Of Two Minds At Once

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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88 Responses

  1. Avatar Jaybird says:

    I’ve long thought that Thomas is the only one on the court worth half a damn… his opinions on the responsibilities of the State in loco parentis are insane and he’s not above pulling stunts like the one he did in Gonzales v. Oregon… but he’s much more of an interesting legal thinker than, say, Scalia.

    Scalia is funnier, however.Report

    • Avatar Creon Critic in reply to Jaybird says:

      I’m really surprised that you’d single out Thomas for such praise. I know they only represent a small portion of deciding cases, but participation in oral arguments is part of the job and Thomas is notably quiet. Sure there is an element of gamesmanship to oral argument, but there is also the opportunity to gain clarification and sway colleagues on the court. And to quote Thomas, writing separately from the Scalia dissent he joined, in Lawrence v. Texas (cites omitted),

      I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,”

      Interesting legal thinking? I think it’s just kind of scary.Report

      • Avatar Jaybird in reply to Creon Critic says:

        I didn’t say he was worth a whole damn. His attitudes toward the 9th Amendment is appalling but hardly unique on the court (is there *ANYONE* who would find a Right to Privacy on the court?) and I think that many of his decisions are downright wrong (see, for example, anything dealing with rights for persons under the age of 18).

        If I could replace any/everybody on the court, however, he’s the only one I *MIGHT* keep.Report

        • Avatar Creon Critic in reply to Jaybird says:

          I didn’t say he was worth a whole damn.

          Oh, ok I misunderstood the amount of praise you were ladling out there. And I think you’d get Breyer, Ginsburg, Kagan, Sotomayor, and Kennedy on language like Planned Parenthood v. Casey,

          These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy…. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

          Report

          • Avatar Jaybird in reply to Creon Critic says:

            Yeah but I’m sure I’d immediately lose them on such cases as Kelo or Raich or even Oregon (Have you read Thomas on Gonzales v. Oregon? He’s spectacularly bitchy).Report

          • Avatar kenB in reply to Creon Critic says:

            At the heart of liberty is the right to define one’s own concept of existence

            At the heart of clarity in that debate is acknowleding that “one’s own” concept of existence is not what’s at issue.  The being whose existence is in question is a third party.

            I also wonder how one decides which choices are “central to personal dignity and autonomy” and which ones are fair game for governmental coercion, and if there’s anything more to it beyond personal preference.Report

            • Avatar Creon Critic in reply to kenB says:

              As a practical matter, the law is what Justice Kennedy (former Justice O’Connor, or that crucial fifth justice) says it is. Hence Griswold v. Connecticut, Planned Parenthood v. Casey, and Lawrence v. Texas – none unanimous and Casey an especially messy breakdown. In a broader sense, as is the case with other issues, it is a negotiation over contested meanings: When does life begin? What’s an impermissible intrusion into privacy and what is subject to lawmaking? What does this text mean? The terms of the debate are themselves up for debate (witness the originalism versus living constitution debate). Isn’t it the case that, if you dig deep enough, eventually you get to the axiomatic in any debate?Report

  2. Avatar strech says:

    The problem with Thomas’ opinion isn’t that he’s wrong about Establishment Clause jurisprudence being a shambles. It is a bit of a mess. And the “To Lemon or not to Lemon, that is the question” issue should probably be sorted out.

    The problem is that Establishment Clause jurisprudence will always be a mess if the clause has any meaning at all, because those seeking to use the state to promote their religion will push at every crack they see until they win. Look at the creation/evolution issue – first creationism, then “scientific creationism”, then “intelligent design”, then “teach the controversy”. Every one of them the same attempt to push religion in schools, trying to fit the new attempt into the cracks from the decision striking down the last one. The same thing occurs with the state setting up religious displays. Especially when combined with strong religious freedom protections, this inevitably leads to a series of annoying hard cases and a judicial mess.

    This would happen even if the Establishment Clause jurisprudence was pared back to mean nothing more than “the state can’t pass a law stating that is the official church”, as Congress would immediately step up as close to that line as it could, creating the same mess around a different line.Report

  3. Avatar BSK says:

    IS there anything in the Bill of Rights that ensures a right to privacy?  The 4th Amendment is certainly related to privacy, but there is no explicit mention of the word “privacy”.  I’m curious to hear the thinking behind the assumption that we have a Constitutionally guaranteed right to privacy.Report

    • Avatar Jaybird in reply to BSK says:

      I think that the 9th explicitly shifts the burden of proof onto the person arguing that we don’t (and that they can’t use “but it’s not explicitly mentioned!” as an argument).Report

      • Avatar BSK in reply to Jaybird says:

        But couldn’t that be used to argue the rights of anything?  Right to education, health care, jobs, etc?  Perhaps the government, or whomever, can more easily make an argument against those things.  I am far from a Constitutional scholar, so I ask these questions more out of curiosity than being-a-douche-iosity.

        A friend of mine who worked in a variety of ways on pro-choice legislation always felt that predicating the right of access to abortions on the right to privacy was tenuous ground, since it is not an explicit right listed in the BoR and, if it were to be found invalid, abortion access might cease to exist.  It was an interesting perspective.

        I think a big part of it comes down to how we define privacy.Report

        • Avatar Jaybird in reply to BSK says:

          But couldn’t that be used to argue the rights of anything?  Right to education, health care, jobs, etc?

          Keep going…Report

          • Avatar BSK in reply to Jaybird says:

            I quit when I got to the “Right to a giant dong” since I wasn’t sure if that right was for men or women… :-/Report

            • Avatar Jaybird in reply to BSK says:

              The question, it seems to me, comes down to “do I have the right to own one if I am inclined to make such a purchase” vs. “do I have the right to have one provided to me by the state” and the answer to the former question strikes me as being an obvious and loud “YES!” and the latter as being an obvious and loud “NO!”

              In the past, I’ve had arguments with folks who, in response to my loud “NO!” to the second question asked “doesn’t everybody have the right to a healthy and fulfilling sex life?” (We were actually arguing over whether the government should subsidize that little blue pill whose name I don’t want to leave in a comment but, yeah, *THAT* one.)

              It seems to me that you should be entitled to buy that particular product if you would like it and I should not be asked to foot the bill for you to have it.

              Which brings me to education, health care, jobs…

              For each of these, what is entailed? Well, the labor of another person. It seems odd to me to say that you have the right to the labor of another. Oh, you should certainly be allowed to contract with them and agree that for X dollars they will devote 32 hours a week to this particular chore on your behalf and whatnot… but that’s an entirely different dynamic than the one that refers to a right to an education, health care, jobs or the ever popular “and the rest of such things”.Report

              • Avatar Creon Critic in reply to Jaybird says:

                Jaybird, as someone who has argued this positive rights issue with you before (I think usually beginning with my referencing whether one has the right to an attorney, “labor” under the understanding of the above comment), I want to highlight two responses that still intrigue me. First, whether our rights are fixed, that is, are our rights the same yesterday, today, and tomorrow, or can our rights expand over time. I think TVD teased about a right to wi-fi in another thread. I’d say since the list of Rawlsian primary goods changes, then the list of rights changes as well.

                And the second issue that doesn’t come out clearly in the above comment, which at first is reasonable, but has some pretty harsh implications, is when we discussed the right to jet packs and I brought up the right to newly discovered medicines. Your reply on whether or not there could be a right to newfound superdrugs was, let’s say, less than generous. Altogether doesn’t the outlook you present, less expansively defined human rights (generally, civil and political rights yes, economic and social rights no), mean pretty inhumane outcomes?Report

              • Avatar Jaybird in reply to Creon Critic says:

                It seems weird to me to say that someone from year X would have not only different but *FEWER* Human Rights than someone from year X + T.

                It seems to me that you could quickly get to some unpleasant places in 20, 50, or 100 years. It also opens doors for questions about the difference between Human Rights between societies. (It does not make sense to me to say that Americans have more Human Rights than Costa Ricans… but if we can say that, why can’t we say that people in Michigan have different rights than people in Louisiana? New York and Oregon?)

                Once you open that door, it quickly becomes apparent that Human Rights are a social construct… useful, I suppose, but not based upon any greater truth than utility.

