The Hypocrisy of Conservative Constitutional Theory

So the blogosphere is up in arms about the latest wing nuttery to come from the hard core of Republicans that remain after all the centrists have been kicked out of the party. Virginia's Attorney General has ordered (back in March) that state's public universities to stop treating sexual preference as a protected class. Now, a bigoted Republican on a power trip is not really news. What's interesting is the reasoning he applies. Last week, AG Cuccinelli justified his position by arguing that the 14th Amendment only applied to those groups that were at issue at the time of its passage. Since sexual preference was not an issue in 1868, the 14th Amendment cannot possibly apply.

This is absurd and internally inconsistent. He seems to be making a version of the typical right wing rhetorical argument about constitutional interpretation. Many movement conservatives (I'll call them "Movementarians" in keeping with the theme of this blog), like to argue that the constitution should only be interpreted to mean exactly what it meant at the time it was written. That is, they believe that the constitution has an objective meaning that is constant throughout time. This is just like the fundamentalists' view of the Bible and of course we know there is a high correlation between Movementarians and Fundamentalist Christians.

But there is an inherent flaw with this view. We have very little idea of what exactly the people who wrote the Constitution were thinking. Granted, we have the Federalist Papers etc (which contradict many dearly heald Movementarian dogmas) but these are intended as one side of a debate about a compromise already arrived at. In any event, what Movementarians are left with is their best guess TODAY of what the framers intended 200 years ago. Their (erroneous) assumption is that their interpretation is both uniquely correct and immutable.

And this is where the hypocrisy comes in. On the one hand they argue that the Constitution cannot be interpreted without destroying it. On the other hand, they cannot help but interpret it themselves. If all they said was "my interpretation is preferable to your interpretation" I'd disagree with them but I wouldn't accuse them of hypocrisy. But they make the argument that their view is the objective "truth" and anyone who doesn't agree 100% with them is "interpreting" - which is dismissed as fruitless and disloyal (they often call it "un-American").

Consider the implications of their kind of argument. Taken to its logical conclusion, amendments to the Constitution itself are an act of disloyalty to the intentions of the framers. That would mean that even the Bill of Rights is "Un American." Given their views of all but the 2nd half of the 2nd Amendment, I wouldn't be shocked if they were OK with dispensing with the whole shebang.

I'm not legal scholar so I'm sure that LTG will find critical omissions in my discussion. I look forward to his comments.

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First Sheila

Hi Everyone,

Australia's Labor Party changed leaders today. That means that, even though there has been no election, there is a new Prime Minister. And get this... She's a "Sheila!" That's right, Oz has its first female head of government.

This is an usual but not unheard of event in parliamentary democracies. Parliamentary systems are organized around parties. The head of government is the leader of the party that has a majority of seats (or leads the coalition of parties that has the majority of seats - usually). When that party loses confidence in their leader, they can change who their leader is. That's what's happened in this case. Apparently, Labor Party members were upset at former PM Rudd because of his backing off a number of policies widely supported by Labor members, including a green house gas emmissions trading scheme designed to help Australia meet their Kyoto Protocol goals.

This is a big deal for Australia and Australian women. Good on ya'!

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Biden Puts it Well!

Here a great statement by Vice President Biden about Republican Congressman Barton's apology to BP. I think this sums up very nicely the contrasting view the Democratic and Republican Parties. The Democrats think government is supposed to protect average people from the abuses of big business. Republicans think government is supposed to protect big business from the demands of regular people.

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Hollywood, Race and Classical Stories

There is a brewing controversy again (it comes up periodically) about Hollywood's attitude towards race. The latest brewhaha is over the casting of Angelina Jolie as Cleopatra. Some African Americans are upset because they insist that Cleopatra was Black and so should be played by a Black actress. This raises a few issues in my mind that I'd like to get off my chest.

First, Hollywood is usually bad at portraying classical stories in the first place. Even European stories are bastardized by directors who refuse to do their homework. The story of the Spartans at Thermopylae and Beowulf (see a Scandinavian produced version of Beowulf here) were turned into well animated but cliche video games. Movies about classic norse legends are turned into ridiculous remakes of Conan the Barbarian (like the movie Pathfinder - see the Sami-Norwegian version here). Other examples are the movie Excalibur which portrays 6th century Arthurian legendary characters running around in 15th century parade armor. Or the monotone and American accented Kevin Costner portraying a 12th century Robin Hood using a telescope (and the African-American Morgan Freeman playing a Kurdish Saracen BTW). The list is endless. I'm sure the next step will be to show Anthony rescuing Cleopatra from the Battle of Actium with a McGyver'ed hang glider or something. In this context, the fact that Hollywood casts the ridiculously collagenated Jolie as Cleopatra is hardly unusual. Nor is it obviously part of some racist conspiracy. In my view, Hollywood is peopled largely by uneducated idiots. The appearance of racism is easy when dealing with idiots.

