libertarian, qua libertarian, should stay mute on issues of culture.

“True libertarianism is not cultural libertarianism,” the philosopher Edward Feser wrote on the paleolibertarian website LewRockwell.com in December 2001. This statement was immediately preceded by a call for the stigmatization of porn, adultery, divorce, and premarital sex—in other words, an argument for a particular kind of culture. Feser claimed that small government and an ethos of “personal fulfillment” were incompatible, and he argued for the former over the latter. In the guise of an attack on cultural libertarianism, Feser demanded that libertarians espouse different patterns of cultural behavior.

As it turns out, all libertarians are cultural libertarians. We just don’t share the same agenda. Some prefer to advance their agenda by pretending it doesn’t exist: that social convention is not a matter of concern for those who believe in individual liberty. But when a libertarian claims that his philosophy has no cultural content—has nothing to say, for instance, about society’s acceptance of gays and lesbians—he is engaging in a kind of cultural politics that welcomes the paternalism of the mob while balking at that of the state.

Matthew Yglesias links and gives it a sentence:

Tim Lee and Kerry Howley are both making sense, but the upshot is that the most persuasive form of libertarianism isn’t really libertarianism at all.

Todd Seavey in the same group of essays:

Most libertarians would say that once the side constraint of property rights adherence is established, people have a right to engage in whatever social patterns they wish to follow so long as the property side constraints are not themselves undermined. Howley mentions “fundamentalist compounds” dismissively, but isn’t the whole point of liberty that people are free to construct fundamentalist compounds, sexist strip clubs, respectable female-run corporations, gender-indifferent science labs, or all-male hunting lodges as they choose, so long as they do so voluntarily?

If not, we can be forgiven for wondering why someone who thinks like Howley would embrace the basic political stance of libertarianism in the strict property-defending sense at all. If people telling you “fat chicks should be shunned” is as oppressive as being hauled off to jail, why not pass laws banning anti-fat-chick discrimination? Why not endorse affirmative action laws? Why not tell Catholic-run charities they must hire gays? The traditional libertarian answer is that rights violations are fundamentally different from behavior that merely strikes you as narrow-minded.

Howley’s thinking is potentially authoritarian (in a way that being passively bourgeois is not) because other people’s patterns of behavior will always limit your options one way or another and thus prompt demands for redress. Howley singles out a few hot-button, familiar issues such as race and gender, but the truth is that every time your fellow human beings decide, say, to be sports fans instead of talking about entomology with you, or to leave town en masse for the Bahamas (causing you to feel lonely), their actions have altered your life options. Tough luck. That’s called “other people exercising their freedom,” not “people oppressing you.”

Dylan Matthews at Tapped:

There are a few obvious problems here — namely, the fact that Seavey apparently doesn’t know what “voluntarily” means or else thinks that, say, the teen brides at fundamentalist Mormon compounds are freely choosing their own subjugation. More broadly, though, I don’t see how the examples he gives violate the libertarian value of defending property. Banning obesity discrimination does not deprive businesses of property. Nor does it increase businesses’ monetary obligations to the federal government, nor decrease the government’s obligations to protect businesses from harm. To be sure, such laws increase the power of government relative to employers, but that increase is dependent on the actions of the employees. The government only responds to lawsuits and complaints from those discriminated against, which if anything increases the freedom of action of those employees.

Seavey’s argument does make sense, however, if one views libertarianism not as an ideology devoted to personal liberty but to defending existing power structure. Banning obesity discrimination would not decrease individual liberty, but it would decrease the power of business management. Countering patriarchal attitudes more generally would be a great gain for individual freedom of action, but it would endanger the power of the patriarchy.

Why anyone would want to embrace a libertarianism having nothing to do with defending liberty in any real sense, however, I have no idea.

Ioz:

When Kerry Howley made the irrefutable and yet quixotic point that any proper concern with liberty, whether practical or, ahem, merely philosophical, must grapple with the strictures of cultural mores and social conventions, for they affect the lives and freedom of those individuals with whose liberty libertarianism supposedly concerns itself equally to and sometimes more than the official acts and proscriptions and promulgations of the government-même, I made no comment, because honestly, this again? I like and respect Kerry. She is probably smarter than I am. I am sure she looks better in heels. Her efforts along these lines are perhaps noble, but nonetheless doomed. It is not so much that they lack merit–on the merits, she is correct–as that they make a sort of category error. The problem is not that many libertarians are unwilling to consider the broader implications of their philosophy, but rather, that libertarianism is not a philosophy, not even a “political ideology,” as the more careful bet-hedgers might have it.

It is instead a lame, purely American third-party movement that sometimes appropriates the trappings of ideology in order to justify self-perpetuation in the face of a plurality-takes-all electoral system wholely inimical to minor parties. In reality, it is no more an ideology, let alone a philosophy, than is “Democrat” or “Republican.” It is moderately more consistent than either major American political party because it has no constituency. In the absence of a coalition, coherence. This is nothing to brag about.

