I’ve got a writeup at Ars Technica of an important ruling in yesterday in a suit against the government stemming from extralegal NSA wiretapping. Short version: Yes, FISA really is the “exclusive means” by which the government can do foreign intelligence wiretaps in the U.S., assertions of magical “inherent authority” notwithstanding. And no, you can’t just assert a state secrets privilege to get around the process FISA explicitly provides for the review of sensitive material concerning people who have been unlawfully recorded.
Also, by the by, since FISA is already the exclusive means for surveillance, the provision in the so-called “compromise” FISA amendments bill reiterating that language is not some wonderous new check on executive power won by hard-nosed Democratic negotiators. It’s a smokescreen brewed up to give the illusion of a trade-off so that they can pretend they haven’t just utterly surrendered.
I feel like I ought to say something about this, now that the news is apparently out, but for the moment everything’s coming out as a string of profanities. So I’ll limit myself to this: (1) Brian Beutler is awesome. If you read his phenomenal reporting, count yourself lucky. If you know him, count yourself even luckier. (2) You can add your wishes for a speedy recovery at the first link. I’m not the praying sort, but if you are, it couldn’t do any harm.
Update: If you want to do something, you can donate blood on his behalf.
Anyone else notice the uncanny resemblance between pop singer Robyn (best known for pressing trigger, as opposed to people button) and Doctor Blight (best known for being voiced by Meg Ryan and battling Planeteers)? I want to put it down to coincidence, but they’ve even got the same pink spandex jumpsuit.
Ramesh Ponnuru writes:
[Barack Obama] says he opposes [gay marriage]. But he also thinks that a constitutional amendment in California to block it is “divisive and discriminatory.” I think the only way to square these positions would be for Obama to say that he opposes same-sex marriage as a religious or moral matter, but supports it as public policy. He is, that is, “personally opposed.” But I don’t know whether Obama actually takes that position, or is simply muddled. (The other possibility, of course, is that I am wrong and there is some other way to make these views consistent.)
This actually doesn’t seem all that hard. You could hold any one of a handful of closely related views that look roughly like this: The (federal/state) (legislature/courts) should not impose gay marriage, but given that a state’s supreme court has determined a right gay marriage follows from general guarantees in the state constitution providing for equal protection and a right to marry, it would be “divisive and discriminatory” to write a specific amendment carving out an exemption for gay couples.
As a very loose analogy, you can consider the position I think a fair number of people take on something like flag burning: They don’t like it, and they might be perfectly happy to have statutes banning it. However, given that the Supreme Court has determined that flag burning is a form of expression protected by the First Amendment, amending the Constitution to create exceptions in the First Amendment seems like a bad idea to them. Now, this isn’t quite my own position, since I think flag burning, like any number of other forms of offensive expression, ought to be protected. That said, if the Supreme Court had decided, on fairly narrow grounds, that flag burning fell into some recognized category of non-protected speech, I don’t know that I’d consider this an intolerable and crippling blow to our expressive rights, even though I’d disagree with the outcome. I would find it far more disturbing if we set a precedent that when the Court rules to protect speech that enough Americans find outrageous, we’ll have a big partisan push to change the Constitution. The underlying idea here is that, important as the case by case determination of the scope of certain fundamental rights is, what’s even more important is the structural principle that these determinations should not be a popularity contest, and ought to be isolated from cyclical politics to a great extent.
I think that’s probably the reasoning that best accounts for the language Obama used, though I can think of a slightly different route to a similar conclusion. That is, you might think we shouldn’t grant marriage rights to gay couples where they don’t exist, but oppose taking those rights away in places where they’ve already been granted, and especially where gay couples have already begun to marry.
I can see why Mike Masnick is worried about the implications of the Heller decision for copyright jurisprudence, but in the unlikely event the Supreme Court did show some inclination to reign in transparent rent-seeking by content producers, I think they’d have ample grounds for distinguishing. Here’s the text of the Copyright Clause:
The Congress shall have power… To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
and of the Second Amendment:
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.