                Which means that you’ve no defense when I start violating your Human Rights in the name of utility. (Which is the defense given *WHENEVER* Human Rights are violated.)Report

              • Avatar Creon Critic in reply to Jaybird says:

                Jaybird, I think you already spelled out how a person might have fewer entitlements depending on time,

                Imagine a wonderdrug. It will lower your bad cholesterol, raise your good cholesterol, reduce your risk of heart attack, raise your metabolism to help you lose weight, and give you a full head of hair.
                This drug will not be ready to be evaluated by the FDA until 2050. Let alone released after clinical trials! As such, it’s not even on the drawing board now. The precursor won’t even be stumbled across by a particularly happy accident until 2022.
                Here is my question: are you entitled to this drug?
                It seems to me that the obvious answer is “no”. It doesn’t exist! It won’t even go on sale until 2060!
                Fair enough. I agree.
                Now, here’s my intuition: once it exists the status of whether you (or anyone) is entitled to this drug will not change one iota.
                And, from there, I extrapolate out to other drugs, and other medical technologies.

                I agree that you can’t coherently be said to have a right to a drug that has not been invented and isn’t on sale until 2060. But after 2060, supposing the benefits of the hypothetical drug are important enough, you could coherently be said to have a right to it. I don’t see how the universality of human rights is implicated here. No one has access before invention, everyone has rights after.

                it quickly becomes apparent that Human Rights are a social construct

                That’s an analytic observation that one can make about quite a few things in our society, identifying human rights as a social construct doesn’t make them any less important or less meaningful. The overlapping consensus that has yielded human rights treaties and institutions testifies to the underlying importance of the concepts involved. (As well as the invocations of the misdeeds of the world prior to articulating human rights in this manner – the language is more eloquent in the texts, conduct that “shocks the conscience of mankind”, “to save succeeding generations from the scourge of war”, etc., etc.). That background of history, institutions, and texts is one basis for the defense against the utility-grounded affronts to human rights.Report

              • Avatar Jaybird in reply to Creon Critic says:

                identifying human rights as a social construct doesn’t make them any less important or less meaningful

                It makes them infinitely more mutable, however.

                And my appeals to utility as to why you have to give up your this, your that, or your the other for the greater good will always, always trump your little mewlings about your “rights”.Report

              • Avatar Patrick Cahalan in reply to Creon Critic says:

                I invent the cure for AIDS and cancer.  I patent them.

                Then I don’t license them, and won’t make them, because I believe that population increase is a bigger problem than people dying of those two diseases.

                Do I have a right to do this?  If I don’t, is that because patent law is broken?

                Do I have a right to make 100 doses and sell them and only them for $1,000,000,000 each, and make a foundation off of the proceedings that distributes free birth control to everybody?  Is that better, or worse, or about the same?Report

              • If you have been issued patents, then legally, you have a right to do all of those things with your patent, with the only objections being moral. However:

                1. Your patents will likely be of short effective duration, as they are with pharmaceuticals. Then your cures will fall into the public domain and anyone can use them, and you get a goose egg.  And,
                2. The government has the ability to seize the patents and use them as it likes. The limitations on this power are that it must use them for a legitimate public purpose (which potentially includes giving them to someone else to exploit in a way the government likes better) and you must be given fair compensation for your loss.

                Report

              • Jaybird, regarding social constructs, race, gender, your very individuality are social constructs. They’re all conceptualizations arrived at independent of your participation, with or without your consent – all are also mutable. I don’t see how observing human rights are a social construct diminishes them in any way. We operate in a world with a lot of awfully powerful social constructs.

                And my appeals to utility as to why you have to give up your this, your that, or your the other for the greater good will always, always trump your little mewlings about your “rights”.

                Doesn’t this point apply equally to negative and positive rights? In a worldview that is purely utilitarian, negative rights too bend to the “the greater good”.Report

              • Avatar Patrick Cahalan in reply to Creon Critic says:

                From a practical standpoint, the question was supposed to be rhetorical 🙂

                A lot of people can die in 11.5 years.

                I imagine if I’m willing to bend my rules enough to get a revenue stream, I can find a couple billion dollars for lawyers to drag everybody else through the court system for patent infringement.

                It might be worth it, just to get real attention on patent law.Report

              • Patrick, my reply won’t be as well informed as Burt Likko’s, but here it is anyway, in short, once invented, society will decide what to do with said superdrug. Just as the scientists who invented the a-bomb lost control upon invention, the inventor of the cures for AIDS and cancer will have such control over the invention as society carves out for them. If the inventor makes unreasonable demands, $1 billion a dose being one, then I think the kind of eminent domain-type process Burt outlines would take place. Or some will just act first and figure out the repayments later. This debate comes up with developing word countries authorizing generic HIV/AIDS drugs, pharmaceutical companies can be very angry that India or South Africa have authorized an inexpensive version of their patented drug for production – but the pharmaceutical companies are severely limited in the ways they can respond to such intellectual property infringements. I think what ultimately happens is a negotiation between drug companies and the developing world countries. But the inventor certainly does not have the final say, and the inventor’s intellectual property rights don’t outweigh all other considerations.Report

              • Avatar Patrick Cahalan in reply to Creon Critic says:

                Creon:

                What if I do have the final say?  Let’s say I don’t patent them.

                Instead, I make five pills and I give them to five different people to demonstrate that I do, in fact, have something that cures those diseases.  I haven’t patented anything.  There are no extant samples for anyone to reverse-engineer.

                How far are you willing to take the mechanism of the State to coerce me to cough it up?Report

              • Patrick, that’s an excellent question to which I do not have the answer. Setting aside the quibble that intervening with five successes doesn’t mean we know an inventor has arrived at a cure, it is pretty clear to me that there’re a whole series of things the state is absolutely prohibited from doing to the inventor, and as a matter of morality one ought to share such a spectacular discovery. The inventor would have to watch out for the Dick Cheney’s and John Yoo’s of the world though, they may not be as persuaded by overarching considerations of human dignity and human rights.Report

              • Avatar Jaybird in reply to Creon Critic says:

                “Trade Secrets”. Technically, only a handful of people know the formula for Coca-Cola or the 11 Herbs and Spices in the Colonel’s Secret Recipe but any decent university lab will be able to tell you how much of what is in any run-of-the-mill solution you bring them.

                When it comes to “I will give you this formula in exchange for $X”, it seems to me that that is a trade that any given creator has the right to ask for… and we have the right to decline.Report

              • Avatar Pierre Corneille in reply to Creon Critic says:

                I suspect that at least 12 of the herbs and spices are salt. (Yes, I stole that from SNL.)

                 Report

              • How far are you willing to take the mechanism of the State to coerce me to cough it up?

                I’d be rather surprised if the state couldn’t find a dollar amount that makes you willing.  I’d be more or less satisfied with that.  If we’re talking about causing you harm to cough it up, then we’re just playing with versions of the trolley problem.Report

        • Avatar Kimmi in reply to BSK says:

          I’m pretty sure everyone on both sides hates that decision. it’s poorly argued, and kinda stupid.Report

      • Avatar Burt Likko in reply to Jaybird says:

        In a similar vein, I offered this theory some time ago:

        But let’s also give a thought to the abstract concept of what “rights” are in the first place.  Our Constitution does not speak very much about the rights of the  individual, but rather mainly about the extent of the government’s ability to exert power.  Political scientists refer to this with phrases like, “Federal constitutional rights are phrased in the negative, not in the affirmative.”  A Constitutional right in this nation is the “right” stop the government from doing certain things to you.  Thus, our rights as citizens are phrased as restrictions on what the government can do:  “Congress shall make no law respecting an Establishment of religion…” and “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

        This is hardly an original thought to me; I’m just readily aware of what I’ve written more than I am what others have. Point is, when the government can act, individual people must comply, and therefore the individuals are not at liberty. When the government is prohibited from acting, individuals are free to do as they choose. Thus, a “right” should be understood to be an enforceable limitation on the government’s ability to act.

        So is there a right to privacy? Yes, if you think the government is prohibited from intruding on a constellation of certain kinds of information and activities which we typically refer to as “private.”