James Joyner on Ioz’s post:

That about covers it.

Ilya Somin:

To my mind, there is no question that libertarians should care about some cultural values. However, Kerry’s argument could benefit from greater precision on several key issues. First, some cultural issues might well be an appropriate object of concern for libertarians as thinking individuals, but not a proper focus for libertarianism – which is, after all, a political ideology, not a comprehensive guide to the good life. Second, it is not clear what is meant by cultural values that restrict freedom. Finally, Kerry may underrate the extent to which there is no single set of cultural norms that is optimal for all people. There are both normative and tactical reasons for libertarians to avoid taking definitive positions on more than a limited number of cultural issues.

[…]

Kerry claims that most libertarians assume that “social pathologies such as patriarchy and nationalism are not the proper concerns of the individualist.” In reality, numerous libertarians such as Adam Smith, Richard Cobden, and F.A. Hayek have harshly criticized nationalism for at least the last 200 years — largely because they recognized the close connection between nationalism, statism, and war. The same could be said with respect to patriarchy, which libertarians such as William Lloyd Garrison and Herbert Spencer, criticized back in the 19th century long before it became common to do so, on the grounds that it causes indefensible state-sponsored restrictions on the freedom of women. Today, few libertarians would deny that some cultural values are a proper object of libertarian criticism because they tend to promote government-sponsored restrictions on liberty. Libertarians would also condemn cultural values that justify aggressive uses of private force, such as, for example, sexism that promotes violence against women.

However, Kerry wants libertarians to go beyond this and focus on cultural values that supposedly undermine freedom even without any connection to state power or private violence. As she puts it, “Not every threat to liberty is backed by a government gun. Convention creates boundaries as thick as any border wall and ubiquitous as any surveillance state.”

This claim proves too much. Almost any cultural norm restricts people’s options to some extent in the sense that violators might face social pressure to conform, or that people might internalize the norm to such an extent that they don’t even consider the possibility of going against it. On the other hand, social conventions also increase personal freedom by enabling to people to cooperate in ways that might otherwise be difficult or impossible and to form communities that reflect their values.

Nonetheless, Kerry is probably right to suggest that some extremely restrictive social norms can radically reduce people’s choices and greatly diminish their freedom. However, I think that this problem is unlikely to be a serious one in a modern liberal society that has many different cultures and social institutions. People who feel dissatisfied or restricted by the social norms of their communities can seek out alternative social groups. In the modern United States, any large metropolitan area has an enormous range of subcultures to choose from. Even if you live in a relatively isolated rural area, you can still “vote with your feet” and move elsewhere, as most of the rural population has actually done over the last century. So long as people have exit rights in a liberal society, they are unlikely to be trapped in a set of restrictive social norms that radically constrict their freedom — unless of course they prefer it.

At some points, Kerry implies that people who follow highly traditionalistic lifestyles — especially women in patriarchal subcultures — might nonetheless be trapped without any meaningful possibility of exit. This is a genuine problem in backward societies with little education and mobility. But I’m skeptical that it is true to any great extent in the US or other advanced industrialized nations. Most American cultural traditionalists are well aware of the existence of alternative, more progressive cultures. Indeed, most live near people who adhere to them. If they nonetheless stick to their traditional values, it is unlikely to be because they have no choice. Indeed, the existence of a variety of different subcultures actually increases individual freedom, by giving people more lifestyle options to choose from.

For these reasons, libertarians have good reason to fear state-imposed cultural norms more than privately developed ones. The state can use its monopoly of force to compel all of society to adhere to a single set of norms, including dissenters who prefer a different vision. It is far more difficult for private institutions to do so.

Will Wilkinson:

As I see it, Kerry’s claim is that many libertarians fail to adequately acknowledge the fact (and it is a fact) that people are embedded in and shaped by culture, and that, as a consequence, many libertarians fail to grasp the extent to which cultural norms and social structure can limit individual liberty or work to deny some individuals the opportunity to develop the capacities needed to meaningfully exercise their liberty rights.

Sensibly enough, Kerry is careful to avoid the errors she thinks others are making. So she sees libertarians not as a cadre of uniquely penetrating intellects in communion with a set of timeless truths about the nature of a free society, but as a group of human beings who are, as we all are, historically and culturally embedded. She sees libertarianism not as a single, sharply-defined system of interrelated propositions, but as a syndrome of ideas and attitudes within and responsive to a changing culture around which a political identity and social movement has formed. This will, if she’s right about most libertarians, seem strange to most libertarians. 