Second, can people please stop claiming that Cleopatra was "Black" in the sense we think of it today? Cleopatra came from a family of Macadonian Greeks that frequently practiced sibling marriage. It is probably true that her family occaisionaly married into prominent families from neighboring kingdoms but this family had a preference for "keeping it in the family" - literally. She only had 4 great grand parents (ewww). So let's figure that the chances of her having a Nubian (the only neighboring kingdom that was inhabited by people we would think of "Black" today) anscestor is about half what we would normally think. And most of the family's connections would have been to other powerful Hellenistic (Greek) kingdoms and empires in the eastern Medditeranean and Middle East. So we have a daughter of an absurdly incestuous family of Greek extraction that mostly interacted with other royal families of Greek extraction. The only reason to think Cleopatra was "Black" is because some people look up Egypt in their coffee table atlass and notice that Egypt is technically on the continent of Africa. But geography and race are more complicated.

Are there racists in Hollywood? Almost certainly - racism is part of the human experience. But are the casting decisions in major Hollywood pictures motivated by racism? I'm not convinced. They are often explained by sub-standard intellects convincing themselves they are great artists.

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BP Stands for Barton Prolapse

By now (it's all over the net), you've heard about Representative Joe Barton (R-Texas) apologized to BP CEO, Tony Hayward for the way the Obama administration was working with BP to set up a relief fund for victims of the oil spill. Imagine that. A Republican member of Congress actually apologizing to BP! For what?

Republican leaders immediately had one of those "ARE YOU INSANE?!" moments and rushed to pressure Barton to apologize for the apology. Too late. I think we all know which statement was sincere and which was BS.

Every Democrat in the country needs to run against their Republicans as the party of Big Oil and Big Banks. They are the party of the boss that you are convinced would lay you off to pay for his own bonus. Kieth Olberman is already talking about the "GOBP." He even had a little logo of a Republican elephant painted green with yellow flowers (ala the BP logo). And out of the elephant's trunk is a fountain of oil.

The Republicans spent the last few weeks accusing the Democrats of not doing enough in response to the oil spill. Then as soon as Obama actually does something tangible (setting up a relief fund at BP's expense), the Republcians accuse it of being a criminal enterprise and actually apologize on national TV to BP's CEO. I can't say I'm surprised.

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College Sports Earthquake

My apologies to our non-US visitors who are almost certainly more interested in the World Cup but the US college sports world is in the process of turning itself inside out. At the top level of competition there are (were) 6 conferences of teams: the Atlantic Coast Conference (ACC), the Big East, the South Eastern Conference (SEC), the Big Ten, the Big XII and the Pac 10. These conferences contain within them the most influential college sports programs in the money sports: football and men's basketball. And it is money that is driving the shake up. This is all about TV revenue; how it is generated and how it is shared. When it comes to TV cash, the Big Ten is the top dog with direct access to TV markets such as Chicago, Philadelphia, Minneapolis-St. Paul, Detroit, Columbus, Cleveland, Cincinnati and Indianapolis. The Big Ten also has the most equitable revenue sharing deal for its members. We're talking about tens of millions of dollars a year for each university's athletic program.

When rumors began circulating that the University of Nebraska was going to leave the Big XII to join the Big Ten, it was "game on." The first step was that the University of Colorado left the Big XII to join the Pac 10. Then Nebraska officially announced their move to the Big Ten. Now there are rumors that the U. of Texas, U. of Oklahoma, Oklahoma St., and Texas Tech will all jump to the Pac 10. The Big Ten is reportedly going to try to get a chunk of the Big East next. There are rumors that the Big Ten may try to woo U. of Pittsburgh, Syracuse and Rutgers (alternatively Maryland from the ACC). Rutgers is near to New York City, the holy grail of TV markets for the Big Ten. The Big Ten may go after the Big XII's U. of Missouri too. Of course, all this is part of the Big Ten's grand scheme to convince Notre Dame to join their conference - Notre Dame is currently in the Big East for all sports but football where it is independent. There are also rumors that the SEC is in a kind of bidding war with the PAC 10 for the Big XII's last remaining premier program, Texas A&M.

The most immediate impact of all of this is that the Big XII is about to disappear. The Big XII was the least urban of the 6 major conferences which means it had the fewest big TV markets. So it is not surprising that it is getting gobbled up by the other sharks.

The implosion of the Big XII leaves a number of its minor schools/teams out in the cold. One of them is Iowa State University. This is where it gets political. Iowa State's arch rival is the U. of Iowa which is in the Big Ten. With the economy struggling, Iowa State's athletic department has been given notice to become self sufficient or face the cuts. Iowa State can't hope to do that if it's not part of a major conference. Both the Democratic governor, Chet Culver, and the Republican Senator, Chuck Grassley, both of whom are up for reelection this year, have made public statements urging the Big Ten to take Iowa State. But Iowa State has little to offer the Big Ten in the way of additional TV revenue or profile. What's more, the early indications in the press/rumor mill are that the U. of Iowa is less than enthusiastic about ISU joining their conference and might even oppose ISU's entry into the Big Ten.

