Submitted to a Candid World

The rhetorical trick known as the slippery slope argument - by which one person argues against another’s idea by theorizing that it leads inexorably to the end of the world - is the darling of creationists and conservative jurists alike. Like its rhetorical brother, the empty appeal to tradition, it’s a way of saying something when there’s nothing left to say: if you don’t have anything concrete left to say about the evils of gay marriage, you can always argue that it inexorably leads to marrying toasters.

Along those lines, we’ve most recently we’ve heard from none other than the Discovery Institute (friend of John McCain!) that evolution, working together with the animal rights movement, calls into question the brightline definition of “humanity,” causing us to devalue humanity, inexorably causing genocide, abortion, and euthanasia. Wrong. On multiple levels.

Not human, but pretty damn cute.

First, the argument assumes that when the definition of “human” becomes open to debate, that the legal protections afforded humans must equalize down to the level of animals, protecting less and less life. But, if evolution & animal rights work together to blur the line between species, they do not necessarily cause a race to the bottom. In fact, it can lead to a race to the top, and a recognition of the profound value of life in increasingly more and more organisms. We can always respond to the similarities between man and animal by raising animal rights up, perhaps not on par with our own, but at least partially, in recognition of our partial similarities.

The Discovery Institutes’ argument assumes that granting rights to animals - or, partially equalizing up - is simply not an option. That assumption betrays a shocking lack of respect and perspective. If we’re the only thing that matters - if the Discovery Institute won’t even entertain the idea that there’s any value beyond human life - we’re not only ignoring the Biblical injunction that mankind protect wildlife (let’s play on their court!), but we might as well also repeal anti-animal cruelty legislation. While there are huge problems with some animal rights regimes, to answer those problems by ignoring animals is simply evil.

Second, like all slippery slope arguments, the Discovery Institutes’ argument relies upon an assumption of a failure of will. The argument proceeds along these lines: if man and animal are legally and scientifically blurred, there is literally nothing stopping us from concluding that man is worthless. The slippery slope posits that no-one will stop, think, and reason out a principled way to avoid that philosophical conclusion. It poses a line-drawing question - where do we draw the line on what rights animals get? - and then refuses to answer the question. Like so much of creationist spin, indeed like intelligent design itself, the slippery slope argument poses a problem and then simply gives up on finding a solution.

We are in charge of our own legal, philosophical, and moral destinies. If a legal or philosophical position potentially leads us down a slippery slope of reasoning towards a dismal outcome, we have vested in ourselves the reason and the capacity to draw the line, and solve the problem. While “ideas have consequences,” no idea has bad consequences unless we let it, and at that point, our personal failures become complicit in, and superseding causes to, the evil inherent in the idea. Ideas don’t kill people; jerks who don’t think straight kill people.

Hucka-being John McCain

While our friend Progressive Conservative at “The Big Stick” wondered aloud today whether the maverick spirit of 2000’s John McCain lives on in 2008’s Candidate McCain, the man himself continued his sell-out to the fundamentalist wing of the Republican party by pulling out the Republican Party’s perennial election year distraction: the danger posed by The Gays. This time the issue was adoption: guess where McCain stands.

McCain’s defense of his opposition to gay adoption is right out of the “family values” theo-conservatives’ playbook - “we’ve proven that both parents are important in the success of a family so” - and it has always struck me as odd in the extreme. The appeal is essentially only to tradition, without any attempt to grapple with the real reason behind the issue: we’ve always done it this way, so we ought to continue. What is tradition, but a shield to hide behind when all other arguments fail? That we a nation should turn away willing parents when children languish in orphanages, to the detriment of their futures, is an appalling disgrace.  When a “pro-family” position requires one to sacrifice the best interests of the child at the altar of the Old Testament’s outdated Levitical morality, “family values” cease to be about the family, and become solely about the politics.  The greatest ruse ever pulled on the American voter was to convince him that defending the family meant being an evangelical Christian, ergo a Bush/Huckabee Republican.  In time, ridiculous contradictions like this one will give the lie to that old canard.

