July 29, 2010
The fire is clearly visible from my front yard. I'd say that it's about two miles south-southeast of Soffit House. We've still got a fair amount of territory between the fire line and our neighborhood, but when the tall flames are visible across the entire ridge line of Ritter Ridge, and people you know are being asked to move by the authorities, it's a little bit creepy.
It makes me wonder if we need to pack up some clothing and start wrangling the critters around -- which is a big pain for the one cat, who gets psychotic when we try to put her in the carrier. For now there's no reason to panic, but I've no illusions about the effectiveness of lawn sprinklers and my garden hose to protect my house from the flames of a late-July southern California brush fire if by some chance they are allowed to approach here, so if things get worse in the night, we'll be packing up and finding somewhere to be rather than taking any chances. But as of a little bit after 9:00 p.m. tonight, I'm only "concerned" and not yet taking action.
The house and all of its contents can be replaced; the insurance is paid. The Wife and the critters, however, are precious and irreplaceable. So while things appears safe right now, that can change, which means I'll stay awake for a while and make sure that they don't need to be moved somewhere safe. I'm also noticing some strange noises around the house, which makes me wonder if critters from the hills have come down in panic away from the hills to find safety in the residences. Or if I just have the jitters.
It's worrisome enough that I'm not going to be concerning myself for a while with stress from work (I think I'm over the hump from this week), the Arizona immigration law being mostly enjoined, the very interesting case of the religious student who lost her suit against a public university for not being permitted to base counseling actions in part on her religion, or Obama bringing us closer to the apocalypse. Somehow that's just not as important as whether or not I'll have to evacuate my family and household in the middle of the night. So -- not panicking yet, but yeah, it's a little nerve-wracking.
Updated information about the status of this and other fires is available here.
July 28, 2010
I will never understand why it is that when I offer someone money to settle a lawsuit, they act as though they've been insulted. I can understand a reaction of "No, that isn't enough." But I simply can't comprehend someone saying "F--- you too!" when what I just did was try to give away my client's money.
July 23, 2010
Of course, the real test is the taste, which was not so intense as I'd like. Maybe it needed longer than a week. The Wife thought they were a little bitter. So next time I'll pulp and zest the tangerines and discard the rinds. It makes me a little apprehensive about the cucumber, since the primary infusion there were peelings, and those are the bitterest part of that fruit. (Fruit? Vegetable? I've always thought the meat of cucumbers was a little bit sweet, and sweetness is something you associate with fruit.) But the berry and cucumber vodka need a while longer according to the infusion guides.
Still, the results are visually quite appealing and I like the touch of bitterness in the resulting martini.
Somehow, though, I bet that bizarre collages of Edward Cullen as a hot vampire superimposed on aerial photographs of Tuscan hill towns or anything Michael Jackson, however schmaltzy, or effeminate, he appears, would be tolerated in the workplace more than this perfectly chaste but gorgeous picture of, say, Indian movie star Priyanka Chopra. (Damn double standards!)
And some were quite odd indeed, like one titled "1453 Istanbul." I don't think that the brutal sacking of a city (which was still officially named Constantinople until 1930) is really worth commemorating in beautiful artwork even if you weren't a particular fan of the Byzantine Empire. Then again, I'm not Turkish, either.
So I wound up having to do a search for something and wound up with this fine and completely unobjectionable shot of the Dolomites instead.
Folks, follow my example and pick non-offensive, pleasant sorts of wallpaper for your computer at work. Landscapes. Abstract patterns. Stuff like that. Pictures of your own family if you insist on personalizing. There's lots of options that aren't going to get you in trouble. Save the stuff that shows your "personality" (as if someone else's picture could be a reflection of "your" personality) or pop culture interests for your computer at home.
Also, careful readers will note the inauguration of a new topic category.
July 22, 2010
I don't want the news lying to me or deceiving me by excluding relevant facts, but at the same time I don't want reporters turning their brains off or simply regurgitating the pablum fed to them by their sources. I want and expect journalists to ask difficult, critical questions of their sources because that's where the real value of news reporting comes in to play. If it appears to me that a news agency is not using those kinds of critical thinking skills in an intelligent and worthwhile way, I lose respect for that agency and begin to think about satisfying my hunger for news elsewhere.Does anyone seriously disagree with those ideas? If so, no one spoke up about it back in October, so now's your second chance.
So while I may be critical of the unhinged and paranoid hysteria Glenn Beck sells on Fox, and while I may note things like tone of voice or editorial selection of subjects on Fox News bleeding between the pundits who are giving unabashed opinions and the allegedly "neutral" news readers, the fact of the matter is that I do not expect or even want any news agency to become so "neutral" that they either seek "opposing points of view" from fringe or unreliable sources, or that they stop critically sourcing and fact-checking the people in power. Right now, the Obama Administration is in power and Fox News -- having a conservative slant, appealing to a generally conservative audience -- is in a good position to ask hard questions of the people in the White House. I can take issue with the concept of "narrative" reporting arcs transcending multiple stories, but that's something that both conservative and liberal journalists do. And it, too, is something that I simply have to take into account when I read the news.
I expect journalists covering the high levels of government to be smart, to not take things they are told at face value, and to ask hard questions. To do that, you have to form opinions about what you hear. That's the only way your B.S. detectors are going to be working, the only way to know, "Hey, that politician just told a lie."
Now, consider the "Journolist" issue that's been floating to the top of the Memeorandum aggregator for the past several days. Right-leaning new media entrepreneur Andrew Breitbart offered a hundred thousand dollars to anyone who would send him the archive of e-mails exchanged between the members of an avowedly liberal listserv and has been parceling out the results of that purchase for days, presumably hoping to drive enough traffic to his sites so as to make his hundred large back.
The result has been a web media coup for Breitbart. Nearly everything else on the net -- actual news like the status of the oil spill in the Gulf, legal arguments about Arizona's immigration law, and an economy that continues to decline -- has been subsumed to it. It's had good, respectable, honest, and worthwhile authors falling all over themselves to explain away their having expressed opinions. It appears to have wrongfully cost someone her job, and since it looks like the Jornolisters or the people sinking their teeth into the Jornolist archive or someone took the remarks of this woman out of context, it appears to have cost the White House some face in that it offered her a new and better job back in a tacit admission that she should not have been fired in the first place.
From an business perspective, Breitbart needs to be sensationalistic about Jornolist. After all, he sunk a significant amount of real money into the venture. From a news perspective, though, is there really any substance behind all the sound and fury? To buy in to the idea that the Journolist story is important is to allow oneself to be scandalized, shocked, and amazed that the very people who do the best work investigating facts -- bringing the rest of us the data upon which we all unapologetically bloviate -- that those people form opinions about them themselves and share those opinions with their friends and colleagues.
So it turns out not all the media are conservative. There's still a lot of people who are liberal, too. Why should I care about that? According to the conservative media, this is nothing new; the media has been biased to the left for generations (since, not coincidentally, Walter Cronkite began criticizing the Vietnam War). I'm turning forty years old later this year, and I have never known a world without an element of conservatives complaining about liberal media bias; what is new in the past ten to fifteen years has been liberals whining about the conservative media, too.
That's all the Journolist imbroglio is -- evidence that there are liberal journalists who used the internet to share their opinions in a forum they thought was private to themselves. Dial it back a generation, and Andrew Breitbart buying the Journolist e-mails becomes a Nixon operative buying a tape recording of conversation over cocktails at the Press Club. This is the same old stuff we've been hearing for two generations now -- it's been updated and translated to a modern medium, and good for Andrew Breitbart for pulling off what appears to be a profitable internet media maneuver. But the substance is older than me. This is nothing more than conservatives whining about the liberal media.
