Category: Law
Liberalism v. Democracy, Round 2
On Friday, the Field Guide delved into the distinct – and often divergent – traditions of liberalism and democracy. Today we bring them to bear on current events.
The struggle today in the Middle East is eerily familiar. After World War II, with the collapse of colonialism, many countries gained independence, and people across the world got the right to vote for the first time. Going with the political fashion of the day, many voted for socialists. This was extremely troubling for the US and for US business interests: socialist governments were more likely to align themselves with the USSR; and property rights were less secure under socialist democracies than they were under liberal dictators. Largely over the concern of US businesses, the US instigated at least 3 revolutions that overthrew democratically elected governments (Iran 1953; Guatemala 1954; Chile 1973), all of which led to the installation of brutal dictators. Right into the 1980s, Reagan was funding a terrorist organization in its effort to overthrow democratically elected socialists in Nicaragua; while propping up dictatorships from El Salvador to Egypt – including Guatemala and Chile. (Iran deposed its American-sponsored dictator in 1979.)
Analogously, as some in the Middle East vote for the first time, many are going with the most popular political movement in the region today: Islamism. That’s how the Muslim Brotherhood came to power in Egypt, and how Hamas came to power in Gaza – by democratic processes. Elections held today in Iraq or Syria might produce a similar result. And so, once again, the US is finding itself at odds with democracy because of the results it’s producing – while the US is reminded again and again of the usefulness, and-or the lesser evil, of authoritarians.
From a policy standpoint, when judging illiberal democracies and liberal authoritarians, each case must be taken on its own merits. A good rule of thumb for US foreign policy would be that a democracy is good to the extent that it respects minority rights. Given an open and unfettered debate in the marketplace of ideas, one has every reason to believe that such a democracy will naturally find its way to liberalism, simply because it offers the greatest good for every facet of life: economic, health, happiness, and of course, freedom.
What this means is that the US should be tolerant of Islamist-led democratic governments if they allow opposing parties to organize, operate and compete for votes. One must note, however, that parties based on religion, and not reason, tend to be especially intolerant of competing viewpoints, because they often believe that their “truths” are handed down from on high, and thus are not open to debate, much less compromise. The ineptitude of the Tea Party in the US legislature is a fine illustration of this problem. Democracy simply cannot function in the absence of rationality – dogma is anathema to democratic processes.
One might further posit that liberal dictatorships are acceptable, because history has shown that, with time, liberalism begets wealth, and a wealthy populace comes naturally to demand a political voice commensurate with its material well-being. This is the dynamic that brought democracy to much of Europe, and to countries all along the Pacific Rim – and, of course, to the US as well. One hopes the same will happen in China, where an increasingly wealthy class of industrialists should – if history teaches us – also come to demand a role in their own governance. To make a bolder point: within a given polity, it seems constructive for liberalism to precede democracy – for a population to first learn respect for procedural fairness, before taking on self-governance.* That’s how it happened in most of the developed world, perhaps not coincidentally.
Liberal dictatorships, simply put, are not so bad because they tend to be self-eliminating – and liberals should be tolerant of such states as necessary stepping stones toward liberal democracy. Illiberal democracies, by comparison, can be much more persistent, to the considerable expense of their persecuted minorities. The West Bank is a modern example: its Arab population has had no civil or political rights, nor has it known procedural fairness, during nearly a half-century of domination by “democratic” Israel. The Jim Crow South endured for well over 100 years – vestiges are still apparent today, 150 years since the Civil War.
The Field Guide continues Wednesday on the themes of liberalism and democracy, with a look at individual regimes in the Middle East and elsewhere.
Refs:
http://en.wikipedia.org/wiki/U.S._intervention_in_Chile#1973_coup
http://en.wikipedia.org/wiki/1954_Guatemalan_coup_d%27%C3%A9tat
http://en.wikipedia.org/wiki/Mohammad_Mosaddegh
http://en.wikipedia.org/wiki/The_Future_of_Freedom
* CT thanks Fareed Zakariah for making this and many other acute observations in his excellent book, The Future of Freedom. While the work of many pundits is dated a month after publication, this 2003 work is as compelling and relevant today as ever.
Liberalism v. Democracy, Round 1
Sure, everyone wants both. But throughout most of human history, you’d have been fortunate to have one or the other. And forced to choose, many prefer the security of liberalism to the dignity of democracy.
Not to be accused of splitting hairs, we can agree that, for certain purposes, democracy is an indispensable part of modern-day liberalism. But each tradition – liberalism and democracy – has its own independent history. For the purposes of this essay, when we use the term “liberalism”, we mean procedural fairness: that cops and courts are neutral in their application of the laws, and specifically that property rights are sacrosanct. This form of liberalism does not encompass the right to vote, which of course is the sine qua non of democracy. One must however recognize that rights of speech, assembly and petitioning the government are not guaranteed by democracy, but by liberalism! Majorities, after all, like nothing more than to illegalize the speech, gathering and petitioning of minorities, as occurred in the US during the McCarthy era, e.g., and in every other democracy at some or another time.