Kerry’s argument, at least as I read it, is that if we really care about liberty, and are serious about seeing to it that all are able to enjoy the blessings of liberty, we cannot just assume that everything we need know about cultivating a climate of liberty is already accurately and fully captured by the historically and culturally conditioned ideas and attitudes that have come to characterize most self-described libertarians. Because, again,  many libertarians have tended to underestimate just how thoroughly socialized and culture-bound we all are, and have thus given far too little weight to cultural threats to liberty.

Kerry says nothing that even hints at the idea that libertarianism is “a comprehensive guide to the good life.” Her essay proceeds on the assumption that political ideologies, like people, exist in a cultural context, and that libertarianism, as it has developed in response to the exigencies of history, fails to adequately recognize the influence of cultural context on individual liberty. I think it’s pretty clear that Kerry is arguing that, insofar as a libertarian’s commitment to libertarianism is motivated by devotion to the value of liberty, then cultural constraints on liberty deserve more attention than they’ve traditionally had from libertarians.

If you think cultural products such as political ideologies evolve over time, you won’t see the content of “libertarianism” as sharply defined and fixed once and for all. To assert, as Ilya does, that “some cultural issues might well be appropriate object of concern for libertarians as thinking individuals, but not a proper focus for libertarianism,” pretty much begs the question. The claim is that these cultural issues ought to be objects of concern to libertarians because they are matters of liberty that libertarian have overlooked. Kerry’s asking libertarians to care more about the conditions under which people develop the capacity to meaningfully exercise freedom. She’s asking libertarians to not so blithely assume that social relations of exploitation and domination enforced by state power for hundreds of years are no longer matters of liberty simply because the enforcement of longstanding racist and sexist norms was privatized a few decades ago. She’s not asking libertarians to save the whales.

Jamelle at The League:

As you’re wondering why it is that so many commentators have had a hard time getting Kerry’s core point, I think it’s worth keeping in mind that libertarianism – as a political movement – is overwhelmingly white and male.  We tend to think of the racial composition of a political movement as just having electoral consequences, but it also has a profound effect on the core ideology of said movement.  At the risk of oversimplifying a bit, marginalized voices – racial and ethnic minorities, women, gays, etc. – are overrepresented among liberals and as such, the left that has been forced to grapple with the issues and concerns of marginalized communities in such a way as to make liberalism better equipped to deal with these issues.

It seems that insofar that libertarians experience oppression or constraints on their liberty, it is through the actions of the state rather than through culture, which makes sense. Libertarians are overwhelmingly white and male, and in a culture which highly values whiteness and maleness, they will face relatively fewer overt cultural constraints on their behavior than their more marginalized fellow-travelers.  Or in other words, a fair number of libertarians are operating with a good deal of unexamined privilege, and it’s this, along with the extremely small number of women and minorities who operate within the libertarian framework, which makes grappling with cultural sources of oppression really hard for libertarians.  After all – socially speaking – being a white guy in the United States isn’t exactly hard and that’s doubly true if you are well off.

Kerry Howley responds to some of the comments:

A political philosophy of limited government is a means to an end. For a great many though by no means all libertarians, the end is individual liberty, understood as the ability to pursue one’s singular aims. For some, support of limited government is, as Tim Lee puts it, “one facet of a broader liberal worldview.” It would be beyond pointless to construct an argument about what supporters of small government “ought” to care about. My Reason piece argues merely that supporters of small government who care about liberty ought to care also about culture, in part because culture and individualism are very often at odds.

Ilya says we cannot know what cultural norms are conducive to liberty broadly construed. What are his evidentiary standards? They are clearly far more stringent in the social realm than in the realm of property rights. We can know which cultural norms are conducive to liberty in much the same way we can known which pattern of property allocation is conducive to liberty. Are we sure in either case? No. Also, evolution is just a theory.

Here Ilya again wants precision, but here again bright lines are perilous to draw. It’s hard to say at exactly what age a girl can freely choose to marry. This is not a good reason for someone who cares about individualism to be agnostic on the issue of child marriage.

Just Call Him Barack Romanov

David Rothkopf at Foreign Policy:

It has finally happened. With yesterday’s naming of Border Czar Alan Bersin, the Obama administration has by any reasonable reckoning passed the Romanov Dynasty in the production of czars. The Romanovs ruled Russia from 1613 with the ascension of Michael I through the abdication of Czar Nicholas II in 1917. During that time, they produced 18 czars. While it is harder to exactly count the number of Obama administration czars, with yesterday’s appointment it seems fair to say it is now certainly in excess of 18.

In addition to Bersin, we have energy czar Carol Browner, urban czar Adolfo Carrion, Jr., infotech czar Vivek Kundra, faith-based czar Joshua DuBois, health reform czar Nancy-Ann DeParle, new TARP czar Herb Allison, stimulus accountability czar Earl Devaney, non-proliferation czar Gary Samore, terrorism czar John Brennan, regulatory czar Cass Sunstein, drug czar Gil Kerlikowske, and Guantanamo closure czar Daniel Fried. We also have a host of special envoys that fall into the czar category including AfPak special envoy Richard Holbrooke, Mideast peace envoy George Mitchell, special advisor for the Persian Gulf and Southwest Asia Dennis Ross, Sudan special envoy J. Scott Gration and climate special envoy Todd Stern. That’s 18.

