Who Can Really Say?

Eugene Volokh relates a short exchange with Geoff Stone of the University of Chicago Law School on faith-based lawmaking.

Stone:

George Bush appears to have no idea whatever of the difference between faith and morality. He acts arrogantly on the premise that cell-stem research, gay marriage and abortion are immoral, when in fact his views are based entirely on his own sectarian religious beliefs. His opposition to cell-stem research is no different, and no more legitimate, than a Muslim's opposition to Bush eating pork. Such a policy is merely faith masquerading as morality. As such, it is profoundly, blindly, and disturbingly incompatible with a basic premise of a well-functioning democratic society.

What Bush fails to comprehend is the fundamental distinction between acting in accord with one's faith and imposing one's faith on others. Bush has a right not to marry a man, not to have an abortion, and not to do stem-cell research. But he has no legitimate authority to prevent others from acting differently if they do not share his religious convictions.

Volokh:

Your moral views may come from your understanding of human dignity; another's view may come from utilitarianism; another's may come from libertarianism; another's may come from fundamentalist Christianity. None of these bases are somehow provable; none is constitutionally superior to the others. (In fact, many of the arguments for religious freedom itself came from the "sectarian religious beliefs" of deeply religious people; I suspect that they supported religious freedom for religious reasons since religious reasons were the only moral reasons that counted to them.)

Any other approach is itself deeply discriminatory -- it suggests that atheists, agnostics, utilitarians, and the like are entitled to enact their moral views into law (because they don't rest on religion) while devout Catholics, Protestants, Jews, Muslims, and others are forbidden from enacting their moral views into law (because they do rest on religion). That's not mandated by the Constitution, it's not in my view compatible with our national traditions, and it's not right.

Hence my claim: It is certainly quite proper to ask whether a law is morally or constitutionally sound. A law banning the eating of pork may be quite unsound. Likewise, laws banning -- or allowing -- abortion, infanticide, the destruction of embryos or chimpanzees for medical purposes, or the killing of members of endangered species might be sound or unsound.

But it shouldn't matter whether someone supports them because of his belief that laws should turn on the greatest good for the greatest number, his belief that we are all sons and daughters of Gaea and must thus protect our environment, or his belief in the Bible. For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms. The Constitution doesn't consign those whose moral beliefs rest on unproven and unprovable religious axioms to a lesser citizenship, under which they may not enact their views into law, while others with the same views that rest on unproven and unprovable secular axioms are free to do so.

I'll add that every law imposes the will of the majority on the will of the minority. A law prohibiting cock-fighting, for example, might be proposed, drafted, supported, and enacted by a legislative majority sympathetic to the arguments of animal rights activists, who think it's immoral (without reference to anything we'd consider religious) to use roosters in that fashion. And certainly, such a law would "impose" the morality of the animal rights activist legislators on those who want to hold cock fights. Volokh asks why such a result would be considered fine, but a law prohibiting the use of federal funds to pay for research that will destroy human embryos isn't, and it's a great question because there isn't a good answer to it. The only answer that can be given is the one Volokh shows must be rejected -- that my morality (which is uninformed by religion) is valid, while your morality (which is informed by religion), is not.

This debate also highlights a problem the Democrats have with "faith based" policies of any stripe. Since the election last fall, there's been talk about how the Democrats have abandoned the field when it comes to the relevancy of religion to public policy, and that they need to rejoin that debate. After all, there's no shortage of liberal religious thought that can act as a counterbalance to the Religious Right -- in my lifetime, for example, Martin Luther King and the Berrigan brothers stand out as good examples. But I think the Democrat's problems here stem from the fact that the party's liberal base has pretty much rejected any argument made from a religious perspective. Certainly Dr. King's speeches ought to make them blush upon re-reading them today.

Would King be laughed out of the party today for trying to "impose" his brand of religion on all of us? Just asking.