And it’s downhill from there.  While one side of McCain’s mouth casts him as a practical, thoughtful, reasoned and progressive conservative like Teddy Roosevelt, the other pulls creationism into the public school classroom.  “[Teaching evolution is] up to the school boards,” he has said on the issue. “That’s why we have local control over education.”

No.  It isn’t.  Local control over education is meant to allow schools to tailor their curriculum to subjective beliefs and standards, to allow them to teach local history, languages, and literature.  Science is not a subjective belief.  It is an objective methodology geared to uncovering the facts that knit the universe together, and as such it does not vary based on locale.  Gravity works the same in Louisiana as it does in Manhattan, and it ought to be taught as such.  McCain’s subtle endorsement of creationism is just the latest in a swing right on that issue.  Take McCain’s recent keynote speech at the Discovery Institute.  This is the man who reluctantly campaigned at Bob Jones University, now embracing his role as the avatar of theocratic religion.

McCain attempts to mask his endorsement of the religious right mainline by couching it in the rhetoric of “local control” - let the states/cities/towns decide issues like abortion, gay rights, and science.  This is a thinly veiled attempt to pass the buck, and a tactic commonly used by McCain to exculpate himself from endorsing far-right positions by nominally devolving the issue to others who he knows will make the (religious-)right decisions.  McCain won’t destroy women’s rights: his Supreme Court appointees will.  McCain won’t endorse homophobic bigotry.  But he will idly stand by states do it.  McCain won’t teach creationism.  But he will subtly endorse it, and let others teach it if they want to.  Make no mistake: McCain may interpose a middleman between him and some radically theocratic positions, but the result is the same.  Invoking states’ rights on issues of federal constitutional law only absolves him of the responsibility for the decision, a cop-out I frankly didn’t expect from Senator John McCain, straight-talking maverick extraordinaire.

And that’s the real story.  McCain is no longer his own man.  We get our term “candidate” from the Roman rite by which the politician, prior to an election, donned a white robe to symbolize his purity of mind and devotion to justice.  It may be true that no candidate ever has, then or now, maintained that purity in fact.  As for McCain at least, his white robe has already been blackened by the dirty hands of a million special interests, not the least of whom sit happily in their megachurches and marvel at the speed and grace with which they turned the politician who once called them “agents of intolerance” so firmly into their man.

Communicating complicated scientific issues to the public is becoming increasingly vital to democracy, especially as science becomes more complicated and more intrusive upon traditional values. With global warming becoming a valence issue, though, I think it’s time to pay credit where credit is due to those who so effectively educated the public on the myriad threats to our environment.

I refer, of course, to none other than Al Gore and the heroes behind Futurama.

Why did we not elect this man!?

I’ve added the feed for “The Caucus” blog to the sidebar: please let me know what you think.  I think I have about two readers who visit commonly enough to have an opinion as to style.  Could both of you please let me know what you think?

Also, for a while now, I’ve wanted to add sidenotes, a.k.a. “asides,” to the site.  However, there doesn’t seem to be a way to do that in WordPress.com.  Very disappointing.  I’ll be looking into it, and if you have any knowledge, I’d greatly appreciate it.

Sometimes I think that George W. Bush must be either a cruel joke played on us by some malevolent will, or at least a national nightmare from which we shall surely wake. Setting aside his policy errors, the man’s personal foibles are too hilarious to be real. Bush’s last G8 summit, just completed, caps a legacy of painfully awkward international faux pas’ worthy of “Office” legends Michael Scott or Dwight Shrute. In honor of the end of this era of free comedy, a short recap of the depths of lapsed dignity and decorum plumbed by our President, in the form of lessons learned:

• Apparently, heads of state are unaccustomed to free massages, or, perhaps, to being groped without notice by fellow world leaders. At an earlier G8 summit, upon meeting German Chancellor Angela Merkel, Bush proceeded to give her a back rub, in the manner of Buster Bluth. “Heyyy, Chancellor…” Watch the video; her appalled facial expression is well worth the click.
• In what surely must come as a shock, British Monarchs don’t like being flirted with, or winked at (video).  Especially by the self-styled black sheep of a formerly respected political family.
• Making stereotypical ethnic jokes is a cool way to defuse the tension of a first meeting.  Hey, Gordon Brown liked it.
• Italians don’t speak Mexican Spanish: apparently Italian Prime Minister Silvio Berlusconi doesn’t answer to the Spanish word, “amigo.”
• When an assembled group of world leaders spends years trying to get you to own up to the damage you’re causing to the environment, they don’t like being reminded of how little you care what they think. This suggests that, “goodbye from the world’s biggest polluter,” might not be the best choice of parting words.

International diplomacy just might be one of those places where a little elitism goes a long way.

Against the backdrop of a national tragedy, the story of the Bush years include their fair share of personal tragedies, unfolding on the national stage in untold or barely sketched stories.  Two come to mind.

Exeunt.

As told by Jeff Toobin, Sandra Day O’Connor’s story is almost Shakespearean in the magnitude of the “character arc” she’s forced to undergo, and the events that impel her along it. In Act I, faithful to Governor Bush’s message of “compassionate conservatism,” Justice O’Connor casts the tie-breaking vote to “elect” Bush, while Cheney is already scheming to betray that message. In Act II, Bush’s party proceeds to betray her firm beliefs in moderation and the law by taking a nasty anti-intellectual, anti-judicial, anti-woman, and extralegal turn. And, in the traumatic dénouement (don’t miss it!), O’Connor is forced to resign from her beloved Court to tend to her dying husband, only to watch him slip away from her while Bush drags his heels on finding her replacement, ultimately nominating her jurisprudential arch-nemesis Samuel Alito to fill her spot as the curtain falls. Just awful.

Senator John McCain’s story might be second in tragedy only to Justice O’Connor’s.  This is a man who’s served his country nobly, and done almost everything right as a politician.  He’His only mistake - now, and in 2000 - was his timing.  But for dirty politicking and a young man named Rove, McCain would have had a fair shot at the presidency in 2000.  He would also likely have been a fine president: 2000 was a good year for moderation and cross-partisan unity.  But for September 11th, he may even have had a shot at Bush’s second term, or a prestigious place in his administration: re-nominating Bush at his pre-9/11 ratings would have been suicide for the GOP.  And today, but for the Bush years, the Republican Party’s political culture may have allowed a moderate to exist, and not demanded that their candidate pander to and pretend to like the far-right.  Americans may still have had faith in the Republican party, and we may might have been willing to credit a Republican’s promises of moderation.  Today, I suspect we’re a little less willing to make Sandra Day’s mistake.  McCain might have been the right president in years prior, but this, as it always has been for him, is the wrong time.

Every now and again, we law-talking guys get our moment in the sun, when one of the vague and bizarre doctrines probed only by academics is exposed to the unexpected, searching sun of publicity. AH! It burns, it burns! This month, it’s comity and private international law, collectively known as the conflict of laws.

Executive summary: fur’ners want to sue the first amendment away from us, courts are letting them, and that’s bad. Or, in more depth, some plaintiffs with ties to terrorism and militant Islam are using the comparatively weaker free speech protections of European nations to win libel suits that they couldn’t win in America, American courts are for some reason enforcing the judgments, and Joe Lieberman (I-Conn.) is right to be worried. He wants to pass a law requiring American courts to ignore foreign libel judgments if they wouldn’t fly under our first amendment, and I think he’s right on target. Our first amendment is not up for debate. As usual, skip to the rant if you want.

The Law

If a European manages to make their law of libel apply to an American defendant, they do it through a two step process, first by winning the case in Europe, and second, by asking an American court to give them money based on the judgment.