This little intra-Iowa spat provoked Grassley to threaten to look into the non-profit status of these conferences and the anti-trust ramifications of the emergence of these mega-conferences (the Pac 10 is on pace to go to 16 teams and the Big Ten may well reach that number too). It will be interesting to see how this will play out both nationally and in Iowa. ISU is known for engineering and agriculture. UI is known for its arts and sciences, law school and med school. With rural voters playing such a big part of the Republican electoral calculations, I'd expect Grassley to be especially vocal about trying to save ISU's sports programs.

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The BP Oil Spill, Deregulation, and Litigation

CNN's website is reporting this story about a survivor from the oil rig fire that started the now infamous oil spill in the Gulf of Mexico. CNN is presenting this as a story about the worker, his family and oh by the way, he's suing BP, Tansoceon and Haliburton for negligence.

Aside from this being an example of journalists doing their best to trivialize the important and turn every news event into a human interest story, the story also sheds some light on how the US regulatory state functions - or rather doesn't.

For the last 30 years the US has steadily reduced the level of regulatory protection for workers, consumers, and the environment. In Republican administrations, even the residual regulatory authority gets defunded or coopted or otherwise hindered. The secret meetings Vice President Cheney had with energy company big shots is an example. Another example is the scandal about Bush administration regulators recieving drugs and sex from oil companies in exchange for looking the other way on safety and evironmental standards.

So what constraint is there on big corporations? Litigation. That's it. When a company like BP or Transocean or whoever, ignores repeated indications that the rig is unsafe until it kills 11 workers and destroys the ecosystem (and economy) of the Gulf of Mexico, there is no consequence for them other than being sued in civil court. Most of the time, the big corporation can use their deep pockets and expensive teams of lawyers to deter any law suits at all. But once in a while, a case is big enough news or clear cut enough that a plantif will step forward. In those rare cases, companies can find themselves being judged by juries that slap them with huge judgements. It is only the - slight - fear of this possibility that keeps companies like BP in check at all. So don't scoff at the class action law suit. Don't hate the "trial lawyer." After 30 years of essentially privatizing our regulatory protections, they're all that stands between us and a Dickensian nightmare.

This is why Republicans constantly harp about "tort reform." What they want to do is eliminate even this anemic constraint on corporate abuses.

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Another Poor Quality Wall Street Journal Article

So the WSJ published an article claiming that Liberals do poorly on "basic economics." Here are the questions with the "wrong" or "unenlightened" answer in parentheses, according to the askers. You will notice these are not "basic" questions but highly ideological questions.

1) Mandatory licensing of professional services increases the prices of those services (unenlightened answer: disagree).

If the listener is thinking only in terms of 'sticker price' then yes. But the liberal listener is likely to respond to the hidden costs of untrained professioanls. Is an unlicensed quack doctor cheaper than a board-certified surgeon? Depends on what you mean by "cheaper."

2) Overall, the standard of living is higher today than it was 30 years ago (unenlightened answer: disagree).

Is the standard of living higher? Depends what you mean. Health care, education, and housing were all relatively cheaper in 1980 - much, much more so. Most families in 1980 were one-earner households; now they need two earners to survive. The minimum wage is lower, in real terms, than it was in 1980. The argument that the standard of living has gone up is clearest if you are in an upper-income group. For them, taxes have plummetted and incomes gone up dramatically.

3) Rent control leads to housing shortages (unenlightened answer: disagree).

Depends what you mean by a housing shortage. Rent control protects the available housing of people who could not otherwise afford it. Removing rent control raises rents - it doesn't lower them. From the point of view of a renter, higher rents are a shortage - a shortage of affordable housing. Today we have whole neighborhoods of near-empty houses ringing our cities with overcrowded apartments and streets full of the homeless. Is this a shortage?

4) A company with the largest market share is a monopoly (unenlightened answer: agree).

This just requires knowledge of what a monopoly is, technically. The corollary is always true: a monopoly is a company with the largest market share. The willingness to call a big company a monopoly is political: the term "monopoly" to a consumer means "a company that has too much power over me." Consumers will feel this helplessness even if the company is not a technical monopoly.

5) Third World workers working for American companies overseas are being exploited (unenlightened answer: agree).

I have no idea how this is calculated, but it is plainly a moral question, not an economic one.
The fact is that third world workers are paid less than American workers - often much, much less, like 50cents an hour - would be paid for doing the same job, even though the wages may be above-market for their country Whether this is exploitation depends on what you think exploitation is. Some people think all workers are exploited, even in the USA, as a moral matter.

6) Free trade leads to unemployment (unenlightened answer: agree).

This is the worst question in the bunch. Free trade definitely leads to unemployment. It has idled millions of American factory workers . Free trade kills industries. You can't buy an American TV anymore. See Detroit! What the authors of the question want you to acknowledge is that the expectation is that, over the long term, there will be a net growth in employment. Okay, but that wasn't the question.

7) Minimum wage laws raise unemployment (unenlightened answer: disagree).

