What Roll Should the Court Give to foreign Decisions?

This morning on Laura Ingraham, she played clips from Justices Scalia and Breyer at a symposium at the American University Law School. Her mocking of the position of Justice Breyer put me off, and I though she might well be mis-stating his position and erecting a straw man. Some of her callers went farther, rejecting the notion that we submit our laws to foreign review, a notion that was no where near the original subject of discussion. I looked on-line and found the C-Span archive of the event and determined to watch it. (transcript here) During the introduction, I found some other commentary which I may address later in this post. I will comment on the symposium while I watch it.

NYU Law Professor Norman Dorsen begins by noting, "Since the early nineteenth century, Supreme Court cases have relied without much fuss of fanfare on certain foreign materials. For example the court in 1855 said that the English Magna Charta was relevant to a case, and more recently in the 1960's the court relied on the so-called English Judges Rules." I would add 19th century cases are much more reliant on English jurisprudence than one might expect. Take for example, Regina v. Hicklin, L.R. 3 Q.B. 360 (1868), a Victorian era case from Britain that was influential in American courts until Butler, Roth, and Kingsley (all 1957). Regina held that a work was to be judged according to its effect on the most vulnerable: children or weak-willed adults. 89 years of influence from Regina and the law that flowed from it.

Dorsen asks what I think is the key question, in his discussion starters: "When we talk about the use of foreign court decisions in US law, do we mean them to be authority, or persuasive, or rhetorical? If, for example, foreign court decisions are not understood to be precedent, in US constitutional cases, are they nevertheless able to strengthen the sense that US law assures a common moral and legal framework with the rest of the world?" If, for example, one subscribes to the doctrine of natural law, should we not be alert to the fact that others might discover useful portions of the natural law before we do, owing to their circumstances? If, for example, one subscribes to the principle of empiricism, should we not look about in order to judge the experience of other legal experiments?

Scalia responds by saying that he only considers foreign law in treaty cases, and provides the example of a recent case where he favored the interpretation of a treaty based not on what his own original reading would have been, but on a abundance of prior interpretations, since the purpose of such agreements is a common understanding. He goes on to make an argument for American moral and legal exceptionalism. One which I think he overstates. For example, he says, "If you read the Federalist Papers, its full of statements that make it very clear that they didn't have a whole lot of respect for many of the rules in European countries." This being Publius' Salon, I will suggest I have some understanding of what our friend Publius was saying in the Federalist Papers. While there are plenty of examples to be avoided, there are likewise plenty of examples to be followed. The principle of the founders was that we should not follow an example just because it is present, but we should follow an example when it is useful.

Professor Dorsen gave us four categories.

• The first category are those who find foreign decisions authoritative. Such a person would need to find some means to reconcile contradictions among foreign materials based upon some kind of selection process.
• The second category are those who find foreign examples useful to persuade others by a demonstration of some desirable end. Since most cases involve a balancing between two or more competing interests the question often hinges on whether or not the government has an interest sufficient to restrict other interests or to balance two competing interests, such as among consumers and businesses, demonstrations of the success of a decision can tip the balance. Suppose a Tory Britain implemented a widespread school choice program. It might be used to argue against the fears of school choice opponents
• The third category are those who find foreign examples useful only as rhetorical tools, such as when a conservative Justice might write, "The socialist government of X decided on Y, and was still able to achieve the kind of equity of result the former program had achieved."
• The forth, unstated category are those who find foreign examples useless.

The founders would, by and large, fall into the second category intending to draw examples from ancient and contemporary law and constitutions as they could be usefully applied to the American circumstance.

Finally Scalia observes (correctly, I think) that no one wants foreign law to be authoritative, the question therefore is whether it should be persuasive, rhetorical, or ignored. He says, "Well if you don't want it to be authoritative, then what is the criterion for citing it not? That it agrees with you? I don't know any other criterion to bring forward." This would seem to identify the persuasive and rhetorical categories, but he seems to dismiss them. Later Breyer is telling a story of being on a panel about the three branches, and a congressmen criticizes citing foreign law. Breyer tells us he replied by saying, "if here I have a [...] judge in a different country dealing with a similar problem, why don't I read what he says if it's similar enough? Maybe I'll learn something.' To which the congressman said, 'Fine. Read it. Just don't cite it.'" This is an argument for secret knowledge and esoterica. It also might constitute plagiarism, depending on the circumstances. If the Justice got a good idea from a foreign case, what is wrong with citing it?

Well, there are some good reasons. Most of them have to do with the fear that some later reader will assume that a mention intended to persuade was citing an authority. The court cites scientific studies, social research, and engages in hypothetical conjecture, and none of these are binding on the court. Scientific studies, social research, and conjecture is meant to be persuasive, not biding. Why should a Justice make reference to these kinds of evidence, but not a case that is on point in some foreign land just because some people fear things foreign?

Breyer provides some examples of the kinds of uses to which a foreign case might be cited, including, "it's an interesting example." He also makes an interesting case, that such citation constitutes recognition by an established, powerful democracy of younger, struggling democracies, that legitimizes the rule of law over there, because its citied over here. It inverses the direction of influence. Rather than suggesting that such a citation reflects a foreign influence on our court, he argues it is an American influence on other societies that validates their law and democratic struggle.

Breyer goes on to recognize the dangers and tries to wrestle with them, asking, "How do we know we can keep this under control?" unfortunately, he doesn't develop this idea here. Breyer rambles and his speaking has a real stream of consciousness quality. His quotes have been edited (with editorial marks) because he tends to add asides or change direction mid-sentence.

