Barry Eisler

Friday, May 16, 2008

Those Crazy Conservative Activists Again

Yesterday's California Supreme Court ruling, relying on the California state constitution to find unconstitutional the exclusion of gays from the California institution of marriage, is already being (predictably) misunderstood and mischaracterized. For an excellent summary of the opinion and a debunking of the fallacious attacks against it, check out Glenn Greenwald.

Probably the most common charge being leveled against the California court is that its judges were "activist," and thwarted the will of the people, or usurped the role of the legislature, or both. I find these vague charges of judicial activism tiresome: they're raised only when courts reach outcomes the people howling "Activists!" don't like. And the "Activist!" charges ignore the excruciatingly obvious, fundamental fact that when a court in a democracy interprets a constitution, the court is *supposed to* overturn laws enacted by the people or their representatives if those laws violate the constitution. The will of the people, or the laws of the legislature, prevail in a democracy subject to the constitution. So if you don't want "activist" judges overturning popular laws, you might as well get rid of the constitution itself, which is designed and intended precisely to place limits on how the people and the legislature can express their wills.

If the point above doesn't make sense to you, think of how the Supreme Court Justices in Brown v Board of Education overturned the "separate but equal" segregated educational framework that had been enacted with popular backing by the duly elected representatives of so many southern states. If you want to argue that courts shouldn't as a matter of principal overturn laws they find violative of their constitutions, you should be prepared to argue that the Brown court, too, exceeded its authority.

In fact, anyone who wants to argue that gay marriage should be left to individual states (and remember, the California ruling was by a state court, pursuant to a state constitution, and binding only in California), you should be prepared to argue too that Brown was wrongly decided -- that "separate but equal" education did not violate the Constitution's 14th Amendment guarantee of equal protection of the laws and should have been a matter for individual states to decide for themselves. I don't see how you can rationally argue that "separate but equal" education was unconstitutional and was rightly struck down by a court as such, but that "separate but equal" marriage (or no gay marriage at all) is constitutional and should be left to states to decide.

You might have surmised by now that I'm not impressed by the notion that gays should be able to form "civil unions" equivalent in all ways but name to marriage (this was key to the California court's finding -- that there is, after all, a great deal in a name). I'd be equally impressed by the notion that blacks should be permitted to attend institutions of higher education as long as the institutions they were permitted to attend were not called "colleges" or "universities."

Here's a little thought experiment to clarify things. Today's Wall Street Journal has an entirely predictable editorial, "Gay Marriage Returns," lamenting the California court's ruling. Let's see how the editorial reads if we replace references to "gay marriage" throughout with references to "black-white intermarriage," instead. If you can distinguish the rights of blacks and whites to marry each other from the rights of gays to marry each other, I'd like to hear the argument (and note that the California court cited Perez v Sharp, where in 1948 the California court struck down black-white marriage bans on 14th Amendment equal protection grounds).

Just when the news was filling with stories about a Republican Party gasping for air, along comes the California Supreme Court's 4-3 decision yesterday legislating black-white intermarriage. The GOP certainly hasn't done anything to deserve such luck...

California's Supreme Court is not the law of the land, but its 4-3 ruling, titled "In re Marriage Cases" for six consolidated appeals, explicitly told both the state's voters and its elected legislature to get lost. Back in 2000, California voters by 61% approved a proposition asserting that the state could only recognize a "marriage" between a white man and a white woman or a black man and black woman...

While the popular spin on these black-white intermarriage rulings holds that this is an all-or-nothing war between Democrats and Republicans, nothing could be further from the truth. Absent an occasional burst of judicial fiat such as this, the American people have been conducting an admirable exercise in democratic discovery about black-white intermarriage.

While 27 states have passed constitutional amendments banning black-white intermarriage, reflecting what opinion polls show to be overwhelming public sentiment, most Americans do not want the U.S. Constitution amended to prohibit black-white intermarriage. Back in 2004, some 52% of Bush voters favored black-white unions stopping short of a "marriage" designation. This was also Mr. Bush's position.

