There have been three great political and constitutional transformations in our nation's history. The first covered the period from 1776 to 1789, during which the country declared and then won its independence and eventually settled on a particular form of government, a federal constitution. The next covered the period from, let's say, 1857 (though the starting-point is kind of arbitrary since it had been building for a long time; 1861 would be perhaps a more conventional answer) through 1870. This was, obviously, the slavery crisis, during which the country fought a whole bloody war to answer the question of whether it would keep having slavery. The third was the Great Depression, with the true constitutional crisis period lasting roughly from 1929 through 1937, though the economic difficulties lasted a while longer. The first two were separated by approximately seventy years; the latter two were separated by approximately sixty or seventy years. Projecting forward seventy years from the last one gets you... a few years ago. Or, to put it another way, if you buy this rough extrapolation (which you probably shouldn't, it's incredibly crude), we're about due for a constitutional crisis. Maybe overdue.
Notice anything that could be called a constitutional crisis?
If so, you're not the only one. The federal government is currently shut down. In a couple of weeks it will, unless something happens to change this, hit the statutory debt limit, after which it will not be allowed to sell government bonds to raise revenue to cover the gap between tax revenues and spending obligations. No one knows what happens if that happens. Maybe worldwide financial chaos and depression. Maybe President Obama just ignores the debt limit, which might avert the former and would definitely trigger a full-blown constitutional crisis in its place. One way or another, it won't be pretty. All of this is, of course, happening because the party which controls one of two Houses of Congress, and does not control the White House, has decided that it will refuse to participate in averting these catastrophes until and unless the President basically enacts the entire policy platform of the man he just convincingly beat to secure his re-election. Or maybe even until he enacts something even more ideologically extreme than that, i.e. more extreme than this party's own primary process could endorse. This is, uh, a constitutional crisis. Right on schedule.
It's been building for a while, although fairly few of us have seen it coming particularly long in advance. Some, however, say it could've been foreseen a very long time in advance. Say, two-hundred years or more. As Matt Yglesias details in this post, eminent political scientist Juan Linz spent his life crafting a persuasive argument that presidential democracies are inherently unstable. Essentially this is because, in a parliamentary system, there is only one Government. That is to say, the party with the majority in Parliament just plain governs, with all the powers and responsibilities that entails. If they screw it up, they lose the next election, and the other party (or maybe a new one) gets a chance at the whole "governing" thing. In a presidential system, on the other hand, there are two independent political powers within the government, each with a claim to democratic legitimacy: the President and the legislature. What happens if they don't get along? What happens if they really, really don't get along, such that they cannot between the two of them govern? Linz says there's just no way to resolve that dispute consistent with the principles of democracy, so something else, typically the whims of the military, has to choose a winner. Steve Calabresi, my former professor and perhaps the foremost champion of presidential government, makes a number of good points about the weaknesses of Linz's case, for instance that most of the examples he cites are Latin American countries without a strong judiciary that can act as a potential dispute-settler between the political branches. Still, the current crisis in Washington looks an awful lot like a Linz-style collapse of presidential government, right?
Sunday, October 6, 2013
How Not To Prevent a Tie
In 2002, the Major League Baseball All-Star Game ended in a tie. With the score at 7-7 through 11 innings, both the American and the National League teams discovered that they had run out of pitchers. They were only carrying eight pitchers per team; now the leagues each take more like 13 pitchers. In any event, people decided that this tie was a catastrophe, because apparently someone has to win everything. MLB Commissioner Bud Selig, therefore, came up with a way to prevent ties in the future: make the game count! The idea is that by tying home field advantage for the World Series to the result of the All-Star Game, there will be an extra incentive to avoid a tie. But can you spot the problem? Raising the stakes doesn't actually change what happens when each side runs out of pitchers. Literally not at all. If an All-Star Game goes 20 innings and all 13 pitchers on each side have gotten into the game, and the current pitchers are just plain finished, there's just nothing you can do. At some point the logic of a tie becomes inexorable; at some point a tie becomes necessary, no matter what the stakes. Now, expanding the rosters does a lot to reduce the chance of a tie, and I think it's very unlikely we'll ever see the kind of game necessary to exhaust that kind of pitching staff, but that has nothing to do with the "this time it counts" nonsense. It's a supposed mechanism to prevent ties that actually does nothing whatsoever toward that end.