And as I argued earlier in the text, Breyer cities a school choice case (though not the one I had considered) and writes about, "an opinion I wrote in a case involving the Establishment Clause and school vouchers. And, of course, one of the things I had to face from my point of view, [was that] I thought it would cause too much dissension in society, which was relevant to my legal argument. So, of course I had to face the fact in France they subsidize a religious school and it isn't the end of the earth. And the same thing is true in Britain, and other countries. So, should I be aware of that? Yes. Should I [...] feel that conscientiously I might have to deal with that in my opinion? Yes. Is it something where I'm citing only things that favor me? Of course not. I mean, what I see in doing it is this is what I call opening your eyes, opening your eyes to things that are going on elsewhere, use it for what it's worth."

Scalia makes I point I was making earlier (this is the consequence of blogging as I watch the video), "Why is it that foreign law would be relevant to what an American judge does when he interprets - interprets, not writes. I mean, the Founders used a lot of foreign law. If you read the Federalist Papers, it's full of discussions of the Swiss system, German system. It's full of that. It is very useful in devising a constitution. But why is it useful in interpreting one?" Here Scalia brings up the framers use of foreign law, but what is becoming obvious is that he rejects foreign law not because its foreign per se, but because he's a strict constructionist. As a result he'd reject anything outside of the text of the law and, as he says, "I try to understand what it meant, what was understood by the society to mean when it was adopted. And I don't think it changes since then."

Now if your theory is to exclude everything except the text and the legislative intent of the author, why discuss what role should be ascribed to foreign law? That's like having a vegetarian discuss how much beef belongs in a good stew. Scalia is really having a different conversation. If you are fond of limited judicial power and original intent (as I am) then Scalia sounds fine, unfortunately, he adds very little to this conversation, other than to play to his choir. Now and then Scalia does offer a good criticism of the use of foreign law, but its not part of any sustained argument, just a few observations. For instance, he notes, "One of the difficulties of using foreign law is that you don't understand what the surrounding jurisprudence is." This is an excellent point, since without an awareness of the problem being addressed and the checks built into someone else's legal system, and other local conditions, reading the law can be either a kind of cherry picking, or a carnival of the bizarre. He goes on to discuss the numerous appeals a death row inmate has, and so the false appearance that we let them languish, rather than giving them so many appeals. "Because we've been so sensitive to the problem of an erroneous execution, so we allow repeated habeas corpus applications. I just don't think it's comparable."

Breyer's response is that judges and the legal problems they face are more alike than they are different. I'm not sure I buy that argument, but he does have a coherent worldview at work here.

Professor Dorsen asks a pair of questions. To Justice Scalia, he asks, what the harm is in considering foreign materials. Draws in Breyer's argument that America is not really that exceptional, "Are we that far from the rest of the world in terms of the way life is lived?"

To Justice Breyer he asks, "Is it fair to criticize you and other members of the court who do refer to foreign sources, even though do not consider them binding, [because you cite] cases that support the positions that you're taking? [...] Is it a fair criticism that there's a certain selectivity that is substantively or result-oriented in the way foreign references are considered by you and those who agree with you?"

This is a nice way to focus on some of the key questions. Scalia is asked to directly address exceptionalism, and Breyer selectivity.

Breyer's answer is poor, he says, that in some places, "fewer come to our attention." That may be true, but its a poor principle to argue for the utility of foreign law. On the other hand, if they use of foreign law is mostly just to make interesting asides, why should it matter? Breyer has really only been arguing that is better to be broadly aware of the world around you than it is to take an insular, narrow view of the law. I think there is an argument to be made here, but Breyer is not making it very clearly. Scalia is so much better at organizing his statements and speaking clearly.

Scalia follows up on the question Dorsen asked of Breyer, and suggests that what "comes to our attention" will be what we like to see. He refers to an analogy by Judge Leventhal that when you survey a cocktail party you notice your friends. The others you ignore. Dorsen than allows Scalia to answer the question directed at him. This is very interesting. One the one hand, Scalia answers it well, making a good point about American exceptionalism. He points out that in Lawrence, where the Court made reference to the European law, the European law cited was not established democratically, but by judicial fiat. The Texas law was an act of elected legislators. However, on the other hand, he has selected one of his own friends at the cocktail party, hasn't he. He selected a law that was established differently in Europe than it was in America. If we were considering the Massachusetts gay marriage case, he would not have that argument. Likewise, I'm reasonably sure there are still some laws somewhere in Europe still passed by legislative bodies (though certainly seem to be shrinking in proportion to the non-democratic EU institutions). This ends up being a question of the glass being half full or half empty. Is European law sufficiently like American law that Breyer is right to they are fundamentally similar, and the one can inform the other? Or is European law sufficiently dislike American law, so that American courts cannot benefit from such an awareness? Good cases can be made both ways, and inScalia's favor, the added complexity in solving that problem first in a case by case basis would make any serious use of European law quite a problem. Nevertheless, the most big-picture kind of awareness, such as French state support for Church schools in France didn't destroy the republic, still may prove useful. Because Beryer doesn't seem interested in a systematic use of foreign law, indeed seems to reject the idea, does mitigate against this problem. Breyer refers to the Lawrence case and, in this vein, suggests the citation was merely to refute the claim that sodomy was almost universally forbidden. That seems an appropriate use of the the EU position.