[…]

Personally, I think from a purely process standpoint all this czarism is a risky business that ends up producing bureaucratic bottlenecks, tensions and inefficiency when not managed extremely carefully.  For now we will give them the benefit of the doubt that they will manage it well. Though please, please guys, stop now that you are ahead, now that you are officially the most prolific czarist dynasty in history.

For the record, the czars produced by Team Romanov were: Michael I, Alexis I, Fyodor III, Ivan V, Peter the Great, Catherine I, Peter II, Anna, Elizabeth, Peter III, Ivan VI,  Catherine the Great, Paul I, Alexander I, Nicholas I, Alexander II, Alexander III, Nicholas II. For the purposes of giving the Russians an even chance against the president, I am including both the original Romanov line and the descendants of the Holstein-Gottorps, who kept the Romanov name. I am not including the regency of Sophia, although if you want, go ahead.  Our team still wins.  (Although, I’ll admit it, it is almost as hard of tracking the Russian succession as it is the structure of our own government these days.)

Ilya Somin:

Government by czar didn’t work especially well in Russia. Hopefully, it won’t be quite so bad in this country. And, yes, of course I understand that Obama’s czars unlike the Romanovs are ultimately accountable to democratically elected officials. I also don’t expect Obama’s czars to be organizing pogroms or exiling dissidents to Siberia anytime soon. On the other hand, democratic accountability for America’s czars is increasingly tenuous in light of the fact that there are too many of them for most voters to even keep straight, much less understand and evaluate their performance in any depth. Here, as elsewhere, the rapidly growing size and complexity of government makes difficult for voters to monitor those who are supposed to be serving the public . Maybe Obama’s army of czars will do a good job anyway. A few of the Romanovs did. But for every “Czar-Liberator,” like Alexander II (who free Russia’s millions of serfs), there were a lot more oppressors and incompetents.

For what it’s worth, I also recognize that it was the Republican Reagan administration that appointed the first American “czar” when they named a “drug czar” in 1982. Reagan was wrong to do so. That, however, in no way justifies the Obama Administration’s massive expansion of this dubious practice.

UPDATE: Some commenters seem to be missing the point of the post; it’s possible I wasn’t sufficiently clear. So let me reiterate: No, I am not saying that Obama’s czars are brutal oppressors like most of the Romanov czars were. I thought that was clear in the original post, where I said that “I also don’t expect Obama’s czars to be organizing pogroms or exiling dissidents to Siberia anytime soon.” But let me be even more precise about it here to eliminate any remaining confusion. Nor am I saying that Cass Sunstein is somehow closely analogous to Nicholas II. I am, however, saying that the proliferation of czars makes an already excessively large and complex government even more difficult for rationally ignorant voters to monitor. And I doubt that there is any gain in efficiency to offset this harmful effect.

Eugene Volokh:

Others have pointed out that having offices called “czars” is an odd naming choice for a democracy. But czars weren’t just authoritarians. They were ultimately authoritarians who left their country far poorer than their more democratic counterparts, lost a world war, and of course paved the way for an even worse system of government. The label “czar” thus doesn’t historically connect to a model of strongman effectiveness — it connects to a model of strongman failure.

(Of course, I recognize that czars in the federal government don’t have even a fraction of the truly dictatorial power of their namesakes. But the label was used for a reason, presumably to evoke the positive connotation of strong authority that Gets The Job Done. Yet the specific strong authority that the label evokes proved to be unable to get the job done, at least under anything approaching modern conditions — under any sensible definition of “job,” possibly with the significant but narrow exception of the job of defeating Napoleon — and unable in a way that culminated with a disaster of historic proportions.)

Steve Benen:

The right-wing drive to target the Obama administration’s use of “czars” seems to be catching on among Republican lawmakers. On Fox News yesterday, Sen. Lamar Alexander (R-Tenn.) said the president’s use of czars is “an affront to the Constitution.”

I did some research last night, trying to find examples of Lamar Alexander criticizing the Bush administration’s use of czars. After all, Bush/Cheney not only kept some of the czars left over from the Clinton and the H.W. Bush administrations, but also oversaw the creation of a “food safety czar,” a “cybersecurity czar,” a “regulatory czar,” an “AIDS czar,” a “manufacturing czar,” an “intelligence czar,” a “bird-flu czar,” and a “Katrina czar.” If Alexander is concerned about this “proliferation” of czars, surely he raised some concerns during the previous administration.

Except he didn’t. As far as I can tell, Alexander never said a word. Apparently, Republican czars are fine; Democratic czars are un-American. Just because. Good to know.

