Owens Rhetoric

2008-04-06T16:48:00.000-04:00

We up and moved...

click here, and we'll see you at the new digs.

2008-04-04T10:21:00.000-04:00

Race in America

Years since Martin Luther King’s assassination: 40
Days since Barack Obama’s speech on race in America: 17

The Wall Street Journal ran an editorial column this morning by Juan Williams (of NPR News fame). Mr. Williams argues that Senator Obama has broken with Dr. King’s spirit and message:

"So far, Mr. Obama has been content to let black people have their vision of him while white people hold to a separate, segregated reality. . . . [I]t is a key break from the King tradition to sell different messages to different audiences based on race, and to fail to challenge racial divisions in the nation."

–Juan Williams, "Obama and King," The Wall Street Journal, April 4, 2008, A13.

Mr. Williams’s essential point is that Sen. Obama has sold his campaign to blacks as "the fruit of the struggles of King and others," but when he talks to whites, "race is coincidental, not central, to his political identity." Dr. King, by contrast, "spoke about black people as American patriots who believed in the democratic ideals of the country, in nonviolence and the Judeo-Christian ethic . . . . [and he] challenged white America to do the same, to live up to their ideals and create racial unity."

Mr. Williams does grudgingly admit, however, that Sen. Obama "is a politician and, unlike King, his goal is winning votes, not changing hearts." And sure, that fact certainly accounts for some differences in approach. But overall, I think the truth of Sen. Obama’s political image is more nuanced than Mr. Williams asserts. Sen. Obama’s campaign is a triumph in our country’s racial history, precisely because so many voters are able to see Sen. Obama’s racial heritage as incidental to his politics. While I am not African-American, I venture to guess that the very universality of Sen. Obama’s appeal is precisely what thrills individuals of that heritage — because it is an unmistakeable indication that racism is no longer a controlling factor in the minds of the country's voters (well, at least not a majority of them).

I couldn’t agree more that America needs a transcending of racial divides — that is, a rising above. I just don’t think Sen. Obama is doing such a bad job of that as Mr. Williams claims.

2008-03-31T17:17:00.000-04:00

huh?

The main paper back home, Raleigh's News and Observer, usually includes a sports column penned by Caulton Tudor. Because he's not biased towards UNC, it is difficult for me to entirely appreciate Tudor's columns.

Tudor's presence on the sports page is as the sort-of wise man of the block; reading him is like reading George Will. This is fine when he's writing positively about the heels, but is incomprehensible when otherwise...why would the wise man give grief to Carolina?

In any event, after talking about the interestingness of Roy Williams facing off against Kansas this weekend, he ends the column with the claim, I think, that Davidson's go in the tourney was the premier story this year. I don't follow.

The real story of the 2008 NCAA Tournament ended Sunday when the Jayhawks defeated Davidson, allowing all four regional No. 1 seeds to reach a Final Four for the first time.
Williams, Self, Memphis coach John Calipari and UCLA's Ben Howland for the next few days will extensively address the merits of their teams. But regardless of which school is still standing next Monday, the biggest winner of this tournament will be the little team from the Charlotte suburbs.

Maybe I missed something; if not, this is the kind of skipping stone logic that wise elder columnists like Tudor, and Will, are prone to employ I suppose...leaving us mortals scratching the head.

2008-03-26T20:08:00.004-04:00

On speaking

It is too bad the Sophists are not around these days to offer insights into persuasive public speaking. One wonders if HBOified John Adams will fling his main man Cicero, with all his thoughts on rhetoric, into the public imagination. Some sorting out of rhetoric is in order this campaign season.

To be sure, some variations of talk versus action, youth versus experience, idealism versus realism, and so and so have been the contests of, well, maybe most political contests. But the attention to speech making—to Barack Obama’s speechmaking, by Hillary Clinton’s campaign—is a unique centerpiece this time around.

From the bits and pieces of talking points I hear, Obama’s opponents believe he is particularly gifted in the fifth of the old canons in rhetoric, actio; this being the final delivery of a speech. Without pulling up quotes, let’s just take agreed notice that we’ve plenty heard the dismissive: “he gives a good speech.” The criticism doesn’t really matter much unless you presume that abilities come at the detriment of other abilities. Such a presumption could mean Obama fails in other aspects of rhetoric, namely the inventio of a speech—coming up with an idea. Maybe the “he gives a good speech” criticism is meant to say Obama has no substance, no ideas, in those good speeches.

The other side to the criticisim is that, while Obama pulls off great speeches, a President is not the speechmaker in chief, but many more important things, like being the most experienced in chief. Such is the message conveyed in this, from Clinton’s speeches:

It's time we move from good words to good works, from sound bites to sound solutions … We need to make a choice between speeches and solutions.

Amazing that a pitch against sound bites uses a triple play of political punnery to create a sound bite.

The reason this line is not working against Obama is at least two-fold.

First, there is no good argument being presented that Obama is unable to attain “solutions,” which I take to mean initiatives within Executive Branch agencies, Congressional votes for Democratic policy, retaining allies, and promoting U.S. interests abroad like not letting crazy states or organizations do US citizens real harm.

Simply saying Obama is unable to do these things doesn’t do the trick—the lack of a compelling argument as to why he can’t explains how a people to preoccupied with experience when voting up John Kerry over more charismatic speakers four years ago seem happy with Obama.

The reason Obama’s speeches are compelling to people does not rest on his eloquent delivery nor the starry eyes of his supporters. The fact is, as is the case with a lot of speeches that achieve delighted receptions, people like what the speaker says. Obama stuffs substance into his speeches that suggests a respect for the intelligence of his audience. The success of his speech on race at the Constitution Center in Philadelphia did not derive from a smooth presentation, but from the fact that he was intellectually candid. Refreshing, indeed, to hear a pivot from talking points.