Interestingly enough, the very next year there was another tie in a major exhibition event, the Presidents Cup. The Cup ended in a tie, with both the United States and the International teams winning 17 points. Tiger Woods had just defeated Ernie Els, the biggest International name, in a marquee match to avoid an outright loss of the Cup. The procedure for breaking the tie was that each team had placed one player's name in a sealed envelope, and in the event of a tie those envelopes would be opened and those two players would play sudden death until a winner had been determined. The designated champions were, of course, Tiger Woods and Ernie Els. And in some of the most compelling golf ever, as darkness crept over the Links Course at Fancourt, Woods and Els fought each other to a draw three times in a row. Three holes, all halved, and as the last light disappeared, still no result. So Captains Jack Nicklaus and Gary Player agreed to share the Cup for the next two years.
And when the two teams reconvened at Robert Trent Jones Golf Club in 2005, there had been a rule change. Like the change to the All-Star Game, its purpose was to avoid a tie. If anything, though, it does even less to accomplish that goal. Traditionally at both the Presidents Cup and the older Ryder Cup between America and Europe, as well as all other less prominent international competitions modeled on the Ryder Cup, when a match was all square after 18 holes it was over. In an individual match-play tournament you would need sudden death at that point to determine who advanced to the next round, but at these international tournaments the match is simply halved, and each team received one-half of a point. The last match of the '03 Cup had been halved, with the Woods/Els match having been second to last. Accordingly (or something), it was decided that on the last day of the Presidents Cup, halved matches would not be tolerated until the Cup had been won. Until one side had at least 17.5 points clinched out of 34, any matches all square through 18 would go to sudden death. Indeed, Phil Mickelson thought he had sunk a putt to halve his match and clinch the '05 Cup, but was informed that he needed to go to sudden death instead. It was weird.
And it also doesn't do a bloody thing to avoid a tie. Well, conditionally it either does or doesn't. If the result of the first four sessions sends the Cup into the Sunday singles with a score involving half-points, say, 12.5 to 9.5 or something, the no-halved-matches policy will prevent a tie. But suppose the score entering Sunday is 11-all. And then suppose that in half the matches, American players win the first ten holes, and in the other half of the matches, International players do the same. Then we would just have 17 points for the United States and 17 points for the Internationals, and nothing about preventing individual matches from being halved would come within eight holes of relevance. There's just nothing about forcing each match to produce a whole point for one side or the other that in the slightest prevents those points from falling equally on each side. Nothing at all, unless, as I say, it would take a non-integer score on Sunday to achieve a 17/17 tie. Today, for instance, the score was something like 14 to 8 entering the singles competition. As I'm watching the tape-delayed broadcast the score is USA 17, INT 12, with five matches still on the course. If the Internationals sweep those matches, it's a tie, right? Would we do another Woods/Els battle to the death? (Okay maybe not with Tiger, his back has tightened up on him...) There's just nothing about the "no halved matches" rule that helps us if we wind up in a flat-footed tie based on whole points for each match. Half of the time, in other words, the rule will be if anything counterproductive for its stated ends, and at best useless. This anti-tie frenzy appears to just remove people's ability to understand the connection between policies and outcomes. Maybe we should just be okay with the idea that sometimes exhibition matches are tied.
Also, holy shit, Phil Mickelson just (on tape delay) hit a shot from the slope twenty yards right of the fairway that clipped the tree he was trying to bend it around, fell into the water, and skipped out of the water onto the bank! If the Cup ends up coming down to his match, wow, that'll have been one hell of a break.
Interestingly enough, the very next year there was another tie in a major exhibition event, the Presidents Cup. The Cup ended in a tie, with both the United States and the International teams winning 17 points. Tiger Woods had just defeated Ernie Els, the biggest International name, in a marquee match to avoid an outright loss of the Cup. The procedure for breaking the tie was that each team had placed one player's name in a sealed envelope, and in the event of a tie those envelopes would be opened and those two players would play sudden death until a winner had been determined. The designated champions were, of course, Tiger Woods and Ernie Els. And in some of the most compelling golf ever, as darkness crept over the Links Course at Fancourt, Woods and Els fought each other to a draw three times in a row. Three holes, all halved, and as the last light disappeared, still no result. So Captains Jack Nicklaus and Gary Player agreed to share the Cup for the next two years.
