Can Judges Be Tyrants?

So, I'm returning to these old digs to promote a unique piece on which I'm the co-author over at the League of Ordinary Gentlemen. The piece is a conversation between one of the newest members of the League and myself over the Iowa gay marriage decision and, in particular, over the ability of the courts to avoid weighing in on controversial social issues.

Will and I are particularly proud of the whole piece, which we think has a unique format that illuminates a lot of issues involved in discussions of judicial activism. I beg anyone still reading this site to go check it out (oh yeah - and if you haven't yet, please add the League to your RSS feed).

Here's a little teaser. For the whole discussion, please take a few minutes and read the whole thing - I promise you won't be sorry:

Me: “original intent” is impossible to divine (indeed, the champion of originalism, Justice Scalia, is also the foremost critic of “original intent” - he just doesn’t realize that much of what he does is little different). The legislature doesn’t act in a vaccuum, and it can’t be the responsibility of the courts to correct the legislature’s mistakes, no
matter how unforseeable those mistakes may have been. To do so would be to read words into the legislation/Constitution that aren’t there, and would in fact be a very real case of “legislating from the bench.”

Will: Here’s my big point: The courts have a certain amount of judicial capital - i.e. public trust in the courts as an institution. This gives them the credibility to enforce unpopular laws (releasing guilty criminals on technicalities, for example). Court capital, however, is extremely sensitive to public perception, and if it is completely depleted, popularly elected branches of government will take advantage of this
erosion of public trust by compromising judicial independence - through court-stripping, enacting judicial term limits, slashing the courts’ budget etc. - thereby undermining the judiciary’s ability to enforce constitutional law.

Is Liber-al-tarianism the Future of Libertarianism?

For those who have not yet updated their feed subscriptions and bookmarks as I slowly wind this site down, I wanted to point to my latest two posts at the League of Ordinary Gentlemen (subscribe here), which go into a lot of depth about what I view as the recent setbacks for the idea of a left-libertarian alliance, and also about why I nonetheless continue to view the liber-al-tarian project as nonetheless an important idea that should represent the future of politically involved libertarianism.

From the first post, pertaining to the impact of recent events on the possibilities for a left-libertarian coalition:

Rather than consider ways of achieving liberal ends (which are usually shared by
liberals and libertarians alike) that may have incorporated libertarian thinking or were at the very least highly targeted, progressive politicians have been choosing extraordinarily broad and intrusive means of achieving those ends. This is not to say that those politicians ever really cared what libertarians thought; only that this route of action has undermined any possibility of a significant percentage of libertarians (again broadly defined as fiscally conservative and socially liberal) becoming
intermediate-to-long-term members of the Dem coaltion.
All that said, Will Wilkinson is no doubt correct that all this talk of a left-libertarian
political coalition misses the entire point of “liberaltarianism,” which is not properly understood as being about coalition-building...

And from the second, on why liber-al-tarianism remains important:

The promise of this derivation of modern libertarianism is not that
it attempts to paint libertarianism in a light that is palatable to modern
liberals/Progressives, which our friend Kip rightly fears; instead, its promise is that it can help to rescue the fundamental worldview of libertarianism from the prejudices instilled in it by such a lengthy alliance with the Right. Simply put, the promise of liberaltarianism is that it can help to build a libertarianism that is more true to its classically liberal roots. In so doing, it is possible that it will become a libertarianism that modern liberals are willing to take seriously, and even learn from.

I'm particularly proud of the second post, but if you have a few minutes, please go read all of both posts, where comments are open.

The Future of Publius Endures

As you all may have noticed, posting around these parts has been light of late, and posts exclusive to this site have been virtually non-existent. The reason for this is very simple: the project Dave, Kyle, and I (amongst several others) have been working on at the League of Ordinary Gentlemen has been even more successful than I had hoped.

Dave gave a brief introduction to the League here, but it's about time that I added a few comments of my own. The point of the site is very much to take the form of a "conversation amongst friends" instead of the headline-driven writing that so typically characterizes the blogosphere. Importantly, and just as any ordinary group of friends outside the blogosphere, membership in our group is not based on any adherence to a particular set of political beliefs - Dave and I come at things from a roughly libertarian starting point, Freddie and Kyle from a roughly liberal/Progressive starting point, E.D. from a starting point that I would characterize as more or less Burkean (he may disagree, though), and Scott and Chris from a starting point that I'm not quite sure how to characterize (although our friend John Schwenkler characterizes Scott as a conservative). We also come from a diverse set of backgrounds and professions, ranging from the academy to the "working class," with various gradations in between (we even have a guy who is culturally habituated to spelling "color" as "colour"!).

But what distinguishes the League from other sites with a diversity of viewpoints like Donklephant and The Moderate Voice (both great sites in their own right that fill an important niche in the blogosphere) is our focus on dialogue between our viewpoints rather than on providing a medium for the various viewpoints to speak to a more independent audience. In many ways, the League exists more for our own benefit in our individual searches for Truth than it exists to expose our individual viewpoints to a broader audience (of course, the fact that we've thus far succeeded in reaching a pretty broad audience is a very nice bonus). In many ways, I would say that our writing at the League is to each of us what architecture was to Howard Roark - if people want to read our site, then great; but the purpose of our writing is much more to allow us all to do something we enjoy and to become as good at that as we possibly can.

For me personally, the League is the incarnation of something that I had been vaguely hoping to create ever since Kyle and I had our dialogue on education policy last winter. I had always just been unable to articulate it and, even if had been able to do so, I had no idea where to look for contributors since most bloggers with whom I've formed relationship always seemed extremely satisfied with what they were currently doing. But then Scott had the gumption to articulate precisely the vision I had been unable to articulate - and to do so publicly, seeking potential partners in the venture. And thus the League of Gentlemen was rapidly born.

In any event, the League so far has been everything we had hoped it would be, and more. That it has rapidly garnered a larger readership than we ever expected only adds to that achievement. With that in mind, I have decided to move all of my long-form writing (except my more or less weekly piece for Donklephant) to the League. I'm guessing that it's safe to say that, except for Kyle's regular pieces for Comments from Left Field, Kyle and Dave have made the same decision.

What that means for the future of PE is that this site will likely be gradually brought to an end (although I have offered another writer the option of taking over long-form writing duties), with most of my posts at this site limited to brief little snippets of the standard blogpost variety that would be inappropriate for writing at the League. In the meantime, I would encourage all of the regular PE readers to please add the League to your RSS feeds here.

All that said, if there are any of my readers who would be interested in keeping this site alive (and thereby taking advantage of the infrastructure I built over the last year and a half) and who think their writing would be a good fit for this site, please send me an e-mail; I can't make any guarantees, but if I think your style of writing more or less fits what I was trying to do with this site for the last year and a half, I'd be happy to give you the keys.

Blawging Bleg

Can anyone (cough, cough, Kip, cough, cough) recommend a book and/or readily available scholarly article that discusses the relationship between the demise of Lochner and the eventual (years later) rise of substantive due process? Specifically, I'm looking to discuss the extent to which the demise of Lochner had effects that traveled far beyond economic substantive due process.

Another Sad Day for Discourse

Culture11 is finished. I'm still trying to collect my thoughts about that fact, but it's hard to imagine a more fitting farewell than Freddie's. Although Will comes very close.

But one thing I can confidently say as one of those who had the privilege of writing the phrase "my article at Culture11" is that while Culture11 may be no more, its legacy lives on in the myriad readers and writers who were privileged to participate in the discussions there. I can only hope that fact is of some small consolation to the 14 Culture11 staffers who are now out of work.

Talking About the Same Thing

(Cross-posted at the League of Ordinary Gentlemen, where comments are open).

Professor Joseph Wagner of Colgate University, one of the three professors who most influenced the development of my early political thought, was fond of saying that the venom associated with certain issues was because the opposing parties “are not talking about the same thing.” For example, opponents of Roe v. Wade couch their arguments in terms of defending life, while proponents of Roe v. Wade couch their arguments in terms of defending choice - both important values that almost all of us hold dear.

In so doing, the two sides refuse to address the other side’s arguments. This refusal simultaneously allows the side making the argument to more or less credibly cast the opposition as “anti-______” (where ____ is a fundamental cultural value shared by almost all), while also permitting the opposition to argue, again credibly, that the arguing side is unconcerned with arguments for the other _______ (where the other _____ is also a fundamental cultural value) and is therefore opposed to ________. In a way, these attacks wind up not only being credible, but also accurate - in refusing to even address the implications of a policy for value ________, a side effectively casts that value as not only irrelevant to the specific issue at hand, but as completely devoid of consideration as a legitimate value at all.

As a means of inciting supporters of one side or another to activism, this is terribly effective; as a means of finding an actual answer to the problem or persuading fence-sitters and opponents, it is almost entirely without value. It also has another effect: by casting each side as fundamentally anti-_______, it calcifies attitudes between the two sides on other issues that involve value _______ but that are otherwise irrelevant to the specific issue already under debate.
Scott’s exceptional post this morning, about which I cannot say enough good things, along with Kyle’s excellent response, goes a long way towards advancing this more or less self-evident concept to an understanding of “good” versus “bad” forms of partisanship. Better, I think it hints at a way out of this morass. It also explains why I’ve come to hold President Obama in a higher regard than the vast majority of politicians I’ve heard in my lifetime.

