Talking to Iran

Lately, it seems that there has been some folks calling for the Bush administration to talk with Iran. I know that during the Petraeus/Crocker hearings several Democrats brought up this point, and that Obama also has this as a central point on how he would conduct foreign policy. While I do agree that normalizing diplomatic relations would probably be a good idea, I do have some qualms. Well, really only one qualm.

Do we really want the Bush Administration of all groups to begin those talks? Is no one concerned about what they might say or how bad they might screw this up? Wouldn't it be better to wait until a more responsible and sober administration took office to begin a major diplomatic initiative?

Like the earlier racism post, maybe I will get back to this later.

One more thought about the 2nd Amendment

At the end of my post about the 2nd amendment, I kind of let things hanging in the air. I had another thought about those fanatical supporters of the 2nd amendment. While I have already talked about how I think 2nd amendment supporters are cowards who don't really believe their own logic, this cowardice can be seen yet again in their claim that the 2nd amendment is there to defend all the other amendments. Take an example that has been ongoing for most of the Bush Administration: Federal warrantless wiretapping and repeated violations of the 4th amendment. In no way does having a firearm prevent the government from engaging in activities that violate that amendment. Furthermore, if you had a firearm and a illegal search of your home and person is occurring in front of you, shooting the officer is still murder. No court has recognized an affirmative right to defend one's interpretation of the other amendments of the Constitution. Attempting to do so would still put one in other legal jeopardy.

This point about the 2nd defending all the other amendments could be stood on its head. Just as the 2nd allegedly defends the others, so do the others defend the 2nd. Without the 4th, the government could know exactly where all firearms are at all times, assuming the feasibility of a monitoring regime. Without the 1st, supporters of the 2nd could not organize politically to defend their rights, such as they conceptualize them to exist, under the 2nd. Without the the 5th and the 6th amendments, gun owners could not defend their rights in court such as the use of deadly force to protect themselves and others, or even their right to litigate their interpretations of the 2nd.

Well, I feel like I have beaten topic into the ground. I am sure I will have more on this topic in the future.

Are they going to hurt us, Walter? No Donnie. These men are cowards.

You know something that really chaps my ass. Fundamentally, almost all Americans are nihilists. They believe in nothing. Everyone is a cafeteria everything. A little from this philosophy, religion, or political beliefs, a little from that. Frankly, it is kind of disgusting. Why this is, I don't know. Could just be the fact we live in a post modern age or that beliefs have become too dangerous. How could ideas become too dangerous? Ideology can destroy the world now, but does it really operationalize down to individuals not having personal beliefs? Do people really not believe things because those beliefs aggregated could lead to horrible consequences like nuclear wars? I think that people don't have fundamental beliefs because having such are too painful on a much more personal level. Having beliefs is painful because beliefs generally require sacrifice in one way or another. Most Americans don't want to sacrifice anything, if at all possible.

Maybe that is all wrong, maybe Americans are not fundamentally nihilistic, or maybe not for the reasons I propose. This was just something I was thinking about this morning.

Thoughts on the 2nd Amendment

While I still have that other question about race to develop into a much larger post, I wanted to take a moment to discuss some things I was thinking about the 2nd amendment.

A decision is pending in the Heller v. D.C. case, and that has made me think about the amendment again. It seems likely that the conservative members of the Court will interpret the Amendment to allow an individual right to own guns. This is the true crux of this case, as a finding in this direction will then allow the conservative majority to overturn the D.C. handgun prohibition. In light of the conservative majority's potential ruling, I got to thinking about the ramifications of what the Court might do.

The question seems to me to revolve around what will actually change in the U.S. if the Court finds an individual Constitutional right to own guns, incorporates it to apply to the states through the 14th amendment, and strikes down the D.C. gun regulation paving the way for all gun regulations anywhere in the country to be struck down by future Federal court action.

I think about this question as this would be the perfect ruling from the perspective of the right wing gun owners and their lobbying group the NRA.

