Posner on Scalia: The Flaws in Constitutional Originalism

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Richard A. Posner, a judge and economist, has written a very good review of a recent book by Antonin Scalia.

It is a very interesting (if long) piece, and well worth your time. Posner argues that textual originalism is impotent – if not entirely illusory – because, absent interpretation, texts have no meaning. Recourse to dictionary definitions doesn’t redeem the paradigm either: they are decided by committee, through inevitably flawed processes of interpretation.

Hewing to a concept like textual originalism is at worst a poorly veiled attempt to disguise ideologically motivated decision making in a filigree of intellectualism. It is at best a trap-door to hypocrisy and incoherence.

Idiot Bikers Plan Idiotic “Protest” at Arizona Islamic Community Center

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Jon Ritzheimer, sporting a t-shirt expressing his nuanced views on Islam.

A pair of constitutional scholars and civil rights activists, excuse me, aggressively idiotic bigots – Jon Ritzheimer and Flash Nelson – are apparently organizing a demonstration outside a Phoenix, Arizona Islamic Community Center. Participants are encouraged to bring guns to this “peaceful” protest, in order to defend their First Amendment rights. The organizers plan a Muhammad Cartoon Contest, which will surely inflame no unsavory passions among the targets of the protest, who will be in Friday Prayers when the event takes place.

Ostensibly, the event is meant to protest the actions of Elton Simpson and Nadir Soofi, who were gunned down during an assault on a Muhammad Cartoon Contest near Dallas, Texas. However, it is unclear how pestering members of the Phoenix Muslim community will accomplish this end. True, Simpson at least was thought to be sympathetic to the Islamic State, and both Simpson and Soofi were affiliated with the Islamic Community Center in Phoenix, AZ. Moreover, both men were guilty of attempting to use violence to silence views they found offensive – a crime hardly diminished by the repugnance of the views they were trying to hush. But the relationship between the actions of Soofi and Simpson, whose actions were quite effectively and irrevocably protested by the police officer who killed them, and the people they associated with at the Arizona Community Center, is not entirely clear.

To be clear, I find the argument  that Islamic Extremism can be somehow divorced from Islam unconvincing. Violent jihad seems to be well within the parameters of a coherent interpretation of Islamic texts. In concert with sufficiently motivating levels of social and political disenfranchisement, the extreme ideology derived from such exegesis contributes to violent action. That being the case, it is nonetheless ridiculous to use the actions of a small minority of Muslims to paint the entire Islamic community as violent, or to implicate all Muslim people in the crimes of said minority. A reasoned interpretation of Islamic theology may grant validity to violent jihad. But the same can be said of Christian theology and similarly repellent behaviors, like homophobia (strongly encouraged in Leviticus 18:22 and 20:13) and slavery (condoned in Genesis 9:25, Leviticus 25:44-46). The fact is that religious fundamentalism breeds nastiness. People who take religious texts seriously, as literal representations of the will of an omnipotent creator, and behave accordingly, tend to be at the very best uncompromising and reactionary, and at the very worst intolerant and militant. Yet it does not make sense to condemn an entire religious community based on any of the myriad notions that can be derived from their central texts.

The point is that the entire affair seems more like a puerile attempt to goad the people who pray at the Islamic Community Center on Friday into some kind of unpleasant response and otherwise aggravate tensions between intolerant white trash and members of a generally peaceful religious minority. This suspicion is lent credence by the fact that Ritzheimer is a viciously anti-Islamic xenophobe, as evidenced by material presented on his Facebook profile. The fact that Simpson and Soofi were somehow affiliated with the Islamic Community Center offers no justification for the harassment of their coreligionists. A brief example might better illustrate my point: most anti-gay bigots in the United States justify their bigotry through their religious beliefs. Still, it would make little sense for members of the LGBTQ community and their supporters to protest outside a church where a particularly loathsome homophobe once went for his weekly dose of Jesus, particularly if that loathsome homophobe is presently with Jesus in the afterlife (read: dead, no longer capable of receiving or processing sensory stimuli, and otherwise inanimate).

