China and its Discontents

Reposted from Facebook:

Here’s an idea: Paul Clement argued last week in Hollingsworth v Perry SCOTUS oral argument that the government’s rational interest in preserving hetero-only marriage is to further its fundamental procreative purpose. But in what alternate universe will gay marriage deter straight couples from making babies (“oh, I suddenly have the option to get gay-married! time to switch sides!”), or encourage LGBT folks to go straight and make more babies? Conversely, marriage equality (and this is a point that has been made before) only encourages more children to be raised in stable, loving family homes (surely a rational government interest if there ever was one). What happens to children after procreation is actually a greater government interest than the procreative act itself. The pro-marriage equality argument often focuses on defining marriage as primarily an expression of love and commitment, which is true and great; but how would this debate be different if we focused more on the ways in which marriage equality strengthens society, supports children, and is in the end a pretty conservative idea?

Note: I am not in favor of this case being decided under rational basis review.

Garrett Epps at The Atlantic gives a good summary of one of the main arguments made by anti-marriage equality lead lawyer and Supreme Court barrister extraordinaire Paul Clement in the Prop 8 and DOMA cases. Per Epps’ summary, Clement argues in his brief that the LGBT community is no longer politically powerless and should be allowed to continue the fight for equality through political means, obviating the necessity for judicial action. But as Epps notes, this is a disingenuous argument, because it is geared towards denying the LGBT community a suspect classification of strict scrutiny under the Equal Protection Clause.

The question of whether the court will use rational basis or strict scrutiny in these cases is exceedingly complicated, and there are some things Garrett does not mention. In the Prop 8 case Judge Walker used the rational basis test precisely because of the fear that people like Paul Clement would successfully argue against the use of strict scrutiny and overturn the decision. If the Court also uses the rational basis test, then Clement’s argument is unnecessary.

But the Supreme Court doesn’t need to fear being overturned. The use of which level of scrutiny probably hinges on Justice Kennedy, since he is the swing vote and wrote the majority opinion in Lawrence v. Texas. Personally I think the reasoning in Lawrence v. Texas translates quite well to the argument for marriage equality. As I argued here, it is a natural fit, and very powerfully-written. But it also does not map well on to these questions of scrutiny. In his opinion, Kennedy used the Due Process Clause to overturn anti-sodomy laws. But even though the use of the Due Process Clause would traditionally require strict scrutiny and the violation of a fundamental right, he doesn’t explicitly use strict scrutiny, and is apparently in favor of using a whole new form of review that hasn’t yet been entered into jurisprudence (enhanced rational basis? I am not sure).

I imagine that other justices might be opposed to introducing a whole new form of review, even if Justice Kennedy does write the majority opinion. My hope is that the Court finally settles the issue and applies strict scrutiny to the LGBT community. This would make future cases easier to decide and finally cement LGBT equality on every front. Introducing a new standard would of course have far-reaching implications, confusing the entire judicial system and overturning a lot of firmly entrenched jurisprudence. Probably a good reason why it is unlikely. But I may be completely wrong!

EDIT: I should add that I find Prof. Epps’ commentary on Justice Scalia to be hilarious:

In the eyes of its enemies (and who seriously doubts Justice Scalia’s distaste for homosexuality?), any persecuted minority may suddenly morph into a tyrannical over-caste, without pausing at the civic equality stop.

“We used to think that removing oppression and imposing justice are the same thing, but justice requires dialogue,” Mr. Qaid added. In prison, he said, he and many of his fellow Islamist inmates decided that just as they rejected Colonel Qaddafi’s suppression of dissent, they should never try to impose their own views on others. “We want to derive our way of life from the teachings of our religion, without forcing anyone else to do it,” he said. “These are the principles that never change.”

The whole article in the New York Times also has some very useful suggestions for American policy makers on not treating all combat-age Muslim teenagers as enemy combatants.

On the eve of SCOTUS potentially overturning the individual mandate portion of the ACA, Ezra Klein reacts to the sadness and resignation at the political polarization of the court coming from liberal legal scholars by saying: “Of course the Supreme Court is political!” Last fall I wrote a paper on the various civil rights cases basically saying that this is not just a modern phenomenon, but one that’s been around as long as the court has existed (or perhaps shortly after McCulloch v. Maryland), and that shifting interpretations of the Constitution are perhaps not such a bad thing given the shifting moral ground of society (EDIT: I should note that I do NOT support the overturn of the individual mandate). At the time I was very nervous about ever writing or publishing something like this, but I guess it’s become a common-place sentiment now! Read on:

Justice cannot be blind to morality; ultimately all decisions made by courts amount to moral judgments. This seems to run contrary to the most conservative notion of the law: fixed and unbreakable, to be treated only as the words exactly prescribe and in the exact intention of those who wrote it. But this belies the fact that we have progressed morally. To say that we have progressed morally is, I think, clear. One hundred and fifty years ago, it was acceptable for Justice Taney to declare: “He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics…” (6) In Dred Scott, Justice Taney’s conclusion that blacks cannot become citizens is grounded on a purely moral basis. The appeals to tradition and precedent are beside the point. If Taney had disagreed with this evaluation of all blacks, then he would have reasoned that since blacks were human after all, they deserved the rights and protections of the Constitution. Taney contorts himself trying to explain the Declaration of Independence: “The general words above quoted would seem to embrace the whole human family…But it is too clear for dispute, that the enslaved African race were not intended to be included and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.” (9) The founders would have been hypocritical if they simultaneously owned slaves and at the same time declared those slaves were free human beings? Why yes, they were hypocritical! There is no way Taney can come to this conclusion unless he makes a prior moral judgment that blacks are inferior. In this case, the language is unambiguous and clear, as Taney acknowledges in the first sentence.

The Court in the Civil Rights Cases and Plessy v. Ferguson did the exact same thing, but in reverse. The Court in these cases use the 13^th and 14^th amendments to institutionalize racism and discrimination in this country, contra to the obvious intentions of those who passed those amendments. When it passed those amendments, Congress specifically gave itself “power to enforce, by appropriate legislation, the provisions” of the two amendments. And it did enforce those provisions! It passed civil rights laws that guaranteed equality in the use of public accommodations; it directed the army to occupy the South, enforcing political and social equality and voting rights for blacks; it established the Freedmen’s Bureau to provide emergency assistance to former slaves, public schooling for black children, and found what we now refer to as historically black colleges and universities with the hope that the social inequality that former slaves and their descendants faced could be eradicated.

But the Court in the Civil Rights Cases and Plessy v. Ferguson made a predetermined moral judgment, and conformed their legal reasoning to fit that judgment. In the Civil Rights Cases, Justice Bradley seems to believe that “There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens…” (45) How can Bradley believe this in 1883, when surely he has read Justice Taney’s Dred Scott decision, written only twenty-five years prior? It certainly is not any close reading of precedent when Bradley decides to use this “fact” to support his argument that private discrimination should remain untouched by federal legislation.

Bradley later asks: “If it is supposable that the States may deprive persons of life, liberty, and property without due process of law…why should not Congress proceed at once to prescribe due process of law for the protection of every one of these fundamental rights…?” (36) And yet this alternative is exactly what happened when, in a series of decisions, the Court incorporated the Bill of Rights and applied it to the States! The Court in later decades simply made a different moral determination than Bradley did and used the Constitution to support that determination.

And the same thing happened when the Court ruled in direct opposition to the Civil Rights Cases in Jones v. Alfred H. Mayer Co. without explicitly overturning the earlier precedent. There is little difference in the facts of the two cases, and no difference in the legal issues presented! In the Civil Rights Cases, the Court denied that private discrimination constituted a badge of slavery per the 13^th amendment. In Jones v. Alfred Mayer, the Court did. The Court in every one of these cases interpreted the Constitution according to their individual ethical codes and contemporary public morality. How else can you explain the radical swings in Constitutional law, from Reconstruction, Segregation, and Civil Rights eras? Morality dictates law.

Nothing could illustrate this case further than the Court’s opinion in Plessy. I need only reference one overriding, and controlling fact to make my point. In the Civil Rights Cases, Bradley specifically stated that the 14^th amendment, “nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws.” (33) And yet Justice Brown in Plessy directly violates this ruling. Bradley meant that the 14^th amendment made unconstitutional exactly the same State-authorized Jim Crow segregation laws that Brown accepts as constitutional.

Any claim that the Court has always, and should always, retain a strict constructionist interpretation of the Constitution is a farce. We have progressed morally. Our interpretation of the Constitution has evolved dramatically over time. We haven’t maintained an Originalist interpretation according to the “Founders intent” (whatever that is), and we shouldn’t.

In Dred Scott, Taney derides: “No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitutions a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.” (24) But practically speaking, this is exactly what we have done. As we as a people have interacted with one another and discovered that we are human beings and citizens deserving of equal rights, we have changed our interpretation of the Constitution to fit the times. This is appropriate. Law is a codification of common morality. Any interpretation that insists we adhere to a puritanical eighteenth-century version of morality is wrong.