While those of us on the left might see a ruling such as this as disastrous, I do not understand why. Put another way, what is wrong with giving on the gun control front? To me, this issue appears similar to the issue with the ending of the federally mandated speed limit. At that time, there were some who posited that raising the 65 mph speed limit on rural interstates would result in a large increase in the number of highway deaths in this country. However, to the best of my knowledge, that hasn't occurred. It has been several years since I last looked at the speed limit issue, but I feel relatively confident in saying that at worst, the rate of decline of the number of highway deaths in this country slowed, but a spike from high speed limits never occurred. I could be wrong about that assertion though.

I believe a similar thing would occur if right wing gun owners got their wish. Is there really pent up demand in NYC, Chicago, SF, DC, and all the other cities with restrictions on handgun ownership? Are gun ownership rates in those areas going to skyrocket if the regulations are gone? If gun ownership rates skyrocket, does that mean that gun deaths are going to also skyrocket? I don't think that either of those two things will come about because I don't think that there is pent up demand for guns in those cities. Perhaps, if gun ownership rates in those cities do spike, there might be a spike in the number of accidental shootings or gun accidents, but in terms of widespread shootings I just don't see that developing.

This whole discussion leads to the question of the political effects on the liberal agenda as a whole on the devotion to gun control. Is this devotion costing votes in rural areas that could be garnered in attempting to develop a greater progressive majority? Possibly, but I also am not sure that even if gun control didn't exist that rural voters would reassess their positions and find themselves to be Democrats.

Additionally, I was thinking about one of the arguments some gun owners make frequently about the 2nd amendment. Namely this argument forwards the idea that the 2nd amendment allows Americans to defend themselves with force against a tyrannical government (hereafter, gubmint). This argument is ridiculous on several fronts. First, I want to discuss it one from a philosophical point of view. Then, I want to discuss this argument from a practical point of view.

From a philosophical point of view, the right to rebel against the gubmint doesn't make sense in the context of relatively free participation in that gubmint by the people of the polity. Put more simply, voters and citizens cannot rebel against themselves, and as long as free and fair (for the most part) elections take place on a regular basis, a tyrannical government is not likely to exist. On the one hand I think the gun owners who forward this argument are part of a broader group of conservative rejectionists who refuse to play by the underlying rules of democratic/republican government. On the other hand, I think that those who espouse this view are simply playing on larger cultural ideas of American history and are ignorant of any broader political philosophical ramifications of their beliefs. Obviously those things are not incompatible, but, to me, the degree of culpability of the two positions in making the argument is important. The conservative rejectionists being more morally and intellectually culpable than those playing on larger cultural ideas. The basic philosophical point remains however, which is that citizens in a democracy cannot rebel against themselves. (I am sure someone else has developed this idea much more thoroughly, and as soon as I know who that is, I will attribute them properly.)

Having discussed that aspect of this idea that the 2nd amendment will allow people the ability to engage in armed insurrection against the United States, let's talk about the more practical aspects of such a belief. To do this,we need to conceptualize, and this is going to be tough, how the United States Military would respond to an armed insurgency... Snark aside, using Iraq as an example for a tyrannical US gubmint fighting an armed insurgency, it is possible to see the ludicrousness of the belief that Bubba and his brother are going to be able to pull it off a successful resistance to the gubmint. Iraq is actually a much better example than the United States because of the lack of any authority to control the dispersal of military grade weapons in the period between the collapse of the Saddam regime and the implementation of the Coalition Provisional Authority. Given the success in which the USMC crushed the insurgents in Falluja, I find it very hard to believe that engaging trained U.S. Military personnel in a fire fight is a recipe for success. As the Iraqis have shown, destabilizing a U.S. military occupation is much more successful when one uses explosives. From this practical point of view, the idea that "bearing arms" in the form of private ownership of firearms provides a means by which "the people" can protect themselves from the gubmint is inherently flawed. Any citizens militia in this country faced with the combined military and para military forces of this country would not stand a chance at achieving their goals. I bet this part of the reason why, despite proliferation of such right wing groups in the U.S. in the 1990s, none of these groups have actually moved to engage in such a battle. They know their claimed right is a practical sham.

A Quick Question

I hope to follow up on this in a soon to be forthcoming post.