In other words, the American people, rather than simply shunning the desire of some blacks and whites to marry each other, are clearly willing to take up the matter and work it through their legislatures. California's legislature has passed bills twice to authorize black-white intermarriage; both were vetoed by Governor Arnold Schwarzenegger. If California can find a Governor willing to sign off, so be it. It is preposterous, though, to let four judges decide this for a state of more than 36 million diverse individuals.

Most of all, the black community wants social acceptance. It should look to what flowed from Roe v. Wade: unending bitterness. A wiser course in 21st-century America is to trust the democratic process.


If you don't think denying gays access to marriage denies them equal protection of the laws, you must also think such a denial would be constitutional with regard to blacks or other minorities. Do you?

Ultimately, opponents of gay marriage seek to legislate based not on logic, but on the peculiarities of their own preferences. They're guided not by the consistent application of law, but by the fickle idiosyncrasies of their own taste. Rather than reaching outcomes through the application of principle, they seek to conjure principles to support outcomes at which they have already comfortably arrived. And, with the usual unintended irony, they then accuse their opponents of "judicial activism." If it weren't so sad, it would be hilarious.
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Tuesday, May 13, 2008

Confused, Spineless Democrats

I read an op-ed in yesterday's Wall Street Journal called "Obama and the Values Question Mark" by a guy named Douglas E. Schoen. It's an advice piece, and Schoen advises Obama to do nothing but play defense. Attacked for not always wearing a lapel pin? Wear a lapel pin. Attacked about Reverend Wright? Continue to explain, explain, explain (Schoen actually suggests that "Obama does not have to apologize for his own faith and membership in Trinity Unity Church of Christ"... whew, that's a relief). Attacked for not being sufficiently "law and order"? "Obama must also demonstrate concretely that he is sympathetic to the victims of crime... that he understands American concerns about law and order." You get the idea. Schoen comes a step or two short of advising Obama to just fall to his knees and cry out, "We are not worthy!"

I read the article with equal parts disgust and admiration: disgust at the notion that Obama needs to explain his "values" when a divorced adulterer like John McCain apparently does not; admiration at the tactics of the writer, who in the guise of friendly advice to Obama is in fact reinforcing the insidious meme that there's some legitimacy behind the issues on which Schoen purports to want to advise. Boy, I thought, you have to give it to the right: they understand how communication works.

And then I came to a description of Schoen's background: in 1996, he was the campaign manager for Clinton/Gore in Tennessee and Kentucky. And I thought, "Holy shit, this guy is a *Democrat*!"

Look, if Schoen is working for McCain, his op-ed makes perfect sense. But if he actually thought his op-ed would help Obama... well, if this is the way Democrats with actual campaign experience are going to play it, the party is in serious trouble. Op-eds whose real impact is to legitimize right-wing talking points? Urging the candidate only to play "yes I am patriotic, no I'm not soft on crime, yes I do share your values, really, I do, please please please believe me" defense? By common sense alone you know that Schoen's purported course would be a disaster for Obama. But you don't need to rely on common sense: you can also see how well the Schoen model worked for Michael Dukakis and John Kerry.

If Obama were to glue a lapel pin to himself at this point, all it would do is prove that he'll buckle under a load of rightwing bullshit. And since the true purpose of all rightwing wedge attacks is to demonstrate that the Democratic candidate is spineless, weak, a sissy, a pansy, a loser, etc., more than anything else Schoen is advising Obama to show that he can be pushed around and prove the right's point thereby. At the risk of tremendous understatement: this is not good advice.

If he really wanted to help, Schoen should have advised Obama to counterattack. Values? Let's talk about how John McCain cheated on his wife, abandoned his family, and married a much younger heiress. Lapel pins? If John McCain were really patriotic, he would back Jim Webb's GI Bill and actually support our veterans. Jeremiah Wright? Why has McCain deliberately sought the support and endorsements of religious fanatics like John Hagee and Rod Parsley? Hamas supports Obama? You're swallowing enemy propaganda -- McCain wants another hundred years in Iraq, which the 2006 NIE called a bonanza of terrorist recruitment, so it's obvious who Hamas is really rooting for. Etc.

