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October 20, 2005
An Arguement Against Same Sex Marriage...
There is a truely facinating set of posts over at the Volokh Conspiracy by Maggie Gallagher. Ms. Gallagher makes a complex arguement so let me try and distill it (somewhat)
- The big picture: we are in the middle of a huge and only partly acknowledged crisis around marriage and family. Every single society that that we think of as, in other ways, the very best for human flourishing (stable, democratic, market economies with respect for political and creative freedom) is experiencing grave dysfunctions and disruption in the family--and precisely around this whole business of generativity.
That, is the family crisis we face is not a crisis of intimacy, or sexual satisfaction, or emotionally satisfying relations, which our family system. taken altogether, may be better at than any in human history (I'm not sure how one would measure): it is about whether under modern conditions in modern societies, the man and woman who make the baby are going to stick around, love each other, and the baby too.
The conditions that create the creative class, and the conditions that create people, may be diverging.
This crisis is playing out in somewhat different ways in different regions (Italy has extremely low birth rates and much family cohesion, while Sweden has moderately low fertility and high rates of illegitimacy, for example. U.S. has relatively high birth rates, but extremely high rates of solo mothering and divorce).
But in every case technologically innovative, wealthy, western, democratic, market societies are no longer routinely doing what the family did really quite well for most of human history: reliably producing the next generation and reliably connecting most of those children to their father.
Conservatives like to blame welfare alone, or the Sixties and bad moral values. I think this seriously misunderestimates the nature and depth of our marriage and family crisis, which is institutional and structural in nature.
For most of human history children were assets. We depended on family members to produce most of the goods we consumed, and to provide most social insurance: someone to nurse us when we are sick, feed us when we cannot work, shelter and care for us in old age. Under these condition the necessity of procreation and family loyalty were obvious, urgent personal moral and social imperatives. People are always better at duties when it is apparent that you do well, by doing good.
Nowadays, government and the market have taken over large parts of these social functions. The main reason for this is: government and the market do them much, much better. (If you doubt this, imagine have to perform your current job functions while depending only on close kin for colleagues, bosses and employees.). The genius of the market is the way that it allows biological strangers to combine their productive energies.
We can quibble about specific government programs, but basically welfare, unemployment insurance and social security, Medicare and Medicaid aren’t going away in a democracy because people like them. People prefer to depend on either the government, or a pension fund, to becoming dependents on their children in old age.
So why don’t we just let marriage go, stop worrying about what people do or don’t do in the bedroom? Because there is this one critical, literally irreplaceable social function that marriage does, and only marriage does: making babies and connecting fathers to the babies they make.
Now in the middle of this broad, deep crisis, which I truly think does threaten American civilization in the medium term, if its not confronted, what’s the one legal change powerful social, legal and cognitive elites support?
Why, making marriage a union of any two persons, clearly unrelated to procreation and paternity!
Ok. This is, I think, an essentially correct picture of the situation.
Second point: Research clearly demonstrates that family structure matters for children, and the family structure that helps the most is a family headed by two biological parents in a low-conflict marriage.
Third point:
- extending marriage to include same-sex couples would not just give rights to a small subset of the population, but would radically transform what marriage is. So long as only opposite-sex couples can marry, the thinking goes, marriage is linked to procreation; if same-sex couples can marry, too, then marriage is transformed into something else entirely. Adding same-sex marriage would ruin the old institution and create a new one, and the new institution would not longer retain a focus on having and raising children. Viewed in that light, same sex marriage is a threat to society: by redefining the institution, it will kill off its most important feature. [This analysis is by Orin Kerr]
4th Point: Marriage is not innate.
- I don’t think marriage is a universal human institution because marriage is innate. The forms of marriage differ so wildly, cultural variations are huge. You only have to go into the inner cities to see that marriage is not innate. It can disappear.
Yes, there are things in human nature that help sustain it (e.g. a pair bonding preference; sexual jealousy) but others that undermine it (e.g. men’s subjection for much of their life to powerful, indiscriminate and rather impersonal lusts).
But fundamentally marriage is sustained by culture, not biology. Why then is it universal? Because it is the answer to an urgent problem that is biological and innate: sex makes babies. Nature alone won’t connect fathers to children. Children need a society in which both men and women are committed to their care.
When anthropologists in the thirties went out into the vanishing world of human diversity, the reason they found marriage everywhere is that societies that do not hang onto the marriage idea do not survive very long.
But marriage in a particular society is not inevitable; death by sexual disorganization is always an option. Happens quite a bit actually. cf. Roman empire.