Are those on the political right knowingly or unknowingly racist?

Obviously, it is probably a continuum.

The business with a recommended blogger from Instapundit made me think of this question.

You are wrong

It has been almost a year, and I just wanted to take this time to say that you are wrong regarding your last post. So boo on you.

Why I hate "The Law"

A friend recently wrote me and said, "I'm really disappointed by how much you have hated your education in law. Do you think you would have been happier elsewhere, or is it law in general?"

This was my response:

It's law in general. To be precise, it is the practice of law in the United States. I could rant about it all day, there are a few main points:

1. The work is generally distasteful. You have to be a jerk to be a good lawyer. Believe it or not, I don't really like being mean to people.

2. Law is essentially political. We don't want to believe it, but Scalia votes the way he does on the Supreme Court because he is politically conservative, not because there are actual doctrines of law that support his positions. We are more used to that on the Supreme Court, but it is true of every court in this country from Federal Appeals Courts to state trial courts.

3. Related to number 2, Courts have far, far too much power in our legal system. This is a deep philosophical difference that I have with the legal system. In France and Germany, there are national civil codes that spell out the law and which the courts are bound to enforce. Here there are no such codes, and the courts are empowered to make up the law as they see fit. Yes, we have statutes, but it is different, and it is surprisingly often the case that a court will interpret a statute in a manner that flatly contradicts the terms of the statute. That just debases the whole system. The system is based on this belief that when an appeals court says something, no matter how absurd, no matter how ridiculous, no matter how contrary to common sense and reason, that whatever the court said is in fact law. I really think that debases us--it makes us less human and destroys our dignity. Ahh, but I've started to rant.

4. The legal system is amoral. There is a famous quote from Oliver Wendell Holmes, Jr. OWH is probably the most famous justice to sit on the Supreme Court in the 20th century, and I have an immense respect for him (not that he was always correct, however). He is one of the reasons I went to law school. He has been quoted as saying that law is not about justice. I seem to have seen the quote differently, but wikiquote puts it as "This is a court of law, young man, not a court of justice." The whole system is amoral.

The consequence of that is that it places all lawyers and legal actors on the same level. The man who defends the tobacco company has the same moral worth as the man who helps the wrongfully convicted. The man who works to keep detainees in Guantanamo indefinitely or who works to justify the use of torture is morally equivalent to the person who works to protect a detainee's right to habeas corpus or to ban the use of torture. Again, I just can't accept that. It debases us.

To put it another way, if law is not about justice, then there can be no justice in law.

5. The system is entrenched. It is not going to change. I went to a Flaming Lips concert last September. At one point, the lead singer Wayne Coyne said, "Songs aren't a good way to protest. What's a song going to do against a war? It's like throwing a popsicle into a volcano." Practicing law within the system and hoping that it will change is the same thing. It's like throwing a popsicle into a volcano. The fact of the matter is that the law is not designed to function for you, your family, and your friends. It's designed to function for two groups: large corporations and large law firms. The interests that corporations have is obvious, but people rarely realize that large law firms have a strong interest in ensuring that "the law" is confusing, obscure, and difficult to navigate. After all, if it were easy, they wouldn't have any clients.

So, in all, I can't bring myself to want to work in an amoral, unjust, political, distasteful, and entrenched system. If you want further proof, take a day off and go down to your local courthouse -- a state courthouse. Most of the litigation done in this country happens in a state courthouse. Tell me if you see anyone having a good time. You won't. Nothing good ever happens at a courthouse. There are three reasons people go to court: 1) you are severely injured and suing someone; 2) you have severely injured someone and are being sued; 3) you are facing jail time. Those three reasons will cover probably 90% of cases.

What about that could possibly be attractive?

Anyway, so, more of a rant and much longer than I wanted it to be. But let me finish by saying that the "education" aspect of a "legal education" is wildly overblown. As I have probably told you before, law school is not premised on the existence of a body of knowledge which the student is expected to learn. Law school is a gatekeeper to the profession, and that's it. In order to practice law, you need a J.D. Whether you learn anything is completely beside the point.