The fact is, an illiberal democracy isnt a very fun place to be. Saying the wrong thing in Classical Athens, Revolutionary France, or modern-day Egypt could get you killed. 4 million Palestinians in Gaza and the West Bank can tell you first hand what it means to be a disenfranchised minority in a democracy whose majority has enshrined into law imperialism, colonialism and apartheid. More than 100,000 Japanese-Americans could have pointed out the shortcomings of democracy from their WWII internment camps – as could millions of slaves in the antebellum American South.
Meanwhile, Singapore, Taiwan, South Korea, Colonial America and England were, for many years, liberal dictatorships, and pleasant places to live and work. Talk to a few Syrians about life under Assad, before the civil war, and they’ll tell you that as long as you didnt spout off on politics, life was peaceful and predictable. You went off to work, you came home to family; the streets were safe; the crazies with bad hair and weird beards were few and far between.
It’s not that the right to vote isnt precious – but rather that the right to live your life and be left alone is no less precious. We tend to make a fuss over democracy wherever it flowers – to be too often reminded that it doesnt always smell sweet. Liberalism, distinct from democracy, also deserves its due. A liberal government, democratic or not, guarantees procedural fairness – what Americans call “due process” and the Brits have called “the law of the land” since 1215. You may not get to vote, and printing op-eds can put you in the clink – but if you have a contractual dispute, you can rely on the courts for a fair adjudication. If you pay your taxes, you dont have to worry about the state taking your home away. Many countries have grown rich and prosperous in the absence of democratic processes, because they were fortunate to have a liberal leadership that understood the economic importance of respecting and upholding property rights.
By contrast, democracies can be excruciatingly illiberal. Today across the American south, majorities, if they had their way, would pack minority children into separate, inferior schools, if only to teach them how 6000 years ago, Jesus and His Angels buried faux dinosaur bones to confuse archaeologists. They’d deny rights to gays and women, while stripping away numerous rights of the accused. One American political party, whose sole objective was the perpetuation of segregation, revealingly called itself “The States’ Rights Party.” Their protest, in the end, was that of a majority, frustrated by Constitutional limitations on what majorities are allowed to do. Liberalism, after all, is what protects us from democracy run amok.
The Field Guide resumes this line on Monday, exploring the sometimes competing traditions of liberalism and democracy, and how tension between the two informs US foreign policy today.
Executive Orders
If consistency is the hobgoblin of little minds, conservatives should rest easy – they are free of the hobgoblin threat. For them, on odd-numbered days, Obama is a weak leader, overwhelmed by Putin and paralyzed over Syria; on the evens, Obama is a dictator, ramming through the ACA via a backdoor reconciliation, conducting an unauthorized war in Libya, and ruling the country by executive order.
In foreign affairs, among policy experts, Obama is in fact lauded for taking a measured approach amidst turmoil in the Middle East, where the US must steer between the rock of democratically-elected Islamists, and the whirlpool of old-school Arab authoritarians. And he’s praised for his steady management of the ongoing crisis in Ukraine, despite a lack of support from cowed European allies.
As for Obama’s use of executive orders, quantitative measures are imperfect, because many orders are on mundane, uncontroversial matters. But the image of Obama-qua-dictator, issuing executive orders on a daily basis, is at odds with the most basic facts. To date, Obama has issued 183 executive orders, putting him on track to conclude his presidency with 266. His average of 2.77 executive orders per month is lower than any president since the 19th century. (Grover Cleveland averaged 2.35 per month during his 1st term, 1885-89.) Obama’s totals are significantly lower than other recent 2-term presidents: Reagan issued 381, Clinton issued 364, Bush Duh issued 291.
Remarkably, the only executive order from Obama that Congress has seen fit to challenge is one delaying implementation of an ACA provision that requires corporations with more than 50 employees to obtain health insurance for their employees. It can hardly be questioned that Obama could have used his prosecutorial discretion to not enforce the provision anyway. But an executive order is a far more efficient tool to achieve the same end, since companies can rely on it and plan accordingly, and not be forced to operate under the threat of enforcement. One must also note that the House voted to repeal the entire ACA 54 times, revealing that Congress has no objection to the substance of Obama’s policy; their issue is strictly procedural. Finally, given that the delayed provision should go into effect in 5 months, the case will likely be mooted before the courts can resolve it. Bottom line: the House’s objection to even this one executive order is no more than an election-year dog and pony show. If that’s the worst executive order they can find, the unavoidable inference is that Obama has not overreached.