I think the best we can hope for here is that the members of the Islamic Community Center continue to demonstrate a level of prudence and maturity inaccessible to the likes of Ritzheimer and the clowns that join him tomorrow. Usama Shami, president of the Community Center, has said: “It will be the same as every Friday evening and we’re going to tell our members what we’ve told them before: not to engage them. They’re not looking for an intellectual conversation. They’re looking to stir up controversy and we’re not going to be a part of it.” The clearly antagonistic nature of the protests reveals a group of people itching for a fight. Let’s hope they’re disappointed.

A Suitable Response to Indiana and Arkansas’ Anti-LGBT Maneuvering

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Prominent fuckwit and bigot, Indiana Gov. Mike Pence.

With a new wave of conservative initiatives meant to preserve people’s putatively god-given right to discriminate against people who are different from them cropping up across the United States, it seems time to revisit an issue that is growing exceedingly tiresome. The basic thrust of this recent batch of state-level legislation, enacted in Indiana and Arkansas and under work elsewhere, is that individuals have a right to disobey or ignore laws that would have them violate their religious ethics.The practical, real-world manifestation of these laws is anti-LGBTQ discrimination.

Let’s first take a moment to laugh at the very notion that anything like a coherent set of “religious ethics”, as a matter of actual practice, exists, rendering the boundaries of what does and does not count as protected behavior either infinite or sufficiently preferential to mark the legislation a clear violation of the Establishment Clause. Now that everyone has had a good chuckle, let’s pretend to take these laws seriously and suggest (as I’ve done elsewhere) that they come with a litmus test. Business owners can refuse to serve or employ any individual on religious grounds if – and only if – their refusal is consistently in strict adherence to a literal interpretation of the laws codified in whatever religious text they point to as a basis for their ethical decision-making.

This mitigates the slippery-slope problem of potentially infinite religious-based exclusions. Further, it would be the best means of proving that the business owner’s discriminatory practices are motivated by piety, rather than bigotry. Perhaps best of all, it would have the effect of driving every single one of these fuckwits – either by virtue of their senseless religious zealotry or savage bigotry – rapidly out of business.

Let’s not mince words here: I’m all for building an inclusive society, but improving that society demands that we brook no obstruction from its most regressive elements. Those among us who support universal equality shouldn’t feel burdened with a need to practice universal tolerance. People have a right to practice religion as they will in private, but when their beliefs trample the rights of others and become a millstone slowing social progress, it becomes practically incumbent upon the rest of us to ridicule, condemn, and ostracize them until they have been driven from our ranks and left to wallow in the shameful recesses of history with communist witch-hunts (and real witch-hunts, for that matter), Jim Crow laws, and slavery.

So, by all means, refuse to serve or employ people on religious grounds. Just be consistent in doing so. Best of luck in finding customers that aren’t in some way in violation of the Bible’s myriad, often nebulous, and occasionally contradictory strictures.

50 Lies in 6 Seconds: Fact Checking Professional Fabulists

Fox News is the United States’ archetypal Orwellian lie-machine, spinning a convoluted, ignorance and paranoia fueled narrative of persecution and social degeneration for its audience of old white people. Indeed, a full 61% of  the Fox News claims fact-checked by politfact.com have been rated mostly false or worse, making it the most dishonest network news source by a considerable margin. Sadly, because its demographic is comprised entirely of people who would rather watch a carefully crafted narrative that confirms their ideological preconceptions than learn about what is actually going on in the world, fact-checking Fox News is like trying to extinguish the sun by pelting it with five gallon buckets of water. In other words, it’s a Sisyphean task wrapped in a Gordian Knot. For everyone with even a toe-hold in the realm of fact-based opinion, the idea that Fox News is a stunning vortex of misinformation has become an unspoken truism. It’s practically boring. Everyone knows it, and considering the obvious intransigence of its audience, it hardly seems worth repeating it.