Ignoring rightwing freakshow attacks allows them to fester. Denying them legitimizes them and demonstrates weakness. Counterattacking turns the premises of the attacks around and puts the attackers on defense, while simultaneously demonstrating strength.

If Democrats haven't figured these fundamentals out by now, they're hopeless. Assuming Schoen isn't in fact working for McCain, his op-ed is not cause for encouragement.
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Monday, May 12, 2008

Hamas Manipulates Republicans; Republicans Manipulate You

On Friday, I called John McCain the Manchurian Candidate because he and other Republicans are trying to tie Obama to Hamas even though Hamas and other Isamacist groups in fact support McCain. On cue, in Saturday's Wall Street Journal, Gabriel Schonenfeld, senior editor of Commentary, wrote an op-ed for the Wall Street Journal called "Our Enemies and the Election." Schonenfeld makes the usual "Hamas says they like Obama" accusations. Then he goes on to claim that Hugo Chavez, the Iranian mullahs, and Kim Jung Il don't like McCain, and that this suggests "there is a growing pro-Obama/anti-McCain axis" among America's enemies.

It's hard to know what to make of the many Republicans who spout this nonsense. Are they really so stupid that they take terrorist statements at face value? Or are they deliberately using what is obviously enemy misinformation to deceive and manipulate American voters? Or is the explanation that they're so awed by their own playacting image of toughness that they're blind to what a substantive boon they've become to America's enemies?

Look, Venezuela's economy, and Hugo Chavez's power, is almost entirely dependent on the price of oil. Ditto Iran and the mullahs. President Bush has presided over an increase in the price of oil from about $23 a barrel in 2001 to an all-time high of $126 a barrel now. You don't think Chavez and the mullahs, who owe their continued power -- indeed, their continued survival -- to the price of oil don't thank President Bush every day for what he's done for them? John McCain (and Hillary Clinton, it should be noted) advocates the suspension of the federal gasoline tax, which would increase consumption and drive the price of oil even higher. Obama argues against this windfall wealth transfer from America to Chavez, the Mullahs, and their ilk. And people like Schonenfeld think Chavez and the mullahs are rooting for *Obama*?

If there's one thing that characterizes the modern Republican party (besides secret lawmaking, warrantless surveillance, advocacy of torture, and abrogation of the Fourth Amendment), it's an obsession with appearances and a corresponding blindness to facts. McCain vows to be "Hama's worst nightmare," and for the Schonenfelds of the world, this swaggering boast (which would consist of what, exactly?) trumps -- indeed, eclipses -- McCain's actual promise to fund oil powers like Chavez and the mullahs with additional U.S. billions. In other contexts, we would call this mentality "magical thinking."

Whether they're stupid, lying, or in denial, the self-interested purveyors of Hamas propaganda desperately need a turn out of power to have a shot at returning to principle, to reality, even to sanity. If you're a principled Republican, and you care about the party and your country, do the right thing in November: vote Democratic.
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Friday, May 09, 2008

McCain the Manchurian Candidate

John McCain was at it again today, suggesting that Americans shouldn't vote for Obama because a Hamas spokesman spoke well of McCain's opponent. As a McCain fundraising email put it recently:
Barack Obama's foreign policy plans have even won him praise from Hamas leaders. Ahmed Yousef, chief political adviser to the Hamas Prime Minister said, "We like Mr. Obama and we hope he will win the election. He has a vision to change America."

We need change in America, but not the kind of change that wins kind words from Hamas, surrenders in Iraq and will hold unconditional talks with Iranian President Ahmadinejad.

Yes, McCain is being rightly condemned for trying to smear Obama by suggesting he's tied to a terrorist organization. What's been ignored, though, is something much worse: whether out of cynicism, stupidity, or moral obtuseness, John McCain claims to believe that Americans should base their political decisions on the opinions of terrorists. What difference does it make whether McCain says, "We should do what they don't want" or "We should do what they want?" Either way, he proposes that Americans surrender our own judgment in favor of that of Hamas. If McCain were a Democrat, Republicans would be calling him The Manchurian Candidate.