In particular, Scott writes:

Right relationship of partisan tendencies is born out of a respect for the elements of an issue that a particular ideological perspective is best able to hit upon and articulate. Liberals, conservatives, progressives, and libertarians all emphasize different elements of different issues precisely because there is generally something important about the element that each grasps on to as its “first principle” on that front. …

What we seem to be fighting then, is the calcifying tendencies of partisanship. How we do that is not to strive towards some point in time where partisanship no longer exists, but rather to cultivate a greater dexterity in our partisan maneuvering. Which is to say that right relationship of partisanship requires participants who not only steel against the calcification of their own necessarily perspectival take on a particular issue, but who also consciously seek out the articulation of other perspectives and then apply a certain adeptness at “seeing” what those articulations are describing.

Yes, yes, and yes!

At their best, the various major Western political philosophies/ideologies all mostly agree on the legitimacy of certain core values or first principles; perhaps amongst others, these first principles would be things like the sanctity of human life, the sanctity of the exercise of free will, a healthy respect for cultural traditions, and the desirability of social mobility. Where they generally disagree, however, is in the prioritization of these values when they come into conflict.

There are generally two ways of dealing with such conflicts. One is to reflexively deny that the conflict exists at all, or worse to deny that such conflicts are even possible. This is the easiest way to deal with the problem. It is also terribly dangerous, poisoning legitimate debate. Specifically it ignores the fact that, as Kyle wrote, “the world we live in relies more on empirical data and real world accounting than faith. “ Although it is certainly impossible to empirically prove whether a particular first principle is more important than a rival first principle, it is absolutely possible to prove empirically whether a particular policy or event helps or hinders the advancement of a first principle, and therefore whether a conflict of first principles exists.

By reflexively denying the existence of a conflict without any attempt at a good-faith exploration of the empirical data, a party in effect denies the legitimacy (or at the very least will appear to deny that legitimacy) of the supposedly threatened value and thereby ensures a particularly nasty debate full of accusations of bad faith. It also ensures that no acceptable solution will be possible, because only one party is acknowledging that a problem even exists.

The second, healthier but far more difficult way of responding to conflicts between core values, is to view our ideology as a way of resolving doubt, or better yet, as a set of rules of construction. So conservatism becomes defined not by a dogmatic resistance to all change but instead by an effectively Burkean attitude that holds “when in doubt about a value’s primacy, err on the side of tradition”; libertarianism and classical liberalism becomes defined not by a reflexive opposition to all government actions but instead by a “soft Hayekian” (”actual” Hayekian, as I would call it) attitude that holds, “when in doubt of a value’s primacy, err on the side of free will”; and progressivism becomes defined not by a reflexive trust in the competence of government but by an attitude that holds, “when in doubt of a value’s primacy, err on the side of the least powerful.”

Looking at ideology through this lens is critical to honest and open debate, I think. It acknowledges that it is impossible to empirically prove the primacy of a particular value to the betterment of society (after all, how do you prove whether one imagined utopia is better than another imagined utopia). But at the same time, it acknowledges that one must at some point make a decision as to which value ought to take primacy in a given situation… a decision that must often be based on a certain form of faith.

Importantly, this way of viewing one’s ideology leaves one open to persuasion through reasoned argumentation or through objective review of empirical evidence. It also allows one to argue on terms that the opposing party can understand by arguing either:

1. There are legitimate flaws in the other party’s argument such that the position the other party is arguing does not, in fact, advance the principle that other party considers primary. Simultaneously, we leave ourselves open to persuasion as to whether our opposing position helps or hinders our own primary principle.

2. The other party’s arguments may well be correct; however, even if they are correct, the implications of doing as they suggest would have too much of a detrimental effect on another culturally accepted core principle because it would also do X, Y, and Z.

or 3. The other party’s arguments are correct and the implications of doing as they suggest would have sufficiently minor impact on other culturally accepted core principles that it is worth doing as they suggest even if you hold those other principles as generally primary.

Simply put: viewing ideology as a rule of construction allows us to “talk about the same thing,” and thereby to arrive at solutions that, to the extent possible, are tailored to advance one or more core principles without hurting other core principles. At root, it ensures that we continue to recognize that other core principles are legitimate and important elements of our society and cannot simply be shunted aside.

As a final note, it’s worth mentioning that my hope for Obama rests almost entirely in the fact that he has mostly (though not entirely) convinced me that he is one of the rare modern politicians who actually seeks to define his ideology in the latter way. This hope is what animated my fairly strong support of him during the primary campaign, and is why I rooted for him to win the general election even though I voted for a third-party campaign. Few things are more emblematic of why I have mostly come to this conclusion than this little nugget from Zach Wamp about Obama’s meeting with Republicans over the stimulus package:

This was not a drive-by P.R. stunt, and I actually thought it might be. It was a substantive, in-depth discussion with our conference, and he’s very effective. He knows that the debt and the deficit are huge long-term problems as well and he made a compelling case. He sounded, frankly, a lot like a Republican.”

A President who can sound like a Republican in a meeting with Republicans without giving much ground on substance is a President who understands the importance of talking about the same thing.

Finding a Better Partisanship

I don't have the time to respond to it just yet, but over at the League, Scott Payne just blew my mind. Anyone who has been reading my writing for the last year here at PE will understand why.

Money 'graph:

Right relationship of partisan tendencies is born out of a respect for the elements of an issue that a particular ideological perspective is best able to hit upon and articulate. Liberals, conservatives, progressives, and libertarians all emphasize different elements of different issues precisely because there is generally something important about the element that each grasps on to as its “first principle” on that front. In the articulation of first principles; however, we often become so identified with our own particular articulation and, perhaps even more overtly, the group identity we take on and draw strength from in locating others who agree with us, that we generate rhetorical blinders to the elements of issue that other perspective/ideologies identify and articulate. This calcification, it seems evident, can become so set in as to result in not just failing to notice the particular elements of an issue that ideologically opposed interlocutors point out, but rather denying the existence of those elements altogether.

It's a long post, but it just gets better from there. Please read the whole thing.

Quidding without the Quo

I've obviously been silent here the last few weeks, as I begin to sort out what our new project at the League of Ordinary Gentlemen means for the future of this site. But I haven't been silent everywhere. My most recent piece at the League is up right now, and it discusses the hubub over the contraception provision in the ongoing stimulus package. Money quote:

There is something else important here: there is no principle at stake for Obama in backing away from a provision like this when it is in an unrelated, but “must-pass” bill. If this is a program that Obama ultimately wants to implement (whatever I may think of its merits), he sacrifices no principle by removing it from this legislation and fighting for it later on as a stand-alone program. This willingness to compromise without sacrificing ultimate principles is the epitome of “good” compromise rather than the bipartisanship for the sake of bipartisanship that makes so many of us cringe.

And while I'm here, I may as well point to my other posts at the League:

First, the difference between principles and partisanship. Second, How to put an end to the Malkinization of our political discourse.

Please, check it out - this project of ours at the League is the most exciting thing I've been involved with in the blogosphere, bar none. Hopefully, others will agree.

Quick but Important Announcement - The League of Ordinary Gentlemen is Born

While we expect to continue blogging here at Publius Endures, Mark and I have joined The League or Ordinary Gentlemen, a group project with several other bloggers including E.D. Kain of Indiepundit, Freddie DeBoer of Ihote, Chris Dierkes of Culture11, Kyle Moore of Comments from Left Field and Scott Payne of Politics of Scrabble.

Taken directly from the About Page:

The League of Ordinary Gentlemen is a group blog that hopes to bring a new style and sensibility to blogging. The contributing writers hail from various points along the political spectrum, but all hold a deep and abiding commitment to the exploration of ideas outside the foray of rhetorical and ideological cul de sacs. The entries are less posts than they are dialogues, with an aim towards sustained discussion on topics and issues that lay at the foundations of our lives. This approach, we hope, will provide readers with a thoughtful and searching alternative analysis.

We are both very excited to undertake this project and I expect to be cross-posting a lot of my work, but we have teamed up with some excellent writers and strongly recommend that our readers come by and visit us.

Again, please add to your blogrolls The League or Ordinary Gentlemen.

www.ordinary-gentlemen.com

I guess it's good for something...

Obama on the Employee Free Choice Act (Via Donklephant):

Wash Post: The Employee Free Choice Act - a timing question and a substance question: in terms of timing how quickly would you like to see it brought up? Would you like to see it brought up in your first year? In terms of substance, the bills that you talked about in your floor statement on the Employee Free Choice Act problems with bullying of [inaudible] people want to join unions. Is card check the only solution? Or are you open to considering other solutions that might shorten the time?

Obama: I think I think that is a fair question and a good one.

Here’s my basic principal that wages and incomes have flatlined over the last decade. That part of that has to do with forces that are beyond everybody’s control: globalization, technology and so forth. Part of it has to do with workers have very little leverage and that larger and larger shares of our productivity go to the top and not to the middle or the bottom. I think unions serve an important role in that. I think that the way the Bush Administration managed the Department of Labor, the NLRB, and a host of other aspects of labor management relations put the thumb too heavily against unions. I want to lift that thumb. There are going to be steps that we can take other than the Employee Free Choice Act that will make a difference there.