July 21, 2010
An Arab man convicted in Israel of rape because he pretended he was a Jew when he had consensual sex with a Jewish woman has called the verdict racist. [¶] Sabbar Kashur, 30, was found guilty of "rape by deception" by the Israeli court and sentenced to 18 months in jail. [¶] According to the complaint filed by the woman, the two met in a Jerusalem street in 2008 and had sex that day. [¶] When she discovered he was not Jewish, but an Arab, she went to the police. [¶] Kashur was arrested and charged with rape and indecent assault, but the charges were later replaced by a different charge of "rape by deception".A story about a random hook-up leading to a one night stand (or, one day stand in this case) followed by post-encounter regret is very common. Such a series of events culminating in an accusation of rape for what was actually a consensual act is disturbing, but common, enough as well. Adding the explosive elements of race, religion, and international politics to the mix of sexual politics gives this story real legs.
Seduction is, when examined closely, a sometimes ugly business involving not only deception of one's quarry, but also the preying upon the target's psychological vulnerabilities, a deliberate compartmentalization of the emotional richness of sex from the physical pleasure of the act, and choosing to empower one's own narcissism and physical aggression over one's morality and empathy. Despite all this, seduction is not (or rather, ought not to be) a criminal act. My first impulse, then, is say to the woman here, "Your story isn't one of rape, it's one of seduction. You consented. I'm glad you didn't get physically hurt. Don't believe everything some random dude says when you've only just met him for the first time."
On the other hand, it's also the case that we should allow individuals to make intimate decisions on whatever basis they choose, and that includes race and/or religion. One should be free to choose dating, sexual, or marriage partners of a favored group and no explanation need be offered -- Caucasian guys who really dig Asian women do not need to justify themselves and are not committing a crime by refusing to date, for instance, Latina women. You and I might not approve of someone else using an explicitly racial filter to screen potential partners out, but we're not talking about government or even employment decisions here. And I'm not ready to say that having a racially-explicit dating preference is something that contains enough malice to conform to the common understanding of the term "racist."
Maybe she pursued him and he just went along for the ride. Or maybe (which seems most likely to me) they met and had one of those youthful prolonged conversations-with-sudden-infatuations and when things started to get all kissy-kissy, he didn't bother to correct her assumptions about what side of the tracks he came from. Or, maybe he went way over the top with a line like "Oh yeah, baby, I'm like, totally in the tribe; I was awarded the Medal of Valor after my stint in the Second Lebanon War, but now I'm a pediatric cardiologist in at Tel Aviv Children's Hospital," and she believed it. Does it matter? Even if she was lied to in order to further the seduction, that ought not to be a crime -- not that I condone using deception to get sex, but let's keep it in perspective. And at the end of the day, my perspective is not about the woman accusing the man of rape -- it's about the court convicting him.
Consider, for a moment, the fact that some people of sub-Saharan African descent have light enough skin that, to use the terminology of a fortunately-bygone era here in the United States, they could and sometimes did "pass for white." Bear that in mind as I substitute some words in the story and produce this result:
A...Which makes seeing the event, viewed as a whole, as an exercise in bigotry by the Israeli justice system that much easier, doesn't it?
n ArabBlack man convicted in IsraelNew York of rape because he pretended he was a JewCaucasian when he had consensual sex with a JewishCaucasian woman has called the verdict racist. [¶] Sabbar Kashur, 30, was found guilty of "rape by deception" by the IsraeliNew York court and sentenced to 18 months in jail. [¶] According to the complaint filed by the woman, the two met in a JerusalemGreenwich Village street in 2008 and had sex that day. [¶] When she discovered he was not JewishCaucasian, but an ArabAfrican-American, she went to the police. [¶] Kashur was arrested and charged with rape and indecent assault, but the charges were later replaced by a different charge of "rape by deception".
Courts are supposed to serve not only as neutral arbiters of fact but also dispensaries of justice. Laws are supposed to address real problems in society. Prosecutors and judges and juries are not required to check their common sense at the door; they ought to think about what they are doing, particularly before sending someone to prison for a heinous crime. Someone along the way should have looked at this and put a stop to it. That did not happen for Mr. Kashur, and it is difficult indeed to imagine that the complex stew of race, religion, violence, history, and international politics -- all factors which had nothing to do with a peaceful, consensual seduction -- did not play a substantial role in what appears to be a miscarriage of justice.
I was expecting something posh. Marble or granite on the walls. Sculpture or statuary. Interesting architecture. Parallel rows of palm trees on the lawn leading up to the front doors. Instead, I got utilitarian-at-best. The Beverly Hills courthouse was an ordinary-looking concrete cube of an office building, ugly and squat, with a two-foot boulevard strip of grass opposite the sidewalk to serve as "landscaping." There was one entrance on the side, it shared space with other county offices, and all the court activities were on upper floors which could only be accessed with a single elevator (the other one was reserved for court staff). The elevators were slo-o-o-o-ow. The decor was the same old dark stained wood paneling that graced courtroom walls in the 1960's, and the courtroom itself looked like it was designed in that era and faded photographs of various judges, the President, and the Governor. It was cramped and individual courtrooms were difficult to locate. There seemed to be no stairs accessible to the public. The seats in the gallery were the same kind of tan-painted steel swivel seats that graced my elementary school's auditorium in the early 1980's.
Which is all fine, I suppose; it all works and is functional to get the court's business done. But it's hardly glamorous, not what you'd expect in a place like Beverly Hills. It was clean enough, I guess; the wood stain had been touched up in the recent past, the glass had not been allowed to accumulate much dirt, and the floors had been recently swept and polished appropriately. And I'm glad, in the abstract, that the courts aren't spending a bunch of money on statuary and potted plants for what is, after all, a functional if unbeautiful courthouse. But it's still surprising that our courthouse here in the Antelope Valley is much nicer than the one in Beverly Hills. A little disappointing.
The staffing and administration failed to impress, either. Although it took me two hours to get there from my home because it's such a pain in the ass to drive into Beverly Hills, so I was tired, stressed, and really had to pee by the time I got there. Even so, I arrived at the courthouse on time, but it was still another half hour until the minimally-staffed clerk's office could handle in-processing my ex parte application and still another twenty minutes after that of listening to the bailiff go through the small claims spiel and checking in with the clerk before I could locate a men's room. No special service there.
After all that, I was told to come back next week, because the judge who was assigned the case wasn't in and the other judge didn't want to step in and had a full plate of small claims cases to hear that morning, so the research attorney just rescheduled it and told me to come back next week. People wonder why their attorney's fee bills are so high for "routine" court appearances.
I hope I can phone in the appearance next week, but something tells me that they just aren't going to be wired that well in Beverly Hills.
July 20, 2010
July 18, 2010
Today, I saw, for the first time in my life, the movie Easy Rider. I presume that I'm about the only person in the world who hasn't seen it, so I won't bother concealing spoilers from a forty-one year-old movie. It's fair to say that the ending was abrupt and the movie as a whole left me confused. The climactic scene – the acid trip in the New Orleans cemetery – left me wanting to do LSD even less than I already don't want to do LSD. It didn't look like this acid trip was even the remotest bit of fun.
