RSM: I, for one, appreciate your comment and the sincerity therein. Not that you care - or should care - but I respect you a lot more for that.
Although I must admit to being a bit confused by your apparent support of the Joe the Plumber-as-war correspondent experiment as contrasted with your criticism of a website that simply sought to act as an outlet for aspiring conservative-ish writers (and not necessarily journalists) to get their feet wet. I'm pretty sure I speak for all five of us here who were published at Culture11 in saying that none of us considered (or consider) ourselves journalists.
Indeed, I'd go so far as to say that the entire purpose of this particular site is to get away from the trap of pretending to be journalists. Instead, the goal (whether we are successful or not, you can draw your own conclusions) of this site is "a conversation amongst friends" more than as a source of hard-hitting faux-journalism that you can get at any number of blogs of various sorts. To a certain extent, it is that type of attention-seeking writing that we are trying to avoid, even if we may or may not succeed in doing so.
Actually, the point about "East Coast Elites" is pretty important, and too often gets lost in the whole "dislike of Sarah Palin is elitist snobbery" debate. By which I mean that the opinion leaders most responsible for purveying this attitude are typically very well connected, operating either inside the Beltway or from New York, etc. In other words, their actual understanding of what "middle America" thinks is almost entirely superficial. IOW, those who most loudly scream "elitists!" are rarely salt of the earth themselves.
I'm reminded of the old - and classic - Simpsons episode with Stephen Jay Gould, in which the judge orders "religion to stay five hundred yards away from science," but in which Gould acknowledges that he was unwilling to test whether the apparent bones of an angel were real or fake. I've long thought this was one of the most poignant Simpsons episodes; I also think it (ie, the episode as a whole) does a good job illustrating the way in which faith (which as you correctly note is synonymous in many ways with trust) should not - and cannot - attempt to masquerade as science, even as science should not - and cannot -seek to take the place of religion. I'm not sure if that fully makes sense in the context of this post, but as I said, that's what this post reminded me of.
As a lifelong Bills fan, let's just say I feel your pain. If it's any consolation, that game was as good or better than Super Bowl XXV (aka "that game"), which in my mind is saying a lot.
Sometimes a little outrage in one's writing is appropriate. This is one of those times. Well said. I'd say that this whole back and forth exemplifies everything we've been talking about in our series on Partisanship.
Hey - it's a difficult issue, and the Ely article is usually not remembered for its discussion of the hyperbolic use of "Lochner-ing." I only picked up on it when I re-read it; had I not done so, I wouldn't have thought to include that point in this post.
Dave: As much as I respect David Bernstein, if he made that argument, that argument would appear to be wrong, as the Ely law review article, written very shortly after Roe, discusses in a pretty fair amount of detail the way in which unpopular pre-Roe, post-New Deal decisions were dismissed as being "Lochner-ing."
Dave Hunter:
Are you referring to me with that? Because I'm not sure where I implied that I'm in favor of results-oriented decisions. (If you're referring to my remark about Lochner, I'd just note that in my opinion Lochner was correctly decided as a matter of law and that the cases that semi-overturned Lochner were the results-oriented cases...but that's completely OT).
Matoko - have you ever actually read Roe? Roe does not provide nearly the absolute rights you seem to credit it with, and Casey, which updated Roe, provides less. Justice Blackmun himself acknowledged that the decision to use the trimesters as dividing lines between when a fetus is a "person" and "not a person" and between when a state could make a regulation for the health of the mother and no regulations at all was completely arbitrary (and yes, he used the word arbitrary). Moreover, Roe's application of Griswold's right to privacy is illogical.
Roe and its progeny, unlike Brown or Loving, provide very few clear rules - or even paths to creating clear rules - for what is and is not acceptable regulation. This fact ensures that cases will continue coming to the Court for decades, with very little ever accomplished. It also ensures that abortion will remain a litmus test issue for both parties for some time to come, and in a way that needlessly politicizes the judiciary.
The fact is that Roe is a poorly written decision, even if I might agree with the result as a matter of policy. Had Roe avoided getting into the type of balancing test usually reserved for legislatures it would not have become such a focal point for unending controversy and litigation.
The Court in Roe had three choices: create an absolute right to an abortion up to the time of birth, leave the issue entirely up to the states as was historically the case, or, unique in the history of American jurisprudence, fashion an arbitrary dividing line somewhere in between. Had it created an absolute right to an abortion up to the time of birth, it would have been on much firmer ground. Yes, it would have created more anger, but that anger would have eventually subsided as there would not have been any basis for future abortion cases to return to the Court. Same thing if they had just left things to the states.