Scalia goes back to his argument that we see what we want to see when we scan the cocktail party- our friends: "It invites manipulation. You know, I want to do this thing; I have to think of some reason for it. [...] I have to cite something. [...] So my goodness, what am I going to use? I have a decision by an intelligent man in Zimbabwe, or anywhere else and you put it in there and you give the citation. By God, it looks lawyerly, and it lends itself to manipulation." This is a good argument. Fine, so we add this non-binding citation of something merely persuasive, not authoritative, but it looks authoritative. Indeed it may look authoritative in a way that other kinds of citations do not. Or, as I might add, all of the kinds of citations I mentioned much earlier, scientific and social research which is cited is also misused and liable to appear too authoritative. If you cite a crime study relating class and race to a sociologist or another social scientist, you will get a better understanding of what it does and does not say, what its inherent limitations are, then lawyers or justices could give it. Indeed, to attack Scalia's own approach, the Justices do a pretty poor job of being historians. Now when the cite a study on arscenic in drinking water, or on air pollution, how can they possibly know what they are talking about? They don't. At least no more than any well educated layman, which isn't nearly enough to excercise the kind of powers the Justices do. This is just the inherent problem in citing evidence from some field outside your own. This ultimatly argues for Scalia's position. Simply put it states, we don't know about anything but the law, so we should not consider anything but the law. The legislature can hold hearings, call experts, recieve pressure from public interests, and still they only do a decent job, hardly majesterial. So shouldn't the justices use a narrow interpretive scheme?

Following this Breyer moved the conversation to cases involving entities outside the country: Terrorism, multinational corporations, and people crossing borders. Breyer makes the point that these cases don't come in neat boxes, but crop up as contract cases or tort cases. This raises a good question. How much foreign law should a contract lawyer or a tort lawyer know? Because as more and more activity crosses borders, this kind of thing is inevitable.

Professor Dorsen asks, just as one state court might read another state's decisions and without any sense that they are bound by another state, decide, "by the cogency of the arguments, by the depth of the reasoning, by the logic. And if our courts look at another country's courts and they're able to find opinions that are persuasive on the merits, why couldn't that be a way of informing our judges in a positive way?"

Scalia replies, "Well, you're begging the question. I mean, your question assumes that it is up to the judge to find the correct answer. And I deny that. I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that's what it says, that's what it says." Again Scalia is really having a different conversation. A good amount of this is like sitting down with a historian and a physicist and asking them both how they use statements against interest to test bias. Scalia goes on to make a good statement that decisions about the law should be made legislatively by the representatives of all the people, not judicially by a small group of lawyers and judges. He ultimatly says, "I'm sure that intelligent men and women abroad can make very intelligent arguments, but that's not the issue, because it should not be up to me to make those moral determinations." I must criticize Dorsen for not having questions which address Scalia's judicial philosophy on its own terms.

Breyer responds by telling the story of a woman who tried to print up some pamphlets about a campaign in Britain, but ran afoul of campaign legislation. It was all very similar in general to the kinds of 501's and so forth that were so important in the recent American campaign. He then says, "would I be reasonable to say I'm curious how they dealt with it? I'm not bound by it. I mean, they didn't actually have that much written about it, but I'm curious." Scalia responds by saying , "Indulge your curiosity. Just don't put it in your opinions."

After this, the Justices take questions.

Someone asks if a question emerged that was totally new to us, but Canada had jurisprudence on it, what would Scalia do. He replied that addressing new problems is a legislatve problem, that the Constitution provides a floor upon which (I summarize in the metaphore) the rest of the law is built. He goes on to say, "It's not the job of the Constitution to change things by judicial decree; change is brought about by democracy. Abortion has been prohibited. You want to change that? American society think that's a terrible result? Fine. Persuade each other about that, pass a law and prohibit -- eliminate the laws against abortion."

The same questioner asked, "Isn't there a problem in using the foreign materials in that there is no way that a human being who is a judge in one country can have sufficient background information about another country to incorporate or to cite the jurisprudence of that other country?"

Breyer offers some verbiage but finally produces an answer: "I believe that all of us -- Justice Scalia, Justice O'Connor, Justice Thomas, the Chief, everyone -- has in a sense quite a similar framework that fits most legal cases. All of us look to texts, all of us are interested in history, all of us are interested in tradition, all of us are interested in precedent, all of us, in fact, want to understand the value or purpose that underlie the law, and all of us are interested in how our decision -- how it will turn out in terms of the consequences viewed through the prism of that value or purpose. But there are differences, I think, in the weights that different judges tend over time to give those elements in different cases. So that's why I think it's important not to overstate the differences. There are differences, but as law students or professors or judges or practitioners, the similarities are far more important, and I've seen that in my life, in whatever -- are far more important than the differences." So Breyer comes back to this core view of the world, a part of his metaphysics that tells him similarities are more important than differeces.

Another questioner says, "The oath is not to defend the United States, it's to defend the Constitution and protect the Constitution. " And then asks, " [How do we justify] that we protect and defend the Constitution as interpreted by a judge in Zimbabwe or Jamaica or India?"