        Is there a right to compel the government to provide you with an education? As framed, that question does not make any sense. A “right” is the ability to stop the government from doing something, not the ability to compel the government to do something.

        If you’re looking for an explicit reference to this in the Constitution, Jaybird is right to refer you to the Ninth Amendment, but I would also suggest that you read the whole thing with an eye to its holistic linguistic structure. It was written in a certain way, for good reasons. This is one of them.Report

        • Avatar Tom Van Dyke in reply to Burt Likko says:

          Yes, Mr. Likko, but the foundation is—let’s call it—“the right to have rights.” [Hannah Arandt?]  What that means is in the Decaration and the other “rights talk” of the era.

           

          As a point of clarity, I think there’s a necessary distinction between “natural” rights and political rights.  The latter can indeed be positive law, and we can enjoy both kinds.  California’s constitution establishes a right to an education, and the US Constitution ensures a right to trial by jury, which seems to me to be a political right, not necessarily a “natural” one.  You can waive your right to a trial by jury, but we cannot waive our “unalienable” natural rights.

           

          But I would put political rights under the “social contract” umbrella and not under the “unalienable and/or God-given rights” one.Report

          • The state constitution of California does indeed describe positive rights as you describe. I’ve long thought that was a mistake on both a theoretical and a practical level.

            I don’t see a jury trial as a positive right. I see it as describing one of the conditions under which your life, liberty, or property can be taken from you. It’s part of “due process.” This starts to look like a word game, though, and soon enough we’re playing semantics with “government may not fail to do X” and calling that a restriction on power instead of an obligation to act in a particular way.

            I’m a little bit leery of the concept of an “unwaivable right.” Lots of potential for problems there, as the understanding of those rights which are unwaivable creeps and expands over time. Besides, if an individual does not object to the government acting in a particular way, the question of limits on governmental power never really arises.

            On a theoretical level, the concept of natural rights seems ultimately to be as slippery to me as the concept of a social contract. These concepts are not necessarily mutually exclusive, either. That, however, should be the subject of one of those deep theory posts that gets everyone around here sporting happy little philosophical pup tents in their shorts, the kind of post that I, at least, never seem to find the time to write.Report

            • happy little philosophical pup tents in their shorts

              “Little?”  Harumph.Report

            • Avatar wardsmith in reply to Burt Likko says:

              Here’s a softball for you Burt. Does a voter have a right to privacy?Report

              • Avatar Patrick Cahalan in reply to wardsmith says:

                It’s a Trap!Report

              • Avatar Burt Likko in reply to Patrick Cahalan says:

                Likely. But what can I do? He called me out, and then he called me a coward. Worse, I got a phone call I had to take, delaying my sur-response. Honor is at stake now!Report

              • Avatar Burt Likko in reply to wardsmith says:

                Oh, come on. When it’s easy like that, do the setup yourself and move straight to the punch.Report

              • Avatar Jaybird in reply to Burt Likko says:

                It’s better when you can get the other person to say it.

                And, you never know. You might have someone surprise you by saying something like “everybody in the room has the right to know who’s voting for their houses to be burned down” or something like that. “Social opprobrium is never more appropriate than when it comes to voting.”Report

              • Avatar Burt Likko in reply to Jaybird says:

                I suppose I have to play, then. At least in California, it’s very clear that the state constitution (Article II, Section 7) provides that voting (in a general election for public office and public initiatives) is not only private, but secret. Normatively, I agree with the state constitution and I would infer such a limit on the Federal government’s power as well.

                What I think wardsmith is getting at is a voter for a public official in a general election, like for Governor or President. Can I be compelled to disclose who I voted for, or why? No. I can vote for candidate “X” instead of candidate “Y,” by virtue of the worst possible motives imaginable (think, racism or whatever other horrible motive you can concoct that is even worse than that), and no government entity may legitimately inquire into either my vote or my reasons for voting as I did. And I may later decline to answer any question concerning who I voted for, without official penalty or governmental sanction.

                As I see it, this is a negatively-framed right — it is a limitation on the power of government to inquire into my exercise of the franchise rather than an affirmative obligation of the government to give me something.

                In practice, people often waive this right. It’s relatively easy to get most people to freely disclose who they voted for and why, just by asking nicely.Report

              • Avatar Jaybird in reply to Burt Likko says:

                Can I be compelled to disclose who I voted for, or why?

                Oh, after the fact? I am 100% down with the idea of privacy. I was wondering if the argument was one of voting in a public place. Like you had to have a ballot attached to your name that had your info.

                So, like, if they had a recount, they could go to your name and say “Burt voted for John Jones, Prop 3, and against Amendment B” and effectively eliminate fraud or something like that.Report

              • Avatar wardsmith in reply to Burt Likko says:

                I wasn’t looking for a fight, but suspect you were. Mostly I wanted to flesh out positions esp given what you said about slippery social contracts. Viz privacy, we have non-free-speech-non-violation. I don’t really care about the specific referendums involved, although I suspect you and quite a few league members do. The bigger problem, to me, is the chilling effect this case is guaranteed to have on free speech, free right of dissent and free right to redress harms inflicted on society by the government.

                Most of us agree here that our government is pretty fished up. Many including yourself if I’ve read you right, believe it can be bandaided along with the occasional court case or new election cycle. But how many people will willingly sign the next petition that comes their way now knowing that their neighbors will be looking over their shoulders? If you’re in favor of knowthyneighbor.org this can sound lovely, but what happens in the reverse case, when you sign the petition FOR gay marriage and some next group posts all your personal information online? Not all opprobrium need be visible, you just might lose a client, not be accepted for a teaching position or wonder why you were the first laid off work.

                I worry about Pandora’s box here. At any time in the future this site could be served with a warrant and all he anonymous posters (including thee and me) could be “outed” because of cases like this. Right to privacy indeed.Report

              • Avatar Burt Likko in reply to Burt Likko says:

                I was overly suspicious, then, ward; please accept my apologies for that.Report

              • Avatar Burt Likko in reply to Burt Likko says:

                Signing petitions? Making campaign donations? Signing a petition is neither a private act, nor is it voting. Campaign donations are acts of public speech.Report

              • Avatar wardsmith in reply to Burt Likko says:

                My suspicion is that case law like this will eventually be added to voting machines like the Diebold to do just what JB sees above. My guess is it will be in response to something more innocuous and logical sounding, such as voter fraud. I’m always worried about the camel’s nose getting into the tent.Report

              • Avatar wardsmith in reply to Burt Likko says:

                Uncharacteristically cowardly of you Burt. A fine pugilistic legalist like yourself shouldn’t be pleading the 5th on this one.Report

              • Avatar Burt Likko in reply to wardsmith says:

                See above. Although I’d rather you’d just made your point.Report

            • Avatar Tom Van Dyke in reply to Burt Likko says:

              Burt, I acknowledge yr point, but cannot see trial by other means than jury [by professional judges, duly enrobed, as in Europe] as inherently unjust or a violation of human rights.

              I’m speaking of the American understanding of rights via its constitution, not so much our own personal theories of rights.  Although I’m pretty good with “endowed by their creator,” as you know.  Still, I do claim a necessary distinction between rights claimed as innate/natural and the political ones, between liberty of religious conscience and the right to jury trial, or WiFi.

              Come to think of it, perhaps the modern rights talk muddle is partly due to a conflation of liberty and rights.  That’s worth a dissection or a parse, I think.

               Report

        • Is there a right to compel the government to provide you with an education? As framed, that question does not make any sense. A “right” is the ability to stop the government from doing something, not the ability to compel the government to do something.

          Are you referring solely to interpreting the US Constitution? If so you may be correct, but I think you’re drawing the definition of rights too narrowly here. As Tom Van Dyke comments, constitutions (and declarations of rights) have included positive rights as well. I recall the New York Supreme Court deciding a case on the meaning of the right to a “sound basic education”, if I recall correctly ordering additional money for New York City schools from New York State (Campaign for Fiscal Equity v. State of New York).