It would be easier to dismiss as crass cynicism McCain's repeated attempts to enlist Hamas's assistance if McCain's brand of "What would Osama do?" weren't so widespread in today's Republican party. Michelle Malkin wants to know which terrorists support which Democratic candidate (Translation: "Don't make up your own mind; ask the FALN!"). GOP Congressman Steve King objects to Obama's candidacy because, he claims, "The radical Islamists, the al-Qaida … would be dancing in the streets in greater numbers than they did on Sept. 11 because they would declare victory in this war on terror" (Translation: "What more do you need to decide other than what I think would make AQ happy!") King goes on to argue that Obama's "middle name does matter. It matters because they read a meaning into that" (Translation: "It's not up to us to decide whether something matters. That's up to Osama bin Laden!") (And by the way, any time someone builds his whole argument on a cliche like "dancing in the streets," he's either exceptionally unimaginative or he's bullshitting you. Or both).

Perhaps worst of all are the people who argue that we need to torture because al Qaeda does even worse things (sorry, aggressively question, or harshly interrogate... and not suspects, if they're in custody it means they're actually terrorists... sheesh, if you really think we should torture prisoners, why not just come on out and make an argument in favor? Why all the flim-flam and doubletalk? What are torture proponents so afraid of? But I digress...). Maybe we could call this the "We're Good Because Al Qaeda is Worse" defense? Or the "Al Qaeda Gave Us Permission" defense?

Look, is the theory that we don't torture only because our enemies don't? Or should it be that we don't torture because we're Americans? As an American, I'd rather develop my own moral code, rather than basing it on what, say, al Qaeda does or doesn't do. But as you can tell from the recent statements of McCain and other Republican politicians and commentators, the notion that Americans should make own own political, tactical, and moral decisions without reference to how terrorists behave or what they claim to believe has become an alien notion.

The really hilarious part of all this is that the same Republicans who think terrorists are so diabolically clever that they can blink code to each other even after three years in captivity believe these same diabolically clever terrorists are unable to grasp the most rudimentary elements of reverse psychology. I mean, what if... going out on a limb here... the code blinkers were just sophisticated enough to figure out the Republican mindset, and run a psyops campaign accordingly? Something like:
Terrorist #1: Did you catch the latest US National Intelligence Estimate? It says the war in Iraq is breeding more terrorists. You think the infidels are catching on to us?

Terrorist #2: Nah, they're not that smart. Look at how Osama was able to provoke them into this massive terrorist-creating enterprise in the first place. More terrorists than ever, America trillions of dollar in debt, the US military nearly broken, Afghanistan falling back into our hands, North Korea going nuclear while American was distracted, the dollar collapsing, Abu Ghraib and Guantanamo... the Iraq war is the best thing that ever happened to us.

Terrorist #1: So you think they might elect McCain this year? He says it would be fine with him to keep the infidel armies in Iraq for 100 years. That would be great for us.

Terrorist #2: Sadly, I don't think it looks good for McCain. Polls show 76% of Americans want a candidate different from Bush.

Terrorist #1: So what can we do?

Terrorist #2: Well, Republicans aren't very good at thinking for themselves. They say they torture because we torture. And whatever we say we like, they say they want the opposite.

Terrorist #1: So...

Terrorist #2: Exactly. Get that Hamas guy to say we like Obama. McCain will pick it up and run with it, and use it to get other dim Americans to vote against Obama. Then we can have that third Bush term, and Americans will be in Iraq for 100 years. Our ranks will continually swell.

Terrorist #1: Allahu Akhbar!

Nah, terrorists could never come up with something like that. And when Rush Limbaugh tells his listeners to join Operation Chaos and vote for Hillary, it means he really supports her, too.

So who's really the party of Hamas and al Qaeda? Who are the real terrorist tools?
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