And when the two teams reconvened at Robert Trent Jones Golf Club in 2005, there had been a rule change. Like the change to the All-Star Game, its purpose was to avoid a tie. If anything, though, it does even less to accomplish that goal. Traditionally at both the Presidents Cup and the older Ryder Cup between America and Europe, as well as all other less prominent international competitions modeled on the Ryder Cup, when a match was all square after 18 holes it was over. In an individual match-play tournament you would need sudden death at that point to determine who advanced to the next round, but at these international tournaments the match is simply halved, and each team received one-half of a point. The last match of the '03 Cup had been halved, with the Woods/Els match having been second to last. Accordingly (or something), it was decided that on the last day of the Presidents Cup, halved matches would not be tolerated until the Cup had been won. Until one side had at least 17.5 points clinched out of 34, any matches all square through 18 would go to sudden death. Indeed, Phil Mickelson thought he had sunk a putt to halve his match and clinch the '05 Cup, but was informed that he needed to go to sudden death instead. It was weird.
And it also doesn't do a bloody thing to avoid a tie. Well, conditionally it either does or doesn't. If the result of the first four sessions sends the Cup into the Sunday singles with a score involving half-points, say, 12.5 to 9.5 or something, the no-halved-matches policy will prevent a tie. But suppose the score entering Sunday is 11-all. And then suppose that in half the matches, American players win the first ten holes, and in the other half of the matches, International players do the same. Then we would just have 17 points for the United States and 17 points for the Internationals, and nothing about preventing individual matches from being halved would come within eight holes of relevance. There's just nothing about forcing each match to produce a whole point for one side or the other that in the slightest prevents those points from falling equally on each side. Nothing at all, unless, as I say, it would take a non-integer score on Sunday to achieve a 17/17 tie. Today, for instance, the score was something like 14 to 8 entering the singles competition. As I'm watching the tape-delayed broadcast the score is USA 17, INT 12, with five matches still on the course. If the Internationals sweep those matches, it's a tie, right? Would we do another Woods/Els battle to the death? (Okay maybe not with Tiger, his back has tightened up on him...) There's just nothing about the "no halved matches" rule that helps us if we wind up in a flat-footed tie based on whole points for each match. Half of the time, in other words, the rule will be if anything counterproductive for its stated ends, and at best useless. This anti-tie frenzy appears to just remove people's ability to understand the connection between policies and outcomes. Maybe we should just be okay with the idea that sometimes exhibition matches are tied.
Also, holy shit, Phil Mickelson just (on tape delay) hit a shot from the slope twenty yards right of the fairway that clipped the tree he was trying to bend it around, fell into the water, and skipped out of the water onto the bank! If the Cup ends up coming down to his match, wow, that'll have been one hell of a break.
Dominating Strikes
Amateur baseball analysts are very enamored of the "swinging strike" statistic, a count of how many pitches a pitcher throws which are swung at and missed by the hitter. And for good reason! Throwing strikes is, obviously, an important thing for a pitcher; if you don't do it, you just end up walking people. But you can, strangely, throw "too many strikes," creating a situation where the hitters know they're going to get a hittable pitch and that they should therefore swing at it, and you aren't walking anyone but you're giving up hit upon hit upon hit. The solution is, of course, the swinging strike. If you have pitches that are good enough to induce swinging strikes, you can throw "too many strikes" and get away with it. They'll know a strike is coming, but not be able to do anything about it. And, of course, swinging strikes lead to strikeouts. So there are lots of strategic reasons for liking swinging strikes, but they're also just symbolically important. A swinging strike represents pure and utter dominance by the pitcher. You threw a pitch, the batter thought it was good enough to merit a swing, and yet they failed so miserably at the very most central aspect of hitting that they didn't even hit the ball at all. Not even weakly. Not even so weakly that they fouled it back. They just missed it. Poof. Fail. Pitcher 1, Hitter 0.
Called strikes do not have that same feeling of dominance. Well, not all called strikes. A first-pitch fastball down the middle is not particularly dominating. The hitter just didn't want to swing at it. We don't know whether the hitter would've hit it well had they swung at it. It also didn't do a particularly impressive job of disadvantaging the hitter. No more than, say, a foul home run. A called strike is as much a choice by the hitter as it is a demonstration of skill by the pitcher: for whatever reason, he didn't want to swing, even though the pitch was in the zone. Okay, fine. Except, sometimes that's a choice no hitter would ever make. Sometimes you know for a fact that the hitter wasn't okay with the result "called strike," that something more must have been going on. Because no hitter ever wants to take strike three called.* When that happens, you just plain lose the battle, and you have to go sit down. If the hitter had known the pitch would be a strike, and had been able to swing at it, they would have done so. We know that of every called third strike. Which means that either the pitch fooled the batter into thinking it was a ball or it did something to them that prevented them from swinging at it, though they wanted to. In other words, it necessarily involves some domination of the hitter by the pitcher. It's not as physical domination as a swinging strike; for all we know, had the hitter managed to swing they would have hit a home run off that pitch. It might have been very hittable, had it only been hit at. But it wasn't, though it needed to be.
