ON THE ROAD
I'm making a quick speech-making trip to California and will be back on Friday. No blogging in the meantime and probably no email either. I'm still working on that OS X transition problem.
Dynamist Blog
NOT BRAVE
Bill McKibben's new book, Enough, is said to be quite well written, as one would expect from a famously literary author. The book is an attack on genetic engineering of humans. Those who read The End of Nature (or TFAIE) may recall that McKibben wrote in that earlier book that "The prospect of living in a genetically engineered world sickens me." Now he's written a whole book about that sickening prospect.
I haven't read the book (I've ordered it), so I can't critique the prose and I can only infer the argument. But even without reading the book, I'm 100% sure it isn't "brave"--the favorite adjective of its reviewers.
I first noticed this annoying tic in David Gelernter's Wired review, which calls Bill McKibben's new book "brave and luminous." Not really a surprise from Gelernter, whose prejudices the book surely confirms. But what about Zack Lynch, who writes Corante's Brainwaves blog. Where did he get the braveness meme? (Braveness reference aside, Zack's post is worth reading.)
This is an abuse of language. McKibben's book may be sincere, forceful, impassioned. It may be well written. But it is not brave. It will offend absolutely no one who matters in Bill McKibben's world. To the contrary, it will reinforce the righteous self-image of those who promote his career. By writing this book, McKibben can count on attention and praise. That doesn't make him a coward. But neither does it make him brave--or the reviewers brave for praising him.
And if those who disagree with him won't do so loudly in public, because they're intimidated by his fame and style or want to placate his fans, well, "brave" isn't the word for them either.
Update: Here's an excerpt from the book. Here's an excerpt from a lecture McKibben gave at Tufts Here are blurbs (including predictable praise from Kirkus, Publisher's Weekly, and Michael Pollan, an editor at the NYT Magazine) and book tour info.
UPLIFTING TV
Demonstrating why lots of privately funded cable stations can serve a diverse audience better than a lavishly funded government network, the BBC is announcing its intention to cut back on "lifestyle" shows like Changing Rooms and What Not to Wear in order to placate critics who think it isn't high brow enough. Perhaps to avoid a deluge of criticism from interior-design fans, the BBC news report is extremely vague about just what will be cut.
Here's a related article I wrote for Forbes about PBS. (It even has a sodomy angle, for those who can't get enough.)
EQUAL PROTECTION
My friend David Link, an L.A. lawyer who has followed these issues for a long time, writes in response to my earlier posts about Hugh Hewitt's arguments (David's note was part of the post that my browser ate on Friday):
Not to further complicate an already complicated discussion, but there is actually one more debate going on here than you or Hugh note. Hugh points out (1) the morality of same-sex relationships. You add (2) the political debate, which I'm sure Hugh does not disagree is an issue. He mentions the Supreme Court case, but that actually includes two issues, only one of which he mentions. He says the court ought not to strike down the Texas law based on the reasoning in Bowers v. Hardwick. But Hardwick dealt with a single issue -- how far the constitution's right to privacy went. As that case held, the liberty protected by the constitution had been interpreted to include privacy in certain sexual and family matters, and the majority held that however far that right went, it did not include consensual, adult, private homosexual sodomy. Issue one in the current case is whether that is still good law.
However, this case involves another issue that is far more important to lesbians and gay men -- the application of the constitution's explicit equal protection clause -- something Bowers did not address, and Hugh surprisingly leaves out of his discussion. The Georgia sodomy law in Bowers did not distinguish between homosexual sodomy and heterosexual sodomy. Thus, as one of the dissents pointed out, it was a mystery why the majority went off on homosexuals. While the plaintiff in that case was, in fact, gay, under the law at issue, it made no difference. It was as if the majority were to decide, given an Asian defendant in a murder case, that they would craft a rule for Asian murder, or Asian Miranda rights, or Asian due process.
The Texas law throws open that bizarre aspect of Hardwick. Texas permits heterosexuals to engage in all the sodomy they want, and prohibits it only for lesbians and gay men. This brings the equal protection clause into play. One of the fundamental aspects of our democracy is that a majority may not impose on a minority rules it does not impose on itself, unless there is a good reason. While the level of scrutiny a court will give to such laws varies, at the very least the majority must have a rational basis for imposing rules on minorities it does not choose to impose on its own members. Thus, the court may very well decide that, while states may continue to prohbit sodomy despite the liberty and privacy jurisprudence, they cannot prohibit it for one group and not for another -- a state sodomy law must apply to all citizens or none under the equal protection clause.