So in one sense I’m not worried about marriage. In spite of the progressive mythology that the drive to gay marriage is the irresistible wave of the future, I’m quite confident that 200 years from now, we’re not going to be living in a world where gay marriage is the norm.
I’m just not sure of the place of Western civilization in that future world.
So, here arguement is: marriage can break down and when it does, it pulls the society down with it. Clearly we have a problem in the Western world today with marriage and fertility. Is the solution to weaken the idea of marriage?
Posted by rakhier at 09:51 AM | Comments (0)
October 19, 2005
Turkey - becoming more Islamic?
A disturbing essay about some recent events in Turkey suggest that the current party in power (AKP) is not as committed to the rule of law as one would hope.
Istanbul — Back in June, Turks did a double-take when Prime Minister Recep Tayyip Erdogan began his monthly television address. Rather than speak before the traditional backdrop of the Turkish flag and a portrait of Mustafa Kemal Ataturk, founder of the republic, Erdogan spoke before photos of Ataturk’s mausoleum and a mosque. The message, Turks said, was clear. Ataturk was dead, but Islam lives on.
In November 2002, Erdogan’s ruling Justice and Development Party [AKP] swept to power with just over a third of votes cast but took two thirds of the seats in parliament because only one other party surpassed the mandatory ten-percent threshold to enter the national assembly.
While Erdogan describes the AKP as a mainstream, inclusive party, a bridge between East and West, his actions suggest otherwise. While Alevis — a Sufi-influenced Islamic sect — number about 15 million in Turkey, the mainstream daily Milliyet surveyed more than 300 AKP parliamentarians and found not a single Alevi deputy. Traditionally, acceptance of diverse interpretations of Islamic jurisprudence is a prime reflection of tolerance. Despite the AKP’s rhetoric, the Alevi barometer suggests a gathering storm.
Worrying signs abound in Istanbul, where East and West have long blended in harmony. While the Saudi-style (as opposed to Turkish-style) veil was once limited to outlining districts like Sultanbeyli, it is becoming increasingly common in the center of Istanbul. While secular society accepts the veil in the name of diversity, such tolerance is one-way. Turkish women say residents of more conservative districts make them feel unwelcome if they do not likewise adopt conservative Arab styles of dress.
In the past year, the AKP has begun to translate its near monopoly over most major municipalities and national government into action. Rule-of-law has been a casualty. On January 7, 2005, bulldozers and dozens of policemen showed up outside Chocolate, a trendy café adjacent to the Besiktas soccer stadium. After a Besiktas match, men and women, sons and daughters, would cross the street and relax, have a coffee or beer, and watch the boats go by on the Bosphorous. On that rainy day, the police arrived with bulldozers and told the shocked staff the municipality — run by AKP — had ordered the restaurant destroyed. Television cameras and the property owners videotaped the subsequent confrontation. The landlord’s lawyer demanded to know on what grounds the municipality would demolish the restaurant. He produced the requisite permits and demanded to see a court order. “I don’t know anything about a court order. And I don’t want to see your permits,” the AKP official said. “I have a job to do.” Minutes later, bulldozers drove through the glass atriums of the restaurant in front of shocked onlookers. The AKP did not even switch off the restaurant’s gas before the demolition. Vendetta trumped safety. Three other restaurants fell victim to the AKP’s bulldozers on the same day. The video shows waiters and cooks weeping. No restaurants meant no jobs in Turkey’s already tight job market. Had they worked at a more Islamic establishment, they need not have worried.
The January demolitions were not alone. On October 14, 2005, AKP officials demolished part of Reina, a restaurant and nightclub complex on the Bosphorous popular among affluent and Western-oriented elites. Again, the government operated without court order. The AKP-led municipality has especially targeted Istanbul districts led by other political parties. Demolitions have occurred in SiSli, Bak?rkoy, and Kadikoy.
Large firms deemed un-Islamic or pro-Western by the ruling party’s advisors have also been subject to arbitrary taxation and penalty unsupported by any financial regulation or audit. The government has targeted beer manufacturer Efes and the local Coca-Cola bottler, while promoting products manufactured by companies deemed Islamist. Turkish Airlines once served Coca-Cola on its flights. According to flight attendants, at the request of the government, it increasingly substitutes Cola Turka, a brand owned by Ulker, a confectionary company long associated with Islamist causes.