The first thing that struck me was the abrupt beginning. Then, the bizarre back-and-forth fast edits between scenes. This, I suppose, was intended to give a feeling of discontinuity, mimicking the fact that the main characters of the movie were always stoned. All the time. And they just seemed to get more and more stoned the further along in the movie they got. Did people really spark up that much in the late 1960's? I guess they did, or at least the counter-cultural types did. The amount of pot these guys smoked was, I think, one of the more important points of the movie – and it possibly helped render the smoking of marijuana as a bade of individual freedom and protest against the prevailing culture.
From a narrative point of view, I liked the film's episodic quality. The overall structure of the movie – two guys on motorcycles driving across America – lends itself well to little vignettes. The traditional interpretation of the film is that it gives successive visions, through these vignettes, of different depictions of freedom (or the lack thereof). In so doing, it is remarkable that the characters are moving from west to east, the opposite of the traditional pathway of American road movies. They move from the dusk to the day, from death to life, but also from simplicity to complexity. And the further along that road that they travel, the less their decision to opt out of the larger society is tolerated.
I was struck by the contrast between Peter Fonda's character, "Captain America" (whose real name we learn only near the end of the movie), and Dennis Hopper's character "Billy." I saw the movie at a Freudian movie club so I was expecting to hear that the two characters were the superego and id, respectively, of a single personality, and the reason they had so much trouble was that there was no ego to mediate between them. This was not the interpretation; the professional psychologists and their devoted students all came up with the same thing – the protagonists had committed the first half of the Oedipal crime, and spent the bulk of the movie headed to New Orleans where they committed the second half of the Oedipal crime, and having done this, they were then destroyed quickly thereafter.
Only I and another friend there were of our generation. Everyone else there was a baby boomer. This movie is something of an anthem to baby boomers, or at least a substantial fraction of baby boomers, and after the movie was done one of my boomer friends asked me, "Well, TL, did you like the movie?" I made a face and said, "No. It was difficult to watch, and it got more difficult the more I watched it. The acid trip scene was excruciating." Another boomer piped in that this scene was too much for her and she had to leave the room for it. So that made me feel better – it wasn't just me and it wasn't a generational thing. My friend went on to explain to me a bit about the social and political turmoil going on in 1968 when the movie was made and 1969 when it was released, to put in greater context for me why it struck such a nerve with the young people of that time. That helped me understand the movie's place in the culture, but didn't make me like it any more than I did.
Looking at the film through the lens of my background in political philosophy, the big issue in the film seemed to be that the protagonists had opted out of society as a way of achieving freedom. Having opted out, they had to make their own way in the world, and they quickly found that the society they had opted out of was none too happy about their decision. Opting out, in other words, is a lot more difficult to do than it would seem. It also seemed to me that the movie got liberty and unconventionality confused. The long hair, leather jackets, motorcycles, hippie-speak, and drug use that the characters indulged in were, for the time, nonconformist behavior. But was it really free behavior? Especially all the drug use, as well as the nomadic existence the two opted for, struck me as being an effort to escape from something – and not just the legal consequences of the drug deal that gave them their seed money. Thus the Freudians' interpretation of dealing with the consequences of the Oedipal crime resonated well and I rejected my initial thought of unresolved id-superego tension.
A few other thoughts. The rancher family that was in the first vignette struck me as the most free of all the people in the movie. They were not dependent on others, and Peter Fonda's character admired and envied them. Yet he chose to not join them – because that kind of freedom was not what he wanted. That kind of freedom involved a lot of hard work in which to survive.
The hippie commune from the second episode struck me as doomed. These kids were obviously crappy farmers with far too many mouths to feed and inadequate sanitation. That place must have smelled bad even if there were hot hippie chicks there for Dennis Hopper and Peter Fonda to go skinny-dipping with. Half the people in the farm weren't farming at all but instead were some kind of acting troupe; entertainers are a luxury that a society unable to feed itself can afford.
All the women in the movie were sex objects; they had little in the way of personality and the only time their interests, desires, and personalities came out was during the acid trip. This movie was about men.
Jack Nicholson's character was partially in the prison of society and partially out of it. He started out in jail, but with special privileges and good treatment from his jailers. He wanted a taste of the counterculture but wasn't ready to dive all the way in. When he got too close to really opting out of the system, the system killed him. Or was it Peter Fonda? He displayed a fascination with the knives back in the commune, and the hicks from Louisiana attacked the sleeping bikers with clubs – but Nicholson's body was shown not only beaten up, but obviously cut with a knife of some kind. Why would Peter Fonda kill Jack Nicholson? Perhaps because he didn't like Nicholson telling the truth to them – "You guys are in a lot of danger because you're free men. If you are truly free, other people won't like that and they'll try to hurt you so that they don't have to see for themselves how imprisoned they really are."
If the movie is really about freedom, then it shows that freedom isn't all it's cracked up to be. But it didn't strike me as being about freedom at all, so much as about choosing to not be a part of society. When you opt out of society, life is very hard and it's very easy to get destroyed. That's a tough way to try and be free. A better way, it seems to me, would be to try to make the society you're in as free as it can be. At the end of the day, Easy Rider didn't seem to me to be a counter-cultural statement at all. Its real theme was one of antidisestablishmentarianism.
Hedges is an unabashed political progressive and a remarkably keen wordsmith. He offers five chapters, such as “The Illusion of Literacy,” “The Illusion of Wisdom,” and “The Illusion of America.” There are some piercing and incisive observations in each of them. The core thesis is that our society has produced illusions of things so pleasurable and enrapturing that we have come to prefer them to reality, with the result that we now occupy the bulk of our time in our entertainments while the elites who create and sell these entertainments pull the strings of our society and government so as to control and exploit us. Hedges’ book aims to pull this curtain of illusion aside, and expose the Great And Powerful Oz.
Hedges’ unarticulated premise is that he is speaking clearly and directly about culture, government, and economics in fulfillment of the imperatives set out in George Orwell’s Politics and the English Language. He sees in the entertainments, comforts, and mythologies of the modern world – or more exactly in the immersive, pervasive, all-consuming sense he claims they are consumed – nothing less than the seeds of our society’s own self-destruction:
Cultures that cannot distinguish between illusion and reality die. The dying gasps of all empires, from the Aztecs to the ancient Romans to the French monarchy and the Austro-Hungarian Empire, have been characterized by a disconnect between the elites and reality. The elites were blinded by absurd fantasies of omnipotence and power that doomed their civilization.I’m enough of a student of history that I question the veracity of each of those examples. The Aztecs may have initially thought Cortez was a god from their own legends, but it didn’t take them very long to figure out that no, he was a man from a place far away, and the danger he posed to them was not divine but martial in nature in that he was able to find friends and allies in the various peoples the Aztecs had previously subjugated. The Romans also had no illusions about their place in the world in the waning days of their Empire; they no longer harbored beliefs that they were superior to their “barbarian” foes, most of whom used Roman-style battle tactics, weapons, and armor, and many of whom had served in the legions. Similarly, the Austro-Hungarians had seen their influence and territories erode to the point that they were no longer the continent-striding giants they had been under their ancestors and become one of five members of the “Concert of Europe” which they knew all along could not remain balanced with the emergence of a unified Germany. The pre-revolutionary French nobility may not have perceived the growing threat to the ancien regime before the Tennis Court Oath, but they certainly did not consider themselves immune to internal threats or fail to appreciate the ideological threat that republicanism represented to either their own status as elites or France’s strength and wealth.