Like Justin, I am, to the extent that I can be, relieved to hear that President Obama does not seem all too willing to rush the Employee Free Choice Act into law and will consider other options. I do happen to think that, given our current situation, not only are there far more important things that will have to be dealt with, but also that big business will mobilize massive amounts of resources to fight this.

As I mentioned in my previous post, despite all the bellyaching by the AFL-CIO or the respective labor unions about unfair labor practices, none of these organizations, in supporting the EFCA, have ever put forth a compelling argument that the existing structure, which strives to protect an employee's choice to unionize through a private election, is in such disrepair that it has to be abandoned. My view on this is that organized labor does not want to go down this road because simply revising the rules would not give them anywhere near the power they would get under EFCA. That will certainly make a lot of pro-union liberals quite upset.

Food for Thought

I'm going away for the weekend in a few moments, but wanted to thow some links to some things worth pondering that I would have liked to discuss at length if I had the time:

Brad DeLong, speaking at a Cato Institute event: "The modern Ametican liberal economist's view of libertarianism is much the same: libertarianism is false in theory, but it is very much worth figuring out a set of limited, strategic interventions that will make the libertarian promises roughly true in practice." I actually think there is something legitimate in this point, though I do not think it fatal to many forms of libertarianism. (H/T: Tyler Cowen)

James Poulos on the failures of Bush and Reform Conservatism: "But Bush has been a virtual detainee of events, of the powers of personality that glommed around him and beset him from near and far, of the strangeness of history that put the fate of Iraq and the fate of the Party of Reagan in his hands. It was easy for him, I think, to weigh the first above the latter, and though Republicans must not all be conservatives and vice versa, the audacity of this judgment is, Bush knows, what will sink or swim his own acquittal."

Torture and the Coercion Calculus

I thought this symposium from the NY Times on the effects of "coercive interrogation techniques" on prosecuting terrorists was interesting. The symposium includes an admission by Andrew McCarthy of National Review that information obtained from such acts should not be admissible evidence against a terrorist. In reviewing the symposium - and especially McCarthy's statement, what struck me was the role of the system of military commissions in enabling torture. What I mean is that even advocates of using these techniques (whether or not termed "torture") as a form of intelligence gathering acknowledge that this evidence should not be admissible for purposes of determining a suspect's guilt or innocence.

So if we are all in agreement that such information may not and should not be used in a criminal prosecution, it follows that an interrogator would ordinarily be forced to weigh the value of the information the interrogator hopes to obtain against the value of ensuring that the suspect will eventually go free and possibly return to terrorism. But the military commissions system, which has lower standards of evidence that were once widely believed to permit evidence procured through coercion, eliminated this calculus (although ultimately it was determined that such evidence would not be permitted). And so, in the mind of the interrogator at the time, the techniques chosen (whether or not we term them torture) had no relevance to whether the suspect would eventually walk free...in fact, the use of techniques designed to obtain confessions (whether those confessions were true or false) had the extra benefit of likely assuring that the suspect would be given a stiff sentence.

More at memeorandum.

Torture Begets Worse Torture

While reading through the comments to John's latest post on torture, a new thought occured to me that I haven't seen expressed elsewhere in the discussion of this issue.

It's been said before that "the point of torture is torture," but I don't think we fully understand the extent to which this is true, nor the extent to which the moral and utilitarian arguments against torture are intertwined. The easiest way to explain what I'm getting at here is through a hypothetical.

In this hypothetical, the suspect is someone who almost certainly possesses some unknown quantity of information that can be helpful in rooting out terrorism. After the suspect refuses to provide information in response to initial non-coercive questioning, the interrogation moves on to measures that are coercive but perhaps fall in the gray area of what we would call "torture."

The suspect talks immediately as a result of the coercion, and for purposes of this hypothetical, we will say that the information provided is accurate. After providing that initial information, the suspect refuses to provide anything else. What should the interrogators do next? Do they accept that the suspect has no further information to provide? Not likely - after all, it took some form of coercion to get the suspect to provide the initial information, so there's no reason to think that the suspect has nothing further to provide. More likely, I think, the interrogators conclude that the only way to get more information is to revisit the methods that got them more information in the first place.

But what if the suspect refuses to provide more information when those methods are used again? Will the interrogators go back to being nice, knowing that the information they got came only after they used more coercive measures? Not likely. Instead, it would seem to me, the natural response is to conclude that the suspect has learned to tolerate the initially successful level of coercion, and so the only way of obtaining more information is to make the interrogation increasingly coercive. Again, the suspect talks and again we will assume that the information provided will eventually prove to be accurate.

But again, the suspect eventually refuses to provide any additional information. Now, the suspect has a track record of withholding information even after coercion is tried, and of providing information when ever-more coercive techniques are used. So what is likely to be the interrogator's response? If you guessed "stronger coercion," you guessed right. But this time the suspect continues to refuse to provide information, and so the interrogator adopts even harsher methods until the suspect provides more. At what point does the interrogator conclude that the suspect has nothing more to provide? If the suspect provides more, how does the interrogator distinguish between what is accurate and what is a lie?

And that's the problem. When coercion fails, it will only result in more coercion, and when it succeeds, it will only result in more coercion. It not only lacks any means of distinguishing between good information and bad information (the basis for utilitarian arguments against torture), but it also cannot distringuish between knowledge and lack of knowledge. And even torture's most ardent proponents would, I think, acknowledge the immorality of using coercion on someone without useful information. In sum, by engaging in coercive interrogation we obtain unreliable intelligence; because we obtain unreliable intelligence, we will inevitably engage in more coercive - and undeniably immoral - interrogation, which will result in more unreliable intelligence, and so forth.

And that's what I mean when I say that the moral and utilitarian arguments against torture are intertwined. What legal barriers such as the Army Field Manual or the Geneva Conventions do is to provide a stopping point past which we effectively presume that further intelligence will be unreliable, and at which we must assume that the suspect has no further information to provide that they would be unwilling to provide in the absence of coercion.

UPDATE: Thinking more about this.....I suppose the logic of this post doesn't lend itself well to the hypothetical (but almost entirely non-existent in reality) ticking time-bomb situation where you have intelligence that the suspect has specific information about a specific plot. In such a circumstance, the torture would not beget more torture once successful because the interrogation would be aimed at obtaining a specific piece of information along the lines of "where is the bomb," or "when is the attack," or "who is the bomber." BUT....it's easy to see how the logic described in this post would lead to imagined ticking time bombs where the suspect provides information about a non-existent plot, leading investigators to interrogate someone else about the details of that non-existent plot under the belief that the plot is a "ticking time bomb."

Against Legalization of Drugs

I just wanted to point to David Fredosso's argument, in Culture11's Drug War symposium, against the legalization of drugs (though he seems to limit his argument to "hard" drugs). I'm not sure I'm persuaded, but it's the first argument I've seen in a long while that actually addresses some of the key arguments for legalization and doesn't descend into the usual demagoguery. At the very least, I think he makes a strong case for tempering guarantees of a massive reduction in violence.

One thing to point out - Fredosso does not attempt to argue in favor of the "War" on Drugs, only against the legalization of most drugs. This is actually not a flaw in his argument, as he quite openly acknowledges that he is opposed to treating drugs as if they (and all those who come in contact with them) are enemies in a "War."

See also - Balko, excellent as usual, on the collateral damage of the "War" and Anita Bartholomew on the "War's" price tag.

H/T: John.

Centrism and Conservatism

Dennis Sanders has a thoughtful response to my mild rejoinder about the role of centrism in American politics. That rejoinder has its roots in one of my personal favorite posts from last year, The Myth of the Moderate.

Sanders seems to fully understand the point I was making, writing:

So does that mean that those who argue for a more dogmatic conservatism were right all along? No. Mark and I agree that the party need to reach out more, but I think he is correct that we need to stop calling it an appeal to the center, since the center varies so much from person to person. What does need to happen is to look at the times we live and [] try to fashion conservative solutions to them.

This is exactly correct in my view.

Ultimately, one of the biggest problems with the idea of a sort of master dogmatic conservatism isn't just that it comes across as mean and driven by fearmongering, it's that it prevents individual constituent flavors of conservatism from applying their philosophies to the world as it is, which makes it exceedingly difficult for conservatism to appear relevant in the modern world. But freeing the various flavors of conservatism to find their own solutions to modern problems will inevitably create a rebirth of all those flavors both in terms of relevance to modernity and in terms of electoral appeal. To be sure, you need to have some type of dogma to define what varieties of conservatism are and are not in the coalition and, more importantly, to unite those varieties of conservatism - but there is no rule that says that dogma needs to be all-encompassing or extend beyond a handful of core issues upon which there is universal or near-universal agreement amongst the constituencies.

One of the key reasons for the mid-90s comeback of the conservative coalition was not, as it is widely assumed, that Newt Gingrich was an unapologetic across-the-board conservative (whatever that means). Instead, the secret of that success (in addition to piggybacking on Clinton Administration overreaches and a high number of Congressional retirements) was in part the Contract with America, which was based on so-called 60% issues, about which there was broad agreement both within the coalition and within the electorate at large. Notably absent from that Contract, therefore, were issues that would divide conservatives of various philosophical stripes - things like abortion and immigration. The genius of the Contract with America was thus that it sought to find issues that already more or less bound the coalition together and to turn those issues into the sole source of dogma. It did not seek to create a new dogma or to define a sort of "master conservatism."