I think I have a solution to this meaningless dust-up: stop using the word “czar.” It’s a meaningless word, anyway. It’s not as if there’s a single person in the executive branch with the word “czar” in their formal title — it’s just a colloquial political euphemism.

Mark Kleiman:

The comments to Somin’s post reflect the danger that sane people run when they think that they can safely fellow travel with insane people.  The objectively insane believe that Barack Obama is a Marxist is offered in (apparently) perfect seriousness.  Jones’s (former) self-identification as a “communist” made him too hot to handle politically. But Glenn Beck’s next target is Cass Sunstein, with his views on animal rights and the Second Amendment as the pretext. Having tasted blood, the wolfpack is coming back for more.  Sunstein, as a commenter points out, has been a guest poster on the Volokh Conspiracy.   But that won’t protect him from the full Jones/Sotomayor treatment, though his white skin might.  From a libertarian perspective, Sunstein is a far more attractive choice for OIRA than anyone likely to replace him.  But will the Volokh Conspirators rise to defend their former colleague when their current allies turn on him?

That famous poem by Pastor Niemoller on the risk of not speaking out starts “First they came for the Communists.”   Any serious libertarian or conservative who tries to use the Beck/O’Reilly/Limbaugh/Palin faction rather than denouncing it is playing with fire.   Lie down with dogs, get up with fleas.

UPDATE: David Weigel at Washington Independent

Julian Sanchez at Cato

UPDATE #2: Somin responds to Kleiman

UPDATE #3: Katie Connolly at Newsweek

Matthew Yglesias on Connolly

Steve Benen on Connolly

Organs, Urgency, Money, And Reform

Virginia Postrel in the Atlantic:

You might think that such a superior treatment would be standard. But kidneys are hard to come by. In the United States, more than 80,000 people are on the official waiting list, all hoping that someone will die in just the right circumstances and bequeath them the “gift of life.” Last year, only 16,517 got transplants: 10,550 with the cadaver organs allocated through the list, and 5,967 from living donors. More than 4,000 on the list, or about 11 a day, died. And the list gets longer every year.

For those who survive long enough to get transplants, the wait routinely lasts years. The odds are particularly bad in large cities. Take the nation’s largest transplant center, the University of California, San Francisco. In 2008, its surgeons did an impressive 347 kidney transplants, including 231 with organs from deceased donors. But 5,271 people are on UCSF’s waiting list—meaning that, relying entirely on deceased donors, they would expect to wait an average of almost 23 years. If, like Steve Jobs, who recently got a liver transplant in Memphis, you can travel great distances on short notice, you can register all over the country. But few kidney patients are that flexible. They wait, they get sicker, and, too often, they die.

With 300 million people in the United States, the numbers shouldn’t be so daunting. Eighty thousand people wouldn’t even fill the Rose Bowl. Surely we could find enough kidney donors to end the list. But solving that problem demands creativity, daring, and, above all, a sense of urgency—a radical break with the fatalism fostered by dialysis culture. Kidney patients ought to command the kind of outrage that demanded a cure for AIDS. The list doesn’t have to exist. It is a result not of medical necessity or economic constraints but of public ignorance, conscious policy, and complacent institutions. Too many people are suffering unnecessarily.

Nick Gillespie in Reason

Megan McArdle:

Postrel deals with “donor chains” in which people who want to give a kidney, but are incompatible with their target, form chains with other incompatible donors to get everyone what they want.  Then she moves onto markets, which are very controversial.  I confess, I don’t understand the ban on paying for organs.  We let eighteen year olds decide to go to Iraq in order to eventually pay for college, but we won’t let a thirty-five year old sell off a part of himself that he probably won’t need, and with which he could save a life?

Chris Good in the Atlantic:

But another, more controversial suggestion, is offering financial incentives–paying people to donate kidneys. If Medicare paid for it, Postrel suggests, it could save taxpayers billions.

Providing long-term dialysis–which is covered by law under Medicare to Americans of any age who’ve made minimum Social Security payments–is costly, to the tune of $100,000 on average per patient, Postrel says. Eliminating the 80,000-patient waiting list for transplants would save taxpayers $8 billion.

If donors got something in return for their altruism–$25,000 or $50,000, for instance–the list would go down faster, saving and vastly improving lives, and saving the government money. Many are vehemently opposed to the idea,: it would corrupt the system, they say, and possibly induce poor people to make bad medical choices in return for the cash.

But if Medicare paid $50,000 to nondirected donors (those who aren’t giving to save a particular person, rather to a stranger at the hospital’s discretion)–instead of the $100,000 on average for dialysis–it would save taxpayers $4 billion.

Instapundit

Alex Tabarrok

Mark Kleiman:

However, no one really cares who gets his particular kidney, as long as the person he cares about gets someone’s kidney. Pairwise trading would be simple: I give my kidney to your friend and you give yours to my cousin. When the numbers get larger, so does the complexity of the trade, but the principle is the same; I give a kidney to someone and someone else gives a kidney to the person I care about. The National Kidney Registry is designed to facilitate the process.