I just finished reading Yu Hua’s latest novel/memoir, “China in Ten Words.” What a book. It’s one of the best China books I’ve ever read, and it’s banned in China (which is one of the reasons why it’s so good). The book, with all of Yu’s polemics and invective, is an astonishingly effective evisceration of any legitimacy to which the CCP still desperately clings. If I were to make an analogy, Yu Hua’s latest book vs. his previous novels is like Tian Zhuangzhuang’s movie “Blue Kite,” vs. Zhang Yimou’s adaptation of another Yu Hua novel, “To Live.”

The premise of the book is self-explanatory: Yu Hua surveys modern China by looking through the lenses of ten words, from “People” and “Leader” to “Revolution,” “Grassroots,” and “Bamboozle.” But the method by which he does this is creative and emotionally resonant. Each word is mainly a jumping off point for Yu’s childhood memories of the Cultural Revolution. The beginning of the book in Chapter 1 (“People”), with his memories of the Tiananmen Massacre,  are the least distressing, most innocent parts of the book. Surprised? I was too. By the time we get to “Revolution,” present-day forced evictees are throwing Molotov cocktails at the demolition crews and burning themselves to death, and childhood Yu is admiring his older brother for making the teacher cry while other teachers backstab each other and engage in class warfare-style schadenfreude. In “Disparity,” young Yu and his buddies mob and beat a villager to crack down on the illegal sale of food-rationing coupons; the villager had been saving the coupons for his wedding. Yu explains: “We got a kick out of bullying those weaker than ourselves, believing too that we were performing a public service.” (149) Space-Time and the normal associations between youth and innocence have been overturned. Yu’s reminisces bring us into the thick of what seems like some tragic nightmare that belongs to some other reality, that “Romantic and absurd comedy/cruel and all too realistic tragedy.” (116-117)

Yu’s message gradually unfolds as we progress from word to word: that modern China and the CCP are still best explained by the Cultural Revolution; that China is still stuck in a middle-school mentality of bullying, senseless brutality, and anarchy. Furthermore, this backwards political system has birthed a deformed, inane popular culture where “copycats” and “bamboozlers” are celebrated. The implication is that China’s corrupt political system keeps the country stuck in a post-modern moral and spiritual confusion that the West can at least confront with a common moral vocabulary, strong critically-minded education system, and history of democratic governance; the average Chinese citizen has none of these resources.

This message is brightened by a few brief moments of light, mainly the parts where Yu describes how reading and writing lifted his psychology out of the mind-numbing senselessness of the Cultural Revolution. Another anecdote about how the town morgue was his only refuge as a child is oddly calming. But he mainly focuses on just smashing the CCP’s legitimacy to smithereens, especially with this perfect description of modern China:

“What is revolution? The answers I have heard take many forms. Revolution fills life with unknowables, and one’s fate can take an entirely different course overnight; some people soar high in the blink of an eye, and others just as quickly stumble into the deepest pit. In revolution the social ties that bind one person to another are formed and broken unpredictably, and today’s brother-in-arms may become tomorrow’s class enemy.” (137)

If it’s any consolation, Yu ends by saying, “A bamboozler is quite likely to end up bamboozling himself or–in Chinese parlance–to pick up a big stone only to drop it on his own foot.” (221) I think if he were to make it any clearer that he hoped the CCP would bamboozle itself, this book would not only be banned but Yu Hua would find himself “disappeared.”

GEORGE WILL’s Sunday column calls the Supreme Court health-reform case (three days of oral arguments begin Monday) “the last exit ramp on the road to unlimited government”: “[T]he Institute for Justice, a libertarian public interest law firm, [argues that the] individual mandate is incompatible with centuries of contract law … because a compulsory contract is an oxymoron. … Under Obamacare, Congress asserted the improper power to compel commercial contracts.”

Libertarians may believe a compulsory contract is an oxymoron, but everyone is entered into all sorts of “compulsory contracts” by the virtue of being a citizen! Just by being born in the U.S., we are all compelled to pay taxes, abide by the criminal and civil legal codes, and sign ourselves up for Selective Service and possibly be drafted (if we are male), among other requirements that I am most certainly forgetting. Many political philosophers would also consider voting to be each citizen’s duty, and many countries make voting legally obligatory. Of course we wouldn’t even be having this argument if either single-payer insurance had been enacted or hospitals themselves had been socialized, making the individual mandate unnecessary. Those alternatives definitely would not have invited any legal challenges. At least, I don’t think so…

Via Friday’s Playbook

This is why I’m going into graduate school for IR/China Studies/International Economics and where I see my career going into the future. This question of scientistic economics vs. moral and political economy has profound implications for China, where these questions cannot even really be asked by academics. And it of course also directly affects the United States, where we need this kind of thought to combat a growing culture of ignorance and Tea Party economics. I love Michael Sandel:

“Scientistic understandings of economics detached from traditional normative questions, traditional questions of value, has a kind of momentum of its own, as if economics were a science or discipline that had graduated from, risen above, connection with mere speculation, which is what philosophers are sometimes thought to do.