Obama’s restraint is all the more notable in light of the fact that this Congress is among the most unproductive ever, abandoning the president to manage one crisis after another on his own. Case in point: shortly after voting to sue the president over his executive order on the ACA, the House again failed to work out a legislative compromise to address the flood of children across the southern border from Central America. Congress’ subsequent message to the president: he should manage the situation with executive orders.
In the storied history of executive orders – over 13,000 issued since the Washington administration – only 2 have been struck down in courts. The first time it happened made for one of the greatest Constitutional crises of the 20th century. In 1952, while US troops were fighting in Korea, a labor dispute in the US was threatening the supply of steel needed for the war effort. With labor and ownership far apart, a strike imminent, and supplies to the US Army jeopardized, Truman seized control of the nation’s steel mills via an executive order. The Supreme Court struck it down. Truman, in his memoirs, expressed shock at their decision. Hugo Black, the Justice who authored the opinion, felt so bad about it that he invited Truman over to his house for dinner afterward.
Obama’s use of executive orders is quite in line with the practice of US presidents since the 18th century. The big change is with Congress, which now prefers posturing to legislating. And while legislation only issues when Congress is in session and comes to an agreement, the executive has no such luxury – his administration must govern in real time, without pause, whether Congress deigns to lead, follow, or fail to get out of the way.
Refs:
http://en.wikipedia.org/wiki/Executive_order
http://en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._v._Sawyer
http://en.wikipedia.org/wiki/List_of_United_States_federal_executive_orders
http://www.cnbc.com/id/101369574
http://www.nytimes.com/1996/02/03/us/clinton-order-discouraging-striker-replacement-is-voided.html
Law of Return v. Right of Return
Over the past two weeks, the Field Guide has taken the ongoing conflict in Gaza as an occasion to reflect on Israel’s numerous shortcomings with respect to liberalism. Though it may be the only western democracy in the Middle East, Israel too often exemplifies the very worst of the West: using its military to further colonial schemes; using apartheid to advantage one ethnic group over others; offering lame security arguments to justify its denial of human, political and civil rights to millions of people subject to its authority, for decades.
Having already discussed conditions in Gaza, the West Bank, and within Israel itself, today we conclude with an analysis of Israeli immigration policies – the face that Israel shows the world.
Liberalism’s most basic principle – procedural fairness – does not make clear what a state’s ideal immigration regime should be. Few argue for fully open borders between all countries, because when movement of people is too rapid, infrastructure and support systems can be overwhelmed, and health and safety can be impacted. And so we begin with the simple observation that regulations on immigration are neither good nor bad per se, but should be judged on their particularities.
Israel’s distinguishing immigration regulation is its “Law of Return,” which grants not merely legal residency, but Israeli citizenship, to any Jew who requests it – along with their spouse. Children and grandchildren of Jews are also entitled to citizenship.
Analogous to Israel’s “Law of Return”, several other liberal democracies offer citizenship to foreigners whose recent ancestors lived in that country. Italy, Ireland and Spain (among others) have a special citizenship track for people who can trace their roots back to those countries. While such laws are discriminatory, it is not unreasonable to preferentially offer a home to people who share an affinity for a place. Israel’s policy is however unique in that it is not based on ethnicity or nationality, but on religion. While converts to Judaism have an immediate right to Israeli citizenship, anyone who voluntarily renounces their Jewish faith does not.
The “Law of Return” has several aims. It is not only to offer a safe haven to Jews worldwide (laudable), but also to counter the demographic threat that Arabs pose to Israel’s tenuous Jewish majority (dubious). And the “Law of Return” has an important exception: spouses of Israeli citizens from certain Muslim-majority countries, as well as residents of the West Bank and Gaza, are not granted automatic citizenship. This law primarily discriminates against Arab Israeli citizens, who are far more likely to have spouses who fall under the exception.
The “Law of Return” must also be evaluated in light of Palestinian refugees’ claimed “Right of Return.” The 1948 Arab-Israeli War caused 700,000 Palestinian Arabs to flee what would shortly become Israel. They became refugees all across the region. Their departure from Israel was not necessarily voluntarily – many were coerced by Israeli military forces. Arab villages were destroyed, several massacres have been documented, and the sum total of Israeli policies vis-a-vis Arabs during and immediately following the 1948 War can be fairly described as a campaign of ethnic cleansing.
It is quite common and sensible for civilians to flee a war zone. Most uncommon was Israel’s refusal to allow Palestinians to reenter Israel and return to their homes and villages after hostilities ended. Compounding that injury, Israel expropriated, without compensation, the land owned by Arabs who fled, and has been using it for the past 65 years to settle Israeli immigrants. By one estimate, about 70% of all the land in Israel was stolen from Arab owners without cause or consideration.
