Random Thoughts About Benghazi

1. Though it seems to defy logic, everything is worse than everything in some respect. Benghazi might be worse than Watergate if it had been Mitt Romney who died. The real reason why (some) conservatives think Benghazi has some sort of comparability to Watergate is that in both cases, someone won an election that someone else thought they should’ve lost. By this standard, all politics are as bad or worse than Watergate.

2. Liberals cannot grasp conservatives’ Benghazi narrative because they come up against an incomprehensible claim, and those are hard to hear. What possible reason is there for the alleged conspiracy? What did anyone stand to gain? The answer is “to weaken American power and undermine American security, which is Obama’s goal, of course.” There’s a more credible version of this thesis, which is “Obama let an American die because the Muslim Brotherhood was behind the attack, and he’s trying to make nice with the Muslim Brotherhood, i.e., Egypt.” But that can’t be said out loud because the obvious reason why an American president would want to make nice with the new regime in Egypt is to preserve Israel’s security, which takes the story in the “wrong” direction.

3. A president we have some slight reason to believe harbors Muslim sympathies (by virtue of public statements suggesting as much) receives warnings about a terrorist attack and does nothing. Americans die. Yes, one could characterize 9/11 that way. But would it be fair? Again, “worse than” is relative to a context.

4. For Republicans, the biggest problem with Libya is that it is the best and perhaps the only successful application of the Bush Doctrine thus far. Actually, this is a pretty big problem for Democrats too, come to think of it. Thus, when it comes to Libya, we must all talk about something other than the fact that it is the successful democratization of a Middle Eastern country through the application of American military force, with minimal loss of American life. It must be compared to something that involved no loss of life whatsoever, lest it be compared to Iraq.

5. Libya is just about the best candidate for the epithet “illegal war” I’ve seen in ages. Therefore let’s not talk about that at all (or make sure that the only person who worries about an imperial presidency has absolutely no credibility on that score, say, John Yoo). After all, the one thing that Democrats and Republicans can agree on here is that, you never know, you might want to engage in an illegal war in the future, so it’s best not to paint oneself into any corners.

When I listen to this “conversation” between Democrats and Republicans, I feel like a family therapist at a group session, listening in while the family members vituperatively nitpick at each other about irrelevancies precisely so that the obvious problems that everyone is in denial about never get broached.

The first step to recovery? “We admitted we were powerless over our own imperialism, and that our nation had become unmanageable.”

Repost: How Gun Talk Is Misperceived

[Originally posted Sep 27, 2011] Firefly is a canceled science fiction television program with the most thoughtful writing and most devoted fan base since Star Trek. Whereas Star Trek articulated the values and aspirations of Kennedy liberalism, Firefly is unusual in articulating a distinctively libertarian vision. Part of how it does this is by modeling its imagined universe on the decades after the American Civil War, but a Civil War in which the Union’s only purpose was to extend and intensify its sway, and the South’s only purpose was to retain its self-government, a postbellum world seen through the eyes of the South. Naturally, slavery does not enter into it. Our hero, Captain Malcolm, finds no place in the new order and becomes a wanderer and a smuggler. He is presented as an honorable man trying to live a self-sufficient existence. Since he has no use for the State that would put him out of business or worse, he must make his own freedom and justice, and thus is always personally armed. Unlike scores of pop culture icons, he is never seen using force to take revenge, but only to protect himself or his crew. Part of his charm is that he is almost never truly angry. These are not unconnected facts if you think about it, and I hope you do.

Because his self-help approach to justice is unfamiliar to those who rely on the authorities for their protection, he can seem dangerous, even villainous, but this is a misunderstanding. At one point he addresses precisely the concern that another character raises about whether anyone is safe around him, by saying “You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.”

Notice that he says “if” not “when.” “When” is revenge talk. In fact, if this were one of those scads of ressentiment-filled pop culture confections, this really should read “When I kill you, you’ll never see me coming. You could be enjoying a meal, playing with your children, and before you know what hit you, I will be there, and that moment will be your last.” Now Captain Malcolm is not “deconstructing” this sort of comment, he is simply rejecting it. But this must be explained because we don’t know him. He is explaining that he does not do this, this is not who he is. He does not prey on people and he does not hunt people down. He says “if” and the full meaning of the “if” is “if you force me to kill you by your actions.” What would those be? Endangering him or those under his protection, by their own acts of violence.