That said, Jon Stewart’s rebuttal to Fox’s recent spate of (surprise, surprise) entirely baseless claims, this time pertaining to his own retirement, was priceless. I’ve tried and failed to embed it here, so you’ll just have to undertake the odious task of following the link. The folks at the Daily Show have also put together a nifty little Vine: 50 Fox News lies in 6 seconds (which politifact.com has double checked).

GOP Presidential Hopefuls Resoundinngly Reject Science and Constitutional Values

A recent Salon article provides a synopsis of the views the GOP’s current 2016 presidential hopeful hold regarding evolution. In aggregate, they take a bold stance against science and reason, which should come as a surprise to absolutely no one. Jeb Bush holds the most enlightened view by a considerable margin, accepting evolution on the one hand and arguing that it should not be a part of school curricula on the other. Compared to his fellow presidential hopefuls, this is a remarkably intelligent and nuanced position, but it still ultimately boils down to sycophantic pandering to the far-right religious zealots the GOP depends on to remain competitive. That anyone holding any of the views expressed by the GOP’s potential 2016 candidates – even Bush’s milquetoast appeals to the lowest common denominator – has some chance of securing the presidency is exceptionally disheartening.

The worst offenders – Ben Carson, Mike Huckabee, Rick Perry, and Rick Santorum – have adopted a position in abject opposition to all measures of rationality and evidence, essentially casting their lot with emotional/ideological preferences rooted in flimsy interpretations of ancient myths and, I suspect, deep fears regarding their own cosmic insignificance. The sad thing is that there is a significant proportion of the U.S. electorate that finds this sort of vehemently stubborn,  fact-averse religious fanaticism appealing. According to a recent Pew poll, some 31% of Americans reject the reality of human evolution. This is disconcerting, but offset by the 35% or so (depending on who you ask – Gallup comes up with a different number) who recognize that evolution by purely natural means in the best explanation for human origins. Still, the 31% who more or less reject everything the best evidence and most coherent theory tells them regarding the origins and diversity of life on the earth should not be written off.

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Pew survey results on acceptance of human evolution. Ideally, the public views would mirror those of AAAS scientists.

Not being a Jedi master/mind reader, I can only speculate about the motivations behind the GOP candidates’ stated beliefs. I get the impression that the four gentlemen mentioned in the previous paragraph aren’t being anything less than genuine. They are religious fanatics, pure and simple. The actual beliefs of the other candidates are harder to discern, clouded as they are in the nebulous miasma of obfuscation and pandering that seems to follow career politicians wherever they go. All of the candidates endorse some breed of “teach the controversy” nonsense (read: allow Christian creation myths to be taught in science class), and obsequious attention to the right-wing base seems like a plausible motive. Though the 31% of the population that rejects evolution aren’t likely to decide an election on their own, it’s worth noting that their votes aren’t evenly distributed. Results of a Gallup poll indicate that 58% of Republicans endorse the Creationist view that humans were created by god within the last 10,000 years, as opposed to 41% for Democrats. Consequently, pandering to anti-evolution religious zealots is essentially mandatory for anyone hoping to secure a chance at the Republican presidential nomination. The relationship between religious belief and party affiliated tells a similar story. 64% of white Protestants reject evolution; 67% of white Evangelical Protestants are registered as Republicans. The exact degree to which these two subsets of the white “I find reality intensely unsettling” demographic overlap is unclear, but I suspect it is considerable.