So I'd like to see a new statistic, a slight modification of the "swinging strike" count. It is, obviously, swinging strikes plus called third strikes. That is a measure, to my mind, of a pitcher's ability to beguile hitters, to overpower hitters, and to do every combination of the two. The great pitchers often have a specific pitch that reliably gets them strikeouts looking. Greg Maddux developed the tailing fastball over the inside corner to a lefty. Anyone with a great curveball, like the ones that Justin Verlander and Clayton Kershaw have showed off in this year's post-season, will be able to drop it into the center of the strike zone, disrupting the hitter's timing and making them abandon any thought of swinging long before the pitch crosses the plate. The called third strike is the only other pitch besides the swinging strike where the pitcher unambiguously demonstrates their superiority to the hitter, and we should have a statistic that counts both methods of dominating hitters equally.
Called strikes do not have that same feeling of dominance. Well, not all called strikes. A first-pitch fastball down the middle is not particularly dominating. The hitter just didn't want to swing at it. We don't know whether the hitter would've hit it well had they swung at it. It also didn't do a particularly impressive job of disadvantaging the hitter. No more than, say, a foul home run. A called strike is as much a choice by the hitter as it is a demonstration of skill by the pitcher: for whatever reason, he didn't want to swing, even though the pitch was in the zone. Okay, fine. Except, sometimes that's a choice no hitter would ever make. Sometimes you know for a fact that the hitter wasn't okay with the result "called strike," that something more must have been going on. Because no hitter ever wants to take strike three called.* When that happens, you just plain lose the battle, and you have to go sit down. If the hitter had known the pitch would be a strike, and had been able to swing at it, they would have done so. We know that of every called third strike. Which means that either the pitch fooled the batter into thinking it was a ball or it did something to them that prevented them from swinging at it, though they wanted to. In other words, it necessarily involves some domination of the hitter by the pitcher. It's not as physical domination as a swinging strike; for all we know, had the hitter managed to swing they would have hit a home run off that pitch. It might have been very hittable, had it only been hit at. But it wasn't, though it needed to be.
So I'd like to see a new statistic, a slight modification of the "swinging strike" count. It is, obviously, swinging strikes plus called third strikes. That is a measure, to my mind, of a pitcher's ability to beguile hitters, to overpower hitters, and to do every combination of the two. The great pitchers often have a specific pitch that reliably gets them strikeouts looking. Greg Maddux developed the tailing fastball over the inside corner to a lefty. Anyone with a great curveball, like the ones that Justin Verlander and Clayton Kershaw have showed off in this year's post-season, will be able to drop it into the center of the strike zone, disrupting the hitter's timing and making them abandon any thought of swinging long before the pitch crosses the plate. The called third strike is the only other pitch besides the swinging strike where the pitcher unambiguously demonstrates their superiority to the hitter, and we should have a statistic that counts both methods of dominating hitters equally.
Saturday, October 5, 2013
Clinton '16
Seriously. That woman had bloody well better run for President.
I just got back from hearing Hillary Clinton, former Secretary of State, former Senator from New York, former First Lady of Arkansas and then of the United States, and Yale Law School Class of 1973, give a talk on the occasion of her acceptance of the Law School's Award of Merit. It was awesome. There was a moment, a few minutes after the nominal starting time, when all of a sudden the audience just started applauding. I hadn't noticed anything that would occasion it, but it didn't take me long to figure out what was going on: her husband had just walked in the side door of Woolsey Hall. He kept a remarkably low profile, sitting in a front-row seat during the talk and then doing some hob-nobbing with the important types who were sitting on the front of the ground floor. Hillary entered a little while after Bill, to even louder applause if anything. Her speech was very good: I wouldn't call it great, mostly because it wasn't anything particularly novel. It was mostly reminiscence about her time at Yale and discussion of the importance of children's welfare, the former of which she delivered with great charisma and the latter of which is obviously a very compelling subject.