          On a theoretical level, I think the argument that economic and social rights and civil and political rights are interdependent is a strong one. It is to America(n)s detriment that we haven’t devoted as much time to the positive rights side of the equation.Report

          • Avatar Tom Van Dyke in reply to Creon Critic says:

            CC, I would say that these “positive rights,” like an education or WiFi, need to be explicitly constitutionalized.   Otherwise, it’s an endless stream of “rights talk” that can never be met or satisfied.

            Which, I believe, is no small part of the current crisis, and incoherence. There are few issues that can’t be bent to “rights talk,” but absent a distinction between inherent human rights and positive political rights, the only solution, the only just state, is Leviathan.

            Or as Kojeve and Fukuyama might put it, the Universal and Homogeneous State.

            http://www.hoover.org/publications/policy-review/article/7118

            Report

            • I’m not sure an endless stream of rights talk is avoidable given that constitutions use capacious language, like “reasonable” or “cruel and unusual”. Constitutions that incorporate positive rights include language like “adequate housing”, “a basic education”, “reasonable legislative measures”, and “progressive realization of this right”. Those standards are bound to need fleshing out by the polity. I’m not sure I understood your point about the possibility that the only just state would be a Leviathan. Are you saying that including these notions of economic and social rights necessitates an overly powerful state?Report

              • Avatar Tom Van Dyke in reply to Creon Critic says:

                In a word, CC, yes.  When even WiFi is a “right,” where does it end?

                When Mexico is an unlivable mess that its people are unwilling or unable to fix, but its people have a “right” to enter America and a human right to its social services, what possible meaning do borders or nations have?

                And so on, hence Kojeve’s UHS, the only possible “just” state.  I’m really not going Trilateral Commission or warning of the Comintern, I’m speaking of a very real—and valid!—political philosophy.  Kojeve is the philosophical godfather of the European Union, and even if his student Fukuyama is wrong on the particulars and timing of the End of History, it’s still the modernist vision.

                It’s very interesting, and worth a look, a peek at the final chapter of a proposed history of modern man.

                But my context here is America, not the Euroleft, and mostly, I’m simply trying to penetrate the jumble of “rights talk,” where all human needs [and sometimes, just wants] become “rights.”

                “Constitutions that incorporate positive rights include language like “adequate housing”, “a basic education”, “reasonable legislative measures”, and “progressive realization of this right”. Those standards are bound to need fleshing out by the polity.” 

                If we constitutionalize all such things, then constitutions and “constitutionalism” itself must be rendered to no more than compendia of legislation, just as Mr. Madison warned:

                “To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper.

                Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust.”

                Boldface mine, “nugatory” being the operative word here.

                NUGATORY. 1: of little or no consequence : trifling, inconsequential. 2: having no force : inoperative.

                Living Constitutionalism 101, 2011.  Everything’s a right.

                Now, I guess I’m fine if we as a nation decide that universal WiFi is a desirable good like electricity or indoor plumbing: the horse of doing good with the federal treasury is long gone from that barn. But once we make such things a right, we have created a beast that cannot be sated or satisfied, and a constitution that is, like the man said, nugatory.  The only two possible solutions are Leviathan and Santa Claus.

                 

                 

                 

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              • Tom Van Dyke, compare two school districts in New York State (via NYT): Illion with a budget of $15,625 a student and Syosset with a budget of $28,484 a student.* The Times reports Syosset has a wide range of languages and AP programs available for students, Illion does not. Syosset is a wealthier area than Illion and receives a great deal of its funding from property taxes, Illion receives a much smaller percentage of its funding from property taxes (93% for Syosset, 18% for Illion in 2007, you can browse the 2007 figures pdf).

                Now, given these facts, in what way, if any, can rights inform the discussion when looking at this approximately $13,000 disparity? Can we conceive of the student in Illion as a rights bearer who should be able to demand more from New York State than four AP courses compared to Syosset’s almost thirty? Is it even an aim of policymakers to improve the offerings at Illion? Rights talk is just one way of making meaning out of why this situation deserves government attention, including court action. (Also, economic and social rights texts often append caveats about progressive realization and within the bounds of resources; there is weighing of competing interests going on, but I’d argue that’s preferable to these economic and social interests being weighted at zero or near zero in the constitution.)

                Speaking to your point about government as Leviathan, there is a difference between outlining the aims of government and the precise methods required to reach those aims. So I could envisage methods of structuring the education system that might appeal to fans of markets; rights talk has little to say on whether vouchers are better or worse than direct public provision. Rights talk also has little to offer about what level of government should be doing what, federalism or centralized government, parliamentary or presidential systems, strong judicial review or weak judicial review. There’s quite a bit of room for individual nations and communities to chart a course to realizing the rights set out in texts like the Covenant on Economic, Social and Cultural Rights. But rights talk forcefully says government institutions should be oriented towards realizing those positive rights.

                This Michael Ignatieff quote deserves repeating,

                …the United States – increasingly stands apart. As international rights conventions proliferate, as newer states like South Africa adopt new rights regimes and older states like Canada constitutionalize rights in new charters of rights and freedoms, the American Bill of Rights stands out in ever sharper relief, as a late eighteenth-century constitution surrounded by twenty-first century ones, a grandfather clock in a shop window full of digital timepieces.

                * – Illion with a budget of $15,625 a student (1,600 students with 2010-11 budget of $25 million) facing a cut of $1.1 million and Syosset with a budget of $28,484 a student (6,600 students with 2010-11 budget of $188 million) facing a cut of $1.4 million.Report

              • Avatar Tom Van Dyke in reply to Creon Critic says:

                CC, you’ve hit a specific systemic inequality that makes me very angry, that of unequal financing of public schools via the local property tax rubric.

                I believe in the state level as the foundation of federalism and not just as a mid-point for further devolvement of political power from WashDC to the local level.  It’s the state’s job to provide the education [we have all agreed, and California has even constitutionalized it as a right], and it’s the state’s job under the 14th Amendment to ensure equal protection for its citizens.

                There is absolutely no excuse or defense of the inequality you chronicle here.  Perhaps we can agree that it’s the richer suburbs—Dem and Rep alike—that perpetuate this injustice and the whole property tax-school district scheme.  I’m not one for class war, but this is, and the problem is that there’s a consensus on the part of the “haves,” regardless of party, to keep things the way they are.  I estimate that any state legislator from those areas who ran on a platform of equalizing the system would lose 80-20.

                That said, I think you’re slipping the rest of your “rights” argument under the tent with this issue.  Naughty boy.  😉

                I have no problem with ‘rights talk” per se—we do have certain rights, some natural, some agreed to as political/social contract. I object to throwing all and everything into the same undifferentiated soup, and we risk doing that here.

                As for the Michael Ignatieff quote, it does precisely that, and I think it’s worth forgetting, not remembering.  The Founding concept of rights is indeed a “grandfather clock,” compared to the modern rights talk that keeps poor time and falls apart at the first disturbance.

                These new model regimes measure in decades [if that], not centuries, and go through constitutions like toilet paper.

                Which points back at my original point, should you wish to return to it.  But I am enjoying the easy flow of discussion, and thank you for it.Report

              • Tom Van Dyke, I guess I see the situation of iniquitous school funding reproduced in many circumstances in society, access to healthcare for instance. Making the have-nots rights bearers grants them admission to a political process that otherwise can carry on ignoring their deprivations – and it need not be a conspiracy against the less well off, just that the haves can chug along very well without a care for the have-nots, for a time anyway.

                I suspected you wouldn’t be swayed by the Ignatieff quote, Jaybird was also not very impressed by Ignatieff’s unfavorable comparison of the US Constitution to the more comprehensive constitutions these days. I wouldn’t overpraise the US experience though, we did go through the Articles of Confederation, shunt off the issue of slavery for a time in the Constitution itself, and then have an awfully bloody civil war. I’d also say a bunch of 5-4 Supreme Court rulings, with perfectly intelligent justices offering diametrically opposed opinions on the same text as not the most impressive feature of the Constitution. Not to say it has been a total failure, but not exactly a sterling performance either.

                Which points back at my original point, should you wish to return to it.

                I haven’t been intentionally avoiding something, what did I miss? UHS?Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                CC, I appreciate the good faith.  Constitutionalism and a workable theory of rights that doesn’t include every desirable good under the sun are missing.  You keep slipping the entire camel under the tent.