There's no proof that minimum wage laws have ever raised the unemployment rate. The statement should be "without a minimum wage, more people would be employed, although at lower wages." This is correct. As written, however, it implies that when you pass a minimum wage hike, it increases the unemployment rate - something never seen. What happens actually in the real world is that it slows hiring for a period of time in some industries that are low-margin, and not in others where it just results in slightly higher prices or profits.

8)Restrictions on housing development make housing less affordable. (unenlightend answer: disagree).

Most people on hearing this question are going to ask: do restrictions on housing development lead to higher prices? We haven't seen any connection in recent years between housing prices and... well... anything tangible. Nor has the housing bust been associated with loosening of regulations. So while there may be a theoretical possibility that restrictions lead to higher prices, we know that those aren't the forces moving the markets today.

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Big Government Big Business and Liberty

The massive oil spill in the Gulf of Mexico is deeply depressing. It should also be instructive. The reason the government isn't doing more to respond to the oil spill is because Republicans have spent the last 30 years making damn sure it didn't have the capability to do so. At the same time, the fact that BP was able to rack up hundreds of safety violations and still continue operating its dangerous wells is due to a combination of Republican gutting of regulatory agencies across all policy areas (from financial practices to coal mines to oil drilling), and a willful refusal to impose costs on those companies the few remaining investigators did manage to catch violating regulations.

I think this is the core of the story. However, the press has decided that the story is "Obama fails to react swiftly." OK, fine. Let's assume that Obama could have acted more swiftly. What exactly could he have done? The government does not have the equipment or personnel to do anything. The best the Obama administration can do with the tools Reagan, Bush, Gingrich, and Bush II have left it is spew outrage at BP. But somehow it is easier to blame Obama than a 30 year trend in policy change.

So what does this have to do with liberty? How much liberty do the people on the Gulf Coast have? The negligence of a single company has robbed tens of thousands of their livelihoods, tens of thousands more of important value of their property, not to mention the irreparable damage to public lands along the coast and the ecosystem of the Gulf itself. And it wasn't big government that robbed them of these things. It was the rogue behavior of a giant corporation that government could have but failed to hold accountable for the consequences of its actions until it was too late.

In the end, although I support a free market approach in most cases, this is why I'm a Democrat. I'm more afraid of BP than I am of the Census Bureau or the Department of Education.

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Math is Fun!

So I read this from the Washington Post this morning, "The number of interracial marriages in the U.S. has risen 20 percent since 2000 to about 4.5 million, according to the latest census figures. While still growing, that number is a marked drop-off from the 65 percent increase between 1990 and 2000." Okay, let's do the math. 4.5 million is a 20% increase over 3.75million. So there were 3.75million interracial marriages in 2000. That's a difference of - wait for it - 750,000. Okay, so 3.75million is a 65% increase over what? It's a 65% increase over 2.27million. That is an actual increase of - wait for it just shy of - 1.5 million. So there were 1.5 million interracial marriages in the 1990s and half that many in the 2000s.

Then the WaPo adds, "About 8 percent of U.S. marriages are mixed-race, up from 7 percent in 2000." Okay. If 4.5 million is 8% of all marriages, that means there were 56.25million marriages in 2010. And 3.75m is 7% of 53.57million, which must be the number of marriages in 2000. Right, because the total # of interracial marriages in 2000 was 7% and in 2010 is 8%.

Okay so let's do that math. How many additional marriages were there in the 2000s? Note that the total marriage stat takes into account death and divorce and new marriage as a "net" additional marriages. Well, total number of additional marriages in the 2000s evidently 56.25 million minus 53.57 million., meaning approx 2.75million additional marriages. Apparently, of that additional 2.75million marriages in the 2000s, 0.75million were interracial. That would meant that 27% of all additional marriages in the 2000s were interracial marriages.

Doesn't seem so small to me.

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The most important election so far in 2010

Check out this news about Idaho. No, it's not another potato famine. The western 1/3 of the state (including Moscow, the university town) elected a Democrat in 2008 for the first time since the glaciers retreated out of Jellystone. That man, Walter Minnick, who votes like a Republican anyway, is on the top 10 targeted list for the Republicans trying to win seats in the House. Their candidate, Vaughn Ward, lost in the Republican primary to an unknown local. A GOP wave in the Fall - not if GOP candidates are being rejected by their own base. You have to recall that the GOP is always more top-down in its organization than the Dems: they tend to follow party directives and support establishment candidates with far more regularity. As one wag put it with primaries, Republicans fall in line, Democrats fall in love. Not in 2010, it doesn't seem.

Put together with what happened in PA-12 and various other races, it's becoming clear that voters aren't in an anti-Washington mood, anti-Obama mood or any of that spin: they want to vote for outsiders, period. A pox on both your parties. Compare this to 2008 and 2006 when DCCC (Democratic Congressional Campaign Cmte) easily got its candidates through the primaries to the general almost everywhere. In 2008 and 2006, the GOP brand name was mud. In 1994, it was gold. The brand name isn't worth that much today, not by a long shot.

This bodes ill for incumbents, who are ipso facto establishment candidates, but not necessarily for Democrats only. In the Senate too, it suggests that Bill Halter (AR) and Sestak (PA) may do better than their establishment foes (the party-picked Boozman and Toomey) because they are perceived as rebels and giant-killers already. Both races are supposed to be easy GOP pickups right now. Don't count on it.