Breyer starts off by saying, "Well, of course, no one thinks that you do." Then after a bit of meandering, he gets right to the point. "Do you think things outside the United States cannot be relevant to an understanding of how to apply the American Constitution? That's what's at issue. What is at issue is the extent to which you might learn from other places, facts that would help you apply the Constitution of the United States. " Nice articulation of his central point. Its the question to ask all those who recoil at the thought of foreign ideas contaminating the pure thought of American jurists. "I think Franklin and Hamilton and Jefferson and Madison and maybe even George Washington all would have thought that we, on occasion at least, can learn something about our country and our law and our document from what happens elsewhere. "

A questioner, a Professor Schwartz asks, "I think that the heart of the issue is really the function of the judge. Justice Scalia I think is absolutely right. He said it many times. The question is, what is the role of the judge? And there is a very sharp disagreement here. I would suggest, however, that contrary to Justice Scalia's view, the original intent theory is the novel one. The Weems case, which has notions of evolving standards, goes back to 1908. It was pretty much reaffirmed in the '30s. And the original intent notion really developed in the '70s. The fact is, I don't think you'll find much about original intent until you go back to Dred Scott, which is a decision based on original intent, as is, to a large extent, the Bradwell case, which says that Illinois can exclude women from the bar. I think, unfortunately, that response -- by the way, Alexander Hamilton said we should pay attention to the judgments of other nations. And when Madison was preparing for the Constitutional Convention, he read everything he could get his hands on about other governments. That doesn't mean that when we read this stuff, we have to buy it, but I think it means that we should try to learn. But that all depends on the function of the judge."

Scalia replies, "Let me answer that question. Alexander Hamilton, sir, was writing the Constitution, not interpreting one." But this ignores the fact that after the Constitution, these fellows kept their eye on other countries with a notion of what to do here. The Republicans were quite interested in what they could learn from the French Revolution. Of course Scalia could argue that most of them were legislators, or at least executives. I wonder how large is the field of the history of judicial philosophy?

Breyer then adds this interesting observation, starting with his emphasis on similarity: "I don't agree with you, Herman, that it's really a difference over the role of the judge. I think that it would be surprising if you could really get a psychoanalyst, that you would discover maybe we agree much more on the role of the judge than people think. [...] I think in a lot of areas of the law, the following shows up. It's not about the role of the judge. The judge is to apply the law. But there is a concern that if there are too few rules and too few clear approaches as to what goes and what doesn't go [...] if in fact you give judges too many open-ended procedures, rules and practices, what you will discover is that a man, a woman who suddenly has this power, for better or for worse, maybe unconsciously, maybe not even wanting to, will substitute her judgment, his judgment, for the judgment of the legislature. And that's wrong in a democracy. " He does come very close here to the Scalia position. "There are those who say that isn't the greater danger, the greater danger is the danger of the substitution of the unelected judge as a decision-maker for the elected parliamentarian congress -- member of Congress. And I think there is no way, actually, to resolve that." Scalia seems to have more faith that his method of adhearance to the text and original intent is the right resolution.

I'll leave off the last two questions as they don't really address this issue of the use of foreign law. Having spent the day (10 hours and 15 minutes) closely following both the C-Span broadcast and the transcript, I'm quite convinced that both Justices made sound points, have sensible positions, and that no one is talking about regarding foreign law as authoritative here. Those people who seem convicned that our soveriegnty is about to slip away can't point to Justice Breyer (though I think they will and already have since this symposium).

Adam Penenberg on Blogging Journalists

First off, I can't think of Adam Penenberg without thinking of Steve Zhan's excellent peformance of Penenberg in Shattered Glass. (links) Just last week I linked to a recent Penenberg peice, which I saw linked on Buzzmachine. Today I see Instapundit has linked to this peice on blogging journalists. Penenberg strikes me as a knowledgable, thoughtfull, and fine writer. I think Penenberg will emerge as one of the great business and technology journalists of his generation, a real leading figure.

Berlin offers to build tsunami warning system for Asia

The EU Observer reports that "Germany has offered to play a leading role in improving international early warning systems." However, the US also has a plan based on the Pacific Tsunami Warning Center in Hawaii. One the one hand, the Germans and Americans probably have equivalent theoretical and academic knowledge of the issue, but the Americans have the experience in running the PTWC, so the edge would go to the Americans, who were on the heels of the recent tsunami. As we know, people tend to make these kinds of choices based as much on politics as based on the practicalities, and a world wide American catastrophe system is bound to rub some people the wrong way. Never mind that the Americans, as a continental power have interests from hurricane detection off Africa to the Pacific Tsunami Warning Center, and thus are already watching half of the globe for one kind of disaster or another. India is taking a keen interest in, "an early warning system to prevent disasters like the recent Asian tsunamis," according to the EU Observer. The final decision about who and how an Indian Ocean disaster setup works may well depend disproportionatly on India.

Anchors Extinct?

Roger L Simon thinks they all but are. I would like to see them go as well, but my sister in TV news has a good reason they won't go so fast: audiences bond to anchors. Not as anchors per se, but as that one person who they can really get to know. On Fox News, for example, that familiar face has a show of news talk, and the news readers are lessor figures on during breaks. But its probabaly true that a successful post-anchor world needs to find someone to be the face of the channel, at least for regular periods of time. In an update, Simon describes Brit Hume as a moderator, and that very well could be an excellent post anchor kind of role, the trusted person who interviews his own journalists (or split screen panel) about the news.

Prof Regards Immigrant Gratitude as Mental Disease

Blue Goldfish posts a link to this FrontPage Magazine article by Ahmad Al-Qloushi about his experience in our system of higher ed. He tell us how his family coped with the hardships of the Iraqi invasion in 1990, and how he, "arrived in the United States for the first time 5 months ago with tremendous enthusiasm to study the political institutions and history of this extraordinary country." The instructor in his class, Introduction to American Government and Politics, apparently didn't like Ahmad's view that the Consitition was a pioneering document, and

"Instead of giving me a grade, Professor Woolcock verbally attacked me and my essay. He told me, 'Your views are irrational.' He called me naïve for believing in the greatness of this country, and told me 'America is not God's gift to the world.' Then he upped the stakes and said 'You need regular psychotherapy.' Apparently, if you are an Arab Muslim who loves Americ you must be deranged. Professor Woolcock went as far as to threaten me by stating that he would visit the Dean of International Admissions (who has the power to take away student visas) to make sure I received regular psychological treatment. This scared me. I didn’t want to be deported for having written a pro-American essay, so as soon as I left his office I made an appointment with the school psychologist. She let me go with a comment that I don’t need regular therapy."