Delivery does count for something as well—Obama’s delivery also achieves the sense of treating the audience as thinking beings that don’t go to bed each night repeating talking points to themselves. That, I increasingly think, is the real reason his speeches help him, and why attacking them hurts his opponents. People appreciate Obama precisely because they feel they are not pawns falling for one-liners.

So, fashioning one-liners to attack Obama’s candidacy is not the best solution to a second-place campaign.

2008-03-01T09:45:00.001-05:00

Let the Market Determine?

Seems a long time since we've debated the notion of the market on here...and even when we did, the 'market' debate was probably indirectly related to some other issue. If memory serves, the issue tends to be whether government imperatives or the market should dictate certain trends (like environmental regulation, say). The market, and for whatever reason it tended to be the GOPers in the room arguing this, is the great thing on which we ought to rely...to set policy, show what people will and won't accept, and so on. Should we require reduced air emissions? ban smoking in public restaurants? mandate health care? Opponents of government intervention generally cite the market as a better policy setter than agency staff.

Oddly enough, this morning the whole whether-or-not-the-market-adequately-reflects-reality debate came back to me, after all these years, while reading a slate article on the blu-ray vs hd-dvd war. I am re-convinced that theories relying on the market are rubbish!

This passage sums up why:

Even worse, the Pittsburgh Post-Gazette and BusinessWeek reported that Sony, perhaps having learned its lesson from the Betamax debacle, paid Warner Bros. between $400 million and $500 million to go with Blu-ray. Sony hadn't won because it offered the HD-buying public any other tangible advantage. It took down Toshiba because it knew whom to pay off.

Reckon I'll have to dig up the actual discussions we've had that go back to market theory. Or maybe I'll just read up on my Posner. In any event - the point here is that the market is hardly, in reality, a place of rational decision-making. Indeed, that's pretty much agreed upon all around...moreover, though, examples like the above point to the bigger problem of market-reliance: the market is rigged. It's a false display.

2008-02-18T08:00:00.000-05:00

Seems to me that Frank Rich best describes why Obama stands a better chance than Clinton against McCain...not on policy, but on the other major issue on electioneering: appearance/persona/presence/whatever.

A Northeast Temperament?

2008-02-06T09:11:00.001-05:00

For a moment last night, I wondered if there is (or a popular perception of) such thing as a sentiment in the northeast towards the thing that words of various motivation imply: establishment, elite, old money, snobbery, trusted, tested, old, known, institutionalized.

Top of the head, I can only remember defending Kerry against the "liberal snob" line; but it seems some of this was attached to his being a northeasterner.

Last night, I must have seen the New York and Jersey returns while also hearing some interviewee talking about Obama being a newcomer, and feeling more comfortable with Clinton. Indulging some stereotypography, I thought only predisposed snobbery can really trigger that approach. (After getting through that, though, I wondered if the GOP would (why wonder…yes) tag Clinton as a northeast snob, or whatever the thing is that is the object of the above words. And, further, would the Democrats again stick their collective heads up their butt? Whatever the thing is with this whole liberal/northeast elitism tag, I do know it is a favorite of the GOP in election season. And it is something Dems continually forget to ponder when contemplating electability. Kerry and Dukakis ought serve as useful reminders, but ah well.)

My first stab at finding some evidence at the northeastern thing, a Google search for "northeast elite," brings up a cheerleading squad called the Northeast Elite, regional, state & 32 X National Champions! Second link is to the Northeast Elite wrestling squad. So I really have no idea (1) if there is actually a stereotype on northeastern elitism/establishment/etc; and (2) if there is some historic basis (I imagine that basis would be something along the lines of our country's first institutions, establishments, and aristocracy were there.

2008-01-30T18:21:00.000-05:00

A good conversation starter from Froomkin.

In today's Globe, Savage writes: "President Bush this week declared that he has the power to bypass four laws, including a prohibition against using federal funds to establish permanent US military bases in Iraq, that Congress passed as part of a new defense bill.

"Bush made the assertion in a signing statement that he issued late Monday after signing the National Defense Authorization Act for 2008. In the signing statement, Bush asserted that four sections of the bill unconstitutionally infringe on his powers, and so the executive branch is not bound to obey them."

2007-12-16T14:06:00.000-05:00

Second Fiddle

The Supreme Court has not looked squarely in the face of our second amendment since 1939. Back then, the Court ruled that it was OK for the National Firearms Act to ban the interstate transport of sawed-off shotguns. The defendants argued the law was unconstitutional, pointing to...

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

But the Court, in US v Miller, didn't agree that the amendment gave these folks an unfettered ability to carry around sawed-off shotguns. The right of gun possession had to have a "reasonable relationship to the preservation or efficiency of a well regulated militia." The Court suggested that, to be within the scope of the second amendment, the weapon would have to be part of the ordinary military equipment.

With one 20th century visit to the amendment, we will this term get our first second amendment visit of the 21st century. The Court will decide if the DC Circuit was right to rule that the amendment deems DC's handgun ban unconstitutional.

Maybe we can talk about how the case ought to come out on this web space. But let's begin on a lighter note.

Adam Freedman wrote the joke of the day in his column in today's Times. His piece is on the grammar of the amendment, namely its orgy of commas. Quickly, his point is that comma use in the late 18th century was willy nilly and that it would a folly to stake much interpretive weight upon the commas. In the end, it's best to take them out altogether and see what you get.

In reading his point, I thought this was a hilarious nod to the whole gun/2nd amendment debate...

"The best way to make sense of the Second Amendment is to take away all the commas (which, I know, means that only outlaws will have commas)."