What I was really struck by was, as I said, how charismatic she was. That's not exactly in keeping with her reputation, both during the 1990s and during the 2008 Presidential campaign. Of course that reputation is doubtless very influenced by various forms of sexism, along with the fact that she kind of ran into a charisma buzz-saw in '08. But it did feel like there was a difference between her whole demeanor at this event and what I remember from the last campaign. And I have a theory, not surprisingly. I think she (quite in common with Al Gore) often suffers from a sense that she can't just be herself to be successful in politics, that she needs to dissemble about her true passions and motivations. With Al Gore that means toning down the wonky environmentalism, mostly. With Hillary it's about toning down the wonky feminism. And I mean that word broadly. She certainly is not a radical feminist, not by the standards of, say, the era when she attended the Yale Law School, but her overall agenda is undeniably the expanded feminist one. Women's rights, certainly, a movement she practically embodies at this point. But also stereotypically female "nurturing" issues, like health care and children's issues. And now, as for instance in the recent speech that Dean Robert Post quoted before her talk, gay rights, which like women's rights are just, she argues, human rights.
And her particular vantage point on these issues is, I think, an uncommonly community-focused one. She wrote, of course, a book called It Takes a Village, and I think she very deeply believes that attaining all these modern social liberal values and deconstructing the old oppressive power structures, which she is very much in favor of, shouldn't result in a thoroughly individualistic and isolating society. That idea, of a true community built not around the maintenance of power imbalances and the enforcement of certain behavioral norms but around simply caring about each others' well-being, is one that sits a little bit outside the ordinary terms of the social discourse. Liberals usually focus on the part where we tear down the oppressive power structures, following Marx in not really thinking too much about what the post-revolutionary world will look like. Hillary Clinton does think about precisely that, about what to do once those problematic social structures are defeated, and about what problems their defeat might actually create. That's a tremendously important complex of philosophical issues, and political issues as well.
And I think that when Hillary lets herself be, whole-heartedly and openly, the community-oriented feminist that she is, she's got a lot of energy, and it gets infectious. But too often, I think, she's had to shy away from that, out of fear that her perspective is just not a popular one. That too many unenlightened men whose votes she needs will find her "shrill," that too many people will find her "it takes a village" theme too feminine to take seriously from a politician. And there's certainly some truth to those fears; certainly there was twenty years ago. But I think those dangers have lessened a lot of late. Social liberalism is quite genuinely dominant right now, at least social liberalism on the terms of the past couple of generations. Gender equality, challenging gender norms, etc., all of that stuff is just plain winning. And I'd like to think that it's no longer the case that a woman talking about how we need to take care of each other won't be taken seriously.
So if Hillary Clinton runs for President in 2016, which I devoutly hope she will, here's my advice to her, other than sit back, relax, and waltz to the nomination. Well, actually, that's part of it. The advice is to be herself, to let her feminist flag fly, to talk about health care and child-raising, all the things that are her true political passions. And the part about how she's got a fifty-point lead in Democratic primary polls and substantial leads over all the Republicans serves to demonstrate that there are plenty of people in this country who like Hillary Clinton's self. Yes, there are still plenty who don't like her self. The Limbaugh types, and their less-vile-but-not-much-more-enlightened cousins. But there are fewer and fewer of those, and more and more people who just plain respect Hillary for having spent decades being a badass, hyper-competent barrier-shattering stateswoman who has long since deserved to be President. She doesn't need to change anything or hide anything about herself to become President. She just needs to take a page out of her husband's book, and be her own awesome self.
I just got back from hearing Hillary Clinton, former Secretary of State, former Senator from New York, former First Lady of Arkansas and then of the United States, and Yale Law School Class of 1973, give a talk on the occasion of her acceptance of the Law School's Award of Merit. It was awesome. There was a moment, a few minutes after the nominal starting time, when all of a sudden the audience just started applauding. I hadn't noticed anything that would occasion it, but it didn't take me long to figure out what was going on: her husband had just walked in the side door of Woolsey Hall. He kept a remarkably low profile, sitting in a front-row seat during the talk and then doing some hob-nobbing with the important types who were sitting on the front of the ground floor. Hillary entered a little while after Bill, to even louder applause if anything. Her speech was very good: I wouldn't call it great, mostly because it wasn't anything particularly novel. It was mostly reminiscence about her time at Yale and discussion of the importance of children's welfare, the former of which she delivered with great charisma and the latter of which is obviously a very compelling subject.