While businessmen and U.S.-Turkish trade associations describe Turkey as a prime investment opportunity, behind the scenes, long-time friends of Turkey question where Erdogan is leading Turkey. Ideology has trumped rule of law. Political arrogance is extreme. The party uses its office to shut down dissent. When Show TV broadcast this month a political advertisement for an opposition party, government officials demanded the firing of the advertising manager. The AKP’s mouthpiece, the daily Yeni Safak repeatedly brands as “enemies of Islam” or “coup-advocates” anyone who questions abuse of power. While both U.S. and Turkish diplomats say relations are back on track after disputes over Operation Iraqi Freedom, in truth there has seldom been so little confidence in Washington about a Turkish government.
Turkey has always been not only an important U.S. ally, but also a regional model of tolerance. The combination of rule of law and diversity of belief have been the bedrock of the Turkish state. Anyone enjoys full rights as a Turkish citizen so long as they uphold the law. Discrimination has been rare. The Jewish and Alevi communities have thrived. The second president of the Turkish republic was Kurdish. Istanbul is home to peoples who trace their roots across Europe, Asia, and North Africa. It is ironic, then, that even as Turkey rests on the threshold of European Union membership, the AKP government is undercutting the tolerance and commitment to the rule of law that has so long made Turkey a regional model.
Posted by rakhier at 08:11 PM | Comments (0)
Shanghai - The New New York...
Shanghai is well on its way to becoming the most important city in the world. Certainly it ranks in the top 10 alongside London, Tokyo, Paris, Moscow, New Delhi, etc.
This article from the New York Times describes the amazing transformation occuring in China's main city.
SHANGHAI, Oct. 16 - Move over, New York. This year alone, Shanghai will complete towers with more space for living and working than there is in all the office buildings in New York City.
That is in a city that already has 4,000 skyscrapers, almost double the number in New York. And there are designs to build 1,000 more by the end of this decade.
An apartment complex going up in Shanghai. With mortgage rates around 5 percent, energetic foreign investment, rising income and official approval, the nation is making up for years of inattention to construction.
China's real estate market is so hot that miniature cities are being created with artificial lakes, and the country's nouveau riche suddenly seem eager to put down as much as $5.3 million for a luxury apartment in skyscrapers with names like the Skyline Mansion.
For decades after the Communists took over in 1949, there was relatively little housing construction or office building under central planning. But since the early 1990's, Shanghai and other cities have been making up for lost time. And this year the building boom is at a frenzy, with the nation expected to lay down the finishing blocks on 4.7 billion square feet or more of construction, a record, up from 2 billion in 1998.
"There's no doubt what is happening in parts of China is on a scale we've never seen before," said Richard Burdett, professor of architecture and urbanism at the London School of Economics. "But more importantly, it's the fastest pace of development in the past 50 or 100 years."
In Beijing, the remains of an old Taoist temple now stand in the middle of the parking lot of a new mall more than twice the size of the Mall of America. Big developers are acquiring huge swaths of prime land in the largest cities to build huge residential campuses with kitschy names like Cloudland Water Manor, Eastern Venice, Palais de Fortune and Skyway Oasis Garden.
Such developments dwarf anything being built today in the West. "I'm working on a master plan for a 46-kilometer riverfront area," said Robert Egan, who runs a landscape architecture firm in Beijing called PlaceMakers. "Scale like that doesn't happen in the U.S."
It is not uncommon to see a residential development with 10, 20 or even 30 identical high-rise apartment buildings clustered around sculpted green spaces and artificial waterways.
For increasingly wealthy Chinese, the American dream of a home and a yard has become more like a French villa with a community lake, a town square, a post office, a hospital, a cinema, a church, a hotel, a shopping mall and, of course, a power plant.
A top-of-the-line unit at one development project has a 25-acre palm-shaped artificial lake, which brochures say will feature docks with berths for private yachts.
Prices are soaring. Luxury apartments in Shanghai and Beijing with names like Home of the Tycoons now sell for prices comparable to some high-end properties in New York.
Rising prices have created a circus-like atmosphere in parts of China. Real estate fairs are mobbed, land speculation is rampant and some poor farmers dream about converting their wheat fields into the next Beverly Hills.
Indeed, prices have risen so fast over the last few years and the pace of building has been so furious here and in other large cities that the government and some leading economists have been warning about a huge property bubble in China.
The building boom is a principal reason that China is searching around the world for energy and natural resources: it needs the raw material to build new cities, and the energy to power them. That is helping drive up world commodity prices and threatening global environmental damage .
China's heavy reliance on coal to power its overcharged economy has already made it the world's second-largest producer of greenhouse gases, after the United States. And the World Health Organization says China has 7 of the world's 10 most-polluted cities.