The most telling chapter is also the most difficult to read, the second chapter called “The Illusion of Love.” In it, Hedges advances the claim that pornography is taken for love when it is only an illusion. It is a manufactured product, sold to us to make us feel less lonely and to appeal to our appetite for sex, and thus becomes a poor substitute for the real value in life we should be pursuing, which is a happy, healthy relationship with chosen life partners that might include sex. Pornography is, Hedges claims, not only an empty vessel in which no true love can be found, a look at the way it is produced and the motives of its producers reveals a profound contempt of humanity and a crass desire for profit, profit, profit.
A far better topic for Hedges to make his point that our society only offers the illusion of love and not its reality would be to point out how, in movies and television, sex is used as a substitute for love. Characters who seem to dislike each other have sex, and then they are in love. Indeed, the rapid mutual dislike to sexual tension to sexual release to pair-bonding dynamic is so common it has become a predictable trope of most movie plots. From there, Hedges would need to take the next step and demonstrate how this shallow, unrealistic, and shopworn writer’s shorthand bleeds out from the screen into real life. Were he able to do this, he would more effectively and penetratingly illustrate the elevation of sex over love, indeed over happiness itself.
True love, as those who enter into long term relationships know, is not a constant rush of overwhelming passion and lust. To be sure, passion and lust are there and sometimes they reach to the top in often-enjoyable episodes of real life. But true love is also about partnership and understanding and accommodation. These things are harder for screenwriters to work in to twenty-three minute episodes of television shows with two or three dramatic “spikes” to keep the audience watching during commercial breaks. That is because working together with the one you love to build a life together is a process, not always a conflict, and one which at best lends itself to the dramatic model of a “slow burn”. “Slow burn,” alas, is hard to write and harder to film, at least in a compelling way.
More to the point, it is also not something for which Hedges can find a clear, direct, and most of all, viscerally shocking anecdote with ease. Instead, he points to pornography. Even there, we can infer by omission that he cannot find something good enough within the boundaries of “mainstream” porno, and instead looks to gang bang films and love doll vendors. With a Puritanic streak that seems in stark contrast to the rest of his generally liberal diatribe, Hedges offers the claim that all pornography is about the degradation of the women, that they must be seen as being physically harmed (as in rape porn), fools to be exploited and deceived (in the “gonzo” videos), or rendered into disgusting untouchables (as in gang bang videos).
The issue that Hedges ignores here is the same one that he only barely acknowledges in his first chapter, and to which he pays scant attention elsewhere – all of the phenomena he finds so awful are driven by the market. In pornography, the “mainstream” of work is one guy and one girl getting it on. This may not be nearly as sexy to create as the finished product might indicate; there are certainly elements of guy-girl porn which can be described as exploitative and no sane person ought to confuse what is depicted in a porno video for love. Perhaps most interestingly from a cultural point of view is the suggestion of porno that sex is a glorious activity which bring rapturous pleasure to both (or all) parties participating therein, which is something of an exaggeration, indeed, sometimes a considerable one.
It ignores the fact that (at least according to my source) about a quarter of all porno produced is gay porn, depicting sex between men. With no women involved at all in gay porn – at least in front of the camera – it is difficult indeed to understand how gay porn exploits and degrades women.
Hedges would like to suggest that something new and very dangerous is going on in our society. He wants to point to pornography as a manifestation of this phenomenon, and in his last chapter we find out what that really is – the reduction of America to a corporate feudalism, albeit a feudalism based on economic loyalties rather than geographic location. (He also describes the “desired” end state of this process as a fascism, which is perhaps closer to the mark in that there are people out there who advocate what seems to be a fascist state in all but name today. More about this below.) Pornography, he points out, is sold by large and “mainstream” corporations like Time Warner and General Motors. Therefore, it must be bad, it must be aimed at ultimately tricking us to willingly enslave ourselves to… something.
And this point is ultimately one that Hedges could not make. If pornography is the use of visual images as a sexual stimulant, then is something that has been around for as long as there has been writing and illustration, it is something that societies around the world and throughout history, and in particular Western civilization, has been able to tolerate and indeed incorporate into their cultural ascents. Some kinds of literature and art have been considered pornographic when produced – D.H. Lawrence’s Lady Chatterly’s Lover, or Titian’s Venus of Urbino depicted as she is in what can only be called a masturbatory pose. No one has been economically or politically enslaved by this kind of art, and indeed some of this art is understood to be of profound importance to our society.
There are more subtle points to make about pornography. Perhaps there are those who become addicted to pornography, and this is surely a bad thing. But there are also those who become addicted to alcohol or tobacco or other substances, coincidentally also manufactured and sold by big corporations for many generations, and freedom has not become systemically endangered thereby even if individual lives have been degraded. But even if Hedges wanted to go down the rabbit hole of discussing the harm to individuals done by pornography addiction, it is a big stretch academically to say that this harm has a broader social effect; such research is inconclusive at best and subject to substantial refutation in most cases. And he wouldn't get to gross out his readers with his depiction of the aftermath of filming a particularly atrocious and unsexy piece of porno. It is ironic indeed that he makes this journalistic choice immediately after he had so effectively excoriated the mass media industry for selling sensation over substance.
The corporations which produce it are also hardly a uniformly moral weight on society and not a danger to it. To be sure, especially in his description of pornography, Hedges finds some pornographers who make morally questionable, if not indefensible, statements. But the larger point is one which Hedges glosses over in his first chapter, with his references to Aldous Huxley, and misses the focal point of. In his references to Huxley, Hedges acknowledges and then fails to revisit the point later that we are willing participants in the creation of all of the illusions he so bitterly condemns. The focal point that he misses is that these illusions are things that people want and the “evil” corporations simply react to the demands of the marketplace.
If Hedges wanted, he could re-iterate the well-known fact that corporations are sociopathic and engender sociopathic decision-making by their officers. Corporations exist to maximize profit for their shareholders. There is perhaps no better way to make this point than a point Hedges does make, which is to point out that the CEO who chooses a smaller profit margin so that the corporation can have, for instance, a less deleterious environmental impact on the world is exposing himself to a substantial risk of being sued for millions of dollars by shareholders hungry for the extra profit that his decision caused them to forego. At the same time, such a point ignores the fact that such a corporation is likely already the target of such litigation, and most such litigation fails because of the highly deferential “reasonable business purpose” defense.
The corporations that make and sell pornography, professional wrestling, and indeed any other sort of entertainment or quasi-entertainment media are responding to a market demand. If people demanded “hard news,” corporations would produce it. Indeed, people do demand hard news. Corporations like Reuters, the New York Times, the BBC, and the Associated Press meet that demand. It is a legitimate and important question to ask how they go about producing that news and how they go about selling it to us. In a world where the business model supporting that activity is one where the news itself is given away for free and supported by paid advertising, a legitimate fear can and should be articulated that the news product becomes distorted; Hedges might point to, for instance, Fox News as an example of how the substance of the news becomes tailored to meet the market demands perceived by the profit-seeking controllers of the organization.
Ultimately, Hedges reveals his real orientation towards the end of his book, and while he would claim it is anti-capitalist, it is in fact ultimately anti-democratic:
Democracy and capitalism are antagonistic entities. Democracy, like individualism, is based not on personal gain but on self-sacrifice. A functioning democracy must often defy the economic interests of elites on behalf of citizens, but this is not happening.