But that's not what they did. If you still think Roe is unassailable legal reasoning, I would strongly recommend you read the law review article I linked to above, which was written by a respected scholar who was pro-choice. There are many other criticisms of the decision that are similar in nature, all from scholars and commentators who agreed with the decision as a matter of policy.
There's one important thing that seems to be missing from this argument: whether a majority of Americans want to see Roe overturned is (or at least ought to be) fundamentally irrelevant. There are precious few Americans who actually know what Roe held (meaning they've actually read the decision and understand the legal theories upon which it was based). The issue, fundamentally, is whether Roe was legally and Constitutionally correct; on that point, you would be surprised the number of legal scholars who have criticized its reasoning.
Importantly, Roe did not define personhood as beginning only at birth for purposes of abortions; nor, obviously, did it define personhood as beginning at conception. Instead, it sought to draw a line between personhood and non-personhood that was inherently arbitrary in a way that defining it as beginning at birth or at conception would not have been. Of course, had the court chosen to do either of those two things, Roe would be even MORE controversial today, as for the vast majority of Americans personhood begins at some undefined point between conception and birth (you will not find many people who are supportive of third trimester abortions for example).
But this, to me, is the great problem with Roe - Courts should not put themselves in the position of drawing fundamentally arbitrary lines, which is the province of the legislature. Indeed, as Linker says, if Roe did not exist, it is unlikely that abortion rights would be much changed in the vast majority of the country, because the vast majority of the country (myself absolutely included) fits within the mushy middle, being increasingly pro-life the further along the pregnancy, and increasingly pro-choice the closer to conception.
(N/B: I edited this comment to cut it into paragraphs instead of being one giant block of text)
One more thing - in the meantime, JL Wall's thoughts at phaidimoi logoi about the C11 closure seem oddly relevant to this discussion. Whenever I do respond, I'll explain that a bit better.
I had to read this a few times to fully grasp the point (not because it's confusing but because it's not something I've thought about much before). I think I get it now; my initial reaction was similar to Cascadian's, but having re-read it a few times and taken the time to think about it more critically, it's a lot easier to see just how much of a dilemma this poses. At the moment, solutions seem kind of hard to grasp, but when I get the chance I'll probably try to provide my own explanation of why this is all so problematic in the first place.
Will:
I saw your comment on your site that you hope C11 turns out to be the Velvet Revolver of web-based media. I share that hope.
Given C11's influence on most of us here at the League, I wonder if that means we at the League get to be Iggy and the Stooges (Freddie, you get to be Iggy Pop).
Bob - no problem. I actually appreciate being challenged on these definitions, because those challenges help me to refine, examine, and test these arguments.
Bob:
Perhaps I should clarify that I'm not attacking ALL bipartisanship, just a particular form of bipartisanship. Similarly, I'm not saying that ALL compromise is good, but rather just a particular form of compromise.
Perhaps it would be better to state that compromise and/or bipartisanship are detrimental when they require at least one party to the compromise to act in derogation of a basic, foundational principle; meanwhile, compromises and/or bipartisanship that allow each party to act in accordance with their foundational principles are usually good.
That said, I'll be the first to admit that this is an extremely amorphous concept that I've been struggling to refine for an extremely long time. But I utterly reject the conventional wisdom that something is good as long as it can get the votes of large portions of both parties.
But you may well be correct that ultimately I am praising nonpartisanship.
I need to do a better job remembering that this site provides me with a lot of readers who aren't familiar with my past writings.
Perhaps this will help draw that distinction:
http://www.ordinary-gentlemen.com/2009/01/dont-feed-the-talking-heads/
Also, please see the old Myth of the Moderate post I linked to above.
The basic distinction is that "bipartisanship for the sake of bipartisanship" is where a politician simply cowtows to the opposition for the sake of political expediency, usually because of the political benefits of appearing "bipartisan." This type of bipartisanship is usually more harmful than worthwhile because it subsumes all principles to political expediency, effectively resulting in little or no actual debate on the merits of a policy. But principled compromise, by contrast, is extremely valuable because it keeps in mind an ultimate goal of the "good" that trumps all else; if a policy is shown to be counterproductive to achievement of that "good," or at the very least irrelevant thereto, then it is to the benefit of all involved parties to make changes to the policy.