Postrel argues – convincingly to me – for a repeal of the law against cash payments to organ donors. Since transplant is actually cheaper than dialysis, and since dialysis is a federal entitlement, there’s no need to make the recipient pay, and therefore no issue about rich people crowding to the head of the line. But that’s the next step. The first step is to expand the utilization of the Kidney Registry; a little bit of money spent on publicity might go a long way.

Surely Postrel is right that the issue suffers from an unjustifiable lack of urgency. Ten peoplea a day are dying unnecessarily. For some reason, people who get outraged about the ethical problems surrounding paid donation don’t seem to regard those needless deaths as an ethical issue calling for urgent action.

UPDATE: John Schwenkler:

Perhaps it’s just me, but I fail to see how this constitutes a serious objection, and notwithstanding the obviously weird and potentially problematic aspects of open markets in human organs I can’t shake the conviction that carefully experimenting – at the state level, please – with the legalization of such markets and the establishment of other financial incentives to encourage organ donation is absolutely the right thing to do. I suspect, though, that I’m solidly in the minority in that conviction, and I’m willing as ever to be reasoned with, so fire away.

Please, though, make your objections more forceful than “Allowing people to do X for money might lead people who need money to do X”.

UPDATE #2: Ilya Somin

Kevin Drum

Megan McArdle

UPDATE #3: Kleiman and Postrel on Bloggingheads

UPDATE #4: John Hudson at The Atlantic with a round-up

Texas Ten Percent To End

Texas changes the “10% rule” for colleges in Texas. The rule guarunteed admission to state-funded schools to those who graduated in the top tenth percentile of their high school class. Wiki page on the old rule.

From back in 2006, Ilya Somin:

The Ten percent plan was endorsed by then-Texas governor George W. Bush and has since been touted by the Bush Administration and others as a superior alternative to traditional affirmative action plans that rely open racial preferences; similar plans were later enacted in California and Florida. As this recent New York Times article points out, the ten percent plan succeeded in returning the percentages of African-American and Hispanic students in Texas state universities to roughly their pre-Hopwood levels – largely because many minority students attend schools where blacks or Hispanics are in the overwhelming majority. Unfortunately, however, the ten percent plan has negative side-effects and perverse incentives that are considerably worse than those of traditional affirmative action, including racial quotas.

Burnt Orange Report:

The University of Texas and fellow proponents of reform have pointed out that the Top Ten Percent Rule has now left UT with much less choice as to who to admit, and the circumstances leave out smart high school students who simply were more dedicated to goals other than their grades.  This might not be a problem, either, if UT has not tried to lower the amount of students on campus.  The only problem is, the Legislature does not want to fund the University of Texas, so it was hard to keep so many students.  Instead, the Lege has decided to work on kinks like this rule to help out.

Unfortunately, as the economy is worse, the current Top Ten Percent Rule will burden UT immensely, and such exclusivity to Texans that would come of it would lessen UT’s reputation nationally.  Attending this school, and seeing the professors that come here, I know this is one of the very top universities in the country, but not every ranking will show you that.  Unfortunately, some students that rank, say, in the 8th percentile of their high school classes while doing little else with their lives come to UT instead of many people in the 12th percentile who are active in their communities.  That is why some Democrats and I are on the side of reform.  We are all for accessibility, but we want our schools to compete on the highest of levels.

Matt Y:

Our general understanding is that the most resources ought to flow to the “best” schools and the “best” schools ought to serve the “best” students who “deserve” to be able to go there. Under this framework, any departure from a strict scheme of “merit” looks suspicious. But another way to look at things would be to say that of course relatively able students from relatively privileged backgrounds deserve a higher education, but a larger amount of resources ought to flow to the students with more problems. After all, it’s the worse-prepared kids—typically from less privileged backgrounds—who have the most in the way of educational needs. The marginal dollar of either the taxpayer or the charitable donor will do a lot more for society when spent on people who aren’t already the best students.

Kevin Drum on the influence of the suburbs on the situation

James Joyner:

Now, the sports recruiting argument is hard to justify, both in terms of the mission of the university and in terms of UT’s obvious success in recruiting for key sports.  But the “10 percent” program is obviously making it nearly impossible to recruit international and even out-of-state students.

This modification strikes the right balance.  It’s targetted only at the single campus that’s been overwhelmed by the rule and still allocates a full three quarters of the slots even there to those graduating in the top ten percent of their Texas high school class.   There are enough slots for the other 12,000-odd students denied admission to the state’s flagship campus at Texas A&M, another nationally ranked school with a fine networking base.

The Spanish Word for “Kabuki” is “Kabuki”

Kevin Drum is already tired of the Sotomayor story, as he states in a post entitled “Supreme Court Kabuki Watch.”