2007-11-05T23:42:00.000-05:00

Nutritious

I got to thinking today about nutrition. I reckon that nutrition, as I am thinking of it, is the process of putting things into our bellies—and thus permeating our cells, organs, and inside-eco-systems—with stuff from outside. Along with the (what I am positive will forever remain correct) advice to eat a lot of different colors as much as possible, I figured that our analysis of eating is destined to be based upon a balance (like colors) of four varyingly important themes: our humanity, our gender, our great grandparents, and our selves.

I have two unoriginal hunches that, together, might could be a book that I’m not going to write (feel free to mention me in the dedication, budding nutrition PhD): one, we need to pay attention to individual genetics, and development, when considering dietary needs; two, those elements (genes and individual) need to be considered fairly equally with the more universal elements of species and gender.

There are things we should or should not eat, and ways we should prepare or not prepare those things. Maybe eat raw shark, maybe eat cooked shark. Maybe eat shark that has been buried for a year to rot beneath sand.

I got to thinking that we probably have positive or negative reactions to foods based on what we’re used to eating and what our family tree was used to eating. Clearly our human species has some preferred intake to providing energy and functionality. Our gender-based hormones have their own martian and venetian desires.

In my armchair nutritionist world, though, I have heard less about my body’s reaction to sushi based on my English/Scotch/Irish heritage. I have heard similarly little about that reaction based upon my eager consumption over the past 10 years of deliciously red tuna and steak…in other words, have I gotten my body adjusted to raw meat?

My little brother went to Russia once and had no beef for a summer. A burger would have made him ralph had he welcomed himself back with angus. Our individual habits and actions inform our appetites...Discovery Network teaches me this with the lizard penis eating, get over it it’s just your mind telling you it’s gross, travel to a new culture, shows. Beyond psychology, my brother’s post-Russia tummy cautions confirm something more gastronomical to our individual situations. Where we are, and who we are, means something when we bite.

My family has long enjoyed slow smoked pig. We’re from eastern North Carolina, and southern Virginia. My early American kin ate pigs, usually preserved to last a good spell. I bet that my genes somehow anticipate that pork, and use it to their advantage. I have absolutely no evidence or scientific reason for so betting…but it just makes sense.

Anyway—the family (and I mean deep-down, ancestor layers that give our genes meaning), and our personal places and times probably go a long way in telling our bodies how to react to what we eat. I am thinking, though, that those factors, along with our human and gender needs, have different weights in each person.

Like, my body might react especially to the groove I’ve been in lately. My friend’s body might be more geared to long-term genetic needs. Thus, a diet based on Paleolithic Man might be good for so and so with a nutritious system that reacts to those two factors (ancestry and gender). My hunch, though, is that we can never really be sure which of those four general factors (species, gender, ancestry/genetics, and individual) are most relevant to our bodies at a given time. Perhaps my individual body-eco-system can overcome its anglo-saxon genetic disposition and adapt well to a sushi-heavy intake. Further, perhaps that adaption is because of changes that occur in my body during my life, or perhaps it is because of a larger , human species reaction to sushi. I don’t know. The hunch is simply that these different factors all have some say toward whether our cells smile or frown when they meet the newcomers we bring to the party.

2007-10-25T11:11:00.000-04:00

Side Note to our Polygyny Debate:

The Economist has an article this week about the inter-relation between lifespan and monogamy. Apparently there is new scientific research to suggest that male members of monogamous species outlive their male counterparts from polygynous species. Adds an interesting dimension to our earlier debate about the causes behind human societies' universal condemnation of polygamy! Here are excerpts:

In the cause of equal rights, feminists have had much to complain about. But one striking piece of inequality has been conveniently overlooked: lifespan. In this area, women have the upper hand. All round the world, they live longer than men. Why they should do so is not immediately obvious. But the same is true in many other species. From lions to antelope and from sea lions to deer, males, for some reason, simply can't go the distance.

One theory is that males must compete for female attention. That means evolution is busy selecting for antlers, aggression and alloy wheels in males, at the expense of longevity. Females are not subject to such pressures. If this theory is correct, the effect will be especially noticeable in those species where males compete for the attention of lots of females. Conversely, it will be reduced or absent where they do not.

To test that idea, Tim Clutton-Brock of Cambridge University and Kavita Isvaran of the Indian Institute of Science in Bengalooru decided to compare monogamous and polygynous species (in the latter, a male monopolises a number of females).

In 16 of the 19 polygynous species in their sample, males of all ages were much more likely to die during any given period than were females. Furthermore, the older they got, the bigger the mortality gap became. In other words, they aged faster. Males from monogamous species did not show these patterns.

Most students of ageing agree that an animal's maximum lifespan is set by how long it can reasonably expect to escape predation, disease, accident and damaging aggression by others of its kind. If it will be killed quickly anyway, there is not much reason for evolution to divert scarce resources into keeping the machine in tip-top condition. Those resources should, instead, be devoted to reproduction. And the more threatening the outside world is, the shorter the maximum lifespan should be.

There is no reason why that logic should not work between the sexes as well as between species. And this is what Dr Clutton-Brock and Dr Isvaran seem to have found. The test is to identify a species that has made its environment so safe that most of its members die of old age, and see if the difference continues to exist. Fortunately, there is such a species: man.

Dr Clutton-Brock reckons that the sex difference in both human rates of ageing and in the usual age of death is an indicator that polygyny was the rule in humanity's evolutionary past—as it still is, in some places. That may not please some feminists, but it could be the price women have paid for outliving their menfolk.

--excerpted from "Live fast, love hard, die young," The Economist, Oct 18th 2007 ed.

2007-10-22T21:40:00.000-04:00

More J. RBG Bits from 10/19/07

-On whether the government should regulate speech: The best way to fight hate speech is with good speech -- not with repressing freedom of expression.