I do have an idea of who it might be who needs regular therapy. Amateur diagnosis? Displacement. (Longer explanation of Displacement here.)

My Brother Needs an Intervention

He writes, "In other news, I can't stop playing the damn XBOX. I've even started playing the tennis game that came with it. It's really good. I don't even like tennis. But XBOX magazine gave it a 9.0."

[emphasis added]

School Board Bans XP Rock from Sponsored Performance

The Rossford school board has banned a Christain rock band from performing during school hours as part of a spondored anti-drug assembly. This is viewpoint discrimination by the state, but the Constitution doesn't recognize recognize a freedom to speak from any ideological position, it distinguishes between religion and other forms of speech. Both religious and non-religious speech are free, unless the religous speech constitutes establishment. This limits the endorsement the state can give to a message if some part of its content is religious.

Hugh Hewitt has summoned the law bloggers with this question, "Does anyone believe that allowing a self-described Christian band to play at an anti-drug rally put on by a public high school violates the Establishment Clause [?]" My own approach is historical not legal, and my views are more or less full expressed in this March post, but I ended up writing this e-mail to Hugh which covers some of the same ground as I did in March, but with greater economy.

Hugh,
I approach this as a historian of ideas, not as a lawyer, but I have taken a course involving the Establishment Clause. As such I look at the law as a body of ideas that govern behavior, not as a series of enforcable (rule of law) rules backed by state power. As such, I detect two theories at work here which differ on the meaning of neutrality. One theory (the even-handed approach) argues that Establishment/ Free Excercise requires that religion get no special advantage or disadvantage, that it be treated even handedly. This, they argue is neutrality.The other theory is the disengagement theory. It states that government cannot be even-handed, so it should not get involved in religion at all. That seems to be the theory at work at the Rossford school board. Another thing we historians do a little differently than the lawyers, is that we don't ignore the thinking that has fallen out of favor or no longer guides the court.

Between Lemon v. Kurtzman (1971) and Aguilar v. Felton (1985) the court generall subscribed to these ideas, which lead to the disengagement type rulings that flow from Lemon: 1) even-handedness is impossible, neutrality demands disengagement, 2) teachers cannot be trusted to avoid religous teaching, so any religious connection with state money constitutes a subsidy and so establishment, and 3) the state is deciding who gets funds, not parents and not students, so the state is establishing religion by its actions.This is in stark contrast to the period from Everson (1946) to Board of Education v. Allen (1968), when the court believed even-handedness was possible and neutral, teachers could be trusted not to establish religion in the classroom, and parents were making the choice to send their children to parochial schools, and so the state was mearly serving them as citizens. Starting tenatively with Mueller v. Allen (1983) and gaining dominance in the court starting with Witters v. Washington Dept. of Services for Blind (1986) the court returned to a weaker version of the earlier view that even-handedness was neutral, teachers could be trusted, and parents were making the choices. Since 1986, religion has only failed to gain even-haneded access when the court found coercion.

While I know you will not be partial to the 1971-1985 period, recall that these rulings follow the Great Society (1965-1980) in which government greatly expanded its scope to solve social problems. Under such conditions where the state acts to assertivly solve social problems, the states involvement in religion would have been far more liable to pick winners and losers the way it did economically and socially (say through bussing or affirmative action). Its only after Reagan era deregulation and the adoption of more neo-liberal (markets solve social problems better than state action) policies that the court felt that state involvement in religion didn't require disengagement, but was better served by a more open allowance of even-handedness. However, those who came of age legally during the Lemon period (1971-1985) or those who would prefer a return to statism of the kind seen in the Great Society will still tend to view the disengagement definition of neutrality as the better one. Also, I think its important that since the American constitution preceeds the ideological age ushered in by the French Revolution, the constiution only dealt with the subject of religion in its guarntees of freedom of conscience. Religion was the freedom on conscience know to the framers, and since they eschewed faction and preceeded the French Revolution, there is no constitutional freedom of ideology. The courts have recognized a freedom of ideology through the freedoms of the speech and press, but without the prohibition that the government could not establish ideologies. As a result, the schools do advance all kinds of ideologies rejected by parents in the schools (this is a familiar theme on the Dennis Prager show) but since they are non-theist, they have a home in the schools. If you look at the way that government run public schools are ideological venues for leftist ideas, one can imagine how a Lemon era restriction on government schools were a kind of protection fo religion from intrusive, overweening government.