Democracy seems best to Hedges when people make the same choices that he does. Were people to read the same kinds of news he does, watch the same kind of culturally-rich entertainments he does, and most of all were they to elect the kinds of progressive politicians he favors, America and by extension the world would be a much better place. Alas, democracy also compels those who lose elections to accept and live with the results, and not everyone always votes your way. Sometimes the results are not to your liking and sometimes the people as a whole do not choose self-sacrifice. This does not make the selfish (and thus capitalistic) choice any less democratic. Less wise, perhaps. Hedges does not acknowledge, but seems to trace, the long-worn objection of Plato to democracy, which is that eventually a democracy necessarily will deteriorate into a tyranny. Nor does he acknowledge the fact that the results of democracy are that the American people have consistently chosen capitalism -- thus, his tut-tuts about the unwashed masses who continue to choose things that Hedges in his wisdom pronounces destructive and evil.
Hedges rails against the American polity as a whole, and Democratic party of Bill Clinton in particular, for failing to adopt the kinds of laws which would weaken what he sees as the creeping corporate state, which he alternatively describes as either feudal or fascistic. The “fascism” moniker strikes closer to home because the real horrors of fascism are not so far removed in historical time from our own experience. Moreover, there are those who seem to advocate fascist kinds of governmental structures for the United States, although they do not use that label to describe the strong-state solutions to perceived problems they identify. The Republicans, by implication, seem to Hedges to have sold out so long ago and so completely that it’s not worth taking the time to describe them as anything other than jackbooted warmongering stormtroopers:
…the right today is a fundamentally illiberal and authoritarian movement. It endorses the systematic use of torture. It defends unchecked presidential power of matters of national security. It excuses massive violations of Americans’ civil liberties committed in the name of fighting terrorism. It supports bloated military budgets, preventive war, and open-ended, nation-building occupations. It calls for repressive immigration policies. Far from being anti-statist, it glorifies and romanticizes the agencies of government coercion: the police and the military. It opposes abortion rights. It opposes marriage equality. It panders to creationism. It routinely questions the patriotism of its opponents. It traffics in outlandish conspiracy theories. If you’re serious about individual freedom and limited government, you cannot stand with this movement.There is truth to each of these accusations. But once again, Hedges identifies the worst of something and attributes it to the whole. He ignores the significant strains of libertarianism still extant within the Republican party because that would create ambiguity; his point is much stronger when the GOP is nothing but a bunch of Jerry Falwell acolytes and press representatives of defense contractors rather than the reality, which is that the GOP, like the Democratic Party, is a broad coalition of people with diverse interests and priorities who try to find some degree of common ground in the process of selecting and electing candidates to office.
However, he has no love for the Democrats, either. He accuses Democrats, acting under Bill Clinton’s leadership and continuing through to the Presidency of Barack Obama, of selling themselves out to the creeping corporate hegemony and thus placed us at risk of becoming within our lifetime a nation of mentally-numbed slaves. And our current economic travails are, in Hedges’ opinion, the most dangerous element of all, possibly leading to the specter of a statist, pro-corporate, fascist revolution under the hands of a Democrat claiming to act on behalf of the interests of the people as a whole:
It was the economic meltdown of Yugoslavia that gave us Slobodan Milosevic. It was the collapse of the Weimar Republic that vomited up Adolf Hitler. And it was the breakdown in czarist Russia that opened the door for Vladimir Lenin and the Bolsheviks. Financial collapses lead to political extremism.But if we have an ineffective government in which there is no substantial difference between the parties who nevertheless do not communicate with each other, Hedges ignores the possibility that this is the result of society reaching a consensus on the issues he cares about and therefore this is the government that we the people have actually chosen.
After all, we like our big corporations. We participate in them by buying stock in them. More than once I’ve heard people talk about “my” grocery store, even though they only shop in it rather than owning stock in it. More people register as, and in recent elections vote for, Democrats than any other political affiliation. Barack Obama may not be as liberal as Hedges would have hoped but he is, in fact, a different kind of President than John McCain would have been and our country is in a different place now than it would have been had the election produced the other result. True, the differences may in some cases be incremental rather than qualitative and in some cases not as dramatic as sensationalist media might depict, but there are nevertheless important differences still out there.
And finally, Hedges comes very close to imputing an intentionality behind what he sees as the creeping corporate takeover of America. He flirts with paranoid conspiracy theories in so doing; while fun, such thoughts have so very little to do with reality that they are not worthy of serious consideration. There is no cabal of corporate titans having secret meetings to plot a generations-long takeover of the United States. That is not to say there are not now, nor never have been, corporate conspiracies with political implications; it is to say that the kind of massive conspiracy Hedges portrays is a bogeyman with no corporeal reality. Hedges hints at but stops short of avowing its existence, but no such intentionality exists. Hedges argues, more explicitly, that the intentionality is the result of class stratification and the elites of our society going to the same schools which are the effective preserve of the elites, running in the same elite social circles, and having large amounts of money.
Again, there are good points to be made here because it is true that our elites suffer from a homogeneity in their backgrounds, a homogeneity which is not shared with the unwashed masses Hedges claims to champion despite their disinterest in the form of his championship. And in each chapter, Hedges scores good and important points – too many of our people do consider entertainments to be more important than reality; too many of our schools, including allegedly elite universities, fail to properly educate students particularly in critical thinking skills; too many of our people are not involved in government and public policy, which gives disproportionate power to those who have a direct economic incentive to not be so passive about politics. He is right to complain that there is so little political dialogue:
More than the divides of race, class, or gender, more than rural or urban, believer or nonbeliever, red state or blue state, our culture has been carved up into radically distinct, unbridgeable, and antagonistic entities that no longer speak the same language and cannot communicate.While Hedges is right to complain that this phenomenon of polarization is dangerous – because it is – and that charismatic quasi-entertainers like Limbaugh, Beck, and Hannity are guilty of perpetrating and encouraging that polarization for the purpose of lining their own pockets, he fails pointedly to note that the phenomenon has a mirror image on the other side of the coin – figures like Keith Olbermann, Rachel Maddow, and Dan Rather are as guilty of neglecting reality and offering propaganda instead of substance. The reason for this is that there is little appetite in the public for subtlety, nuance, or ambiguity. “Moderates” have no place in the world because “moderates” are characterizes as the other side of the debate whenever they disagree with your side of the debate – witness how U.S. Supreme Court Justice Anthony Kennedy, for example, is depicted as a “conservative” by liberals and as a “liberal” by conservatives. Kennedy is in reality a moderate who seeks to forge his own way and make up his own mind and is not a reliable vote for any “side” of an issue. He is likely to be the last of his kind in his institution for the foreseeable future – because, ultimately, the public has little appetite for moderation.
* * *What counts today isn’t engaging the other side with reasoned arguments; it’s building a rabid fan base by demonizing the other side and stoking the audience’s collective sense of outrage and victimization. And that’s a job best performed not by serious thinkers but by hacks and hucksters. Rush Limbaugh, Glenn Beck, Sean Hannity, Mark Levin, Joseph Farah, Ann Coulter, Michelle Malkin: they adorn the cathedral of conservatism like so many gargoyles.
But if Hedges is the champion of the willingly-deluded masses (and I’m not so sure that they have lost the ultimate ability to distinguish between fantasy and reality as he is) he is a figure like Peter Romanov, attempting to pull the people towards his version of enlightenment while they kick and scream and object the whole way. Disturbingly, Hedges points to the failure of the government to take action to stop all of this – when “all of this” consists of the aggregation of millions of choices made by millions of people all purely voluntarily.
Hedges may think he’s doing it for the good of a free society, but at the end of the day, his impulses are as elitist and anti-democratic as those whom he condemns. We’ve been making bad choices, Hedges says, and it’s high time that the government intervenes and starting having us make better choices. It leaves me with the impression that Hedges would become a William Calley of our modern culture, destroying individual freedom in order to save it.