                And really, as a corollary to Godwin’s law, I just can’t do the race thing. Even that slaveowning bastard Jefferson knew there was a reckoning coming.

                “And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?  That they are not to be violated but with his wrath?  Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever: that considering numbers, nature and natural means only, a revolution of the wheel of fortune, an exchange of situation, is among possible events: that it may become probable by supernatural interference!  The Almighty has no attribute which can take side with us in such a contest.”

                Supernatural interference!?  And Thomas Jefferson wasn’t even all that religious.  Don’t that beat all?

                Regardless of whether there even is a God, the reckoning came all right, the Civil War, half a million American dead, more than any other war anywhere else anytime.

                So let’s not do the race thing, OK, CC?  That’s so, like, sophomore bull session. There are only a very few who find America’s punishment unjust now that the smoke has cleared. Not Lincoln, not Jefferson.

                I quote the Old Dead White Guys not for their authority, but in full view of their feet of clay but because of their clarity on the human condition. Things were in “higher relief” then not now, contra Mr. Ignatieff, who suffers from the modern syndrome that believes history started with the 20th century, or with today’s paper.

                We just can’t swallow slavery and WiFi in the same gulp.

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              • Tom Van Dyke, just as long as the feet of clay are in view, the feet of clay of the US Constitution included. I think you overestimate the number of desirable goods included in the human rights vision I’m advancing (pretty traditional post WWII international human rights regime stuff) and underestimate the number of desirable goods in the liberal imagination. I assure you there are more goods in the liberal imagination than in the content of the visions of a more inclusive understanding of human rights set forth in say the International Bill of Human Rights. For instance, we’re mostly just talking about first and second generation rights here – we haven’t really touched upon third (or fourth) generation rights, variously described as the right to peace, the right to development, the right to a more equitable socioeconomic order, the right to a sustainable environment, the rights of indigenous populations, and rights concerning intergenerational equity.

                It is unclear to me why only first generation rights should be included in a constitution, and I must admit I wouldn’t be opposed to going beyond first and second generation rights. I don’t see how texts like the more expansive South African Bill of Rights or the European Convention on Human Rights end up being unworkable, in theory or in practice. The European Court of Human Rights has proved as capable of expounding the Convention as the US Supreme Court is at expounding the US Constitution for instance.Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                CC, you’re getting ahead of me or at least catching up.  What the UN Declaration of Rights has been perverted into from its Thomist [Aquinas] basis via its driving force, Jacques Maritain, could fill a book.

                I’ll stand pat for now that slavery-to-Wifi as human rights as an unbridgeable leap for your “modern” soup of undifferentiated human rights, or re your lionization of the decades-old regime of South Africa as anything but an exercise in constitutional toilet paper.

                Your laundry list of desirable human goods is not in dispute; I’d like free WiFi too.  This DSL I’m paying cash money for really blows.  I can barely get through the stream of Lindsey Lohan’s perp walk without crashing the Shockwave Flash plugin.

                Attica!  Attica!Report

              • Tom Van Dyke, ok, now you have me thoroughly confused.
                Economic, social, and cultural rights represent an important element of the UDHR, look at René Cassin’s portico for instance,

                Cassin's Portico

                Quoting Mary Ann Glendon’s A World Made New (notes omitted, emphasis in original),

                René Cassin compared the Declaration to the portico of a temple. He chose the word carefully, for he knew that the Declaration could never be more than an entryway to a better world. In Cassin’s image, the Preamble with its seven stately clauses, represented the courtyard steps of the portico. The general principles of dignity, liberty, equality, and brotherhood (proclaimed in Articles 1 and 2) were the portico’s fur foundation blocks The main body of the Declaration consists of rights arranged in four columns: rights pertaining to individuals as such (Articles 3 through 11); the rights of the individual in relation to others and to various groups (Articles 12 through 17); the spiritual, public, and political liberties (Articles 18 through 21); and the economic, social and cultural rights (Articles 22 through 27). The Declaration is crowned by a pediment (Articles 28 through 30) linking the individual and society and placing the enumerated rights in the context of limits, duties, and the social and political order in which they are to be realized.

                I don’t understand how such orderings, Cassin’s portico image, distinguishing between generations of rights, or dividing rights between negative and positive, how these orderings amount to an undifferentiated soup or an unworkable theory of rights (what I understand you to be claiming at 9:23 and 11:11).

                In short, I’m arguing the US is missing a pillar that could be incorporated in to US law through a number of means – the US Constitution could be one and it wouldn’t result in an incoherent or “nugatory” document. (Aside from inclusion in the Constitution, the US could also ratify the relevant human rights treaties, but has been a laggard in that area as well.)Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                CC, Mary Ann Glendon is precisely where I was going with this.  See her recent work about what the UN Declaration of Rights has been perverted into.

                What happened was that we put a Richard Rorty gloss on “rights” and “human dignity,” that the foundations didn’t matter as long as we agreed on the ends.  But what we see is that without common foundation, the ends go in perpendicular directions.

                But again, my focus is the American foundation of rights, and Mr. Madison’s constitutionalism, as cited above.  Once everything becomes a “right,” there are no limits to law or government: all desirable goods become mandates.

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              • Tom Van Dyke, I think by emphasizing human rights foundationalism this perspective leaves out the possibility for overlapping consensus. Take three longstanding traditions of understanding humans and communities – Western, South Asian, and East Asian. Particular religious ideas may differ, emphasis on community versus the individual may differ, but in all three traditions one finds the building blocks for texts like the UDHR. We can politically usefully bracket a good deal of the “why” of human rights, the foundationalism stuff, and proceed with the things we agree upon. That is to say, I disagree with your saying, “But what we see is that without common foundation, the ends go in perpendicular directions.” International human rights regime proponents can find a great deal of common cause irrespective of varying foundations. (Also, is there anything in particular of Mary Ann Glendon’s that you’d suggest? I ask because I think you have a track record of providing excellent links, the Hoover piece in this thread, and I recall an excellent piece you linked to on Peter Singer a little while back.)

                Once everything becomes a “right,” there are no limits to law or government: all desirable goods become mandates.

                Is there evidence for this? As I read them, the human rights texts include quite a few provisos on balancing – the Covenant on Economic, Social and Cultural Rights’ Article 4 for instance,

                The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

                Or, put another way, I don’t see the parade of horribles represented in regions with a more developed human rights architecture. The European human rights system – European Convention on Human Rights and European Court of Human Rights – hasn’t yielded these results. Or are they what your were referring to by the Leviathan state? The Universal and Homogeneous State, is that the Western European social democracies in your view?Report

              • CC, if you’re genuinely interested in what Mary Ann Glendon thinks, I’ll pull her most recent piece, The Bearable Lightness of Dignity, from behind a subscription firewall for you. Email me at esqtvd at the dinosaur AOL.

                 

                What you’re saying seemed correct in the abstract; that’s why Jacques Maritain invested so much of his life in the UNDHR.  But “human dignity,” the foundation of the UNDHR, was not only emptied of its meaning, but indeed has been thrown overboard.

                Glendon cites Steven Pinker’s “The Stupidity of Dignity,” among others, where he writes:

                First, dignity is relative.

                Second, dignity is fungible.

                Third, dignity can be harmful.

                So much for “universal.”  Dignity is dead, man, and with it Maritain’s Thomistic foundation for human rights.  He was chasing the wind.

                Glendon cites Nobel poet Czeslaw Milosz

                “…those beautiful and moving words which pertain to the old repertory of the rights of man and the dignity of the person. I wonder at this phenomenon because maybe underneath there is an abyss. After all, these ideas had their foundation in religion …. How will they stay afloat if the bottom is taken out?”

                Cassin’s portico is beautiful, but it already teeters.

                I agree with your sympathies, Friend CC, but this rights regime, and all the Eurostates we hold up as socio-political models are mere decades old, babies.  You speak of them as conceived, but not of how they have grown.  Yes, of course, they may mature and sustain, but Ozymandias tells us that this more unlikely than not.