While the practical effects of the legislation passed under that Contract are certainly debatable, the more important point is that it was an effective way of uniting the party while also appealing to people not already within the party. Meanwhile, the various stripes of conservatism remained free to find their own solutions to problems outside the realm of the Contract.

Put another way, the Contract with America didn't seek to impose a new, bigger (but more wobbly) "seat" on the proverbial three-legged stool; instead, it sought merely to put a shine on the seat that already existed while permitting the legs to stabilize that seat by creating as wide a base as possible.

A commercial real estate bailout?

It is possible (subscription required). I am not happy about this but the tone of this piece will be more analytical than editorial.

Not to jump the gun here, but I think this is a situation that can possibly rear its head this year for two reasons. First, rising default rates on commercial mortgage-backed securities due to adverse conditions in the current market as well as very aggressive underwriting standards that were commonplace between 2004 and 2007. The second and more significant reason is that outstanding mortgage debt in commercial real estate is somewhere in the $3.4-$3.5 trillion range. It's not unreasonable to suggest that we can see anywhere between $250-$350 billion of loans come due in any given year. What will make matters worse in this current environment is refinancing any short-term debt that was originated in the past five years, especially as we move into 2010, 2011, and 2012, as 2005-2007, as I mentioned before, were years where loan underwriting was extremely aggressive.

There is plenty to be concerned about in today's real estate capital markets:

1. Property values have decreased substantially off their peaks in 2006-early 2007. Initially, the decreases were capital markets driven, as the debt markets weakened and the weighted average cost of capital rose as a result of a higher percentage of equity. As the conditions in the economy have deteriorated, real estate fundamentals (rents, occupancy rates, etc.) have started to worsen, and investors have become bearish in their expectations. Furthermore, volatility in a declining market where transaction volume is thin poses challenges to make reasonable estimates of value, posing difficulty for investors and lenders alike.

2. Wall Street lending via the originate-to-securitize model for commercial mortgage-backed securities is severely dislocated. Between 2005 and 2007, securitized lenders were responsible for approximately 40% of all commercial real estate originations. Loan originations from CMBS lenders were down 95% from 2007 levels (from $230 billion to $13 billion). I expect origination volume to be less than what it was in 2008. Between investors taking massive losses in these types of investments, absolutely zero comfort in the collateral and credit risk underlying many of these securities and a complete erosion of trust between originators and investors, investors believe that the risk is so high that the returns they demand make originating new loans extremely difficult.

3. This leaves, for better and for worse, commercial banks and life insurance companies as the only lenders in town that have any substantial capital to lend. I say for better because as these two sources are primarily balance sheet lenders and hold the loans on the balance sheet, borrowers facing refinancing risk in a difficult market can negotiate loan extensions, preventing, for the near term, the possibility of default. I say for worse because commercial banks and insurance companies, being both balance sheet lenders and risk averse, prefer neat, easy "middle of the fairway" transactions that exemplify the old institutional mindset of being very choosy about the types of properties they will lend on, conservative loan-to-value ratios, substantial borrower equity and credit and, at times, recourse.


The situation is not good. With all of these things in mind, take into consideration the following options:

• A borrower that financed through a CMBS lender is faced with the possiblity that there will be no lender at all, forcing an equity payment to pay the loan in full or an outright sale (although the sale option is a difficult proposition as I will explain in a bit). For properties in secondary or tertiary markets or properties that fall outside of the general categories of office, retail, industrial or multifamily, borrowers may face the risk of there being no capital at all.

• Owners who can refinance will be unable to obtain refinancing proceeds sufficient to pay down the existing loan, requiring substantial equity contributions. Owners may have face further stress on their balance sheets if lenders require recourse and they are forced to post collateral. This will (and has) put property owners and operators with highly leveraged balance sheets in considerable trouble.

• A borrower can avoid default and/or foreclosure via an outright sale of the property; however, the sales environment is as equally difficult. First, if a borrower can not refinance a property, there is a reasonable chance that a new investor may not as well. More potential deals than I can count have blown up due to potential buyers being unable to secure financing. Second, cash buyers are few and far between and given the dislocation in the debt markets, yields on debt exceed yields on existing real estate assets. As the question goes, why buy the existing asset when you can buy the underlying loan on the existing asset at a deep discount, take the property back in foreclosure, reposition the asset and sell it when the market improves? Whether or not this is a viable strategy is irrelevant to the issue that many equity investors are looking elsewhere. There will be a market for higher-quality assets that equity investors will pursue so I do not mean to make this sound like no one is looking for good real estate these days (they are); however, the markets are so dislocated that anything that isn't a "must-have" deal or is being sold by a very motivated seller will not get done.

The capital markets driving commercial real estate are in a state of severe dislocation. Property owners know this and, rightly, are worried. Refinancing risk, which two years ago seemed like nothing more than a bulletpoint in a Powerpoint presentation, is now a major concern over the next few years. The debt markets are severely supply-constrained and there is a lot of loans coming due that I think will not be refinanced in this current market. At this moment, there are no private sector sources of capital that will step in to fill the gap at interest rates or loan proceeds levels that will make sense to me.

Property owners here are acting as an interest group. They know these markets well. They know that the sale of assets in this market signals that sellers are in trouble. Buyers have no incentive to stretch their valuations to win deals (on the contrary, most investors get nervous if they win a deal). The situation for them is not good and they are attempting to use their political clout to do nothing more than protect the value of the portfolios and to ward off a fire sale.

Maybe it requires the use of TARP funds. Maybe it requires the Fed setting up a lending facility where it becomes the lender of last (more like first) resort for property owners. Maybe certain rules governing the mortgage-backed securities business will be rewritten to allow for loan workouts for defaulting loans in CMBS pools (which I think do not exist today). Unfortuneately, I do not have those kinds of details, but consider the possibility that we could hear about them soon.

Just saying...

What the Immigration Issue Says About the Modern GOP

Alex Massie, right again:

Now it's true that immigration reform is a tough subject for conservatives. True too, that when it comes to immigration there are some many on the restrictionist wing who consider Bush to be either a) a sentimentalist or b) corporate America's pawn or c) both of the above. Equally, the orthodox Republican position on immigration - border enforcement first, then reform - is not desperately unpopular. But a popular (or at least not unpopular) position is only half of the matter: you have to sell it well too. And on a subject as contentious as immigration, that requires a degree of tact and sophistication that, by and large, seems alien to many Congressional and grass-roots Republicans.

***

So it isn't just that legal Hispanic immigrants might be turned off by the GOP's language on immigration, so too are educated, upscale white voters who don't like the idea of endorsing a party that gives the impression, unwittingly or not, of being hostile to immigration. The GOP's posture on immigration fosters the impression, fairly or not, that they're the "nasty party". As far as political branding goes, that's a toxic position for any party to find itself in.

And this is the real problem the GOP faces, and which we've been discussing over the last several weeks. The biggest problem with the party's current situation (i.e., the problem of "talk radio dogmatism") isn't its position on the issues - it's the downright meanness upon which it insists to push those positions.

As I wrote during my stint subbing for John Schwenkler, it's terribly difficult to persuade people to vote for a party or even support its policies (regardless of whether they agree with those policies in principle) when:

• That party’s guiding lights, rather than make principled arguments for various "anti-terrorism" policies, insist on labeling your religion as "Islamofascism";
• Rather than make principled arguments for stronger restrictions on immigration, you and your family are portrayed as foreign invaders seeking to destroy the country from within because of the Mexican flag hanging on your balcony - even as nothing is said about the Italian or Irish flag hanging on your neighbor’s balcony
• Rather than make principled arguments against gay marriage, you are accused of wanting to destroy your country’s traditions because you want legal recognition of your relationship.
• Those same guiding lights proudly promote, rather than simply defend, the use of words and phrases with a well-known role in oppressing you or your ancestors.
• Rather than make principled arguments against an auto bailout, you and your friends are accused of bleeding the American people dry
• Rather than make principled arguments for the use of force and/or for restrictions on civil liberties, you are accused of being a "Defeatocrat" or wanting to "let the terrorists win."

The reason this meanness comes about is that the party has lost sight of the principles that gave rise to its policy preferences in the first place, principles that came from a number of different strains of political thought. Far from being a sort of "master conservatism," the resulting set of litmus test policy preferences thus lacks a coherent ideological basis in any cognizable form of conservatism.

And when a party loses sight of underlying principles, the only way to maintain party unity is to scare its constituents into loyalty, turning every issue into "Us vs. Them." While this can work in the short-term, it must inevitably result in unprecedented discord as once-loyal coalition members become fed up with consistently being called one of "Them." Case in point - see Weigel on Malkin on Voinovich. And that says nothing about the effects it has on ensuring you don't make inroads into the other coalition's constituencies.

H/T: Conor Friedersdorf.

Cross-posted at Donklephant.

Quick Links

I'm extremely busy this week, but wanted to point my readers to some worthwhile reads around the web:

First, Scott Payne at Politics of Scrabble posts the very personal insights of someone you all know well on the effects of terrorism on the way we think.