What I was really struck by was, as I said, how charismatic she was. That's not exactly in keeping with her reputation, both during the 1990s and during the 2008 Presidential campaign. Of course that reputation is doubtless very influenced by various forms of sexism, along with the fact that she kind of ran into a charisma buzz-saw in '08. But it did feel like there was a difference between her whole demeanor at this event and what I remember from the last campaign. And I have a theory, not surprisingly. I think she (quite in common with Al Gore) often suffers from a sense that she can't just be herself to be successful in politics, that she needs to dissemble about her true passions and motivations. With Al Gore that means toning down the wonky environmentalism, mostly. With Hillary it's about toning down the wonky feminism. And I mean that word broadly. She certainly is not a radical feminist, not by the standards of, say, the era when she attended the Yale Law School, but her overall agenda is undeniably the expanded feminist one. Women's rights, certainly, a movement she practically embodies at this point. But also stereotypically female "nurturing" issues, like health care and children's issues. And now, as for instance in the recent speech that Dean Robert Post quoted before her talk, gay rights, which like women's rights are just, she argues, human rights.
And her particular vantage point on these issues is, I think, an uncommonly community-focused one. She wrote, of course, a book called It Takes a Village, and I think she very deeply believes that attaining all these modern social liberal values and deconstructing the old oppressive power structures, which she is very much in favor of, shouldn't result in a thoroughly individualistic and isolating society. That idea, of a true community built not around the maintenance of power imbalances and the enforcement of certain behavioral norms but around simply caring about each others' well-being, is one that sits a little bit outside the ordinary terms of the social discourse. Liberals usually focus on the part where we tear down the oppressive power structures, following Marx in not really thinking too much about what the post-revolutionary world will look like. Hillary Clinton does think about precisely that, about what to do once those problematic social structures are defeated, and about what problems their defeat might actually create. That's a tremendously important complex of philosophical issues, and political issues as well.
And I think that when Hillary lets herself be, whole-heartedly and openly, the community-oriented feminist that she is, she's got a lot of energy, and it gets infectious. But too often, I think, she's had to shy away from that, out of fear that her perspective is just not a popular one. That too many unenlightened men whose votes she needs will find her "shrill," that too many people will find her "it takes a village" theme too feminine to take seriously from a politician. And there's certainly some truth to those fears; certainly there was twenty years ago. But I think those dangers have lessened a lot of late. Social liberalism is quite genuinely dominant right now, at least social liberalism on the terms of the past couple of generations. Gender equality, challenging gender norms, etc., all of that stuff is just plain winning. And I'd like to think that it's no longer the case that a woman talking about how we need to take care of each other won't be taken seriously.
So if Hillary Clinton runs for President in 2016, which I devoutly hope she will, here's my advice to her, other than sit back, relax, and waltz to the nomination. Well, actually, that's part of it. The advice is to be herself, to let her feminist flag fly, to talk about health care and child-raising, all the things that are her true political passions. And the part about how she's got a fifty-point lead in Democratic primary polls and substantial leads over all the Republicans serves to demonstrate that there are plenty of people in this country who like Hillary Clinton's self. Yes, there are still plenty who don't like her self. The Limbaugh types, and their less-vile-but-not-much-more-enlightened cousins. But there are fewer and fewer of those, and more and more people who just plain respect Hillary for having spent decades being a badass, hyper-competent barrier-shattering stateswoman who has long since deserved to be President. She doesn't need to change anything or hide anything about herself to become President. She just needs to take a page out of her husband's book, and be her own awesome self.
Tuesday, October 1, 2013
It's Staggering How Wrong McClesky Is
I have been given the unfortunate task, for my constitutional law class, of coming up with a defense of McClesky v. Kemp, the case in which the Supreme Court rejected, 5-4, challenges to death penalty laws on the grounds that they were applied in racially unequal ways. Yeah. Anyway, the article that I'm reading about the case and its history suggests that part of Justice Powell's motivation in being that fifth vote was that the statistics showed discriminatory application of the death penalty mostly related to the race of the victim in a murder, not that of the defendant. The idea, I suppose, is that a black defendant is not being discriminated against on account of his race if he is sentenced to death because he killed a white guy, whereas someone else, white or black, who killed a black guy is just imprisoned for a mighty long time. But there's a deep historical perversion here. If you read the Fourteenth Amendment the way people would have before the Slaughter-House Cases eviscerated the Privileges or Immunities Clause, most of the job of guaranteeing against the invasion of substantive rights by law on discriminatory grounds had already been done. The peculiar function of the Equal Protection Clause, however, was to prevent Southern states from applying facially neutral laws in discriminatory ways. Specifically, to prevent them from having a de facto policy of acquitting, or not even indicting, white men who killed blacks, while throwing the book at blacks who killed whites. Or, to put it another way, to prevent the exact thing the NAACP's statistics showed in McClesky. The exact same thing. Okay, we don't generally let the killers of black people just plain walk of out court these days, but we let them live, as we (or at least those states that still ever execute anyone) don't those who kill whites. So yeah, sure, maybe the defendants aren't being denied the equal protection of the laws. But the victims are. Unfortunately, they can't exactly bring suit: they've been murdered, is kind of the whole point. Someone needs to be able to object, and it has to be people sentenced to die for killing whites. Honestly I think a white man so sentenced would have a valid claim, too, but certainly a black one. One way or another, though, I know that for death penalty laws to survive because their unequal application is precisely the kind envisioned by the Equal Protection Clause as most problematic is deeply perverse, and I can only hope that the next President Clinton is able to appoint that fifth Justice to get rid of the whole system.