                 

                By contrast, the American model has survived for centuries, and though I sense a teeter, there is no doubt that its conception of rights has grown and matured since the Old Dead White Guy stage.

                 

                Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                CC, if you’re genuinely interested in what Mary Ann Glendon thinks, I’ll pull her most recent piece, The Bearable Lightness of Dignity, from behind a subscription firewall for you. Email me at esqtvd at the dinosaur AOL.

                 

                What you’re saying seemed correct in the abstract; that’s why Jacques Maritain invested so much of his life in the UNDHR.  But “human dignity,” the foundation of the UNDHR, was not only emptied of its meaning, but indeed has been thrown overboard.

                Glendon cites Steven Pinker’s “The Stupidity of Dignity,” among others, where he writes:

                First, dignity is relative.

                Second, dignity is fungible.

                Third, dignity can be harmful.

                So much for “universal.”  Dignity is dead, man, and with it Maritain’s Thomistic foundation for human rights.  He was chasing the wind.

                Glendon cites Nobel poet Czeslaw Milosz

                “…those beautiful and moving words which pertain to the old repertory of the rights of man and the dignity of the person. I wonder at this phenomenon because maybe underneath there is an abyss. After all, these ideas had their foundation in religion …. How will they stay afloat if the bottom is taken out?”

                Cassin’s portico is beautiful, but it already teeters.

                I agree with your sympathies, Friend CC, but this rights regime, and all the Eurostates we hold up as socio-political models are mere decades old, babies.  You speak of them as conceived, but not of how they have grown.  Yes, of course, they may mature and sustain, but Ozymandias tells us that this more unlikely than not.

                 

                By contrast, the American model has survived for centuries, and though I sense a teeter, there is no doubt that its conception of rights has grown and matured since the Old Dead White Guy stage.Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                And CC: yes, the EU and UHS were both Alexandre Kojeve’s babies, and it’s no coincidence.Report

              • Tom Van Dyke, I found the Glendon piece through ProQuest, thanks for the offer though. I hesitate to bring up race in America again given your earlier response, but a US that grants equal protection to its citizens on that front is also merely decades old, younger than the UDHR, ECHR, etc. I agree with you that America’s conception of rights has grown since the 18th century, but like Ignatieff, I am disappointed the US has failed to embrace the subsequent second generation rights, rights whose exclusion facilitates iniquitous school funding for instance. I’ll have to take a look at the Glendon piece, thanks again for that recommendation and a thoughtful conversation.Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                CC, the 14thA is more than a century old.  As for “2nd-generation” rights, not only is the case unmade for them beyond sentimentality—they are far from self-evident—we haven’t even a foundation for the 1st generation.  This is the problem.

                Modernity has been trying for centuries, but has not found a satisfactory way around “endowed by their creator…”  Hence, the rest is built on sand.

                http://www.theatlantic.com/personal/archive/2008/05/pinker-on-dignity/54075/

                BTW, “TVD” will save you a few keystrokes should you wish. & ditto back atcha for the good faith conversation.

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              • TVD, the 14thA is more than a century old.

                Alas, Brown v. Board, the Civil Rights Act, and Voting Rights Act are not. And let’s not leave Massive Resistance out of the picture.

                A lot of second generation rights are in the UDHR as drafted, negotiated, and then affirmed, and reaffirmed by the UN General Assembly. I’m content to leave the foundational whys and wherefores in a box in the corner for political purposes – of course for philosophical purposes, the whys and wherefores are an important conversation to have and I’m not averse to that discussion’s existence. But I don’t think the foundational discussion should hold up the progress we can make by means of overlapping consensus. Moreover, politically we can get quite far without definitive answers to foundational questions. Sometimes diplomatic finessing so everyone involved saves face is the most prudent course of action.Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                Yes, CC, that’s what Jacques Maritain and Richard Rorty hoped. They were wrong.  Foundations determine what the structure can be.

                 

                As for “2nd generation rights,” they’re political sentiments wrapped in “rights talk,” and I cannot cede them to such a false cover. That’s part of my main point here.

                 

                And yes, we both know America’s racial history.  The difference is that the concept of full equality had always been there; in contrast this new UN Rights regime is indeed in its infancy, grabbing the US conception but ignoring its foundation: an epigone, a simulacrum, if you will, but not the real thing.

                 

                Further, so is the modern Eurostate/social democracy only decades old, and at least half of it is crashing and burning as we speak.  And the Germans are fat & happy now, but we should not forget what happened when they weren’t, less than a century ago, hyperinflation and the Weimar Republic, which out of desperation, handed the keys over to Hitler.

                 

                The Germans have been cowed and embarrassed at their madness and Naziism for the past 60 years, but it’s far too soon to think such things could never happen again.

                 

                I’m no historicist, and the UNDHR is the epitome of historicism, as is the EU and other assorted Hegel-Kojevisms.  And as you follow Glendon, you see that Maritain wouldn’t even recognize what his baby the UNDHR grew into.  The Steven Pinkers have the upper hand, and as we see, “universal” and “dignity” are already under the bus, in just a few decades.Report

              • TVD,

                Foundations determine what the structure can be.

                And yet we have structures without the foundations being philosophically settled, the European Court of Human Rights, the numerous treaty-monitoring bodies, and even more numerous NGOs reporting on practices around the world. Amnesty International and Human Rights Watch reports carry force not because of agreement on the foundational issues, but because we can make an assessment of this or that practice and identify it as a rights violation according to treaties the self-same countries have ratified.

                As for “2nd generation rights,” they’re political sentiments wrapped in “rights talk,” and I cannot cede them to such a false cover.

                I don’t see how this assessment does not also apply to first generation rights – I can see precisely the words you use here used to dismiss the first generation rights as “political sentiments wrapped in ‘rights talk’”. As Glendon observes, there are philosophical, political, and cultural dimensions to rights. I don’t see this observation as a knock against second generation rights.

                And yes, we both know America’s racial history. The difference is that the concept of full equality had always been there;

                America has only come around to the practice of (something nearer to) full equality relatively recently, more recent than the UDHR. I think we are scoring the same facts differently, with you giving partial credit for having a concept on paper and me marking the US record down for Jim Crow, lynchings, sundown towns, Massive Resistance, etc. You give partial credit for having lofty words on paper while America profoundly failed to live up to these commitments to the severe cost of millions of people. I am not so generous.

                Also that “always been there”, you must be excluding the 3/5ths compromise from that “always”. But even counting since the 14th Amendment, how American institutions actually behaved, the crimes they ignored (or perpetrated) against swaths of the population, all count against having articulated the concept.

                Turning to an assessment of the European social democratic project. The European side (EU) has prevented war between the major European powers, given the track record of Germany-France-UK-Spain-etc. in the previous three centuries, no mean feat. The EU has also successfully incorporated a good deal of the post-Soviet space into the values and habits of stable democracies, with those countries who have not joined the EU desiring to do so. Overall a hugely successful peacemaking, stabilizing project for a continent that had been riven by war on a spectacular scale. (I realize with the euro-tumult of the past weeks/months this isn’t the most opportune moment to be writing this, but I’d put money on the Europeans successfully muddling through, as they did with the Exchange Rate Mechanism crisis.)

                Turning to the social democratic side, we find an awful lot of success. Looking through league tables of the OECD, Transparency International, or of the UN (Human Development Index), European social democracies consistently perform well: long life expectancy, low corruption, low levels of child poverty, high levels of intergenerational income mobility. The US does not come out as well, a number of the stats for the US are rather embarrassing. Child poverty for instance: Child Poverty in OECD, 2011

                (I think my comment will be held for moderation if I include too many links but I also have in mind other indicators at the OECD Statistics Portal (e.g. infant mortality, per capita prison population, PISA performance, the list goes on), Transparency’s Corruption Perceptions Index, and the 2011 Inequality-Adjusted Human Development Index.)

                I think I view Glendon as concluding on a more hopeful note than you do, particularly the final six paragraphs. (I also must admit, as discussions of rights go, she comes from a more conservative place than me – her assessment of the relationship between human rights and reproductive rights for instance.)Report

              • Avatar Tom Van Dyke in reply to Creon Critic says:

                CC, you’re the dance band playing the EU anthem on the Titanic. Don’t you listen to NPR at least?  These self-congratulatory Eurocharts are obsolete!  They’re the high-water mark of a civilization with a birthrate below replacement level.