The nomination of Sonia Sotomayor to the Supreme Court is only 12 hours old and I’m already sick of it.  Conservatives, who seem constitutionally unable of viewing any non-white nominee as anything other than identity politics run wild, have already decided she’s just a crass affirmative action hire.  Out of a decade-long appelate court career, the only opinion of hers they seem to have heard of, or care about, is Ricci.  And unlike all the middle class white guys on the court, who are apparently paragons of race-blind rationality, they’re convinced that she’s just naturally going to be incapable of judging any case before her as anything other than a woman and a Hispanic.

James Joyner:

Sotomayor has issued public statements that, while arguably true, are racially inflammatory and that would be much more controversial still if uttered by a white judge nominated for the Supreme Court.  I just happen to agree with Daniel Larison that the solution to this double standard is to quit applying it to whites rather than start applying it to non-whites…

…it’s hard to stop the kabuki once it starts.  Its modern incarnation began with Robert Bork, an obviously brilliant but undeniably controversial and arguably kooky appointment.  It quickly became standardized and applied to all but the most tepid appointments.  It took months to confirm John Roberts and Samuel Alito, despite their stellar qualifications and moderate temperaments.

Joyner mentions Larison. He’s weighed in on Sotomayor and the National Journal piece by Stuart Taylor. The Sotomayor quote in question: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” The entire speech is up at NYT.

Taylor:

So accustomed have we become to identity politics that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.

Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Larison:

What goes unsaid here is that this would be the wrong thing to do, which makes it unclear why Sotomayor should be punished for saying something that does not seem in itself all that objectionable. I agree that a double standard exists, which tells me that we should not apply an unreasonable standard equally, but instead should try to police and stigmatize expression less obsessively. Note also that the supposed “claim of ethnic and gender superiority,” as Taylor puts it, is exceedingly weak, if it is there at all. The first quote can just barely be read this way if you really want to read it that way, and the second does not refer to superiority, but only to difference. Since when have people on the right denied or complained about recognition of the importance of real physiological and cultural differences?

Ed Whelan on the quote.

Roger Clegg

Now, if I were Judge Sotomayor and were asked if being Latina affected the way I did my job, I would answer:  Of course, anyone’s perspectives will be shaped by that person’s experiences.  But what judges—especially appellate judges—do is interpret legal texts and apply them to cases, and our experiences will not play much of a role in performing that task.  And even then it is problematic to suggest that ethnicity and sex can tell us what experiences someone has had and what their effect has been.

So, if someone had asked me to give a speech on “A Latina Judge’s Voice,” I would have tried to make that point early and often.  I would have certainly made it at least once.  But Judge Sotomayor did not make it at all.

Orin Kerr at Volokh

John McCormack at The Weekly Standard

Todd Gaziano

Ilya Somin

Kerry Howley in Reason:

This seems completely innocuous to me; being Hispanic in the United States means exposure to both a dominant and minority culture, and one might expect such exposure to favorably affect the process of deciding difficult, marginal cases. But Ilya characterizes the sentiment as left-wing identity politics. Perhaps he would be more impressed if he considered the statement in context. She [Sotomayor] goes on to say that:

We should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group.

and

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases.

and

No one person, judge or nominee will speak in a female or people of color voice.

I doubt Sotomayor and I agree on much, but this is a good speech.

Rod Dreher has changed his mind about the quote, after reading the entire speech.

Ta-Nehisi Coates

Matt Y has two posts up. One answering Ramesh’s “Harriet Miers” post from yesterday. And the other:

As anyone who knows me can attest, I don’t have what you’d call a strong “Hispanic” identity. Three of my four grandparents are Jews from Eastern Europe. My paternal grandfather, José Yglesias, was a Cuban-American born in Florida. But that puts the family’s actual Hispanic ancestry pretty far back in the past. He grew up in a Spanish-dominant immigrant community, but spoke English fluently. My dad grew up in an English-speaking household and knows some Spanish. I took a semester of Spanish at NYU one summer. And Cuban-American political identity in the United States is heavily oriented around a highly ideological far-right approach to Latin America policy that neither I nor anyone else in my family shares. The Yglesiases emigrated from Cuba before the Revolution, José was initially a Castro supporter, and though he gave that up he and my dad and I all share what you might call anti-anti-Castro views.

But for all that, I have to say that I am really truly deeply and personally pissed off my the tenor of a lot of the commentary on Sonia Sotomayor. The idea that any time a person with a Spanish last name is tapped for a job, his or her entire lifetime of accomplishments is going to be wiped out in a riptide of bitching and moaning about “identity politics” is not a fun concept for me to contemplated. Qualifications like time at Princeton, Yale Law, and on the Circuit Court that work well for guys with Italian names suddenly don’t work if you have a Spanish name. Heaven forbid someone were to decide that there ought to be at least one Hispanic columnist at a major American newspaper.