What I'd Like to See
Republicans are, as we all know, currently refusing to pass an appropriations bill keeping the government funded. "Why are they doing this?" you might ask, if you were from another planet or something. Here on earth we know they're doing it because they want to repeal/defund/delay/whatever "Obamacare," also known as the Patient Protection and Affordable Care Act. In normal-person speak, one translation of that sentence would be that they are inflicting this suffering upon the world in service of the cause of denying health care coverage to poor people, and protecting rich people from marginally higher marginal taxes. To most of us, that sounds bad! But Republicans, to their, I dunno, credit, don't put it that way. They say they're doing this because Obamacare is destroying the economy. So here's what I'd like to see:
Will somebody, anybody, please just ask them how Obamacare is ruining the country?
Like, literally, go up to John Boehner or Ted Cruz or Mike Lee or Paul Ryan or whoever and just say, "how is the Affordable Care Act hurting the economy?" And when they say something like "it's destroying jobs" or whatever, keep asking, how? And don't stop until you've got an answer at least as concrete as, say, the standard Democratic explanation for how austerity is destructive in a depressed economy.
Oh wait, you won't get that. Because there isn't one. So maybe I should specify an alternate termination condition, lest this hypothetical reporter be stuck saying "but how?" forever. Let's say, until you get that kind of answer, or, more realistically, they a) tell you to fuck off, or go fuck yourself, or whatever; or b) some non-profane version of (a). In other words, until they implicitly concede that they haven't got an answer. I can't think of any other end-point. Behind all the nonsense about "job-killing regulations" or whatever, there just isn't any specific causal mechanism in mind. And that's stunning. Republicans have shut down the United States government and are prepared to create a situation in which the government has no legal way to pay its legal obligations, with the possible result of massive and irreversible global financial calamity, on the grounds that all of that is worth it to stop one terrible law that's destroying the country. And they cannot tell you how the law is destroying the country. They can only assert that it is. It's staggering.
Will somebody, anybody, please just ask them how Obamacare is ruining the country?
Like, literally, go up to John Boehner or Ted Cruz or Mike Lee or Paul Ryan or whoever and just say, "how is the Affordable Care Act hurting the economy?" And when they say something like "it's destroying jobs" or whatever, keep asking, how? And don't stop until you've got an answer at least as concrete as, say, the standard Democratic explanation for how austerity is destructive in a depressed economy.
Oh wait, you won't get that. Because there isn't one. So maybe I should specify an alternate termination condition, lest this hypothetical reporter be stuck saying "but how?" forever. Let's say, until you get that kind of answer, or, more realistically, they a) tell you to fuck off, or go fuck yourself, or whatever; or b) some non-profane version of (a). In other words, until they implicitly concede that they haven't got an answer. I can't think of any other end-point. Behind all the nonsense about "job-killing regulations" or whatever, there just isn't any specific causal mechanism in mind. And that's stunning. Republicans have shut down the United States government and are prepared to create a situation in which the government has no legal way to pay its legal obligations, with the possible result of massive and irreversible global financial calamity, on the grounds that all of that is worth it to stop one terrible law that's destroying the country. And they cannot tell you how the law is destroying the country. They can only assert that it is. It's staggering.
You've Got It Backwards, Paul Ryan
Paul Ryan (R-WI) is right about something. No, really! Well, he's kind of right about it. Let's say he's right about the magnitude, but wrong about the direction. Or something.