After all, winning a case isn’t everything. When you “win,” you don’t get money; you get a judgment, and you have to ask the court to help you collect on that judgment. Those steps blur when an American sues an American: they’re both in front of the court, and if the losing party runs, American police are right behind them. But when a foreigner sues an American, things get dicey, and cracks start to show in the two step process. Let’s go through them both.

First things amendment first. It’s very hard to win a libel case. The United States grants vast leeway to speakers when making impolite, impolitic, or even borderline libelous statements. If you want to sue someone for slandering you, the burden is on you to prove the offense: you have to prove that the allegation made against you was (1) not true, and (2) made with reckless disregard for the truth. N.Y. Times Co. v. Sullivan, 376 U.S. 254. If you’re a public figure, forget about it - you have to prove “actual malice” in addition to those. Hustler Magazine v. Falwell, 485 U.S. 46 (yes, that Falwell). Long story short, the United States prefers to let people say what they want to when they want to, and if they’re wrong, the truth will out. That’s why the marketplace of ideas is so vitally important - because it’s the only remedy afforded to a slandered individual in cases where “reckless disregard” or “actual malice” can’t be proven. Because of the value we place in the marketplace of ideas, some slander cases just won’t be won.

Comparably, it’s much, much easier to sue for slander, libel or other defamation torts in other nations. In the U.K. and most of Europe, the burden is instead on the speaker to prove accuracy. An American citizen living in Europe, then, might get sued for something they could’ve freely said in America, and that’s just tough. The more complicated case arises where an American citizen, sitting in America, makes a false statement that injures (perhaps through the internets) someone halfway around the globe. An aggrieved plaintiff sitting in, say, Australia can win a judgment (”you were slandered”), but they can’t enforce the bloody thing. After all, who’s going to enforce it? The Australian court and legal system only have jurisdiction over people in Australia, and the defendant’s not in Australia . The court system is powerless, and the plaintiff’s stuck with a meaningless piece of paper.

Unless they can ask American courts to enforce the judgment. And that’s a matter of comity. Comity is how a foreign plaintiff gets a domestic court to turn their judgment into the money they feel they’re owed. But foreign courts - in our Australian example, American courts - don’t have to enforce the judgment. Both the common law of comity and modern statutes permit our courts to ignore a foreign judgment if it was unfairly obtained, if it contravenes a fundamental public policy, or if it’s repugnant to the nation’s values. This is why America doesn’t have to enforce Sharia law verdicts, for example.

Similarly, faced with foreign libel judgments, courts routinely decline to enforce a judgment as requested, since to do so would supplant American first amendment jurisprudence, and its respect for free speech, with a foreign standard that may be surprising or cruel to the American defendant. Given these cases, courts have been known to ask the parties to settle, try to broker a compromise, or flat out say “no.” And that’s the way it should be. Our first amendment is our first amendment. An American citizen has every right to expect to be covered by the first amendment when speaking within their own country. While America ought to respect the world’s values, when it comes to our citizens, our Constitution comes first.

The Rant

Free speech is one of our most vitally important values. When other nations ask us to compromise that value with regards to an act done by an American on American soil, and only affecting a foreigner in the abstract, the answer should be a categorical no, especially because established principles of comity allow us to do so easily without running afoul of treaty obligations or the reasonable expectations of foreigners doing business with Americans. American law for American citizens. Not too complicated.

Further, free speech is one of our greatest contributions to the idea of democracy. While other nations have opted to trade free speech for safety and comfort - Germany, for example, will jail you for speaking favorably of Hitler, or denying the Holocaust - we’ve somehow managed to get along by tolerating some truly despicable ideas, and trusting our citizens to sort the good out from the bad. The free, unrestricted marketplace may not always work, but it works for now, and as long as we still think it’s worth defending here, we ought not compromise it for the sake of those who may not understand why it works. While I’m not always okay with spreading democracy vis armae, by fire and war, spreading democracy by being a shining beacon to the world, and proving day-by-day that liberty works, is not only fine by me, it’s what I think of as our quintessential mission.