Networks, Markets, and the Impact of Structure

Jeff Jarvis has has some really good stuff on his blog lately related to organizational structures. He links to a piece in Wired by Adam Penenberg about abolishing the FCC. The issue, as I see it, is that some mechanism needs to allocate share of the spectrum. The contraversy is over whether or not the FCC should regulate broadcast content. The answer, I think is technological and found in Jarvis' other posts. If you had the choice of getting news, information, and entertainment, but as a consequence you had to accept obscenity, vulgarity, brutality, and other messages you rejected directed at your kids, many people would (and have) said no. The low tech way to do this is to turn your TV into nothing more than a device for watching recorded selected media (DVD or VCR). Its not hard to find people with little kids who only let them watch videos, no TV. If we are stuck with TV, and TV is going to push the lines of the acceptable some regulation is required if large numbers of people won't simply be drummed out of the market. However, Jarvis directs us to Lost Remote's coverage of TiVo's move away from cable and to the PC; to a Yahoo story about Microsoft desire to "help millions of consumers stay seamlessly plugged into a world of digital music, movies, video games and television shows;" and a Reuters story about A&E Television Netowrks (A&E, HIstory Channel, and Biography Channel) and National Geographic "will use the Internet to broadcast programs in a deal with video-on-demand company Akimbo Systems."

Under such conditions, where PC's will provide content, and content will be on-demand, rather than scheduled for air, who cares what the broadcasters do. If people can get the information, news, and entertainment they want without anything they don't want, no one needs to regulate content, because every gets exactly what they want (subject to availability). This is how the market liberates us from regulation.

In a later post, Jarvis directs us to Lost Remote again, where Cory Bergman observes that TV is mistaking internet for a rival, when they should regard it as another medium for their content. What I find interesting is that this is exactly what the movie studios did with TV fifty years ago. Movies originally took a hostile view to TV as somthing that would compete with movies before they realized that movie studios could both show their catalogues on TV as well as make TV shows directly. Its no accident that after the radio netoworks which started TV (NBC, CBS, ABC) subsequent entries to TV have been movie studios (WB, Fox, Paramount).

In a more theoretical vein, Jarvis also links to Susan Crawford's blog where she discusses the new social order of "gecyberschaft." Jarvis offers gememeschaft instead, and I will offer gebyteschaft as my coinage for the idea. Mary Ann Allison of the Allison Group has coined "gecyberschaft" to refer to the new social order in the process of replacing gesellschaft (the industrial, or modern society) which itself replaced gemeinschaft (the agricultural, or pre-modern society). Now we've had this thing under some observation for a while, as my pre-modern, modern, and implied post-modern corespondences reveal. But while I think there is something going on here to say that the information age will produce different social networks than the industrial age did, both of which were different from the agrarian age, I think its easy to make to much of this, just as Ferdinand Tonnies and his followers did. The problems with this model, which in English is often identified by the use of the word "community" in sociological writing, is that it its not accurate. The earliest thinkers to embrace this dicotomy were concerned with "the world we have lost", as Peter Laslett put it in his important book's title. Gemeinschaft was idealized, and gemeinschaft portrayed as vacant and unsatisfying. This remained the model used by sociologists up to the current day. Its not hard to find the agrarian past portrayed as a happy world of extended families, communities, and an absence of deviant behavior. As David Warren Sabean argued in his groundbreaking book, Property, Production, and Family in Neckarhausen, the pre-modern society was no more free of deviance, strife, and conflict as our modern society, and that people's ties were ust as fragmented and liable to extend considerable distances as our own. His recent book, Kinship in Neckarhausen (which I have not yet read) appears to take the same position against the community concept, as seen in this review in the Journal of Social History. Indeed, I have argued on paper that Sabean's entire career is an attack on the concept of gemeinschaft and community. If the original basis of the model is flawed, why extend it? According to Allison, "In gemeinschaft, your status was ascribed (based on birth); in gesellschaft, it was achieved; and now, in gecyberschaft, it's assessed." But one can immediatly follow up with the question, is there achievement without assessment? Or ask, isn't assessment one of the key parts of a community, in which a figure like Sherriff Taylor knows the community so well that he can employ a context-based policing, rather than a strict by-the-book policing which his deputy might have employed?

Its hardly a surprise that anthropology is the best tool for wacking at sociological catagories. Sociology, one should never forget is a part of the intellectual project of Positivism, its not an academic discipline, but an early form of the kind of advocacy academics of which the various "studies" programs are such an obvious example.

To bring this all home, I would argue that new technologies like the internet, cable, and satalite don't create new social forms, but that people demand the society serve them usefully. (Functionalism alert.) Were people ever satisfied with TV and broadcast media, or did people always find it lacking in the same ways we do today (or perhaps in reverse, that is broadcast media are either inoffensive or they are edgy and so someone is always unhappy) but simply didn't have the means to do much about it, except abstain. If you had the choice to get information, news, and entertainment from an on-demand source, rather than a sceduled source which might insert its own ideas about what you want to see, wouldn't you choose it, and wouldn't people just as much prefered it in 1940 as they do today. The fact that as people get access to things outside the pop charts via Amazon, Netflix, and iTunes what they are buying is the forgotten, obscure titles rather than what they could have found at Blockbuster doesn't tell us that tastes have changed, it tells us that the old distribution channels never satisfied taste. Gecyberschaft? I don't think so.

More of the Secret Life of Don Rumsfeld

Sue Bob's Diary has an excellent close reading of a Tony Blankley piece in the Washington Times.

The Economic Millstone Called Communism

I was in a youth hostel in the mid or late 80's where I met another traveller from Mozambique. He was of Portugese decent whose family had been colonials there, but he had personal knowledge of Mozambique before and after the withdrawl of the Portugese and the arrival of the communists. He described a land where the Portugese provided decent administration and there was an abundance of food, although not other kinds of material wealth. I came away with a vision of Mozambique were the Portugese provided competant Western-style administration, left the agriculture sector to the benefit of the people, and organized the rest of the economy, especially mineral extration and the supply of goods, for the benefit of Portugal. The second part of the story involves the post-Portugese situation, where the communists, assisted by the Soviets, take over. The economy was re-organized and became more concerned with extraction than investment, and the people became poorer and poorer. Rather than investing in the long term productivity (capital investment) it was about giving the worker a boon. This didn't last, as the neccesary inputs went unput. The most striking example of this was the brutal fishing conducted by the Soviet fishing fleet. The coral reefs, the home to so many fish, were dynamited to give the fisherman quick access to huge stores of fish. This example of over-exploitation combined with ecological destruction is the legacy of communist economics. Over and over again communists kill the goose that lays the golden eggs because they want the proletariat to have a goose dinner now.