Next, Max Socol of Some Political investigates Hamas' posturing and finds what Hamas is really trying to accomplish in any cease-fire. Max then uses this finding to propose a way forward that would have a chance to end the cycle of violence in a way that all sides could hopefully live with. The Madisonian in me sense that Max is onto something here.

New blogroll addition Courtney of Great Satan's Girlfriend argues that Israel is getting ready to destroy Iran's nuclear infrastructure (not surprisingly, I disagree with the sentiment behind this, but it's a worthwhile read anyhow).

Fester at Newshoggers has a strong argument that the War on Drugs is having a tremendously destabilizing effect on American international relations on a global, regional, and even local scale.

Guilty In The Court Of Public Opinion

In the very gracious welcome that Mark extended to me, he also linked to an interesting post by E. D. Kain over at culture 11 regarding the controversy that swirls around Governor Blagojevich's decision to appoint Roland Burris to President Elect Barack Obama's vacated senate seat. What intrigued me so was not that Kain's opinion represents I would say the minority on this issue, but instead the driving force behind his argument:

Burris, who received his appointment from embattled Illinois Governor Rod Blagojevich after years of failed elections, has not been connected in any way with the seat-for-sale controversy. Nevertheless, Democrats in Congress have shown that guilt by association is enough to sidestep the law. What they forget is that despite the nature of the offense, despite his alleged corruption, Rod Blagojevich is, like every other American citizen, innocent until proven guilty.
He has not been removed from office, nor has he been relieved of his duties, one of which happens to be appointing a qualified individual to the United States Senate.

(Bold added for emphasis)

The defense of Blagojevich that he is entitled to the same rights as everyone else in this country, that he is innocent until proven guilty, is one that I've heard before, put forth by my fellow blogger at CFLF, Dr. Gail:

Rod Blagojevich is, indeed, innocent until proven guilty. It’s hard to imagine an innocent explanation for some of the allegations in the complaint, but he’s entitled to his day in court. He has not resigned his position as governor and, regardless of his motivation for refusing to resign, he is still the governor. It seems that everyone is so
busy piling on that they forget that.

To be fair, this is a reasonable opinion to have; after all, one of the great tenets of this country is the concept of innocence until guilt has been proven in the court of law. At the same time, in the realm of the political sphere, I also happen to believe that it is also inherently wrong.

One of the few positive aspects of this entire Blagojevich debacle is that it allows us to study the concepts and repurcussions of political guilt under unusual and revealing circumstances. Typically, when scandal arises, either the politician involved owns up to it and resigns, or fights it and either wins or loses. There are of course countless examples outside of these two basic templates, but a confluence of events have driven this specific scandal and its slowly unfurling aftermath under a microscope. These include a stubborn Governor who refuses to resign, and at the same time is terrible at defending himself, the highest profile senate seat open and up for grabs, controversy as to the confidence in said governor, etc.

What all of these things have conspired to do is bring to light another court not established by the constitution, nor any other formal document of governance; the court of public opinion, specifically how it relates to the political world.

Think about it for a moment. Paris Hilton is a banal airhead, Brittany Spears is a terrible mother, OJ actually is a murderer, and not only is Michael Richards not funny, he's also a bigot. Whether you admit it or not, there are pretty good odds that you have in your own mind judged some public figure in one way or another; Michael Jackson's a creepy pedophile, Michael Moore is a sensationalist socialist blowhard, etc.

And there's nothing wrong with that (or, there might be depending on your value system, but legally there's nothing wrong with that). As Americans we enjoy both the freedom of speech, and as a result, the freedom of thought. This is also one of the reasons why innocent until proven guilty is such an important protection provided by our legal system. When the punitive fate of a person relies upon public opinion which so easily jumps to that of mob mentality, evidence and facts are all too easily ignored in favor of storming the castle with torches and pitchforks.

This establishes a mechanic in which the populace are free to think and feel towards any one individual according to how they choose based upon the evidence available to them, specifically those veins of evidence that they choose to believe. We are all free to believe Michael Jackson is a big ol' pede, but in a court of law thankfully this allegation must be proven using more than simply the evidence provided in supermarket tabloids.

The mob is free to condemn and hate and treat that person however they please in accordance with the law of the land, but only through the courts can legal punitive action be taken. Mel Gibson may be an anti-Semite, and we are free to boycott his movies and hamstring his film career as a result, but we can't lock him up for it.

But let us apply this mechanic to the political realm. Politicians are as accountable to criminal and civil courts as any other American citizen (one hopes, anyway), but for them this court of public opinion takes on a different form. This is naturally because ultimately their political livelihood is dependent upon the opinion of the constituency since the electorate can choose whatever criteria they please in casting their vote.

Because this court of public opinion has no established and documented structure, it can be tough to pin down standard operating procedure, but usually it operates not unlike the established courts in this country. First you have the trial for guilt, typically played out in the media. Media coverage drives this phase of the trial, and ultimately we as a populace elect to either buy what we are being sold, or not.

Once that is done, we decide if and how to punish the politician for it (this is assuming that the politician doesn't first resign. This would be I suppose the equivalent of entering into a plea bargain). The most definitive instance would be the outcome of that politician's election, though this doesn't always play out as such.

For example, let's take a look at President Elect Barack Obama, and a potential scandal that would sink many a politician; prior drug use. When he first threw his hat into the ring, there had been some ado made regarding the Illinois Senator's drug use in the past--in fact he actually wrote about it in his published memoirs, Dreams of My Father. Guilt in this instance was easily obtained despite the fact that he had never been brought up on drug charges in a court of law; Barack Obama in his past did in fact snort some coke and smoke some weed and you would have a hard time finding someone who didn't know and believe this.

But as far as punitive action, the court of Public Opinion decided to give the presidential candidate a pass--aside from a few off hand remarks from surrogates supporting other candidates, the issue never developed into a major campaign theme, and polls consistently indicated that people just didn't care and weren't using the indiscretion in making their decision on whom they would prefer occupied the Oval Office for the next four years.

Looking back, we know that the President Elect was forgiven his prior drug use by the mere fact that he is the President Elect, thus making this the public opinion equivalent of Jury Nullification. Another example of political Jury Nullification in the political arena may be seen in the impeachment of President William Jefferson Clinton. Though he was impeached and brought to trial, not only was he aquitted in court, he was also ultimately forgiven by the public as evidenced by the fact that he left office with an approval rating of 65%.

Mentioning Clinton also brings up another important point; not always are politicians afforded the ability to have their day in court with election day serving as a venue. In such instances, public polling often serves in the stead of an official election. Which brings us back to Rod Blagojevich, his own court of public opinion, the final verdict and punishment, and what that means in the case of Roland Burris.

Blagojevich opted to make things difficult because he didn't do what I think most politicians would have done in his place--resign, or at the very least, step aside while the ongoing investigation resolves itself. Not every politician does this whenever they are arrested or even being investigated, but the severity not only of the allegations, but the evidence presented to the court of public opinion in the form of the transcripts already released by Special Investigator Fitzgerald I believe created an environment wherein most politicians would have gone for the public opinion plea bargain.

But he didn't, and unfortunately for everyone, the Illinois legislature simply couldn't impeach him fast enough to take from him the legal power to appoint the next US Senator from Illinois.

The resulting problem is thus. In the court of Public Opinion, Blagojevich was found irrefutably guilty, with approximately seventy percent of his constituency believing his term should be prematurely ended either through resignation or impeachment. Further, a majority are also of the opinion that his appointment to the Senate be blocked.

What happened?

The scandal hit, and Blagojevich was found almost immediately guilty based upon the sheer audacity of the evidence at hand. The public, not able to vote him out of office in time, and unable to impeach, essentially opted to make Blagojevich's punishment a severe vote of no confidence. Given the nature of his crimes, the very last thing he should be entrusted with is appointed the senate seat in question given that he was caught red handed trying to auction the thing off.

When Senator Reid (and believe me, Democrat and liberal I may be, I am no fan of Reid's) said that Burris would carry with him a "taint", he was essentially correct--given the judgement of the court of public opinion, it would be difficult if not impossible for Burris to come into office with the confidence of the people he is supposed to represent.

That Senator Reid is highly inept in many political areas himself has only managed to confuse things even more.

But it is there in the open, despite the ruling of official courts; Blagojevich is a servent of the people, and the people feel that he greatly betrayed that trust. It is the will of the people that he not be allowed to further betray that trust by filling the very same senate seat that kicked this entire ordeal off in the first place. Unfortunately the people were not adequately armed to take the drastic actions necessary in such a short time to prevent Blagojevich from making the appointment if he so chose.

It was, in fact, a legal appointment. But also is there legal justification for blocking the appointment in the Senate as well. As stated in the Constitution, Article I, Section 5, Paragraph 1:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Of particular import is the first bit, "Each House shall be the Judge of the... Qualifcations of its own Members..." Sure, it's up for interpretation, but it also gives both the House and the Senate the wiggle room necessary to block incoming members, though, as I'm sure you would agree with me, this should only be done in moments of extreme circumstances.

Thus the appointment is legal, but federal attempts to block that appointment do also have a basis in law.