And so it is today that the “Law of Return” allows a person to claim Israeli citizenship, simply by virtue of their being Jewish, even if they had never visited Israel; while other laws deny the right to enter Israel to people who lived there all their lives, as their ancestors had for centuries – simply because they are Arabs. Descendents of those 700,000 refugees now number upwards of 5 million, living in Gaza, the West Bank, Syria, Lebanon and other countries. Most of them still lack citizenship anyplace. Some refugees today are the grandchildren and great-grandchildren of refugees.
In immigration policy, as in all government functions, citizens deserve equal treatment. It is not reasonable for Israel’s Jewish citizens to have an easier time in bringing their family members from abroad, compared to Israel’s Arab citizens. And while It is not clear what precisely the government of one country owes the people of the world when it elaborates an immigration regime, the contrast between the “Law of Return” and the “Right of Return” is a gross injustice. Israel’s refusal to allow Arab civilians to return to their homes is an ongoing crime against humanity, which has only been exacerbated by the passage of time.
Refs:
http://en.wikipedia.org/wiki/Law_of_Return
http://en.wikipedia.org/wiki/Citizenship_and_Entry_into_Israel_Law
http://en.wikipedia.org/wiki/Palestinian_right_of_return
http://en.wikipedia.org/wiki/1948_Palestinian_exodus
http://en.wikipedia.org/wiki/Causes_of_the_1948_Palestinian_exodus
http://en.wikipedia.org/wiki/Plan_Dalet
Israel’s Own Arabs
American liberals are divided over Israel. On the one hand, Israel is a democracy, plunked down in a part of the world where no other democracy has flourished. On the other hand, Israel has been brutal in its treatment of 4 million Arabs living in Gaza and the West Bank. Israel has turned Gaza into a ghetto, and is meanwhile colonizing the West Bank, using apartheid to control the region’s Arab population. Israel’s poor treatment of Palestinians cannot be excused by security concerns.
But putting aside conditions and policies in Occupied Palestine, what about the Arab citizens of Israel, who comprise 20% of Israel’s population? It is sometimes observed that minorities within Israel – whether ethnic, religious or LGBT – are treated much better than minorities in neighboring countries. Israel’s Supreme Court is quite liberal, and quick to strike down most (if not all) of the biased laws that issue from Israel’s legislature. If one had to be a minority in the Middle East, one could do much worse than to be an Arab citizen of Israel proper.
Nonetheless, discrimination against Arab citizens of Israel is significant, widespread and systemic, across all sectors of society. To cite a few examples: Arab schools are severely underfunded compared to Jewish schools. Arabs are badly under-represented in government service. Arabs tend to receive harsher sentences and be denied bail. Arab protesters are occasionally killed by security forces – but not one Jewish protester has been killed in Israel, going back to 1949. While Jews the world over have a right to come to live in Israel with their spouses, and be granted automatic citizenship, the law excludes spouses from occupied Palestine, and several other Muslim-majority countries, which works to discriminate against Arab Israelis. While Jews are given the right to reclaim land in East Jerusalem that they abandoned because of war, Arabs are denied the analogous right to reclaim land anywhere in Israel. Much worse, Israel wont even let Palestinians refugees – who fled Israel during war – return to their own country!
Even in the absence of discrimination, the bare conception of Israel as a “Jewish State” is at odds with the most fundamental principles of liberalism, and an affront to the rule of law. The bedrock of liberal governance is procedural fairness, with laws that are neutral in word and application. A state cannot be committed to the benefit of a specific, identifiable group without undermining the political and civil rights of other groups living within its borders.
This point is not especially contentious – the chief response to it isnt an explanation, but rather an excuse: in light of centuries of oppression, culminating in the Holocaust, a “Jewish State” is needed to provide Jews with a safe haven – a homeland they lacked for millennia. Thus it is that many of Israel’s most discriminatory policies – in immigration and land management – bear directly on the maintenance of Israel’s majority Jewish population. However the best protection from tyranny in the long term – not merely for Jews, but for all people – is liberalism, democracy, and the rule of law. Carving out exceptions to our most precious rules of justice and fairness inevitably makes the world less just and less safe – for everyone.
Refs:
http://en.wikipedia.org/wiki/Israel_and_the_apartheid_analogy
http://en.wikipedia.org/wiki/Arab_citizens_of_Israel
http://en.wikipedia.org/wiki/Citizenship_and_Entry_into_Israel_Law
Regulating The Business of Racism
Not all rights in the Bill of Rights are equal. Every right you have depends on your ability to go before an impartial judge to complain of your treatment at the hands of the executive; and your ability to communicate your preferences to other people, including your representatives in the legislature. If all of your other rights were lost, as long as you still had the right to speak your mind and be heard, there’d still be hope. This is why government regulation of expression is so dangerous, no matter how well-intended it may be. The right to speak your mind is the most precious right you have. Reciprocally, the government’s power to censor human expression is its most dangerous.