Bong Hits 4 Law

I have to say that I love the idea that future law students will be pouring over the Supreme Court's decision in the Bong Hits 4 Jesus case. Gotta love living in Our Modern Times.

Morris Dees

Morris Dees came to UT on Thursday and gave a brief speech about Justice. Mr. Dees is one of the co-founders of the Southern Poverty Law Center and it's chief trial strategist. He said he was primarily interested in making the rule of law real for everyone, and he argued that it is important that lawyers stand up to represent the people who are likely to be most endangered by public opinion. He specifically referenced the people we are holding in Guantanamo Bay

Then he said that he thought when future historians would look back on the upcoming generation of lawyers--you and me--that they would call us one of the greatest generations of lawyers because we will have shepherded our country through our current problems while also helping to ensure that our country lived up to its promises to the most vulnerable members of our society.

He almost convinced me.

But I can't see how his hope is based in reality. When I walk around the halls of UT Law, I don't see people who are concerned about Justice. For every person who has even a shred of interest in serving the public and maintaining the rule of law, I see at least 10 who will care if the price is right. I see 10 who will never care so long as their party stays in power. And I see another ten who will never care about Justice no matter the conditions attached.

I have a hard time shaking the belief that were President Bush to refuse to step down in January, 2008, or were he to start infringing our most clear and basic rights, that about 20% of the lawyers in this country would without question stand up and support him. Another 20% would stand up and rebel. The remaining 60% would wait to see which side could write the bigger checks.

Mr. Dees speech alone begs the question of how we can have the rule of law when any position is defensible. I mean only to say that when lawyers are willing to defend both sides of every issue, then it is a draw, a wash, to say that lawyers are protecting the rule of law in this country. So long as smart, intelligent, and well connected lawyers are arguing that the president has unfettered power under the Constitution, we cannot honestly argue that the legal profession as a whole is helping to maintain the rule of law.

Why Demand Apologies?

I was reading the Talking Points Memo by Josh Marshall this morning, and apparently some Republican State Representatives sent out letters stating the "‘secular evolution science’ is the Big-Bang 15-billion-year alternate ‘creation scenario’ of the Pharisee Religion." Of course Marshall goes on to mention how the ADL found out about the letters and the State Representatives apologized or something.

My question is this: Why demand apologies? What is the efficacy of that?
Rather than demand an apology, just use idiotic statements like this against those people in an election. Seriously, that statement about the Pharisee religion doesn't even make sense, and surely someone who believed that shouldn't appeal to all the voters of their district. So rather than get an apology, wouldn't it be better to just to beat them over the head with it next election? To some extent apology demands legitimate the person who made the offensive comments. Apology demands are like saying "Well, recognizing your worth as a person, I know you didn't meant to say what you said, so apologize for it and we can all get along."

Well, frankly, I don't recognize the worth of a person who says something as offensive, ignorant, and theologically wrong as calling science the "Pharisee Religion". I don't want an apology because I don't recognize that idea that people who say things like that have a valid place in political discourse. They should be forced to wallow in their stupidity and steadily pushed from the mainstream of American politics.

This all relates to to the Tim Hardaway business somehow, but I am not sure how yet.

Another Possible Amendment

"The President's power as commander in chief is limited to only the strategy, tactics, and methods of the military when in the field as part of a legitimate use of force under this constitution."

Also, it seems most of these amendments are things designed to reign in the power of the president.

Oh yeah, this should be up here as well

"a man's admiration for absolute government is proportionate to the contempt he feels for those around him" -- Tocqueville

Our Broken Constitution

Here is the list, some better written than others, of the changes, to the Constitution, that would improve our government:

-The President shall not use the military force of the United States, except when so authorized by Congress, or in order to repel an armed attack. Any unauthorized use of the military force shall be a high crime subject to impeachment upon motion of 1/4 of the House of Representatives.

-Give Congress the ability to remove cabinet level officers with simple votes of no confidence

-An amendment similar to the provision in the German Basic Law requiring party democracy

-A Congressional power to end war

-Repeal of the Direct Election of Senators, and specification that Senators MUST represent their state governments through appointment by state executives.

