What made Franklin Roosevelt and the Greatest Generation great? Others may tell you it was defeating Nazism in a worldwide war. But Harvey J. Kaye, Professor of Democracy and Justice Studies at the University of Wisconsin, maintains that its heart and soul was none other than the Popular Front.
Archives for January 2016
Many, if not most, law schools proclaim that they will advance “social justice.” My own law school recently pledged to use part of the generous 100 million dollar gift from the Pritzkers to do just that. Generally the pursuit of such justice is done through clinics, which represent clients, but have larger objectives in their choice of representation, such as ending the death penalty, protecting rent control, or increasing environmental regulation.
A commitment to social justice creates some tensions with the ideal of a university as a place of open inquiry. First, clinics are enterprises of political action. But the essence of a university is the production of ideas, and political aims are not easily made compatible with purely intellectual ones. Politics, including the politics of litigation, requires one to take positions with a view to success. The university, in contrast, prizes ideas that are novel, coherent and logically consistent, regardless of the immediate real world impact.
Beyond this abstract tension, the pursuit of a particular vision of justice can make it harder for research faculty to pursue opposing viewpoints.
The new Will Smith film Concussion has a montage in which the lead character, a Pittsburgh coroner named Dr. Bennet Omalu, absorbs all the scientific knowledge about a subject. It lasts two minutes. Which is fine—the actual process of reading up scientific journals would make an unbearably tedious film. One of the articles we see Omalu leafing through in a flash says something like, “Long-Term Brain Damage in Boxers.”
Congress is notoriously lousy at terminating the life of government entities. However, in a stroke of sheer genius, it has managed to make one of them homeless: the U.S. Tax Court.
In a post at Balkinization, Mark Graber criticizes the five more conservative justices on the Supreme Court, seeking to link them to the Democrats who championed slavery:
Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could take into consideration American racial history when passing legislation that provided specific benefits to destitute freedmen. Democrats insisted that any legislation that favored persons of color violated constitutional commitments to equality. Chief Justice Roberts agrees with those who hoped African-Americans would remain in a state as close to slavery as constitutionally possibly.
For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified. Apparently . . . what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.
Graber’s argument, which has also been made in the literature, is not persuasive. In my view, it makes a tendentious political argument that is easily defeated by those it criticizes.
Graber’s argument focuses on the legislative debate concerning the Freedmen’s Bureau Act, which provided special benefits to former slaves. He claims that the defenders of slavery and white supremacy, the Southern Democrats, made the same arguments that the modern Republicans make concerning affirmative action. And the party of freedom for blacks, the Northern Republicans, make the same arguments that the modern Democrats make. Graber also claims that the modern Republicans, who tend to be originalists, are not really purporting to enforce the original meaning of the Constitution concerning this issue.
In the month after the November terrorist attacks that killed 130 people in Paris, the French government launched airstrikes against ISIS targets in the Middle East—responding with all the ferocity of an irritated sleeper slapping at the alarm clock to get it to shut up.
The alarm had rung before: in the March 2004 Madrid train bombings that killed 191 people; in the July 2005 London attack that killed 56; in the January 2015 assault on the satirical newspaper Charlie Hebdo that killed 17. Europe has swiped at the snooze button several times in recent years—but why, really, should the Continent wake up? Why should the Island of the Lotus-Eaters ever rouse itself from dreams?
The transition from one year to the next prompts reflections on how our relation to the past constitutes the politics of the present. Before the 1700s politics was wholly oriented toward the past. As Robert Tombs puts it in his brilliant new book, The English and Their History: “Legitimacy came from the past: rights, status, property, laws—all were inherited. So desirable changes were conceptualized as a return to a pristine past. The idea was of a stable ordered hierarchy in which all knew and accepted their place.” In that world the culture made political arguments naturally conservative. Public ideals had to be put in the categories created by past practices.
The hierarchy described by Tombs started to break down with the rise of capitalism. But the nature of political legitimacy persisted, as the memory of the people still preserved an idealized past. Thus, even in the eighteenth and early nineteenth century political arguments were almost entirely founded on continuity with past political settlements, real or imagined. The American Revolution was fought on the basis that the British government was violating what they understood as the ancient prerogatives of Englishmen, which were then codified as the Bill of Rights.
But as technology created one new revolutionary invention after another and the market broadly delivered these benefits, the culture necessarily became focused on the future.
In 2010, the British science writer Matt Ridley debuted as a classical liberal with his book The Rational Optimist. Ridley’s “coming out” was eventful and exciting for libertarians all over the world. A former staff writer and head of the Washington bureau of The Economist, a successful science author and, more importantly, a gifted narrator, Ridley condensed in his thick book much research and wisdom. The financial crisis appeared to many to have dispensed with free market ideas once and for all. Ridley pointed out that, to the contrary, free markets were actually producing prosperity, food, cleanliness all over the world—particularly for the world’s poor.
Eugene Volokh notes a significant discrepancy between the press release issued by the Department of Justice concerning a case of vandalism against an Islamic Center and the underlying facts of the case based on the plea agreement. According to Eugene:
The press release describes the graffiti painted on the Islamic Center this way:
The graffiti included explicit and offensive language in addition to such statements as “Bash Back,” “Now is our time!” and “You bash us in Pakistan we bash here.”
But the plea agreement reports that the graffiti, put up in early 2011, contained “the following statements”:
(i) “Allahu Fuckbar;” (ii) “Queer insurrection;” (iii) “It’s okay to be gay!” (iv) “Now is our time!” (v) “Bash Back;” (vi) “You bash us in Pakistan we bash here;” (vii) “Allah was gay;” (viii) “[illegible] unite;” (ix) “Satanic trans” (with circle around Star of David above); (x) “Fuck straights;” and (xi) “Bash Back lives.”
What’s more, Eugene explains that “Bash Back” is a gay and lesbian activist group. This context, Eugene writes, “puts a different cast on the graffiti that the press release did quote — at least two and possibly all three of those statements also appear to be pro-gay-rights.”
Eugene’s post points out the misleading nature of the press release. Here I want to speculate on the motivations for the deception.