Paradoxically, being that city-on-a-hill may force us to live with some truly filthy stuff. Declining to enforce foreign libel laws, and maintaining our moderate protections for untruthful speech, may make America the mecca of the raving lunatic, the one place in the world where the depraved have the freedom to say whatever awful thought comes to mind, and still dodge the long arm of the law. I say, fine. That’s the experimental system the Founders undertook to create, and while it’s by no means perfect, it’s better than the alternative.

We can’t cave on our fundamental concepts of liberty. If we were to redesign our internal legal system to jive well with the world, and maximize the reciprocal enforcement of judgments, we’d have to toss the jury system along with free speech. Commercial jury verdicts viewed with deep suspicion by some of our peers on the international stage, to the point that they have gone, at times, unenforced. After all, the foreign argument goes, what do commoners know of high matters of corporate finance and restructuring? Enough, I say, that I’m still sitting only two miles north of the beating heart of the global finance system.

I may not often agree with Senator Lieberman. And this may be the one time you see me speaking with hostility about non-Americans and foreign cultures. But this isn’t an issue of xenophobia or intolerance. It’s an issue of preserving American law for Americans. Senators Lieberman & Specter, pass the bill. I’ll be deeply disappointed in any Senator that votes against it. Defending free speech is not a partisan matter.

Being on the radio was fun, and I’ve decided to set my sights on a repeat performance. Along with my lifetime goal of having my name cursed on the air by Rush Limbaugh and/or Michael Savage, I had, until recently, declared a new lifetime goal: being on NPR’s Bryant Park Project, the respected radio network’s well-loved attempt to capture the twenty-to-whatever professional demographic.

But, in what must come as a disappointment to me and any fan of good radio, the BPP is to be no more.

If you’ve ever thought that NPR is just too stuffy, for one, you’ve obviously never listened to “Wait Wait… Don’t Tell Me!”, but for another, the BPP was proof of the contrary. Although over the past few months it’s clearly missed Alison Stewart’s influence, the show was a jaunty and intelligent morning program, pulling together information from the big-name blogs and the mainstream media in a fun, conversational manner. And, for the network, it was a stellar “gateway drug,” sucking a new audience into the rest of NPR’s programming (”Fresh Air,” “Science Friday”…). I hope NPR manages to fill the void left by the BPP; I for one will have to find a way to fill the void on my iProducts’ flash chips.

Let’s not get ahead of ourselves, but I haven’t heard the name “Jeremiah Wright” in a while. Nor have I heard much about anyone being “bitter.” Although the enduring truth of this assessment will have to wait until November, it may prove true that Hillary Clinton, by trotting out some of the major foibles of the Obama campaign early in the primary season, deprived the McCain campaign of the opportunity to use them to discredit Obama when it actually mattered… as in, now. The American electorate, being a composition of single individuals, has an attention span and capacity for memory of current events akin to that of any individual. So, the effectiveness of a smear campaign varies on the strategic nature of its deployment.

The Time Value of Dirty Politicking

A well-timed public relations disclosure, regardless of its veracity, can spell disaster (Swiftboat Veterans for Defamation Truth), while truthful information that comes too late (Bush’s DUI conviction, disclosed on the eve of the 2000 Election) can be irrelevant. I think we’re about to see a new case: if a talking point is put into action too early, it loses its effect faster than an overplayed Top-40 Britney hit.

Of course, counterexamples abound. The issues of Kerry’s elitism and incomprehensibility to the common man (”I voted for it before I voted against it”), broached in the spring of 2004, both survived as potent themes and venues of attack until the fall election. But that’s due in no small part to Kerry’s incompetence. He continued to play into the role the Bush team had crafted for him. If you’re trying to dodge the “elitist” label, you don’t go windsurfing, and if you do, you can expect old smears and old missteps to be reincorporated into the next spin cycle. Making the same mistakes over and over again just gives the opposition an invitation to dredge up the old ones.