I'm all for ending the concept of a "war" on drugs and obviously for legalization of marijuana. I'm also in favor of at least decrimininalizing hard drugs; I'm not so sure where I stand on legalizing them, although I probably tend towards the "legalize 'em" side of that issue as well.
That said, I think Tom is being a bit too optimistic about the ability of regulations against being high in public to prevent disturbances of the peace. The obvious analogy there is regulations against public drunkenness, which are amongst the most ignored and loosely enforced types of laws around, and have virtually no deterrent effect.
As for the issue of whether legalization would create more or less addicts, it's always important to remember that use and addiction are not always the same thing. I think legalization of hard drugs would almost certainly increase their use; but I think it's at least plausible (though by no means certain) that the effects of ending the black market would decrease the frequency of addiction.
E.D. - very true. It's an extremely amorphous division between determining good and bad faith. There were two posts a few weeks back, one from William Bradford at his site, and one at, I think PoMo Con that would seem to have some significant implications for any discussion of attributing good or bad faith to a speaker.
E.D. - I didn't watch nearly enough of that mini-series, but I saw the scenes to which you refer. And you're right - Sam Adams was definitely portrayed in a pretty negative light in those scenes. By contrast, in the episodes I saw, John Adams was portrayed most positively in the scenes where he chose his principles over his (for lack of a better word) "party," particularly in his defense of the British soldiers after the Boston Massacre.
Kyle - to be honest, I'm not so certain it's worth trying to figure out when an argument is and is not made in good faith. Instead, I think the relevant issue (somewhat expressed in the commenting policy I drafted for this site) is whether the speaker is attributing a motive to his opponent that the opponent has not expressly stated.
On “eating my vegetables”
RSM: I, for one, appreciate your comment and the sincerity therein. Not that you care - or should care - but I respect you a lot more for that.
Although I must admit to being a bit confused by your apparent support of the Joe the Plumber-as-war correspondent experiment as contrasted with your criticism of a website that simply sought to act as an outlet for aspiring conservative-ish writers (and not necessarily journalists) to get their feet wet. I'm pretty sure I speak for all five of us here who were published at Culture11 in saying that none of us considered (or consider) ourselves journalists.
Indeed, I'd go so far as to say that the entire purpose of this particular site is to get away from the trap of pretending to be journalists. Instead, the goal (whether we are successful or not, you can draw your own conclusions) of this site is "a conversation amongst friends" more than as a source of hard-hitting faux-journalism that you can get at any number of blogs of various sorts. To a certain extent, it is that type of attention-seeking writing that we are trying to avoid, even if we may or may not succeed in doing so.
On “In defense of snark”
Actually, the point about "East Coast Elites" is pretty important, and too often gets lost in the whole "dislike of Sarah Palin is elitist snobbery" debate. By which I mean that the opinion leaders most responsible for purveying this attitude are typically very well connected, operating either inside the Beltway or from New York, etc. In other words, their actual understanding of what "middle America" thinks is almost entirely superficial. IOW, those who most loudly scream "elitists!" are rarely salt of the earth themselves.
On “Thomas Aquinas Meets The Flying Spaghetti Monster”
...Although as a reggae devotee, I must say that your spelling of Jah as Ja made me cringe a bit ;)
"
I'm reminded of the old - and classic - Simpsons episode with Stephen Jay Gould, in which the judge orders "religion to stay five hundred yards away from science," but in which Gould acknowledges that he was unwilling to test whether the apparent bones of an angel were real or fake. I've long thought this was one of the most poignant Simpsons episodes; I also think it (ie, the episode as a whole) does a good job illustrating the way in which faith (which as you correctly note is synonymous in many ways with trust) should not - and cannot - attempt to masquerade as science, even as science should not - and cannot -seek to take the place of religion. I'm not sure if that fully makes sense in the context of this post, but as I said, that's what this post reminded me of.
On “Good show Cardinals…”
As a lifelong Bills fan, let's just say I feel your pain. If it's any consolation, that game was as good or better than Super Bowl XXV (aka "that game"), which in my mind is saying a lot.
On “not everyone who says he’s your friend is your friend”
Sometimes a little outrage in one's writing is appropriate. This is one of those times. Well said. I'd say that this whole back and forth exemplifies everything we've been talking about in our series on Partisanship.
On “Roe and the Culture War Morass”
Hey - it's a difficult issue, and the Ely article is usually not remembered for its discussion of the hyperbolic use of "Lochner-ing." I only picked up on it when I re-read it; had I not done so, I wouldn't have thought to include that point in this post.