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In any event, the outlook for modern Republicans with presidential aspirations is bleak: grovel at the feet of superstitious troglodytes or lose. But perhaps I’m being too partisan in my analysis. Certainly the fact that Republicans can’t win an election without pandering to the one of the most stubbornly ill-informed subsets of the modern American populous should be properly viewed as stain on their party: the only way they can maintain their brand is to sell snake-oil to eager dupes. More disconcerting, however, is that any member of any party has to invest energy in either placating or pleasing society’s most grossly ignorant factions. No one who expresses any of the views enumerated in the Salon article should have a chance of becoming the president of the United States – or any other 21st century, for that matter. The answer, of course, is not to disenfranchise the ignorant. Rather, it is to work to eradicate ignorance by remedying the flaws in our educational system and the broader social milieu in which it rests that have allowed that ignorance to persist. In a supposedly advanced, modern society with near-instant access to endless information, the proportion of the population that rejects evolution, believes GMOs are unsafe, thinks vaccinations are dangerous, or any number of the hair-brained, lunatic fringe notions that have taken up residency in the popular consciousness should be 5% or less.

From this perspective, there is some reason to be hopeful. The proportion of the population that accepts naturalistic evolution is up to 19% (from 15% in 2012) even as the percentage of the population that takes the nonsensical creation myths of the Bible serious has dropped to 42% (from 46% in 2012). Slims improvements, to be sure, but I’ll take them enthusiastically. Viewed through properly rose-tinted glasses, this is a silver-lining that can be magnified, unfolding into a future in which presidential candidates don’t have to pander to religious zealots, and sincere religious nuts don’t even register as even far-shot options for the presidency. Maybe it’s a long shot, but I’m not quite prepared to abandon hope.

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American Monsters: Hollywood, the U.S. media, and the True Legacy of Iraq

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This morning I stumbled across a stimulating op-ed by an international affairs professor by the name of Dennis Jett. Inspired by Clint Eastwood’s depiction of Navy SEAL sniper Chris Kyle, Jett asks incisive questions about recent Hollywood portrayals of controversial topics like torture and the U.S. military disaster in Iraq. According to Jett, films like Zero Dark Thirty and American Sniper approach these topics with a level of nuance that they don’t really deserve. Attempting to imbue torture with a sense of moral (or even utilitarian) complexity or ennoble the U.S. military invasion of Iraq is to obfuscate issues that are in actuality quite clear. Torture is a brutal crime against humanity, anywhere and everywhere, and the Second Gulf War is a disaster built on abject lies that, outside the pocket books of certain defense contractors, is best measured in human suffering and pain.

For the most part, the U.S. media has failed to confront these issues adequately. To the extent that our very deep and very human propensity toward tribalism leave us, as U.S. citizens, grasping for a place on the right side of history, this is understandable. Nowhere is this point more obvious than in the sacrifices of the men and women on the front lines, whose work practically begs for justification. Thousands of U.S. soldiers have died and many thousands more will bear the physical and emotional scars of combat for the rest of their lives. The idea so many human lives were extinguished for nothing is repulsive. But the fact remains, and as a result our understandable reluctance to confront it can’t be allowed to serve as an excuse for ignoring it.

As Jett points out, Kyle was probably not the reluctant, duty-bound warrior the film seems to depict him as. Indeed, his own autobiography paints a portrait of cold and vicious killer who regretted the very existence of rules of engagement and dehumanized his victims as evil savages. The Economist ads more detail:

A quick flick through Kyle’s best-selling autobiography is enough to demonstrate how much stronger and stranger the film might have been. “I loved what I did,” he writes in its introduction. “I’m not lying or exaggerating to say it was fun. I had the time of my life being a SEAL.” When he is with his wife and children, he confesses, he wanted to be back in Iraq: “I missed the excitement and the thrill. I loved killing bad guys.” And he recounts those killings with jaw-dropping callousness. Once, he recalls, he fired on two suspected insurgents on a moped. “It was like a scene from ‘Dumb and Dumber’. The bullet went through the first guy and into the second…Two guys with one shot. The taxpayer got good bang for his buck on that one.” He also admits that “there was a bit of a competition between myself and some of the other snipers” to see who could dispatch the most Iraqis. “If you’re interested,” he adds, “the confirmed kills were only kills that someone else witnessed, and cases where the enemy could be confirmed dead. So if I shot someone in the stomach and he managed to crawl around where we couldn’t see him before he bled out, he didn’t count.” So now you know.

