Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

 
Logic from Iran's nasty little tyrant Mahmoud Ahmadinejad:

"If the Holocaust is real why are those who have the opposite opinion about it being arrested and jailed?"

I'm no fan of the laws in Europe that prohibit questioning the Holocaust -- history should always be open to debate, and even if the evidence for an occurrence is overwhelming, the answer to a crackpot who denies it is ridicule, not prosecution. History may not be a true science, but it partakes enough of scientific and academic methods that criminalizing getting the "wrong" result is not acceptable, and will inevitably put a damper on energetic inquiry. It's not a coincidence that the logic of criminalizing one's scientific opponents has spread to the global warming debate, for example, with at least one global-warming proponent advocating "Nuremberg trials" for global warming "deniers."

But back to A-Jad (like that? Like A-Rod, and a lot easier than typing "Ahmadinejad" and having to look up the spelling each time). Someone needs to ask the question back at him: "If Islam is real, why are those who have the opposite opinion about it being arrested and jailed -- or killed?" The penalty for apostasy in Iran, of course, is death. Add hypocrisy to the long list of the little bearded schmuck's vices. posted by Thomas at 10:36 AM

 
Right after the first eleventh of September, I penned a quasi-Coulterish rant urging that the United States issue a formal ultimatum to any country with any ties to any international anti-American terrorist group, declaring that the United States would treat all such groups and any nation that supported them as constructively comprising an anti-American alliance. Further, we would deem an attack by one to be constructively an attack by all, and hold each alliance member responsible. There would have been no silliness about including North Korea in this "axis of evil" (which was transparently an effort to suggest that there wasn't anything particularly Islamic about our present enemy). We should have required that each nation grouped as a member of this enemy alliance take immediate, concrete steps towards ending support for terrorist groups and cooperating with American counterterrorist efforts, as a condition of getting off the s--- list. The conditions would be severe indeed, to the point where we wouldn't really expect the more obstinate of the bunch to agree. That would be the point. The ultimatum would expire in a week, and would be followed by an immediate Congressional declaration of war. A real one, not one of the squishy "authorization to use military force" quasi-declarations. The attack on America on 9/11 was serious enough for us to have finally reached into our 1941 toolbox, and it's rather poor that we didn't.There should have been none of this democracy-building idealism (although I have to confess I was hopeful in the beginning that the Administration's strategy of setting up a model democracy in the Middle East might have been a viable strategy). Instead, since we obviously can't conquer and hold the entire Middle East, we should have done what we profitably could.In the old days, when a local despot got out of line, some great power or other would send over a few ironclads, send a landing party to seize the customs house, and run the country's trade for the occupier's benefit until the local pasha/nawab/caudillo got tired of living on dog food and made peace. This had the benefit of not getting too many of the occupiers killed (you could seize an economic center of gravity without making too big a footprint, thereby inspiring insurgent resistance and risking your supply lines), and of helping defray the occupation's costs. True, it didn't always work (see Cinco de Mayo), but Iraq's not looking so great, either. I doubt even Rumsfeld, knowing what we know now, would have gone in again.I think President Bush's administration made its greatest mistake in taking a halfway solution. Afghanistan was a no-brainer -- it was harboring al-Qaeda, and al-Qaeda dunnit, full stop. I think a majority of Americans would have supported the All-In Real Axis Of Evil Tournament option set forth above. Instead, the Administration, by going several bridges too few, went one bridge too far in Iraq. It went beyond the obvious, without adopting the truly global approach that would have allowed people to comprehend the global threat. As it was, people reasonably wondered why Iraq got unlucky, and not, say, Iran or Syria. The administration was left with the WMD argument -- which really did make Iraq look like a preventive war, as opposed to one campaign in a global responsive war on all terrorists and all their state sponsors. posted by Thomas at 5:52 PM

 
Via Lileks, this gem from the inimitable (thankfully) LA Times columnist Joel Stein, who completely freaked out when a local real estate broker stuck a flag in his lawn:

So the reason I didn't want to put a flag outside wasn't because I disapprove of our international policies. It was because I didn't want to associate myself with the other people who put them up, and with their unquestioning, tribal, us-versus-them, arrogant mentality. Though I love being American, I don't want to proclaim it as the sole basis of my identity.

As long as we're speaking of arrogance, let's review: Joel thinks the other people (not "some") who put up flags must have an unquestioning, tribal, us-versus-them, arrogant mentality.