And there is something very heady about that idea, of economics as a science, even like physics, for example. But I think it’s a mistake, and I think it’s short-sighted. I think the most important and creative work in the social sciences in our lifetime and in the future will be done by people who are equipped with economic training and concepts and categories but who can see beyond it, and who can reconnect economics with what used to be called moral and political economy.

You know back in the days of Adam Smith, and David Hume, and John Stewart Mill, there was one subject, moral and political economy. There was not political philosophy on the one hand and economics, the science, on the other. And I think that some of the most exciting development and new work will consist in reconnecting the normative dimensions of moral and political theory with economic analysis.

And we see this beginning in debates about globalization, for example, where the role of markets and normative questions seem very hard to leave by the wayside. So that’s one area I think in which the established social science are in need of a kind of leavening and deepening that can come if they reconnect with questions not only of policy but also values and norms, and ideals.”

via the excellent blog Understanding Society.

It is thrilling to follow Andrew Sullivan’s chronicle of the tension, release, drama, and aftermath this evening. Also, Nicholas Jackson‘stech and political insights (source of the “Rainbow Empire State Building” photo at right).

Ten years from now, it will seem as hard to believe that couples of the same sex could not get married as it was, by the late 1970s, to believe that couples of different races could not get married in a number of states barely a decade before. This barrier will fall much more quickly than that one did.

A long and happy marriage has been the main positive event in my life. I am glad that more people will have the opportunity.

Please just read him already!

Ryan Lizza writes a great piece on the Obama doctrine for the New Yorker:

“The project of the first two years has been to effectively deal with the legacy issues that we inherited, particularly the Iraq war, the Afghan war, and the war against Al Qaeda, while rebalancing our resources and our posture in the world,” Benjamin Rhodes, one of Obama’s deputy national-security advisers, said. “If you were to boil it all down to a bumper sticker, it’s ‘Wind down these two wars, reëstablish American standing and leadership in the world, and focus on a broader set of priorities, from Asia and the global economy to a nuclear-nonproliferation regime.’ ”

Trying to figure out the correct balance between realism and idealism is hard. And this article (among many others), complains about the lack of an Obama ‘doctrine’ or ‘vision’. But I almost feel like Clinton and the NSC staff quoted are apologizing for not being more clear about that. They don’t need to – even if it turns out that the Obama ‘doctrine’ is some messy combination of idealism and realism that fully satisfies neither camp. This doesn’t have to be a flaw, and it definitely could be a virtue. We have a large array of philosophical systems in our policy ‘toolbox’, and we should consider using all of them as appropriate. This is, as Obama notes, non-ideological. And it’s also smart. Here’s what Obama could say to break through the clumsy rhetoric, or at least, what I would say:

“I believe in values, but I also believe we should pursue the best policies to advance those values. Both domestic and foreign policy represent shared national values that we hold as a country. Policy makes a moral statement. But invading a country to instigate regime change may not be best way to serve those values – if democracy protestors in a given country retain credibility in the eyes of the people when the US does not interfere, then we should not apply military force, and pursue other means of promoting our values. It’s a philosophy that espouses an idealistic vision while retaining the ability to tailor our policies situation by situation.”

There. Isn’t that simple?

Or maybe, its simplicity lies in acknowledging we must embrace complexity.

Francis Fukuyama once again reaffirms why he is one of the most serious foreign policy intellectuals today, crystallizing in a few sentences what most other China commentators have missed or failed to express so eloquently:

The hardest thing for any political observer to predict is the moral element. All social revolutions are driven by intense anger over injured dignity, an anger that is sometimes crystallized by a single incident or image that mobilizes previously disorganized individuals and binds them into a community. We can quote statistics on education or job growth, or dig into our knowledge of a society’s history and culture, and yet completely miss the way that social consciousness is swiftly evolving through a myriad of text messages, shared videos or simple conversations.

If Yajun’s post at Jottings from the Granite Studio was an introduction into the Chinese mindset and the functional barriers to political change, then Fukuyama’s post is the perfect combination American realist/idealist take on the Jasmine Revolution, focusing on China’s middle class. The middle class is definitely the right frame with which to analyze future political instability in China. If change does come, it will be at the hands of a large number of increasingly comfortable but not wealthy Chinese. This is especially true given that, as Fukuyama notes, the unemployment rate among college graduates in China is one of the highest in the world.

UPDATE: I’m rather surprised that my previous post on the Jasmine Revolution published in the Trinity Tripod is now leading New York Times coverage when you google “Jasmine Revolution”.