Posted by Peter at 7:49 AM | Permalink | Comments (6)

Here's a guy who walks (at 0.7 miles per hour) on a treadmill in front of his elevated desk at work. I guess it's all about exercise, and all that.

But why stop there? Imagine a Segway with a treadmill in place of the standing platform. We could walk all day standing still, but move around too! Next up -- the walking bed.

Posted by Peter at 9:30 PM | Permalink | Comments (0)

In the comments to this post, I wrote in response to my most ardent critic, "I think the world is safe, even if I don't blog about Michael Jackson."

And continuing with the standing policy here, I'm not about to start blogging about MJ. I'm must more interested in Phil Spector anyway.

Posted by Peter at 6:44 PM | Permalink | Comments (1)

If this agreement is worth the paper it's written on, then damn, that's gotta be some cheap paper.

Under the agreement, Democrats would pledge not to filibuster any of Bush's future appeals court or Supreme Court nominees except in "extraordinary circumstances."

For their part, Republicans agreed not to support an attempt to strip Democrats of their right to block votes.

Under the agreement, Texas Supreme Court Justice Priscilla Owen, nominated to a seat on the 5th Circuit Court of Appeals in New Orleans, would advance to a final confirmation vote.

I tried, but wasn't able to find anything I thought was really good vis a vis the Owen nomination, and by that, I mean something that wasn't from the Eagle Forum or People for the American Way. It's hard to find any wheat in the search engine chaff. But from what I can tell, Owen is opposed because of several TX Supreme Court decisions (she's a justice on that court) involving parental consent to abortion. There are a good dozen cases involved and Owen concurred in some and dissented in at least one, somewhat famously for the purposes of this fight. Those opposed to Owen, from what I can tell and suffice it to say, think she's not a friend to abortion jurisprudence. [Link via Outside the Beltway].

I'm working my way through to get a feel for what was going on in those cases but it's slow reading, and I'm not even sure I have the right cases yet. But so far, she doesn't grab me as filibuster material.

Posted by Peter at 8:18 PM | Permalink | Comments (1)

Last week before I saw Revenge of the Sith, I linked to a piece by Will Collier, who likes the Star Wars franchise (as I do) and was hoping for the best with this recent release.

Collier today sends us to a review that pretty much says it all for both if us -- it's the worst good movie ever!

Posted by Peter at 7:39 PM | Permalink | Comments (1)

Daniel Okrent's 18 month tenure as the NYT's public advocate is at it's end. Okrent waves goodbye and leaves a list of things left dangling, including:

Op-Ed columnist Paul Krugman has the disturbing habit of shaping, slicing and selectively citing numbers in a fashion that pleases his acolytes but leaves him open to substantive assaults. Maureen Dowd was still writing that Alberto R. Gonzales "called the Geneva Conventions 'quaint' " nearly two months after a correction in the news pages noted that Gonzales had specifically applied the term to Geneva provisions about commissary privileges, athletic uniforms and scientific instruments. Before his retirement in January, William Safire vexed me with his chronic assertion of clear links between Al Qaeda and Saddam Hussein, based on evidence only he seemed to possess.

No one deserves the personal vituperation that regularly comes Dowd's way, and some of Krugman's enemies are every bit as ideological (and consequently unfair) as he is. But that doesn't mean that their boss, publisher Arthur O. Sulzberger Jr., shouldn't hold his columnists to higher standards.

I didn't give Krugman, Dowd or Safire the chance to respond before writing the last two paragraphs. I decided to impersonate an opinion columnist.

Ouch. That's gotta hurt. Okrent also regrets being a bit too pithy:

Last July, when I slapped the headline "Is The New York Times a Liberal Newspaper?" atop my column and opened the piece with the catchy one-liner "Of course it is," I wasn't doing anyone - the paper, its serious critics, myself - any favors. I'd reduced a complex issue to a sound bite. The column itself, I'll stand by; I still believe the paper is the inevitable product of its staff's experience and worldview, and that its news coverage reflects a generalized acceptance of liberal positions on most social issues.