The construction boom is also beginning to wipe out what little is left of the old China, alarming historic preservationists. Indeed, as the world's most-populous country, at 1.3 billion, rapidly modernizes and urbanizes, producing millions of new homeowners, its social and economic fabric is being fundamentally altered.
China's housing rush is being fueled by mortgage rates around 5 percent and huge inflows of foreign capital. But the boom is also driven by landmark government housing reforms from the 1990's that for the first time since the Communist revolution of the late 1940's allowed Chinese to acquire their own homes rather than live in government housing.
As a result of this privatization, thousands of new residential projects are rising in the bustling coastal provinces. And sprawling satellite towns and luxury villa developments are sprouting in what was once farmland.
This may just a suggestion of what is ahead. China expects 75 million more farmers to move to cities over the next five years, amounting to one of the biggest mass migrations in history, according to CLSA, a brokerage house specializing in the Asia-Pacific region.
"China's demand for housing is just getting going," says Andy Rothman, a CLSA analyst in Shanghai.
The boom is most evident in the largest cities like Beijing, which will be host for the 2008 Olympics and is now draped in construction projects that are straining water and power supplies. Every big city seems to have plans for a central business district. And every big housing project seems to have a Phase 1, 2 and 3.
"Everyone wants to build a Manhattan," said Jun Xia, a principal in the Shanghai office of Gensler, a global architecture and design firm. "In China, I say 'smaller, smaller' and the clients say 'wider, wider.' "
Some of the greatest financial rewards have been going to the country's new real estate tycoons - people like Pan Shiyi and Zhang Xin in Beijing, and Wang Shi in Shenzhen. A property tycoon in Tianjin, Sun Hongbin, once served a two-year prison term for embezzlement but now graces the cover of magazines like China Entrepreneur.
It is not surprising that in a country where 170 metropolitan areas have more than a million people, according to government figures, everyone seems to want to be a developer. State-owned oil and steel giants, automobile companies, shipbuilders and even Communist Party newspapers are creating real estate subsidiaries.
The developer of the Fortune Residence in Shanghai, a high-end property, is a subsidiary of People's Daily, the leading newspaper of the Communist Party. And China Central Place in Beijing is being developed by Guohua Electric, a power company that for 50 years has occupied land in an area the city recently designated as its new central business district.
Guohua's real estate arm is now building a $1.2 billion complex that consists of three high-rise office buildings, a 1.8-million-square-foot shopping mall, 1,300 luxury apartments, two five-star hotels and a man-made lake and river walk.
Foreigners are also scrambling to enter the Chinese real estate market. Goldman Sachs and Merrill Lynch have invested in property. And Morgan Stanley has acquired about $700 million worth of commercial real estate this year in Shanghai. The city says it now has more than 4,000 skyscrapers - buildings 18 stories or higher - far more than New York, according to Emporis, a global real estate research group based in Germany.
Also considering investments here are Simon Property, one of the world's biggest retail developers; Triple Five Group, developer of the Mall of America; and a Japanese real estate tycoon, Minoru Mori, who is spending nearly $1 billion to build one of the world's tallest buildings - the 1,614-foot Shanghai World Financial Center in the Pudong district.
There is, of course, a dark side to this real estate boom. In the scramble to reallocate land and create boomtowns, China has spent much of the last decade demolishing millions of old homes and buildings and relocating tens of millions of people, many against their will.
And there are broader risks. The Chinese government is concerned that soaring prices might overheat the nation's economy and even threaten social stability. It moved this year to impose new taxes and other tough administrative measures aimed at cooling off the property sector.
Housing sales have slowed since June. But in recent months, real estate construction has picked up steam again, according to UBS. And that growth is bolstering new demand for energy and raw material. China is already the world's largest producer and consumer of steel, cement and coal.
In his report, "China Eats the World," Mr. Rothman of CLSA predicted that in coming years, "the Chinese dragon will stay very, very hungry."
Many Chinese are acting as if the housing boom will not fizzle any time soon. The economy is soaring, income is rising, Ikeas and Wal-Marts are popping up in second-tier cities and tens of millions of people are giddy about the prospects of owning their own homes, driving their own cars and adopting a more modern lifestyle.
"You know for a half-century, nothing was built in China," Mr. Jun of Gensler said. "Now there's a lot of excitement and demand for new houses, and excitement about a new way to live."
Posted by rakhier at 08:05 PM | Comments (0)
October 12, 2005
Why American Law Is Different from European Law...
American law is quite different from European law, despite common origins. Here is a post by Jane Galt where she explains some interesting origin features...