The news now is that Venezuela's communists, under Hugo Chavez, are looking forward to some goose dinner, and the recent example of Zimbabwe (and the countless examples from farther back) aren't disuading them one bit. Mmmm, can't you just smell that goose cooking, who can think about golden eggs at at time like this? Capitalists intuitivly know that money invested well pays out far more than the original investment. Apparently this is some kind of esoteric knowledge unavailable to the uninitiated. According to the American Thinker, "The government of Venezuelan dictator Hugo Chavez will expropriate its first farm, taking Venezuela straight down Zimbabwe road." Mmmmm, goose, aarrrrhhhh.

Stay tuned for the inevitable D'oh!

The Democrats Struggle to Find their Agenda

The thing I found most striking about the 2004 election cycle was the way the Democrats so thoroughly abandon the Clinton program. This reflects my distance from Democratic politics. From my point of view while Clinton himself was an ambiguous figure, his triangulating positions and his neo-liberalism seemed like electoral winners. The problem I overlooked was that (as Clinton himself predicted) Clinton was too conservative for the Democrats. Once rid of the man, they abandon his policies too, despite the only two-election win for their party since FDR. The country had moved left in the 1960's and 70's and moved right in the 80's and 90's. A more conservative Democrat seemed a requirement (and given the election results, I was probabaly right). But there were too many socialists of various stripes who regarded the Clinton era as a capitulation to Republicanism, rather than a genuine neo-liberalism of the left.

The Clinton wing of the party didn't have a serious candidate in the primaries (or they did but the primary voters rejected them soundly) and they decided to support the party in order to stay at the table. Now that all of that is over, the New Democrats (or the DLC if you prefer), the neo-liberals in the party have decided to argue that its their policies that should guide the party. The LA Times has covered the DLC claims and the left-liberal counter claims. In the third pragraph they write, "On one front, a liberal operative at a top think tank has accused the Democratic Leadership Council, the principal organization of party centrists, of pushing the party toward a pro-corporate agenda 'that sells out America's working class — the demographic that used to be the party's base.'" This has reflections of the 1890's when the famers made their last push to control the Democratic Party, despite the urbanization of the country. The working class is shrinking, and the Democrats would be wise to be a middle class party, not a working class party. The problem they have is the abundance of left criticism of the middle class. This explains the talk from the left of selling out, betrayal, and capitulation.

Take for example David Sirota's criticism of Democratic centrists "committed to ideas on trade, taxes and business regulation that help its 'wealthy cronies' and abandon the Democrats' historic working-class base while 'pulling the party further and further out of the mainstream.'" Only ideology can make one so blind as to suppose, even after this election, that the mainstream seeks bad economic policy. [Bad for the whole country, not bad if you think your constituancy is the group who bears the greatest hardship for the forces of creative destruction.] If the Republicans are the party of free markets (and the more or less are, the protectionists are a distinct minority) and they win elections, and there are neo-liberals on the left too, it sounds like this is a clear majority, and I'll point to Clinton as evidence that its the only way Democrats win. Other than Clinton and the post-Watergate Carter, you have to go back to Mr Great Society to find a democratic winner.

Let's look closer at Carter, because some feel he might offer a strategy to electoral victory. Thomas Frank, author of What's the Matter With Kansas? How Conservatives Won the Heart of America thinks that a statist, protectionist, social-democrat agenda combined with social conservatism will win elections. Who, the demographers might ask, combines these qualities? Labor. No one else. Maybe farmers, but they are smaller than the margin of error in most polls. Free markets benefit everyone, but the short term costs are mostly borne by labor. The Left is not socially conservative, and they are required for Democratic victories. The days when the unions could deliver democratic victories are over. The rest of the Democratic coalition won't buy a conservative social agenda. The socially conservative (and hawkish, another characteristic of labor and famerers) democrats are either dying off, losing elections to Republicans, or switching parties. So if this program were to work, the Democrats would have to purge the social left from their party. But its just as sensible to suggest that they purge the socialists. These guys wish it was still 1965.

So while the economic battle is fought by the social-democrats (protectionist, statist, and anti-business) and the neo-liberals (embracing markets not only in commerce but in society as a replacement for statist control and planning, and pro-business) , another axis of debate, which I alluded to above, the dove vs hawk debate emerged. Unlike the neo-liberals, the hawks don't have institutional power. The hawkish Democrats often abandon the party or lost elections in the post-Vietnam crisis on the left. Scoop Jackson is the last national politician the Dems had who was hawkish. I don't count Lieberman, because he proved to have no Joe-mentum in the party. Dems should ask, who did labor support in '72 and '76. Was it Jackson or McGovern - Carter? Its Peter Beinart who really opened this vein, with accolades from the DLC, with his recollection of how in '47-'48 the Dems purged the Communists and became strongly anti-Communist. Again the Left has such a hold on the party that I just can't see the party getting serious about national security. There are serious Democrats, but the party is not serious. Kerry is what passes for serious among Democrats, which is a demonstration of their lack of seriousness.