-On squabbles between the Court and Congress: We shouldn't worry about them too much -- they are ultimately healthy, and they are as old as the Republic! The venerable case of Marbury v. Madison is a perfect example: it was argued in 1801 but wasn't decided until 1803. Why? Because Congress was angry at the Court and would not appropriate enough money to allow the Court to sit in the year 1802. The two branches have been at loggerheads since the very beginning.

-On Minnesota v. White, a case invalidating limits on the content of speech by judicial candidates in a contested election, which drew a strong Ginsburg dissent: RBG called this a "Gertrude Stein" case. G. Stein famously said, "A rose is a rose is a rose." RBG thinks the majority in White believed an election is an election is an election, and that's just not the case. Judicial elections are a special animal and the state legislature has a right to treat them that way. The Justice noted, however, that although she thinks White is "quite wrong," it is also quite narrow if read properly. In short, she said, "It is a wrong decision but it can be contained."

Lily's overall impressions of Justice Ginsburg (or her public persona, anyway): She has a reputation for being austere and/or severe, but I think that is just an overblown reaction to her natural reserve. She was serene, unhurried, and seemed unflappable. She was above all dignified. When someone asked her a question, she generally let the silence stretch for several seconds before answering; but then she would come out with an articulate, well-organized, and complex response. It was this practice, as much as anything, that I found personally educational -- so often I find myself replying immediately to a question with a torrent of disorganized thoughts! I would like to be less eager to please in my responses, and better organized. For this concept alone, the conference was worth attending.

2007-10-18T22:33:00.000-04:00

“Bush v. Gore Was In A Class Of One” – An Evening with Justice Ginsburg

This evening I had the opportunity to attend a dinner reception featuring Justice Ruth Bader Ginsburg. During the course of a conversation moderated by Professor Suzanne Reynolds from Wake Forest Law School -- which included time for Q&A with the audience -- the Justice spoke with remarkable frankness about her life at the Court. Here are some of her most interesting points:

-- On the shrinking docket of the Supreme Court (i.e. the Court is consenting to hear fewer and fewer cases each year): This is a good development. Having extra time to hone the opinions gives the Justices more time to achieve consensus on the cases they do hear. We can notice that the Court is not issuing the same number of confusingly split opinions that they once were, because they are taking more time to craft compromise language that enables everyone to get on board. The end result is less dissenting and concurring, and fewer instances where justices will write things like, I agree with Parts 1, 5, and 6 of the majority opinion but write separately to dissent as to part 2 and concur as to part 4.

-- On the Supreme Court’s cert pool (i.e. why they choose to hear the cases they do): The Supreme Court has made a decision that it is not an error correction court. There are plenty of lower courts doing a fine job taking care of the everyday administration of justice in this country, and we do not need yet another layer of correction. Instead, the Court has chosen to prioritize conflict resolution. The justices think it is important to have the law be uniform across the country. So they are looking to grant certiorari on cases where the federal circuit courts have split with each other or split with the state courts.

-- On Bush v. Gore and the politicizing of the Court: Bush v. Gore was completely unique – in a class of one, as she put it. It was an exercise in endurance because of its short time frame – cert was granted one day, briefs were due the next day, the following day was oral arguments, and the decision came out the day after that. It is a telling fact that, in the years since BvG, the Court has never once cited it. It is essentially limited to that particular situation and those particular facts. She thinks the Justices will not allow politics to be the basis of their decisions under normal circumstances. BvG was a special case. (Is this a tacit admission that it WAS a politically motivated decision? Lily couldn’t tell!)

-- On Hillary Clinton being the first woman to mount a serious campaign for President: "Brava!"

-- On Justice Scalia: He is one of her closest friends on the Court. The Ginsburg and Scalia families have a tradition of spending New Years together. The two Justices share a love of opera. She described J. Scalia as a “wonderful raconteur of stories and a great teller of jokes.”

--When asked what is the single biggest threat to the Rule of Law in our country, Justice Ginsburg replied immediately that it is fear -- fear engendered by terrorism and the tragedies of 9/11. She said that if we allow this fear to condone unwarranted intrusions on civil liberties and (as she put it) "encourage the government to spy on us," we will fundamentally change who we are as Americans and our enemies will have completely triumphed.

I am scheduled to attend a CLE featuring Justice RBG tomorrow, along with many female judges and justices from across the country. I’ll attempt to follow up here on OR with more details about what they have to say! Stay tuned!

2007-10-10T20:36:00.000-04:00

Lunch on the rocks

2007-10-01T18:09:00.000-04:00

Disinterestedness, of the good sort

Stanley Fish writes for today's Times. The column rightly, to my thinking, notes that the head-administrator at an academic institution ought to restrain from taking political-like stances:

The obligation of a senior administrator is to conduct himself or herself in such a way as always to bring honor and credit to the institution he or she serves. Just what this general imperative requires will vary with the particular situations an administrator encounters, but at the very least we could say that an administrator who brings attention of an unwelcome kind to a university is probably not focusing on the job. He or she may be doing some other job – speaking truth to power, standing up for free speech, protesting against various forms of injustice – and those jobs may be well worth doing, but they belong to someone else.

I agree; though I got the hunch that Mr. Fish sounds more controversial than the point of his lines.

After reading the piece, isn't he arguing for disinterestedness? Such behavior, or lack thereof I reckon, is the hallmark of the academic pursuit; and seems to be the point of an academic administrator's job--as Fish would say.

Any event- the disinterestedness to which we aspire to is that condition wherein we can think of a subject, listen to and understand the inputs of information (arguments from different perspectives), and make sound conclusions unaffected by prior-held convictions. That disinterestedness (free from the interest of bias) is the academic standard from which Columbia's president fell recently (in remarks preceding Ahmadinejad's talk.