Two things. First, the structure of the two prefatory clauses here is actually slightly different. One is “Congress shall have the power to do X, by means Y.” The other is “X being the case, Y.” That is to say, in the Copyright Clause, just as a first pass reading, the “promote progress” is internal to the power grant: It doesn’t say that Congress can grant exclusive rights, since the progress of the arts and sciences is important. It says Congress may act to promote the progress of the arts and sciences by means of exclusive, limited-time monopolies on creative works. A genuinely parallel construction would be something like: “Congress shall not compromise the ability of the militia to defend the security of a free people by infringing the right to bear arms.” It may sound nitpicky, but it is a real difference in the wording.
Second, and to some extent despite what I just wrote, you can be too textualist for your own good. You can’t just proclaim the death of the author and read these clauses as self-contained texts; on any plausible theory of jurisprudence you need to bring in some sense of how the terms were understood at the time they were written. So just as “misdemeanors” in the impeachment clause doesn’t refer to jaywalking or smoking a doobie, “militia” in the Second Amendment was understood as encompassing the whole of the citizenry capable of bearing arms, not some select uniformed group. Hence the use of “the people” in the operative clause, and not “members of state militias.” As a rule, the Framers were pretty good about saying “the people” when they meant “the people” and saying something else when the meant something else.
Well, this is obviously incredibly flattering:
Among the many dark tidings for American conservatism, there is one genuine bright spot. Over the past five years, a group of young and unpredictable rightward-leaning writers has emerged on the scene.
These writers came of age as official conservatism slipped into decrepitude. Most of them were dismayed by what the Republican Party had become under Tom DeLay and seemed put off by the shock-jock rhetorical style of Ann Coulter. As a result, most have the conviction — which was rare in earlier generations — that something is fundamentally wrong with the right, and it needs to be fixed.
Moreover, most of these writers did not rise through the official channels of the conservative or libertarian establishments. By and large, they didn’t do the internships or take part in the young leader programs that were designed to replenish “the movement.” Instead, they found their voices while blogging. The new technology allowed them to create a new sort of career path and test out opinions without much adult supervision.
As a consequence, they are heterodox and hard to label. These writers grew up reading conservative classics — Burke, Hayek, Smith, C.S. Lewis — but have now splayed off in all sorts of quirky ideological directions.
There are dozens of writers I could put in this group, but I’d certainly mention Yuval Levin, Daniel Larison, Will Wilkinson, Julian Sanchez, James Poulos, Megan McArdle, Matt Continetti and, though he’s a tad older, Ramesh Ponnuru.
Two signs of the times: (1) I found out about this via messages on Twitter and Facebook. (2) Of the ten people Brooks mentions (the rest of the column focuses on Ross Douthat and Reihan Salam), three of us are some species of libertarian.
I should probably say, though it seems a bit churlish to pick nits under the circumstances, that I have actually benefitted from some of these “official channels”: I was a Koch Fellow in college, and worked as a staffer for Cato for a year after I graduated. (Also, Burke is one of those writers who, to borrow Will’s phrase, “I’ve read, but not by myself.”) But the broader point, I think, is right: Blogging lets you develop a voice and an audience outside the traditional channels that would be available to a young libertarian or conservative writer. And for all the justifiable kvetching that goes on about the blogospheric echo chamber, this creates a healthy engagement with a broader range of perspectives than you get if you’re mostly talking to the readership of Reason or National Review. To the extent that we’re “quirky” or “heterodox,” I think it’s probably not that there’s something unusual about us—two decades ago, I’d probably have turned out substantially more doctrinaire—but that the media environment is different.
Slightly apropos of which: I was having a conversation with a couple friends the other night about our own ideological trajectories, and I mentioned how my attitude had shifted toward a semi-famous essay by Robert Nozick called “The Zig-Zag of Politics.” This is the one where Nozick was seen as renouncing his youthful libertarian views—though when I interviewed him in 2001, he claimed that reports of his apostasy had been much exaggerated. I used to think this was a befuddling instance of a thinker who’d made some brilliant and original arguments for the libertarian position backing away from it for some pretty poor reasons. I still think that about some of the arguments floated there: Expressing our symbolic concern for the poor is all well and good, but it is a poor justification if the means of doing so are both ineffective and otherwise morally questionable.