Many countries have laws against “hate speech.” Depending on where you are, you can be imprisoned for advocating for genocide (Canada); for insulting or disparaging someone’s race, religion, skin color or sexual orientation (Denmark, Iceland), or for denying that the Holocaust happened (France, Belgium) – just to give a few examples. In the US, all such laws would be unconstitutional – leaving Americans relatively free to spew whatever madness or hatred that strikes their fancy.
Then there’s the US Civil Rights Act. While a private citizen can put up racially offensive signs on his front lawn, or publish newsletters denigrating particular ethnic groups, in business he is NOT free to discriminate against customers or employees on the basis of race or religion. This dichotomy is justified because commerce does not get the same protection as civil and political expression. (Up until recently, the US Supreme Court understood the difference between a person and a firm; and between speaking and spending.) Some conservatives complain that this is an overreach of government power – that forcing a restaurant owner, e.g., to serve whites is a denial of his property rights, if not his right to express a particular view by a specific means.
The NFL’s Washington franchise, as a business under US law, cannot discriminate against customers or employees on the basis of race. It is not clear whether a Native American working for the firm could sue the team on the theory that its use of the term Redskins constitutes a form of harassment. For illustration, one might imagine a black supremacist starting a business that prints racially disparaging bumper-stickers. (The Field Guide defers to its readership the imagining of a few especially offensive examples.) Clearly, a white person who applies for employment in such a firm must be treated equally for hiring purposes. But once hired, could he thereafter sue the firm because production of its only product constitutes a denial of his civil rights?
The aim is to demonstrate that several liberal principles are in conflict in this set of issues. Protecting the sensibilities of minorities is important. No less important in a polyglot society is the value of toleration – ensuring individuals a maximum of latitude to live and organize their lives. But free speech – and by free we mean specifically free of government regulation – is paramount. Compared to other western democracies, the US stakes out an extreme position re the government’s power to regulate the content of speech. The Field Guide submits that the US gets it right on this issue – even if in some instances, the result is distasteful.
The Washington franchise has been stripped of its trademarks – this is entirely appropriate and was long overdue. But empowering the government to prevent the firm’s use of a racial slur as its team name; or to forbid its use of a racially inflammatory logo, would be a mistake. One must have faith that liberal values, given time enough, will be borne out – as they always have. Empowering the state to censor the speech of racists – even big racist firms – gives the cause of liberalism a small victory, at too dear a cost. It is nothing more than the majority silencing the expression of a minority it deems unworthy. Though the end may seem attractive, the means, when stripped down to its bare bones, are as ugly as ever.
Consider the best argument against the flag-burning amendment: A flag sheltered by threats to personal liberty can never be a symbol of liberty, and as such, is worthless. Likewise, when liberalism manipulates the apparatus of government to stifle expression it finds noxious, it destroys its core precepts: that the condition of individual liberty will ultimately lead our species to the best of all possible worlds; that given free exchange in the marketplace of ideas, the best ideas will ultimately prevail. Even when progress toward that end is sometimes too slow, empowering the government to pick winners and losers among ideas is itself the worst idea of all.
Refs:
http://en.wikipedia.org/wiki/Hate_speech
Note to Field Guide friends and readers: the hazy, crazy, lazy days of summer are upon us, and the Field Guide’s stalwart staff is not immune. CT has commanded a two (2(!)) week cessation of all LFG-related activities, to commence not later than sundown on Friday – encouraging all to use some vacay to nurture the liberal spirit, and if that fails, to drink till inebriation and dialogue members of the opposite (or same) sex till accession.
CT will remain at the home office to oversee the fine-tuning of our trusty LFG woodchipper – and while he’s left open the possibility of reposting hidden gems from the Field Guide’s dusky past, we will return in full freshness on Wednesday July 16th –
NBA, NFL and the Business of Racism
The NBA has revenues of more than $5 billion. Its 30 teams have a collective valuation, per Forbes, of $19 billion – though given recent sales of other sports franchises, that’s probably understated. And so when one owner got caught making racially disparaging remarks, 29 others moved swiftly to excise the canker from the league’s cajillion dollar body. While final, legal closure will likely require years in court (the kind without hoops), it is, as far as fans and players are concerned, largely settled. The league rose to the occasion and cast out a resident racist, allowing the rest to move on.
The case of Donald Sterling is interesting and heartening because it will very likely be put to rest by operation of market forces, with a racist owner dispatched from the NBA because racism is bad for business. When racism is made to go away by private actors, without recourse to the coercive power of the state, that’s a good thing, and a sign of progress.
In contrast, the case of Washington’s NFL franchise is not likely to go away any time soon. Washington has been using a racial slur as its team name since 1933. As far back as 1968, the National Congress of American Indians condemned the team’s use of Redskins; scores of other Native American tribes and organizations have subsequently followed suit – just in case the point had been missed by Washington’s ownership, which was infamous for being among the most racist in professional sports. (In 1962, threatened with eviction from their home stadium by the federal government, they became the last pro football team to integrate – while playing in a city that was more than 50% black.)