How this specific situation ultimately ends is anybody's guess. Again, while Reid may know how to get reelected, and how to win the job of Senate Majority leader, there are definitely areas where he has the political instincts of an intoxicated mule, and the power play that ensued between himself and the embattled Illinois governor is a good example.

As for Burris, whether he is qualified or not is irrelevent. What is relevent is the fact that he was appointed under circumstances that lacked the confidence of the people, and as such fails in the court of Public Opinion. In truth, he's not guilty of anything, but instead yet another victim in Blagojevich's corruption, but there are more than enough grounds for which his appointment should not stand.

Getting out of the weeds, there is a greater point to all of this, though. Or perhaps just a desire for awareness. People in the public eye are not merely subjected like you and I to the rule of the courts, whether we think it fair or not. For celebrities, their lives under the jurisdiction of the court of Public Opinion is incidental, a price that must be paid for a life of fame and fortune. For politicians it is a necessity, a by product of this two century long experiment in democracy and freedom of thought and expression. At times the court of public opinion isn't fair. Consider Truman who left office with approval ratings in the twenties, and whose legacy was only salvaged decades later by the good graces of history.

But while public opinion may not be fair from time to time, while its courts are not bound by law or carefully deliberated edict, they are just as binding, and just as important to the integrity of this democracy, for public opinion is nothing more and nothing less than the will of the people enacting that most important principle of this country; that of self-governance.

[Ed. Note: block quotes fixed due to Blogger's terrible publishing software]

In Which I Impersonate Instapundit

I agree. And for what it's worth, the fantasy-nerd in me is starting to think that "talk radio dogmatism"/"talking heads conservatism"/"the Cult of the Image of Reagan" is to the various strains of philosophical conservatism what the Orcs and Uruk-hai were to Elves and Men. Discuss.

UPDATE/DISCLAIMER: This post is not intended as an attack on Glenn Reynolds but is instead merely a result of the fact that I'm too busy to write more and thus am unable to write my usual 1000-word post. This post is also unnecessarily sarcastic and mean-spirited towards the aforementioned type of dogmatism and thus hypocritical. If anyone is upset by this, I apologize in advance.

Reagan's Heavy Anchor

In a must-read post, Alex Massie inadvertently picks up where I left off in analyzing the problems of the modern Republican Party. But he has a different name for the problem than "talk show dogmatism": "the Cult of Reagan - or more precisely, the Cult of the Idea of Reagan..."

Massie does a much better job than I tracing the history of the problem in its rise from positive momentum-changer to gigantic albatross, but the symptoms of his diagnosis are identical to the symptoms I wrote about previously.

Key 'graph:

In that sense, then. the troubles of Republicanism now and of the Tories in the last 15 years, were built upon their previous successes. The difficulty is that the second (or third) generation is rarely as talented or adaptable as the trailblazers who won power in the first place. Instead of finding fresh ideas and solutions, they inherit positions and prejudices that, because they worked once before, are assumed to be eternal truths rather than particular answers to particular problems at a particular time.
And because they're seen as eternal truths, any deviation from them is grounds for heresy.

He also issues this important rejoinder, which seemed to get lost in the shuffle of some of the discussion of my argument:

Style matters too. The Tory position on Europe in the 1990s (and on immigration and crime more recently) was more popular with the electorate than were Labour's
policies, but the stridency and, to many, the ugly tone in which the Tories expressed themselves turned many voters off. Similarly, the GOP position on, say, immigration is not without its supporters but the manner in which a position is expressed matters almost as much as the position itself. And the GOP has seemed bitter and parochial - qualities with which the electorate is unlikely to wish to associate itself.
Another example? The Terri Schiavo affair: millions of Americans might have been conflicted as to what they felt in what was a horrid, ugly affair. But they knew they didn't like the spectacle of Congressional Republicans stomping all over the case in hob-nailed boots, abandoning any notion of Congressional restraint, let alone respect for States' Rights and due process. The party that says the other mob always want to interfere abandoned all pretence to principle to interfere itself. Voters can spot hypocrisy and while they may sometimes forgive it if its purusued with a modicum of subtlety or on grounds of expediency, more often they dislike it intensely when it seems a flagrant breach of promise or purpose.

As I said - it's a must read.

And, while we're here, E.D. Kain has his own phrase for this problem: "talking points conservatism." (The rest of E.D.'s post is quite the introspective with which I think a lot of us can identify).

For what it's worth, I think of the three phrases, my "talk radio dogmatism" is the catchiest but probably least accurately captures the problem. Massie's "Cult of the Idea of Reagan" is probably the most accurate, but also the most verbose. E.D.'s "talking points conservatism" pretty much splits the difference.

(Belated H/T: John).

UPDATE: See Dennis Sanders also, who succinctly describes the situation thusly: "[For this group] Conservatism is not as much a philosopy as it is a checklist." Sanders' remaining thoughts are, on the whole, quite constructive as well. The one point of contention I'd have with him is that he comes too close to suggesting that moderation and centrism are both unqualified goods, an argument with which I took issue here. To me, centrism is a good only if it is the result of applying fundamental principles to changing facts; centrism for its own sake can be every bit as dogmatic as hyper-partisanship.

(Edited a minor grammatical error).

Adding Value

Scott Payne has some excellent thoughts on what Freddie's departure from the blogosphere says about the strengths and weaknesses of blogging as a form of discourse. As you'll see, those thoughts offer an excellent segue into a pretty significant announcement here at PE.

Scott writes:

....it often times does feel like bloggers simply sit around pontificating on the importance of one another’s comments in a circular fashion. Certainly a sizable chunk of blog posts are responses to blog posts by other bloggers, and in this regard how much original thought winds up getting expressed in the blogosphere starts to become hazy.

My own conception of discourse is that original thought is necessary for it to be meaningful. If we restrict ourselves driving around in circles on the same topics and ideas over and over again, then it seems to be that all we’re really doing is digging better grooves for the same old ruts.

On the other hand ... such intra-blogospheric reflection need not only be a discursive cul de sac. When done well, the reflection that bloggers provide on the thoughts/ideas of other bloggers can, in fact, tease out elements of that thought, examine it more carefully, and ideally add something novel to a particular line of thought.

For the most part, I think Dave and I have tried to post, as often as possible, our own original ideas rather than regurgitating what others have said. But the fact is that we're human, and no doubt fall victim to this trap from time to time ourselves. Even when we don't, we - just like anyone - remain inherently captive to our own predispositions and biases. For me, this is why it is so essential to engage in considered dialogue with those with whom you disagree - a result that can often be difficult to obtain, particularly in the middle and lower tiers of the blogosphere where conversation between ideologically distinct bloggers is all too rare.

With that in mind, I'm extremely honored to announce that Kyle Moore of Comments From Left Field will be joining Dave and I from time to time (read: whenever he feels like it) as a co-blogger. Kyle is a "philosophical liberal with moderate and centrist tendencies" who happens to share a deep interest in the applied political science and philosophy that tends to be the focus of this blog. Kyle and I have engaged in numerous debates on these issues over the last year and a half, and I think it's safe to say that in each instance we each came out haveing "add[ed] something novel to a particular line of [our] thought."

In terms of the structure of this arrangement, Kyle is going to continue with his usual line of posts at CFLF. But on those occasions he feels the urge to write on issues of theory and philosophy, he will have free reign to take advantage of this site's more appropriate niche for that style of writing.

Knowing how our past discussions have progressed, I have little doubt that this arrangement will push each of us to reach new heights of original and thoughtful discourse.

On a more personal note, this arrangement is particularly meaningful to me given the role that Kyle played in the establishment of this site as something more than a mere one-person echo chamber. Without Kyle's selfless, patient advice and assistance shortly after I started this blog, it's almost impossible to conceive this site ever reaching more than 10 or 20 readers a day. More remarkable is that he offered that advice without hesitation, with the full recognition of our ideological differences, and based solely on a handful of comments I left after stumbling upon CFLF.

UPDATE: While we're on the topic of people who challenge me to overcome my own biases, newly-frequent commenter and outstanding blogger in his own right, E.D. Kain, has a well-deserved column up on the front page of Culture11 about seating Senator-designate Burris (D-Taint). His analysis seems dead-on, even if it's not his usual subject matter.

UPDATE II: Just rambling, but given the ever-expanding roster of particularly thoughtful lower and middle-tier bloggers who have had front-page articles at Culture11, combined with the site's Murderer's Row of thoughtful top-tier regular bloggers, not to mention the site's social networking capabilities and expansions into the worlds of sports, linguistics, etc. ....how long will it take until Culture11 completely dominates all things media-related?

A Sad Day for Honest Debate

....Freddie DeBoer calls it quits, at least for the time being. Hopefully, we'll still see him hanging around, pushing us to be more honest with ourselves and more compassionate towards others.

The Rationality of Hamas' Attacks

For the most part, I've tried to stay out of the ongoing Israel-Palestine morass, although it's safe to say I blame them both for the situation. But there has been a really good, intellectually honest, debate going on between John, Freddie, Joe Carter, and James Poulos - to name only a handful of the participants.

As something of an offshoot to that, ED Kain wonders why Hamas continues to shoot rockets into Israel instead of using those resources for defensive purposes when Israeli soldiers are literally at their doorstep. He says, with good justification, that this just seems to confirm the worst beliefs about Hamas' use of terrorism and essentially prevents Israeli moderates from gaining a voice that would put an end to Israel's invasion of Gaza.