But one of the central ideas there—and a theme in much of his later work—was that no deductive moral or political system could embed as much wisdom as the process of deliberation and reform over time. I wrote about this a couple years back when I said, somewhat anachronistically, that Nozick viewed philosophy as a Wiki. I’m certainly the last one out there to idealize or romanticize the democratic process: It’s a field on which ignorant armies clash by night, afflicted with all the problems so familiar to public choice theorists. I suppose one way to put it is that I’ve become more of a Bayesian about politics: I cannot help but notice that lots of folks who are as smart or smarter than I have rather radically different views about what sort of polity is best, and I cannot quite bring myself to conclude that they’re simply watching shadows dance on the cave walls, while I have glimpsed the Forms. And so I don’t, these days, much find myself thinking about the specific contours of libertopia. Instead, I tend to find myself thinking in terms like: “Well, let’s push in this direction and see how it works.” You have to be careful there too, of course, since depending on the details, a government-market hybrid (say) will just give you the disadvantages of both. (See: Healthcare System, United States.) But I think this is the direction you end up pushed in if you take Hayek’s warnings about “constructivist rationalism” sufficiently seriously. On this model, libertarianism isn’t so much a final picture of a just society as a specific sort of toolkit for working on Neurath’s ship.
All this reminds me, by the way, that I had started work long ago on a comprehensive Robert Nozick Web resource, then lost a bunch of the work I’d done in a computer crash and been a little too daunted to start it up again. But I really would like to get that going again. If you’ve got relevant material that’s not otherwise easily available online, or would like to help out in some way, please do drop a line.
Update: The first reaction to Brooks’ column from a lot of my friends has been some variant of: “Since when are you part of the right?” Which is fair enough: I’m rooting for Barack Obama this time around, and I’ve long tended to focus on issues where my position is a lot closer to, say Russ Feingold’s than to Sam Brownback’s. I’ve never particularly thought of myself as part of either the left or the right. That said, the basic principles driving most of those positions are still of the sort conservatives still like to pay occasional lip service to, even if they are (perhaps ironically) pretty diametrically opposed to the new direction Ross and Reihan advocate for. I suppose my sense is that given that the conservative coalition appears to be in flux right now, calling me part of “the right” is not so much a pure description as what John Searle would call a “speech act” (like “I promise” or “I now pronounce you man and wife”). Whether I’m on “the right,” in other words, depends on whether conservatives think what I’m writing resonates with their own values. If they do, hey, who am I to discourage them?
Something was bothering me as I watched Jonathan Zittrain’s excellent and engaging talk at PDF the other day. I mean, beyond the fact that he looks approximately my age, which would cause me to weep bitter, bitter tears of shame and envy if it were true. No, it was something awfully familiar about his gestures, about the way he gestured and roamed the stage, about his cadence, about his whole speaking style.
When I ran into him later in the press room, I revealed my dark suspicion: “Did you by any chance do parliamentary debate in college?” He gave me a truly priceless look of astonishment—I was tempted to follow up with “you have been in Afghanistan, I perceive”—and confirmed that, yes, he had, though with the Yale Political Union rather than the collegiate circuit I was on.
The interesting thing to me was that if you asked me precisely what it was that had given it away, I doubt I could articulate it. And Zittrain clearly wasn’t conscious of it. (He did not, as he noted, begin by thanking the right honorable speaker.) Which makes me wonder how much I or other erstwhile debate geeks are still unwittingly carrying the stamp of the activity. I don’t have hard numbers here, but I’ll assume ex-debaters are more likely than most to go on to careers involving some sort of public speaking. (I recently learned, with some amusement, that one of the best teams of their day on APDA was the duo of Slate legal reporter Dahlia Lithwick and Obama economics guru Austan Goolsbee.) How many of us are unwittingly broadcasting our membership in that weird fraternity?
If you had told me five years ago I’d be writing pieces attacking Democratic leadership forThe American Prospect, I would have been… skeptical. Welcome to our brave new world.