-Ending Pocket Vetoes

-Ending Recess Appointments

-Veto Overrides occur through a cumulative 60 percent vote of a joint session of Congress

-Update Congressional Domestic powers to reflect the era in which we live, meaning adjusting the language of Congressional powers such that Congress has the broad power to regulate the economy.

-abandon the electoral college

Other not very well thought out amendments we have discussed:

-Amending the Powers of the president such that the president is not the sole voice of the nation in foreign affairs

-Overturning Buckley v. Valeo

-Limiting the power of the Senate

-Proportional representation in Congress

-requiring Cabinet positions be held by the chairpersons of the respective Senate committees.

Other Changes that would not technically require a constitutional amendment:

-Increasing the size of the House of Representatives


What else have we come up with? Also, we should spend some time fleshing these out more.

Wow

Wow, we haven't updated in a long long time.

That kind of sucks.

Unfortunately, I really won't be able to post more of an update for about another 3 weeks.

A Quick Update

We haven't posted anything in a month and a half, but we're still here.

Here's a quick thought that's been running through my head:

I have a little saying that I've been using recently. I'm not sure where I got it, but I doubt I'm this creative. It goes like this: Democracy means sometimes you lose.

My point in using it is to suggest that we have to separate out our lower level politics from our high level politics. If we are truly democrats, as I think most Americans are, we have to accept that good democratic process will sometimes produce political outcomes that we disagree with--and that our personal political ends are not always realized is not a fault of democracy, but rather one of its strengths.

But if we take the statement a bit more seriously for a moment, what does it tell us about, say, institutional design? Does it imply that we ought to design institutions such that the losers in normal politics find their loss acceptable? Would it require some form of supermajoritarianism for all issues?

hmmm.

Holy Crap! Bill Frist Reads the News-Leader!

The News-Leader published this "reader letter" a week ago:

On March 2, the Senate approved legislation placing tight restrictions on the purchase of cold medicines containing pseudoephedrine and ephedrine, the ingredients used to manufacture methamphetamine. As News-Leader reporters have found, methamphetamine has done tremendous damage throughout the Ozarks.

While some states, including Missouri, already have laws that restrict the sales of medicines that contain meth ingredients, many don't, allowing drug users to cross state lines and purchase unlimited supplies. The federal legislation will close this loophole.

Under the new law, which Missouri's Sen. Jim Talent introduced and advocated for in the Senate, cold medicines containing meth ingredients will be placed behind the counter or in a locked cabinet. People seeking to purchase these products will have to show identification and sign a log book. While law-abiding citizens will still be able to purchase up to 300 typical 30mg cold medicine tablets a month, drug users seeking to use the medication to cook meth will see their plots foiled.

This law should have a particularly significant impact on Springfield: last year, Missouri led the nation in methamphetamine lab seizures while my home state of Tennessee had the dubious honor of coming in second. By helping the Senate pass a tight, tough national methamphetamine law, Jim Talent has made a real difference for Springfield residents and for our country.

Bill Frist, M.D., Majority Leader, United States Senate

Thanks, Bill! You do your best to get Jimmy Boy re-elected. I like how he's still so proud of that M.D. that he puts it before "Majority Leader, United States Senate."

The good news is that with the Republican party image tarnished nationally due to the incompetent leadership of the Prez, and the party's incompetent management in Missouri, it seems likely to me that Talent could be thrown out on his ass with the rest of them.

Here's hoping at least.

To clarify

I really only have two policy concerns.

First, is affirmative action programs. Lots of people think these are unjustifiable in any case, but I can't agree. My hope for this country--for the world really--is that we realize Dr. King's dream: that one day, men will be judged by the content of their character and not the color of their skin. The problem is that we're not there yet. And there's good reason to think that if we don't act to make a difference now, then we may never reach that point. Affirmative action programs are designed to get us there by ensuring that a person's achievement is not limited by societal prejudice. And we accomplish that by distributing goods based on race.

Even my description there is muddied and unclear. But can affirmative action be justified in this way? Is it acceptable to distribute goods based on race?