Actually, I think Hamas' actions in continuing the rocket attacks are ultimately rational - it allows them to plausibly declare victory almost no matter what Israel does, or at least as long as they have the ability to get their hands on the resources to manufacture them. As importantly, it gives them a fairly important bargaining chip if and when a cease fire is declared, and it's doubtful that the cessation of rocket attacks would have any effect in hastening the declaration of a cease-fire.

The fact is that Hamas is fully aware it is severely outgunned by Israel both in terms of manpower and in terms of weaponry. Thus, it has no possibility, ultimately, of winning a military victory over Israel - a fact of which they are most certainly aware. However, it can nonetheless legitimately declare victory if the Israelis are unable to achieve that which they nominally set out to achieve - which is in large part the cessation of the rocket attacks. So as long as Israel is unable, by sheer force, to put an end to the rocket attacks, Hamas will appear the victor to its constituents, as well as to its supporters in the rest of the Middle East and South Asia. Meanwhile, the continued rocket attacks don't have too much of an effect on international opinion because they are rather ineffective at actually killing people - this guarantees that the casualty figures for Israeli civilians will continue to dwarf the casualty figures for Palestinian civilians.

Moreover, whether or not Hamas actually is using its citizens as human shields, the international coverage regarding those activities is unlikely to emphasize that issue - in part because of Israel's ban on journalists entering Gaza (leaving Hamas the sole source of information as to what it was doing), and in part because the compact size and incredibly dense population of Gaza makes it so that no matter where Hamas chose to mount a defense, large-scale civilian casualties would be inevitable. These two factors turn the question of whether Hamas is abiding by the laws of war into a largely academic question for purposes of most international debate - the only thing that will matter, for those purposes, is how many civilians die on each side.

What this ultimately means is that all Hamas has to do to achieve its objectives is make sure that it has enough rockets to outlast Israel's willingness to withstand international pressure to end its attacks. And that is why, whatever your opinion on the justice of Israel's response, the decision to escalate the assault on Gaza was harmful to Israeli interests.

Say What You Will About the Tenets of Neo-Conservatism, At Least It's An Ethos

I've been pretty harsh on philosophical neo-conservatism over the last year or so since I've been writing here at Publius Endures. In fact, it's safe to say that of all the various (actual) political philosophies that form a significant portion of our governing political coalitions, I have consistently held neo-conservatism in by far the most contempt.

And without a doubt, the basic tenets of neo-conservatism, with its emphasis on the spread of democracy as an end unto itself, are tenets with which I profoundly disagree. But it's also worth remembering that neo-conservatism, at least in its most philosophical form, is very much concerned with a positive, idealistic worldview just as any other true political philosophy is. And while, just as other strains of conservatism and libertarianism, many prominent neo-conservatives have fallen under the spell of "talk radio dogmatism," the actual philosophy of neo-conservatism itself - again much like other strains of conservatism and libertarianism - has deep intellectual roots.

Perhaps nothing provides a clearer example of the distinction between this "talk radio dogma" neo-conservatism and actual philosophical neo-conservatism than the reaction in conservative circles to the impending nomination of Leon Pannetta to head the CIA. As an outspoken critic of torture (aka "harsh interrogation techniques") and the intelligence failures of the last 8 years who has no previous connection to the CIA, the Pannetta nomination has unsurprisingly drawn the praises of civil libertarians of all stripes - including Greenwald, Sullivan, Schwenkler, and Hilzoy.

What is, however, surprising is the way in which the pick has split the portions of the political Right that hold to a more-or-less neoconservative view of international relations. On the one hand, some of neo-conservatism's biggest intellectual heavyweights, including Douglas Feith and Richard Perle, are almost completely supportive of the nomination - in spite of Panetta's harsh criticism of policies that Feith and Perle either pushed or excused. The common thread for this group seems to be an acknowledgement of the failures of the last eight years, and a belief that those failures arose due to systemic, institutional problems within the Agency. To them, these problems can only be fixed by someone outside the Agency with strong managerial skills, and preferably, it would seem, a critic of the Agency. At base, this group recognizes that a neo-conservative agenda cannot succeed unless there is some sort of comprehensive reform of our intelligence services - and it is that idealistic (if, in my view, deeply flawed) neo-conservative agenda that remains their ultimate concern and goal.

But the GOP dogmatists, who do not understand the intellectual roots of the fundamentally neo-conservative foreign policy they advocate, have taken a vastly different tack.

Ed Morrissey, who is as close to an intellectually honest dogmatist as you will find:

Even the notion of “change” doesn’t apply here. Obama has no executive experience in government, and neither does Panetta, but Panetta hardly represents a breath of fresh air in Washington. He’s another Clinton-era retread, only in this case, put in charge of an organization about which he knows nothing. He’s there to exercise Obama’s political will and nothing more.

Similarly, Wizbang calls the pick the equivalent of the Bush decision to choose Mike Brown to head FEMA, while Ace of Spades says Panetta's only qualification is "being a lifelong partisan hack." And, of course, Michelle Malkin says "Another day, another clueless Clinton crony named to a top job for which he has no experience. The unqualified fish rots from the head down, after all. "

Notably missing from any of the discussion amongst the dogmatists is an acknowledgement of the systemic problems faced by the CIA, whether it be in terms of the moral issues related to interrogation techniques or in terms of the embarassing intelligence failures in recent years.

More at memeorandum.

Cross-posted at Donklephant.

The Grand Old Dogma

Me, elsewhere:

Over the last few months, there has been much finger-pointing as to which particular sect of the old GOP coalition is to blame for the policy failures of the last 8 years and the electoral failures of the last 2 years.....I think these accusations are deeply misplaced - the problems have not been caused by religious conservatives or adherence to free market beliefs, but instead by a sort of "talk radio" dogmatism in which any given issue becomes a litmus test for whether one is a "true" conservative or Republican.

This dogmatism has become terribly pervasive, dominating the party infrastructure and including many of the most prominent faces of conservatism both online and on the air. It is a dogmatism that is in some ways pushed by a wide variety of conservatives - free market conservatives and libertarians, religious conservatives, and defense conservatives. And yet it is also a dogmatism with which large elements of each of those groups take significant umbrage.

In and of itself, though, a little dogmatism is not necessarily a unique hindrance to a political party or movement’s electability or even its legislative agenda - political dogma has existed for at least as long as political parties have existed, and without some of it political parties cannot distinguish themselves from their competitors.

Instead, the problem with this particular form of dogma is its all-around meanness. Under this dogmatism, dissenters of any stripe are treated as the enemy, regardless of whether the dissenter’s general viewpoint could be described as "conservative," and regardless of the dissenter’s political affiliation. Wide nets are cast to stereotype anyone who may be adversely affected by implementation of one of the dogma’s tenets. Where a particular tenet relies on a particular fact, and a suggestion is made that the fact is inaccurate, the personal loyalties of the questioner are called into question - even if the fact is demonstrably wrong.

What's important here isn't that GOP dogmatism (or political dogmatism more generally) is overly ideological - quite the opposite, actually. Instead, the problem is that it doesn't recognize its lack of a firm ideological basis, turning the individual policy preferences of whichever strain of conservatism is most passionate about a given issue into a litmus test for some imagined "master conservatism." Because this dogmatism represents the conclusions of numerous different philosophies, though, it cannot rely on the ideological arguments that gave rise to the policy preference in the first place. For instance, relying on principled libertarian arguments for a particular economic policy is not possible when you take a position on social policy that is inherently at odds with those arguments; similarly it is not possible to rely on principled religious conservative arguments for social policy when you take a position on economic policy that is directly at odds with those arguments. In short, the problem with dogmatism isn't that it elevates principle over the common good - it's that it is almost completely devoid of principle in the first place, a fact which Conor Friedersdorf seems to get. The result is that this imagined "master conservatism" is forced to rely on arguments that rely on a sense of fear and an "us against them" mentality.

This is not to say that this type of dogmatism is without value - it's useful as a means of creating party unity and "getting out the base." Nor is it particularly the province of conservatives - liberals and Democrats most certainly have their own type of fear-based, "us against them" dogmatism. Instead, the problem here is that the dogmatism has become far too pervasive, both in terms of those who insist on this dogmatism and - as importantly - in terms of the number of issues to which it extends (even extending to issues that have no inherent connection to policy preferences, such as whether Iraq had WMD's, whether global warming is real or imagined, or whether AirTran was morally correct in its refusal to permit a Muslim family to reboard a flight after they were cleared by the FBI).

For instance, it's one thing for talk-show hosts to rant and rave about "Defeatocrats," the "homosexual mafia," etc., since their purpose is not to persuade but is instead almost exclusively to rally the people who are already predisposed to agree with them. It's a far different thing, however, when that attitude extends to campaign tactics, and/or a huge percentage of "talking heads," whose purpose is at least nominally to persuade people to either vote Republican or to support a particular policy position.

Similarly, it's one thing to rant and rave against a particular group as a means of motivating your "base" and maybe to scare the bejesus out of some fence-sitters into supporting your position. It is a far different thing, though, to do this on virtually every issue. So while Muslims, for instance, may be a tiny minority group whose support on any given issue is not worth being concerned about losing, the combination of Muslims, gays, social safety net beneficiaries, Latino immigrants, war opponents, etc. is a pretty large group.