There’s every reason to think Obama’s case will be distinguishable from Kerry’s; his image related mistakes per week have dropped drastically since spring, and it’s come to be viewed as tactless and puerile to repeatedly harp on Obama’s “difference” from white America. “Look, he’s wearing a turban!” Oooooh, I’m scared. Hopefully, we’ve moved on.

What, Too Soon?

But we’re not invulnerable. A wise campaign would still keep a tight leash on Obama’s public image, and play down his vulnerabilities wherever possible. Sadly, some liberal groups and media outlets aren’t playing along. Outside of the “Colbert Report” - and even then, I’m not sure how I like it - it’s too soon to start making fun of the way Obama’s enemies want him portrayed. We risk dredging up and re-activating the very images that we thought were dead. Apparently the New Yorker hasn’t gotten that memo. And, neither has MoveOn.org. As much as I love MoveOn’s platform, they seem singularly incapable of doing anything with grace or tact. According to a recent e-mail sent to supporters, the PAC may soon start selling buttons displaying the “terrorist fist jab.”

Definitely too soon. While it’s good to show that we’re not afraid of difference, let’s not be foolhardy about it. A lot of Americans are afraid, or at least suspicious, of what makes Barack Obama different than previous presidential candidates. Not playing into their fears, and smugly acting like we’re completely invulnerable to a continued assault along those lines, might be a good campaign tactic. Let’s not “bring it on” just yet.

Wearable Wartime Atrocities, Brought to You by TownHall.com

Torture is the last resort of a desperate warrior, and not a particularly effective one at that. Of course, to some t-shirt manufacturers and their advertising partners at TownHall.com, it’s not as serious as it is funny (see right). To quote Bender, comedy is dead, but tragedy? Now that’s funny! While letting that idiocy speak for itself, let’s move on to the issue at hand…

The national debate on the issue of torture - a debate that’s smeared my fellow Rice graduate Alberto Gonzales, and left him hilariously unemployed - has largely centered on the issue of the morality of the act. Whenever we as a nation stoop to the level of our enemies, suborning reason to violence, we vitiate an element of the very values we seek to protect. Like a murderer in Harry Potter, we tear off a portion of our national soul. Opponents of torture clearly win on moral grounds.  Right, the counterargument goes, but let’s turn to the practical.  Surely desperate times call for desperate measures. If we could choose between suffering an intangible loss of the moral high ground, and the loss of three million lives - if we could torture an enemy combatant to find a “ticking bomb” somewhere in Manhattan - surely we’d opt to torture one individual rather than suffer armageddon.

That’s a tough rebuttal with no easy answer… until you realize the hollow, speculative nature of the hypothetical. No liberal, indeed no American, could ever oppose, on ethical grounds, an act of torture done to surely save the lives of millions. If the ethical calculus fell in exactly that manner - certain death and no torture, or certain salvation and torture - I submit that our hands would be tied. The needs of the many outweigh the needs of the one (© Spock).

However, that fact pattern never squarely presents itself, nor is it likely to. We can never know that torture will result in information, and (even more emphatically) we can never know that torture will result in the right information. England’s experience with the IRA unequivocally demonstrates that torture fails to produce reliable information, and instead radicalizes moderates in the opposition. While Jack Bauer may find himself in precisely this scenario every Wednesday at 9/8 Central, it just doesn’t happen in the real world: there are no ticking bombs, no quickly broken captives who happen to know all the details of whatever nefarious plot must be foiled, and no easy answers. If torture is only acceptable in a one-in-a-million hypothetical, our duty in debating the issue is to question the scenario rather than proceeding under a false framework.

Torture is wrong morally, and wrong practically. This is torture’s Kobayashi Maru. In debating against someone who supports torture, if placed in a factual scenario where defeat is inevitable (i.e., where torture starts to look reasonable), we should challenge the scenario before conceding defeat. While there may be (realistic) circumstances under which torture is justified, this just isn’t it.