Second, what about proportional representation? PR is supposed to ensure minority representation. It is my understanding that PR originated as a way of ensuring different economic classes would be guaranteed representation in various European parliaments. Of course, minority does not have to mean economic class, or ethnic or racial minority--it can also mean political minority, i.e. people who maintain political views that are on the margains--the Greens and the Libertarians, for example. So, PR can be repurposed from its oringal goals for and justified for reasons unconnected to group rights.

But I would worry that it's vulnerable to attack.

That's about all I can come up with off the top of my head.

I think you're mostly correct, but it is a very troublesome area since conceptions of group rights have been accepted in a lot of different ways. To give examples, again, of what we talked about, group rights conceptions range from believing that ethnic groups have a right to an independent country to the belief that proportional representation is a better electoral system because it allows lower classes or women to gain seats in parliament to believing that racial or ethnic minorities deserve preferential treatment in admission to college.

Part of my problem is that I'm for some policies that are based on group rights. But I simultaneously have a strong dislike of group rights based on my internal norms regarding individualism and legal equal protection. In short, that all men are created equal.

So, my next question is then how can we separate out policies based on group rights? Can we tidy up our thinking regarding groups rights?

Group Rights

I was thinking about our group rights conversation the other day.
The idea of rights vesting within groups, instead of within individuals, is dangerous for multiple reasons.
As I said in our conversation, I think one of the greatest dangers posed by the idea of group rights is that the rights cannot be universalized without extremely negative consequences. On its face, the notion that certain people should be entitled to rights simple because of their membership within a subset of the larger population seems to be extremely minority friendly. That minority groups could get advantages vis a vis the majority population could help those groups achieve parity with the majority. However, attempting to universalize this concept though would mean that a given majority group should also get the same rights as the minority. This appears to destroy the concept of special protections, in the form of rights, of minority groups, leading to a balkanization of societies.

Another reason why the concept is dangerous is because the concept of group rights begs the question as to how to define a given group. There are Catholics all over the world, but are American Catholics, Latin American Catholics, Southeast Asian Catholics, African Catholics, and European Catholics alike enough to justify special group rights vesting in "Catholics"? Or are other differences within the broad group of "Catholics" worthy of protection? How the questions of group affliation and identity are defined are extremely important and difficult, such that to attempt to vest rights within a specific "group" seems inordinately difficult to me. A simple answer would be to let groups define themselves, but doing so wouldn't account for differences within groups that could lead to propagation of discriminations based on differences within those groups. I am not sure, and I could do the research on this, but I believe the federal legal structure dealing with American Indians allows for registered Indian tribes to define the members of their tribes how the tribes choose. This could lead to, and I believe has based on a hazy memory of a news article to the same end, situations in which economically and politically enfranchised majorities within tribes could define out members of the tribe, such that for federal legal purposes those disenfranchised members of the group no longer are able to avail themselves of whatever special benefits come from being a member of the tribe. However, as I stated, I am unsure as to the legality of such a move. I am just attempting to use the hypothetical to highlight definitional problems with groups as another problem inherent within the concept of "group rights".

We can talk more about this later.

Declare Victory, Move On

Just a quick thought about the WAR ON TERROR!!!!

(capitals and exclamation points necessary to show how this is used in politics)

Here's what I'd like to see the next Democratic president do with the War on Terror: Declare Victory and Move On.

The long and the short of it is that the United States will likely always be a target for some crazies. We can't stop that through the use of our military against nation states or substantial portions of states.

We do need to support and encourage democracy and democratic transitions around the world. It's just not likely to be successful if we use our military to do it. I actually do think that the lack of democracy in the Middle East is a contributing factor in the existence of Arab and Muslim terrorist groups.

Here's the thing though: even if the entire Middle East democratized, someone somewhere would want to kill us. You and I know, however, that no one can really destroy the United States.

So, what we need to do is jettison this rhetoric of war and the policies that accomany it. But with that we have to explain that we will do everything that is right to do in order to keep people from blowing Americans up.

What's wrong with this position? Anything?