Viewing the enemy as an inhuman “other” is a well-documented psychological coping mechanism for the horrors of killing. That’s a big reason behind the use of derogatory epithets like “gook” for NVA soldiers or “nip” for the Japanese in WW2. Further still, there is a good chance some of the people he killed were rabid jihadists. I’m reluctant to use such an infantile characterization as “evil” in describing the vast majority people, but to the extent that these people behaved anything like the members of the Islamic States or al-Qaeda, they were certainly savages. None of which is to say that the sort of blind bravado some people – people like Chris Kyle, for instance – display when it comes to the business of killing is in any sense justified. Precisely the opposite: though there are, I think, occasions when killing humans is necessary, I’m hesitant to accept that there are instances in which it is permissible to relish it. I’m willing to grant that there may in fact be times (rare though they are) when the work performed by people like Kyle is, in balance, beneficial to U.S. citizens. However, I refuse to accept that it is ever worth celebrating.

Which brings us back to the hard facts of reconciling our mythologized sense of American Righteousness with the bare facts of reality. The desire to view the military as an instrument of justice comprised largely of reluctant (but effective) warriors is widespread. But it obscures a number of important facts that we need to come to grips with if we are to wield that instrument both ethically and responsibly. First, there is the simple truth that, since World War 2, the U.S. military has usually been deployed to secure largely dubious ends. It has variously been an instrument of raw nationalism, capitalist world-building, or a profit-driven mechanism of self-perpetuation. Rarely has it been used to defend human rights, liberty, or the general well-fare of U.S. citizens. Nowhere is this point more salient than in the travesty of Operation Iraqi Freedom. Having resulted in the deaths of thousands of American soldiers and hundreds of thousands of Iraqi civilians, it is only really one thing in any objective sense: a crime, for which the highest tiers of American government are culpable.

As troubling as this is, the second point is even more difficult to digest. Even when military action is justified on the grounds of practicality or, rarer still, morality (the two, I think, are inextricably linked) it remains a nightmarish and ugly business. Executing a war requires regular people to partake in unspeakable, irrevocable horrors. These are people who sacrifice a large chunk of their humanity to serve a what they hope to be a greater purpose. But there is also a sense in which war calls upon people who are already monstrous – zealous patriots and xenophobes, remorseless and skilled killers averse or immune to the effects of introspection and circumspection. Both practically and ethically, a certain reverence and esteem for the combat veteran seems a necessary – even laudable – response to the work they have done. Even in Iraq, where the soldiers have – in a very real sense – given their all for practically nothing, some respect is perhaps bought by the fact that they said yes to a calling many refuse. Though they didn’t actually defend American lives and liberty, they were willing to do so. However, that still leaves us with the ugly question: what of those who enjoy it? Ethically speaking, this is a Gordian knot that we’ve decided to solve by simply ignoring it.

Going forward, this leaves us in an awkward position. Regarding the war in Iraq, our responsibility is clear. It is our duty to history and future generations of U.S. citizens to remember it for precisely what it was. The war itself was a pure disaster, riddled with atrocities and violations of basic human rights. It was justified by deceit and designed for purposes that will, in many respects, probably remain forever cloudy. It is, perhaps, the purest manifestation of the military-industrial complex. As a result, the primary legacy of members of the highest branches of government – Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and President George W. Bush – should be that of war criminals. Anything else and we have failed in our duty as responsible citizens. With respect to the specific horrors of war, a way forward is less clear. Obviously we should avoid war at any and all costs. That’s a bit of a no-brainer. But we should also remember that war is always, regardless of the cause, an ugly business. In that sense, it is crucial to keep in mind precisely what supporting one requires us to endorse.

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Look at this fucking dipshit: George W. Bush declares “Mission Accomplished” on the USS Abraham Lincoln about two months into the eight year war in Iraq.