The rest of the quote explains something I discussed in my last post. There are two reasons why the opponent will be armed, one of which we just alluded to: the opponent will be armed because he is acting violently in a way that endangers others, but so violently that nothing short of lethal force will be able to protect them. In short, the aggressor will be armed. If he were not, he is either not acting violently, or his violence can be managed with less harsh action, action which, Malcolm implies, can preserve the aggressor’s life. Second, Malcolm is alluding to a norm he follows regarding a fair fight. Even if all justice is on one side and none on the other, an honorable man gives his opponent a fighting chance. An honorable man does not kill the disarmed or insensate. Which, by the way, is why an honorable man cannot accept the State’s most awful activity, the activity of execution.

The reason for such a code of honor is necessity. If there is no institution that will achieve justice between us, then we must internalize standards of justice in our dealings with each other, and when a man is just because this is who he is, independent of what the State would induce him to do and to be, that is what it is to be honorable.

It may come as no surprise to you that these are all ideas which are somewhat foreign to academia. So when an academic who is also a Firefly fan (like myself) posted a picture of Captain Malcolm, uttering the above quote, on his office door on September 12, at the University of Wisconsin-Stout, it should also not surprise us that campus police removed it, saying that “it is unacceptable to have postings such as this that refer to killing.” Perhaps if it were a picture of Gandhi saying “never kill” in so many words, the point would have been more congenial? But here’s the thing: the quote is about not killing, it explains why, on the whole, an honorable man does not kill. And that means that if the hypothetical Gandhi poster were acceptable, but an actual poster that says, in so many words “never kill unless it is necessary to protect someone from violence” is not, then this is what constitutional lawyers call “viewpoint discrimination.” Wisconsin, and her universities, are state institutions, and thanks to the First and Fourteenth Amendments, Wisconsin cannot use force (a police officer) to engage in viewpoint discrimination. It cannot implicitly insist that Nathan Fillion’s sarcastic mug be replaced with Gandhi’s sanctimonious one. Now there are exceptions to the First Amendment, the “clear and present danger” doctrine and the “fighting words” doctrine: if we can assume that violence will immediately ensue because of this act of speech, it is not protected. The conditionality and temporal remoteness involved in the speech (“if I ever kill you, you will be awake”) make this an impossible argument. So the poster is protected. Whoah. Good Constitution.

Naturally, the officer of the State would prefer a world in which individuals are disarmed and do not even suggest that there are alternatives. This is the only explanation for why it is that when the professor in question put in the place of the Captain Malcolm poster a poster that read “Warning: Fascism. Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets” this too was removed. Now reasonable people can differ about what the First Amendment’s outer boundaries are. But few fail to grasp the fact that the First Amendment’s core is the protection of political speech. It is hard to imagine someone so obtuse as to fail to grasp that the second poster’s comment expresses a political opinion, and an opinion which is critical of violence.

To understand this entire episode, one would need to be able to do three things: know something about the libertarian values expressed in the Captain Malcolm quote, understand the constitutional law of one’s own nation, and read language for meaning. And yet all of these things were in short supply precisely at a government-sponsored institution of higher learning. I’m thinkin’ someone weren’t burdened with an overabundance of schooling.

[hat tip Foundation for Individual Rights in Education]

Newtown

By all means, have a discussion about the regulation of assault rifles. Because if there hadn’t been an assault rifle involved, it would’ve been a murder-suicide, two fatalities, and you wouldn’t have had to be aware of it at all. And that would be great because then there would be even less of a chance that we would have to think about what happens when women and children are abandoned by their husbands. But seriously, why on earth would a wicked patriarch stay in such a painful and difficult situation when, instead of upholding the wicked patriarchy by doing a duty no one honors or respects anymore anyway, he could flee to self-actualization, leaving the mother of his severely ill child to “empower” herself in the only way available? It’s funny: we bend over backwards to avoid discriminatory hiring that might adversely affect white upper middle class professional women, and yet somehow, it still totally sucks to be a woman in America. While we wallow in our sublimated fantasies of revenge against those who do not share our distrust of our neighbors or ourselves, remember that, while the Other created the lax gun control regime that we are complaining about now, the match as it were, we created the dysfunctional families that cannot survive severe stress, the powder keg.

Progress

Image

“A Klee painting named ‘Angelus Novus’ shows an angel looking as though he is about to move away from something he is fixedly contemplating. His eyes are staring, his mouth is open, his wings are spread. This is how one pictures the angel of history. His face is turned toward the past. Where we perceive a chain of events, he sees one single catastrophe which keeps piling wreckage upon wreckage and hurls it in front of his feet. The angel would like to stay, awaken the dead, and make whole what has been smashed. But a storm is blowing in from Paradise; it has got caught in his wings with such violence that the angel can no longer close them. This storm irresistibly propels him into the future to which his back is turned, while the pile of debris before him grows skyward. This storm is what we call progress.”