While the equal protection rationale would do, I prefer the court taking the first route and overturning Bowers v. Hardwick. If the constitution's protection of liberty does not include protecting citizens from the government's intrusion into the privacy in one's own bedroom, then it isn't a very meaningful sort of liberty in one of the most central spheres of a person's life. And that applies to heterosexuals as well as homosexuals. One of the things that was the most disturbing to me about Senator Santorum's remarks on sodomy was that, while the AP reporter included that very unusual parenthetical (gay), it is not clear to me that that is what the Senator actually said, something Andrew Sullivan has pointed out. The transcript of the remarks is as follows:
"And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything."
This suggests to me, as does the rest of the transcript, that the remarks apply to all forms of sodomy or non-procreational sex. The Senator said, after all, that he does not believe the right to privacy exists in the constitution at all. For some reason, whenever sodomy comes up, we immediately think homosexual sodomy, and somehow make heterosexual sodomy invisible. That's exactly what the majority did in Bowers v. Hardwick, never even mentioning heterosexual sodomy in a case about a law that made no distinctions. That made the Lawrence v. Texas case necessary -- to point out how distorted our legal discussion comes when homosexuality is involved.
I clearly disagree with Hugh as a legal matter on the privacy/libertyargument. But by leaving out the equal protection argument, he fails to say why, if Bowers v. Hardwick is upheld, it would not -- and should not -- also apply to him.
That equal protection argument might go further than some of its advocates want. The principle calls into question "hate crime" laws. How, if we're equally protected, can you punish someone more severely for gay bashing than random citizen bashing?
MORALITY OR MITZVOT?
Devout Christians like Hugh have a tendency to equate equate morality, which is universal, with mitzvot (or taboos), which are particular and serve to establish and reinforce ties to a tribe or community of faith. As economist Laurence Iannaccone has written, such strictures are important in maintaining coherence among conservative religious groups. From my NYT column on his work:
Among the questions he has explored are why strict churches -- those that in some way limit members' activities outside the church -- are strong, and how conservative churches adapt when social norms become more liberal....
Strictness can manifest itself in dietary restrictions, distinctive clothing, geographical separation or prohibitions on activities like dancing or drinking. It can also entail such requirements as sending one's children to the church school, observing unique holidays or attending Wednesday night services in addition to Sunday services.
Joining a strict group may sound irrational when there are less costly alternatives. "Why become a Mormon or a Seventh-day Adventist" -- let alone join a so-called cult -- "when the Methodists and Presbyterians wait with open arms?" Professor Iannaccone wrote in "Why Strict Churches Are Strong," a 1994 article in the American Journal of Sociology.
His answer is that high costs screen out "free riders," deadbeat members who would otherwise enjoy a church's benefits without contributing energy, time and money. If everyone in the group has to pay a visible price, free riders will not bother to join and a committed core will not end up doing all the work. The group may attract fewer members at first, but it will be stronger over time. Distinctiveness also gives people a reason for affiliation and a sense of camaraderie. Why join a religious group if it is identical to the rest of society?
As tolerance for gays has grown, expressing public disapproval of homosexuality (regardless of one's views on sodomy laws) has become an important marker of traditionalist Christian faith. That's why Rick Santorum is not going to turn into Trent Lott, at least not any time soon. Jim Crow is dead, but a lot of voters still identify with Santorum's statements, and with his willingness to make them. Ostracizing Santorum only encourages them, which is why it's important to ask politicians the fundamental policy question: Regardless of what you believe in your private life, what should the criminal law be?
SILENT CONSTITUTION
In his response to Eugene Volokh and me, Hugh Hewitt argues that sodomy laws are just the normal application of "morality" to law. Hugh's a lawyer, so it's understandable that he's trying to turn the Santorum controversy into a strictly constitutional question. And he lives in California, where the legislature is more likely to pass a law requiring sodomy than banning it, so I can understand why he thinks Texas criminal laws are no big deal. He doesn't believe that where the Constitution is silent, we have no rights:
Moral choices underlay every single statute in the land. The Constitution prohibits some of these choices from informing law-making, such as law that would seek to implement the moral vision of the first few of the Ten Commandments. But the Constitution is largely silent on the issue of sexual relations. One example of an exception: Laws prohibiting interracial marriage, for example, have been struck down as violating the 14th Amendment).
