The Passive Aggressive Vices

Supreme-Court-sign

Yesterday the Supreme Court refused to stay the lower court decision requiring recognition of same-sex marriages in Alabama. Commentators have already suggested that this refusal shows that it will decide in favor of the right when it hears and decides the case later this term.

In my view, the more interesting lens through which to view the order is the Supreme Court’s strategic manipulation of judicial process to give momentum to same-sex marriage. This momentum helps make its ultimate decision seem like a fait accompli and thus less likely to cause political backlash.  The first step in this strategy was Justice Kennedy’s opinion in United States v. Windsor  that had a strategic ambiguity as a matter of doctrine: whether its holding on the constitutionality of the Defense of Marriage Act (DOMA) was based on federalism or substantive rights was unclear. But the opinion did convey the clear implication that the decision to have a single federal rule on the issue was driven by animus against homosexuals. These statements made lower court judges fearful of seeming like bigots, if they rule against constitutional challenges to state laws.

When these courts ruled in favor of the challenges, after a time the Court began to refuse to stay their decisions or accept petitions from the states to overturn them.  These lower court decisions then created more facts on the ground and yet more momentum for a Supreme Court decision in favor of same sex marriage on the merits.

Read More

Christian Anti-Semitism and the Rise of the Modern State

icon

Over 10 million Google results confirm “Christian Anti-Semitism” as a widespread concern, a historical and continuing moral flaw embedded in Western civilization. The Washington Post and the Wall Street Journal recently led their weekend book sections with reviews on the Holocaust and lingering Jewish stereotyping today.

It takes one cool academic to sort through the morass of relationships between Christians and Jews over time. Sara Lipton, historian at the State University of New York at Stony Brook, might just be up to the job. Her book Dark Mirror: The Medieval Origins of Anti-Jewish Iconography looks at all surviving pictorial representations of Jews across European history to evaluate at least elite views of this relationship.

Read More

Slippery Words and Evil Deeds

HighNoon2

No word is so misused as the word “cowardly.” Terrorist attacks are often said to be cowardly, when in fact the terrorists who carry them out for the worst of ends are sometimes extremely brave. They risk their lives and even intentionally lose them by their acts. At the very least they risk long and condign legal punishment and public opprobrium. I doubt if one person in a thousand can claim to have acted in his life as courageously as most terrorists.

The reason we call terrorists cowardly is that bravery is generally considered a virtue, and we are reluctant to accord people whom we abhor any virtues at all. We want our enemies to be endowed only with detestable qualities, and we are only too aware that courage is the virtue without which other virtues cannot be exercised. If someone were to say “these brave terrorist attacks,” we should suspect him of sympathizing with them.

Read More

Judges are Less Extreme than Lawyers (and That’s a Good Thing)

 

wooden gavel and books

A new study shows that American judges, particularly federal judges, are more conservative than the average lawyer. It contains a lot of interesting information, but its normative conclusion–that this disparity shows “politicization” in the judiciary– is wrong-headed.  Indeed, that claim likely shows more about the politicization of the academia than anything about the judiciary.

The study seems well designed. It uses campaign contributions as a proxy for the political affiliations of lawyers. In this respect, as the authors recognize, it follows a 2004 article of mine, which showed that law faculty at elite law schools contributed to Democrats over Republicans by a margin of about 11-2. And this new study reveals interesting information, as  most easily visualized in this hyperlinked chart. Lawyers are by and large liberal. As one would expect, legal academics and public defenders are more liberal than partners at top law firms, but these partners are liberal as well.  Lawyers from T-14 law schools are more liberal than those from lower ranked schools.  Female lawyers are more liberal than male lawyers. Federal judges are less liberal than lawyers as a whole and federal appellate judges break slightly to the right.

So far, so good. But then the study makes the claim that this difference represents the “politicization” of the judiciary.

Read More

Corruption: The Week in Review

StandardPoors

This past week brought more news of wholesale public corruption. Jaw-dropping except that it’s becoming routine, and we are becoming inured.

Standard & Poor’s paid a $1.5 billion settlement ($125 to Calpers, with the remainder split between the feds and the states) over its alleged manipulation of ratings of mortgage-backed securities back in 2004-2007. If the allegations are true, $1.5 billion is a pittance to pay for the wreckage wrought in the mortgage meltdown; once again, a company got off cheap because it’s too big to jail.

Read More

Taking Scott Walker to School on Higher Education

What to think of Scott Walker? I’m not necessarily against the Governor’s proposed budget cuts for Wisconsin’s higher education system. Certainly it is good to hold colleges and universities more accountable than they currently are, so they’ll be more effective. And yes, there surely are faculty everywhere, and probably in Wisconsin, who could be “teaching more classes and doing more work.” And it’s true that the tradition of “shared governance” in American higher education has impeded administrations “from directly running things.” (See Joe Knippenberg’s excellent recent posts about this.) Administrations increasingly think of the out-of-touch faculty as a force that has…

Read More

We the People of the United States: The Madisonian View

In my last post, I argued that “We the People of the United States” is best understood as referring to a single people consisting of separate states.  It is not a single people in a single undifferentiated nation like France, but instead is a country that consists of individual states that are united together.

This interpretation of the preamble views it as adopting an intermediate view between the nationalist view of a single people in an undifferentiated nation and the states rights view of multiple peoples in multiple states.

If the preamble adopts an intermediate view, does it fit with the remainder of the Constitution and what specifically is that view?  The intermediate view of the preamble accords with the analysis of the Constitution adopted by James Madison in Federalist 39.  In that number, Madison was responding to critics who argued that the Constitution was a national document and should have been a federal one.  Madison wrote:

Read More

Life and Literature, American Style

imagination

In her 2003 book, Reading Lolita in Tehran, Azar Nafisi demonstrated how the written word trumps tyranny. Nafisi interwove sometimes harrowing reminiscences of the Islamic Republic of Iran before and after the 1979 revolution with discussions of Vladimir Nabokov’s Lolita, Henry James’s Daisy Miller, F. Scott Fitzgerald’s The Great Gatsby, and Jane Austen’s Pride and Prejudice. These and many other works were mined for their poetry of expression and their characters’ defiance.

Read More

Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett

Washington_Constitutional_Convention_1787

Many thanks to Randy Barnett for his very thoughtful response to my post “The Book of Judges,” which criticizes a natural rights constitutional jurisprudence. Barnett says I was going after a straw man—that real defenders of “judicial engagement” are not calling for a philosopher’s debate on the federal bench that would produce a settled list of the type and content of natural rights for federal judges to enforce. He isn’t about defining and specifying natural rights in judicial decisions. Instead, he notes that they exist, and they are protected in the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment.

Read More

The Mismeasure of Our Economy

GDPIt is hard to believe that a book about the Gross Domestic Product could be interesting, important and occasionally amusing, but Diane Coyle has succeeded in all of this with GDP: A Brief but Affectionate History. It has two very salient takeaways for politics, one practical and one philosophical. First, GDP has become less and less good at capturing positive changes in human welfare. As a result, the lower growth in GDP in the last few decades is less troubling than it is often made out to be.  Second, GDP is a measurement of the government that has inherent biases that one might expect from a metric devised by the government.  Classical liberals should thus be careful to separate their respect for market freedom from any worship at the altar of GDP.

Coyle shows that GDP was designed for a  time when most of the economy consisted of the production of materials, not intellectual property or services. Indeed, because it was formulated at the time that government came to seen as responsible for the economy, its underlying image is that of a machine.  Put so much capital and labor into the economy and get out such much output of goods.

But of course today much of the economy does not lie in the production of material goods.

Read More