Last week, the US Patent and Trademark Office revoked Washington’s team trademarks, deeming the Redskins name and image to be racially disparaging, and thus not entitled to trademark protection. This is the second time that the USPTO has issued such a decision. They did so first in 1999 – a decision that was later reversed.
There can be no serious debate as to whether “Redskins” is a racial slur, Dictionaries are unanimous. Decades of usage may have had a desensitizing effect – but try to Imagine yourself addressing a roomful of Native Americans as Redskins, and any remaining doubt will vanish. A harder question is the proper role of the state in adjudicating, if not remedying, the situation.
Consider that between Sterling’s comments and Washington’s name, the latter case is far more egregious, persisting now for more than 80 years, validated day in and day out by the league, its players and fans; in the mouths of sponsors, announcers and members of the press. The reason the matter persists is simply that Native Americans are not economically significant enough for NFL ownership, its players or fanbase to rethink current practice. Most people dont care – and Native Americans lack the political or economic capital to force them to reconsider.
While Sterling’s comments merited a severe rebuke, the size and swiftness of the response was driven not by the size of the insult, but by the amount of money at stake. Or, as stated above, it was not resolved by justice but by commerce. In Washington’s case, commerce may not be enough to make its ill-conceived team name go away – and justice may not have an answer either.
While trademark revocation is appropriate, it will have some undesirable effects if it stands. Clearly, it will hit the team in the wallet, which was petitioners’ objective. But Washington, with an estimated worth of $1.7 billion, may find the name valuable enough to keep, even in the absence of trademark protection. More perversely, anyone will be able to manufacture and sell merchandise with the Redskins name and logo, without having to get permission or pay licensing fees. According to basic economic theory, this will lead to a significant INCREASE in the supply of Redskins-branded items, and a drop in price. In other words, with its trademark protection revoked, use of the Redskins name and logo on commercial merchandise should become MORE widespread than ever.
Beyond revoking the trademark, it’s not clear what the government can or should do. Liberals must tread carefully in areas involving freedom of expression, including so-called hate speech – of which this matter is a sub-species. The Field Guide will take the issue up when we return on Friday.
Refs:
http://en.wikipedia.org/wiki/Washington_Redskins_name_controversy
http://en.wikipedia.org/wiki/Redskin_%28slang%29
http://en.wikipedia.org/wiki/Washington_Redskins#Integration_controversy
http://www.npr.org/2011/09/04/140066378/a-showdown-that-changed-footballs-racial-history
http://en.wikipedia.org/wiki/Donald_Sterling#Racial_remarks_and_lifetime_ban
http://www.forbes.com/nba-valuations/list/
http://www.forbes.com/nfl-valuations/list/
Crime and Punishment and Yet More Punishment
Which country has the highest incarceration rate in the world? The US. And that’s not merely the highest incarceration rate among rich countries or western countries or developed countries. The US has more prisoners as a function of its population than any country on the planet. You can rattle off the worst regimes for human rights: Burma, Cuba, China, Yemen, Saudi Arabia. But on locking ’em up, the US smokes ’em all. And it isnt even close. The US jails 40% more people than Russia or Cuba – more than doubles Iran – triples UAE, Singapore and Turkmenistan – quadruples Albania – quintuples Iraq. We could go on – we probably should go on – but you get the idea.
And that’s just the ugly part of the story – the weird (and still ugly) part is that the US doesnt even have an especially high crime rate. Lots of murders, yes indeed – but violence and property crime is no more common in the US than in Western European countries with far lower incarceration rates. Higher US incarceration rates can NOT be explained away as a response to higher crime in the US – because crime rates in the US arent that high.
Neither can higher US incarceration rates be explained by a historical increase in crime. Crime in the US peaked in 1991, and has fallen steadily for more than 20 years. Since 1991, violent crime rates have fallen by half, and property crime rates have fallen by 30-40%. Meanwhile incarceration rates have risen by 50%! Put otherwise, the US property crime rate today is about the same as it was in 1968. The US violent crime rate today is about the same as it was in 1971. The murder rate is about the same as it was in 1963. And yet the incarceration rate in the US is FIVE TIMES HIGHER than it was in the 60s and early 70s.
Just in case we’ve somehow failed to drive home this point: the US locks up an outrageous number of people. Whether compared to other countries, taken in historical context, or as a function of crime, there are way, way WAY too many Americans in prisons – we’re talking easily triple what there should be, by any international or historical comparison.
An closer look reveals two key factors behind astronomical US incarceration rates: drug laws, and the length of sentences. The so-called war on drugs has succeeded in putting a large number of non-violent offenders in US prisons. Stricter sentencing means that even though Americans do NOT get sent to prison much more often than residents of other countries, Americans tend to stay in prison far longer per sentence.