For The Times's ideologically fueled detractors on the right, though, there was no reason to invoke this somewhat more complex analysis when they could paint my more incendiary words on a billboard: "According to The Times's own Daniel Okrent. ..." I may wish they'd live by one of the same standards they ask The Times to adhere to - the fair representation of controversial opinions. But I handed them a machine gun when a pistol would have sufficed.

Although I don't think of myself as an ideologically fueled righty (your mileage may vary), I got to play with the machine gun and found it very easy to fire.

Okrent's successor is Barney Calame.

Posted by Peter at 8:46 AM | Permalink | Comments (4)

So -- what did I think of Revenge of the Sith? I think those claiming it's a breakthrough, so clearly better than the last two movies, are smoking something. (And I want some of it -- send me an email for contact information).

I'd say it's more like a slight improvement over the Clone Wars, which itself was (IMHO) a slight improvement over the Phantom Menace. For reference, I didn't think Phantom Menace was as bad as most seemed to, and I didn't think Clone Wars was that much better, although it was an improvement.

The problem as I see it, is that this second trilogy is fundamentally different from the first. The original three movies dealt with a relatively simple hero story -- David and Goliath if you will. Chases, escapes, attacks, defeats, small good guy with no chance up against evil big guy with all the tools, back to back "We're all gonna die" "No we're not" moments, the "Force" coming through in the end and all that. Really elemental stuff that is seems made for an action movie. Having Luke be Vader's son was a nice twist that solidified the heroic nature of the story.

But this most recent trilogy is really very different. Instead of David and Goliath, we have a story about a complex psychological transformation. It's the story, of an 8 year old boy with extraordinary abilities who eventually becomes Darth Vader, played out in a backdrop of political intrigue. With Sith, Lucas proves he's just as bad with the psych transformation as he's been with the politics.

The political plot in the last two movies was confusing and shallow, and if you really think about that it says alot. I mean, you'd think it'd be easy to make an unconfusing and shallow plot about poltical manipulation, right? Not for George Lucas! Although we all know it's coming, most of the transformation is only hinted at in Episodes I and II. In Episode III it shares the stage with the politics, and frankly, the politics came out better. Which isn't saying much. I think Anakin's transformation was alternately confused and clunky. It's not so much that we don't know why he's making the decisions he is -- just that the entire process isn't expressed very well.

To me, those are the fundamental weaknesses. But, as Yoda might say, "strengths there are too". First, as expected, the FX deliver. Second, [implicit spoiler follows] the final confrontation in these six movies (hinted at by Obi Wan in the very first movie) played very very well. If you want to know why Darth Vader killed Obi Wan by taking off his head (or seemingly so) in the very first Star Wars, you want to see this scene. (For those who have seen the movie, comparisons in the comments to the Black Night are encouraged.) And the final scenes did a nice job joining Episode III to it's pre-sequel, the now named Star Wars: A New Hope.

So, to damn with faint praise, good enough, it was.

Posted by Peter at 8:06 PM | Permalink | Comments (2)

Jeff Jarvis has sold out to "The Man", and as most sellers are, he couldn't be happier.

I read Jarvis often enough, and think a guy like him is probably going to do very well with this approach. Good luck, Jeff.

Posted by Peter at 7:15 PM | Permalink | Comments (0)

James Joyner is all over recent casting decisions for the upcoming Spiderman 3 and and X-Men 3.

Posted by Peter at 7:06 PM | Permalink | Comments (0)

Tim Blair has little use for Imus sidekick Sid Rosenberg. Although he doesn't mention it in these words, I think shark jumping was involved.