- We think of ourselves as "sharing" a legal tradition with Britain, but of course most of our "modern" laws--the ones that deal with corporations, bankruptcy, and so forth--were pretty much entirely established after we split. Perhaps more importantly, we're pretty much the only country whose basic laws about property, lawsuits, etc. were written in the nineteenth by officials for the benefit of the Great Unwashed, instead of the propertied elite.
As I discovered when I wrote about bankruptcy, this really, really matters. Comparing the American bankruptcy code to the various, grossly more restrictive European ones, it might seem reasonable to conclude that the American bankruptcy code is so lax because our social protections are so weak; thus we need easy bankruptcy to compensate for the slings and arrows of outrageous fortune. Indeed, several of the modern bankruptcy experts I consulted advanced exactly that theory. A bankruptcy historian set me straight. American bankruptcy is looser than European bankruptcy because in the 19th century, when the code was written, we had a large class of property owners with heavy debt and marginal incomes: the farmers and ranchers cultivating the land that had recently been opened in the west. They fought for easy bankruptcy against the "money interests" of the East coast, and thanks to the fact that each low-population state got the same two senators as New York and Massachussetts, they got it. Liberals who like to rant about the unfairness of the senatorial system, take note that it has worked to your benefit in the past.
Similarly, my understanding is that Americans have from the very beginning been more litigious than Europe--again, at least in part because we had a large number of small property owners who liked to sue each other over things like property lines. They were helped in this by the fact that the legal profession had no barriers to entry; you could become a lawyer by studying under the supervision of an experienced lawyer. This is how Abe Lincoln got his start.
The inevitable result was that our laws were written to benefit the su-er, not the su-ee; "loser pays" statutes are only one example. My understanding is that American judges are far more deferential to juries than their counterparts in other British common law countries, and on the continent, were laws are largely based on the Napoleonic code, judges are even more autocratic.
One peculiar feature of our laws is particularly important: most lawsuits were initiated under state law, not Federal. That gave legislatures particular incentive to give plaintiffs a free hand with lawsuits against corporations, because while the plaintiffs would certainly be local folks, the corporations often wouldn't.
There could be all sorts of legal differences I'm not familiar with. For example: do the regulatory regimes in Europe give corporations a presumption of innocence when their products are cleared? Ours doesn't. The fact that health care is paid for by the government in Europe undoubtedly has much to do with the lower incidence of lawsuits; even when doctors are independant contractors, the fact htat the government pays their fees gives lawmakers a pretty stark incentive to keep the cost of lawsuits down. I remember reading about someone in Britain who got the wrong limb amputated by the NHS and was rewarded with, IIRC, $30K for their trouble; what American could be fobbed off with so paltry a figure? Also, I think that the class action, which gives attorneys incentive to press claims which are too trivial to litigate individually, is unique to America. As, I believe, is the contingency fee, which certainly allows a lot of lawsuits that wouldn't otherwise be brought.
Posted by rakhier at 09:22 AM | Comments (0)
October 04, 2005
The Failed States Index...
Cicero writes in Winds of Change.net about the new Failed States index. He talks about what he sees as the three world views which are in a struggle for dominance today.
- The First Weltanschauung is liberalization. The West -- both America and Europe, despite their mutual aversion -- carry the mantle of the Enlightenment, working to maintain and promote free democratic societies...
The Second Weltanschauung is prosperous autocracy. China actively promotes that democracy does not necessarily equate to freedom. The Middle Kingdom's economic buoyancy is the basis for the case that autocracy alone can create prosperity...
The Third Weltanschauung is politicized religion, revitalized in the modern era. But the most lethal, insidious and overbearing incarnation of the Third Weltanschauung is global Islamofascism...
As he points out, to people living in a failed (or failing) state, which of these three world views one chooses is not very important. Any government is better than anarchy. His essay is worth reading.
I myself have been trying to come up with a conceptual framework to place China's government. Certainly it is not Communist in any meaningful sense. One person called China's government "well developed Fascism". Certainly there are parallels between the degree of state control found in China and Singapor and Malaysia (and also, clearly, with Vietnam). But does four countries really constitute a world view with universalist ideas?
Historically, China has always gone its own way, caring not one whit for how the rest of the world thought or behaved. China also has never tried to export its way of life to other countries. The two countries most similar to China are Vietnam and Korea, both formerly part of the glorious Chinese state. I don't think China is making a case that its system is reasonable for other (read non-Chinese) people, while they are saying their system works for them. This is a weakness, in my opinion vis a vis the other two world views.