2007-09-26T17:03:00.000-04:00

** NB: Despite an appallingly long hiatus (which was entirely my own fault), Andrew has kindly let me resume my occasional guest posts on Owens Rhetoric. Thanks, APO! ~ A grateful Lily

Polygamy Trials

As all you OR news junkies have doubtless heard, yesterday a Utah jury convicted the leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints of two counts of being an accomplice to rape. The defendant, Warren Jeffs, has been leading his fringe Mormon sect along the same lines for many years, but it has taken a long time to actually prosecute him for anything. For those of you who are interested in further reading on this topic, I’d encourage you to check out Under the Banner of Heaven by Jon Krakauer. This non-fiction page turner includes a detailed discussion of Jeffs, his life story, and his belief system, and puts him in the context of the larger fundamentalist LDS movement.

I’ve had some interesting discussions recently about polygamy. Especially fascinating to me are the parallels between discussions over polygamy and same-sex marriage. The two topics share several common nexuses,* including questions over the impact they have (or don’t have) on heterosexual marriage/family structure and the potential abuses inherent in these practices when minors are involved.

Here’s one question I haven’t figured out yet: speaking in the context of consensual adult relationships only, is there any internally consistent way to reject polygamy and condone same-sex marriage? I ask because several states now allow same-sex marriage or civil unions, and some polls show Americans are growing increasingly tolerant of it. But I don’t know of too many polls stating that Americans are growing increasingly tolerant of polygamy / polygyny / polyandry, and certainly no state has even come close to allowing them. This seems contradictory to me. If the objections to same-sex marriage bans are all about the government respecting individuals’ dignity and privacy by staying out of private relationships between consenting adults, then why isn’t there a mainstream national debate about multiple marriage rights? The Anglican Communion, for example, sure isn’t being torn apart by disagreements over polygamous clergy.

Seems to me that we should either condone both multiple marriage and homosexual marriage, or reject both. I can't figure out any way that I can honestly support the latter without also supporting the former. What’s the difference?

*Nexuses? Nexes? Nexi? Ack!

2007-09-19T21:10:00.000-04:00

Slide Hampton conducts the Dizzy Gillespie All Star Band to close out this years Duke Ellington Jazz Fesival in DC. It's a great joy in life to walk through a crisp Sunday, plop down under Washington's Memorial, and listen to Slide, James Moody, Roy Hargrove, and Jimmy Heath. Our decided highlight was hearing Clark Terry and Mr. Moody do some "mumbling."

2007-09-18T19:03:00.000-04:00

Still not representing

Well, three Senators couldn't come around to the American cause of representation.

GOP Minority leader McConnell makes the odd point:

"I opposed this bill because it is clearly and unambiguously unconstitutional," McConnell said in a statement. "If the residents of the District are to get a member for themselves, they have a remedy: amend the Constitution."

How, I wonder, are "they" to act on that remedy when they have no representative to make said motion to amend the law of our land.

The Constitutional argument is bogus. Senators Hatch and Lieberman do a decent job addressing this in their recent editorial in the Post.

2007-08-24T17:08:00.000-04:00

The Dred Taney, II

Along with being the sibling with Plessy in the family of hated cases, Dred Scott is an important case in both U.S. political/policy history and judicial history (i.e., precedent). As discussed briefly below (comment if more on this is suitable), Dred Scott is about the Court's jurisdiction (in this case, that Mr. Scott was not a "citizen" within the meaning of the Constitution's Article III, Section 2. So the Court couldn't hear his case.

The Court's decision offers important language on the meaning of citizenship under the Constitution. That verbiage was so repulsive (eventually) to our elected officials, and so approved by others, that the case plays a lead role in the lead up to civil war, and, more importantly to contemporary jurisprudence, the case should directly inform our understanding of the 13th and 14th amendments. Courts ought to cite the case (negatively, to be sure) frequently whilst expounding upon rulings based upon the 14th amendment.

But the case doesn't so inform, and courts don't so cite.

Why not? That's a great question posed by a panelist at a discussion hosted at Philadelphia's Constitution Center. The podcast is available here, along with a wonderful series of similar lectures.

The speaker noted that we study Marbury and McCulloch intensely in our Constitutional Law classes, while we briefly mention, if that, Dred Scott. The 14th amendment is discussed in classes and in cases as if Dred Scott didn't exist.

I'll have to think about this point. It might be analogous to a situation wherein a reader attempts to understand Brown v. Board without understanding Plessy.

A larger discussion might take us to the role of history in decisions and in policy responses. Should, for instance, a case that brings about legislative change, ought to be read into the interpretation of that legislation? If a law passed after, say, Kelo, is challenged in court, do we read Kelo in the same endeavor as reading legislative history?

The Dred Justice Taney

2007-08-23T00:31:00.001-04:00

A hundred-fifty years ago, a couple days ago, the U.S. Supreme Court decided, for the second time in the Court's history, that the Constitution barred a Congressional Act. The first time was in Marbury v. Madison.

In Marbury, the Court struck down the Judiciary Act, passed by Congress in 1789. Some background: Normally, we hear about the Supreme Court in its role as the final appelate court after a case goes through all the rungs of lower federal courts (or a case with federal law issues is ruled upon by a state's highest court). The Constitution also allows a person to file a case directly to the Supreme Court in certain circumstances. This original jurisdiction exists in "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party." A few years after the Country got rolling, Congress appeared* to extend that original jurisdiction to cases where the plaintiff wanted the Court to issue writs of mandamus (i.e., tell another government entity to do something).

The Court, in Marbury, decided that Congress was not allowed to extend the scope of the Supreme Court's original jurisdiction. Thus the plaintiff, who had gone straight to the Court rather than landing there on appeal, had gone to the wrong court…said the Court.

In the midst of so ruling, the Court noted that Acts of Congress that conflict with the Constitution are not, in fact, law. Judges, the Court also noted, swear an oath to uphold the Constitution (forgetting to note, apparently, that so do Presidents, Governors, Congressional members, lawyers, and various others).