Posted by Peter at 6:58 PM | Permalink | Comments (0)

I haven't blogged about the pissing contest in the Senate over Bush's Circuit Court judicial nominees yet. For the last several months there's been a steady back and forth stream of stories over whether or not the world will come to an abrupt end, depending upon whether a minority in the Senate can block nominees from receiving up and down votes, or whether one or more of the contested nominees is actually confirmed. The badminton birdie of choice has been the fillibuster rule, which more or less allows "debate" to continue on a matter until at least 60 Senators supports an end to debate and a subsequent vote. Of course, there is no actual debate -- it's all deep down technical Senate rules stuff which, believe it or not, pretends that debate is taking place when it isn't. Considering the quality of what most Senators have to so about so many things, I ought to be grateful I suppose.

But whether or not debate actually results, the GOP is considering changing the Senate rules, something it can do with a simple majority, to end the debate that isn't happening at the moment, so that a vote will occur. Perhaps the Democrats should support a rule change that requires Senate voting to follow the same functionality of Senate debating -- that is, since we don't actually have debates while the Senate is debating, perhaps it would be a good idea if the Senate could also vote without actually voting? The proposal to change the rules has resulted in some of the worst pandering over the history of limited debate in the Senate, and that's what I haven't been writing about because most of it has gone well beyond the simply idiotic -- it has approached and surpassed the threshold of being complexly idiotic.

To me, the "to fillibuster or not to fillibuster" fight, and what the world will be like tomorrow if there is or isn't a fillibuster of these or future judicial nominations, is mostly not that important. If there's anything important here, it's the 11 nominees themselves. If Bush is right to nominate them and the Senate GOP right to fight hard enough for them by changing the fillibuster rule, it's because these nominations are good, and fine and should be confirmed. On the other hand, if the nominees are indeed as bad as the Democrats say they are, then in my view there's nothing wrong with fillibustering them at least in the abstract, even if there isn't a long, tried and true history of using the fillibuster like this before. The devil lies in the details, and those details include, for example, whether Priscilla R. Owen is indeed as awful as the Dems say she is. In a perfect world I'd try and find some neutral explanation or rationalization for the Dems opposition to her. We'll see if the world becomes perfect over the weekend.

But in the meantime, the world remains far from perfect, and this is plainly evidenced by the fact that Senator Rick Santorum still represents PA in the US Senate. Today he brought Usenet Newsgroup ethics to the esteemed floor of the Senate, when he said:

And we shouldn't go mucking around in this institution and changing the way we've done things, particularly when it comes to the balance of powers between the three branches of government. And the independence of one of those branches of the judiciary. We must tread very carefully before we go radically changing the way we do things that has served this country well, and we have radically changed the way we do things here. Some are suggesting we're trying to change the law, we're trying to break the rules. Remarkable. Remarkable hubris. I mean, imagine, the rule has been in place for 214 years that this is the way we confirm judges. Broken by the other side two years ago, and the audacity of some members to stand up and say, how dare you break this rule. It's the equivalent of Adolf Hitler in 1942 "I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine." This is no more the rule of the senate than it was the rule of the senate before not to filibuster. It was an understanding and agreement, and it has been abused. .

The quote comes via Eugene Volokh, who in his usual fashion, takes it apart with the precision of an particle physicist examining a quark:

One can analogize anyone to Hitler. Some people wear mustaches. Others are charismatic political leaders. Others invade countries. Others disapprove of homosexuality. (I set aside here the debates about homosexuality among the Nazi elites; I refer here to the Nazi government's actions with regard to homosexuals.) But I take it that if a Democrat said about the invasion of Iraq ? or for that matter of Afghanistan ? "It's the equivalent of Adolf Hitler in 1939 saying 'I've got military power; I'll invade some countries,'" Santorum would rightly fault the speaker (as he apparently faulted Sen. Byrd for his Nazi analogies on the other side of the debate).

When you link someone to a person who is famous for mass murder, your argument will carry the rhetorical connection to mass murder (or at least to deadly megalomania) even if you purport to be drawing a much more limited analogy. (Compare the Judge Calabresi incident from last year.) I take it this must be the intention, since otherwise why analogize to Hitler, rather than to one of the many other people who have had more than their share of gall? And this, I think, is indeed unfair and in bad taste.