Posted by rakhier at 12:02 PM | Comments (0)
Miers and the Federalist Papers...
It turns out that the selection of Miers is exactly what the Constitution was designed to AVOID and is explained in the Federalist Paper number 76 (writen by Hamilton). This is what Randy Barnett writes in Wall Street Journal. The whole essay is in the extended section. Its worth reading. I totally agree with Mr Barnett. Ms. Miers is a bad choice for the Supreme Court. If the Senate does NOT reject Ms. Miers then the Senate will have failed to do what it is supposed to do: prevent unqualified people from entering America's highest court.
Cronyism
Alexander Hamilton wouldn't approve of Justice Harriet Miers.
BY RANDY E. BARNETT
Tuesday, October 4, 2005 12:01 a.m. EDT
During the Clinton impeachment imbroglio, Alexander Hamilton's definition of "impeachable offense" from Federalist No. 65 was plastered from one end of the media to the other. With the nomination of Harriet Miers to the Supreme Court, get ready for another passage from Hamilton to get similar play--this one from Federalist No. 76:
- "To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."
Harriet Miers is not just the close confidante of the president in her capacity as his staff secretary and then as White House counsel. She also was George W. Bush's personal lawyer. Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton's description any more closely. Imagine the reaction of Republicans if President Clinton had nominated Deputy White House Counsel Cheryl Mills, who had ably represented him during his impeachment proceedings, to the Supreme Court. How about Bernie Nussbaum?
As the quote from Hamilton suggests, the core purpose of Senate confirmation of presidential nominees is to screen out the appointment of "cronies," which Merriam-Webster defines as "a close friend especially of long standing." Cronyism is bad not only because it leads to less qualified judges, but also because we want a judiciary with independence from the executive branch. A longtime friend of the president who has served as his close personal and political adviser and confidante, no matter how fine a lawyer, can hardly be expected to be sufficiently independent--especially during the remaining term of her former boss.
By characterizing this appointment as cronyism, I mean to cast no aspersions on Ms. Miers. I imagine she is an intelligent and able lawyer. To hold down the spot of White House counsel she must be that and more. She must also be personally loyal to the president and an effective bureaucratic infighter, two attributes that are not on the top of the list of qualifications for the Supreme Court.
To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. Nothing in Harriet Miers's professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people. It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement.
Even a star quarterback with years of high school and college football under his belt takes years of experience and hard knocks to develop the knowledge and instincts needed to survive in the NFL. The Supreme Court is the big league of the legal profession, and Ms. Miers has never even played the judicial equivalent of high school ball, much less won a Heisman Trophy.
Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.
Given her lack of experience, does anyone doubt that Ms. Miers's only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser? Of course, Hamilton also thought that the existence of Senate confirmation would deter the nomination of cronies:
- "The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other."
While the Senate once successfully resisted President Lyndon Johnson's attempt to nominate his own highly able crony, Abe Fortas, to be chief justice, perhaps the performance of senators during the Roberts nomination reduced the deterrent effect of "advise and consent." Judiciary Committee Democrats spent half their time making speeches rather than questioning. What questions they did ask were not carefully designed to ferret out the nominee's judicial philosophy, favoring instead to inquire about his feelings, or whether he would stand up for the "little guy," or bemoaning his refusal to telegraph how he would rule on particular cases likely to come before the court.
For their part, Senate Republicans were content to parrot the empty line that a judge "should follow the law and not legislate from the bench." Sit tight and vote seemed to be their approach. By refusing to demand a nominee with a judicial philosophy of adherence to the text of the Constitution--the whole text, including the parts that limit federal and state powers--Republicans did nothing to induce the White House to send up a nominee who was at least as committed to limits on federal power as Chief Justice William Rehnquist and Justice Sandra Day O'Connor had been.
Times like these demand a justice with a firm grasp on constitutional text, history and principles. Someone who can resist the severe pressure brought by Congress, by the executive branch, by state and local governments, and also by fellow justices to exceed the Constitution's limits on government power. Does anything in her record suggest that Harriet Miers will be that sort of justice? We do not need to wait for Senate hearings to answer this question. What hearings will tell us, however, is whether the Senate, too, will succumb, in Hamilton's words, to "a spirit of favoritism."
Mr. Barnett is the Austin B. Fletcher Professor of Law at Boston University and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2004).
Posted by rakhier at 11:34 AM | Comments (0)
October 03, 2005
Dalrymple talks about his ideas...