It would be more than fifty years later, and about 150 years ago, on August 20, 1857, that the Court again decided a Congressional Act violated the Constitution. While deciding that Dred Scott, who had sued for the freedom that should have been his according to federal law, was not, in the eyes of the federal government, a person, the Surpreme Court's Dred Scott v. Sandford decision overrulled Congress' law that would have supported Scott's freedom.

To make the case that, because he had been in free-state territory and had thus, under state and federal law, become free, Mr. Scott needed to be able to, well, make the case. The Constitution allows federal courts to hear cases between citizens of different states, so Mr. Scott needed the Court to consider him a citizen. Or, as Chief Justice Taney put it:

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

For the Court to have jurisdiction to hear the case, Mr. Scott needed to be a "citizen." To answer the question, the Chief Justice opined on the nature of Mr. Scott's eligibility of person-hood:

The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether [persons of African descent] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

By the way, pre-echoing a theme in jurisprudence common today, the Chief Justice cleansed his hands and noted that policy (good or bad) is made outside the court:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

Chief Justice Taney proceeds to discuss several reasons why the framers of the Constitution would not have considered Mr. Scott a citizen; thus, the Constitution bars Mr. Scott being a citizen.

Shall we call Taney's jurisprudential approach the original original intent?

After establishing Mr. Scott's (and any African American's) non-person-hood, The Chief Justice reasoned that the 1820 Missouri Comprimise, which prohibited slavery in non-state territory north of a specified latitudinal line, violated the Constitution because it unreasonably deprived citizens of property (slaves).

Thus, the second instance of the Court's use of the 'judicial review' stick to Congress' hand. With that history said, I have a few things on the mind. Taney's reasoning…is it bad, or just mean? Is there a better word than judicial review (or activism) to describe the Court's role as balancing Constitution vs Congressional Acts? What did the dissent say in Dred Scott?

To be continued, I hope…

* Akhil Amar makes the convincing point, in America's Constitution, that Marbury is wrongly decided because Justice Marshall misread the Judiciary Act (read page232-233).

2007-08-22T18:38:00.000-04:00

If you missed the NY Times op-ed penned by 7 officers at the end of their tours in Iraq, let Fred Kaplan's Slate article catch you up. The gravamen of the piece is that their experience of the insurgency/counterinsurgency causes the officers to be "skeptical of recent press coverage portraying the conflict as increasingly manageable and [to] feel it has neglected the mounting civil, political and social unrest [they] see every day."

The piece continues to detail the causes of that skepticism.

Kaplan asks the interesting question: where are these officers now? How has the article affected their return home and job security?

2007-08-22T18:34:00.000-04:00

over the bay

2007-04-14T17:53:00.000-04:00

Summarizing Massachusetts v. EPA

The following is a summary of what the Supreme Court decided in Massachusetts v. EPA. The lawsuit arose out of EPA’s decision to deny a rulemaking petition asking the agency to regulate greenhouse gases pursuant to the agency’s authority under the Clean Air Act. The questions that the Court considered and answered in its majority opinion deal with greenhouse gases only tangentially; the debate in the Court centered on legal questions about lawsuits and government agency powers. The issues that the Court decided upon addressed: (1) whether the plaintiffs in the case should have been allowed to sue and (2) whether EPA properly denied the petition for rulemaking. While summarizing the Court’s decision on these questions, we will need to cover a few legal concepts that were central to the Court’s thinking—we will cross those bridges as they come along.

How the case came about

Federal agencies create regulations primarily because Congress directs them to through statutes. The agencies are also bound by those statutes—they cannot overreach and regulate more than Congress has directed. Thus, agencies are the government entities that implement laws. People often challenge agencies in court for regulating beyond the authority granted in a statute. Conversely, agencies can be challenged for not doing enough under a given statute. That is what happened here.

In 1999, 19 private organizations sent a petition to EPA telling the agency that it should regulate greenhouse gases according to the Clean Air Act. EPA published a note in the Federal Register asking the public to comment on the issues raised in the petition. The White House also asked the National Research Council to identify where there were uncertainties in climate change science. In 2003, EPA denied the rulemaking petition saying that it had no authority to regulate greenhouse gases under the Clean Air Act. To boot, EPA gave several policy reasons that, if it had authority, it would still decline to regulate.

The petitioners challenged EPA’s decision at the D.C. Court of Appeals (the Clean Air Act allows exactly such challenges that skip the trial court level because the challenge is about EPA’s government power rather than about facts that would be determined in a trial). Joining in the petitioner’s cause were several state and local governments, including Massachusetts.

The Appeals court ruled against the petitioners. One judge jumped straight to the issue and decided that EPA did nothing wrong in deciding not to regulate greenhouse gases for policy reasons. Another judge decided against the petitioners on procedural grounds, writing that the petitioners should not have been able to sue EPA in the first place. With two out of three judges deciding against them, the petitioners lost. They appealed and the Supreme Court accepted the case.

The Court considered two major issues to decide the case; one issue focuses on the petitioners, the other on EPA. We will first look into why the court spent 15 pages discussing whether petitioners could rightfully sue—an issue called “standing.” Then, we will consider the Court’s discussion that focuses on whether EPA acted properly.

Whether Massachusetts can sue EPA

The Constitution limits federal courts to hearing “cases” and “controversies;” which is to say, courts do no simply opine on any issue they want. There must be a plaintiff that suffers some actual injury for which we can (or can’t, as the case decides) ascribe causation to a defendant that, upon such finding of blame, can redress the injury. The elements bind courts to the role of deciding precise disagreements rather than creating law out of whole cloth.

The legal term of art for the above elements is “standing.” A plaintiff must have standing (i.e.., must have an injury and must identify the person that can be blamed for and can redress the injury). These elements are important because four out of nine Justices wanted to dismiss the case believing that the petitioners did not satisfy the standing requirement.