It's also not clear where Obama's popularity or lack thereof falls in all this. Is Obama the ultimate establishment figure? Not necessarily. His continuing popularity (in every poll except Rasmussen) is a testament to the fact that many Dems, at least, perceive of Obama as an anti-establishment candidate, as he was in 2008. This means that Obama campaigning for a Democrat may help turn out the base far more than, apparently, any GOP leader can do for their own party's favored candidates. What doesn't work is Obama coming in at the last minute to anoint the chosen candidate (MA Senate, NJ Gov, VA Gov) as the establishment favorite.

So this Idaho-1st district GOP primary confirms what we have been learning about why 2010 will not look like 1994. Dems may lose seats, but there will be surprising GOP defeats too. It looks good for Rand Paul and bad for Harry Reid. Good for Charlie Crist, who managed to go from establishment to outsider in a moment, by walking out of his party parimary. Good for anyone perceived as a rebel. John McCain is going to have the primary fight of his life in AZ. And the public wants action, not obstruction. The public wants to vote for rebels who will shake up Washington, not for filibusters. The result will be significant but not catastrophic Democratic losses - say 15-20 (mostly blue dog) seats in the House and 4 or 5 Senate seats.

In fact, if I were the DSCC or DCCC, I would consider finding ways to secretly promote insurgent candidates over incumbents in primaries, perhaps by defunding the incumbents or being nonresponsive to them. Andrew Romanoff for Senate in Colorado, for instance, should be the pick, not Bennett.

Think also of what this means: it means a more polarized Washington. Rebels are almost always (though not always, see WV) less centrist than the existing candidate. I predict the new Senate leaders in 2011 will be Chuck Schumer and Jim DeMint.

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Tensions Increase in Korea

Things are getting worse in Korea. I normally don't like alarmism but things are getting really hinky in North Korea. South Korea has taken the issue to the UN Security Council and cut off trade with North Korea (see earlier posting for the enormity of South Korea's share of North Korea's economy). In retaliation the North Koreans have severed ties with South Korea. North Korea's government has also said that South Korea "abrogated the agreement on non-agression." North Korea frequently plays brinksmanship but this is getting scary.

The US is going to be participating with joint military exercises with South Korea. I suspect this is largely an excuse to increase our military presence in the area (that's fairly transparent). One of the exercises is going to focuss on anti-submarine warfare. That's significant because it was most likely that a North Korean sub that sank the Cheonan back in March.

There are wide spread rumors that Kim Jong-il is not only in poor health but is losing control of the regime. In particular, he's having difficulty getting some of the military factions to accept one of his sons as the next Whacko in Chief. One theory is that the ship sinking was the act of some rogue element of hawks in the North Korean military. I'm not sure I buy that.

This attack fits a long pattern of unprovoked attacks by the North Koreans on various South Korean military, governmental and civilian targets. It also fits an overall pattern where North Korea uses violence and threats of violence with the goal of extorting some concession or other from either South Korea, the US or the world at large.

So what can the North Koreans do to cary out their threat? From a unit for unit capabilities point of view the North Korean military is not much of a match for the South Korean military and their allies (which include the US and Japan). What they do have is a lot of conventional artillery within shelling range of Seoul. But their tanks, aircraft and naval vessels are largely antiquated and possibly in poor repair. There are some exceptions in some showcase units but the bulk of the North Korean military is about 30 years past being obsolete. Then there are the nukes. North Korea probably has several weapons tucked away somewhere. What does all this add up to? It means that North Korean can't hope to win a military conflict with any of its neighbors. But it is more than capable of being a kind of national suicide bomber that kills thousands or even millions of people as its psychotic leaders go out in a blaze of glory.

I'm hoping that won't happen. I'm hoping that there are enough sane and rational people in North Korea's halls of power to prevent the worst from happening. But sometimes the worst happens despite the intentions of rational leaders. And when one side or the other in an escalating crisis thinks going to the brink of the worst is in their interest, wrong guesses about where the brink actually is can be fatal. This was one of the main points of the Fog of War.

Let me add that I think the Obama administration's work to reestablish the US reputation for being something other than a rogue cowboy state itself will work in our favor. China is the key. Only China can really hope to reign in North Korea. If we were to take the McCain/Palin/Cheney approach and try to confront China on this, my guess is that the Chinese would give North Korea a long leash just to prove a point. But with some semblance of credibility as a government willing to be reasonable, Obama can work behind the scenes chanels in ways that allow China to save some face.

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Axis of Evilishness

So there's a typically brain-dead article in the National Review about Obama's West Point speech. In this article, the author says that Obama is speaking of a new internationalist order "on the heels of failures" in Iran and North Korea. This is right-wing blather has to be dissected. What failures are being discussed? First, apparently, the author thinks that the recent deal between Turkey, Brazil, and Iran is a sign of a "failure." The picture of Lula and Ahmadinejad holding hands is what is specifically what the author means by "failure." Is that a failure? Well, it depends on what you think "success" looks like. The author praises Bush II for having the guts to "go it alone" and use "American military might" to "win" in Iraq, creating a safer world. I would count it rather as a big success that Iran offered a deal that it refused two years ago, and the Chinese and Russians are STILL on board with new sanctions. Bush II never got anywhere with Iran.