July 17, 2010
Cordoba Initiative aims to achieve a tipping point in Muslim-West relations within the next decade, bringing back the atmosphere of interfaith tolerance and respect that we have longed for since Muslims, Christians and Jews lived together in harmony and prosperity eight hundred years ago.Cordoba Initiative would like to build a thirteen-story building at Park Place and Broadway. The proposed project, “Cordoba House,” as a thirteen-story tall community center which will include a worship space for Muslims. The first link in this paragraph is a CNN article describes it as a 15-story project, but later reporting says it would be 13 stories. It hardly matters for our purposes because this is not an architecture blog, I’m interested here in the political, social, cultural, legal, and economic issues raised by the project. Whether it’s a 13 or 15 story building is something that architects, engineers, financiers, and zoning commissioners can tackle later, if the project ever goes forward.
Solving some of the most intractable conflicts in the world today requires innovative strategies for cross-cultural engagement. Cordoba Initiative tackles this mandate with forethought, expertise and the ability to leverage contacts in influential positions within the Muslim World and the West. Thinking outside the box about international and intercultural conflict resolution also means thinking introspectively about each side's place within its own historical narrative with a view to devising internally oriented solutions.
The principals of the Cordoba Initiative, which presumably includes Mr. El-Gamal, are Sufi Muslims. Sufism is a sect of Islam which has a highly spiritual, mystical component and is separate from the better-known Muslim sects of Shi’a and Sunni; it is the same sect that gave rise to the famous whirling dervishes (more formally called the Mevlevi) and avows that its doctrines are of infinite tolerance; there are some people who claim to be Sufis but deny being Muslim, which is a matter of some theological controversy among religious scholars and others who care about such things. Point is, people are pissed.
The proposal to build Cordoba House is, unsurprisingly, controversial. Those who find the proposal offensive and in bad taste – including on the one hand a conservative or GOP-related group I’d never heard of before called “the Republican Trust PAC,” which unsuccessfully tried to run advertisements on TV to use the issue for fundraising, and on the other hand angry atheist (really anti-theist) “comedian” Pat Condell (who tries to be preachy and is therefore not funny in his video blasting the idea) – dwell on the fact that the terrorists who hijacked the planes and flew them into the World Trade center nearly nine years ago were not only Muslims, but motivated by a fanatical belief in Islam.
So it is not surprising that there is an effort underway to, regardless of the merits of such a proposal, slap “landmark” status on the existing building so as to prevent its being torn down and rebuilt as Cordoba House. There is even a proposal to build something called “The 9/11 Christian Center At Ground Zero,” which strikes me as just a little bit tacky (especially considering that there is already a rather famous Christian Church, Trinity Church in Manhattan, which is already literally across the street from Ground Zero and boasts of George Washington having worshipped within its historically-significant walls. Rick Lazio (amusingly described to me as “a punk” during my visit to New York City ten years ago by a self-identified Republican back when then-Congressman Lazio was running for Senate against Hillary Clinton) is making the source of its funding a campaign issue; which is good for him because Lazio’s campaign appears to be pretty much out of dough.
In response, the Cordoba Initiative has decided to rename their project “51 Park Place.” As if that matters at all to anyone at this point. It seems pretty clear that no matter what they call it, if there is a Muslim house of worship there, a certain group of people are going to whine about it.
I say "whine" rather than "object," because the building of this community center, mosque, house of worship, or whatever else you want to call it, does not appear to violate any laws of the United States of America, or those of the State, County, and City of New York. The appropriate local governmental board and the Mayor have given their blessing to the project. So it’s a legal use of the property and that is what the owner wants to do with it. If it’s not illegal, people should be able to do what they want with their own property. Respecting the freedom of others means tolerating it when they make decisions you would not have made. You might not choose to be a Muslim, but you’ve got no choice in the matter of your neighbor deciding to become one.
Are the whiners bigots? Well, if I – an atheist who thinks that Christianity and Islam are simply two different kinds of the same nonsense – can distinguish between fanatic Sunnis who hijacked the airplanes and the quasi-hippies of the modern-day Sufi movement, then surely others can do the same. (Stipulated that historically, Sufis have been as violent as pretty much any other religious sect you care to name.) These aren’t the same Muslims. Both of the whiners I cited -- Pat Condell the atheist "comedian" and the Republican political group I've not heard of before -- present a monolithic view of Muslims, which is that all Muslims are the same as the ones who flew the planes into the buildings or who odiously celebrated that attack after it happened. But such a monolithic view of Muslims is erroneous; Muslims are no more monolithic in even their religious views of the world than are Christians and imputing similar politics to them based on their purportedly similar views of the divine is as much a mistake as saying that all atheists are politically liberal. It's just not so. Condell in particular warps history by condemning even the name of the Cordoba initiative as one which celebrates the Muslim conquest of Spain; I would challenge him to find an alternative example of a place and time in which "Muslims, Christians and Jews lived together in harmony and prosperity" other than the Umayyad Caliphate.*
By either deliberately or ignorantly failing to see these people for what they really are, they are portraying the sponsors of the building as evil when they are not. Ignorance, or worse, deliberate misrepresentation, are hallmarks of bigotry. A sometimes blogger of whom I am a big fan would likely go further and call the attempts to stop the mosque from being built "dog-whistle racism;" I'll say that many of the opponents of the mosque may not think of themselves as bigots, but if so, they ought to take a step back and try to look at their actions and statements from a more objective perspective.
And then there’s the issue of a mosque going right there. “Why can’t it be built somewhere else?” is the question. Having it close to Ground Zero may well be the point – locating a center dedicated to portraying Islam as having a peaceful, tolerant side near the site of a great atrocity committed in the name of Islam may well be the focus of the idea behind the center in the first place. Perhaps you disagree with the notion that Islam can be a religion of peace (and indeed, there is ample evidence that people use Islam to justify horrific acts of violence and war). But you can’t stop someone from saying something just because you disagree with what they have to say.
So, how far out from the “sacred ground” of Ground Zero do we have to go, anyway, before a mosque’s presence would be tolerated? Presumably, those folks who say that it is an insult to the memories of the more than 3,000 people who died on 9/11 and argue that a mosque “right there” is inappropriate must concede that such an argument implies that it would be appropriate to build a mosque somewhere else. So two blocks away is too close. How about Chambers & Church, five blocks away? Still too close? Maybe not in Manhattan at all, so how about Brooklyn? (Too bad, because there’s already a mosque in the East Village, about one and one quarter miles from Ground Zero.) My suspicion is that the sort of person who objects to a mosque being built in Manhattan is going to disapprove of a mosque being built pretty much anywhere, at least anywhere in the U.S.A., but that result is also unacceptable in a country whose ideological roots are as permeated as ours in the idea of freedom of religion.
Another objection is that this somehow symbolizes a triumph of Islam over America. But I don’t see that in the presence of a mosque at all. I see the presence of a mosque near a place so important to our national memory as a triumph of American values – values of tolerance, of liberty, of property rights, of people of different backgrounds coming together to form a new culture – dare I use the word “diversity,” charged as it is with the weight of political correctness? Yes, I dare. Diversity is better than its opposite, and the idea of America as a "melting pot" of global cultures inherently involves diversity. The "melting pot" idea also involves assimilation into the larger culture here, but the avowed ideals of the Cordoba Initiative fit very well into both halves of that dynamic.