Of course, Santorum has apologized. I just wish he'd go away. Or grow a really cool Hitler mustache, 'cause you know, like, then we could compare him to Hitler too.

[Linked to the Beltway Traffic Jam.]

Posted by Peter at 6:41 PM | Permalink | Comments (0)

Just a few more words about the nearly released Star Wars Episode III: Revenge of the Sith.

There's a general consensus (with which I agree) that the first three Star Wars movies (now known as Episodes 4, 5, and 6 -- 'er, I mean IV, V, and VI) were vastly superior to the more recently released Episodes I and II. I and II are often criticized for among other things, their bad dialogue, terrible acting, a confusing political sub-plot, and the unforgivably annoying Jar-Jar Binks.

But as we anticipate the release of Episode III, keep the following in mind: the first three movies also suffered from some bad acting (although not nearly so bad as Hayden Christensen in II), and weak dialogue. They also featured the highly believable Ewoks, who defeated an armored Imperial force, mostly with spears. Right.

The line between good and bad in the Sci-fi fantasy realm is thinner than the chances of destroying an operational Death Star are small. I fully expect the usual Lucasian deficiencies when I watch Ep. III on Thursday. There's no reason to think the acting will improve or the dialogue will climb out of the dreaded Pit of Banal. But it doesn't have to for the movie to work, and work well. It just needs a good story and tight direction that allows us to enjoy the experience without having to dodge too much dreck. Will we get it? The early review buzz suggests we just might.

Will Collier thinks another hurdle may be that everyone knows the ending: "Which brings us to the second inherent problem, and this week's "Episode III"--a movie in which 99% of the audience already knows the ending". I don't think this is a problem, though. Everyone knew how the third installment of the LOTR saga would end, with the ring destroyed and Sauron's forces routed, but it didn't stop folks from enjoying the ride. Why should knowing that we're going to see Anakin turn to the Dark Side be any different? It will either be well done or not, and will rise and fall on that basis.

But I think Collier gets it right with his last thoughts:

Unless you've been living in a cave since 1983, before you even think about watching this movie, you already know that in it, the Emperor wipes out the Jedi Knights while seizing power, Anakin Skywalker becomes Darth Vader, and Skywalker's two children, Luke and Leia, are hidden from him before they're born. That's it. That's the story.

All we lack are the details? and how well those details are delivered will determine whether or not Episode III--and by extension, all of the "Star Wars" prequels--were worth the trouble.

Personally, it's not an exaggeration to say that I've been wanting to see the climactic Obi-Wan/Anakin duel for most of my life. If they got that right, I'll be willing to forgive a lot that's come before. The tidbits of reviews I've read so far (I'm avoiding spoliers to a near-manic level, despite, er, knowing the ending) suggest that Lucas may have pulled it off this time.

I hope so. I'd hate for this to be another case of a movie that can't live up to its expectations, or even its trailer.

Damn the Force -- I just hope it's good.

[Linked to the Beltway Traffic Jam.]

Posted by Peter at 6:44 PM | Permalink | Comments (1)

Daniel Drezner is glad to see George Lucas coming clean on how Episodes I & II of the Star Wars co-trilogies were -- eh hem -- weak. He quotes Entertainment Weekly:

Lucas believes that his biggest gamble was starting the saga with Jake Lloyd's gee-whiz kid in Menace. Even his marketing team was skeptical. "That's a little bit why it got overhyped. People [here] were nervous if it was going to break even," says Lucas of Menace's notorious promotional push. "I didn't care. I said, 'This is the story. I know I'm going to need to use Hamburger Helper to get it to two hours, but that's what I want to do.'"

I'm taking Thursday off and will see the movie at 10:00 a.m. I got in this habit several years ago when Episode I came out, and followed it for all three of the Lord of the Ring movies. It's a great way to see big movies w/i 24 hours of their release, without waiting on long lines and watching them in mobbed theaters. It's a nice way to spend an odd day off.