Dr. Theodore Dalrymple is one of the greatest living philosophers, a man who has lived in the real world, unlike so many academics who only know a tiny slice of the world as seen from Harvard...
I've been reading his essays in City Journal for some years now and he has collected many of them into a book: Our Culture, What's Left of It
In this feature, he talks with Mr. Glazov of Frontpage Magazine.
- Q: I guess we can begin with your observations on the root causes of many of our social ills. You discuss how in your practise as a doctor you have confronted a growing pathology in our culture within which there is an assumption that “one’s state of mind, or one’s mood, is or should be independent of the way one lives one’s life.” You connect this to people confusing unhappiness with depression. Can you talk a bit about this?
Dalrymple: I have noticed the disappearance of the word 'unhappy' from common usage, and its replacement by the word 'depressed.' While unhappiness is a state of mind that is clearly the result of the circumstances of one's life, whether self-inflicted or inflicted by circumstances beyond one's control, or a mixture of both, depression is an illness that is the doctor's responsibility to cure. This is so, however one happens to be leading one's life. And the doctor, enjoined to pass no judgement that could be interpreted as moral on his patients, has no option but to play along with this deception. The result is the gross over-prescription of medication, without any reduction in unhappiness.
Q: Your observation about humans’ thrill for danger and how this interrelates with humans’ pattern of self destruction and the voluntary choosing of misery is very profound. Could you share your thoughts with us about this?
Dalrymple: It is clear to me that people often want incompatible things. They want danger and excitement on the one hand, and safety and security on the other, and often simultaneously. Contradictory desires mean that life can never be wholly satisfying or without frustration.
I think it was Dostoyevsky who said that, even if the government were 100 per cent benevolent and arranged everything for our own good, as judged by rational criteria, we should still want to exercise our freedom by going against its dispensations.
One reason for the epidemic of self-destructiveness that has struck British, if not the whole of Western, society, is the avoidance of boredom. For people who have no transcendent purpose to their lives and cannot invent one through contributing to a cultural tradition (for example), in other words who have no religious belief and no intellectual interests to stimulate them, self-destruction and the creation of crises in their life is one way of warding off meaninglessness. I have noticed, for example, that women who frequent bad men - that is to say men who are obviously unreliable, drunken, drug-addicted, criminal, or violent, or all of them together, have often had experience of decent men who treat them well, with respect, and so forth: they are the ones with whom their relationships lasted the shortest time, because they were bored by decency. Without religion or culture (and here I mean high, or high-ish, culture) evil is very attractive. It is not boring.
Q: You make the shrewd observation of how political correctness engenders evil because of “the violence that it does to people’s souls by forcing them to say or imply what they do not believe, but must not question.” Can you talk about this a bit?
Dalrymple: Political correctness is communist propaganda writ small. In my study of communist societies, I came to the conclusion that the purpose of communist propaganda was not to persuade or convince, nor to inform, but to humiliate; and therefore, the less it corresponded to reality the better. When people are forced to remain silent when they are being told the most obvious lies, or even worse when they are forced to repeat the lies themselves, they lose once and for all their sense of probity. To assent to obvious lies is to co-operate with evil, and in some small way to become evil oneself. One's standing to resist anything is thus eroded, and even destroyed. A society of emasculated liars is easy to control. I think if you examine political correctness, it has the same effect and is intended to.
Read it all.
Posted by rakhier at 01:47 PM | Comments (0)
Worst Supreme Court Nominee in my Life...
The current president's nominee to replace Justice O'Conner is Harriet Miers. Ms. Miers has been Mr. Bush's personal lawyer for at least 10 years.
This is an aweful choice for a Supreme Court Justice, easily the worst such choice since his father picked Clarence Thomas. Ms. Miers has never been a judge nor has she even argued a case before the Supreme Court. She has no major professional qualifications, no great background, no books, she has nothing to justify such a high office. Her close personal ties to the president, while nice for Mr. Bush, are not a desirable feature for a candidate for the Supreme Court.
I agree with Tom Goldstein of SCOTUSblog when he says
- The themes of the opposition will be cronyism and inexperience. Democratic questioning at the hearings will be an onslaught of questions about federal constitutional law that Miers in all likelihood won't want to, or won't be able to (because her jobs haven't called on her to study the issues), answer. I have no view on whether she should be confirmed (it's simply too early to say), but will go out on a limb and predict that she will be rejected by the Senate. In my view, Justice O'Connor will still be sitting on the Court on January 1, 2006.
This nomination should be defeated. The President was foolish to select (again) the person who headed his nomination committe.
