The Panther

His vision, from the constantly passing bars,
has grown so weary that it cannot hold
anything else. It seems to him there are
a thousand bars, and behind the bars, no world.

As he paces in cramped circles, over and over,
the movement of his powerful soft strides
is like a ritual dance around a center
in which a mighty will stands paralyzed.

Only at times, the curtain of the pupils
lifts, quietly—. An image enters in,
rushes down through the tensed, arrested muscles,
plunges into the heart and is gone.

—Rilke/Stephen Mitchell

Arab Spring

Etel Solingen’s view is that post-1989, the fundamental choice regimes face is integration into international capitalism, or resistance. Either choice serves its own distinct faction internally. Resistance means protectionism, which ends up propping up state-dependent sectors, especially those related to military spending. The ideology which supports this protectionism will be nationalist/confessional, and justifies protectionism by a stance of conflict toward other states. Solingen’s purpose is to explain war but this also explains revolution, and whether it succeeds or not.

I elaborate: This will in turn create poverty and discontent at the bottom and frustration in the (non-oil) trade-dependent middle class, unless it is ameliorated by oil revenue to state-owned oil companies, or US foreign aid. Where these revolutions replace nationalist regimes with confessional ones or vice versa to the exclusion of the liberalizing, trade-friendly middle-class, there will be no fundamental change (and no peace or amelioration of poverty); where it is the economic liberalizing faction that gains the upper hand, this will result in economic diversification, de-militarization, interdependence with surrounding states, etc.

Arab Spring is ambiguous, because nationalist regimes have two enemies: economic liberalization, and Islamism. Whether the Arab Spring is meaningful thus remains to be seen: since nationalist and confessional ideologies ultimately serve exactly the same political and economic interests, revolutions which trade one for the other will have no lasting effect on democracy, economic liberalization, nuclear non-proliferation or peace. By contrast, those which trade economic liberalization for protectionism have a chance. But the greatest obstacle to this will be anything which subsidizes the state sector and helps it thrive without regional trade: oil revenue, or US foreign aid.

The left and right in the US will tend to get it wrong, thinking that outcomes consist merely in a more or less positive stance toward Israel, or a more or less positive stance toward populist democracy. But these are surface effects. The driving force behind more peace or more freedom is ultimately more non-energy regional trade, and greater influence politically from those who, internally, depend upon it.

Already Settled Law?

There is a “reasonable people can differ” argument over whether states can decline to create same-sex marriage statutorily without falling afoul of the Equal Protection Clause of the Fourteenth Amendment (the argument, more or less, is that such “bans” mirror bans on mixed race marriages, held unconstitutional in Virginia v. Loving, and here, the argument depends crucially on the analogy between race and sexual orientation holding or not.) However, what happened in North Carolina was not the act of a state legislature (or the omission of an act by a state legislature). It was an amendment to the state constitution. This may matter in ways that have not occurred to people who care only about winning or losing on the substantive issue.

Once upon a time, the state of Colorado attempted to do something similar. There were political forces at work leading to the inclusion of sexual orientation as a prohibited form of discrimination in various antidiscrimination statutes and ordinances within the state. Colorado responded by amending its state constitution. The effect of this would be that even if advocates of sexual orientation antidiscrimination statutes were successful in persuading the majority of the people and the political branches of their desirability, they would still be impossible unless there was also success in repealing the amendment to the state constitution. And the U.S. Supreme Court held that this was a bridge too far.The case is called Romer v. Evans, and you can read it here.

The reasoning of the court focused on the wide range of potential statutory protections homosexuals were prevented from seeking from the legislature by the amendment, and given the absence of any rational relationship to any legitimate governmental interest, the inevitable inference that the amendment was born of animus. “Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”

Now it is arguable that marriage is quite different in substance from antidiscrimination legislation, but consider: marital status carries with it a slew of status-based advantages both public and private. If North Carolina’s Amendment One left the door open to domestic partnerships or civil unions which were functionally equivalent to marriage but lacking its dignitary value, one could argue that this slew is unaffected, and that the legislature was still “open on impartial terms to those who seek its assistance” but the language of Amendment One makes it clear that this too shall be blocked from statutory creation (“Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State”), and that if gays and lesbians seek functional equivalents, they will have to cobble them together piecemeal using existing law (“This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts”). This can be done, but it is complex and inconvenient (consider this book of legal forms and notice the long list of forms it provides for precisely this purpose.)

So my question is: isn’t the unconstitutionality of Amendment One already settled law?

Postscript: a legal scholar recommends that the Supreme Court arrive at a holding not unlike what I have described above. I would go further and predict it.