Posted by Peter at 8:31 PM | Permalink | Comments (0)

I was pleasantly surprised today to find the household received a class action lawsuit notice. When last we left the story of the Powerbook G3, I'd spent money on new batteries and parts to get the darn thing to charge the batteries so they'd -- well hold a charge. It never worked right and whenever I've used the G3 it's always with a power cord plugged in to a wall. It's not exactly a portable device in that configuration, if you catch my drift.

But today, we find out that Apple's agreed to settle a no class action suit claiming the battery charger was defective! We've got two of the damn chargers and neither worked, and now we know why. Hope springs eternal that I'll shortly be blogging wirelessly, and cordlessly, from the deck.

Posted by Peter at 6:48 PM | Permalink | Comments (0)

I didn't mean the last post here, over 2 weeks ago, to itself be an epitaph. I could explain that given the nicer weather, my new full-time job (I'd been a contractor for a few years), the start of the baseball season, cooking on my new gas grill, and a nasty cold in the last week, I'd taken a needed break. Well, I took the break, but mostly just because I felt like it.

The blog juices got flowing today though when I saw the Supreme Court of the United States (SCOTUS) decided the Wine Case. The issue was mightily and exhaustively blogged last August by Todd Zywicki, a Volokh Conspirator (Parts I, II, and III are here. You're on your own for Parts IV through I don't know, something like 15 or more suceeding installments). Essentially, as Zywicki explained, the case was about whether or not States may treat in-state producers of alcoholic beverages more favorably than out-of-state producers. I think we're all pretty used to the idea that WI can't tax out-of-state cheese at twice the rate of in-state cheese. But NY and MI both allowed in-state wineries to sell bottles by mail to in-state buyers while prohibiting out-of-state wineries from doingt the same.

The answer from SCOTUS today was that no, a state can't disfavor the out-of-state producer. According to the decision, while nothing's stopping any state from banning all wine sales, or just sales via the mail, if the state decides to allow sales via the mail it can't favor local producers over those from out-of-state.

If you're interested in further details, stop reading here 'cause that's not what's on my mind. Rather, what interests me is the Court's lineup, a virtual Marvel Teamup, never before seen in recent SCOTUS history. On the side of good (against discriminatory sales) were SuperHero Conservative Justices Kennedy and Scalia, joined by SuperHero Liberal Justices Souter, Ginsberg, and Breyer. On the side of evil (in favor of the states' right to discriminate) were SuperVillain Conservatives Rehnquist, Thomas, and O'Connor teaming up with SuperVillain Liberal Stevens. That's quite an amazing lineup if you follow the court. According to Prof. Bainbridge:

Even casual followers of the Supreme Court will note that this is a VERY unusual lineup. According to the Harvard Law Review's statistical analysis of the Supreme Court's 2003 term (available to Westlaw subcribers), in non-unanimous cases, Stevens and Thomas vote together only 16.4% of the time. Conversely, Scalia and Souter voted together in only 20.4% of non-unanimous cases. In none of the 19 5-4 decisions handed down in the 2003 term did the Justices align as they did in this case (the 5 justice majority consisted of Rehnquist, O'Connor, Scalia, Kennedy, and Thomas in 9 of the 19 cases and of Stevens, O'Connor, Souter, Ginsburg, Breyer in 5.)

Even more strikingly, out of the 175 5-4 decisions handed down in the ten terms between 1994 and 2003, the Harvard Law Review reports (again available only to Westlaw subscribers) that the Court has never - not once - broken out as it did in this case. Think about that: The 5 justice majority had never voted together in a 5-4 case once in the last 10 years.

I'm sure the decision will be out in comic book graphic novel form shortly.

[Linked to the Beltway Traffic Jam.]

Posted by Peter at 6:36 PM | Permalink | Comments (1)