Similarly in North Korea, Bush II presided over 8 years of saber-rattling that resulted in a nuclear-armed North Korea. That is his failure, not President Obama's. President Obama has been trying, through SecState Clinton's terrific efforts, to find a way to close the circle around North Korea through diplomacy. It is finally working.

But what of the term "failure"? It's not just wrong, it's wrongheaded. It expresses a past-tense over-and-done-with attitude. Nothing more you can do; a failure.

Nothing more except war or threats of war. And that's what it's all about. The far right, including the National Review, wants to use US military power to overthrow the regimes in Iran and North Korea, or to 'punish' them severely with military attacks. Or they want to threaten a whole lot of it. The belief that this will isolate Iran and NK, rather than us, is belied by the Iraq experience, of course. They are angry that Obama is not trying to intimidate our enemies. Anything else is failure.

This is why it was so important to defeat McCain in the 2008 election. McCain's foreign policy consisted entirely of wanting to attack Iran (or Russia). Same with Lieberman. They view real diplomacy as weakness or cowardice. This leaves almost nothing else. Sure, these neocons act as if there is another option short of war - they claim that if we just threaten and intimidate enough, we can get Iran and NKorea (or Russia, or China) to give in to our demands. But they know it's really about war. We can't send Perry's White Ships around the world again. You can't defeat dictators in the modern world by threats of violence. It just plays into their own domestic agendas, empowering hardliners and enraging patriots against colonialism.

What is the source of this fundamental misunderstanding about coercive diplomacy? Lack of empathy. Neocons don't know how to put themselves in the shoes of those whom they threaten. When they divide the world into "us" and "them", into "good" and "evil", they ascribe totally different motitvations to our adversaries. The resulting saber-rattling and gunboat diplomacy is premised on the idea that we can intimidate these lesser people. There is a tinge of racism about the whole enterprise, as if we liberals just don't know "how to handle them." Keep the wogs in their place, you know.

Imagine how the US would react if Iran threatened to attack an American nuclear reactor: would we lean towards accomodation or confrontation? Duh - confrontation. Here's the key insight that destroyed imperialism, the insight that changed both the attitudes of the colonized and the colonizers: they are the same as we. Iran reacts to intimidation just as we do, with defiance. This is why we lost Vietnam, because we never figured out that they were people with aspirations and motivations just like we have. And, of course, neocons still think we just should have tried harder, with bigger bombs. This is the meaning of the Iranian Revolution and all other anti-colonial revolutions of the past 60 years: Non-western peoples no longer believe in their own inferiority. As a direct consequence, imperialism doesn't work anymore. Saber-rattling is just as archaic as it sounds.

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American Needle - A Victory for Antitrust Laws

A few hours ago, the US Supreme Court issued a unanimous ruling in American Needle Co. v. NFL clarifying that for antitrust purposes, the NFL is not a single entity incapable of "collusion" with itself, but 32 separate entities prohibited from conspiracies or combinations in restraint of trade. American Needle wanted "in" on sports jerseys, but all 32 teams were locked in by league rule to a single manufacturer. That monopolistic arrangement is now dead.

The NFL players' association famously hopped in on the side of American Needle, going so far as to have the winning QB in this year's superbowl submit an editorial to various newspapers. (Note to ghostwriters: nobody ever uses the word "gridiron" outside of the sports pages where a thesaurus is presumed to be a substitute for erudition. Don't do it). The fear of the NFL players was that, if the NFL was successful, it would give the NFL a sort of antitrust exemption in dealing with them, potentially ending free agency as we know it.

This is a big deal because it's one of the first victories for antitrust law in the USSC in 20+ years. Every case has been restricting the scope of that law for decades now.

The broader question is this: who is capable of conspiring with whom? It is axiomatic that one cannot be accused of conspiracy with oneself. Nor can a corporation and its wholly-owned and wholly-controlled subsidiary conspire. But where are the limits of who is considered just "one" person and who is "two or more"? The SC has adopted a functional, not formal test.

"Because the inquiry is one of competitive reality, it is not determinative that two parties to an alleged §1 violation are legally distinct entities. Nor, however, is it determinative that two legally distinct entities have organized themselves under a single umbrella or into a structured joint venture. The question is whether the agreement joins together “independent centers of decisionmaking.” Id., at 769. If it does, the entities are capable of conspiring under §1, and the court must decide whether the restraint of trade is an unreasonable and therefore illegal one."

Similarly, the court also ruled that NFL teams have good justifications for engaging in league activities together, such as scheduling and other coordination, and are not hamstrung by the antitrust laws in doing so.