— Walter Benjamin, Theses on the Philosophy of History, VII

____________________________________________

Photograph by: Nasser Nasser/AP Photo , Postmedia News

Pedantic Thoughts on Marijuana Legalization

As Pliny says, “characterization is everything.” Just as violation of our immigration laws produces persons whose status is “illegal” to some and “undocumented” to others, we now are apparently experiencing the “legalization” of marijuana, which, of course, remains a federal crime despite its (repeatedly referred to in the media) “legality” in some states. So I thought that before we engage in another exercise in the undermining of the rule of law by treating some laws as more lawish than others, some pedantry is called for.

The first comment I wish to make at the outset is that I favor some form of federal decriminalization, on the grounds that analogies between the consequences of our current marijuana regime and old Prohibition, are sufficiently strong to remind us that crazy is when you keep doing the same thing while expecting a different result. I also think that decriminalization at the federal level is inevitable.

However, there is no fair understanding of world and language that allows us to say that marijuana has already been legalized. First, to be legalized, it would have had to have been illegal when prohibited by, say Washington State, and now legal when no longer prohibited by Washington State. The only way this could be true is if Washington State’s marijuana laws are valid but federal laws are not. How could that be true? Did not Congress duly enact the federal marijuana laws? Perhaps it only thought it did, but that the laws were unconstitutional. So we must know what it would mean to say that they are unconstitutional.

One thing it could not mean is that the Supreme Court, in the due exercise of its powers of judicial review, had held that the federal marijuana laws were unconstitutional, because that question was already asked and answered, in Gonzales v. Raich, where the narrow question was whether Congress could use its Commerce Clause power to ban the growing of medical marijuana for in-state use, and following its own prior reasoning in Wickard, the Court held that Congress could. The broader questions about the permissibility of Congress regulating the growing and distributing of non-medical marijuana in-state answer themselves, since medical marijuana is the more difficult question.

But perhaps the Supreme Court has misinterpreted the Constitution? One view, seldom expressed out loud but popular nonetheless, is that constitutionality is determined by the objective contours of natural right, such that no federal law is constitutional if it involves a violation of natural right, and the personal use of marijuana is a natural right. There are some worries about such a view (see below) but the point here is that if you have a natural right to grow, sell or use marijuana, such that federal laws are invalid where they violate natural right, then either the federal government is peculiar in being held to natural right, or no law, state or federal, is valid when it violates natural right. In that case, Washington cannot legalize what it was never able to validly render illegal in the first place. To get an asymmetry here, you have to subordinate natural right to original intent and say that the reason why natural right determines validity at the federal level is that the Federal Founders so intended, but the ratifiers of the  Washington state constitution did not so intend. The evidence for this proposition is only slightly weaker than the evidence for the other two possibilities (they both so intended, neither so intended). Rather, I think we should follow H.L.A. Hart and say that criminalization of marijuana is morally unfortunate (“violates natural right” if you like, though them’s fighting words) and that it being so is a good reason to eliminate such laws, rather than taking it as a reason such laws, surprisingly, do not exist.

But there is another Hartian thought that needs to be expressed here: the central function of law is to facilitate peaceful coordination, and it is awfully hard to do this if the law does not possess mechanisms that enable people to readily recognize what the law is. Hart calls such devices “rules of recognition,” and one of them is when we ask the Supreme Court, in the context of a case or controversy, if a putative state or federal law is rendered null by its inconsistency with the federal constitution. The purpose of giving this task to the Supreme Court is not because it is infallible, but to ensure that we are all on the same page: they tell us what page that is.

Now I called these pedantic thoughts because, of course, everyone already knows them. We know that the immigration laws do not disappear in a puff of smoke just because they need to be reformed, are susceptible to moral criticism, and we use the word “undocumented” instead of “illegal” to describe those who violate them. We know that trafficking in marijuana is still a felony even if the citizens of Washington don’t like that fact. But we also know that using language appropriate to activities which are legal to describe activities which are illegal helps to reduce respect for, and ultimately compliance with, a law, and thereby helps pave the way to legal change. This is why journalists use words like “undocumented” and “legalization” in discussion of laws they do not approve of. It is, of course, a wonderfully good thing that people of a different political persuasion are not equally capable of uttering phrases like “the so-called ‘law’ that requires you to carry health insurance.” It is also a wonderfully good thing that discrediting the rule of law when it suits you has no propensity to discredit the rule of law more generally, since that would have the effect of diminishing the power to use law for any purpose. But at least if that were to happen, no harm would come of it, since rule of law is overrated anyway. What we really want is the contest of moral opinion, which will of course be peaceful because in the absence of law, contests of moral opinion are always peaceful. Aren’t they?