This really shouldn't need much of a response, but since Mr. Stein gets paid to write a column at a major, if declining, newspaper, and since the Times does exercise some selection in deciding who to hire, there could conceivably be some people who are even thicker than he is. So here goes: It's possible to love being American without making it the "sole basis" of one's identity. I am a member of a family, of a church, and of a country, among many memberships of which I am proud. To paraphrase a better wordsmith than I am, it is altogether fitting and proper that I should be so. Something about "the mystic chords of memory, stretching back to every hearth and patriot grave" comes to mind.

All those loyalties make up parts of my identity. Does that make me "tribal"? I guess it does, to some point. "Breathes there the man with soul so dead/Who never to himself hath said, This is my own, my native land?" My ultimate loyalty is to what is right, but I'm not an island. I owe duties of loyalty to those closest to me. I believe that this means that when the interests of, say, a family member and a stranger honestly conflict, or those of my country and another, and the moral equities are otherwise equal or too close to call (that is, when it's not a case of one being clearly in the wrong), I should favor my family member or my country over the stranger.

This may be a little too sophisticated for the self-anointed sophisticates to comprehend. I am not saying "my country, right or wrong." I'm saying that in a close case, where reasonable arguments can be made by both sides, the side I should pick is the side closest to me.

Loyalty and patriotism aren't just about picking sides, either. It's plenty possible to fly the flag without making any comparisons with other countries. We can love freedom and other good things both in the abstract, and as they are expressed in our country's heritage. As an analogy, I love kindness and humor and beauty and self-sacrifice both in the abstract, and (more thoroughly) as my wife Danielle exemplifies them. Loving those qualities in her doesn't mean I can't also be moved when they appear in others, which may be why I find myself moved not only by genuine expressions of American patriotism, but also by the honest sentiment of foreign patriots for good things as they are expressed in their countries. The French generally annoy me, but danged if I don't like Smetana's "Ma Vlast" cycle, or the scene in "Casablanca" when Victor Lazlo has the band play "La Marseillaise," both of which appeal precisely because they are expressions of patriotism.

(Note to Danielle: This does not mean I go out of my way to appreciate beauty, etc. in other people than her. Really. Not even at the beach.)

I would imagine that most people who fly the flag would agree, if it occurred to them to analyze the reasons they do the things that come naturally to them. I have rarely encountered an actual specimen of the kind of mindless nationalist Joel Stein seems to think we all are. I have, however, encountered one whole lot of Joel Steins.

Joel Stein is tribal, too. To a great extent, he's basing his identity upon what he's not: He's not a flag-waver, with all the simplistic arrogance that supposedly entails. The irony of his criticizing an "us-versus-them" mentality in an argument that specifically defines himself as opposing another group is something that may not entirely escape him: "Like everyone else, I'm just blindly trying to fit in with my clique." I just wonder if all the other "cliques" have such a cardboard impression of the others. posted by Thomas at 11:46 AM

 
As we approach the Fourth of July, we're told that America is apathetically sacrificing liberty in the name of fighting terrorism.

Horsepucky. Utter steaming horsepucky.

To everyone who says the NSA's monitoring of telephone calls to international calls to numbers associated with terrorist suspects is the end of liberty as we know it, consider this:

When they passed laws banning smoking indoors (I don't smoke and am generally annoyed by people who do, but not everyone thinks as I do), you didn't care. When they mandated seat belt and car seat laws (and imposed ghastly fines on people whose two-year-olds decided to throw tantrums and climb out of their car seats just as the minivan pulled up next to a cop -- speaking not entirely hypothetically here), you didn't care. When they cranked up tax rates to the point where ordinary people can expect to see up to 40% of their incomes taken (here in California), depriving them of the freedom those funds would have given, you didn't care. When you banned fireworks because some idiot burned his fingers or worse, you didn't care. (Long live Costa Mesa, Santa Ana, and Stanton -- last champions of sulferous liberty here in OC!)

And if there's a chance that if I make a phone call to a telephone number associated with terrorists, someone might listen in -- I don't care.

All government is a trading of liberty for security -- "to secure these rights [of life, liberty, and the pursuit of happiness], governments are instituted among men." Which is why Benjamin Franklin never uttered the silly phrase, often attributed to him, that "those who trade liberty for security deserve neither." I trade my liberty not to quaff a case of beer and go on a joy ride, for my security not to be killed by someone who thinks that's a good idea.