"The fact that NFL teams share an interest in making the entire league successful and profitable, and that they must cooperate in the production and scheduling of games, provides a perfectly sensible justification for making a host of collective decisions. But the conduct at issue in this case is still concerted activity under theSherman Act that is subject to §1 analysis."

This is very, very good news. American Needle is an important corrective decision. Over time, the law tends to ossify. Formalism replaces real world tests as precedent grows. More and more cases are then disposed of by summary adjudication rather than fact-specific inquiry. This is a corrective that puts "common sense" back in the antitrust laws. It will create more litigation because it leads us back to fact-specific inquiries. But this is a good corrective also to Twombly and Iqbal, two recent cases that raised the bar for fact-pleading in federal court. Okay, the Court now seems to be saying, we will require more factual pleading for antitrust cases (and all federal cases, but particularly antitrust), but you will get to make your case about the real-world application of the law to the facts, and will not be trapped by various outmoded factual precedents that have hardened into formal fictions.

It is interesting also that this is both a unanimous opinion and written by Justice Stevens, probably his last unanimous opinion for the court. Clearly, the Court was of one mind in conference and wanted to make a broad statement that the application of antitrust laws here was not a partisan issue.

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Rescission

The Obama Administration has cannily taken up a Bush Administration proposal for a kind of line-item veto called "Rescission." The Republicans in the House voted overwhelmingly for it in 2006, when they controlled the house, with 35 Dems joining them. It never got a Senate vote.

"Rescission" is a rule that is probably constitutional. It does not violate the "presentment" clause as the line-item veto did. What Rescission does is create a special rule of both houses that allows the President to immediately submit to an up-or-down vote of both houses (*w/o filibuster*) a single chosen set of cuts (or "rescissions") to any spending bill that he has just signed. It really clears a procedural hurdle rather than creating a new substantive constitutional right in the executive. For bargaining purposes, this is a powerful tool, as it allows a simple majority to cancel a "deal" it has just made with a minority in the Senate to pass legislation. Its stated purpose is to remove earmarks. The hope is to trap Republicans into voting for the plan again. It may just work.

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Remember Korea?

Well, most of our contributers and friends do. But I'm sure CNN doesn't. At least not today. As I type this there is no mention of the smoldering crisis in the Korean peninsula on the CNN website.

BBC news is covering it though. You may remember that on March 26, a South Korean navy ship, a corvette called the Cheonan, sank under mysterious circumstances in South Korean waters that are disputed by the North Koreans. After the usual round of denials and investigations we now know that the Cheonan was sunk by a North Korean torpedo. They even have "the smoking gun" of parts of a North Korean torpedo found inside the wreckage area of the Cheonan.

North Korea is continuing to deny responsibility and is threatening war if economic sanctions are imposed. CIA World Fact Book says that 42% of N. Korea's exports go to China. 38% go to South Korea. 57% of North Korea's imports come from China and 25% from South Korea. China has consistently been the shameless enabler of the North Korean regime. It would be nice if China began behaving like a responsible world power and started working towards making some changes in its rogue protectorate. But I wouldn't hold my breath. That leaves South Korea.

South Korea's government is furious. So is Japan's. The US response is one of clear reassertion of US support for South Korea but is more moderate in tone than the South Korean statements. The Chinese government is urging "calm and restraint" which I take as the response that they figure is the most pro-North Korean statement they could make without completely losing all moral credibility.

North Korea has nothing to offer. All they have is threats. These threats are serious. North Korea probably has several nuclear weapons. But even if those don't come into play, the South Korean capitol and largest city, Seoul, is so close to the North Korean border that North Korea could wreak havoc in the city with conventional weapons without conquering any South Korean territory. I've heard that the North Koreans have conventional artillery capable to shelling the city from the North Korean side of the border.

The problem in North Korea is that the country has been so badly managed that there little no basis of government other than a relatively small, closed, and apparently psychotic elite dominated by one family. The military has influence, certainly, but if they could take power, I'd've expected them to have done so long ago. My best guess is that China's government is the main impediment to a regime change from within in North Korea.

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What's Up With Thailand?

In an earlier post, Bell Curve complains about the emphasis on trivia in the US TV news media. I sympathize. One complaint I've had lately is about the US coverage of the political violence in Thailand. There's lots of footage of troops on the streets and shooting at demonstrators but little in the way of explanation of WHY its all happening or what the issues of contention are.

I did a little research (nothing major) and came up with a few things. First, BBC's website has a good summary of the situation here. Basically, the fight is between populist rural supporters of former PM, Thaksin (red shirts). They are opposed by the current government of conservative elites with support from the urban middle class (yellow shirts). Both groups claim to be the true representatives of democratic Thailand. And both groups have played fast an loose with democracy. The yellow shirt crowd has encouraged and benefitted coups d'etat. The red shirt's hero, Thaksin, is a mega-rich telecom baron who is often accused of using political power to benefit his cronies and relatives. As near as I can tell this is a conflict between the authoritarian, urban elite that is not above using the military to impose order in their quest for economic development and a charismatic cleptocrat who uses populism to build a base of support among the poor.