My personal preference might be that there be no houses of worship at all in downtown Manhattan at all. But even so, I’d concede along the way that some of the churches there are historically significant, some are beautiful buildings, and they provide outlets for the residents of those neighborhoods to engage in the religious activities of their choice. My personal preference can’t be what’s happening because my preference infringes on the freedom of others. Your personal preference might be that there be no mosque there, but Christian or Jewish houses of worship are okay. But such a preference also infringes on the freedom of those who want there to be a mosque, and moreover that preference favors one religion over another. It is our own rule, our own ideal, that the government may not favor one religion over another. And, whatever rule is made should be one that maximizes freedom to the extent that is reasonably possible.
Therefore the result must be, let Cordoba House, I mean, 51 Park Place, be built. Not to appease the Muslims or permit them a "victory," but rather in fulfillment of our own national ideals of freedom. When we fulfill our own ideals of the rule of law, especially in so poignant a place as this, that will be our victory, a victory more profound than a military conquest. It will be a victory for liberty.
* Cordoba itself is ambiguous from the standpoint tolerant diversity, peace, and prosperity. If you lived in Cordoba in, say, the year 1000, you would much rather have been a Muslim than a Christian or a Jew. The dhimmi paid higher taxes and faced restrictions on their ability to own property or pursue a career in the government or the military. Nevertheless, they were not enslaved, free to practice other professions, able to access education, buy and sell property, pursue justice in the courts, and were allowed to worship as they chose and maintain their own houses of worship. The Umayyads conquered Iberia from 711 to 718, and Christian leaders, initially based in what are today regions of Aquitaine and Languedoc began the reconquista in 722, which was not completed until nearly eight hundred years later. So it's not like the Christians of the era were universally happy with being ruled by the Muslims -- but since King Ferdinand and Queen Isabella implemented the Inquisition so soon after expelling the Moors from Granada, the completed Christian reconquista can hardly be seen a step towards greater tolerance. What's more, even the Muslims of the era cannot be seen as monolithic; while the Umayyads practiced a relaxed form of Islam, one which permitted interfaith marriages, the drinking of wine, and did not enforce daily prayers, they were eventually displaced by the Almoravids and the Almohads, who were more culturally similar to the stricter observances pervading in the Arabic and Iranian areas of Muslim dominance and who also fragmented the political unity of Iberia that the Umayyads had achieved. So there were intolerant Muslims who came to rule the Caliphate of Cordoba after a time, too. I can and do accuse the sponsors of the Cordoba initiative of idealizing the Caliphate of Cordoba, but the point here is that despite the ambiguity and flaws that came out of the nearly eight hundred years the Muslims ran the show south of the Pyrenees, there was for a substantial period of historical time a degree of interfaith tolerance actually practiced, combined with a degree of economic prosperity and cultural achievement, that had not been known anywhere on Earth since the fall of the Roman empire. And yes, I'm including China, India, and Byzantium in making that claim.
July 15, 2010
If there was ever an offender in the "hoppy, semi-sweet, tasteless, too-carbonated barley pop" category, it would be PBR. There was never a sillier trend than when affluent urban hipsters collectively decided to drink PBR as an ironic affectation of their communion with the blue collar lifestyle.
I understand the corporation that bought out the original rights to the brand name wants to get value for their money and that the profit margin on premium beer may well be enough to justify making and selling something more on the order of barley wine than ordinary suds. But the niche they've carved out for themselves is one that borders on the edge of kitsch; their other branding properties include Colt 45 Malt Liquor, Lone Star, Schaefer, Schlitz, Schmidt's, Old Milwaukee, Old Style, Stroh's, and St. Ides Malt Liquor.
So did they not also get the rights to use "Best Select" along with the PBR brand? That was the original name, after all. Maybe you tie an actual blue ribbon around the neck of the bottle in another nod to the brand's history. Seems like a good idea to me, but then again I chose a career in law, not in marketing. So let's just add this to the "world turns upside down" file.
Via James Joyner.
July 14, 2010
Now, Coulter doesn't get everything right. I see two places where I think Coulter gets her Con law quite wrong:
State laws are pre-empted by federal law in two circumstances: When there is a conflict -- such as "sanctuary cities" for illegals or California's medical marijuana law -- or when Congress has so thoroughly regulated a field that there is no room for even congruent state laws.There is a third category of pre-empted areas which Coulter ignores. The Constitution gives certain legal subject matter areas and certain powers exclusively to the Federal government: for instance maintaining the military, coining money, running a post office, bankruptcy, copyright -- and a uniform rule of naturalization, which is what concerns us; naturalization necessarily and logically includes the concept of immigration. What's more, Coulter gets something else wrong here, looking as hard as she does for a "gotcha" that she can readily communicate to a lay audience:*
If Obama thinks there's a conflict, I believe he's made a damning admission. There's a conflict only if the official policy of the federal government is to ignore its own immigration laws.But as I pointed out in my earlier piece, the conflict may be a matter of method and priority rather than of substance or result. As the nation's top federal law enforcement officer, the President and not the governor of a state gets to say how Federal law enforcement goes about doing its job. Congress gets to say what that job is, to be sure, but the President is charged with the faithful execution of those laws.
This will become important later in the post, because it looks to me like Coulter gets it right on the issue of legislative pre-emption and her cite of De Canas is piercing to the argument actually offered by the Federal challenge to Arizona's law.
In De Canas, there was a facial challenge to a California state labor law that made it illegal for a California employer to knowingly hire someone who was neither a citizen nor a green card holder. By a vote of 8-0, with Justice William Brennan writing the opinion and Justice John Paul Stevens not participating, the Court upheld California's law as not pre-empting the Federal law of immigration. The really interesting language for contemporary debate is found early on:
Power to regulate immigration is unquestionably exclusively a federal power. See, e.g., Passenger Cases, 7 How. 283 (1849); Henderson v. Mayor of New York, 92 U.S. 259 (1876); Chy Lung v. Freeman, 92 U.S. [424 U.S. 351, 355] 275 (1876); Fong Yue Ting v. United States, 149 U.S. 698 (1893). But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised. For example, Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 415-422 (1948), and Graham v. Richardson, 403 U.S. 365, 372 -373 (1971), cited a line of cases that upheld certain discriminatory state treatment of aliens lawfully within the United States. Although the "doctrinal foundations" of the cited cases, which generally arose under the Equal Protection Clause, e.g., Clarke v. Deckebach, 274 U.S. 392 (1927), "were undermined in Takahashi," see In re Griffiths, 413 U.S. 717, 718-722 (1973); Graham v. Richardson, supra, at 372-375, they remain authority that, standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.Shepherdizing De Canas yields the result "Some negative history but not overruled." Negative history includes "Declined to Extend by League of United Latin American Citizens v. Wilson, 908 F.Supp. 755 (C.D.Cal. Nov 20, 1995)" and five cases that I haven't looked up which are listed as "Distinguishing": Rogers v. Larson, 563 F.2d 617 (3rd Cir. (V.I.) 1977); National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. (Mass.) 1999); Kim v. Regents of University of California (2000) 80 Cal.App.4th 160; Garrett v. City of Escondido, 465 F.Supp.2d 1043 (S.D.Cal. 2006); and Villas at Parkside Partners v. City of Farmers Branch, 496 F.Supp.2d 757 (N.D.Tex., 2007).