Part of the problem for the Dems is that most of their hawks are not thorough-going hawks. They are hawks on foriegn policy, but rank foriegn policy as a secondary or tertiary area of importance. Republicans have a constituancy that ranks foriegn policy as the most important issue. Without politicians who are both hawkish and put foriegn policy first, the best the Dems can do is a Clinton style willingness to intervene if the issue gets big enough, but an unwillingness to take chances to do much in foriegn affairs. I agree with as much of what Clinton said in foriegn policy as I am bound to for most politicians, but Clinton was content to just say pretty words and didn't enact his talk unless the issue became to obvious to ignore. This meant he never dealt directly with terrorism, but operated only on the fringes, it meant he allowed his North Korea policy to be hijacked by Carter, it meant he failed to intervene in several genocides until well after they were genocides.

American politics needs different schools of thought to apply the rigors of disputation to our various policies. If the Democrats don't manage to avoid defining their party by Leftist social policy; protectionism, statism, and central planning in economics; and dovishness, they will be irrelevant in American politics. American politics is best served by a main contest between the center-left and center-right with new ideas perculating in from every part of the political space to face the test of discourse.

Economic Consequences of 1960's Race Riots
Virginia Postrel finished off the year with this article in the New York Times reviewing a study on the economic consequences of the 1960's race riots. The analysis looks at two specific consequences, the labor market and property values. Postrel summerizes, "In cities with major riots, the economists find that the median black family income dropped by about 9 percent from 1960 to 1970, compared with similar cities without severe riots. This impact on the labor market may have actually been more severe in the long run. From 1960 to 1980, male employment in cities with severe riots dropped four to seven percentage points, compared with otherwise similar cities." And on property values, "The impact on property values is even more striking. In cities with severe riots, Professors Collins and Margo found, the median value of black-owned homes dropped 14 percent to 20 percent, compared with cities that experienced little or no rioting, from 1960 to 1970. The median value of all central-city homes, regardless of owner, dropped 6 percent, to 10 percent. "

Not surprisingly, "the two economists find that cities without riots did significantly better economically over the long run." The long term trends since Truman abandon the Jim Crow faction of his party (he was rewared with a third party challenger in 1948) have been for black incomes to converge with white incomes, and opportunities broadly, but net worth of black families remains low. Part of this is the longer accumulation of wealth by white families (transfered intergenerationally by inheritance) but a substantial portion of the black accumulation was destroyed in the riots.

Democracy in Iraq is Revolutionary

Belgravia Dispatch cites a BBC story that states activists, "want to limit the president to two terms in office and to ensure that he is democratically chosen in a pluralist election." The most striking sentence in the BCC story is this: "With the United States launching repeated initiatives for reform in the Middle East, all governments in the region feel under pressure to declare a commitment to some kind of change."

In an earlier post, Belgravia links to this NYT story. The Times reports, "The Iraqi election next month may be evoking skepticism in much of the world, but here in northeastern Syria, home to concentrations of several ethnic minorities, it is evoking a kind of earnest hope.
'I believe democracy in Iraq must succeed,' Vahan Kirakos, a Syrian of Armenian ethnicity, said recently. 'Iraq is like the stone thrown into the pool.'"

Belgravia makes the observation that its not exactly the Iraq effort producing the effects, but pushes the cause back one step. The Broader Middle East and North Africa Initiative is part of the Neocon vision to fight terror by promoting democracy. Iraq is just an example in the US effort to create change in the MidEast to advance modernity and undermine Salafi Jihad. In that sense, Iraq is the the stone throne into the pool.

More Falling UN Stock II

Following yesterdays link to the Belmont Club (its yesterday to me) I follow up with this link to Diplomad. They have this to say, "In this part of the tsunami-wrecked Far Abroad, the UN is still nowhere to be seen where it counts, i.e., feeding and helping victims. The relief effort continues to be a US-Australia effort." Belmont mentioned a coallition of relief providers and coordinators, the US, Australia, Japan, and India which was being criticized by the UN and its friends in the press (standing up for the downtrodden, I guess). Diplomad goes on to say, "Other countries are also signing up to be part of the US-Australia effort. Nobody wants to be 'coordinated' by the UN. " Singapore is recent joiner, but it looks like others are joining the functioning relief effort instead of the "legitimate" relief effort. "The local UN reps are getting desperate. They're calling for yet another meeting this afternoon; they've flown in more UN big shots to lecture us all on "coordination" and the need to work together, i.e., let the UN take credit. " This was Belmont's point in yesterday's link. Diplomad is the place to follow the day to day of UN folly. I point to this from New Years Day:

"I think Americans would be proud of the dedication shown and of the work being done by their Foreign Service, some incredibly competent and energetic USAID workers, and, of course, the US military. Everybody in the Embassy community is giving up leave, canceling long-standing holiday plans, volunteering for every imaginable duty -- including some quite hazardous ones -- and doing incredible work, all to save the lives of people, many of whom a few days ago probably would have been perfectly willing to burn down our Embassy or march against the USA. Most of the bureaucratic crap is forgotten and common sense rules the day. Americans are everywhere in this corner of the Far Abroad doing things that no other country on earth can or will do and at a truly amazing pace. Proud to be an American (and for the Aussies, you, too, can be very proud of your folks who are doing a bang up job -- as the Aussie military always does.)"

More Collapsing UN Stock

Belmont Club has the low down on the UN's failures (in providing aid) and their successes (in tarnishing those who do provide aid).