Right now, in response to the new and uniquely challenging threat of terrorism, liberty has been restricted far less than it has been in pursuit of other objectives, including the war on drugs. If a truly essential liberty comes under attack, I'll meet you at the barricades. Right now, I'm more annoyed by fireworks bans than I am by anything that's being trumpeted as the End Of American Democracy As We Know It. It just isn't so. posted by Thomas at 12:10 PM

 
Cinco de Mayo is as good a time as any to post my long-delayed thoughts on the illegal immigration issue. (I meant to do it on Monday, the day of the May 1 "day without an immigrant boycott/protests.)

There are approximately 11 million illegal aliens in the country. (I know the term isn't politically correct, but "undocumented worker" or "illegal immigrant" just doesn't accurately describe their status. They're foreign nationals -- aliens -- who are in the country illegally. Calling them "undocumented" suggests that there was just some sloppiness in processing paperwork, and "immigrants," to me, connotes regular, legal immigration, with an understanding that their presence will be permanent.)

It would be very difficult to deport them all. In addition to the practical difficulties and the expansion of government power that would be required, it would probably cause a major shock to the economy. In addition, it could be argued that it wouldn't be fair to those here illegally. True, they violated the law in coming here (and, typically, in forging documentation to indicate eligibility to work). But the government has made virtually no serious effort to enforce the laws they violated. Illegal aliens may be said to have a reasonable expectation that the same benign (from their perspective, at least) neglect will continue.

In civil law, there's a concept known as "adverse possession," under which a person who does not own property, if he occupies it openly for a certain period without the true owner taking steps to end the unlawful possession, can obtain title to the property. A related concept is that of the statute of limitations, where a person must act to enforce his rights within a certain time or waive the right to enforce them. The idea is that allowing people to "sleep on their rights" and bring up old claims long after they accrue would cause disruption and uncertainty, by leading people to expect to be let alone and then going after them.

So I think that people who have been in the country for a long enough period -- say, five years or more -- ought to be given some process by which they can apply for legal residency. There are some problems with this approach -- it may unfairly benefit the illegal aliens who have jumped to the head of the line, and how do we determine whether someone's been here for five years, for example?

The key would be that any kind of new regularization process must be coupled with effective enforcement of the law going forward. Previous amnesties or regularizations have appeared only to encourage further waves of migration by people hoping to get legal residency in the next amnesty.

Start with a border barrier -- a real one, not a "virtual" one. I'm sorry if that makes Mexico feel bad -- it should, having failed to organize its society in a way that can provide for its own. Mexico needs to clean its own house before it makes demands on the United States. Even if it can't get its legendary corruption under control, it can start by giving Americans access to the Mexican economy (where they can't presently own property or work) as Mexicans have to the American economy. That would go a long way towards equalizing the labor/capital imbalance that draws Mexico's surplus labor north. Allowing the imbalance to be balanced by a mutual, rather than a one-sided, flow of labor and capital will also reduce the inefficiencies involved in taking people out of their linguistic and cultural environment and forcing them to adapt to life in a foreign country (although that inefficiency is probably shrinking as much of the United States is becoming Latinized)

And don't tell me we can't put up thousands of miles of fence -- we've built thousands of miles of highway, and a fence is a lot cheaper.

Second, establish a more foolproof and convenient method of checking people's eligibility to work. The Social Security card's technology hasn't changed since the '30s. How hard can it be to make the card electronic, like a credit card? Set it up so the employer can swipe the card and check it against a database. Set up a system to deal with the inevitable glitches. (And hire some people with higher IQs than DMV workers to staff it.) Restrict dramatically the number of documents that can be used to establish identity and eligibility to work, requiring a showing of good cause to use other documents than the most common and most easily checked.

It's asked rhetorically why we don't just turn verification over to American Express. I'm presently litigating a couple of credit-reporting cases, in which mistakes by creditors may have caused damage to consumers, so obviously mistakes do happen. But that's no excuse to write off verification altogether, especially if we work to make the system as foolproof as humanly possible.

Finally, although I obviously wouldn't want to go around randomly deporting people, I think there's a strong case to be made for having local police check the status of people they arrest in the course of ordinary law enforcement. My native Costa Mesa has attracted a lot of grief for having its police refer illegal aliens arrested for certain crimes to the INS. I think it's an excellent idea. I know an arrest doesn't automatically mean a person is guilty -- but since a person can only be arrested on probable cause, a person arrested has generally conducted himself in such a way as to draw attention to himself. If you're here illegally (and you're not eligible to stay under a regularization program), you ought to keep your nose cleaner than everyone else. Otherwise, the effect is that police would have to be closing their eyes to more-or-less obvious violations of immigration law, which can't have a positive effect on respect for the rule of law.