I'm not an expert on Thailand so I could be wrong but this smells a lot like the conflict between Juan Peron and the conservative elites in Argentina in the 1950s-1970s.

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Primary Night in America - May 18, 2010

The biggest news, because it was earliest, was that Rand Paul, who comes from the libertarian wing of the GOP (that's putting it mildly) just won the KY GOP primary. What does this mean?
1. Well, the first thing it means is that the GOP electorate in KY is probably smaller than the GOP would like. In fact, the Democratic primary is having much higher turnout. With 60% of precincts reporting, there are about 300,000 Democratic primary voters and 200,000 Republican primary voters. Low turnout favors an energized minority.
2. Rand Paul is not a "christian" conservative. This is a defeat for the GOP establishment.
3. Also, it's a defeat for McConnell and his "no, no, no" strategy. McConnell, the other sitting senator from Kentucky, endorsed Grayson. A grassroots revolt by Republicans against their own party leaders can be spun as anti-Obama by TV spinmeisters, but it's a stretch. With Bennett's defeat, the word is that Republicans are not happy with their own party.
4. Democrats are enthused in KY. Rand Paul was the enemy they wanted, because he's so far "out there" compared to most Republicans, and he doesn't have the "christian" vote wrapped up either. We recall that Ron Paul is a libertarian fave (Rand's father) but that's a small % of the electorate. 10% is far above Ron Paul's support in almost every state. Rand Paul puts the KY seat in play, a possible Dem pickup this year.

So my thesis of a couple weeks ago is bearing out to some extent (ahem!). The Tea Party is not the forerunner of a big GOP wave, but just a division of an ever-smaller, ever more out-of-touch party. With an improving economy, expect the Democrats to become more optimistic over the next weeks and months.

In fact, Democrats went to the polls in large numbers today. Liberals turned out incumbent Specter in favor of Sestak for Senate in Pennsylvania. Democrats turned out to win the 12th CD, special election, for a Democrat after Jack Murtha's death - this was a seat the GOP thought sure to claim if there was any truth to a conservative wave out there. And in Arkansas, liberal Bill Halter with union and moveon.org support is giving Blanche Lincoln a run for her money. The race is almost tied with 38% in.

This is not a nation that is voting against Democrats, against liberals, or against Washington. Poll numbers show that Democrats are re-engaging, and independents reconnecting with them, as the economy improves.

I have a thought that we are seeing something interesting. Neither party really expects control of Congress to change. Everyone expects the GOP to make up some ground, but not 9 Senate seats and 30 house seats. So neither party is showing the innate willingness to run centrists in order to win in November. Neither party is that worried about revolts or upsets either. With a growing feeling among party leaders that nothing is in the balance but individual fates, we are seeing a lot of playing to the base.

UPDATE: Senator Blanche Lincoln of Arkansas is headed to a runoff with Bill Halter, a man who was 10-12 points behind her in the polls just last week. With 52% of the vote in, she's only 2,000 votes ahead of Halter. The parallel to Sestak is astonishing. Both surged in the last 2-3 weeks as the Democratic electorate finally took the race seriously. I suspect the fact that Obama is very popular among Democrats shows here in invigorating Dems to turn out to support real Democrats, not the DINOs.

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Cable news

This weekend I was in a hotel lobby with two TVs visible: one showing CNN and one showing Fox News. CNN was talking about Playboy's new 3D centerfold and Fox was talking about the Miss USA Pageant's "new sexier photos." Ugh, just kill me.

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Palestinian Nonviolent Resistance?

News item from this morning's Washington Post: "We are definitely committed to a path of nonviolent resistance and defiance in the face of the settlement enterprise, and we are defiantly expressing our right to boycott those products and I believe it is working," said Palestinian Prime Minister Salam Fayyad.

What this refers to is the movement by Palestinians to boycott settler-produced and settler-sold goods. According to various sources, it is having a severe economic impact on the right-wing Jewish settlers who had helped support their communities by selling to the very Palestinians they were trying to displace. What the Palestinian authority is also seeing, for the first time, is a lack of international resistance to one of their strategies, even tepid support. Are Palestinians finally realizing that non-violent resistance is far more effective than terrorism or dressing in masks, waving AK-47s, and shouting slogans of hate for Jews?

What a massive change this could bring about in a very short time. There are two big reasons why there has been no Israeli-Palestinian settlement. One is the desire for a "Greater Israel" by right-wing religious Israelis that results in settlement provocations. The other is the continued acts of terrorism by Palestinians that convince the secular Israeli majority that Palestinians are just too dangerous to deal with. Nonviolent methods can totally change the equation.

A turn to nonviolence may be too much to hope for, but it could happen. I think it is possible to take the notion of "submission" (the meaning of the word Islam) and "jihad" (meaning struggle for faith rather than specifically armed conflict) to encompass nonviolent resistance, and it may turn out to be an easier change than anyone expects. The willingness to engage in suicide bombing suggests a cultural capacity for self-sacrifice that could be converted to more successful nonviolent tactics. We can only hope. As far as it goes, this boycott is good news. Nothing succeeds like success.

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