Perhaps the best summary, however, comes from another Brennan opinion not long after De Canas dealing with state laws that piggyback on Federal immigration laws, Plyler v. Doe (1982) 457 U.S. 202. In Plyler, the issue was whether the state of Texas could exclude children present in the country without documentation from attending public schools, and the Supremes said, by a 5-4 vote, no, that violates the Equal Protections Clause. But De Canas said that just because a state's law acknowledges and discriminates against a party's status as an immigrant (documented or not), that is not in itself enough to trigger a violation of the Equal Protections clause! So, what was the difference between the result in Plyler and the result in De Canas? Here is how the Plyler majority explained it:
As we recognized in De Canas v. Bica, 424 U.S. 351 (1976), the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal. In De Canas, the State's program reflected Congress' intention to bar from employment all aliens except those possessing a grant of permission to work in this country. Id., at 361. In contrast, there is no indication that the disability imposed by 21.031 [the Texas law] corresponds to any identifiable congressional policy. The State does not claim that the conservation of state educational resources was ever a congressional concern in restricting immigration. More importantly, the classification reflected in 21.031 does not operate harmoniously within the federal program.Plyler, 457 U.S. 202, 225-226. So, the problem was that Texas went further than Congress in denying public school to undocumented alien children, where California had gone only as far as Congress had in denying undocumented alien workers the opportunity to seek employment.
Well, you may disagree with me or think I use bad reasoning, but I nevertheless pride myself on trying to maintain intellectual integrity and to acknowledge facts and laws that conflict with what I have to say head-on. And De Canas is one of those things I have to deal with in that way. De Canas is still good law and has not even been particularly whittled down very much, so far as I can see.
As I've already acknowledged here on this blog, the law we're talking about here is incrementally stronger but not qualitatively different than Federal immigration law. On its face, Arizona has not attempted to alter, extend, or supplement Federal immigration law. The fact that the Arizona law is aimed at only the issue of whether a particular person is lawfully in the U.S. means that it is, on its face, closer to the De Canas than the Plyler analysis. That means that the Obama Administration challenge to the Arizona law as violating Congress' exclusive power to legislate about immigration, predicated as it is upon legislative pre-emption, cannot be squared with precedent in De Canas. The Federal government's power under Article I appears to have been respected and not attacked by Arizona.
But in that same post, I argued that Arizona is attempting to force the Federal government's hand at enforcement, and that bothered me as a usurpation of Article II power -- the power of the President to prioritize Federal law enforcement. As even defenders of the Arizona law both here and in many other places have pointed out, the Federal government doesn't have to do anything in response to Arizona. At one level, this suggests that Federal prioritization remains intact and if that varies with the Arizona state enforcement, well, federalism is a two-way street and the Feds can't tell Arizona what to do with state laws, either.
That's a great thought and if we lived in a universe where law enforcement could deal with things like this with low transaction costs, I might agree with it. But the US Immigrations and Customs Enforcement Agency (ICE, the post-9/11, post-Department of Homeland Security reorganized successor to the previously better-known INS) does not operate without transaction costs. Every referral from state law enforcement needs to be dealt with in some way, and each referral represents a transaction cost.
The genesis of the law, and the reality of implementing the law, are important too. We're looking at a law that was passed specifically in reaction to two primary issues cited by its advocates: first, a crime wave that isn't really happening (particularly not the decapitations that aren't happening), and second, a perceived laxity on the part of Federal law enforcement to enforce immigration laws, which is probably real enough based on economic necessities of the economy as a whole. But the point is that the Arizona legislature has attempted to set a higher priority on the issue than the President; it is for the President and not the Arizona legislature to determine how federal law enforcement assets are to be allocated.
Which leads us to the real political objective here, as Coulter's column demonstrates. That is, this law is intended to make the incumbent President look bad -- Republicans looking for the moatdigger vote want to say that the President is refusing to enforce the law and that this is somehow hurting us.
After all, while it may not be politically popular to do so, the President is within his discretion to place so low an enforcement priority on a given subject matter as to effectively render the law he is asked to enforce not a law at all. Here in California, for instance, there is a tacit policy in place to not go after medical marijuana dispensaries despite the fact that they are violating Federal law. Now, a President who does such a thing may pay a political price for doing so, and a future President can alter that prioritization as he or she sees fit. But this is no different in principle than allowing a traffic cop who sees a cracked tail light while writing a speeding ticket to also decide, for whatever reason, to let the equipment violation go without so much as a warning.
And let us not forget that there is some evidence out there that law enforcement makes these kinds referrals based on racial profiling, and the potential for abuse by police with a law is substantial. I'd agree that we can't judge the validity of a law only on its potential for being abused as a general proposition, but at the same time we don't ever lose freedom by refusing to concede the good faith of law enforcement, seeing as the law enforcement community has failed to inspire confidence in their own veracity and good faith in reporting on their own activities.
So I'm sticking to my earlier opinion -- the Arizona law may be congruent, or at least consistent, with the Federal law about immigration. But it is probably an attempt to force Federal prioritzation in enforcement of the laws. The violation is, or at least ought to be, considered an attempt to usurp the President's the Article II power to enforce immigration laws as he sees fit. To get to that result, you need to do more than look at the legislation on the books, you need to understand the realities on the ground and the political background of the law. What's more, my theory seems to be something kind of new. I can't find either positive or negative treatment of it in case law because, if it's been examined, it's been examined in terms and wording very different than any of the searches I've been using. I've probably not done as great a job of explaining it as I might have hoped for and damn it, it's late at night and I need to get some sleep.
But while I still think that the Arizona law intrudes on this priority-setting aspect of the President's Article II authority, I have to concede that learning about and studying the De Canas case leads me to believe that on the grounds presented in the challenge pending before the courts (Article I pre-emption), the state of Arizona has a substantial chance of prevailing on the merits of the pre-emption question so long as it can demonstrate that its law, as written, mirrors Federal law.
And as a final caveat that I hope does not need repeating, not a word of this has anything to do with whether the law is a good idea or a bad idea. You can think a law is a good idea but one which violates the Constitution (i.e., criminalizing the burning of the U.S. flag); you can think a law is a bad idea but nevertheless is consistent with the Constitution (i.e., income tax). I want to focus discussion on whether Arizona has exceeded its Constitutional powers, not on whether illegal immigration is bad.
* Ms. Coulter holds a law degree from the University of Michigan, which she received with high academic honors, and was admitted to practice in New York. Part of her pre-punditry career included helping draft bills relating to immigration policy for then-Senator Spencer Abraham. So she's not just throwing bombs for the sake of throwing bombs (which I might accuse her of in some other context); this academically-distinguished lawyer has a substantial policy background in this area.
July 13, 2010
We aren't undertaxing ourselves into debt, we're overspending. Overall revenues did not fall all that dramatically with the Bush tax cuts of 2001; had those tax cuts never happened, we'd still be deficit-spending at dangerous and unsustainable levels right now. The real issue is that overall spending shot through the roof in the last year of the Bush Presidency and the profligacy only increased in magnitude with the shift of administrations from Bush to Obama.
You can argue that the spending is necessary. That Keynes was right. That taxes should be raised to make up for it so we can responsibly continue what we're doing. That to not spend the kind of money we're spending is inhumane, especially when economic times are tough. Or even, I suppose, that one day, the economy will grow so that our spending levels can be sustained. Some of those are more credible arguments than others; I decline to agree with any of them absent a showing that carried a heavily-laboring oar. We need to cut governmental spending. But what you'll have a hard time convincing me of is that tinkering with the tax rates is going to make much of a direct difference in terms of reducing the federal deficit.