"
Dave: As much as I respect David Bernstein, if he made that argument, that argument would appear to be wrong, as the Ely law review article, written very shortly after Roe, discusses in a pretty fair amount of detail the way in which unpopular pre-Roe, post-New Deal decisions were dismissed as being "Lochner-ing."
"
Dave Hunter:
Are you referring to me with that? Because I'm not sure where I implied that I'm in favor of results-oriented decisions. (If you're referring to my remark about Lochner, I'd just note that in my opinion Lochner was correctly decided as a matter of law and that the cases that semi-overturned Lochner were the results-oriented cases...but that's completely OT).
"
Matoko - have you ever actually read Roe? Roe does not provide nearly the absolute rights you seem to credit it with, and Casey, which updated Roe, provides less. Justice Blackmun himself acknowledged that the decision to use the trimesters as dividing lines between when a fetus is a "person" and "not a person" and between when a state could make a regulation for the health of the mother and no regulations at all was completely arbitrary (and yes, he used the word arbitrary). Moreover, Roe's application of Griswold's right to privacy is illogical.
Roe and its progeny, unlike Brown or Loving, provide very few clear rules - or even paths to creating clear rules - for what is and is not acceptable regulation. This fact ensures that cases will continue coming to the Court for decades, with very little ever accomplished. It also ensures that abortion will remain a litmus test issue for both parties for some time to come, and in a way that needlessly politicizes the judiciary.
The fact is that Roe is a poorly written decision, even if I might agree with the result as a matter of policy. Had Roe avoided getting into the type of balancing test usually reserved for legislatures it would not have become such a focal point for unending controversy and litigation.
The Court in Roe had three choices: create an absolute right to an abortion up to the time of birth, leave the issue entirely up to the states as was historically the case, or, unique in the history of American jurisprudence, fashion an arbitrary dividing line somewhere in between. Had it created an absolute right to an abortion up to the time of birth, it would have been on much firmer ground. Yes, it would have created more anger, but that anger would have eventually subsided as there would not have been any basis for future abortion cases to return to the Court. Same thing if they had just left things to the states.
But that's not what they did. If you still think Roe is unassailable legal reasoning, I would strongly recommend you read the law review article I linked to above, which was written by a respected scholar who was pro-choice. There are many other criticisms of the decision that are similar in nature, all from scholars and commentators who agreed with the decision as a matter of policy.
On “D. Linker on Culture War-Abortion”
Chris - you are absolutely correct. More on this shortly....
"
Yeah, stupid lawyers!
"
There's one important thing that seems to be missing from this argument: whether a majority of Americans want to see Roe overturned is (or at least ought to be) fundamentally irrelevant. There are precious few Americans who actually know what Roe held (meaning they've actually read the decision and understand the legal theories upon which it was based). The issue, fundamentally, is whether Roe was legally and Constitutionally correct; on that point, you would be surprised the number of legal scholars who have criticized its reasoning.
Importantly, Roe did not define personhood as beginning only at birth for purposes of abortions; nor, obviously, did it define personhood as beginning at conception. Instead, it sought to draw a line between personhood and non-personhood that was inherently arbitrary in a way that defining it as beginning at birth or at conception would not have been. Of course, had the court chosen to do either of those two things, Roe would be even MORE controversial today, as for the vast majority of Americans personhood begins at some undefined point between conception and birth (you will not find many people who are supportive of third trimester abortions for example).
But this, to me, is the great problem with Roe - Courts should not put themselves in the position of drawing fundamentally arbitrary lines, which is the province of the legislature. Indeed, as Linker says, if Roe did not exist, it is unlikely that abortion rights would be much changed in the vast majority of the country, because the vast majority of the country (myself absolutely included) fits within the mushy middle, being increasingly pro-life the further along the pregnancy, and increasingly pro-choice the closer to conception.
(N/B: I edited this comment to cut it into paragraphs instead of being one giant block of text)
On “Stand Up Sociology”
One more thing - in the meantime, JL Wall's thoughts at phaidimoi logoi about the C11 closure seem oddly relevant to this discussion. Whenever I do respond, I'll explain that a bit better.
"
I had to read this a few times to fully grasp the point (not because it's confusing but because it's not something I've thought about much before). I think I get it now; my initial reaction was similar to Cascadian's, but having re-read it a few times and taken the time to think about it more critically, it's a lot easier to see just how much of a dilemma this poses. At the moment, solutions seem kind of hard to grasp, but when I get the chance I'll probably try to provide my own explanation of why this is all so problematic in the first place.