Clearly, no one should ever go to prison merely for choosing to ingest a substance – and in the twilight between now and the day that that becomes law, America should work to systematically reduce the number of people who go to prison for nonviolent drug-related crimes; and should work to shorten the sentences of those already incarcerated. The latter is precisely the plan recently backed by AG Eric Holder. It’s only a modest improvement on what remains a draconian set of laws – but it’s a change for the better, and, one hopes, a step toward the dismantling of the US prison-industrial complex.
Refs:
http://en.wikipedia.org/wiki/Crime_in_the_United_States
http://en.wikipedia.org/wiki/List_of_countries_by_incarceration_rate
http://www.nationmaster.com/country-info/stats/Crime/Property-crime-victims
http://www.msnbc.com/msnbc/doj-eric-holder-urges-reduced-prison-sentence-plan
GMO Labeling
People have been modifying the genes of food plants and animals for thousands of years. The process traditionally relies on selective breeding – what Darwin called “artificial selection.” More recently, science has facilitated a faster approach: altering genes directly, adding completely new, foreign sequences to an organism’s genome; knocking out or deactivating others. Plants can now be changed in ways never before imagined, and change is effected far more rapidly.
While in theory one can produce toxic plants via artificial selection, in practice the reverse has frequently occurred: plants that were toxic have been made edible through domestication. Almonds are one example: undomesticated trees commonly produce fruit containing lethal amounts of cyanide. Some today are concerned that so-called “genetically modified organisms” (GMOs) might adversely impact human health. While their concerns have a theoretical basis, they remain empirically baseless. Despite the widespread use of genetically modified corn, soybeans, and numerous other fruits, there is absolutely no evidence that human health has been harmed. Meanwhile enormous benefits have been conferred, with food production costs dramatically reduced, productivity increased, and several crops saved from destruction.
The debate often centers around labeling requirements. Numerous western countries require that foods containing GMOs say so on their label. The US is not among them – but some states are independently entertaining such laws, including New York, where a bill is now pending. Advocates for labeling often couch their arguments in terms of consumer choice – but in the absence of any evidence that GMOs differentially impact human health, consumers’ desire to avoid them is a “pure preference”, without a basis in health, nutrition or otherwise. As such, it is proper to defer to the market to meet this particular consumer demand, and not legislate that market into existence.
The reason why these laws do not exist in the US is because of aggressive corporate lobbying against them – outspending proponents several times over. Counter-intuitive though it may be, not everything that agribusiness wants is bad. (!) Proponents include purveyors of so-called “organic” produce, who have also grown into big businesses, and have their own profit-motives.
One major advantage of liberalism is that one does NOT need to hide from the facts to maintain one’s positions. Those who pursue truth before any agenda can, in any case, make no exceptions. Liberals who take the scientific high road against conservatives on topics as varied as sexual education, evolution and climate science, should be true to their principles, and take the same approach on this issue. If GMOs were indeed harmful, we should expect to see some evidence of harm. In the utter absence of any, we can reasonably defer consideration of labeling requirements until circumstances warrant. As the facts now stand, required labeling for GMOs is capricious and unreasonable.
One must also consider the challenge of feeding a world of 7 billion people – expected to reach 8 billion in 10 years, and 9 billion in 25 years. GMOs are among our most valuable tools toward that end.
Refs:
http://en.wikipedia.org/wiki/Genetically_modified_food
http://en.wikipedia.org/wiki/Genetically_modified_organism
http://www.learner.org/courses/biology/textbook/gmo/gmo_6.html
http://en.wikipedia.org/wiki/World_population#Projections
and for what it’s worth, the plants and animals we keep around us have in turn modified our genes.
Requiem for Brown
Hailed as the most important Supreme Court case of the 20th century, Brown v. the Board of Education on its diamond anniversary is no more than a gorgeous corpse. Brown today prevents state and local governments from hanging a “colored only” sign on the schoolhouse door – unfortunately it allows them to do everything they need to do to produce precisely the same outcome, without need for the sign. Eviscerated by subsequent decisions, Brown’s awesome potential is unrealized, and unlikely to ever be, doing nothing for an increasing fraction of students who attend legally segregated schools across the US. The nation should end its sardonic celebration of Brown’s 60th, and be rededicated to the task of desegregation.
Brown invalidated the Jim Crow establishment of parallel white and colored schools, repudiating the infamous “separate but equal” doctrine with its overruling of Plessy v Ferguson (1896). Brown was truly a giant leap forward for the US, predating the Civil Rights Act by a decade. So it was for the Warren Court: ever on the vanguard, dragging a reluctant nation into modernity. But Earl Warren, the chief justice, author and architect of Brown‘s 9-0 decision, retired in 1969. Nixon replaced him and 3 other justices, setting the stage for Brown‘s demise.