The Court discussed only Massachusetts’ standing because, for the purposes of this case, only one petitioner needed to show standing and the lawyers picked Massachusetts. In addressing whether there is an injury (the first of the standing elements), the Court first considered Massachusetts as a state. The Court emphasized the “special position and interest” of Massachusetts.

A state’s interest extends to its capacity as a sovereign entity—that, as the Court quotes Justice Holmes, it can control “whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.” This role of the state as a governing entity is important because the federal government has assumed the prerogative of assuring clean air. Because this prerogative has shifted from state to federal jurisdiction, the state enjoys a “special solicitude” in the Court’s standing analysis.

Many commentators have written about, and most of Chief Justice Roberts’ dissent complains about, the Court creating a new, relaxed standard for allowing states to have standing. However, rather than affording the state a relaxed ability to sue, the Court’s discussion correctly recognizes the context in which it decides whether there is standing (injury and a defendant we can blame and that can redress the injury).

Indeed, the discussion of Massachusetts’ injury is straightforward: the state, in its capacity as a landowner, is losing coastal lands (beyond normal erosion) due to rising sea levels caused by global warming. The state also asserted impaired of air quality. The argument against this first element of standing is that the injury is not particular to Massachusetts. In response, the Court noted that the widely shared nature of the injury does not diminish Massachusetts’ injury.

Having established an injury, the Petitioners needed to show that they brought in the person that caused the injury and can redress the injury. Remember, this case is about EPA’s role in regulating the greenhouse gases that are injuring Massachusetts. No party in the case disputed that greenhouse gas emissions cause global warming and contribute to the claimed injuries. EPA’s argument, rather, focused on the inadequacy of redressability in the case—in other words, EPA said it could not mitigate global climate change, especially in light of developing nations like India and China contributing to climate change.

The Court rejected that argument. Government commonly works one step at a time. For standing considerations, the defendant’s inability to redress fully the plaintiff’s injury does not destroy the plaintiff’s ability nevertheless to sue the defendant to spur some relief. As the Petitioners argued, the U.S. transportation sector contributed 1.7 billion metrics tons of carbon dioxide in 1999. If the EPA removed some portion of that contribution, the harm caused by global warming will be reduced.

Massachusetts, having shown a concrete injury and having brought into to court the entity causing that injury (by not regulating) and that can redress the injury, has standing. The case can move on; thus, we turn to the Court’s discussion of whether EPA acted unlawfully in denying the petition for rulemaking.

EPA’s denial of the petition and the agency’s discretion

As mentioned above, agencies are the government entities that implement Congress’ laws. But, laws are not always clear, and agencies often must exercise some interpretation while transforming Congress’ laws into the rules that actually affect people and industry.

An agency is often challenged in courts by litigants claiming the agency did something wrong while translating a law to a regulation. Courts are familiar with this frequent fight and generally favor affording agencies some discretion in interpreting statues. However, courts need some way to determine whether an agency deserves this discretion (because the agency consists of experts) or whether the agency has gone beyond the realm of reason while turning statutes into rules. The test that courts use when deciding this question was formulated in a 1984 case called Chevron v. NRDC, and is commonly referred to as “Chevron deference.”

Under Chevron deference, if the statute that the agency interprets is ambiguous (in other words, if there is room for interpretation), the court will defer to the agency’s interpretation. However, if that interpretation is unreasonable, the court will analyze the agency’s action (or inaction) with no deference to the agency. So there are two prongs: (1) was the statute clear or ambiguous; and (2) if ambiguous, did the agency make at least a reasonable interpretation?

Returning to Massachusetts v. EPA, in denying the petition for rulemaking, EPA said: (1) the agency did not have authority to regulate greenhouse gases under the Clean Air Act; and (2) even if EPA had the authority, it would decline to regulate. We will address the two points in that order.

The Court struck down EPA’s first authority-based argument with the first prong of the Chevron test; the clarity of the statute precludes EPA’s interpretation that it could not regulate greenhouse gases. The statute requires EPA to regulate “air pollutants from … motor vehicle engines, which … cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” EPA had interpreted “air pollutant” not to include greenhouse gases. But, the Court said, the statute unambiguously includes greenhouse gases in the definition of air pollutant:

The statutory text forecloses EPA’s reading. The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical … substance or matter which is emitted into or otherwise enters the ambient air ….” On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical … substance[s] which [are] emitted into the ambient air.” The statute is unambiguous.

So, EPA loses the first argument (that they have no authority to regulate) because the statute clearly allows EPA to regulate greenhouse gases. The language of the statute, quoted above, is important because it informs the next question: did EPA properly decide that it would decline regulating greenhouse gases for the time being?

This aspect of the case is entirely about an agency’s discretion. Usually, it is very hard to lose a case as an agency declining to regulate. Yet, EPA lost. The Clean Air Act contains a provision on how courts decide whether EPA properly exercises its discretion in turning down a petition: the EPA loses if the decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

Turning to the issue in this case ,the Clean Air Act, said the Court, allows the agency to decide how to regulate, but does not allow the agency to decide what to regulate. To avoid regulating greenhouse gases as the petition urged, EPA needed to either determine that the asserted greenhouse gases cannot “reasonably be anticipated to endanger public health or welfare;” or the agency must offer a reason not to regulate.

EPA tried to offer reasons not to regulate: several voluntary programs are in place, the President is pursuing technological improvement approaches, regulations might hinder international negotiations on global warming policy, and so on. The Court did not find these reasons adequate because “they have nothing to do with whether greenhouse gas emissions contribute to climate change.”

The Court’s opinion suggests that when an agency makes a decision regarding whether or not to pursue rulemaking, it must ground that decision in the language of the statute. Here, the Petitioners asked the agency to regulate greenhouse gases because they are pollutants that the Act requires EPA to regulate.