                This New Eurostate-society that you lionize, a mere half-century old, isn’t growing and maturing, man, it’s dying.

                As for your helpful rehash of America’s racial history, what it truly illustrates is the gap between lofty rights talk and actualization. We must expand our historical sample beyond your chosen handful of post-WWII golden years under the Pax Americana:

                You dog America for its slowness to live up to its ideals and promise, but just 70 years ago, Germany was a psychotic, genocidal state, and the Vichy French were packing up their own Jews for delivery to Hitler’s ovens.  By those modern beacons of “civilization,” now the leaders of this OECD, America has little to apologize for or to.

                I’m gratified that you were able to overcome Mary Ann Glendon’s pro-life Catholicism and remain open to her arguments.  What we have seen indeed is the UNDHR’s original foundation of “human dignity” bumped aside for a radical individualism and “reproductive rights.”  There are related issues that come to bear in this “substitution” of non-foundationalism: euthanasia, gender-selection abortion.

                Hell,  CC, the UN or the EU can’t even work up a decent lather against female infanticide.  [I trust you’re familiar with the issue.]

                To your praise of European justice—isn’t it just talk?  That’s my basic point here, as an ahistoricist and skeptic of this modernity, this brave new world that dates back only the handful of decades since the defeat of the Axis.  What does Europe do about evil in the world, about the crimes against humanity?

                It talks.  And talks.  And that’s it.  It was Bill Clinton and America who sorted out the wreckage of the former Yugoslavia:  Europe did nothing for years but watch and go tsk-tsk.  And when they attempted to try Milosevic for genocide, what punishment did he face?  Twenty years?

                That isn’t justice; it’s an insult to it.

                To close, and I hope I’ve engaged your points, again we return to your regime of “2nd generation ‘rights'”.  It takes no moral genius to want to give everybody food, shelter, education, transportation, WiFi, vacations, paternal leave, and almost an infinity of desirable goods.

                But without the industrious and efficient Germans to pay for them, these “rights” mean nothing.

                Because they are not “rights” atall.  The primary rights [1st generation, in “rights talk”] do not depend on affluence or circumstance.  They are pre-political and do not require the Germans or anyone else to finance them.  We can respect and guard them in all places and times.  This is what “universal” must mean.

                And one of these rights is liberty, CC.  We have not spoken of liberty in any meaningful sense, you and I.  That’s because “rights talk” has subsumed it.  And so we close the circle, I think:

                For when Ignatieff [a Canadian, and that’s no coincidence] turns up his nose at America, that we’re still way back on “primary” rights like life, liberty and happiness or property—Jefferson and Locke vary here—his superimposition of “2nd generation” rights loses sight of our question here, and covers the light that lit the world those 2 centuries ago, and kept it burning against the forces of ideology and tyranny, the Pax Americana that Europe ungratefully [arrogantly!] still enjoys.

                For there are no rights under the boot of the Axis, no “2nd generation” rights without prosperity.

                Talk, talk, talk. Rights talk, declarations, international courts with no teeth, no spine.  Moral geniuses all.

                In just a handful of decades, Cassin’s portico is already going the way of Ozymandias, CC, and the wind and the sand have already begun to laugh.  You can hear them, if you listen closely.

                 

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    • Avatar Patrick Cahalan in reply to BSK says:

      Back in the day, a right to privacy pretty much meant that the government couldn’t seize your papers, which is what due process and warrants were all about.

      I’m not sure that the Founders would have understood “privacy” the way we do, today.  Everybody knew everything about everybody else back then; social opprobrium and the threat of being challenged to pistols kept the things that were proper to discuss publicly nicely separated from the things that were not.

      We don’t have social opprobrium of the same sort, and dueling is long gone.  We’ve created a need for a right to privacy by taking away the tools that kept it from coming out in the light, as an issue.Report

    • Avatar Creon Critic in reply to BSK says:

      IS there anything in the Bill of Rights that ensures a right to privacy?

      The Supreme Court has answered yes, the opinion in Griswold v. Connecticut holds that “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Not as forceful as saying there’s an interdependence to the rights involved and pulling away one makes the whole fall apart, but hinting at a broader interconnected whole. Justice Goldberg’s concurrence elaborates a bit more,

      I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted, and that it embraces the right of marital privacy, though that right is not mentioned explicitly in the Constitution, is supported both by numerous decisions of this Court, referred to in the Court’s opinion, and by the language and history of the Ninth Amendment.

      I think your friend’s concern, if privacy rights fall then reproductive rights fall as well, is a correct assessment. Under a different interpretation of the Constitution Griswold could go the other way (along with a slew of other cases). Fewer penumbras means fewer rights, full stop. I think the issue is that everyone is engaged in interpretation, even the most text-bound originalist, as the Constitution is not self-interpreting. And so, as Democrats will be arguing for the next year, elections have (Supreme Court) consequences.Report

    • Avatar James Hanley in reply to BSK says:

      IS there anything in the Bill of Rights that ensures a right to privacy?

      Yeah, if you hold it up to the light the right way.  Of course I think it should be help up to the light that way, but it doesn’t change the fact that it depends on some mildly tenuous interpretation as opposed to being explicitly textual.

      About time we fixed that, but you know all those “small government” conservatives would never vote for such an amendment.Report

      • I think that we’re at a point that amending the Constitution would be extraordinarily difficult because too many people would either grant or withhold their support for the amendment based on whether it would be to the advantage of their favored political party. An amendment making the right to privacy explicit would benefit the Democrats since it would take the wind out of the sails of the pro-life movement, and therefore cannot pass.Report

  4. Avatar DensityDuck says:

    Meh. I had a big angry flame here, but I went and read the original documents. Tenth Circuit and the Supreme Court made the right decision here. (I do like how they turned the UHP’s argument around on itself–that is, if someone driving by would be going so fast that a cross is the only thing they would understand, then how would they be able to read letters one inch tall?)

    I will say that footnote 9 of the District Court’s decision is interesting: “We reject Plaintiffs’ argument that any time government conduct involves the use of a Latin cross, there is an Establishment Clause violation.”

    I don’t think that Thomas has anything to be concerned about. I guess it’s too bad that each and every religious reference is going to be challenged as an Establishment Clause violation, but I think that says more about the nature of modern society in general than it says about the EC specifically.Report

    • Avatar Tom Van Dyke in reply to DensityDuck says:

      Bingo this, DD.  Dunno if they actually represent “modern society,” or prove empty barrels make the most noise.

       

      ” I guess it’s too bad that each and every religious reference is going to be challenged as an Establishment Clause violation, but I think that says more about the nature of modern society in general than it says about the EC specifically.”Report

      • Avatar Patrick Cahalan in reply to Tom Van Dyke says:

        In defense of the anti-religious crowd (of which I’ll note I am not a part)…

        A lot of people have been harmed to one degree or another by religious institutions.  I don’t find it particularly remarkable that they turn to the State as their revenge weapon of choice.  It seems a fairly human thing to do.Report

        • Avatar Tom Van Dyke in reply to Patrick Cahalan says:

          I’ll bingo that one too, PatC.  My experience with ex-fundies has been dreadful; many or most got issues.  I just wrote an interested observer that I probably got to get around to hating on the fundies one of these days: they seem to have left a lot of trainwrecks in their wake.

          Ex-Catholics seem to muddle along fine, though, at least most of ’em except the “recovering” Catholics, who seem to wear the self-appellation like a badge.Report

    • I will say that footnote 9 of the District Court’s decision is interesting: “We reject Plaintiffs’ argument that any time government conduct involves the use of a Latin cross, there is an Establishment Clause violation.”

      For example, at military cemeteries, where the family gets to choose the symbol. Naturally most of them end up being crosses, but it’s not the government determining that.  Sure if you go to Arlington National Cemetery it looks like a church graveyard, which could give the impression government is sponsoring the Christian religion, but sometimes the impression isn’t the whole story.