By relying on rhetorical arguments that demonize so many groups and by making those arguments through so many different mediums, this form of dogma dramatically reduces the "pie" to whom conservatives may appeal - both for voting purposes and for purposes of winning support on policies that have nothing to do with the issue on which that group has been demonized. As Rod Dreher points out: "...if you build your political movement around constantly pointing out that it's Us vs. Them, pretty soon you'll find that there aren't too many of Us left."

But again - this problem is not one that is uniquely the province of conservatism or the Republican Party. Instead, it is a problem that will inevitably arise as any particular political coalition becomes ever-larger and attains a certain level of political success on issues where there is near-uniform intra-coalition agreement; in order to maintain the successful coalition, the party needs to manufacture loyalty on issues where there is less intra-coalition agreement. This is, however, an unsustainable strategy due to the way in which it "shrinks the pie" by demonizing policy opponents, even if they happen to be in the same political party. Eventually, the pie becomes small enough that the party can again find a coherent set of positive principles around which to build, and the cycle will begin anew.

The extremes of this cycle are just exacerbated today due to the way in which modern technology allows politics to pervade so much of everyday life. Eventually, the Dems will face similar problems as a result of their own successes, even as the GOP rebuilds around some as-yet unknown set of principles with a relatively broad appeal.

(Cross-posted at Donklephant).

The real fantasy is labor union virtuousity. They are in it for themselves and themselves only...

In a previous post about ratings agencies and the subprime crisis. I made a few points regarding this post written by Eric Martin at Obsidian Wings. One comment that was, I address a post where the author criticizes the GOP view of capitalism:

In each case, the faith based, categorical, oversimplified outlook has replaced empiricism, pragmatism and a nuanced appreciation of capitalism's strenghts and weaknesses.

I know it wouldn't apply to my views on free markets so I didn't really see the need to take Eric to task for it. However, I will use this statement to take his co-blogger publius to task for his faith-based, over-simplified, fundamentalist and poorly-reasoned defenses of both labor unions and the grossly misnamed Employee Free Choice Act (his posts are here, here and here).
His attacks on anyone who disagrees with him as acting in bad faith are amusing enough (and his shots at Richard Epstein's views on constitutional law are rather amusing). His belief that his need for the EFCA revolve around numerous AFL-CIO talking points and the pulp fiction imagery of corporations acting as banana republics. The current election system may be imperfect but these apocalyptic warnings (and, in some cases, misleading statistics) are not supported by any sort of analysis or, frankly, evidence (unless you trust organized labor to provide objective data). I have little to no interest responding at length about these weaknesses in his arguments. There is a deeper, more fundamental error in overall view on labor unions:

Alleged union coercion is basically a fantasy as well given the incentives unions have to remain in employees' good graces.

This is patently false. First of, all the facts don't support this claim. Second, it completely ignores the rules of interest group politics by conflating a political faction to something more altruistic and virtuous. Last, to make such a statement requires abandoning everything we ought to know about human nature and greed. To reinforce this last example, I will draw upon lessons I've learned about the subprime mortgage business.

According to the most recent annual report issued by the NLRB (here), there were approximately 22,000 complaints of unfair labor practices for the year ending September 30, 2007. Of that amount, approximately 6,000 (or 27%) were filed by against labor unions alleging unfair labor practices. Of that 6,000, approximately 83% (5,000 complaints) were filed by individuals, mostly alleging illegal restraint or coercion by members of labor unions. In addition, the Center for Union Facts provides data from the Bureau of National Affairs that four unions, the SEIU, the Teamsters, the UFCW and the Steelworkers, during a 6-year period, racked up an impressive 15,000 or so separate allegations of violating labor law. A Cato Institute Study from 1998 has background on violence in organized labor's history of violence as well. Lawbreaking amongst union officials or by those doing their bidding is not an isolated event by any stretch of the imagination. It never has been.

Organized labor is an interest group (a political faction), and according to the laws of interest groups as artfully written by my co-blogger Mark, that seeks "nothing more or less than the advancement or protection of their leaders and member's preferred outcome". If unionization is the goal, then the interest group will do whatever it can to achieve that objective by all means necessary. Altruism has nothing to do with it. It is greed and power that motivate organized labor just as it does any other interest group that has the possibility to petition the government and successfully further their own agenda into law (i.e. The Wagner Act).

Organized labor is an especially interesting situation because here is a political faction that once wielded a HUGE amount of political clout and has since diminshed in its significance over the past few decades for many reasons (the NLRB election process not being one of them). Private sector labor union membership has dropped to approximately 7.5% of the workforce. A once powerful force finds iteslf limping in the 21st Century. Efforts to organize on a ground-up basis, despite winning a majority of elections (NLRB data has it around 55%) aren't producing a satisfactory number of new members to increase ranks. Corporate campaigns against WalMart and other companies who are successful at blocking organizing are proving futile as well. Like any interest group, organized labor wants that power back.

If one were to believe publius' arguments, one would believe that EFCA is an anti-corruption measure that would eliminate any and all possibility of employer tampering. Nevermind the fact that existing labor law already has in-place a great many remedies and definitions of unfair labor practices that do protect labor unions for these sorts of things. Also, if I read NLRB v Gissel correctly, a card check majority may be sufficient in order to certify a labor union in the event that employers tamper with the election process. In my opinion, if there is a purported unfairness in the system (and reasonable minds can disagree), it does not seem to be from a lack of regulation, but rather a lack of enforcement. The place to start a debate and discussion should be with respect to amending or reforming existing legislation. publius' exaggerations notwithstanding, he provides no real evidence that amending current labor law will not mitigate the problems he claim exist with the election process.

The EFCA removes this oversight system almost entirely by removing the ability of employers and the NLRB (at the employers request) to verify that the card check majority truly represents the interests of the workers. The current system provides workers with an environment to vote its true intentions. In the event employers illegally attempt to influence the election, unions have courses of action they can take to stop those activities. Albeit imperfectly, the current system gives both sides a check against possible wrongdoing or corruption on the other. To change the existing system to the rules under EFCA will remove oversight and regulation and not increase it, a rather bizarre conclusion for liberals to reach given that their solution to almost any problem that offends them is more regulation and not less. As far as the organizing process goes, the pitcher gets to call the balls and the strikes, not a neutral umpire.

In a post-EFCA world, organized labor, knowing that employers will have virtually no say in the organizing process simply need a majority of signed cards (to suggest elections will be held by employees is about as ridiculous as suggesting that the Earth is 6,000 years old). They gain the power to force employers to collectively bargain. They gain union dues to the tunes of tens of millions of dollars or more. They gain power and prominence amongst the competing factions within the Democratic Party. There will be very little incentive to attempt to align their interest with workers because there will be no risk that a worker who signs a union card will vote against the same union in a secret ballot. All that is required is a signature that a little "persuasion" can accomplish. The message from the union organizers at the top will be clear: "get those signatures by all means necessary".

This is the sort of situation that is ripe for instances of control fraud, and we can observe this action through the lessons we have learned from the subprime mortgage crisis (especially William Black's post at Cato Unbound). On this subject, Black writes:

Internal audit is the “anti-canary” in the corporate “mines”; by the time it is suborned every other unit is corrupted. The CEO cannot send out a memo urging accounting fraud, but he can safely send the same message through his bonus plan. He does not have to order, or be aware of, the specific frauds—the employees will do whatever is needed to “earn” their top bonus. The CEO simply communicates—by inaction—that he does not care how they meet the target.

"Hit your numbers by all means necessary" was in effect the message in the subprime mortgage industry (Chain of Blame is an excellent for insight into the subprime mortgage business and I recommend it). The message from the top was clear. The account executives, originators, brokers, etc. knew what they had to do to get those numbers. Internal controls within companies like Countrywide were virtually non-existent and rendered toothless. Angelo Mozilo can denounce fraud all he wants but it does not necessarily follow that the incentive system that is put into place (mainly by him and/or senior management) without the lack of control will not be a system where its participants will find engage in questionable or fraudulent acts in order to meet those objectives.

With motivating factors like greed, power and money, there is no logical reason that organized labor will, in principle, follow a different path. Labor union officials will want to see their ranks swell by leaps and bounds as fast as possible. They will encourage that as a goal for all organizers and organizers will use whatever tactics are at their disposal to make those goals become a reality. In the absence of any sort of referee to keep the playing field somewhat level, acts of fraud and coercion are to be expected at no small level. The laws of human nature and interest group politics suggest this to be the case. With little to no real oversight to verify wrongdoing on the part of union organizers, I would expect quite a bit of wrongdoing (Kipesquire agrees).

The Employee Free Choice Act is not about restoring the middle class, the "Great Compression" or some liberal ideologue's fantasy of the just society. The law is about organized labor and only organized labor. It is about further undercutting the concept ofa level playing field by removing the ability of employers to seek secret election ballots, which give the employees a way to express their true intentions. Labor unions don't want fairness. They want union shops, union members and, of course, union dues.

It's that simple. They want their power back and require a legal regime heavily tilted in the favor to do it. To hell with the consequences.