The relevant language of the statute requires that EPA’s response address, head on, the science of greenhouse gases, and the costs and benefits of regulating them. The policy-centered reasons that EPA offered did not satisfy this requirement; nor did EPA’s assertion that too much uncertainty surrounds the features of climate change. EPA only asserted uncertainty at the margins of the global warming issue. Such “residual uncertainty” is not sufficient to excuse EPA’s refusal to determine outright whether greenhouse gases “endanger public health or welfare.” Thus, EPA’s explanation in response to the petition was “arbitrary, capricious, … or otherwise not in accordance with the law.”

A small conclusion

Reasonable people can differ on whether the Court has created a new legal hurdle for agencies responding to petitions for rulemakings. Many commentators, along with Justice Scalia’s dissent, wonder why the EPA had to make a judgment at all regarding greenhouse gases simply because of the filing of a petition. On the other hand, it makes sense to ground a determination of whether the agency acts arbitrarily or capriciously on the underlying statute.

The Court did not prescribe EPA’s decision—the agency can decline to regulate greenhouse gases for reasons more adequately connected to the Clean Air Act. However, the Court surely hinted that it (at least, five of the Justices) are convinced of some basic elements of climate change: greenhouse gases are sufficiently “air pollutants” that EPA can regulate, global warming results from greenhouse gases, and actual harms result. EPA would have a great deal of difficulty refusing to regulate on the basis of the air pollutants having insufficient harm to public health or welfare. Thus, it is very likely EPA will soon be pursuing cost/benefit, and other, analyses of carbon emission regulations to determine how to regulate greenhouse gas emissions.

2007-03-24T11:31:00.000-04:00

Did Prince Write that Sign?

To have a laugh one day, Joseph Frederick held up a banner while the Olympic torch passed him by in Juneau, Alaska with the message, "Bong Hits 4 Jesus." This being across the street from his school, during school hours, the principle rushed over, grabbed the banner, tore it up, and gave the high school senior a 10 day suspension. So he sued the principle claiming violation of 1st amendment right to speech.

The district court agreed with the principle, the 9th circuit agreed with the student, and the Supreme Court heard arguments on the case about a week ago.

Student speech is not a novel topic in the Court, and the most direct precedent to this case is Tinker v. Des Moines. There, the school suspended kids wearing black arm bands to protest the Vietnam war. The Court held that students still enjoy certain first amendment protection. Recognizing a school's need to maintain order, the Court said that the school can prevent speech when such speech is disruptive. Black armbands were not disrupting any lessons.

In a recent column, Marci Hamilton writes:

Why shouldn't schools be able to effectively discourage illegal drug or alcohol use, smoking, promiscuous sex, profane speech, and violence? The Motion Picture Association of America screens movies for children under such categories; surely, schools can make similar judgments in their guardian-like role as parens patriae.

...the slippery slope here is the one that is going to persuade many fine school administrators to find other lines of work. If the court rules that the school's actions in this case cross the First Amendment line, then school administrators are going to be advised to err on the side of permitting a wide swath of student attention-grabbing, inappropriate speech, even if it directly undermines legitimate school policies. This turns each principal into Sisyphus, constantly rolling the rock of civility and wholesomeness up the hill only to have it roll back down, again and again.

Schools certainly can discourage drug use. But I don't understand how Hamilton's hope that schools can censure student opinion on the subject will even help the drug-resistance policy. Silencing the other side of the debate often strengthens it--especially when it is an illicit activity that teenagers are being told by authority figures to avoid.

Far better the debate of drug use be out in the open...as it is very often in Alaskan referendums. An honest debate about whether marijuana should be legal seems a perfectly civic oriented discussion that the 1st amendment would envision.

Many arguments on the school's side focus on drug-use and propose that "disruptive" speech can be that which runs counter to a major school theme, and because pot-use is illegal, the school can prevent posters/shirts/etc that advocate the activity.

But, in Tinker, it was a major school policy was to promote patriotism and service (ie-not draft dodging). Thus, the black armbands in Tinker were a rebellion against the school's policy just as a a poster advocating drug use.

Illegality is often used as a potential differentiator--the Principle can censure a sign reasonably understood to advocate illegal drug use. Speech about some civic/political point is one thing, so the argument goes; speech about drug use is not as deserving of protection. This is a problematic line, though. Many civic minded discussions are precisely about what should and should not be legal. In any event, speech about drug use is far different from passing out drugs or using drugs on school property.

All the above said, though, we cannot ignore the amazing need to allow teachers control within their classrooms. We would be robbing our children's learning if we allowed their classmates to disrupt the learning environment at will, claiming 1st amendment protections.

In my mind, the focus ought never come off of "distraction." The 9th Circuit made this point in its decision in Frederick, noting that in other contexts, the bong banner may have been a distraction to schooling and could be removed. Distraction should be a context driven concept. Some students might be able to talk about the merits of legalized/illegal marijuana while the mention of a drug, for others, might cause eruptions of shouting.

In deciding whether a speech incident was disruptive, courts should defer to teachers, principles, the community, and then common sense.

In Frederick, the student could not have been disrupting class because class was not going on, and the parade was not school sponsored (rather, it was Coca-Cola sponsored). On the facts, I tend to side with Frederick. Then again, district courts decide facts and this one sided with the school.

2007-03-05T20:46:00.000-05:00

hmmm

Lithwick makes a very good point on this US Attorney business...

But it seems to me that that's precisely 50 percent of the scandal here. And there are some other folks deserving of subpoenas as well. Mr. O'Neill and Mr. Tolman spring to mind. The outrage isn't merely that the Justice Department abused its power to hire and fire. The real scandal is that it rewrote federal laws to do so, yet nobody seems to know who did it or why.