Here's what he's right about: the ongoing government shutdown should, in its resolution, be connected to the upcoming debt ceiling we-can't-cope-with-the-fact-that-we've-breached-this-months-ago problem. Here's what he's got backwards: he thinks the debt ceiling should resolve the shutdown. That is, his expectation is that the crisis of the shutdown all by itself won't be enough to force an agreement, and that a resolution will only come as part of the negotiations around the debt ceiling in a couple of weeks. Or, to put it another way, he as a leader of the Republican Party doesn't plan to stop being so insane about everything just because of a little ol' shutdown, and he plans on stringing things out long enough for the threat of an imminent debt ceiling calamity to make Obama back down. One manufactured crisis isn't getting it done, so he's gonna try for two of 'em piled on top of each other.
What should happen, of course, is that sometime in the next few days pressure from constituents should force Republicans to back down. Apparently there's polling showing a nine-point lead in the generic Congressional ballot for the Democrats; if that were to happen in November 2014, say hello (again) to Speaker Pelosi. And probably a ton of Democratic state legislatures who would hopefully mid-decade redistrict the shit out of things. Republicans, in other words, ought to start getting scared. And when they're sufficiently scared, Obama and the Democrats must say to them, we're not letting you out of this until you take the other ticking time bomb off the table. In other words, when they pass a continuing resolution to end the shutdown, it had bloody well better raise or eliminate or suspend the statutory debt limit. And no, that isn't unreasonable; if a "clean" CR passes, without dealing with the debt limit, then the whole shutdown won't have settled anything, and the whole "Republicans threaten to blow up the world in a revolutionary attempt to upend the entire constitutional order" thing will still be very much alive. And that's the problem, not the shutdown. I mean, it's a problem too. Tells you something about the times we live in that a government shutdown is not the problem right now. But it really isn't, and if it causes Republicans to get scared enough that they have to surrender, that surrender had better deal with the actual problem.
So yes, Paul Ryan, the debt limit and the shutdown should get resolved together. But that's not because the shutdown should keep going until it gets reinforcements from the debt ceiling crisis, forcing Obama to enact the Romney agenda once and for all. It's because once your side is forced to concede, and to put down the gun, it should have to hand over both of its guns, especially the bigger one. There's no point half-disarming a hostage taker.
Here's what he's right about: the ongoing government shutdown should, in its resolution, be connected to the upcoming debt ceiling we-can't-cope-with-the-fact-that-we've-breached-this-months-ago problem. Here's what he's got backwards: he thinks the debt ceiling should resolve the shutdown. That is, his expectation is that the crisis of the shutdown all by itself won't be enough to force an agreement, and that a resolution will only come as part of the negotiations around the debt ceiling in a couple of weeks. Or, to put it another way, he as a leader of the Republican Party doesn't plan to stop being so insane about everything just because of a little ol' shutdown, and he plans on stringing things out long enough for the threat of an imminent debt ceiling calamity to make Obama back down. One manufactured crisis isn't getting it done, so he's gonna try for two of 'em piled on top of each other.
What should happen, of course, is that sometime in the next few days pressure from constituents should force Republicans to back down. Apparently there's polling showing a nine-point lead in the generic Congressional ballot for the Democrats; if that were to happen in November 2014, say hello (again) to Speaker Pelosi. And probably a ton of Democratic state legislatures who would hopefully mid-decade redistrict the shit out of things. Republicans, in other words, ought to start getting scared. And when they're sufficiently scared, Obama and the Democrats must say to them, we're not letting you out of this until you take the other ticking time bomb off the table. In other words, when they pass a continuing resolution to end the shutdown, it had bloody well better raise or eliminate or suspend the statutory debt limit. And no, that isn't unreasonable; if a "clean" CR passes, without dealing with the debt limit, then the whole shutdown won't have settled anything, and the whole "Republicans threaten to blow up the world in a revolutionary attempt to upend the entire constitutional order" thing will still be very much alive. And that's the problem, not the shutdown. I mean, it's a problem too. Tells you something about the times we live in that a government shutdown is not the problem right now. But it really isn't, and if it causes Republicans to get scared enough that they have to surrender, that surrender had better deal with the actual problem.
So yes, Paul Ryan, the debt limit and the shutdown should get resolved together. But that's not because the shutdown should keep going until it gets reinforcements from the debt ceiling crisis, forcing Obama to enact the Romney agenda once and for all. It's because once your side is forced to concede, and to put down the gun, it should have to hand over both of its guns, especially the bigger one. There's no point half-disarming a hostage taker.
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