Historical parallel: None other than Dick Cheney was the head of George Bush's Vice Presidential nominating committe. Instead of choosing one of the people Cheney recommended for the job, Bush picked Cheney. Picking Miers is the same behavior. Cheney was not a bad choice back in 2000 but not a great one either. Miers strikes me as a terrible choice in 2005.
Posted by rakhier at 12:48 PM | Comments (0)
Peruvian Ants Kill All But One Type of Tree...
This small article from the New York Times talks about an unusual behavior found in ant colonies in Peru. The ants have been shown to kill all but one type of tree around their colony.
- Ms. Frederickson's field observations showed that the ants attacked saplings of other species, injecting the leaves with formic acid. "Not only did it seem like the ants are responsible, but they are doing it in a really fascinating manner," she said.
Many other ant species use this chemical to kill off parasites or attackers. But M. schumanni, Ms. Frederickson said, is the first known to use the acid as an herbicide.
"They actually attack plants in the same way that other ants in this family would attack another insect," she said. "They grab the tissue with their mandibles, make a hole in it, stick their abdomen in and release a couple of drops."
Her experiments, described in the journal Nature, show that the saplings lose most of their leaves within five days and die within several weeks. Ms. Frederickson said it appeared that the ants used chemical cues to determine which species to attack.
The behavior benefits both the D. hirsuta and M. schumanni. With no competing species, the trees get more light, nutrients and water. And as more of the trees grow and the devil's garden expands, the ants get more places to live.
M. schumanni colonies can be extremely large, with a million or more workers and as many as 15,000 queens. Colonies can exist for centuries, as Ms. Frederickson discovered when she analyzed the growth rates of the 26 plots in her study. The largest one, with 351 trees, had been tended by the same ant colony for more than 800 years.
So, not only do some ants farm (leafcutter ants farm a fungus and have been doing so for at least 100 million years) but some ants quite deliberately change the vegitation in their area to better suit their life.
Posted by rakhier at 12:41 PM | Comments (0)
Food Doesn't Effect Cancer...
This very large article from the New York Times talks about recent serious studies which show that what you eat does not seem to effect your chances of getting cancer.
- [B]eta carotene and antioxidant vitamins like C and E, [were] substances that scientists thought were the protective agent in fruits and vegetables. The idea was that antioxidants could mop up free radicals in the body, which left unchecked could damage DNA, causing cancer.
Beta carotene was of special interest. People who ate lots of fruits and vegetables had more beta carotene in their blood, and the more beta carotene in the blood, the lower the cancer risk.
But a four-year study that asked whether beta carotene, with or without vitamins C and E, could protect against colon polyps, from which most colon cancers start, found no effect. People who took either beta carotene, vitamin C, vitamin E or all three had virtually identical rates of new polyps compared to participants taking dummy pills.
Another study, of 22,000 doctors randomly assigned to take beta carotene or a placebo, looked for an effect on any and all cancers. It found nothing. Two more, involving current and former smokers, found that those taking beta carotene actually had slightly higher lung cancer rates than those taking placebos...
The fiber hypothesis had enormous appeal. Carcinogens from food can end up in stool. But when people eat a lot of fiber, their stool is bulkier and so carcinogens would be diluted. Bulkier stool is also excreted faster, reducing the time that the colon is in contact with cancer-causing substances.
Fiber also binds bile acids in the bowel, substances that can damage the colon and, possibly, result in cancer. And the intestines metabolize fiber into short-chain fatty acids that seemed protective against cancer.
Adding to the case for fiber was the fact that when researchers fed rodents carcinogens, the animals were protected against colon cancer if they also ate a lot of fiber.
Based on these indications, the cancer institute financed two studies on high-fiber diets and colon polyps. In one, 2,079 people were randomly assigned to eat low-fat high-fiber diets or to follow their usual diets. In the other, 1,429 people were assigned to eat high-fiber bran cereals or wheat bran fiber or to eat cereal and bars that looked and tasted the same but that were low on fiber. Fiber, the studies found, had no effect.
"We had high expectations and good rationale," Dr. Schatzkin said. But, he said, "we got absolutely null results."
These new studies which show null results are good studies. Randomized. Carefully followed. People don't know what they are eating. And the results have been uniformly negative.
This is big news. It throws doubt on all the talk we have been hearing for the last 20 years about how a good diet was going to substantially reduce our chances of getting various types of cancer. At this point we are now pretty much back where we started. Strangely high levels of some cancers in the U.S. vs. some other countries and no clue why.
Posted by rakhier at 12:28 PM | Comments (0)