While every schoolkid learns the historical significance of Brown, few are taught Millken v. Bradley, which in 1974 cut Brown off at the knees. Board of Ed. of Oklahoma City v. Dowell was a conservative Court’s 1991 coup de grace,* rendering Brown a nullity.
Milliken is a quintessentially cynical conservative decision, in which 5 justices feign ignorance to the most basic facts in order to arrive at an indefensible decision. Milliken‘s majority observed that neighborhoods can become segregated by socio-economic factors. School districts in such neighborhoods, they explain, can as a consequence become segregated without any action on the part of the government. And thus may poor black neighborhoods beget poor black schools, and rich white neighborhoods beget rich white schools – and Brown, those 5 conservatives pronounced, has nothing to say about that. “Segregation is dead – long live segregation, y’all,” – their holding might well have been
Justice William O. Douglas takes Milliken‘s shiftless majority to task in a dissent that expounds the obvious: where school district lines are drawn and whether they get redrawn; where schools are erected; where municipal lines begin and end; where public housing projects are put up; and nearly every factor that integrates or segregates a given community’s public schools is determined by the government. The government’s decision to countenance racially segregated schools, rather than working to integrate them, is precisely that: a government decision. The Milliken majority acknowledges that where Detroit meets its suburbs there’s a line in the dirt, and the black kids on one side get routed into poor black schools, while white kids on the other side get routed into well-funded white schools. At this point the majority pretends to not grasp the obvious fact that the government chooses where that line is drawn, and whether it is redrawn to integrate schools, as Brown commands, or left alone.
5 conservative justices finished Brown off in its 1991 Oklahoma City decision. Oklahoma has among the most egregious records on segregation. The cordoning off of black kids into black-only schools was written into the state constitution from the day Oklahoma achieved statehood in 1907. Despite Brown, the Civil Rights Act, and an 11 year federal court battle, Oklahoma City schools were still segregated in 1972. Finally a new plan was implemented – and it worked: in 1977, a federal judge declared Oklahoma City schools to be integrated – 23 years after Brown!
But just 8 years later, Oklahoma City enacted a different plan to allocate students – and by 1989, its schools were segregated again. When plaintiffs sought to reopen the federal case that ended 70 years of Oklahoma City school segregation, 5 conservatives on the Supreme Court slammed shut the courthouse door. Never mind those 70 years, this conservative majority argued, asking us to believe that this more recent variety of segregation is the permissible Milliken kind, driven by economic decisions by private citizens. A mere 10 years of desegregation in the preceding 80 had miraculously turned Oklahoma into Massachusetts. Segregation is dead – long live segregation.
Justice Thurgood Marshall, who argued Brown before the Court in 1954, took on the Oklahoma City majority in his pointed dissent. The effect of Oklahoma City is to allow miscreant school districts – who were once subject to a desegregation order, and who subsequently satisfied that order by integrating – to backslide into segregation again by “private economic decisions” – and then when they get sued, they can hide behind Milliken, throw up their hands, and claim that this “new” segregation is not the result of government action. Long live segregation, y’all!
Milliken made sure that Brown could not apply outside of the south, allowing states like New York and California to have some of the most segregated school systems today. Oklahoma City next gave southern school districts the opportunity to be treated like New York and California – they need only desegregate for a few years, after which they can return to segregated business as usual.
Yeah I know it sucks – sorry to be the bearer of bad news – but Brown, in many respects now does more harm than good. Ironically, Plessy v. Ferguson might produce better results today, since it requires EQUAL to go along with separate. Brown, twisted from its original meaning by 40 years of conservative jurisprudence, is now the facilitator and protector of a system of separate and unequal schools across the country.
Refs:
http://news.yahoo.com/us-schools-largely-segregated-60-years-brown-v-201333080.html
http://www.pbs.org/newshour/bb/60-years-brown-v-board-school-segregation-isnt-yet-american-history/
http://www.cbsnews.com/news/ny-schools-are-most-racially-segregated-in-nation-report-says/
http://www.huffingtonpost.com/2014/03/26/new-york-schools-segregated_n_5034455.html
http://www.businessinsider.com/most-segregated-cities-in-america-2013-11?op=1
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=498&invol=237
http://supreme.justia.com/cases/federal/us/418/717/
http://carltonthurman.me/2014/03/28/segregation-new-york-style/
http://www.nytimes.com/2014/05/17/us/mrs-obama-cites-view-of-growing-segregation.html?_r=0
http://en.wikipedia.org/wiki/Warren_Court
* CT kindly requests that all world citizens, francophonic or otherwise, enunciate the final c in “coup de grace.” Failure to do so results in “coup de gras”, which – though it may be poetically construed as a drink on Fat Tuesday, or, more farfetched, a judo move involving the buttocks – is unbearably grotesque in ears of a certain stripe. Grazi-yay a todo.
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