On ““To the Barricades!””
DH:
Thank you for reminding me of that. And yes, the law remains asinine.
On “goodbye to Culture11”
Will:
I saw your comment on your site that you hope C11 turns out to be the Velvet Revolver of web-based media. I share that hope.
Given C11's influence on most of us here at the League, I wonder if that means we at the League get to be Iggy and the Stooges (Freddie, you get to be Iggy Pop).
On “Talking About the Same Thing When the Other Side Won’t”
E.D. - Exactly. And if you could find a good, concise explanation as to how to take that road, I'd be forever in your debt.
On “Sometimes the Quid Is Better than the Quo”
Bob - no problem. I actually appreciate being challenged on these definitions, because those challenges help me to refine, examine, and test these arguments.
"
Bob:
Perhaps I should clarify that I'm not attacking ALL bipartisanship, just a particular form of bipartisanship. Similarly, I'm not saying that ALL compromise is good, but rather just a particular form of compromise.
Perhaps it would be better to state that compromise and/or bipartisanship are detrimental when they require at least one party to the compromise to act in derogation of a basic, foundational principle; meanwhile, compromises and/or bipartisanship that allow each party to act in accordance with their foundational principles are usually good.
That said, I'll be the first to admit that this is an extremely amorphous concept that I've been struggling to refine for an extremely long time. But I utterly reject the conventional wisdom that something is good as long as it can get the votes of large portions of both parties.
But you may well be correct that ultimately I am praising nonpartisanship.
"
Bob:
I need to do a better job remembering that this site provides me with a lot of readers who aren't familiar with my past writings.
Perhaps this will help draw that distinction:
http://www.ordinary-gentlemen.com/2009/01/dont-feed-the-talking-heads/
Also, please see the old Myth of the Moderate post I linked to above.
The basic distinction is that "bipartisanship for the sake of bipartisanship" is where a politician simply cowtows to the opposition for the sake of political expediency, usually because of the political benefits of appearing "bipartisan." This type of bipartisanship is usually more harmful than worthwhile because it subsumes all principles to political expediency, effectively resulting in little or no actual debate on the merits of a policy. But principled compromise, by contrast, is extremely valuable because it keeps in mind an ultimate goal of the "good" that trumps all else; if a policy is shown to be counterproductive to achievement of that "good," or at the very least irrelevant thereto, then it is to the benefit of all involved parties to make changes to the policy.
On “Meet the New (Drug) Boss, Same as the Old One?”
I'm all for ending the concept of a "war" on drugs and obviously for legalization of marijuana. I'm also in favor of at least decrimininalizing hard drugs; I'm not so sure where I stand on legalizing them, although I probably tend towards the "legalize 'em" side of that issue as well.
That said, I think Tom is being a bit too optimistic about the ability of regulations against being high in public to prevent disturbances of the peace. The obvious analogy there is regulations against public drunkenness, which are amongst the most ignored and loosely enforced types of laws around, and have virtually no deterrent effect.
As for the issue of whether legalization would create more or less addicts, it's always important to remember that use and addiction are not always the same thing. I think legalization of hard drugs would almost certainly increase their use; but I think it's at least plausible (though by no means certain) that the effects of ending the black market would decrease the frequency of addiction.
On “The Talking Heads will Feed Themselves”
E.D. - very true. It's an extremely amorphous division between determining good and bad faith. There were two posts a few weeks back, one from William Bradford at his site, and one at, I think PoMo Con that would seem to have some significant implications for any discussion of attributing good or bad faith to a speaker.
On “a little more on party and perspective”
E.D. - I didn't watch nearly enough of that mini-series, but I saw the scenes to which you refer. And you're right - Sam Adams was definitely portrayed in a pretty negative light in those scenes. By contrast, in the episodes I saw, John Adams was portrayed most positively in the scenes where he chose his principles over his (for lack of a better word) "party," particularly in his defense of the British soldiers after the Boston Massacre.
On “The Talking Heads will Feed Themselves”
Kyle - to be honest, I'm not so certain it's worth trying to figure out when an argument is and is not made in good faith. Instead, I think the relevant issue (somewhat expressed in the commenting policy I drafted for this site) is whether the speaker is attributing a motive to his opponent that the opponent has not expressly stated.