EARLIER: Justice Sotomayor

Jeffrey Rosen Gets A Post Of His Own

$100 on Sonia Sotomayor?

UPDATE #1: Already updated! Noah Millman on Larison’s post.

UPDATE #2: Two more Matt Y posts, one on the Taylor piece and the second on a Michael Goldfarb post that Jason Zengerle also comments on.

Jennifer Rubin in Commentary:

Wow, isn’t it grand to live in a country where a Latina can be nominated for the highest court and then treated with kid gloves because everyone is scared to treat her like any other nominee? Not so much, actually.

But let’s be honest: there is a political reality to what Taylor says. Senators, like all politicians, are remarkably sensitive to being labeled “racist” — or the less inflammatory version, “insensitive.” (No, it didn’t insulate Clarence Thomas from a political onslaught but the rules are different, we all know, for a conservative nominee.)

So what do conservatives do? Stick to the point. The point is impartiality. The point is whether, as Richard Cohen notes, it’s time to jettison the mindset of racial favoritism. (”Blatant affirmative action always entailed a disturbing and ex post facto changing of the rules — oops, you’re white. Sorry, not what we wanted.”) The point is what Sotomayor thinks her job as a judge is, as distinct from what the job of a legislator or president is.

UPDATE #3: Jonah Goldberg

And on another related subject, Meghashyam Mali in New Majority tells the story of Miguel Estrada, a George W. Bush appointee.

Yet, despite this stellar resume, the same Senators who stand ready to place Sotomayor on the Supreme Court refused to even vote on Estrada’s nomination. Perhaps the new requirement of judicial “empathy” might be the difference? Sotomayor was, after all, born in the Bronx and grew up in a housing project in that borough. After the loss of her father, she was raised by her single mother. Yet, Miguel Estrada may also bring much “empathy” to judicial decision making. Not only is he a Honduran immigrant, but only reached the United States at the age of 17, with little knowledge of the English language. He joined his single mother and in five years had mastered English and navigated a new culture well enough to graduate with distinction from Columbia University. Whatever challenges Sotomayor may have experienced in her life, it is clear that Miguel Estrada has also overcome many struggles.

David Weigel in the Washington Indepedent on Estrada

Guy Benson at NRO on Estrada

UPDATE #4: On Rush Limbaugh’s comments, Steve Benen.

On Stuart Taylor, Adam Sewer at Tapped.

Andrew Sullivan

Reihan Salam

Among conservatives, the emerging consensus is that Sotomayor is an identity-politics pick. It’s certainly true that Obama has gained considerable kudos by naming the first Latina to the Supreme Court. Yet this is a kind of politicking that Republicans have engaged in as well. Antonin Scalia, the most celebrated conservative jurist of our time, sailed through confirmation despite a decidedly controversial reputation as a brilliant intellectual bomb-thrower. His main asset was the fact that he was the first Italian American named to the Supreme Court, a constituency that Democrats were careful not to offend. Though greatly admired by many on the right, George H.W. Bush’s nomination of Clarence Thomas was widely seen as motivated by a desire to replace Thurgood Marshall with another African American. Absent the role of identity politics, it’s not obvious that Thomas would have been Bush’s first choice. Had the brilliant Miguel Estrada been confirmed to the D.C. Circuit Court of Appeals, one can imagine that he’d be sitting on the Supreme Court instead of Samuel Alito. All this is to say that the identity politics charge won’t stick. If anything, attacking Sotomayor as an “affirmative-action hire” will make Republicans look like bigoted bullies to Latino voters.

Michelle Malkin

Republicans are not allowed to mention Sotomayor’s ethnicity lest they be branded bigots, but every Democrat on cable television harped on her multicultural “diversity” and “obstacle”-climbing. President Obama made sure to roll his r’s when noting that her parents came from Puerrrrto Rrrrico. New York Sen. Schumer stated outright: “It’s long overdue that a Latino sit on the United States Supreme Court.” Color-coded tokenism dominated the headlines, with blaring references to Sotomayor as the high court’s potential “first Hispanic.” (Not true.)

UPDATE #5: Ramesh Ponnuru

Nick Baumann in Mother Jones on Dreher

UPDATE #6: Glenn Greenwald

UPDATE #7: Mark Thompson at The League on the Larison post.

Mark Thompson again.

UPDATE #8: More Larison

UPDATE #9: On kabuki and exhaustion, Will Wilkinson:

God, I hate politics. It really does make people stupid, especially those whose tribe is out of power. When Sonia Sotomayor was nominated, I knew nothing relevant about her judicial philosophy or, much more importantly, about her actual record as a judge. You’d think you’d wait to learn something about this before saying something about her, but no. People just proceeded to go crazy on cue.

Tbogg

UPDATE #10: Julian Sanchez