He declares that "Opponents of the effort to overturn the Texas anti-sodomy statute are opponents of a convenient anti-federalism on matters sexual." As one of those opponents I can emphatically state that my support for individual over state rights is not limited to "matters sexual." On this matter, as on matters of free speech and economic liberties, I prefer the legal approach of the Institute for Justice, which filed an amicus brief in Lawrence v. Texas. From the press release:
The State has no more power to criminalize consenting adult sexual conduct than it does to regulate what I make for dinner or what time I go to bed. It's hard to imagine a more stark example of invasive government power than the power to go into bedrooms and tell consenting adults which exact activities they may and may not engage in. We believe that government power is limited, and this case is one example of government stepping over--far over--the line of proper authority.
Would Hugh apply his view of federalism to state laws requiring women to wear hijab or all businesses to close on Saturday? Or is he implicitly assuming that Christians or secularists will always constitute the majority?
The balance between federalism and individual liberty is a difficult one. Some of the most interesting work on the subject (though not, to my knowledge, on "matters sexual") is done by Michael Greve's Federalism Project.
UPGRADING?
After an ill-timed crash ate a blog posting late Friday afternoon, I finally got the Jaguar CD out of the box and resolved to upgrade my Mac. That means I spent much of the weekend in the process of switching from Mac OS 9.2 to OS X.2 and to the similarly upgraded version of Office. All this "new and improved" business means learning how to do basic things like transfer my email and browser favorites to the new system (a success--thanks in part to a visit to the Apple store a few blocks away) and to get my printer to work (not yet) and my PDA to sync (not yet). I've also had to delete about 2,500 emails, just to get enough disk space to make the switch. Eventually I'll have plenty of disk space, but there's a period during the changeover where you need a lot of duplicate files.
Advice: Don't make this switch unless you have plenty of time and hard disk space.
Warning: After soaking up all this weekend time fooling with my computer, I haven't had time for blogging. Sorry.
HUGH'S REPLY, AND MINE
Hugh Hewitt sends an email in response to my earlier posting, SINFUL = ILLEGAL?:
I think you may have missed my point, and many people are missing the fact that there are concurrent debates running here. The first is on the morality of same-sex relations. You accurately quoted my view on that. The second is on the Supreme Court case: The Court ought not to strike down the anti-sodomy statiute because it is clearly not unconstitutional, as Bowers demonstrated. Santorum's argument was that the logic of any such holding would have to be applied to other currently prohibited consensual sexual activity between adults. Eugene Volokh, for example, readily admits this and welcomes it. I don't. These are legislative decisions, made in a context of a federal system that demands respect from the court. Turning every debate into a fight over the morality of same-sex relations, while simplifying the debate into one of legislating against sin, overlooks the enormous dangers to liberty inherent in investing a majority of nine unelected judges with life tenure with re-write authority over any state law they disagree with. Cheers Hugh
My emailed reply to Hugh:
Actually, there are THREE debates going on. One is constitutional. One is moral. And the third, to which I addressed myself, is political: Assuming no constitutional limits, what ought the criminal law to be? You're dodging that question, but Santorum isn't. That's the question that goes to the heart of the relation between religious teachings and the role of the state.
The policy question is also the one to which Andrew Sullivan has primarily addressed his remarks. It's far more interesting--and, in my view, much easier--than the constitutional question. But it's the question conservative pundits mostly want to dodge.
GOOGLE SEARCHES
My favorite recent Google search from the referral logs: "'middle age' female blog." That definitely would be this blog.
As for whether Jessica Lynch was tortured--the major source of referrals now that the "Is Rumsfeld Jewish?" (no) wave has subsided--the evidence increasingly suggests no, but nobody's saying for sure.
Another searcher wants to know if Fareed Zakaria is married. Yes, he is. I don't, however, know which eating club Donald Rumsfeld '54 belonged to at Princeton. A possibly unreliable Internet site says Cap & Gown.
Dynamist.com: a middle-aged female blog and your one-stop source of political celebrity info.
BLOGGER ARREST
Jeff Jarvis has a good set of links on reaction to the arrest of Iranian blogger Sina Motallebi. What's particularly scary about the arrest is that Motallebi wasn't especially political. Here's a description of the blog's contents:
[H]is last few posts before being summoned were (in order) about Iranian newscaster's inability to pronounce names properly, retirement of the "out of this world champion" Michael Jordan, his son's teething problems and a reprint of an already published statement by Kambiz Kaheh, a film critic arrested on bogus charges of distributing illegal videos. Hardly risky material.
The most comprehensive way to follow the story, at least in English, is at Hoder.