The problem with the present wink-and-nod system (totally aside from the strain that effectively-unregulated immigration places on the social and physical infrastructure) is that it basically penalizes people who want to obey the law. When there's no enforcement, the only compliance is voluntary. And when there's an economic advantage in violating the law (as cheap illegal labor often gives), non-enforcement rewards the most dishonest. That is a step in the direction of the corruption that helps drive Mexicans here in the first place. posted by Thomas at 1:44 PM

 
Supreme Court Justice Ruth Bader Ginsburg recently gave a speech in South Africa, defending her innovation of looking to foreign law in interpreting questions arising under the U.S. Constitution.

Leaving aside the soundness of her argument (I think it stinks; that's a long argument for another day), she displayed a pettiness towards those who disagree that is unworthy of a judge, let alone a member of the Supreme Court. She stated that she'd been alerted to a post on a radical website where someone had suggested -- possibly even seriously -- that she should be done away with in order to save American democracy. She also stated that Justice Roger Taney, in his infamous Dred Scott decision (which created out of nothing a constitutional principle that the government had no right to restrict the spread of slavery) had criticized the use of foreign precedent.

That's called "guilt by association." It's shoddy logic and it displays deep bad faith and contempt for civil debate. But let's play along, shall we?

Justice Ginsburg is a constitutional nonoriginalist -- that is, she believes that in interpreting the Constitution, she believes she is not bound by what the Constitution's actual text actually meant to the people who wrote it, but rather than she may substitute her ideology for the clear original meaning of the text.

I reject this, for a fairly simple reason: I believe, with the Declaration of Independence, that governments derive their just powers from the consent of the governed. It follows that a provision of the Constitution derives its authority from the fact that it represents an expression of the consent of the people who selected the representatives who drafted it, to be governed according to that provision. It continues to have its authority by virtue of the fact that we continue to consent to be governed by it, rather than exercising our democratic right to change or abolish it.

But if a judge substitutes her judgment for the plain text that was actually consented to, the chain of consent is broken: There has been no popular consent to be governed by the new "interpretation" (in practice, often strained sophistry that cannot honestly be said to be one of multiple reasonable interpretations of what the text actually means.)

That would be the short version of my counterargument. It's the one I would make, because I believe one's opponents deserve a good-faith, reasoned rebuttal. If I were Justice Ginsburg, on the other hand, I might just point out that she's a nonoriginalist, and Justice Taney was a nonoriginalist (the Dred Scott decision being based on Justice Taney's racist philosophy rather than on any specific provision of the Constitution's text), and therefore she's just as shabby as Taney. But that wouldn't be fair.

As far as the nutcase website that called for Justice Ginsburg to get the Pelican Brief treatment, I could just as easily point to the posters on the popular left-wing website dailykos.com, who presumably sympathize with Justice Ginsburg's nonoriginalist philosophy as long as it advances their politics, and thus tar her by association with people who've also advocated political violence.

In my first law firm, there was a liberal paralegal who took part in protest marches organized by International ANSWER, whose organizers include old-school Stalinists. That's one difference between (many) liberals and me: They have no problem associating themselves with making alliances of convenience with supporters of totalitarianism, while I (and most of the people who share my political thinking) wouldn't even consider joining in, say, an anti-tax protest if it were organized by neo-Nazis or the like.

And that leads this meandering rant to the upcoming movie "V for Vendetta," a comic-book action movie set in a dystopian near-future fascist London. It's clear that the filmmakers (the Wachowski brothers) are suggesting that the society portrayed is a possible outcome of present American politics -- the premise is that the government has used the threat of terrorism, as "America's war" grows worse and worse, to suspend all liberties and set up a "faith-based" dictatorship.

Sheesh. At least when Joe McCarthy went around darkly suggesting that his political opponents were in league with totalitarians, there were real live Stalinists mucking about. These guys seriously think that their opponents want to set up a dictatorship -- based, I suppose, on hyperventilations about liberty dying because the FBI can ask a library if Ahmed Death-to-America Shahid checked out a book on How To Make A Bomb With Six Household Chemicals.

Fine, it's a movie -- but lots of people honestly think (if "think" can fairly describe the random electrical activity caroming around their skulls) that there's something to it. posted by Thomas at 9:29 AM