      I think analogously, it would be constitutionally legitimate to have the cross as one of a set of symbols that could be selected from to mark highway deaths if the family of the deceased got to make the choice.Report

      • Avatar Burt Likko in reply to James Hanley says:

        On my visit to Arlington, I was overwhelmed not with the Christianness of the place but rather with its militariness. It is the spirit of the military, of honor and pride and gratitude and dignity, which prevails there. There are a sufficient number of Stars of David on the tombstones to demonstrate that not everyone buried there is Christian — but there is more than sufficient gravity and sobriety to the place to demonstrate that everyone buried there is honored for their service. It would not be reasonable to assume that Arlington National Cemetary is an endorsement of Christianity. Rather, it is an endorsement of military service.Report

        • Eh, I suppose it matters where you look and how closely.  But I think the heart of my argument stands, that it’s an example of “government conduct using the Latin cross” that clearly doesn’t create an establishment problem.  And I assume it could be used as a model for a roadside memorial program.Report

  5. TVD,

    you’re the dance band playing the EU anthem on the Titanic.

    I think the Titanic is a bit extreme, even if the worst happens and the euro-currency zone collapses, the European project goes on. The Ode to Joy will survive this crisis. The European Central Bank is only a fairly recent addition to the European project. I hardly see the Commission, Parliament, Presidency, etc. packing up shop and decamping from Brussel’s all because of the currency troubles, serious though they are.

    These self-congratulatory Eurocharts are obsolete!

    Well, they’re Organization for Economic Cooperation and Development charts not OSCE charts or EU charts. And you forgot the UN Human Development Index. You lightly wave away a substantial body of evidence that, irrespective of how well or poorly Europe is faring, show some serious problems in dear old Uncle Sam’s household: child poverty, bursting prisons, and a middling K-12 education system (amongst developed world peers). Demography may be destiny, but the quality of life in the US deserves some scrutiny, the Universal and Homogeneous State as represented by European social democracies seems to produce some concrete social welfare results.

    I didn’t venture into counting America’s atrocities in an effort to excuse the atrocities of others, and I don’t mean to lionize Europe as some sort of pinnacle of civilization. Gandhi said it best, “What do I think of Western civilization? I think it would be a very good idea.” I’ve lived in Europe for four years of the past ten, I have been disabused of any facile notions I may have held of European paradise. Even so, despite American and European shortcomings, Europe still comes out ahead on some fairly important indicators of social welfare.

    America has little to apologize for or to.

    You’re going to have to forgive me for quoting a previous comment of mine in a discussion here of exceptionalism,

    To be honest, this is the first thing that came to mind upon reading just the title of your post [An Exceptionally Moral United States],

    …the fact that many of the images are on postcards. The people who approved of or participated in these crimes sent photos of them via the U.S. mail, to share their subhuman pleasure with others. One of the postcards reads: “This is the barbecue we had last night.”… That ordinary people did these things is deeply disturbing; that they manufactured a social rationale for their acts is more disturbing still. Look for a while at the picture of the lynching of Rubin Stacy, Fort Lauderdale, Florida, 1930. Look first at Stacy, then turn to the little girl in the summer dress, looking at Stacy, and then to the man behind her, perhaps her father, in the spotless white shirt and slacks and the clean white skimmer. They will stand there forever, admiring the proof of their civilization.

    That is to say alongside, the founders and all that good stuff of American civilization, is the profoundly troubling – as you acknowledged “a scale with an unforgivable oversight, allowance of slavery.” But I want to make a claim that both are a part of the American identity; to me, America is ambiguous in a way that isn’t fully captured in statements like, “Other nations would not lose their identity if they ceased to be liberal democracies; the US would.” Or, “those moral ideals lie at the very foundation of what makes the US, well, the US.”

    Slavery, Jim Crow, the father-daughter pair also lie at the foundation of what makes the US the US. They are part of what make the US (like its peers & their atrocities) an aspirant to the title, liberal democracy – not a rightful claimant. The project of normative exceptionalism appears to skim off the best bits, incorporate them into American identity and fail to grapple with the deep ambiguities at America’s core – well, fail to grapple in the sense that they are stepping stones, or chapters, or past, or overcome. Under a rubric of exceptionalism the brutality becomes transitory and the ideal becomes an ever present fixture; the brutal are out-of-character elements in the American experience. I’d contend that both the brutal and the sublime are ongoing themes; the brutal is never vanquished.

    I’m gratified that you were able to overcome Mary Ann Glendon’s pro-life Catholicism and remain open to her arguments.

    Oh she makes really good arguments, arguments worth reading and engaging with, thanks again for pointing me to the piece. I’d have to give some more thought to the allegations, but at first glance I’m unsure the varying positions on reproductive rights or physician assisted suicide are mounting the assault on human dignity she outlines.

    CC, the UN or the EU can’t even work up a decent lather against female infanticide. [I trust you’re familiar with the issue.]

    Yes, I’m familiar with Amartya Sen’s writing on the issue in particular, but I locate the solutions in combating discrimination against women more broadly, resolving broader inequities in gender roles for instance. Gender selective abortion points to the problems surrounding the unequal status of women throughout society.
    What does Europe do about evil in the world, about the crimes against humanity?
    Well, for one thing, several European nations are leading givers of foreign aid, crucial in preventing crises from turning into region destabilizing disasters. In other League discussions I had forgotten to mention European Union expansion as a massive foreign aid project to simultaneously develop many former Soviet satellite states at once.

    Also, Libya.

    I was interested to hear how important some of the smaller European nations were. The Pentagon people seem to have been particularly impressed by the Belgian air-force. “Every time there was a really hazardous mission, they put their hands up”, was one comment I heard. The Norwegians and the Danes also played a big role. While the French and the British like to say that they are the only serious military powers in Europe, some 40% of the missions over Libya were carried out by smaller Nato members or Gulf state air-forces. All told the division of labour for air-force sorties was said to be roughly – the US, 25%; France and Britain, 35% and the rest of Nato, plus the Gulfies – 40%. [The Libyan war and the gallant Belgians by Gideon Rachman writing in the FT The World blog]

    It talks. And talks. And that’s it.

    Well, Churchill did say, “To jaw-jaw is always better than to war-war.” But you are right to point out European failings in the Balkans. But look at Tony Blair and the Sierra Leone intervention, or Sarkozy and the Ivory Coast intervention, and the eventual NATO intervention in the Balkans in the 1990s. European states, particularly the UK and France, have gone beyond talking in the face of crimes against humanity.

    It takes no moral genius to want to give everybody food, shelter, education, transportation, WiFi, vacations, paternal leave, and almost an infinity of desirable goods.

    Societies have survived an awfully long time turning aside the needs of the poor, indifferent, or insufficiently mobilizing the political will to close some of the gaps. Gaps like the school funding gap we discussed earlier, where the haves form a coalition of inactivity amongst themselves, turning a blind eye to underfunded schools elsewhere as their little darlings march off to Stanford and Harvard.

    I keep failing to quite understand your assessment of second generation rights. One minute you’re ok with them but upset by subsequent perversion, the next you’re writing that second generation rights mean nothing. As for liberty, to repurpose Anatole France, rich and poor alike are at liberty to sleep under bridges or beg in the streets. What good are civil and political rights without economic and social rights? Both sets of rights depend on each other, if one pillar falls short the other topples over as well, Cassin’s portico falls apart. Then, and only then, do we get to Horace Smith’s Ozymandias.Report

  6. Avatar DensityDuck says:

    As I posted elsewhere, but here I post less cynically:

    If it’s a possible Establishment Clause violation for a private religious organization to perform an act of speech on public land (under the “forbearance constitutes de facto endorsement” reasoning) then we should be able to shut down the Westboro Baptist Church on EC-violation grounds.

    They can reply by moving to a private citizen’s property, at which point the rest of the community can express their preferences by refusing to do business with that citizen.

    Alternatively the actual protestors can attempt to disavow any association with the WBC, after which it’s up to the judge to decide whether they actually did (and given the apparent acceptance of the tortured legal reasoning necessary to justify “forbearance is endorsement”, I doubt that a prosecutor would have any trouble tying the protestors to WBC.)Report

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